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+"{\"id\": \"10593527\", \"name\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong's Inc.'s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees' Committee in the Armstrong's Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant\", \"name_abbreviation\": \"King v. Armstrong\", \"decision_date\": \"1994-06-22\", \"docket_number\": \"No. 93-555\", \"first_page\": \"336\", \"last_page\": \"339\", \"citations\": \"518 N.W.2d 336\", \"volume\": \"518\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:11:28.948283+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.\", \"parties\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong\\u2019s Inc.\\u2019s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees\\u2019 Committee in the Armstrong\\u2019s Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant.\", \"head_matter\": \"Ronald KING, Individually, and as Class Representative of All Participants in Armstrong\\u2019s Inc.\\u2019s Employee Stock Ownership Program and Ronald King, as Chairman of the Employees\\u2019 Committee in the Armstrong\\u2019s Inc. Bankruptcy, Appellees, v. Esther Y. ARMSTRONG, Rodney W. Strang, Maxine Schoonover and Brenton National Bank of Des Moines, Fiduciaries of the Estate of Robert C. Armstrong, Defendants, and Molly Bredl, Appellant.\\nNo. 93-555.\\nSupreme Court of Iowa.\\nJune 22, 1994.\\nPeter C. Riley of Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.\\nMarty A. Hagge of John C. Wagner Law Offices, P.C., Cedar Rapids, for appellees.\\nConsidered by HARRIS, P.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.\", \"word_count\": \"1687\", \"char_count\": \"10349\", \"text\": \"PER CURIAM.\\nAt issue in the present case is whether the district court abused its discretion in awarding the Wagner Law Firm attorney fees pursuant to a fifty percent contingency fee contract between the law firm and the employees of Armstrong's Inc. following the law firm's representation of the employees in a class action suit against Armstrong's. We find no abuse of discretion, and we affirm the judgment of the district court.\\nEmployees of Armstrong's Inc. filed a claim in probate court against the estate of Robert C. Armstrong, alleging that Robert Armstrong breached his fiduciary duty when he sold his stock in Armstrong's Inc. to the employee stock ownership program (ESOP) for more than fair market value. The claim further alleged that Armstrong used his position as a director and trustee of the employee pension plan to insist that ESOP buy out his shares of stock. Because Armstrong's Inc. was in bankruptcy at the time, the claim was filed with the bankruptcy court. The bankruptcy court designated the employees' committee as the official class representative to bring any class action claims against Armstrong's estate.\\nThe Wagner Law Firm first entered discussions with the employees' committee in late December 1991, regarding representation of the class against the Armstrong estate. At that time, numerous other law firms had declined to represent the class, most stating that they did not have the staff and financial means to properly conduct such a complex case. On January 5,1992, the Wagner Law Firm decided that a fifty percent contingency fee agreement was reasonable, based on the complexity of the case and the great risk that no recovery would be obtained. Wagner informed the committee that any fee requested would be subject to court approval. Following a closed door meeting, the employees' committee voted to affirm the contingency fee. On January 31, 1992, the Wagner Law Firm filed an appearance on behalf of King.\\nOn June 23, 1992, a tentative settlement agreement was reached in the amount of $65,000, although the employees' committee had originally thought their claim might bring several million dollars. The Wagner firm and counsel for the estate subsequently prepared and filed the documents necessary to obtain the court's approval, including the application for certification as a class action, the motion to compromise claims and the proper notices. The notice informed the members of the class that the class representative had agreed to a proposed settlement against the Armstrong estate for $65,000. The notice further informed the class mem-' bers that the Wagner firm sought a fifty percent fee pursuant to the agreement entered into between the employees' committee and the law firm.\\nOn September 15, 1992, King filed a motion to compromise claims in the amount of $65,000. Copies of the motion and notice were mailed to all known members of the class. No objections to the compromise of claims were filed. The district court granted the motion to compromise. On December 8, 1992, the Wagner firm filed an application for attorney fees pursuant to the fifty percent contingency fee agreement. The notice of hearing on the fees application noted that the fees were sought pursuant to a fee agreement and that any such fees awarded would be subject to the approval of the court.\\nThe intervenor, Molly Bredl, subsequently filed an objection to the application for attorney fees. At the hearing, the Wagner firm introduced an itemized billing statement showing it had expended time totaling $21,-442 with expected costs of $1985 to distribute monies to the class members. The firm also claimed it had advanced costs and expenses of $5165.10. Bredl's objection was based on her belief that the original lawsuit was frivolous and that no attorney fees should be awarded. Bredl also complained that the amount of fees requested was unreasonable since the amount of time spent by the Wagner firm on the case was minimal. The district court ruled that the Wagner firm was entitled to the fees as agreed.\\nBredl subsequently filed an Iowa Rule of Civil Procedure 179(b) motion, arguing that the district court did not consider the application of Iowa Rule of Civil Procedure 42.-16(e) and Disciplinary Rule 2-106(B). The district court, upon consideration of these rules, overruled the motion. Bredl has appealed.\\nThe first issue to be addressed is what standard of review is to be used by a reviewing court when considering contingency fee agreements. Bredl claims that because the district court failed to make specific findings regarding rule 42.16(e) the case should be reviewed de novo. We disagree.\\nAlthough there are no Iowa cases specifically addressing the standard of review for cases involving contingency fees in class action litigation, we have in other contexts reviewed the allowance of attorney fees under an abuse-of-discretion standard. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990); Green v. Iowa Dist. Court, 415 N.W.2d 606, 608 (Iowa 1987). In class action cases, this court has also applied the abuse of discretion standard when reviewing rulings of the district court. See Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 367 (Iowa 1989); Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 743 (Iowa 1985). Iowa courts have recognized that the district court is an expert on the issue of reasonable attorney fees. Landals, 454 N.W.2d at 897. It therefore appears that when reviewing claims for attorney fees pursuant to a contingency fee agreement in a class action lawsuit, we will review attorney fee awards under an abuse of discretion standard.\\nThe thrust of Bredl's argument is that Wagner's claim for attorney fees under the contingency agreement is unreasonable in light of the factors set forth in rule 42.-16(e). In determining the appropriateness of attorney fees in a class action, rule 42.16(e) provides:\\ne. In determining the amount of attorney's fees for a prevailing class the court shall consider the following factors:\\n(1) The time and effort expended by the attorney in the litigation, including the nature, extent, and quality of the services rendered;\\n(2) Results achieved and benefits conferred upon the class;\\n(3) The magnitude, complexity, and uniqueness of the litigation;\\n(4) The contingent nature of success;\\n(5) In cases awarding attorney's fees and litigation expenses under subdivision \\\"d\\\" of the vindication of an important public interest, the economic impact on the party against whom the award is made; and\\n(6) Appropriate criteria in the Iowa Code of Professional Responsibility for Lawyers.\\nIn conjunction with rule 42.16, Disciplinary Rule 2-106(B) of the Iowa Code of Professional Responsibility for Lawyers also provides guidelines for attorney fees. DR 2-106(B) provides that a fee is clearly excessive if, after a review of the facts, \\\"a lawyer of prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.\\\" The rule sets forth a number of factors to consider, including:\\n(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.\\n(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.\\n(3) The fee customarily charged in the locality for similar legal services.\\n(4) The amount involved and the results obtained.\\n(5) The limitations imposed by the client or by the circumstances.\\n(6) The nature and length of the professional relationship with the client.\\n(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.\\n(8) Whether the fee is fixed or contingent.\\nIn its initial ruling ordering attorney fees, the district court noted that the class had been unable to obtain an attorney to represent them. The district court noted that, when the Wagner firm agreed to represent the class, it was required to advance all prelitigation costs since the employees' committee did not have any funds set aside to conduct the litigation. The court also pointed out that, although the fee was higher than normal, the Wagner firm noted that any attorney fees award would be subject to court approval. Because the employees' committee was free to negotiate with the Wagner firm at arms' length, the district court ruled that the fee contract was reasonable.\\nIn its ruling on Bredl's rule 179(b) motion, the district court provided a more in-depth analysis, of its reasons for approving the fee contract. The district court noted that the case was about to be dismissed by the court when the Wagner firm agreed to represent the class. Although Bredl claimed that the class estimated they might recover over $2 million from the lawsuit, the district court opined that the class had in fact little chance of success. The district court noted the complexity of the case, especially the coordination necessary between the district court and the bankruptcy court, and the large size of the class. The district court also noted that the Wagner firm agreed to advance all costs of litigation despite the knowledge that there was a strong likelihood they would recover nothing. Citing rule 42.16(e) and DR 2-106(B), the district court ruled that the contingency fee agreement was reasonable under the facts.\\nWe hold that the district court was properly guided by rule 42.16(e) and DR 2-106(B) and did not abuse its discretion in awarding the Wagner Law Firm attorney fees pursuant to the contingency fee agreement. We affirm the district court's award of attorney fees.\\nAFFIRMED.\"}"
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+"{\"id\": \"10597585\", \"name\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee\", \"name_abbreviation\": \"Wilson v. Hayes\", \"decision_date\": \"1990-12-19\", \"docket_number\": \"No. 89-252\", \"first_page\": \"250\", \"last_page\": \"268\", \"citations\": \"464 N.W.2d 250\", \"volume\": \"464\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:14:34.759117+00:00\", \"provenance\": \"CAP\", \"judges\": \"NEUMAN, J., takes no part.\", \"parties\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.\", \"head_matter\": \"Michael WILSON and Kathleen Wilson, Appellants, v. James P. HAYES, Appellee.\\nNo. 89-252.\\nSupreme Court of Iowa.\\nDec. 19, 1990.\\nDavid A. Hirsch of Beckman Law Offices, Burlington, for appellants.\\nD.G. Ribble and Wilford H. Stone of Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.\", \"word_count\": \"10489\", \"char_count\": \"63755\", \"text\": \"LAYORATO, Justice.\\nTwo doctors brought suit against an attorney alleging malicious prosecution and abuse of process. The claims arose out of a medical malpractice action that the attorney brought against the doctors on behalf of his client. The client claimed that the doctors' negligence resulted in his wife's death. The underlying malpractice suit was eventually disposed of without trial, and this action followed.\\nAfter a bench trial the district court dismissed the doctors' petition. The court found that the doctors had not established either claim. We affirm.\\nI. Background Facts and Proceedings.\\nThe district court made detailed findings of facts, all of which we find were supported by the evidence. These facts include the following.\\nA. The Principals.\\nDr. Michael Wilson, an orthopedic surgeon, was in private practice in Burlington, Iowa, at the time the medical malpractice action began. He was a shareholder and an employee of Orthopedic & Reconstructive Surgery Associates, P.C. He practiced in Burlington from 1979 to 1985.\\nMichael graduated from the University of Iowa Medical School in 1975. After completing medical school, Michael entered a four-year orthopedic residency at Mayo Clinic. After Michael finished his residency, he relocated to Burlington where he entered private practice.\\nDr. Kathleen Wilson, an internist and a gastroenterologist, was also in private practice in Burlington when the medical malpractice suit began. Kathleen was a sole practitioner. She is also a graduate of the University of Iowa Medical School. Kathleen completed a three-year residency in internal medicine at Mayo Clinic. Following the residency, Kathleen completed a two-year fellowship in gastroenterology at Mayo. She then moved to Burlington and began her private practice.\\nMichael and Kathleen are married and were married at the time the medical malpractice suits began. Although the Wil-sons had separate practices, they did refer patients to each other.\\nJames P. Hayes is an Iowa City attorney. Hayes represented \\u00d1amen Rashid in the medical malpractice action that \\u00d1amen brought against the Wilsons.\\n\\u00d1amen is a resident of Fort Madison. \\u00d1amen brought the medical malpractice action against the Wilsons as the executor of the estate of his deceased wife, Ellen. Before \\u00d1amen brought the suit, he was Kathleen's patient.\\nEllen Rashid had never been Kathleen's patient. But Ellen had been Michael's patient from December 1982 to January 1983.\\nThe Rashids had two adult children, Terry and Carol. Both children consulted with Hayes and \\u00d1amen about the medical malpractice suit.\\nB. The medical malpractice lawsuit.\\nOn July 8, 1983, Ellen was involved in an automobile accident. She was taken from the scene of the accident to the emergency room at Fort Madison Community Hospital. At the hospital Ellen complained of pain in her right ankle as well as general body aches. Dr. James Kannenburg examined and treated Ellen in the emergency room. The emergency room medical records note that Ellen had been in an automobile accident and that she had possibly hit her head and lost consciousness.\\nX-rays taken of Ellen's ankle showed no evidence of a fracture, dislocation, or any pathology involving the bones of the ankle. Ellen was released from the hospital shortly after her arrival with no significant medical instructions.\\nEven though the hospital x-rays showed no sign of significant injury, Ellen still experienced pain and discomfort in her right ankle from July 8 to July 12. Because of this pain, Ellen tried to make an appointment with Michael on July 12. A staff member at Michael's office, however, told Ellen that she needed a referral from another doctor. \\u00d1amen called Kathleen's office for a referral. Kathleen's nurse suggested that \\u00d1amen take Ellen to the Burlington Medical Center emergency room for treatment.\\nOn July 13 \\u00d1amen took Ellen to the Burlington Medical Center. Emergency records at the medical center list \\\"K. Wilson\\\" as Ellen's family physician. These records also note that Ellen had been in a \\\"2-car-accident 7-8-83\\\" and was experiencing a headache together with pain in her right leg, both arms, neck, and right hand.\\nAt the hospital Ellen was examined and treated by the emergency room physician, Dr. Gundrum. Dr. Gundrum ordered x-rays and diagnosed a contusion of the right ankle, elbow, and base of the cervical spine. Apparently no special treatment was ordered, and Ellen was released.\\nOn the same day of this hospital visit, Ellen and \\u00d1amen went to Kathleen's office. Neither Ellen nor \\u00d1amen had a scheduled appointment with Kathleen that day.\\nBecause \\u00d1amen was Kathleen's patient, she agreed to see them. They went to Kathleen's office where \\u00d1amen and Ellen explained Ellen's injuries. \\u00d1amen and Ellen also relayed the information that both emergency room physicians had told them. The couple explained that Ellen had tried to get an appointment with Michael, but she needed a referral.\\nKathleen did not have Ellen's hospital x-rays, but she could see that Ellen's ankle was swollen. Kathleen agreed to call Michael's office. Michael's office then made an appointment for Ellen that afternoon. As \\u00d1amen and Ellen were leaving Kathleen's office, \\u00d1amen wanted to pay for the visit. He was told there was no charge, but he insisted on paying $17. This amount was less than the charge for a normal office visit.\\nMichael saw Ellen the same day. He reviewed Ellen's hospital x-rays. He also took a medical history. Michael's records note that Ellen's chief complaint involved pain and swelling in her right ankle. Michael told Ellen this pain would probably subside in two to three days and suggested an ace wrap on the ankle to control the swelling. No other treatment or medications were suggested. Because Kathleen was the referring physician, Michael's office sent her a copy of his report.\\nOn July 27 Ellen suffered a ruptured congenital cerebral aneurysm. Emergency surgery was performed at University Hospitals in Iowa City to repair the rupture. Ellen died on August 5 due to complications following surgery.\\nTwo months after Ellen's death, \\u00d1amen began discussing a possible medical malpractice lawsuit. He contacted a few local attorneys, but due to conflicts \\u00d1amen was referred to Hayes.\\n\\u00d1amen and his daughter, Carol, met with Hayes on December 20 to discuss a possible lawsuit. Hayes' notes of this first meeting indicate that since Ellen's automobile accident in July she complained of headaches and that she was getting worse. According to the notes, Ellen complained of these headaches to both Kathleen and Michael. Hayes had \\u00d1amen sign patient waiver forms. Hayes subsequently requested Ellen's medical records from Michael, Kathleen, Fort Madison Community Hospital, Burlington Medical Center, University of Iowa Hospitals and Clinics, and Dr. Kannenburg.\\nOn June 1984 Hayes met with \\u00d1amen and Namen's son, Terry. At this meeting, father and son told Hayes that Ellen's head was hurting on the day of the car accident. They told Hayes that \\u00d1amen had called Kathleen's office on July 12 because Ellen was experiencing terrible headaches. They said Kathleen's nurse had referred them to the hospital for x-rays. They also told Hayes that Ellen had specifically told Michael about the headaches but that Michael said there was nothing wrong with her. In his summary of the meeting, Hayes noted that the emergency room records of July 13 showed that Ellen complained of a headache.\\nFollowing this meeting Hayes wrote to Dr. Jon Brillman, a board certified neurologist in Pennsylvania. Hayes had worked with Brillman on previous medical malpractice cases. In his letter Hayes summarized the facts as related to him by \\u00d1amen and his children. Hayes also sent copies of Ellen's medical records. Hayes asked Brill-man to determine whether \\\"the orthopedist failed to deliver to Ellen Rashid the expected standard of care under the circumstances.\\\" In making this determination, Brillman was asked to assume the facts as stated by the Rashids as true.\\nBrillman called Hayes with his opinion on August 1, 1984. Brillman based his opinion on the following assumptions: \\\"an automobile accident, a 'black-out,' amnesia, and a primary complaint of severe headaches on the following days.\\\" It was Brillman's opinion that an orthopedist\\ncould not be faulted for not diagnosing or suspecting the aneurysm right after the accident, but if Ellen continued to complain of headaches a physician and an orthopedist presented with such history and complaints should have referred her to a neurologist or ordered a CAT scan, and a failure to do so would constitute a failure to meet the expected standard of care.\\nBrillman theorized that Ellen had suffered a small rupture of the aneurysm that had caused her to black out and have the accident. Because of this rupture, Brill-man thought there was early bleeding that had healed somewhat but had caused the headaches. According to Brillman there probably was a rerupture of the aneurysm on July 27 that ultimately led to Ellen's death. Brillman believed that an investigation of the headaches on July 13 could very well have prevented the rerupture of the aneurysm on July 27.\\nBrillman agreed to work with Hayes as an expert witness on the case.\\nAfter this call, Hayes wrote to \\u00d1amen and told him what Brillman had said. Hayes then met with \\u00d1amen and his chil dren on August 15, 1984. At this meeting they decided to sue Michael and Kathleen for malpractice.\\nOn October 31 Hayes sent \\u00d1amen a copy of the proposed petition. In his letter to \\u00d1amen, Hayes asked \\u00d1amen to review the petition and to call him with questions, suggestions or changes. The petition was filed on January 24, 1985.\\nThe Wilsons were served on January 25, a Friday. Over the weekend they discussed the lawsuit at length and its implications for their medical practices and their future. By Monday they had decided to end their private practices and enter the military. They made this decision believing that in the military they could practice medicine without fear of personal suits for malpractice. Eventually both did enter the military.\\nKathleen filed an answer to the petition on February 7. In it she specifically denied a doctor-patient relationship between Ellen and her. Kathleen's answer also alleged that she never examined, treated, or consulted with Ellen. The answer asserted that Kathleen's only connection with Ellen was to set up an appointment with Michael.\\nAfter Kathleen learned that Dr. Brillman was scheduled to be an expert witness, she telephoned him on February 25. Brillman described Kathleen as being \\\"very upset.\\\" He in turn was upset by her call. Kathleen described \\u00d1amen to Brillman as a litigious person who had suffered from emotional problems. She also gave Brillman the details about Ellen's visits to her office and to Michael's office. Kathleen emphasized that Ellen had only complained about her sprained ankle and had never made any complaints about headaches. Brillman responded that if the facts were as she said, no malpractice had been committed and he would not testify.\\nBrillman's opinion relied heavily on Ellen's alleged complaints of severe and unremitting headaches. Because of Kathleen's call, Brillman reviewed the materials he had received from Hayes. As a result of this review Brillman felt that the records tended to support Kathleen's claim that there had been no significant complaints of headaches. So he decided not to testify.\\nStill incensed about the lawsuit, Kathleen wrote a letter to Representative Del Stromer, the minority whip of the Iowa Legislature. Her letter detailed the facts about the lawsuit and also disclosed certain medical facts about Namen's mental illness. Kathleen asked Stromer to change Iowa law and make it easier for doctors to sue attorneys for malicious prosecution and abuse of process.\\nThe letter triggered a call to Hayes from William J. Wimmer, the lobbyist for the Association of Iowa Trial Lawyers. Wim-mer also sent Hayes a copy of Kathleen's letter to Stromer. After visiting with Wim-mer, Hayes realized he was a potential defendant in a suit by the Wilsons.\\nOn March 13 Brillman telephoned Hayes with the news: he would not testify. Brill-man told Hayes that after reviewing the records, he concluded there was no evidence of malpractice by the Wilsons. Apparently, Brillman had not reviewed the medical records before giving Hayes his initial opinion by telephone on August 1, 1984. Brillman's decision not to testify was based on a lack of documentation that headaches were a prominent part of Ellen's initial complaints. Without the complaint of headaches, Brillman felt there was no basis for his opinion of an aneurysmal rupture at the time of the accident. The next day Brillman wrote Hayes, documenting what he had told Hayes the day before.\\nOn March 21 Kathleen moved for summary judgment. Kathleen's motion was based solely on a claim that no doctor-patient relationship existed between Ellen and her. Hayes forwarded a copy of the motion to \\u00d1amen. After reviewing the motion, \\u00d1amen wrote Hayes and again recounted the events. \\u00d1amen swore that his version of the facts was true and volunteered to take a lie detector test.\\nOn March 25 Kathleen's attorney wrote to Hayes. The attorney suggested an early deposition of Brillman because the Wil-sons felt Brillman would not support a claim of malpractice against either of them.\\nOn March 28 Hayes replied to this letter. Hayes told the attorney the parties should be deposed before the expert so the expert could have the defendants' versions of the facts.\\nOn the same day Hayes wrote Brillman asking for his opinion based on two different sets of facts. Under one set of facts Brillman was asked to assume Ellen had complained to Kathleen and Michael about a violent, unremitting headache. Under the other set of facts Brillman was asked to assume no such complaint had been made.\\nOn March 29 Brillman called Hayes. Brillman told Hayes that Kathleen had called him two days before, \\\"virtually begging him not to hurt her.\\\" Brillman told Hayes he would not testify but he would help Hayes find another expert. Brillman suggested Dr. Arthur Taub of Yale University.\\nSeveral days later Brillman wrote to Hayes. Brillman related that the medical records showed no sign of an initial aneu-rysmal rupture and revealed no initial chief complaint of a headache. Based on these records Brillman concluded the Wilsons had committed no negligence. Responding to Hayes' request to assume Ellen's chief complaint to the Wilsons was one of a violent, unremitting headache, Brillman reached a different conclusion. Under this set of facts, Brillman believed the Wilsons should have undertaken further investigation as to the cause of the headache.\\nOn April 5 Hayes filed a resistance to Kathleen's motion for summary judgment. He supported the resistance with affidavits from Rashid and his daughter, Carol. The gist of the two affidavits was that Ellen had suffered severe headaches which she complained of to the Wilsons. Hayes also attached the July 13, 1983, emergency room records listing Kathleen as Ellen's physician.\\nKathleen filed additional affidavits in support of her motion for summary judgment. These included one from her office staff and several from personnel at the Burlington Medical Center. In substance these affidavits denied any doctor-patient relationship between Kathleen and Ellen. They also denied that Kathleen had done anything for Ellen except to make an appointment with Michael. Finally, the affidavits denied that Ellen had ever complained of headaches either to the medical center or to Kathleen and her staff. In her own affidavit Kathleen admitted that \\u00d1a-men had paid $17 for the July 13, 1983, office call. However, she asserted that -\\u00d1amen paid this amount despite the fact that he had been told there was no charge for the call.\\nThe motion for summary judgment was heard on April 22. Several weeks later \\u00d1amen, Kathleen, and Michael were deposed. Except as to two points, Namen's deposition virtually corroborated Kathleen's account of the July 13, 1983, office visit: Kathleen's only involvement was to make an appointment for Ellen to see Michael at Namen's request. \\u00d1amen conceded that Kathleen had not examined Ellen, had not questioned Ellen about her symptoms, had not seen Ellen's x-rays, and had not treated Ellen.\\nIn contrast to Kathleen's account, \\u00d1a-men did testify that Ellen had complained to Kathleen that she was still having terrible headaches. In addition, Namen's version of the $17 payment also differed. According to \\u00d1amen he asked the receptionist how much the bill was and she presented him with a bill for $17 which he paid.\\nKathleen attached portions of Namen's deposition covering these matters to her motion for summary judgment. Hayes requested additional time to respond to Kathleen's motion and this request was granted. Hayes thereafter supplemented the resistance with several affidavits.\\nKathleen's motion for summary judgment was sustained on June 17. The essence of the ruling was that no doctor-patient relationship had existed between Kathleen and Ellen. So, according to the ruling, Kathleen \\\"had no relevant duty to Ellen and accordingly could not be liable to her (or to her personal representative) for medical malpractice.\\\" In reaching that conclusion the court relied heavily on Na-men's admissions in his deposition.\\nHayes forwarded the ruling to \\u00d1amen and suggested that they should get together to discuss a possible appeal.\\nWhen Hayes and \\u00d1amen left the depositions, the two talked about the possibility of settlement. They also talked about releases for everyone, including Hayes, as part of the settlement. \\u00d1amen was agreeable to the release idea.\\nShortly after the depositions and before the summary judgment ruling, Hayes had begun settlement negotiations with the Wilsons' attorneys. The Wilsons were amenable to releasing \\u00d1amen but not Hayes. The Wilsons' attorney gave Hayes this counterproposal. In turn, Hayes discussed the counterproposal with the Rash-ids.\\nBy this time \\u00d1amen had become incensed about Kathleen's letter to Del Stromer. \\u00d1amen wanted to sue her for disclosing confidential medical information about him to Stromer. After that, \\u00d1amen was never amenable to settlement.\\nHayes met with the Rashids on June 25 to talk about appealing the summary judgment ruling. \\u00d1amen wanted to appeal. Hayes then appealed and told \\u00d1amen that he had done so.\\nAfter Brillman refused to testify, Hayes set out to find a new expert witness. Hayes contacted at least five doctors. In general, these doctors evaluated the case the same. They all noted the discrepancy between Namen's version and the Wilsons' version. The doctors' opinions generally coincided with Brillman's: if the Wilsons' version was true there was no malpractice; if Namen's version was true, there was.\\nBecause of the problems he was encountering with the experts, Hayes began to realize that a trial would probably be unsuccessful. Hayes tried to convince \\u00d1a-men of this and tried to convince him to settle. \\u00d1amen refused to budge.\\nIn an August 29 letter to \\u00d1amen and Namen's children, Hayes told them that the Wilsons' attorneys had made several inquiries about a release and dismissal of the case. Hayes urged settlement because of the difficulty he was having with the experts. He told the Rashids that they should consider this option as \\\"the best alternative at the present time.\\\" In this letter Hayes did not refer to his own release.\\nIn response \\u00d1amen wrote Hayes and suggested that a certain doctor be contacted as an expert. \\u00d1amen also told Hayes he would not dismiss the suit.\\nThe Wilsons' attorneys made several more attempts to settle the suit to no avail.\\nFinally, in February 1986, Hayes wrote to \\u00d1amen suggesting two alternatives: Hayes would assist him in either dismissing the case or in finding him another attorney. In a return letter, \\u00d1amen said he would never dismiss the case and that he expected Hayes to represent him at trial or to find him another attorney.\\nIn response, Hayes wrote \\u00d1amen in April requesting payment of $1878 for expenses. Hayes also indicated that pursuing the case to trial would cost \\u00d1amen $10,000 to $15,000 and that his firm would require \\u00d1amen to advance $12,500 for future expenses. Finally, Hayes told \\u00d1amen that if this arrangement was not satisfactory, he intended to withdraw because of the substantial difference between the two concerning the merits of the case.\\n\\u00d1amen responded, insisting that Hayes continue with the case. \\u00d1amen also made some vague threats as to what would happen if Hayes withdrew.\\nIn May Hayes filed a motion to withdraw in Michael's case. Hayes cited the differences between \\u00d1amen and himself. Hayes also asserted that he had asked \\u00d1amen to hire other counsel but \\u00d1amen had failed to do so.\\nFollowing a hearing, the court granted Hayes' motion to withdraw, which was formally approved by a written order on June 12, 1986.\\n\\u00d1amen apparently never could hire new counsel to take over the case against Michael. Michael then filed a motion for. summary judgment in July. \\u00d1amen did not attend the hearing on the motion which was scheduled for July 23. \\u00d1amen did, however, inform the court by letter that he wanted the case dismissed.\\nThe district court continued the summary judgment hearing until August 4 at which time \\u00d1amen appeared in person. At the hearing \\u00d1amen told the court he wanted to dismiss not only the district court action but the appeal as well. The district court dismissed the action against Michael. The court, however, had no jurisdiction to dismiss the appeal.\\nHayes was not aware that \\u00d1amen wanted to dismiss the appeal. When he found out, Hayes sent \\u00d1amen an authorization to do so. In the accompanying letter Hayes explained he understood \\u00d1amen wanted to dismiss the appeal. \\u00d1amen never responded to Hayes' letter, which was sent September 16.\\nOn September 16 Kathleen filed a motion to dismiss the appeal. She supported the motion with a transcript of the August 4 hearing at which \\u00d1amen had stated he wanted the appeal dismissed. There was no resistance to this motion. On October 27 this court dismissed the appeal.\\nC. The Malicious Prosecution and Abuse of Process Claims.\\nFollowing the dismissal of both the district court action and the appeal, the Wil-sons sued Hayes for malicious prosecution and abuse of process. In this action, they claim that Hayes' conduct in initiating the original lawsuit and then continuing the case constituted malicious prosecution. In addition the Wilsons contend that Hayes committed an abuse of process when he sought a personal release instead of dismissing the lawsuit.\\nThe Wilsons' claims were filed and tried at law to the court. Following trial, the district court filed extensive findings of fact and conclusions of law. The court held that the Wilsons had failed to prove by a preponderance of the evidence the essential elements of each tort.\\nThe Wilsons appealed and Hayes cross-appealed.\\nAs to their malicious prosecution claim, the Wilsons contend that, contrary to the district court's findings, they did establish that Hayes lacked probable cause and therefore acted with malice toward them in initiating and continuing the lawsuit.\\nThe Wilsons also contend they established their claim of abuse of process. They argue that contrary to the district court's findings, Hayes' primary purpose for continuing the lawsuit was to secure a release for himself. They argue that such conduct was improper and constituted an abuse of legal process.\\nIn his cross-appeal Hayes contends the district court erred when it did not sustain his motion for directed verdict. In his motion Hayes had contended that the Wilsons were required to produce expert testimony on lack of probable cause and on whether he properly used legal process. Three organizations have filed Amicus Curiae briefs contending that expert testimony should be required to establish lack of probable cause in a malicious prosecution action against an attorney. These organizations include the Iowa State Bar Association, the Iowa Trial Lawyers Association, and the Iowa Academy of Trial Lawyers.\\nOur scope of review in actions for malicious prosecution and abuse of process is limited to correction of errors at law. Royce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988) (citing Iowa R.App.P. 4). Findings of fact in jury-waived cases shall have the effect of a special verdict. Iowa R.App.P. 4. We are bound by the trial court's findings of fact if they are supported by substantial evidence. Iowa R.App.P. 14(f)(1). Evidence is substantial when a reasonable mind could accept it as adequate to reach the same findings. Waukon Auto Supply v. Farmers & Merchants Sav. Bank, 440 N.W.2d 844, 846 (Iowa 1989).\\nII. The Issues on Appeal.\\nA. Malicious Prosecution.\\nOver the years medical malpractice litigation, for whatever reason, has mushroomed. The medical community has been critical of such suits, suggesting that many are frivolous and brought merely for their settlement value. This feeling has prompted a number of doctors to retaliate by bringing malicious prosecution suits against either the original patient plaintiff or the plaintiffs attorney. See Wong v. Tabor, 422 N.E.2d 1279, 1282-83 (Ind.App.1981).\\nMalicious prosecution began as a remedy for unjustifiable criminal proceedings. Gradually the remedy was extended to the wrongful institution of civil suits. See W. Prosser, Law of Torts \\u00a7 120, at 889 (Fifth Ed.1984) [hereinafter Prosser]. In fact, the Restatement refers to the civil side of the remedy as the \\\"wrongful use of civil proceedings.\\\" See Restatement (Second) of Torts, Wrongful Use of Civil Proceedings, \\u00a7 674-681B, at 452-73 (1977). So when applied to civil proceedings, malicious prosecution is actually a misnomer. Prosser \\u00a7 120, at 892. In our own cases we make no distinction. See, e.g., Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976) (\\\"The basis of an action for malicious prosecution consists of the wrongful initiation of an unsuccessful civil or criminal proceeding with malice and without probable cause\\\").\\nThe remedy's primary purpose is to provide relief in those cases in which a plaintiff brings a meritless suit and has an improper motive for bringing it. Wong, 422 N.E.2d at 1283. Courts have not favored the remedy and so have construed its requirements strictly against the malicious prosecution plaintiff. Id. According to Prosser, two competing social interests underlie the remedy: the individual interest in freedom from unjustifiable litigation and the social interest in supporting resort to the law. Prosser \\u00a7 119, at 871.\\nIt is only in recent years that litigants have used the remedy against attorneys. One commentator suggests the remedy focuses on the intent of the original plaintiff rather than on the attorney's conduct in screening lawsuits. Note, A Lawyer's Duty to Reject Groundless Litigation, 26 Wayne L.Rev. 1561, 1569 (1980). For that reason it is suggested the remedy is ill-equipped to deter attorneys from filing groundless suits. Id. at 1568. This in turn may account for the reluctance of the courts to hold attorneys liable for malicious prosecution. Wong, 422 N.E.2d at 1283.\\nWe recently summarized the elements of a malicious prosecution suit in a civil setting:\\nTo prevail on a claim for malicious prosecution, the plaintiff must establish each of the following six elements: (1) a previous prosecution, (2) instigation of that prosecution by the defendant, (3) termination of that prosecution by acquittal or discharge of the plaintiff, (4) want of probable cause, (5) malice on the part of defendant for bringing the prosecution, and (6) damage to plaintiff.\\nRoyce v. Hoening, 423 N.W.2d 198, 200 (Iowa 1988); see also Restatement (Second) of Torts \\u00a7 674, 681A (setting forth comparable elements).\\nThe fighting issue here concerns Hayes' conduct in initiating and continuing the malpractice action. Specifically, did he have probable cause? And did he act with malice or an improper purpose?\\nWhile we have addressed the question of probable cause to file suit from a litigant's standpoint, we have not developed a standard for reviewing an attorney's decision to file suit. Such a standard requires a careful consideration of the attorney's duty to the client and freedom of access to the courts:\\n[In developing a standard for reviewing a lawyer's decision to file suit], we must be ever mindful that an attorney's role is to facilitate access to our judicial system for any person seeking legal relief. As such, probable cause is not to be judged merely upon some personal assessment of a claim's merit. It must encompass consideration of the law's desire to fully meet the client's needs. While an attorney is under an ethical duty to avoid suit where its only purpose is to harass or injure, if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client's interests must be paramount. .\\nWe thus emphasize that any standard of probable cause must insure that the attorney's \\\"duty to his client to present his case vigorously in a manner as favor able to the client as the rules of law and professional ethics will permit\\\" is preserved. .\\nWe recognize that through an effort to protect every citizen's free access to the courts some innocent persons may suffer the publicity, expense and other burdens of defending ill-founded lawsuits. While this is regrettable, the chilling effect that a broad rule of attorney liability would have upon the legal system, and ultimately upon its popular acceptance as a means of dispute resolution, appears to outweigh the value of the protection it would afford to those who might be deemed \\\"innocent\\\" defendants.\\nWong, 422 N.E.2d at 1285-86; accord Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978).\\nIn keeping with this philosophy, the Restatement has formulated a special rule to govern review of an attorney's conduct in commencing and continuing a lawsuit:\\nAn attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action; and even if he has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. An attorney is not required or expected to prejudge his client's claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.\\nIf, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.\\nRestatement (Second) of Torts \\u00a7 674 comment d (1977) (citations omitted). In short, under this rule the attorney avoids liability if the attorney either had probable cause or acted primarily to have the client's claim judicially determined.\\nThe improper purpose element in this rule coincides with the concept of malice and is discussed in section 676 of the Restatement:\\nPropriety of Purpose.\\nTo subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based.\\nId. \\u00a7 676.\\nComment c to section 676 gives examples of improper purposes: the person bringing suit is aware the claim has no merit; the proceedings are begun because of hostility or ill will; the matter is initiated solely for the purpose of depriving the person against whom it is brought of a beneficial use of property; or, suit is brought for the purpose of forcing a settlement which has no relation to the merits of the claim (a \\\"nuisance\\\" suit).\\nOur concept of malice for malicious prosecution is set out in Brown v. Monticello State Bank, 360 N.W.2d 81, 87 (Iowa 1984):\\nMalice means any wrongful act which has been wilfully and purposely done to the injury of another. There must be an improper purpose or motive. Malice may be actual, or it may be inferred from a want of probable cause.\\nAlthough this definition seemingly coincides with the concept of improper purpose in section 676 of the Restatement, there is one important difference. Under our definition malice may be inferred from a want of probable cause. Id. Under section 676 a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. See Friedman v. Dozorc, 412 Mich. 1, 56-57, 312 N.W.2d 585, 607 (1981).\\nThe independent evidence requirement stems from the following language in comment d to section 674 of the Restatement:\\n[E]ven if [the lawyer] has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.\\nSo the attorney who\\n\\\"acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim,\\\" albeit with knowledge that the claim is not tenable, should not be subject to liability on the thesis that an inference of an improper purpose may be drawn from the lawyer's continuing to advance a claim which he knew to be untenable.\\nFriedman, 412 Mich. at 56-57, 312 N.W.2d at 607.\\nThe rule that malice may be inferred from want of probable cause developed in eases in which damages were sought from a lay person. One court suggests that this rule \\\"fails to make sufficient allowance for the lawyer's role as advocate and should not be applied in determining whether a lawyer acted for an improper purpose.\\\" Id.\\nThus, under the Restatement rule as expressed in comment d, an attorney would only be liable if the attorney knowingly initiated or continued a suit for a clearly improper purpose. Filing or continuing a weak case would not be enough. Nor would a failure to fully investigate all the facts prior to suit. So long as the attorney has grounds to support a belief \\\"that bringing a particular action may help to secure a proper adjudication of a claim,\\\" no liability would result. Wong, 422 N.E.2d at 1287; see also Friedman, 412 Mich. at 52-55, 312 N.W.2d at 605-06; 52 Am.Jur.2d Malicious Prosecution \\u00a7 64 (1970) (\\\"Except on proof of his actual knowledge that the charge was groundless, . an attorney should not be held liable for the malicious prosecution of a third person if it appears that he acted with the authority of his client, solely in the interest of his client, and without knowledge of fraud, collusion, or sinister intent to injure or deceive the third party\\\").\\nIn determining the existence of probable cause\\n[t]he important question [is not the defendant's] belief but whether all the facts, as [the defendant] knew them or should have known, were such as to justify the ordinary, reasonably prudent, careful and conscientious person in reaching such a conclusion.\\nSchnathorst v. Williams, 240 Iowa 561, 577, 36 N.W.2d 739, 748 (1949). Stated another way,\\nthere is a want of probable cause if the circumstances are such as to satisfy a reasonable [person] that the defendant had no ground for proceeding but [the] desire to injure the plaintiff.\\n52 Am.Jur.2d Malicious Prosecution \\u00a7 52, at 218.\\nTo establish probable cause, however, \\\"it is not necessary that one be certain of the outcome.\\\" Id. \\u00a7 51, at 219. Rather, the test for probable cause is an objective one: probable cause exists if there are reasonable grounds for believing the suit is justified. Id. Implicit in this test is the notion that\\n[t]he conduct of the defendant is to be weighed in view of what appears to the defendant at the time of initiating the prior proceeding....\\nId. \\u00a7 64, at 226.\\nWhen deciding if a client has probable cause,\\nan attorney is entitled to rely in good faith upon the statements of facts made . by [the] client, and is not under a duty to institute an inquiry for the purpose of verifying [the client's] statement. .\\nId. \\u00a7 64, at 226-27; accord Friedman, 412 Mich. at 52-53, 312 N.W.2d at 605; Murdock v. Gerth, 65 Cal.App.2d 170, 179, 150 P.2d 489, 493 (1944).\\nProbable cause is defined in the Restatement:\\nOne who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either\\n(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or\\n(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.\\nRestatement (Second) of Torts \\u00a7 675. A person initiating a civil proceeding cannot have a \\\"reasonable belief in the existence of the facts on which the-proceedings are based\\\" if the person knows that the alleged facts are not true. Id. at comment d. On the other hand it is enough if the existence of such facts is not certain, but the person believes their existence can be established to the satisfaction of the jury. Id.\\nThis definition of probable cause\\n[\\u0430]s applied to a plaintiff's lawyer . would allow lack of probable cause to be found where the lawyer proceeded with knowledge that the claim had no factual or legal basis, but would impose no obligation to investigate if the lawyer could reasonably believe the facts to be as the client alleged.\\nFriedman, 412 Mich. at 55, 312 N.W.2d at 606. We see no practical difference between the Restatement's definition of probable cause as applied to attorneys and the definition of probable cause we spoke of earlier.\\nWe think the Restatement's approach to attorney liability for malicious prosecution is sound. So we adopt the rule stated in comment d to section 674 of the Restatement. We also adopt the rule that a finding of an improper purpose must be supported by evidence independent of the evidence establishing a want of probable cause. In other words, in cases of malicious prosecution against attorneys an improper purpose may not be presumed from a want of probable cause. Our rule that malice may be presumed from a want of probable cause remains the same in all other cases.\\nThere are a number of reasons why we think this approach is sound. First, we have already mentioned the attorney's duty to facilitate access to the court for any person seeking legal relief and the attorney's duty to vigorously present the client's case. Any broad rule of attorney liability would have a chilling effect on both. As one court .wisely noted,\\nTo create liability . for the bringing of a weak ease, would be to destroy his efficacy as advocate of his client and his value to the court, since only the rare attorney would have the courage to take other than the \\\"easy\\\" case.\\nBerlin v. Nathan, 64 Ill.App.3d 940, 953, 21 Ill.Dec. 682, 691, 381 N.E.2d 1367, 1376 (1978), cert. denied, 444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979).\\nSecond, statute of limitations problems present serious dilemmas to attorneys. There may be only enough time to file suit based on the information the client gives. Should an attorney refuse to handle a case that seems to have merit merely because there is not enough time to investigate and research? These circumstances create a \\\"catch 22\\\" situation for the attorney. The attorney could fail to file and possibly create grounds for ldgal malpractice. Or the attorney could file and possibly create grounds for a malicious prosecution action.\\nThird, as one court suggests, whether an attorney acted appropriately in initiating or continuing a suit \\\"should not normally depend upon the extent of the investigation conducted.\\\" Friedman, 412 Mich. at 52, 312 N.W.2d at 605. The canons of ethics echo this notion. Such canons, for example,\\nconsistently incorporate a requirement of scienter as to groundlessness or vexa-tiousness, not a requirement that the lawyer take affirmative measures to verify the factual basis of the client's position.\\nId. at, 312 N.W.2d at 605; Iowa Code of Professional Responsibility for Lawyers DR 7-102(A) (lawyer should not file suit when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another).\\nFourth, oftentimes a case looks good from the start, but as time goes on the case turns sour. This case is a prime example. The attorney in such circumstances may again be caught in a \\\"catch 22\\\" situation. The attorney usually reaches a point where the client is advised to settle for a nominal amount or dismiss. The client, as in this case, may adamantly refuse and insist upon pressing the claim though the attorney has explained that the case has little chance of success. In these circumstances an attorney's ability to withdraw is curtailed if the client objects. See Friedman, 412 Mich. at 57 n. 60, 312 N.W.2d at 607 n. 60. The canons of ethics do allow the attorney to withdraw when the attorney discovers the case has no merit. But the attorney must secure court permission which might not be granted. See Iowa Code of Professional Responsibility for Lawyers DR 2-110(A)(1) (lawyer shall not withdraw without court permission); DR 2-110(A)(2) (lawyer may not withdraw until lawyer takes reasonable steps to protect client).\\nFifth, some courts fear that a conflict of interest may arise between attorney and client if a duty is imposed on the attorney to third parties not to file weak cases. An attorney owes a duty to the client to present the client's case vigorously in a manner as favorable to the client as the rules of law and professional ethics demand. See Berlin, 64 Ill.App.3d at 953, 21 Ill.Dec. at 691, 381 N.E.2d at 1376; Iowa Code of Professional Responsibility for Lawyers DR 5-101 (refusing employment when the interests of the lawyer may impair lawyer's independent professional judgment).\\nSixth, an attorney's identification with a client is professional, not personal. In this sense an attorney's role does not differ from that in other professional relationships. For example, no reasonable person would impute a patient's conduct to a treating physician. And no reasonable person would levy criticism against a physician for furnishing needed medical services, even when the patient might seek such treatment for injuries resulting from objectionable or even outrageous conduct.\\nLast, we think Iowa Rule of Civil Procedure 80(a) provides an adequate alternative remedy for baseless litigation. Under the rule an attorney's signature on every motion, pleading, or other paper, is a certification that the attorney\\nhas read [such documents]; that to the best of [the attorney's] knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause an unnecessary delay or needless increase in the cost of litigation....\\nIowa R.Civ.P. 80(a) (emphasis added).\\nA violation of Rule 80(a) subjects the offending attorney to sanctions including \\\"the amount of the reasonable expenses incurred because of the filing of [the enumerated documents], including a reasonable attorney fee.\\\" Id. An attorney who files a suit without first conducting a reasonable investigation may escape liability for malicious prosecution if the suit turns out to be groundless. But such an attorney may incur sanctions under rule 80(a).\\nWith these principles in mind we turn to the record in this case.\\n1. Initiating the suit. There is no dispute between the parties that the malpractice action terminated in favor of the Wil-sons. The district court so found and we do not address that issue any further.\\nAt this point, as the district court found, the Wilsons had established a prima facie case that probable cause for initiating the suit was lacking. See Schnathorst, 240 Iowa at 573-74, 36 N.W.2d at 746. Hayes then had the burden of going forward with the evidence to rebut this presumption. But the burden of persuasion as to all the elements of malicious prosecution still remained with the Wilsons. See id. The district court found that Hayes had rebutted the presumption. The court also found that the Wilsons had failed to prove by a preponderance of the evidence that probable cause for initiating the suit was lacking.\\nIn reaching its conclusion, the court found that the following critical facts were known to Hayes when the malpractice action was filed:\\n(1) Kathleen and Michael had both seen Ellen on July 13, 1983, and both were aware that she had recently been in an automobile accident.\\n(2) \\u00d1amen and his children told Hayes that Ellen had been complaining of constant headaches and that Ellen had relayed this fact to the Wilsons.\\n(3) The July 13, 1983, emergency records list \\\"K. Wilson\\\" as Ellen's physician. These records also show that Ellen was complaining of a headache.\\n(4) Kathleen's office notes verify Ellen's July 13, 1983, visit and include a brief medical history as well as statements about the hospital x-rays and a diagnosis of Ellen's right ankle injury.\\n(5) Kathleen's office notes also include a written plan to refer Ellen to Michael.\\n(6) Kathleen's office records show that \\u00d1amen paid $17 for Ellen's visit.\\n(7) Michael's office notes include substantially similar information regarding Ellen's visit to him.\\n(8) Michael's office notes indicate that he forwarded a copy of his notes, including medical history, diagnosis, and recommended treatment, to Kathleen.\\n(9) Before filing the lawsuit, Hayes consulted with Brillman, a board-certified neurologist. After reviewing the facts as related by Hayes who in turn relied on the medical records and what the Rashids had told him, Brillman concluded that the Wilsons may have been negligent. Brillman gave Hayes a logical and convincing theory in support of his conclusion.\\nWe think these facts support the district court's conclusion that Hayes had rebutted the prima facie case. These facts also support the court's conclusion that the Wilsons had failed to prove by a preponderance of the evidence that probable cause to initiate the suit was lacking. Hayes had before him the facts according to the Rashids as well as documentary evidence tending to support these facts. Hayes also had the opinion of a qualified expert with whom Hayes had consulted in previous cases. Given this information, we think a reasonably prudent and careful attorney could conclude that filing the suit was justified.\\nBecause the district court found that Hayes had probable cause to initiate the malpractice action, it held that malice could not be inferred. As to the existence of actual malice, the court ruled that \\\"[n]o other substantial evidence shows or purports to show that Hayes initiated the Rashids' lawsuit with malice.\\\"\\nWe agree with the district court's bottom line. However, under the Restatement rule we adopt today, an improper purpose\\u2014the counterpart of malice\\u2014cannot be inferred from a lack of probable cause. So under this rule, even had the district court found a lack of probable cause, it would need to find from independent evidence that Hayes initiated the suit for an improper purpose. We find no such independent evidence in the record.\\nThat brings us to the question whether there was probable cause to continue the lawsuit and whether there was any malice in doing so.\\n2. Continuing the lawsuit. Even though a lawsuit is commenced with probable cause, if the suit is prosecuted after it later appears there is in fact no probable cause, liability may arise. See Restatement (Second) of Torts \\u00a7 674 comment c. According to comment c:\\nOne who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding.\\nId. In an early case this court recognized this same principle. See Wetmore v. Mellinger, 14 N.W. 722, 723 (Iowa 1883), rev'd on rehearing, 64 Iowa 741, 18 N.W. 870 (1884).\\nAs in the case of initiating a lawsuit, an improper purpose for continuing one may not be inferred from a lack of probable cause. Such purpose must be established by evidence independent of the evidence establishing a lack of probable cause.\\nKathleen contended in the district court, as she contends here, that there never was a doctor-patient relationship between Ellen and her. She argues that at some point early in the proceedings Hayes should have realized this and dismissed the suit against her.\\nAnother contention is based on the assumption that such a doctor-patient relationship existed. Even in these circumstances the Wilsons contend the lawsuit should have been discontinued because it soon became apparent none of the Rashids had complained to them that Ellen was suffering serious headaches. Such a complaint, of course, was an important predicate for an opinion that the Wilsons were negligent. At that point the Wilsons argue Hayes had no probable cause to continue the case against either of them.\\nThe district court found against the Wil-sons on both points. The court concluded that they had not established by a preponderance of the evidence lack of probable cause to continue the case. For reasons that follow we agree.\\na. The case against Kathleen. As the district court found, probable cause for the continuation of the case against Kathleen centered on her motion for summary judgment. We agree with the district court that such probable cause depended on whether Hayes had reasonable grounds to dispute the summary judgment ruling. And that depended on whether there was a fact question regarding the existence of a doctor-patient relationship between Kathleen and Ellen. See Iowa R.Civ.P. 237(c). Hayes squarely raised this issue in the appeal.\\nAs we earlier noted, the summary judgment record contained affidavits, medical records, and excerpts from Namen's deposition. This record contained conflicting factual information regarding the existence of a doctor-patient relationship. Based on this record we think Hayes had reasonable grounds to believe he could prevail on appeal, the same conclusion the district court reached. In the words of the district court,\\nHayes had probable cause to pursue the appeal in that he had knowledge of a state of facts which would lead a person of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, to believe that pursuit of the appeal was justified. Stated otherwise, the court finds and concludes that the [Wilsons] have not shown by a preponderance of the evidence that Hayes lacked probable cause to believe that a physician-patient relationship existed between Kathleen and Ellen and lacked probable cause to pursue an appeal from an adverse ruling on the motion for summary judgment.\\nb. The case against both doctors. The crucial fact in the case against both doctors was whether Ellen had complained of headaches to them. Our recital of the facts found by the district court demonstrates there was a factual dispute on this issue.\\nThe Wilsons, of eourse, deny that Ellen complained about headaches. Both doctors agree, however, that had she done so, a CAT scan should have been ordered to detect a possible aneurysm.\\n\\u00d1amen, on the other hand, claimed that Ellen did complain of headaches to Michael, but that Michael told her there was nothing wrong with her head. The Rashid children also asserted that Ellen told Michael about the headaches. \\u00d1amen also claimed that he told Kathleen about the headaches when he took Ellen to her.\\nDr. Gundrum told Hayes that Ellen must have complained of a significant headache because he did a complete neurological exam. The July 13, 1983, emergency records tend to support Dr. Gundrum because they note that Ellen complained of a headache.\\nFinally, in addition to Brillman, several other doctors Hayes contacted later in the case all agreed that if Namen's version regarding this complaint was true, the CAT scan should have been ordered.\\nGiven the factual information available to Hayes, we think the district court properly found that Hayes had reasonable grounds to believe such complaints had been made. The court, therefore, properly concluded that Hayes had probable cause to continue the case.\\nThe district court also found that the Wilsons had failed to prove Hayes continued the suit against them \\\"out of ill-will, hatred, or for such other wrongful purpose as would constitute malice.\\\"\\nOne issue the district court did not specifically address was the significance of Hayes' request for a release for himself during settlement negotiations. This bore on the question of malice or improper purpose. The Wilsons, however, did not file a rule 179(b) motion requesting the court to rule on this issue. So we deem it waived as to the malicious prosecution action. See Cole v. First State Bank, 463 N.W.2d 59, 63 (Iowa 1990) (Iowa Rule of Civil Procedure 179(b) motion essential to preservation of error when a trial court fails to resolve an issue).\\nHowever, this issue was raised and decided by the district court in the abuse of process action, which we next address. What we say there amply supports the district court's general finding of no malice or improper purpose in continuing the lawsuit for malicious prosecution purposes.\\nB. Abuse of process.\\nAbuse of process is similar to malicious prosecution in that the basis for both is the improvident use of courts. Note, A Lawyer's Duty to Reject Groundless Litigation, 26 Wayne L.Rev. at 1565. The focus, however, is slightly different:\\nMalicious prosecution occurs when an action is instituted without foundation. Conversely, abuse of process may be found when [legal process] is . used to attain a collateral objective beyond that anticipated by the process. An ulterior motive does not alone satisfy the requirement for an action in abuse of process; a definite act or threat outside the process is required.\\nId. at 1555-56; see also Grell v. Poulsen, 389 N.W.2d 661, 663 (Iowa 1986).\\nWe have defined abuse of process as the use of \\\" 'legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed....'\\\" Schmidt v. Wilkinson, 340 N.W.2d 282, 284 (Iowa 1983) (quoting Restatement (Second) of Torts \\u00a7 682). The essence of this tort is an improper purpose for using the legal process. The improper purpose must result from \\\" '[s]ome act or threat directed to an immediate objective not legitimate in the use of the process _'\\\" Id. (quoting Restatement (Second) of Torts app. \\u00a7 682 (1981)).\\nAn improper purpose or use \\\" 'is ordinarily an attempt to secure from another some collateral advantage not properly in-cludable in the process itself....'\\\" Id. at 284-85 (quoting Sarvold, 237 N.W.2d at 449). Simply put, the improper purpose relates to an extortion or coercion attempt by one person to do some other thing. Id. at 285.\\nAn abuse of process can occur even though there is probable cause to bring the action and the original action terminates in favor of the plaintiff. Sarvold v. Dodson, 237 N.W.2d at 449.\\nAbuse of process has two elements: (1) legal process and (2) use of the legal process in an improper or unauthorized manner. Tomash v. John Deere Indus. Equip. Co., 399 N.W.2d 387, 390 (Iowa 1987). A third element, while not specifically mentioned in our cases, requires that the plaintiff suffered damages as a result of the abuse. See 1 Am.Jur.2d Abuse of Process \\u00a7 4, at 252 (1962).\\nThe first element can generally be shown by the use of a legal process against the plaintiff. See, e.g., Grell v. Poulsen, 389 N.W.2d at 664; Brody, 267 N.W.2d at 905-06; Sarvold, 237 N.W.2d at 450.\\nThe second element \\u2014 improper motive in using the legal process \\u2014 is more difficult to prove. The plaintiff must prove that the defendant used the legal process primarily for an impermissible or illegal motive. Grell, 389 N.W.2d at 663 (quoting with approval Restatement (Second) of Torts \\u00a7 682 comment b). The significance of the word \\\"primarily\\\" is spelled out in Restatement (Second) of Torts, Abuse of Process, \\u00a7 682 comment b:\\n\\\"Primarily.\\\" [Tjhere is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant....\\nFor abuse of process to occur there must be use of the process for an immediate purpose other than that for which it was designed and intended. The usual case of abuse of process is one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it.\\nSee Schmidt, 340 N.W.2d at 284 (adopting comment b).\\nIn previous cases we have taken a very restrictive view of the primary purpose element. We have done so in the interest of protecting the right of ready access to courts. Brody, 267 N.W.2d at 905. So abuse of process will not lie for a civil action which inconveniences a defendant, or for one filed in expectation of settlement (a \\\"nuisance\\\" suit). Id. at 905-06. Additionally, there is no abuse of process when the action is filed to intimidate and embarrass a defendant knowing there is no entitlement to recover the full amount of damages sought. Grell, 389 N.W.2d at 664.\\nAll of this is true as long as the act that is alleged to be improper, is in fact proper in the regular prosecution of the proceeding. Id. Put another way, \\\"the defendant is not liable if he has done no more than carry the process to its authorized conclusion, even with bad intentions.\\\" Schmidt, 340 N.W.2d at 284 (citing with approval additional commentary found in Restatement (Second) of Torts app. \\u00a7 682 (1981)).\\nThe Wilsons contend that Hayes had an improper or illegal motive for continuing the suit: to secure a release for himself which would avoid a suit against him. In support of their contention, the Wilsons argue that Hayes violated several ethical rules and these violations would supply the \\\"primarily\\\" improper motive.\\nSpecifically, the Wilsons claim that Hayes' attempt to secure the release constituted a conflict of interest between Hayes and \\u00d1amen. The Wilsons suggest that at a minimum Hayes should have told \\u00d1amen about the conflict and should have advised \\u00d1amen to consult with another attorney about it. See Iowa Code of Professional Responsibility for Lawyers EC 5-1 (lawyer should exercise professional judgment solely for benefit of client and not for the lawyer's personal interest); EC 5-2 (lawyer should not assume position that would tend to make lawyer's judgment less protective of client's interest); EC 5-11 (lawyer should recommend additional counsel when proper representation of client requires it).\\nThe district court made no specific finding that Hayes committed any ethical violation, concluding that question was not a proper matter for it to decide. The court, however, did find that the proposed release constituted some evidence that Hayes continued the case to secure a collateral benefit. We seriously doubt whether the release request constitutes evidence of improper purpose for abuse of process purposes. Settlement is included in the \\\"goals of proper process,\\\" even though the suit is frivolous. Bickel v. Mackie, 447 F.Supp. 1376, 1383 (N.D.Iowa), aff'd, 590 F.2d 341 (8th Cir.1978); accord Brody v. Ruby, 267 N.W.2d at 905-06.\\nThe district court also found that Hayes continued to pursue the case in the district court and on appeal for legitimate reasons and not \\\"primarily\\\" to secure a release. We think there is substantial evidence to support these findings. Such evidence shows the following.\\nOnce Hayes realized that the chances of a successful trial were minimal, he took immediate steps to settle. \\u00d1amen was amenable to settlement for a very short time. \\u00d1amen, however, quickly changed his mind and would not settle. \\u00d1amen even threatened Hayes if Hayes did not continue with the suit. After Hayes made several unsuccessful attempts to convince \\u00d1amen to settle, he sought and received permission to withdraw from Michael's case.\\nAs to the appeal in Kathleen's case, Hayes had reason to believe the appeal had merit. Hayes remained in the case to protect \\u00d1amen in the event the appeal was successful. And, as he did in Michael's case, Hayes tried to convince \\u00d1amen to dismiss the appeal. But \\u00d1amen refused to do so. By this time the case was ready for oral argument. So Hayes did not seek withdrawal. However, once Hayes learned that \\u00d1amen wanted to dismiss the appeal, as the district court found, Hayes took reasonable steps to dismiss it. \\u00d1amen again would not cooperate, refusing to return the authorization to dismiss that Hayes had sent him.\\nThe Wilsons seize upon Hayes' dismissal of Michael's case as evidence that he acted with an improper purpose in pursuing the appeal against Kathleen. The Wilsons contend that once Hayes sought dismissal of Michael's case he should have sought dismissal of Kathleen's case because her case was even weaker. We disagree.\\nThe evidence suggests a reasonable explanation for the difference in treatment. To pursue Michael's case, Hayes would have had to expend much more time and expense than he would in pursuing the appeal. The appeal was ready to be argued. Minimal time and expense would be expended in prosecuting the appeal to the end.\\nIf Hayes' primary purpose in continuing the appeal was to secure a release for himself, one might ask why did he seek a dismissal only in Michael's case? A dismissal of only one case would still subject him to the risk of suit.\\nThere is one additional reason why the personal release request does not support a finding of abuse of legal process. The district court specifically found that \\\"the discussion of a possible release for Hayes did not in fact obstruct settlement negotiations or prevent settlement.\\\" The court therefore concluded that such discussion \\\"was not a proximate cause of any failure\\\" to settle the malpractice suit.\\nWe think the evidence also supports this finding and conclusion. \\u00d1amen was only briefly amenable to settlement. This was right after his deposition. Thereafter the matter of settlement was a closed subject with him.\\nFor all these reasons we conclude the judgment of the district court as to both claims must be affirmed.\\nIII. Issues on the Cross-Appeal.\\nBecause we are affirming the district court judgment we do not reach the issues Hayes raises in his cross-appeal.\\nIV. Disposition.\\nThere was substantial evidence to support the district court's findings that the Wilsons had not proven their claims of malicious prosecution and abuse of process against Hayes. Accordingly, the district court correctly dismissed the Wilsons' petition, and we affirm its judgment in doing so.\\nAFFIRMED.\\nNEUMAN, J., takes no part.\"}"
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+"{\"id\": \"10603409\", \"name\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant\", \"name_abbreviation\": \"In re the Marriage of Lacaeyse\", \"decision_date\": \"1990-08-30\", \"docket_number\": \"No. 89-1552\", \"first_page\": \"475\", \"last_page\": \"478\", \"citations\": \"461 N.W.2d 475\", \"volume\": \"461\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:48:36.568311+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.\", \"parties\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant.\", \"head_matter\": \"In re the MARRIAGE OF Jacqueline Rhea LACAEYSE and Dean Thomas Lacaeyse. Upon the Petition of Jacqueline Rhea Lacaeyse, Appellant/Cross-Appellee, And Concerning Dean Thomas Lacaeyse, Appellee/Cross-Appellant.\\nNo. 89-1552.\\nCourt of Appeals of Iowa.\\nAug. 30, 1990.\\nMichael W. Mahaffey, Montezuma, for appellant.\\nC.M. Manly, Grinnell, for appellee.\\nHeard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.\", \"word_count\": \"1300\", \"char_count\": \"8088\", \"text\": \"HABHAB, Judge.\\nAppellant Jacqueline Lacaeyse appeals the custody provision of the district court's decree dissolving her marriage to appellee Dean Lacaeyse. Jacqueline also seeks attorney fees for this appeal. Dean cross-appeals the division of property and visitation provisions of the dissolution decree. We affirm as modified.\\nJacqueline and Dean were married on March 30, 1984. Two children were born of this marriage: Joel, on February 1, 1985, and Alexander, on February 10, 1987. Dean, twenty-six years old at the time of trial, operates a hog farm on 160 acres owned by his grandmother. Jacqueline, who was thirty years old at the time of trial, was primarily a homemaker. Jacqueline was previously married and from that marriage has custody of her seven-year-old daughter, Cassandra.\\nThe parties separated on November 15, 1988, and Jacqueline filed her dissolution petition on December 7, 1988. The district court ordered a psychological evaluation of the parties and their children. The psychologist who conducted the evaluation recommended to the court that Joel and Alexander be placed in the custody of Dean.\\nThe district court, viewing the custody question as an extremely close \\\"call,\\\" awarded joint custody of Joel and Alexander, with primary physical care being awarded to Dean. Upon motion for expanded findings and conclusions of the dissolution decree, the district court granted Jacqueline the choice of visitation every weekend from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday, or visitation every other weekend from 4:00 p.m. on Friday to 7:00 p.m. on Sunday. Jacqueline elected to choose the former alternative. In dividing the parties' property, the district court awarded Dean all of the farm equipment and livestock, as well as the accompanying debt. The court ordered Dean to pay Jacqueline $10,000 in two installments.\\nI.\\nOur review in this matter is de novo. Iowa R.App.P. 4. In child custody cases, the best interests of the child is the first and governing consideration. The factors the court considers in awarding custody are enumerated in Iowa Code section 598.-41(3) and in In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).\\nAll factors bear on the \\\"first and governing consideration,\\\" the court's determination of what will be in the long-term best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant and neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa App.1985).\\nThe district court found that Dean can best provide for Joel and Alexander's well being. We concur with that assessment. The court-appointed psychologist, Dr. Tedesco, recommended that the children be placed with Dean. A significant factor in Dr. Tedesco's recommendation was Jacqueline's open exhibition of anger and inappropriate behavior while interacting with her children during a diagnostic play interview. Dean, on the other hand, interacted well with the children and did not display the hostility exhibited by Jacqueline.\\nThe district court, which was able to observe the witnesses and their conduct at trial, determined that Joel's and Alexander's best interests necessitated their placement with Dean. While we are not bound by these findings, we accord them weight, especially when considering the credibility of witnesses. Iowa R.App.P. 14(f)(7). Upon consideration of those factors set out in Iowa Code section 598.41(3), we decline to modify the physical custody of Joel and Alexander.\\nII.\\nDean raises two issues on his cross-appeal. First, he asserts the visitation awarded Jacqueline is excessive. Jacqueline elected to have visitation with the boys every weekend from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday. Additionally, she has visitation every Tuesday and Thursday from 4:00 p.m. to 8:00 p.m.\\nLiberal visitation rights are in the best interest of the children. Iowa Code \\u00a7 598.41(1); In re Marriage of Athy, 428 N.W.2d 310, 313 (Iowa App.1988). Since Dean has primary physical custody of the boys, he is entitled to enjoy weekend time with them. See In re Marriage of Ertmann, 376 N.W.2d 918, 921 (Iowa App.1985); In re Marriage of Weidner, 338 N.W.2d at 359. We therefore modify the decree to award Jacqueline visitation with the boys every other weekend from 4:00 on Friday to 7:00 on Sunday. Dean is also critical of the midweek visitation Jacqueline has with the boys. As we noted in In re Marriage of Ertmann, 376 N.W.2d at 922: \\\"Visitation should include not only weekend time, but time during the week when not disruptive to allow the noncustodial parent the chance to become involved in the child's day-to-day activity as well as weekend fun.\\\" We affirm the district court's granting of midweek visitation to Jacqueline, except we modify the decree by removing the Tuesday and Thursday visitation and inserting in lieu thereof midweek visitation on Wednesday of each week from 4:00 p.m. to 8:00 p.m. We believe that two-day midweek visitation under the circumstances here would be unduly disruptive to the custodial parent.\\nIII.\\nDean also questions the equity of the property division. Specifically, Dean asserts the $10,000 lump sum payment to Jacqueline to be inequitable. To resolve this issue, we turn to well-settled principles of law. The partners in a marriage are \\\"entitled to a just and equitable share of the property accumulated through their joint efforts.\\\" In re Marriage of Havran, 406 N.W.2d 450, 452 (Iowa App.1987). The distribution of the property of the parties should be that which is equitable under the circumstances after consideration of the criteria codified in Iowa Code section 598.-21(1). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa App.1983). While Jacqueline was awarded more in terms of net assets, Dean was awarded all income-producing assets associated with his farming enterprise in addition to various personal property. We find the property division to be equitable.\\nIV.\\nAdditionally, Jacqueline seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App.1987). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa App.1981). Each party shall pay his or her respective attorney fees.\\nV.\\nA final subsidiary issue in this matter concerns Dean's contention that Jacqueline's inclusion of the entire transcript of the trial in the appendix to be unnecessary. The Iowa Supreme Court has directed us to consider this issue on appeal. Iowa Rule of Appellate Procedure 15(a) provides that the appendix is to contain only relevant portions of the record. The inclusion of irrelevant portions of the record results in two problems: additional printing expense and \\\"an unwarranted reading burden on the members of the appellate courts.\\\" State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983). Two hundred eleven pages of the transcripts were included in the appendix by appellant, sixty-nine pages of which we view as unnecessary. We therefore assess twenty percent of the cost of the appendix, $148.26, to appellant. The remaining costs are assessed one-half to each party.\\nAFFIRMED AS MODIFIED.\"}"
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diff --git a/iowa/10606921.json b/iowa/10606921.json
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+"{\"id\": \"10606921\", \"name\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant\", \"name_abbreviation\": \"Klein v. Iowa Department of Revenue & Finance\", \"decision_date\": \"1990-02-21\", \"docket_number\": \"No. 88-1817\", \"first_page\": \"837\", \"last_page\": \"843\", \"citations\": \"451 N.W.2d 837\", \"volume\": \"451\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:17:11.131462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.\", \"parties\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant.\", \"head_matter\": \"Maurice L. KLEIN, Appellee, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellant.\\nNo. 88-1817.\\nSupreme Court of Iowa.\\nFeb. 21, 1990.\\nThomas J. Miller, Atty. Gen., Harry M. Griger, Sp. Asst. Atty. Gen., and Lucille M. Hardy, Asst. Atty. Gen., for appellant.\\nDennis J. Naughton of Naughton, Sten-lund & Reilly, Dubuque, for appellee.\\nConsidered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.\", \"word_count\": \"2993\", \"char_count\": \"18633\", \"text\": \"LAVORATO, Justice.\\nAccording to an Iowa income tax statute when married persons file separate returns, both must use the optional standard deduction if either elects to use it. Iowa Code \\u00a7 422.9(4) (1981). This appeal presents the following question: If one spouse uses the standard deduction, may the other spouse itemize deductions? The district court thought so, but we disagree and reverse. We affirm as to the issues raised in the cross appeal.\\nMaurice L. and LaVonne M. Klein were divorced on August 19, 1983. They separated in November 1982. But the separation was not pursuant to a decree of dissolution or separate maintenance.\\nIn February 1983 Maurice filed an individual Iowa income tax return for the calendar year 1982. He used the filing status of \\\"married filing separate returns\\\" and itemized his deductions. See Iowa Admin. Code 701-39.4(5) (1981).\\nOn her 1982 return, LaVonne did not itemize deductions. Instead she chose to take the standard deduction. See Iowa Code \\u00a7 422.9(1).\\nAfter auditing Maurice's 1982 return, the Iowa Department of Revenue and Finance disallowed the itemized deductions and replaced them with the standard deduction. The department also denied Maurice the right to claim his two minor stepchildren as dependents.\\nMaurice received a tax due notice from the department, requesting payment of $773.84. See Iowa Code \\u00a7 422.25. Maurice later received a tax due notice in the amount of $794.60.\\nMaurice paid the $794.60 under protest. He then sent the department a claim for income tax refund/protest regarding the 1982 return. See Iowa Admin.Code 701-7.-8(17A); 701-7.14(17A).\\nAfter an evidentiary hearing, the hearing officer entered a proposed order. See id. at 701-7.17(5). The hearing officer concluded that\\nIowa Code section 422.9(4) and 701 Iowa Administrative Code section 41.4 specifically require both spouses to use the optional standard deduction if either spouse elects to use it. The department was correct to disallow [Maurice's] itemized deductions for 1982.\\nThe hearing officer also concluded that Maurice had failed to prove he was entitled to claim LaVonne's two children as dependents.\\nMaurice appealed to the director of the department, who adopted the hearing officer's proposed order in its entirety. See Iowa Code \\u00a7 422.28. Maurice then filed a petition for judicial review in the district court. See Iowa Code \\u00a7 422.55.\\nThe district court initially affirmed the director's decision. Later, in response to Maurice's motion to amend findings and conclusions, the court modified its earlier ruling. This time the court allowed Maurice to itemize deductions as he had done on his 1982 return. It is from this ruling that the department appeals, contending that the district court erroneously interpreted Iowa Code section 422.9(4).\\nMaurice cross-appealed from the part of the district court ruling that affirmed the director's order on the dependency exemption issue. One of the issues Maurice raises here centers on the hearing officer's refusal to require the department to furnish Maurice with LaVonne's 1982 tax return. Another issue Maurice raises concerns the hearing officer's refusal to require the department to furnish him with information to show that LaVonne supported her two children. These refusals, Maurice argues, shifted the burden of proof on the dependency exemption issue to the department \\u2014 a burden the department failed to meet.\\nIn addition Maurice contends the department and the district court, in denying the dependency exemptions, incorrectly applied section 152 of the Internal Revenue Code. Finally, Maurice challenges the constitutionality of section 422.9(4) on the grounds of equal protection under both the federal and Iowa constitutions.\\nI. Scope of Review. Judicial review of the actions of the department of revenue is governed by the Iowa Administrative Procedure Act (IAPA). See Iowa Code \\u00a7 17A.19(8), 422.55. Acting in our appellate capacity, we review the agency's decision solely to correct any errors of law. Norland v. Iowa Dep't of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987).\\nWhen the agency's action involves statutory interpretation or matters of law, \\\"we owe the agency only limited deference. .\\\" Id. This is because \\\"law issues are determinable by the judiciary alone_\\\" Id. (citations omitted).\\nOur inquiry into the agency's findings is, however, more limited. Id. On appeal, the agency's factual findings are binding if supported \\\"by substantial evidence in the record made before the agency when that record is viewed as a whole.\\\" Iowa Code \\u00a7 17A.19(8)(f). This limited scope of factual review requires us to ask only if the evidence submitted supports the findings actually made. Norland, 412 N.W.2d at 908.\\nII. The Appeal \\u2014 The Itemized Deduction Issue. Iowa Code section 422.9(4) provides in pertinent part:\\nIn computing taxable income of individuals, there shall be deducted from net income the largest of the following amounts:\\n1. [Optional standard deduction].\\n2. [Itemized deductions].\\n4. Where married persons file separately, both must use the optional standard deduction if either elects to use it.\\nThe district court explained its interpretation of the provision this way:\\n[Subsection 4] does not award to one spouse the unrestricted election to require the other to use the standard deduction. It merely imposes the requirement that, for either to use the standard deduction, both must. So that, in the absence of a joint election, neither may. In requiring plaintiff to use the standard deduction because his then wife did, [the department] was in error and should not have allowed the wife to use the standard deduction because [Maurice] failed to.\\nWe agree with the department that subsection four is clear: if either spouse elects to use the standard deduction then both must. See Iowa Code \\u00a7 422.9(4); Iowa Admin.Code 701-41.4; Margulies, An Overview of State Taxation of Individual and Corporate Income in Iowa, 26 Drake L.Rev. 57, 70 (1976-77) (emphasis added). Subsection four does not require a joint election, a requirement the district court read into it. A joint election requires a combined decision made by both spouses. The code, however, uses the word \\\"either,\\\" which means that one or the other can make the decision to use the standard deduction. Once this decision is made, the code then requires the nonelecting spouse to use the same deduction. The district court erred in concluding otherwise, and we reverse its judgment on this issue.\\nIII. The Cross Appeal.\\nA. The discovery issue. During the administrative proceedings Maurice asked the department to give him copies of LaVonne's 1982 return. He also served the department with interrogatories requesting information from that return. In response, the department reminded Maurice that he had already attached a copy of her return to his original protest and that, in any event, confidentiality statutes governing tax records precluded the department from giving him the return. See Iowa Code \\u00a7 422.20, 422.72. The hearing officer refused Maurice's request to require the department to give him the return. Instead the hearing officer gave Maurice a subpoena which would have allowed him to subpoena the return. Maurice apparently failed to use the subpoena.\\nMaurice contends the hearing officer abused her discretion when she refused to require the department to give him La-Vonne's 1982 tax return. This refusal, Maurice argues, shifted the burden of proof to the department to show (1) that LaVonne had claimed her children as dependents on her 1982 return, (2) that she supported them, and (3) that she had used a standard deduction on the return.\\nThe short answer here is that Maurice already had the information he thought the department should have given him. In paragraph three of his protest Maurice alleged that LaVonne had filed a 1982 income tax return with a filing status \\\"married filing separate returns.\\\" He also alleged that she had claimed the standard deduction. Finally, he alleged that the return was attached, marked as Exhibit \\\"B\\\", and made a part of the paragraph by reference. In its answer the department admitted paragraph three in its entirety.\\nSo it was uncontroverted that LaVonne had claimed her children as dependents and that she had used the standard deduction. In these circumstances we fail to see how the hearing officer abused her discretion as Maurice contends.\\nB. The dependency exemption issue. Iowa Code section 422.12(l)(c), Iowa's dependency exemption provision, provides in pertinent part:\\nThere shall be deducted from but not to exceed the tax, after the same shall be computed as provided in this division the following:\\n1. a personal exemption credit in the following amounts:\\nc. For each dependent, an additional ten dollars. As used in this section, the term \\\"dependent\\\" shall have the same meaning as provided by the Internal Revenue Code of 1954.\\nThe term \\\"dependent\\\" was defined in section 152 of the Internal Revenue Code of 1954 as\\nany of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer....\\n(2) a stepson or stepdaughter of the taxpayer.\\nThe hearing officer as well as the district court used these provisions in resolving the dependency exemption issue.\\nMaurice contends that the special support test in section 152(e)(1)(A) and 152(e)(2)(B)(i, ii) of the Internal Revenue Code of 1954 applies to him rather than the provisions the department and the district court used. Under this test, a taxpayer who contributes $1200 or more for the support of a child is treated as having contributed over one-half of the child's support.\\nWe agree with the department that Maurice cannot use this special support test but, instead, is bound by the more than fifty percent test in section 152 of the 1954 Internal Revenue Code. We reach this conclusion for two reasons. First, Maurice never urged use of the special support test in the proceedings before the agency or in the district court. We do not consider issues raised for the first time on appeal. See Bonds v. State, 447 N.W.2d 135, 136 (Iowa 1989).\\nSecond, the special support test does not apply. Section 152(e)(1)(A) specifically applies to a \\\"child [who] receives over half of his support during the calendar year from his parents who are divorced or legally separated under a decree of divorce or separate maintenance, or who are separated under a written separation agreement.\\\" (Emphasis added.) The hearing officer found that Maurice and LaVonne were not legally separated under a decree of divorce or separate maintenance. Maurice did not challenge this finding. Nor did he produce any evidence to the contrary. So we conclude there is substantial evidence to support this finding.\\nOur next inquiry is whether there was substantial evidence to support the hearing officer's finding that Maurice failed to prove he contributed more than fifty percent for the support of each child in 1982. In support of this finding the hearing officer explained:\\n[Maurice] contends he supplied over half of his stepchildren's support in 1982. [Maurice] bases this contention on his records, [LaVonne's] checking account at a credit union for approximately eight months in 1982, and portions of a deposition taken during May 1983, regarding their divorce. This evidence is insufficient to establish all [LaVonne's] income and expenditures in 1982. [Maurice] did not know if [LaVonne] had other accounts, and he was also uncertain as to all of the items and amounts she paid for regarding support. In addition, although the father of the children did not pay his court-ordered child support it is unknown what other contributions he may have made. Based on this record, it is not possible to determine the percentages of contributions. The divorce deposition is not complete and leaves open the question of what percentage the mother provided and how she can prove it.\\n(Emphasis added.) We think the hearing officer more than adequately explained why she thought Maurice had failed to prove that he had contributed more than fifty percent of the children's support. We also think there is substantial evidence to support her findings and conclusions. The district court correctly affirmed this part of the agency's decision.\\nAs he did with respect to the dependency exemption issue, Maurice contends the burden of proof shifted to the department to prove the total amount of support. He argues that the department should have given him information about the amount of support LaVonne did provide for the children. The department responds by asserting it could not furnish such information because tax confidentiality statutes prohibited it from doing so. See Iowa Code \\u00a7 422.20, 422.72.\\nWhether the confidentiality statutes prohibited the department from furnishing the information is a question we need not answer. The department offered Maurice an opportunity to subpoena LaVonne and any pertinent documents he felt were necessary to support his case. Maurice ignored the offer. In these circumstances we are not prepared to consider sanctioning the department by shifting the burden of proof to it.\\nOn the other hand, given the usually strained relations between ex-spouses, we recognize the difficulty a noncustodial parent may have in using the subpoena approach to prove a ease of support. Perhaps in these circumstances the legislature ought to impose an obligation upon the custodial parent to furnish the department with proof of total' support and permit the department' to furnish that information to the noncustodial parent. See Note, Children of Dissolved Marriages: A Disputed Tax Deduction, 4 Sw.U.L.Rev. 101, 102 (1972). Cf. I.R.C. \\u00a7 152(e)(3).\\nC. The constitutional issues. We last address Maurice's challenge to Iowa Code section 422.9(4) on equal protection grounds under the federal and Iowa constitutions. See U.S. Const., amends. 5 and 14; Iowa Const., Art. I, \\u00a7 9. He challenges the statute facially and as applied to him.\\nMaurice's argument is simply this. His statistical evidence tends to show that men earn more on the average than women, as is true in his case. So it is not surprising that men, according to department records, tend to use the itemized deduction option more than women. The evil that section 422.9(4) causes is that the statute produces an arbitrary result to the damage of the taxpayers who need the deductions the most. In short, Maurice argues that section 422.9(4) results in unconstitutionally unequal treatment of married men taxpayers versus married women taxpayers.\\nGenerally, a statute that does not offend against equal protection guarantees in the federal constitution does not offend against a similar provision in our State constitution. See Dickinson v. Porter, 240 Iowa 393, 400, 35 N.W.2d 66, 71-72 (1949); Accord Heritage Cablevision v. Board of Supervisors, 436 N.W.2d 37, 38 (Iowa 1989). Maurice gives no reasons or arguments to depart from this general rule, so our analysis here is the same under both constitutions.\\nNo suspect classification or fundamental right is involved here, so our standard of review is rationality. Under this standard we must sustain the validity of a statute \\\"if the legislature could have reasonably concluded that the challenged classification would promote a legitimate state purpose.\\\" Heritage, 436 N.W.2d at 38.\\nWe recognize that the rational basis standard is easily met in challenges to tax statutes. That is because\\nin taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a -classification is a hostile and oppressive discrimination against particular persons and classes.\\nId. at 38-39 (quoting Madden v. Kentucky, 309 U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed. 590, 593 (1940)).\\nMaurice's burden is a heavy one. He must demonstrate beyond a reasonable doubt that the statute violates equal protection guarantees. To sustain this burden he has to negate every reasonable basis that may support the statute. In deciding whether Maurice has carried this burden we must keep in mind that \\\"[a]n iron rule of equal taxation is neither attainable nor necessary.\\\" City of Waterloo v. Selden, 251 N.W.2d 506, 508-09 (Iowa 1977).\\nWe agree with the department that Maurice has not carried his burden. We reach this conclusion for two reasons. First, as the department argues, section 422.9(4) creates no classification of married men taxpayers versus married women taxpayers. Instead the statute treats married persons as one economic unit for purposes of the deduction. The legislature could have rationally believed that the economics of marriage justified such treatment.\\nSecond, as the department correctly notes, section 422.9(4) serves a legitimate state purpose. Without such a provision, married taxpayers could double-up on deductions \\u2014 one spouse taking all the itemized deductions and the other taking the standard deduction. Section 422.9(4) prevents a drain on tax revenues while at the same time preserving a deduction for each spouse in case of a dispute.\\nWe have considered Maurice's remaining argument: the due process challenge to section 422.9(4). We find that it has no merit and needs no further consideration.\\nIY. Disposition.\\nIn summary, we hold that Iowa Code section 422.9(4) requires both spouses to use the standard deduction if either chooses to do so. Moreover, we find no equal protection violation under either the federal or state constitutions because of such an interpretation. We reverse that part of the district court's judgment that allowed Maurice to itemize his deductions on his 1982 return.\\nWe conclude there was substantial evidence to support the agency's finding that Maurice did not provide more than fifty percent of the support for LaVonne's two children. So we affirm that part of the district court's judgment which upheld the agency's determination on this issue.\\nREVERSED ON THE APPEAL; AFFIRMED ON THE CROSS-APPEAL.\"}"
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+"{\"id\": \"106423\", \"name\": \"Utter v. Crane et al.\", \"name_abbreviation\": \"Utter v. Crane\", \"decision_date\": \"1873-12\", \"docket_number\": \"\", \"first_page\": \"631\", \"last_page\": \"635\", \"citations\": \"37 Iowa 631\", \"volume\": \"37\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:50:26.074045+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Utter v. Crane et al.\", \"head_matter\": \"Utter v. Crane et al.\\nMechanic\\u2019s lien: sub-contractors and laborers. A laborer employed by a sub-contractor for building a railroad cannot enforce a lien upon the road for the amount due him, if the contractor has fully paid the subcontractor the amount due under bis contract, tbougb tbe railroad company is indebted to tbe contractor in a sum exceeding tbe amount of tbe claim of tbe laborer against tbe sub-contractor.\\nAppeal from, Fa/yette Circuit Court.\\nSaturday, December 13.\\nAction at law. The petition states that plaintiff performed work and labor under a contract with Crane & Keenan, who are sub-contractors under Burch, Lakin & Co., contractors under the D. & St. P. R. Co., and that Crane & Keenan gave him a statement in writing, showing an amount due him for such labor and directing Burch, Lakin & Co. to pay the same. That upon payment being refused by Burch, Lakin & Co., plaintiff filed a statement in the clerk\\u2019^ office of Payette county, claiming a lien upon the D. & St. P. Railroad, located in said county, a copy of which was served upon each of the said defendants. The statement and notice are such as are required by law for the enforcement of mechanics\\u2019 liens.\\nDefendants, Crane & Keenan, made default.\\nBurch, Lakin & Co. and the D. & St. P. R. Co. set up the following defense in an answer :\\nBurch, Lat\\u00edn & Co. are contractors under the D. & St. P. R. Co. for the grading of a part of its road, and sub-let to Crane & Keenan a part of the work at a price agreed upon; that the work done by plaintiff was under a contract with Crane & Keenan upon the part of the road sub-let to them; that in their contract Burch, Lat\\u00edn & Co. reserved no control of the work as to the number of men to be employed, or the price to be paid them, all of which was known to plaintiff. The contract was made in good faith and for a fair and reasonable compensation, to be paid to Crane & Keenan, and without any intent, on the part of Burch, Lat\\u00edn & Co., to defraud any one, and without any fault on the part of the D. & St. P. R. Co. The work done by Crane & Keenan did not amount to enough to pay in full the laborers employed by them; but the amount earned by Crane & Keenan was divided among the laborers, including plaintiff, in proportion to the amount due them from Crane & Keenan, and the entire amount due Crane & Keenan was thus paid out to such laborers, and that there is nothing now in the hands of either of the other defendants, due to Crane & Keenan. A demurrer to this answer, on the ground that it sets up no defense to plaintiff\\u2019s claim for the enforcement of a lien upon the road for the amount due him, was overruled. From the judgment upon the demurrer plaintiff\\u2019 appeals.\\nJUiclcel <& Fuller for the appellant.\\nNoble, Hatch & Frese, W. A. Hoyt for the appellees.\", \"word_count\": \"1465\", \"char_count\": \"8392\", \"text\": \"Beck, Ch. J.\\nIn our opinion, the demurrer was properly overruled.\\nRevision, \\u00a7 1817, provides that a sub-contractor may enforce a lien upon the property on which he has been employed to labor <5r. for which he supplied materials, by giving a notice at the time, to the owner,' of his intention to labor or furnish materials, and after indebtedness is incurred, upon presenting a statement thereof, signed by the party with whom he con traeted, to the owner, and filing within thirty days a statement of his claim in the clerk's office, etc. Chap. 12, acts 12th Gen. Ass. (Code, \\u00a7 2132), provides that every owner, contractor or sub-contractor of any railroad in the State shall be deemed to have the notice provided for in the section just cited, for a period of sixty days from the last day in the month in which the labor was done or the material furnished, during which period any person entitled to do so may file a lien as provided for, which shall be binding upon the erections, road-bed, etc. But it is provided, that \\\" in case the lien is sought to be enforced against the owner, the liability shall not be greater than his liability would have been to the contractor at the time the labor was performed or materials furnished.\\\"\\nPlaintiff claims that, under these statutes, he is entitled to enforce his lien against the road without regard to the contract between Burch, Lakin & Co. and Crane & Keenan. We are not able to concur in such a construction of the statutes.\\nIn the case before us there is one more party involved in the transaction than is contemplated by the language of the statute. These are the owner (railroad company), the contractor, subcontractor and the laborer, the plaintiff. The statute in its language provides for the case of the owner, contractor and subcontractor. By another provision a laborer is secured the rights of a sub-contractor, and is so considered. Rev., \\u00a7 1871. The statute, in providing for the rights and liabilities of the parties, where there is an owner, contractor and laborer only concerned, does not establish a rule that can be applied according to its very words to a case where another party appears as a sub-contractor, for the rights and relations of the parties are very different. In the case contemplated by the language of the law the contractor employs the laborer or sub-contractor, whose right to enforce the lien is secured. There are in that case but two contracts, the one between the owner and contractor, and another between the contractor and sub-contractor. In the case before us there are three contracts \\u2014 an additional one between the sub-contractor and another sub-contractor, the laborer. It is evident that this fact changes the right of the laborer and the liability of the owner. The sub-contractor, as to the laborer, is a contractor, and as to the one contracting with the owner, under whom he is employed, he bears the same relation. He occupies the place of the first contractor, and as to him and the laborer the first contractor occupies the place of the owner, as contemplated by the language of the statutes. Now the rights of the laborer and liability of the first contractor are to be regarded as though there was no other party concerned, and the liability of the owner as though the contractor were out of the way, and the sub-contractor, employing the laborer, had made his contract directly with the owner. If this be not so, and a lien may be enforced against the road without regard to the contract of the contractor with the sub-contractor, and the fact that he has fully performed it by paying the amount provided therein, then will that contract and the rights of the contractor under it be wholly disregarded and violated, a thing that the law will not tolerate. Such a construction of the statute would destroy the contract, impair its obligation, and we cannot presume the legislature intended any such thing. To authorize such a construction of the statute the language should be so unmistakable as to permit no other reasonable construction.\\nThe claim of the laborer to a lien arises through the contract under which his employer, the sub-contractor, took the work. He has no claim on the contractor based upon the contract which the last named has with the owner, except so far as the contractor may be indebted to the sub-contractor. If the contractor has fully paid the sub-contractor, and discharged his obligation to him, the chain of rights and liabilities between the owner and laborer is separated.\\nAgain: the owner cannot be considered indebted to the subcontractor if the contractor has fully paid him, for the owner's liability depends upon an indebtedness between the contractor and sub-contractor. The sub-contractor claims through his contractor. If he be fully paid he can have no claim on the owner, for he has none in that case on the contractor. If he has no claim on these parties it is evident the laborer, who claims under him, can have none. Now the statute (chap. 12, Acts 14th Glen. Ass.), in providing that, \\\" in case the lien is sought to be enforced against the owner, the liability shall not be greater than his liability would have been to the contractor at the time the labor was performed,\\\" was not changed to create a liability on the part of the owner or contractor, but simply ,to provide for the enforcement of a liability when it was found to exist. As no liability is shown to exist on the part of the contractor or owner plaintiff can have no remedy against them.\\nThese views lead us to the conclusion that the demurrer was properly overruled.\\nAffirmed.\"}"
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+"{\"id\": \"10663358\", \"name\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee\", \"name_abbreviation\": \"Fouts v. State\", \"decision_date\": \"1985-01-29\", \"docket_number\": \"No. 83-1645\", \"first_page\": \"38\", \"last_page\": \"40\", \"citations\": \"365 N.W.2d 38\", \"volume\": \"365\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T00:08:48.093686+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.\", \"parties\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.\", \"head_matter\": \"Joseph R. FOUTS, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.\\nNo. 83-1645.\\nCourt of Appeals of Iowa.\\nJan. 29, 1985.\\nRichard L. McCoy, Sioux City, for petitioner-appellant.\\nThomas J. Miller, Atty. Gen. and Steven K. Hansen, Asst. Atty. Gen., for respondent-appellee.\\nConsidered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.\", \"word_count\": \"886\", \"char_count\": \"5603\", \"text\": \"SNELL, Judge.\\nPetitioner was convicted and sentenced for possession of a controlled substance in violation of Iowa Code section 204.401(3), operating a motor vehicle without consent in violation of Iowa Code section 714.7, and burglary in the second degree, for which he had been on probation, in violation of Iowa Code sections 713.1, 713.3. The conviction followed a guilty plea by petitioner which he subsequently asked to withdraw on the grounds that the State had breached the plea agreement by sending him to the substance abuse program at Oakdale rather than Cherokee. Petitioner filed a notice of appeal with the supreme court but this was later dismissed by the clerk of the supreme court for want of prosecution.\\nAn application for postconviction relief was then filed by petitioner, alleging that he was coerced into pleading guilty, the plea agreement was breached by the State, petitioner was not allowed to withdraw his plea, he was not advised of his right to file a motion for arrest of judgment, his probation was improperly revoked, and he was denied effective assistance of counsel. The State answered and moved for summary judgment asserting that petitioner's grounds for relief were based upon factual and legal contentions known at the time of the original proceeding, and failure to pursue direct appeal of those issues barred relief in postconviction proceedings. At the hearing on the motion, the evidence indicated that an appeal was filed at petitioner's request. Petitioner's appellate counsel, who had also been petitioner's trial counsel, testified that he felt the appeal was without merit, that he informed petitioner of this, and that petitioner vacillated on pursuing the appeal. Counsel was later notified by petitioner to drop the appeal. At the hearing, two letters from petitioner to his attorney asking that the appeal be dropped were introduced into evidence. Petitioner denied that he told counsel to drop the appeal. On October 18, 1983, the trial court entered its order, finding that petitioner was not denied effective assistance of counsel. Summary judgment was granted in favor of the State on the ground that postconviction relief was barred due to petitioner's failure to present his claims on direct appeal. Petitioner has appealed.\\nPostconviction relief proceedings are actions at law triable to the court and ordinarily are reviewed only on error. Hahn v. State, 306 N.W.2d 764, 768 (Iowa 1981). However, when there is an alleged constitutional violation, this court will make its own evaluation of the totality of the circumstances under which the postcon-viction ruling was made. Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 31 (Iowa 1979).\\nPetitioner claims the trial court erred in granting the summary disposition denying his application for postconviction relief on the ground that his failure to appeal directly barred him from postconviction relief. He contends that his failure to appeal directly was due to ineffective assistance of counsel.\\nAs a general rule, any claim not raised at trial or on direct appeal may not be litigated in postconviction unless there is sufficient reason for not properly raising it previously. Washington v. Scurr, 304 N.W.2d 231, 234 (Iowa 1981). Inadequacy of appellate counsel, if established, is sufficient reason to permit a new issue to be raised on appeal. Hinkle v. State, 290 N.W.2d 28, 31 (Iowa 1980).\\nWhen a defendant relies on a specific act or omission to prove ineffective assistance of counsel, two conditions must be demonstrated: 1) counsel failed to perform an essential duty, and 2) prejudice resulted therefrom. State v. Miles, 344 N.W.2d 231, 234 (Iowa 1984). The test for ineffective assistance was most recently set forth in Strickland v. Washington, \\u2014 U.S. \\u2014, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In that case, the Court stated: \\\"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. at \\u2014, 104 S.Ct. at 2068, 80 L.Ed.2d at 698 (1984). The court further stated that \\\"[wjhen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.\\\" Id. at \\u2014, 104 S.Ct. at 2069, 80 L.Ed.2d at 698.\\nIn the present case, the record does not support petitioner's claim of ineffective assistance. The petitioner wrote his attorney on two separate occasions and asked him to drop the appeal. The attorney testified that he had several phone conversations with petitioner in which he confirmed this request. In view of these communications, the attorney's failure to pursue the appeal did not constitute a failure to perform an essential duty.\\nThe trial court's findings that the petitioner received effective assistance of counsel was proper.\\nBecause of petitioner's own request, the claims he now seeks to assert were not raised on direct appeal. He cannot now raise them in a postconviction relief proceeding. The trial court properly granted the summary judgment.\\nThe findings of the trial court are affirmed.\\nAFFIRMED.\"}"
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+"{\"id\": \"10671903\", \"name\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors\", \"name_abbreviation\": \"City of Des Moines v. Civil Service Commission of Des Moines\", \"decision_date\": \"1983-05-18\", \"docket_number\": \"No. 68196\", \"first_page\": \"133\", \"last_page\": \"136\", \"citations\": \"334 N.W.2d 133\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.\", \"parties\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors.\", \"head_matter\": \"CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Delores Monroe, as Chairperson of the Des Moines Civil Service Commission, Ralph Costanzo, as Commission Person, and Marsh Houston, as Commission Person, Appellees, Wilbur Devine and Karl Schilling, Intervenors.\\nNo. 68196.\\nSupreme Court of Iowa.\\nMay 18, 1983.\\nRehearing Denied June 9, 1983.\\nEarl W. Roberts, City Sol. and Nelda Barrow Mickle, Asst. City Atty., for appellant.\\nEugene E. Olson of Connolly, O\\u2019Malley, Lillis & Hansen, Des Moines, for appellees.\\nJames E. Brick and Luis Herrera, Des Moines, for intervenors.\\nConsidered by REYNOLDSON, C.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.\", \"word_count\": \"1787\", \"char_count\": \"11353\", \"text\": \"REYNOLDSON, Chief Justice.\\nPlaintiff City of Des Moines filed this certiorari action in district court, asserting the defendant Civil Service Commission (commission) was proceeding illegally in that it had no subject matter jurisdiction to consider the suspensions and terminations of two city employees, intervenors Wilbur Devine and Karl Schilling. Trial court annulled the writ it had issued, and the city appealed. We affirm in part, reverse in part, and remand.\\nDevine and Schilling were employed by the city as human rights specialists for the Human Rights Commission (HRC). October 2, 1981, both were \\\"suspended indefinitely pending further investigation.\\\" De-vine was suspended by HRC for alleged threats, insubordination, misconduct, sexual harassment, and violations of written departmental rules; Schilling for alleged sexual harassment, misconduct, and violations of written departmental rules. The HRC suspensions were affirmed by the city council.\\nOctober 22, 1981, Devine and Schilling filed notices of appeal from these suspensions. These notices were signed by their counsel. The city filed the statutory specification of charges and the appeals were set for hearings by the commission on November 12 and November 17, respectively. Both were continued, the Devine hearing at his counsel's request.\\nNovember 12, 1981, HRC \\\"terminated\\\" the employment of Devine and Schilling. This action was affirmed by the city council November 16, 1981.\\nDecember 10, 1981, the commission commenced hearing the Devine appeal. Counsel for Devine and Schilling opened the proceedings with a motion to amend their notices of appeal from their suspensions \\\"to include the subsequent decision of the City Council and the Human Rights Commission to make these . indefinite suspensions permanent, . that [the notices] be amended to include the final action that was taken.\\\" Counsel for the city resisted on the ground statutory law required a separate notice of appeal within twenty days of the discharge and that the motion was untimely. He consequently challenged the commission's jurisdiction. The commission granted the motion to amend.\\nAfter hearing the testimony of several witnesses, the commission continued the Devine hearing until December 14, 1981. On that day the city filed for and secured an ex parte writ of certiorari. The city alleged the commission was proceeding illegally and without jurisdiction because De-vine and Schilling had not personally signed their appeal notices, and because the employees were permitted to amend their notices and thus appeal from their discharges after the appeal time had expired. By separate order the court fixed bond and stayed further proceedings in the Devine and Schilling appeals.\\nDevine and Schilling intervened in the certiorari proceeding. Following hearing, district court held the attorney's signature on the notices of appeal was proper under Iowa Code section 400.21 (1981). The court further held it could not \\\"from the record before the Commission, determine whether the 'indefinite suspension' is in fact a 'termination' and whether the specifications of the charges and grounds for the 'indefinite suspension' are the same as those for the 'termination.' \\\" The court found that under the truncated record it could not conclude that the commission was proceeding without jurisdiction. It therefore annulled the writ, dismissed the petition, directed the city to file written specifications of the charges and grounds for the termination of the intervenors, and directed the commission to proceed with the hearing.\\nThe grounds the city relies on for reversal may be combined into two controlling issues: (1) Did the notices of appeal, signed only by counsel for Devine and Schilling, meet the requirement of Iowa Code section 400.21? (2) Did the commission err in sustaining Devine's and Schilling's motions to amend their notices of appeal?\\nI. Signatures to the Notices.\\nIowa Code section 400.21 provides in relevant part:\\nIf the appeal be taken by the person suspended, demoted, or discharged, notice thereof, signed by the appellant . shall be filed with the clerk of the commission. . .\\n(Emphasis added.)\\nThe notices of appeal from suspension were signed not by Devine and Schilling, but by their attorney. No one raised the section 400.21 signature requirement before the commission at the December 10 hearing. It was first raised in the city's petition for certiorari. The city there claimed, and contends here, this deviation is fatal and deprived the commission of jurisdiction to hear the appeals.\\nOf course a civil service commission reviewing an employee's suspension, demotion, or discharge is exercising appellate functions. See Iowa Code \\u00a7 400.20. \\\"Jurisdiction is unquestionably essential to the validity of any proceeding undertaken by a public administrative tribunal, without which its actions are void.\\\" Antrim v. Civil Service Commission of City of Des Moines, 261 Iowa 396, 401, 154 N.W.2d 711, 714 (1967). The commission's argument that the city should have objected to the signatures at some prior time is without merit. A challenge to subject matter jurisdiction may be raised at any stage of the proceeding. Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978); accord Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978).\\nThe statutory direction that the notice of appeal be signed by the appellant (rather than by his or her attorney if this is in fact the implication) rationally cannot be categorized as a duty essential to the main objective of the statute. It is therefore not mandatory, and the omission does not invalidate subsequent proceedings. See Taylor v. Department of Transportation, 260 N.W.2d 521, 522-23 (Iowa 1977). Because the provision is directory, and the city does not indicate how it was prejudiced by the attorney's signature on the notices rather than that of the appellants, the commission was not deprived of authority to hear the appeals. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982); see State v. Lohr, 266 N.W.2d 1, 6 (Iowa 1978).\\nOrdinarily, notice given by an attorney is the act of the client. 7 Am.Jur.2d Attorneys at Law \\u00a7 130 (1980); accord 7A C.J.S. Attorney and Client \\u00a7 196(b) (1980). Here Devine and Schilling both testified they had authorized their attorney to appeal. We think in the circumstances of this case this was sufficient, and the signing of the notices by the attorney was substantial compliance with the provisions of Iowa Code section 400.21. See Frost v. S.S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980); Vermeer v. Sneller, 190 N.W.2d 389, 394-95 (Iowa 1971).\\nWe hold the commission had jurisdiction and authority to proceed with the hearing as it related to the intervenors' suspensions. As to this facet of the case, trial court correctly annulled the writ.\\nII. Amendment to the Notices.\\nIn relevant part Iowa Code section 400.20 provides:\\nIf there is an affirmance of the suspension, demotion, or discharge of any person holding civil service rights, he may, within twenty days thereafter, appeal therefrom to the civil service commission.\\nWe have noted the notices filed stated \\\"[t]he appeal is from an indefinite suspension.\\\" These appeals from the suspensions are not challenged. The problem arises because, more than twenty days after affirmance of the terminations of these employees, the commission granted Devine's and Schilling's oral motions to amend the notices to include an appeal from their discharges. Written amendments to the notices were filed December 14, 1981.\\nUnlike the departure from Iowa Code section 400.21 discussed in division I, our decisions hold the timely notice requirement of Iowa Code section 400.20 is mandatory and jurisdictional. Antrim v. Civil Service Commission, 261 Iowa at 400, 154 N.W.2d at 714; Wilson v. Stipp, 194 Iowa 346, 352, 189 N.W. 665, 667 (1922).\\nOn this appeal the employees shift ground somewhat from their position taken before the commission, where they moved to amend the notices to include their discharge, and argued it was their understanding, \\\"[tjhere was a suspension and discharge in this case . [the city] deliberately led us to believe that they wanted to combine the two hearings for efficiency.\\\" By arguments of counsel the employees implied this alleged understanding caused them to fail to give timely notices of appeal from the discharges. Counsel for the city vigorously denied there was any such understanding, or any discussion relating to it.\\nIn this appeal both the employees and the commission equate the initial \\\"indefinite suspension\\\" with a discharge, and rely on the notices as originally filed as timely and sufficient to preserve the discharge issue. We are not persuaded by this theory.\\nIt is plain that the legislature drafted Iowa Code section 400.20 to include three categories of appealable decisions: suspension, demotion, and discharge. The legislature drew no distinction between an indefinite suspension and a definite suspension. The line drawn is between a suspension and a discharge. For the arguments of the employees and the commission to be valid, the clause \\\"not including indefinite suspensions\\\" must be added to the word \\\"suspension\\\" as used in the statute. Such addition is prohibited by established rules of construction. E.g., State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976).\\nNor do we agree that Fetters v. Guth, 221 Iowa 359, 265 N.W. 625 (1936), supports the contention that an indefinite suspension must be treated as a discharge. The Fetters court merely observed the chief of police who disciplined Fetters used those terms interchangeably. This court did not equate an indefinite suspension with a discharge. We said the appeal before the commission was \\\"from the order of suspension\\\" but that the commission had an independent authority to order a discharge, under an antecedent statute to present Iowa Code section 400.18.\\nWe hold failure to file appeals from the discharges divested the commission of authority to hear the employees' appeals as to that action of the city. Trial court should have sustained the writ as to this portion of the proceedings before it, and remanded to the commission for disposition of the appeals from the suspensions. See Iowa R.Civ.P. 316.\\nWe have examined all the other arguments and issues raised by these litigants, and find they do not affect the result we reach here. Costs are taxed one-half to the city, one-fourth to the intervenors, and one-fourth to the commission. This case is remanded to district court for judgment in conformance with this opinion.\\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\"}"
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+"{\"id\": \"10673836\", \"name\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee\", \"name_abbreviation\": \"Mid-Country Meats, Inc. v. Woodruff-Evans Construction\", \"decision_date\": \"1983-04-08\", \"docket_number\": \"No. 2-67205\", \"first_page\": \"332\", \"last_page\": \"337\", \"citations\": \"334 N.W.2d 332\", \"volume\": \"334\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:16:09.441494+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee.\", \"head_matter\": \"MID-COUNTRY MEATS, INC., Plaintiff-Appellant, v. WOODRUFF-EVANS CONSTRUCTION, Defendant-Appellee.\\nNo. 2-67205.\\nCourt of Appeals of Iowa.\\nApril 8, 1983.\\nDon N. Kersten of Kersten, Opheim, Carlson & Trevino, Fort Dodge, for plaintiff-appellant.\\nWilliam S. Gibb of Johnson, Erb, Latham & Gibb, P.C., Fort Dodge, and Roy M. Irish of Patterson, Lorentzen, Duffield, Tim-mons, Irish & Becker, Des Moines, for defendant-appellee.\", \"word_count\": \"2539\", \"char_count\": \"15993\", \"text\": \"DONIELSON, Judge.\\nPlaintiff corporation appeals the dismissal of its petition alleging breach of a construction contract entered upon defendant contractor's motion for judgment notwithstanding the jury's failure to return a verdict after deliberating three days and remaining deadlocked in a four to four split vote on liability. On appeal the plaintiff contends that the trial court erred (1) by sustaining defendant's motion for judgment notwithstanding the jury's failure to return a verdict; (2) by refusing to give plaintiff's requested jury instructions regarding the applicable standard of care and negligence; (3) by refusing to give a portion of plaintiff's requested jury instruction regarding express warranty; (4) by limiting evidence and testimony regarding consequential damages resulting from allegedly lost profits and wasted overhead expenses; (5) by refusing to give plaintiff's requested jury instructions regarding consequential damages; (6) by instructing the jury that, as a matter of law, plaintiff had waived any claims for damages arising from defendant's failure to timely complete the construction; and (7) by sustaining defendant's motion for adjudication of law points and striking the express and implied warranty provisions contained in divisions II and III of plaintiff's petition. Plaintiff seeks a new trial. We reverse and remand.\\nOur scope of review is on assigned errors. Iowa R.App.P. 4.\\nI.\\nPlaintiff, Mid-Country Meats, Inc., produces various meats and sausage. In 1978 plaintiff entered into a contract with the defendant, Woodruff-Evans Construction Co., for the construction of a meat processing plant. The contract price was $643,828 with construction to be completed by November 1, 1978.\\nConstruction on the project was delayed for various reasons which the parties dispute, and the project was not completed by November 1st. Plaintiff initially agreed to a thirty-day extension of the contract. Subsequently, in late January 1979, plaintiff executed a waiver of any claim for damages against defendant arising from delay in completion of the building. On January 30,1979, plaintiff accepted the building, holding back $25,000 pending completion of certain details on the building.\\nAfter accepting the building, plaintiff commenced production. In late February, 1979, the dry room roof began leaking. A subcontractor attempted to remove snow from the roof, but this merely resulted in larger holes being torn in the roof. A large amount of pepperoni curing in the dry room began to mold and ultimately was destroyed. The plant closed on April 28,1979. The roof was finally completed in June, but the plant never reopened. Plaintiff asserted that loss of its product and the consequent inability to fulfill contracts completely destroyed its business, resulting in foreclosure and loss of all assets.\\nOn September 26, 1979, plaintiff filed a petition seeking $1,500,000 damages for defendant's alleged breach of contract, breach of implied warranty, breach of express warranty, and negligence. The case was subsequently tried to a jury. There was considerable testimony regarding the construction contract, the construction itself, and the circumstances surrounding plaintiff's acceptance of the building.\\nAfter deliberating for three days, the jury remained deadlocked at a 4 to 4 vote and was released. Defendant then filed a motion pursuant to Iowa Rule of Civil Procedure 243 for judgment notwithstanding the jury's failure to return a verdict, asserting that the evidence was insufficient as a matter of law to prov.e either breach of contract or damages related thereto. Trial court subsequently sustained the motion and entered judgment for defendant. The court concluded that plaintiff accepted the building knowing the roof had not been completed and would not be completed until spring when the work could be properly done. Plaintiff then instituted this appeal.\\nII.\\nThe plaintiff's first contention is that the trial court erred in granting defendant's motion for judgment notwithstanding the jury's failure to return a verdict. We must agree with plaintiffs.\\nOur review of this issue is limited to the grounds urged in defendant's earlier motion for directed verdict since a motion for judgment notwithstanding the verdict must stand or fall on the grounds asserted in the motion for directed verdict. Meeker v. City of Clinton, 259 N.W.2d 822, 827-27 (Iowa 1977). The defendant's motion for directed verdict was predicated on the claim that the evidence was insufficient to submit the issues of breach of contract or negligence to the jury. In determining whether the trial court correctly ruled on this issue, we view the evidence in accordance with the same principles which govern the trial court's decision:\\nIn determining whether a jury question was engendered when a party seeks a directed verdict, dismissal, or judgment notwithstanding the verdict, the trial court views the evidence in the light most favorable to the party against whom the motion was made regardless of whether such evidence is contradicted and every legitimate inference which may be reasonably deducted therefrom must be carried to the aid of the evidence and if reasonable minds can differ on the issue it is for the jury. Schiltz v. Cullen-Schiltz & Assoc., Inc., 228 N.W.2d 10, 17 (Iowa 1975).\\nOur function is to review the evidence to determine, not whether it proves defendants' negligente] . . but whether it is sufficient so the trial court was justified in submitting the question to the jury as the trier of facts. Miller v. Young, 168 N.W.2d [45, 51 (Iowa 1969)].\\nMeeker, 259 N.W.2d at 828.\\nPlaintiff claimed, in its petition, that the building was not completed according to contract specifications and that the construction was not timely completed. It also claims that defendant constructed the building negligently, causing the roof to leak which, in turn, caused the meat to spoil. The trial court had instructed the jury that, as a matter of law, plaintiff had waived any claims for damages arising from defendant's failure to timely complete the construction, despite plaintiff's arguments that the alleged waiver was without knowledge of all the relevant facts. Plaintiffs also assert that, prior to accepting the building, the defendant assured plaintiff that the roof was weatherproof. The defendant disagrees and contends that the parties were aware that the roof bf the dry room was not completed when the plaintiff took the building and began production.\\nIn its ruling on defendant's motion for judgment notwithstanding the jury's failure to return a verdict, the court ruled that there was not sufficient evidence to show a breach of contract by defendant. Specifically, the court ruled that plaintiff accepted the building with full knowledge that the roof had not been completed and that the construction was properly completed in the spring. The court did not specifically address the other theories urged by plaintiff in its petition or the other matters urged by defendant in its motion. We therefore consider the matters urged by defendant in its. motion for directed verdict in the light most favorable to plaintiff. Having done so, we find that the theories of negligence and breach of contract present issues more properly resolved by the jury. The fact that the impaneled jury remained deadlocked in a four to four split on the question of liability is strong evidence that reasonable minds can differ on the issues presented by the facts of this case. Iowa Rule of Civil Procedure 200 provides in part, that the court may discharge a jury \\\"if they have deliberated until it satisfactorily appears that they cannot agree. The case shall be retried immediately or at a future time, as the court directs.\\\" We believe the court erred in deciding the case under a motion for judgment notwithstanding the verdict instead of remanding the case pursuant to rule 200.\\nNevertheless, we do not believe the theories of implied or express warranty may be entertained in the retrial of this case. It appears from the record that on July 16, 1980, defendant filed a motion for adjudication of law points, alleging that the implied and express warranty claims set out in divisions II and III of plaintiffs petition therefore failed to state the cause of action. Plaintiff filed a resistance to the motion, and trial court subsequently sustained the motion and struck divisions II and III from the petition. The affidavit of defendant's trial attorney and the trial judge indicate that, in fact, plaintiff's trial attorney agreed to the dismissal of divisions II and III of plaintiff's petition dealing with implied and express warranties. We believe the court correctly struck these portions of the petition. It is clear that plaintiff chose not to rely on these theories in the trial below and, therefore, it is prohibited from doing so on remand. We thus reverse and remand for a new trial on the theories of breach of contract and negligence.\\nIII.\\nIn an effort to facilitate a proper retrial of this cause we address one additional matter raised by plaintiff regarding jury instructions. Plaintiff asserts that the court erred in refusing to give plaintiff's requested jury instructions regarding recovery for negligence and various elements of damages and consequential damages, including loss of profits. It is well established that a contract may give rise to a duty, the breach of which may be tortious. M & W Farm Service Co. v. Gallison, 285 N.W.2d 271, 276 (Iowa 1979). Whether the contract establishes such a duty of care is a question of law for the courts to decide. Id. It has also been held that there is an implied duty to perform construction contract work with due care. Busker v. Sokolowski, 203 N.W.2d 301, 303 (Iowa 1972). Negligent construction under a contract may also amount to a breach of the contract. See Metropolitan Transfer Station Inc. v. Design Structures Inc., et a1, 328 N.W.2d 532, 538 (Iowa App.1982). Here the court did not specifically address the issue of negligence in its ruling on defendant's motion notwithstanding the verdict. However, the court had refused to give plaintiff's requested jury instruction numbers 12,13 and 14, which were Iowa uniform instruction numbers 2.1, 2.6 and 2.18 regarding recovery for negligence. The general rule governing this issue was set forth in Anderson v. Low Rent Housing Commission, et a 1, 304 N.W.2d 239, 249 (Iowa 1981) as follows:\\nParties to a lawsuit have a right to have their legal theories submitted to the jury as long as they are supported by the pleadings and substantial evidence. Lockard v. Carson, 287 N.W.2d 871, 875 (Iowa 1980). Even when the evidence is not in dispute, it is viewed in the light most favorable to the party requesting the instruction, and if reasonable minds might draw different inferences from the evidence a jury question is engendered. See Oak Leaf Country Club, Inc. v. Wilson, 257 N.W.2d 739, 744 (Iowa 1977).\\nSince plaintiff pleaded negligence we need only determine whether substantial evidence existed to engender a jury question on the issue. We note that more than a mere scintilla of evidence is required in order for the court to give the instruction to the jury. Hamilton v. Luckey, 315 N.W.2d 823, 826 (Iowa App.1981). Plaintiff asserts that defendant negligently constructed the roof during an improper time of year causing the roof to leak, and failed to timely and appropriately repair the leak once it had been discovered. We believe that defendant had a duty to perform the contract with due care and that plaintiff introduced sufficient substantial evidence to engender a jury question on whether defendant breached that duty. Accordingly, the instructions regarding plaintiff's negligence claim should be submitted to the jury.\\nThe court also refused to admit evidence and to instruct the jury on consequential damages under either the breach of contract or negligence theories. Plaintiff's accountant, Henry Karp, attempted to testify regarding consequential damages allegedly suffered by plaintiff. However, defendant's objections to Karp's testimony were sustained on grounds that the evidence was irrelevant and concerned an improper measure of damages. In a subsequent offer of proof, Karp testified regarding the amount of money spent by plaintiff in constructing and starting up the meat plant, and the expected profits plaintiff allegedly would lose.\\nThe established rule of Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854), requires that consequential damages be reasonably foreseeable to be recovered in a breach of contract action. See also Meyer v. Nottger, 241 N.W.2d 911, 920 (Iowa 1976); DeWaay v. Muhr, 160 N.W.2d 454, 458-59 (Iowa 1968); Walker Manufacturing Co. v. Henkel Construction Co., 346 F.Supp. 621, 635 (N.D.Iowa 1972). Lost profits may be recovered as consequential damages so long as the profits are not based on conjecture and speculation. Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 284-86 (Iowa 1979). Plaintiff's proffered testimony included matters relevant to whether the claimed lost profits were speculative. The fact that plaintiffs business was relatively new would not, in and of itself, require that evidence of lost profits be excluded since such profits may be awarded where evidence demonstrates its feasibility. See Lakota Girl Scout Co. Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634, 640 (8th Cir.1975). Plaintiff also sought to introduce evidence of expenditures made in reliance on the proper performance of the contract. These expenditures have been awarded as an element of consequential damages. See C.C. Hauff Hardware, Inc. v. Long Manufacturing Co., 260 Iowa 30, 34, 148 N.W.2d 425, 428 (1967). We believe plaintiff should have been allowed to introduce evidence of the damages it allegedly suffered as a result of defendant's alleged breach or negligence in performance of the contract. Under the principles set forth above, we also find sufficient evidence of consequential damages to support the giving of plaintiff's requested instructions relating to damages. We note, however, that since the theories of express or implied warranties were expressly removed from consideration at trial, no instructions under these theories were warranted.\\nOne final matter relating to the trial court's jury instructions is necessary. The court instructed the jury that, as a matter of law, plaintiff waived any claim for damages arising from delays in completing the construction. Whether there has been a voluntary relinquishment of a known right is a question of fact. Jones v. City of Des Moines, 225 Iowa 1342, 1346, 283 N.W. 924, 926 (1939). Here plaintiff argued that their agreement not to pursue damages due to the late construction was based on their belief that the roof was waterproof and ready for use. They thus argue that any alleged waiver was not made with full knowledge of all the circumstances. While we do not mean to intimate that the waiver was, in fact, valid, we believe this question is one of fact which should be put to the jury. It is error for the court, in giving jury instructions, to assume as true a matter which is dispute in the evidence. Mongar v. Barnard, 248 Iowa 899, 914, 82 N.W.2d 765, 775 (1957). Accordingly, we believe it was error for the court to instruct the jury that, as a matter of law, plaintiff had waived all damages arising from the late construction.\\nWe thus remand for a new trial in a manner consistent with the above principles.\\nREVERSED AND REMANDED.\"}"
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diff --git a/iowa/10677620.json b/iowa/10677620.json
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--- /dev/null
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+"{\"id\": \"10677620\", \"name\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee\", \"name_abbreviation\": \"Francis v. Farmer Casualty Co.\", \"decision_date\": \"1982-05-19\", \"docket_number\": \"No. 66582\", \"first_page\": \"273\", \"last_page\": \"275\", \"citations\": \"319 N.W.2d 273\", \"volume\": \"319\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:17:11.187685+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, McCORMICK, and ALLBEE, JJ.\", \"parties\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee.\", \"head_matter\": \"David John FRANCIS, Appellant, v. FARMERS CASUALTY CO. (MUTUAL), Appellee.\\nNo. 66582.\\nSupreme Court of Iowa.\\nMay 19, 1982.\\nH. Alan Bowers of Baird, Bowers, Oliver & Olson, Des Moines, for appellant.\\nRoy M. Irish of Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellee.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, HARRIS, McCORMICK, and ALLBEE, JJ.\", \"word_count\": \"836\", \"char_count\": \"5198\", \"text\": \"HARRIS, Justice.\\nPlaintiff, at all material times, had a comprehensive family automobile insurance policy with defendant. He sold an automobile covered by the policy but, for want of a safety inspection certificate, the transfer of the ownership was not effected. See Sullivan v. Skeie Pontiac, Inc., 270 N.W.2d 814, 818 (Iowa 1978). Accordingly, when the vehicle was later involved in an accident plaintiff was sued in a separate tort action. He brought this declaratory judgment suit seeking coverage for the accident under his policy. We think the trial court was right in declining relief.\\nWhen plaintiff sold the automobile, he was paid in full and surrendered it to the buyer. He signed a certificate of title and gave it, along with the registration certificate, to the buyer. Neither the plaintiff nor the buyer, however, ever obtained a safety inspection certificate demanded by section 321.238, The Code 1979. Plaintiff had no further contact with either the vehicle or buyer. It was the buyer who was driving the vehicle when it was involved in a collision with a motorcycle. Both riders of the motorcycle died as a result of the accident.\\nPlaintiff has been named as defendant in two wrongful death suits based on his retained ownership and responsibilities under section 321.493 which, under our holding in Sullivan, are claimed to flow from his failure to comply with section 321.238, The Code. The controlling question here is whether plaintiff is covered by the \\\"non-owned automobile\\\" provision of his policy. The provisions of the policy are:\\nTo pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:\\nA. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called \\\"bodily injury,\\\" sustained by any person;\\narising out of the ownership, maintenance or use of the owned automobile or any nonowned automobile and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy . PERSONS INSURED .\\n(b) with respect to a nonowned automobile,\\n(1) the named insured\\n[DEFINITIONS Under Part I]:\\n\\\"nonowned automobile\\\" means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile .\\n(Emphasis added).\\nPlaintiff has two interrelated hurdles to clear. First, the vehicle in question must qualify as nonowned. Second, there must be a showing of the insured's infrequent and irregular use of the automobile. The second hurdle is a part of the definition of the first hurdle. The record here does not show the first hurdle was cleared and conclusively shows the second hurdle was not cleared.\\nPlaintiff cannot show he is covered for the accident under the nonowned automobile provisions of the policy. The policy's own definition of the term \\\"non-owned automobile\\\" will control unless it is ambiguous. Iowa R.App.P. 14(f)(14). And \\\". . . the mere fact that parties disagree on the meaning of a phrase does not establish ambiguity for purposes of this rule. [Authority.] The test is an objective one: Is the language fairly susceptible to two interpretations? [Authority.]\\\" Farm Bureau Mut. Ins. Co. v. Sandbulte, 302 N.W.2d 104, 108 (Iowa 1981), (emphasis in original).\\nWe look to the policy, not the statute, for the definition. Allstate Insurance Company v. Chinn, 271 Cal.App.2d 274, 76 Cal. Rptr. 264, 266 (Cal.App.1969). The question is not the one we answered in Sullivan v. Skeie Pontiac, supra : did plaintiff still hold ownership responsibilities for the vehicle after the ineffective sale? The question here is whether the vehicle, by reason of its ownership retention under Sullivan, became a \\\"nonowned automobile\\\" under the policy. We are convinced it did not. Such a result was not the intention, and could not have been a reasonable expectation, of the parties:\\nThe purpose of a nonownership clause, such as the one in question, is to provide the insured with coverage while the insured is engaged in the occasional or infrequent use of an automobile other than the one specified in the policy, but not to provide liability coverage in regard to unspecified automobiles which are furnished or available for the insured's frequent or regular use. [Authorities.]\\nWaggoner v. Wilson, 31 Colo.App. 518, 521-22, 507 P.2d 482, 484 (1972).\\nThe record conclusively shows plaintiff's failure at the second hurdle. After its sale the vehicle was in no way furnished for infrequent or irregular use to the plaintiff. He had nothing to do with the automobile, never drove it, presumably never saw it.\\nThis is a risk which the defendant never undertook under the policy. The trial court was right in so holding.\\nAFFIRMED.\"}"
\ No newline at end of file
diff --git a/iowa/10681068.json b/iowa/10681068.json
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--- /dev/null
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+"{\"id\": \"10681068\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant\", \"name_abbreviation\": \"State v. Hungerford\", \"decision_date\": \"1981-09-29\", \"docket_number\": \"No. 63845\", \"first_page\": \"699\", \"last_page\": \"701\", \"citations\": \"311 N.W.2d 699\", \"volume\": \"311\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:53:43.746853+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee, v. David HUNGERFORD, Defendant-Appellant.\\nNo. 63845.\\nCourt of Appeals of Iowa.\\nSept. 29, 1981.\\nRichard E. Mundy, Cedar Rapids, for defendant-appellant.\\nThomas J. Miller, Atty. Gen. and Thomas N. Martin, Asst. Atty. Gen., for plaintiff-appellee.\\nSubmitted to OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.\", \"word_count\": \"634\", \"char_count\": \"3831\", \"text\": \"PER CURIAM.\\nDefendant appeals from judgment and sentence imposed upon conviction of the offenses of possession of burglary tools, possession of a controlled substance with intent to deliver, and possession of a firearm by a felon, in violation of sections 713.4, 204.-401(1), and 724.26, The Code. AH' issues argued on appeal relate to the admissibility of certain evidence seized by police officers from a van in which defendant had been riding as a passenger. The trial court determined that defendant lacked standing to attack the legality of the search of the interior of the van which he did not claim to own when he also did not claim to own the items seized. In the alternative, the trial court found that the search was justified on the grounds of probable cause (gleaned from a plain view examination) and exigent circumstances. The trial court further found that the original stopping of the van was pursuant to a valid investigatory stop. On appeal, defendant asserts that a) based upon what was visible to the officers from the place where they were legally entitled to be, probable cause was lacking for a search of the van, and b) defendant was placed under arrest prior to the search without probable cause and that the fruits of the search were the products of that illegal arrest.\\nConsidering these arguments in inverse order, we first conclude that even if defendant's arrest was completed without probable cause, the fruits of the search were not the product of the invasion of defendant's own liberty. Such fruits were instead the product of the subsequent search of the van. The only items seized which depended in any way on defendant's arrest were suppressed by the trial court.\\nAs to the search of the van, the trial court properly found that it was not a violation of defendant's fourth amendment right based upon the concept of personal standing to assert fourth amendment claims established in Rakas v. Illinois, 439 U.S. 128, 131, 99 S.Ct. 421, 423, 58 L.Ed.2d 387, 393 (1978). See also State v. Sanders, 282 N.W.2d 770 (Iowa App.1979). Therefore, defendant's claim based on the assertion that the search was without probable cause is of no consequence because even if such were found to' be the case, it would not afford him any ground to suppress the evidence. Rakus, 439 U.S. at 131, 99 S.Ct. at 423, 58 L.Ed.2d at 393.\\nIn making this determination, we recognize that one of the offenses charged, possession of a controlled substance with intent to deliver, is of the type formerly believed to confer automatic standing. Sanders, 282 N.W.2d at 772. Such is no longer the case since the Supreme Court's decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Because defendant's suppression motion is predicated solely on federal constitutional grounds, that decision is controlling.\\nWe have considered all issues presented and find no ground for reversal.\\nAFFIRMED.\\n. We do not find in defendant's argument any challenge to the correctness of trial court's finding upholding the investigatory stop, nor do we believe from our review of the record that such a challenge would be successful.\\n. The test is whether granting the establishment of the illegal arrest \\\"the evidence to which instant objection is made has been come at by exploitation of that illegality.\\\" Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963).\\n.These were items taken from defendant's pockets.\"}"
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diff --git a/iowa/10683039.json b/iowa/10683039.json
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+"{\"id\": \"10683039\", \"name\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee\", \"name_abbreviation\": \"Caterpillar Davenport EmployEes Credit Union v. Huston\", \"decision_date\": \"1980-05-21\", \"docket_number\": \"No. 62417\", \"first_page\": \"393\", \"last_page\": \"397\", \"citations\": \"292 N.W.2d 393\", \"volume\": \"292\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:12:08.975274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, ALLBEE, and LARSON, JJ.\", \"parties\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee.\", \"head_matter\": \"CATERPILLAR DAVENPORT EMPLOYEES CREDIT UNION, a credit union chartered under the laws of the State of Iowa, Appellant, v. Thomas H. HUSTON, Iowa Superintendent of Banking, Appellee.\\nNo. 62417.\\nSupreme Court of Iowa.\\nMay 21, 1980.\\nJohn S. Gosma of Rehling, Lindburg & Gosma, Davenport, for appellant.\\nThomas J. Miller, Atty. Gen., and Elizabeth A. Nolan and Steven G. Norby, Asst. Attys. Gen., for appellee.\\nConsidered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, ALLBEE, and LARSON, JJ.\", \"word_count\": \"1685\", \"char_count\": \"10482\", \"text\": \"REYNOLDSON, Chief Justice.\\nThe fighting issue in this case is whether Iowa statutes permit an Iowa credit union to merge with an Illinois credit union when the merger plan provides that the surviving Illinois union shall operate a branch office in Iowa. Petitioner-appellant Caterpillar Davenport Employees Credit Union (Iowa Credit Union) sought judicial review of an Iowa Superintendent of Banking decision which disapproved the Iowa Credit Union's proposed merger with Caterpillar Employees Credit Union (Illinois Credit Union). The district court affirmed, and the Iowa Credit Union appeals. We affirm.\\nThe facts are not in dispute. The Iowa Credit Union is organized under the laws of Iowa with its principal place of business in Scott County. The Illinois Credit Union is organized under Illinois law. Its principal office is in Peoria, Illinois. These two unions devised a plan for the Iowa Credit Union to merge into the Illinois Credit Union under section 533.30, The Code 1977, which relevantly provides:\\n1. A credit union may, with the approval of the superintendent of banking, merge with another credit union under the existing organization of the other credit union pursuant to a plan agreed upon by the majority of the board of directors of each credit union joining in the merger and approved by the affirmative vote of a majority of the members of the merging credit unions.\\n5. This section shall be construed to permit a credit union organized under any other statute to merge with one organized under this chapter, or to permit one organized under this chapter to merge with one organized under any other statute.\\nThe merger plan, approved by the boards of directors and a majority of members of each union, provided for the Illinois Credit Union to be the successor organization, and that it should \\\"continue the operation of the present office of [Iowa Credit Union] in the Caterpillar Tractor Co., manufacturing fa cility located in the Davenport/Mount Joy, Iowa 52809, area as a[n Illinois Credit Union] branch office.\\\"\\nIn disapproving the plan, respondent Iowa Superintendent of Banking ruled that the contemplated Iowa branch office would violate section 533.3, The Code 1977, which provides in part:\\nNo person, firm, corporation, copart-nership, or association, except a credit union organized under the provisions of this chapter or under the federal credit union Act [12 U.S.C. \\u00a7 1751 et seq.] or except the Iowa credit union league, incorporated, or chapters of said league, shall use a name or title containing , the words \\\"credit union\\\" or any derivation thereof or shall represent themselves, in their advertising or otherwise, as conducting business as a credit union.\\nThe district court agreed with the Superintendent's application of this statute. Statutory references which follow relate to the 1977 Code unless otherwise indicated.\\nThe Iowa Credit Union argues district court erred (1) because section 533.3 was amended by implication with the 1975 enactment of section 533.30; and (2) in any event, the surviving Illinois Credit Union would be \\\"a credit union organized under the provisions of [code chapter 533]\\\" and thus its Iowa branch office would not violate section 533.3.\\nI. Scope of review.\\nThis proceeding was brought in district court for judicial review of final administrative action under section 17A, The Code. See \\u00a7 17A.19-.20. Our scope of review was delineated in Jackson County Public Hospital v. Public Employment Relations Board, 280 N.W.2d 426, 429-30 (Iowa 1979):\\n[T]his court's duty, under the IAPA, is to correct errors of law made by the district court.\\nThus, when this court reviews a decision of a district court rendered pursuant to section 17A.19, the sole question is whether the district court correctly applied the law. In order to make that determination, this court applies the standards of section 17A.19(8) to the agency action to determine whether this court's conclusions are the same as those of the district court. If the conclusions are the same, affirmance is in order. If they are not, reversal may be required.\\nAccord, Briggs v. Board of Directors, 282 N.W.2d 740, 743 (Iowa 1979).\\nII. Does section 533.30 by implication amend section 533.3?\\nIn enacting section 533.30, quoted above, the 1975 legislature struck a prior section which permitted a consolidation of credit unions only between \\\"two or more credit unions organized under the laws of the state of Iowa.\\\" See \\u00a7 533.30, The Code 1975. The substitute statute, in subsection 5, provides it \\\"shall be construed to permit a credit union organized under any other statute to merge with one organized under this chapter [533], or to permit one organized under this chapter to merge with one organized under any other statute.\\\" See \\u00a7 533.30, The Code 1977.\\nThe Iowa Credit Union points out that, after such a merger with a foreign union, \\\"The rights and privileges of the members of the merged credit union shall remain intact.\\\" \\u00a7 533.30(4), The Code. From this it reasons that one of the basic rights and privileges of an Iowa credit union member \\\"is to go to the office of the [merged] credit union [in Iowa] to transact his business.\\\" The Iowa Credit Union asserts this is consistent with the plain legislative intent and a contrary construction would make sections 533.3 and 533.30 repugnant and irreconcilable. This being so, section 533.30, the most recent and special enactment, must prevail. Section 533.3 must be considered as amended by implication and considered inapplicable where there has been a section 533.30 merger.\\nWe are not so persuaded. The implied powers claimed by the Iowa Credit Union for the contemplated surviving union plunge beyond the parameters we fixed in Iowa Credit Union League v. Iowa Department of Banking, 268 N.W.2d 165, 171 (Iowa 1978):\\n[Financial institutions, such as credit unions and banks, are organizations of enumerated powers. Since the operation of financial institutions is fraught with hazards to the public, such institutions have only the authority they are given. They cannot operate on the basis that they can proceed with a new function unless it is forbidden; they must show that it is within the intendment of their statute\\u2014 either granted by the statute in express terms or necessary or requisite to a granted power.\\n(Emphasis added and in original.)\\nAmendments by implication are not favored, and if possible statutes will be construed so as to be consistent with each other. State v. Rauhauser, 272 N.W.2d 432, 434 (Iowa 1978); see Lineberger v. Bagley, 231 Iowa 937, 942, 2 N.W.2d 305, 308 (1942); 1A A. Sutherland, Statutes and Statutory Construction \\u00a7 22.13, at 139 (4th ed. C. Sands 1972). There is nothing in section 533.3 which prohibits the merger of an Iowa credit union into a foreign or federal credit union under section 533.30. It simply prohibits a foreign credit union from using the designation \\\"credit union\\\" or representing itself as conducting such a business in Iowa. There may be many reasons for an Iowa credit union to merge into a foreign credit union \\u2014 for example, when an industry relocates \\u2014 but such a transformation cannot furnish such justification for a foreign credit union to operate in Iowa that section 533.3 must be deemed amended by implication.\\nIII. Would the surviving Illinois Credit Union be \\\"organized\\\" under chapter 533, The Code?\\nBy its terms the section 533.3 prohibition does not apply to \\\"a credit union organized under the provisions of this chapter [533].\\\"\\nThe Iowa Credit Union argues as an alternative to those grounds discussed in divi-si\\u00f3n II that the merged Illinois Credit Union would be exempt from section 533.3 as \\\"organized\\\" under chapter 533 and therefore could legally operate an Iowa'branch office. It asserts \\\"the surviving credit union exists and operates within the clearly expressed statutory merger framework of Section 533.30\\\" and because it so operates, it in fact has been \\\"organized\\\" under chapter 533 provisions.\\nIn its affirmance the district court found the union's rationale was negatived by the language of section 533.30(5), quoted above, which refers to merger of unions \\\"organized\\\" under chapter 533 with unions \\\"organized\\\" under any other statute. Section 533.1 details how a credit union is organized by incorporation in Iowa.\\nDecisions from other jurisdictions support the district court's analysis. Generally, \\\"organized\\\" is interpreted to mean incorporated and not \\\"operated.\\\" Sun-Herald Corp. v. Duggan, 73 F.2d 298, 300 (2d Cir. 1934), cert. denied, 294 U.S. 719, 79 L.Ed. 1251, 55 S.Ct. 546 (1935). \\\"Organized\\\" ordinarily is descriptive of the creation of the corporation in question. Murphy v. Washington American League Base Ball Club, Inc., 167 F.Supp. 215, 218 (D.D.C.1958), aff'd per curiam, 267 F.2d 655 (D.C.Cir.), cert. denied, 361 U.S. 837, 80 S.Ct. 89, 4 L.Ed.2d 77 (1959).\\nBingham v. Savings Investment & Trust Co., 101 N.J.Eq. 413, 420-21, 138 A. 659, 661-62 (Ch.1927), aff'd, 102 N.J.Eq. 302, 140 A. 321 (N.J.1928), relied on by the union, is factually distinguishable. Although it does equate the term \\\"organized\\\" with \\\"operating\\\" rather than \\\"created,\\\" it involved the merger of a trust company and a bank, both New Jersey organizations. The trust company had been organized under a statute subsequently repealed, but operated under the new enactment, pursuant to its terms. The merger-authorizing legislation permitted merger of companies \\\"organized\\\" under the subsequent enactment. It was in those circumstances the New Jersey court equated \\\"operating\\\" with \\\"organized.\\\" That rationale has no application here.\\nWe hold district court was right in ruling that the surviving credit union of the proposed merger would not be a union \\\"organized\\\" under the provisions of chapter 533. The section 533.3 prohibition is applicable and the Illinois Credit Union could not legally operate a branch office in Iowa.\\nWe affirm the district court decision.\\nAFFIRMED.\\n. 1975 Session, 66th G.A., ch. 241, \\u00a7 15.\"}"
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+"{\"id\": \"10685366\", \"name\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant\", \"name_abbreviation\": \"State v. Wrage\", \"decision_date\": \"1979-05-30\", \"docket_number\": \"No. 62408\", \"first_page\": \"4\", \"last_page\": \"7\", \"citations\": \"279 N.W.2d 4\", \"volume\": \"279\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:09:53.040442+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE, and LARSON, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Wade Allen WRAGE, Appellant.\\nNo. 62408.\\nSupreme Court of Iowa.\\nMay 30, 1979.\\nWalter W. Rothschild, Waterloo, for appellant.\\nThomas J. Miller, Atty. Gen., and Ann Fitzgibbons, Asst. Atty. Gen., for appellee.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE, and LARSON, JJ.\", \"word_count\": \"1637\", \"char_count\": \"9506\", \"text\": \"HARRIS, Justice.\\nMust the same judge who imposed sentence be the one who reconsiders it under \\u00a7 903.2, The Code, 1979? We think not and accordingly affirm the trial court.\\nCompanion sections for so-called \\\"shock probation\\\" were enacted as a part of the 1977 criminal code revision. This suit involves \\u00a7 903.2 (reconsideration of misde-meanant's sentence). The section provides:\\nFor a period of thirty days from the date when a person convicted of a misdemeanor begins to serve a sentence of confinement, the court may order the person to be returned to the court, at which time the court may review its previous action and reaffirm it or substitute for it any sentence permitted by law. The court's final order in any such proceeding shall be delivered to the defendant personally or by certified mail. Such action is discretionary with the court and its decision to take such action or not to take such action is not subject to appeal. The provisions of this section notwithstanding, for the purposes of appeal a judgment of conviction is a final judgment when pronounced.\\nA companion statute, \\u00a7 902.4, The Code, 1979, provides for reconsideration of a felon's sentence.\\nWade Allen Wrage (defendant) pled guilty to operating a vehicle without the owner's consent, an aggravated misdemean- or under \\u00a7 714.7, The Code, 1979. Thereafter Judge Peter Van Metre, presiding as the trial court, sentenced defendant to 180 days in the Black Hawk County jail.\\nThe following week defendant moved to have his sentence reconsidered under \\u00a7 903.-2. The next day the trial court, Judge Dennis D. Damsgaard presiding, denied the motion. This appeal is from that denial. Defendant's sole contention on appeal is that it was error for any judge, other than the one who sentenced him, to act on his motion to reconsider.\\nI. The State suggests three alternative reasons why we should not reach the merits of defendant's contention.\\nFirst, the State points to the language in \\u00a7 903.2 which makes trial court orders discretionary and not appealable. Here the State misapprehends defendant's contention. The defendant does not directly question whether shock probation should or should not have been granted. Rather, the defendant urges that the decision of the trial court was a nullity because it was entered by the wrong judge. The discretionary nature of the trial court's authority under this section is no reason why we should not reach the merits of the defendant's contention.\\nThe State next argues that relief under this section cannot be granted upon motion because the section does not expressly provide for an application. But we think the section does not indicate the court must act sua sponte or not at all. We know of no rule which prohibits parties from applying to courts for appropriate relief. It would be an absurd rule which would strip the court of authority to act merely because it occurred to a party to suggest it.\\nFor its final reason why we should not reach the merits of defendant's contention, the State argues that the motion was premature. Defendant had not begun to serve his sentence when he moved that it be reconsidered. The State suggests there was no way for trial court to order him returned for reconsideration until he was serving. But we find no prohibition against filing the application before the sentence was being served.\\nHaving rejected all three of the State's threshold arguments we turn to.the merits.\\nII. In defendant's view, the power to reconsider sentences under \\u00a7 903.2 is vested exclusively in the judge who imposed the sentence. He argues that practical necessity supports his view because chaos would otherwise ensue. The defendant believes that rejection of his interpretation would result in judges reviewing one another's sentences. This would in thrn invite disharmony among judges, forum shopping, and disparity of punishment.\\nDefendant relies on Dunkelbarger v. Myers, 211 Iowa 512, 233 N.W. 744 (1930), in which a case was dismissed by one judge for failure to prosecute after it had been taken under advisement by another judge. In holding the dismissal was a nullity, we said:.\\nGenerally speaking, where there are several judges holding court at the same place at the same time, the action of any one of them in matters before him is the action of the court. But we have here a condition where a case was duly assigned, tried, and submitted to one judge and he took such case under advisement. In so doing we think he excluded all other judges in his district from making any orders which in any way would affect the substantial rights of the parties, or which would in any way interfere with . final disposition of the case.\\n211 Iowa at 515, 233 N.W. at 745.\\nBut the holding in Dunkelbarger was limited to its facts: dismissal of the case by one judge while it was under submission to another judge. It is not authority for the contention that any judicial determination in a case by one judge divests all other judges of authority to act on other matters in the same case. In the present case the act of Judge Damsgaard in no way interfered with anything under submission to Judge Van Metre. Dunkelbarger is not in point.\\nDefendant also relies on Central Savings & Loan Association v. Gaumer, 167 N.W.2d 656 (Iowa 1969), in which we held a party cannot resubmit a previously denied motion for summary judgment in the hope of getting a better result from a different judge. The present case does not involve resubmission of a matter already ruled upon. Wrage's motion for reconsideration had not been denied nor even submitted to any other judge.\\nPast cases have clearly distinguished the institution of the court from the office of a judge. For example we have said: \\\"A 'judge' is not necessarily a 'court,' although a 'court' necessarily includes a 'judge.' \\\" Salinger v. Telegraph Co., 147 Iowa 484, 492, 126 N.W. 362, 365 (1910).\\nSeveral of our cases have shown there is nothing personally exclusive to the function of a particular judge who acts as a court in a given case. In Renner Bros. v. Thornburg, 111 Iowa 515, 522, 82 N.W. 950, 952 (1900), we found no error where one judge withdrew an erroneous instruction from a jury at the direction of another judge who had presided over trial of the case. In State v. Jones, 115 Iowa 113, 120-121, 88 N.W. 196, 198 (1901), we rejected a complaint that a defendant who had been tried and convicted before one judge should not have been sentenced by another. In State v. Kulish, 260 Iowa 138, 144, 148 N.W.2d 428, 432-433 (1967), we held the same where the conviction was by a guilty plea. In Sloanaker v. Howerton, 182 Iowa 487, 497, 166 N.W. 78, 82 (1918), we held that a judge not assigned for the term when a referee's report was filed could nevertheless approve the report. More recently in State v. Parrish, 232 N.W.2d 511, 514-515 (Iowa 1975), we held that \\\" . . . the action of any one of several judges holding court at the same place and time is the action of the court. . . . \\\" Thus we approved the sentencing of a defendant by one judge after his plea of guilty had been accepted by another and found no need to again fulfill the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969).\\nThe action of one judge, sitting as the court, may have the effect of altering or setting aside a previous ruling by another judge sitting as the same court. In Comes v. Comes, 190 Iowa 547, 550-551, 178 N.W. 403, 405 (1920), we held it was proper for the trial court to set aside a default previously entered by a different judge.\\nMany more cases could be cited. But we find the foregoing establish Judge Dams-gaard's authority. It can be conceded that, where the same judge is available to continue to sit in a given case, there is ordinarily some advantage in not substituting another judge. With a substitution of judges, the second judge has to familiarize himself with the case, often an extensive and difficult task. But such a burden is not insurmountable. Reed v. Lane, 96 Iowa 454, 65 N.W. 380 (1895), involved an action to recover on a guardian's bond. One judge presided at trial but another rendered the judgment. Responding to a complaint of the substitution we said:\\n. It is not to be presumed that when such changes occur, and a ruling is made or judgment is rendered by a judge who did not hear the evidence and arguments, his decision is without knowledge of the case, but it should be presumed that he has fully advised himself in regard to the merits of the rulings made and the judgments rendered. In most cases he will do no more than to enter of record and make effective, the conclusions of the judge who was present when the cause was submitted. The court, in law, does not change; and, if it renders correct decisions, litigants have no grounds for complaint. .\\n96 Iowa at 468, 65 N.W. at 384. We took a similar view in State v. McCray, 189 Iowa 1239, 1244, 179 N.W. 627, 629 (1920).\\nIn summary we believe that it would ordinarily be more appropriate for the sentencing judge, who is thus already familiar with the case, to reconsider that punishment under \\u00a7 903.2. But we find no rule requiring it. Defendant's contention to the contrary is without merit.\\nAFFIRMED.\"}"
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diff --git a/iowa/10687253.json b/iowa/10687253.json
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+"{\"id\": \"10687253\", \"name\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL\", \"name_abbreviation\": \"In re Estate of Myers\", \"decision_date\": \"1978-08-30\", \"docket_number\": \"No. 61038\", \"first_page\": \"127\", \"last_page\": \"129\", \"citations\": \"269 N.W.2d 127\", \"volume\": \"269\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:40:52.317257+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur except McGIVERIN, J., who takes no part.\", \"parties\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL.\", \"head_matter\": \"In the Matter of the ESTATE of Lovell MYERS, Deceased. Appeal of John D. RANDALL.\\nNo. 61038.\\nSupreme Court of Iowa.\\nAug. 30, 1978.\\nJohn D. Randall, pro se, and Ronald W. Wendt and Jon M. McCright, Cedar Rapids, for appellant.\\nThomas M. Collins, of Shuttle worth & Ingersoll, Cedar Rapids, for appellees.\", \"word_count\": \"1396\", \"char_count\": \"8401\", \"text\": \"McCORMICK, Justice.\\nProbate orders allowing fees for an executor and its attorney are challenged by an estate beneficiary in this appeal. The orders were entered on two occasions. We dismiss the appeal from the first orders because it is untimely, and we affirm on the appeal from the second orders.\\nDecedent Lovell Myers died February 18, 1976, leaving a will naming his business partner John D. Randall sole beneficiary and executor of his estate. The will was filed for probate and Randall was appointed executor. Several months later decedent's daughter commenced a will contest and separately asked that Randall be removed as executor. The trial court first appointed Merchants National Bank of Cedar Rapids to act as co-executor with Randall but later removed Randall as co-executor pending the outcome of the will contest. The bank retained the Cedar Rapids law firm of Shuttleworth & Ingersoll as its attorneys.\\nOn March 4, 1977, the bank and law firm filed separate applications for fees and expenses for the period from the bank's appointment on July 2, 1976, through January 31, 1977. The applications were set for hearing upon notice to Randall who resisted them. After hearing, the trial court, Judge Vietor, entered orders on June 27, 1977, fixing the bank's fee at $5675 and the attorney fee at $6135.\\nRandall settled the will contest in July 1977. On July 22, 1977, the bank and its attorneys filed applications for fees and expenses for the period February 1, 1977, through July 6, 1977, stating their willingness to resign their positions in the estate upon payment of these fees and expenses as well as those earlier allowed. These applications were set for hearing upon notice to Randall and he resisted them. After hearing, the trial court, Judge Osmundson, on August 10, 1977, entered an order allowing a fee to the bank of $3500 and expenses of $115.80, a fee to McGladrey, Hansen, Dunn & Co., for accounting services rendered to the bank of $6875, and a fee to Shuttle-worth & Ingersoll of $5570 and expenses of $142.69. This order was amended August 11,1977, but the amendment is not material here.\\nRandall filed a notice of appeal on September 6,1977, from both sets of fee orders.\\nI. The threshold question is whether the orders are appealable as of right.\\nAn interlocutory ruling or decision is not appealable without permission. Final judgments and decisions are appealable as a matter of right, but appeal must be taken within 30 days from the entry of the order, judgment or decree involved. Rules 1, 2 and 5, Rules of Appellate Procedure. We lack jurisdiction to hear unauthorized appeals. In re Marriage of Mantz, 266 N.W.2d 758 (Iowa 1978).\\nProbate fee orders entered after notice and hearing are final as to parties having notice or appearing without notice. This follows from the general language of \\u00a7 633.36, The Code, which provides:\\nAll orders and decrees of the court sitting in probate are final decrees as to the parties having notice and those who appeared without notice.\\nThis provision appears first in the probate code revision of 1963, effective January 1, 1964. See Acts 60 G.A. ch. 326, \\u00a7 36. The comment of the Iowa State Bar Association Committee which proposed the legislation is as follows:\\nNew. This section provides a method whereby a final determination of a particular matter can be made by giving notice to affected parties and prevents the necessity of waiting until the hearing on the final report. All parties who appear at the hearing are bound by the proceedings whether served with notice or not. Such orders are final orders and are appealable, (emphasis supplied). 46 Iowa Code Annotated 62.\\nThe chairman of the bar committee later said the drafters recognized this provision might lead to multiple appeals in a single probate proceeding:\\nThe provision as to finality of orders with notice presents the possibility of multiple appeals in an estate proceeding where the interested parties are inclined to be litigious. But the desirability of obtaining a final adjudication of questions arising during the administration of an estate, in the opinion of the committee, outweighed the possibility of multiple appeals. Moreover, the present high cost of litigation should discourage unwarranted appeals by such persons. Webster, Decedents' Estates: Succession and Administration, 49 Iowa L.Rev. 638, 645 (1964).\\nSee also Colthurst v. Colthurst, 265 N.W.2d 590 (Iowa 1978); In re Estate of Jarvis, 185 N.W.2d 753 (Iowa 1971).\\nThis means the fee orders entered by Judge Vietor on June 27, 1977, were final and appealable as a matter of right within 30 days of that date. However, appeal from those orders was not attempted until September 6, 1977. The appeal from them was thus untimely and we have no jurisdiction of it. Accordingly, we must dismiss the appeal insofar as it challenges the orders of June 27, 1977.\\nThe appeal is timely as to the orders of August 10 and 11, 1977. Therefore we must determine the merits of the appeal insofar as it attacks those orders.\\nII. The only question on the merits of the August orders is whether the executor and attorneys sustained their burden to prove the necessity of their services and the reasonableness of their charges.\\nAllowance of fees in probate is governed by \\u00a7 633.197-633.200, The Code. Under these provisions personal representatives and their attorneys are to be awarded \\\"reasonable fees as may be determined by the court for services rendered\\\", not to exceed a schedule based on the size of the estate. In addition, reasonable allowance for \\\"actual necessary and extraordinary expenses or services\\\" is authorized.\\nWhen objection is interposed, as in the present case, the burden is on the applicant for fees to prove the services were reasonably necessary and the charges are reasonable in amount. Glynn v. Cascade State Bank, 227 Iowa 932, 289 N.W. 722 (1940); In re Estate of Munger, 168 Iowa 372, 150 N.W. 447 (1915); see Estate of Bass v. Bass, 196 N.W.2d 433, 435 (Iowa 1972). The hearing is in equity and our review is de novo. In re Estate of Cory, 184 N.W.2d 693 (Iowa 1971); \\u00a7 633.33, The Code.\\nIn the present case the fee applications were itemized in considerable detail and verified by the applicants. The bank showed the time attributed to each item in its statement although the attorneys did not. In each instance the fees requested were based on a charge of $50 per hour.\\nThe accounting services of McGladrey, Hansen, Dunn & Co. had been authorized by an order of the court entered in November 1976, and this fee was based on the firm's regular charges. The bank requested in its application that the fee be paid as an expense of administration.\\nTestimony in behalf of the bank, the accounting firm and the attorneys was to the effect that their respective services were necessary and that the charges were fair and reasonable.\\nThe estate included one-half interest in a corporation which owned approximately 2700 acres of farmland and other property. Randall owned the remaining one-half interest in the corporation. Estimates of value differed, but the gross assets of the estate for inheritance tax purposes may be worth more than two million dollars. Randall asserted Myers' accountings to him of corporate income had been false, and this made it necessary for the executor and attorneys to attempt to reconstruct the corporation's financial history. In doing this and in attempting to conserve the assets of the estate, handle routine probate tasks, and maintain a position of neutrality in the will contest, they were required to expend more time than probably would have been necessary in the ordinary course of estate administration.\\nDespite \\\" cross-examination which challenged certain items in their statements, we think the applicants carried their burden of proof and established their entitlement to the fees and expenses allowed by the trial court.\\nTherefore we find no merit in Randall's appeal from the orders of August 10 and 11, 1977.\\nAPPEAL DISMISSED IN PART AND AFFIRMED IN PART.\\nAll Justices concur except McGIVERIN, J., who takes no part.\"}"
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diff --git a/iowa/10688203.json b/iowa/10688203.json
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+"{\"id\": \"10688203\", \"name\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees\", \"name_abbreviation\": \"City of Eldridge v. Caterpillar Tractor Co.\", \"decision_date\": \"1978-10-18\", \"docket_number\": \"No. 60917\", \"first_page\": \"637\", \"last_page\": \"643\", \"citations\": \"270 N.W.2d 637\", \"volume\": \"270\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:23:43.655554+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"parties\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees.\", \"head_matter\": \"CITY OF ELDRIDGE, Appellant, v. CATERPILLAR TRACTOR COMPANY and City of Davenport, Appellees.\\nNo. 60917.\\nSupreme Court of Iowa.\\nOct. 18, 1978.\\nRehearing Denied Nov. 17, 1978.\\nMcDonald, McDonald & Stonebraker and Heninger & Heninger, Davenport, for appellant.\\nBetty, Neuman, McMahon, Hellstrom & Bittner, Davenport, and Van Der Kamp, Crampton & Snyder, P. C., Rock Island, Ill., for appellee Caterpillar Tractor Co.\\nWilliam B. Waterman, City of Davenport Legal Dept., Davenport, for appellee City of Davenport.\\nConsidered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"word_count\": \"3155\", \"char_count\": \"19442\", \"text\": \"REES, Justice.\\nThis is an appeal by the City of Eldridge (Eldridge) from orders of the trial court sustaining motions for summary judgment of defendants Caterpillar Tractor Company (Caterpillar) and City of Davenport (Davenport), and overruling plaintiff's motion to enlarge or amend findings and conclusions in accordance with rule 179, Rules of Civil Procedure. We dismiss the appeal.\\nOn February 10, 1976 Eldridge filed its petition at law alleging: that Davenport and Caterpillar conspired to deprive El-dridge of its exclusive jurisdiction to proceed with the annexation of certain real property located between Eldridge and Davenport, part of which was owned by Caterpillar; that Caterpillar had made material misrepresentations to Eldridge in December, 1965, inducing Eldridge to enter into a ten-year moratorium agreement with Davenport regarding annexation of such property; that Eldridge relied on such representations and entered into the moratorium agreement on May 23, 1966, thus depriving Eldridge of tax revenues it would have realized had it annexed the land as it had started to do in April, 1965; and that on January 14, 1976 Caterpillar filed a voluntary annexation application with Davenport to avail itself of substantial monetary inducements contained in ah agreement executed between the defendants in March of 1966 for the rendition of municipal services. The petition did not allege the existence of a fiduciary or confidential relationship between Eldridge and Caterpillar.\\nAttached to plaintiff's petition was a copy of the \\\"Agreement for Municipal Services\\\" entered into between the defendants on March 21,1966. That agreement provided that Caterpillar would advance all costs of construction of extending sewer lines between Caterpillar's property and the City of Davenport, provided that when Caterpillar became annexed to Davenport, part of the construction costs would be repaid to Caterpillar. The agreement also contemplated the removal of the 25 percent surcharge on the costs of rental of the sewer line upon the completion of proceedings for the annexation of the land to Davenport.\\nThere was also attached to the petition a copy of the moratorium agreement entered into between Eldridge and Davenport on May 23, 1966, by which the parties agreed that neither municipality would commence proceedings to annex the property in question for a period of ten years.\\nOn March 1, 1976, Caterpillar filed a motion to dismiss Eldridge's petition. El-dridge amended its petition on March 22, 1976 alleging defendants had fraudulently concealed and affirmatively misrepresented the provisions and effect of the municipal services agreement, as well as alleging the elements of conspiracy between the defendants. The amendment did not allege a confidential relationship between Eldridge and Caterpillar. On May 3, 1976 the trial court overruled Caterpillar's motion to dismiss.\\nFollowing the filing of answers by both defendants in which they denied all material allegations of the plaintiff's petition except the existence of the agreement for municipal services and the moratorium agreement, discovery proceedings were undertaken. The several depositions and affidavits which resulted from the discovery processes disclosed that newspaper accounts of the municipal services agreement were read by at least three of the members of the 1966 City Council of Eldridge, but that the council members never read the specific terms of the services agreement, although it was concededly a public document. The discovery processes further disclosed that Caterpillar's attorney told the mayor of El-dridge in 1966 that there were no strings attached to the municipal services agreement and that Eldridge had an equal chance with Davenport to annex Caterpillar's land. The Davenport director of public works stated in his deposition that the specific terms of the services agreement were \\\"fair, reasonable and consistent with accepted practice\\\", and attached to his affidavit copies of service agreements between other cities and industries which were essentially similar to the agreement between Davenport and Caterpillar. Depositions of individuals identified by Eldridge in interrogatories as having knowledge of, or information concerning, the inducement of El-dridge to enter into the moratorium agreement or as having knowledge of a conspiracy between defendants, were also taken. All of such individuals indicated they had no such information or knowledge. An affidavit of the plant controller of Caterpillar indicates that the company would have enjoyed tax advantages by electing to annex to Eldridge rather than to Davenport at the end of the moratorium term.\\nOn January 26, 1977 Caterpillar filed its motion for summary judgment which was later, on February 2, 1977, joined in by Davenport. The motion for summary judgment, although resisted by Eldridge, was sustained on May 23, 1977 upon the following grounds:\\n(1) the municipal services agreement afforded Caterpillar no special considerations;\\n(2) there was no evidence of fraud, misrepresentation or conspiracy perpetrated upon the plaintiff by the defendants; and\\n(3) the alleged misrepresentations of Caterpillar were not material to or relied on by Eldridge in entering into the moratorium agreement.\\nIn its resistance to the motion for summary judgment, Eldridge asserted that a confidential relationship existed between it and Caterpillar.\\nOn June 2, 1977 Eldridge filed its motion pursuant to rule 179, R.C.P., for the court to enlarge or amend its findings and conclusions and for the court to find specifically whether in 1965 and 1966 a confidential, trust or fiduciary relationship existed between Eldridge and Caterpillar. The motion to enlarge was overruled on June 24, 1977, the trial court noting that the finding sought by plaintiff's motion \\\"has been by implication decided against plaintiff\\\" in the previous order sustaining the defendants' motion for summary judgment.\\nOn July 21, Eldridge filed its notice of appeal, appealing both from the court's order sustaining defendants' summary judgment and the order overruling plaintiff's motion to enlarge or amend findings and conclusions under rule 179(b), R.C.P. Nota bly, the notice of appeal was filed within 30 days of the order overruling the motion for enlargement and amendment of findings and conclusions under rule 179(b), but more than 30 days after the order of the trial court sustaining defendants' motion for summary judgment. Caterpillar filed its motion to dismiss the appeal as untimely, and on August 31, by order of this court, such issue was ordered submitted with this appeal.\\nThe following issues are presented for review:\\n(1) Is a motion under rule 179(b), R.C.P., to enlarge findings and conclusions permissible following a ruling on a motion for summary judgment?\\n(2) Was there sufficient information before the trial court to generate a genuine issue of material fact on the existence of a fiduciary or confidential relationship between Eldridge and Caterpillar?\\n(3) Do the pleadings, depositions and answers to interrogatories support a genuine issue of material fact on each of the elements of fraud or conspiracy against El-dridge by the defendants regarding the moratorium agreement?\\nI. The first issue for review involves the preliminary question as to the timeliness of plaintiff's appeal from the order of the trial court sustaining defendants' motion for summary judgment. Plaintiff's motion under rule 179(b), R.C.P., was filed in a timely manner and, if proper, would have served to toll the running of the 30-day period for appeal as provided for in rule 5 of the Rules of Appellate Procedure. If plaintiff's 179(b) motion was not proper, then the appeal was not taken within the 30-day period following the order of the trial court sustaining the motion for summary judgment and the appeal must be dismissed.\\nRule 179 provides:\\n\\\"(a) The court trying an issue of fact without a jury, whether by equitable or ordinary proceedings, shall find the facts in writing, separately stating its conclusions of law; and direct an appropriate judgment. No request for findings is necessary for purposes of review.\\n\\\"(b) On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. \\\"\\nThus it would appear from the first portion of the foregoing rule that it is applicable only when the court is \\\"trying an issue of fact without a jury\\\". We therefore proceed to a consideration as to whether a summary judgment proceeding constitutes the trying of \\\"an issue of fact without a jury\\\".\\nThe basis essential to a summary judgment proceeding is set forth in rule 237(c), R.C.P.:\\n\\\" The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. \\\"\\nIt is evident a summary judgment proceeding involves a determination that the moving party, not upon a factual resolution of an issue, but as a matter of law, is entitled to judgment. The trial court, in passing on the motion for summary judgment in the matter before us here, was not \\\"trying an issue of fact without a jury\\\", but was determining whether there were issues of material fact for submission to a trier-of-fact. Although we have never directly addressed this issue, we have noted that \\\"it may be doubted\\\" whether rule 179 is applicable in a summary judgment context. Petit v. Ervin Clark Construction Co., 243 Iowa 118, 49 N.W.2d 508, 513. A holding that plaintiff's motion was improper would be consistent with both the express terms of the foregoing applicable rules and any inferences which may be drawn from prior opinions of this court.\\nSuch a conclusion is also consistent with the purpose behind rule 179, for standards regarding the clarity of rulings on summary judgment motions are found elsewhere in the Rules of Civil Procedure.\\nAs we noted in Berger v. Amana Society, 257 Iowa 956,120 N.W.2d 465, 467:\\n\\\"One of the primary purposes of this section [179(b)] is to advise counsel and the appellate court of the basis of the trial court's decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal.\\\"\\nThe sustaining of a motion for summary judgment is nothing more nor less than a determination that there are no issues of material fact, and that the moving party is entitled to judgment as a matter of law, both of which elements must be specifically alleged by the moving party. The court will consider each alleged ground for summary judgment, and in accord with rule 118, R.C.P., dispose of each ground by separate ruling. There are no findings of fact which could be amended or enlarged, while rule 118 guarantees the clarification of the legal grounds for either sustaining or overruling a motion. The basis of the ruling is made obvious to the parties involved.\\nSupport for the foregoing conclusion is provided by analogous rule 52 of the Federal Rules of Civil Procedure, which provides:\\n\\\"(a) EFFECT. In all actions tried upon the facts without a jury or without an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon,\\n\\\"(b) AMENDMENT. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment according- * \\u215c\\nAlthough rule 52 was amended in 1946 to exclude almost all motions, including those for summary judgment, from its operation, judicial interpretation of rule 52 preceding the amendment is informative. In Thomas v. Peyser, 73 U.S.App.D.C. 155, 118 F.2d 369, 374 (1941), the court affirmed a judgment that had sustained a motion to dismiss for failure to state a claim on which relief could be granted, stating:\\n\\\"Rule 52(a) . . . requires findings 'in all actions tried upon the facts.' This case was not tried upon the facts. The facts were admitted by the motion to dismiss. Obviously there need be no fact findings where facts are not in issue. The only issues determined by the trial court were questions of law and these adequately disposed of the case.\\\"\\nMore specifically on point, in Lindsey v. Leavy, 149 F.2d 899, 902 (9th Cir. 1945), the court said:\\n\\\"Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment, although the court may make such findings with or without request. Failure to make and enter findings and conclusions is not error.\\\"\\nSince there are no factual determinations to be made on a motion for summary judgment, we fail to perceive how the ruling thereon could properly be amended.\\nThe analogy between the federal and Iowa rules is further supported by the fact that rules 179 and 52 are respectively entitled \\\"Findings by Court\\\". As is indicated by statutory usage and subsequent judicial interpretation, \\\"findings\\\" generally relate to factual determinations, and \\\"conclusions\\\" to determinations of questions of law. In a summary judgment proceeding no findings of fact, as such, are involved, and rule 179 is therefore inapplicable.\\nA motion under rule 179(b) not being available to the plaintiff in the present action, we are without jurisdiction to proceed since the appeal was not timely within the provisions of rule 5, R.A.P., more than 30 days having passed since the sustaining of the motion for summary judgment before the appeal was taken. Like an untimely motion under rule 179(b), an improper motion thereunder does not act to toll the running of the 30-day period for filing an appeal under rule 5, R.A.P. Cf. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466 (Iowa 1978).\\nAccordingly, we are without jurisdiction to consider the remaining issues. The plaintiffs appeal is dismissed.\\nAPPEAL DISMISSED.\\nAll Justices concur except HARRIS, J., who dissents.\"}"
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+"{\"id\": \"10698475\", \"name\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee; Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee; Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee; Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee\", \"name_abbreviation\": \"Berding v. Thada\", \"decision_date\": \"1976-06-30\", \"docket_number\": \"No. 2-57049\", \"first_page\": \"857\", \"last_page\": \"862\", \"citations\": \"243 N.W.2d 857\", \"volume\": \"243\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:12:41.778119+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and Le-GRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"parties\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee. Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee.\", \"head_matter\": \"Virginia J. BERDING and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Camie BERDING, a minor by Herman J. Berding, her father and next friend, and Herman J. Berding, Appellants, v. Dennis LeRoy THADA, Appellee. Randy ADAMS, a minor by Richard J. Adams, his father and next friend, and Richard J. Adams, Appellants, v. Dennis LeRoy THADA, Appellee. Emmanuel FRANKS, Executor of the Estate of Theresia Franks, Deceased, Appellant, v. Dennis LeRoy THADA, Appellee.\\nNo. 2-57049.\\nSupreme Court of Iowa.\\nJune 30, 1976.\\nFinley & Teas, Mason City, for appellants.\\nBrown, Kinsey & Funkhouser, Mason City, for appellee.\\nSubmitted to MOORE, C. J., and Le-GRAND, REES, UHLENHOPP and HARRIS, JJ.\", \"word_count\": \"2407\", \"char_count\": \"14652\", \"text\": \"REES, Justice.\\nThis appeal involves litigation which was spawned by an automobile collision at an intersection in Mason City on December 30, 1970. Trial to a jury of the four consolidated cases resulted in verdicts for defendant, and plaintiffs appealed. We affirm.\\nAbout 5:49 p. m. on December 30, 1970, plaintiff Virginia J. Berding was operating an automobile in a southerly direction on South Pierce Avenue and was proceeding from a stop sign across U.S. Highway 18 (which is also Fourth Street S.W.), when the vehicle she was driving was struck on the left side by a car driven by defendant Dennis LeRoy Thada.\\nTheresia Franks, Mrs. Berding's grandmother was a passenger in the automobile and came to her death as a result of the accident. Mrs. Berding sustained injuries as did two other passengers in the car, her daughter, Camie Berding, and her nephew, Randy Adams, both of whom were minors.\\nAs a consequence of the death of There-sia Franks, the injuries to the other three occupants of the car and the property damage to the automobile, four separate actions were commenced against the defendant. In each, the plaintiffs alleged defendant was negligent in failing to keep a proper lookout, in failing to have his car under control, in driving at an excessive speed, in failing to operate the vehicle so as to be able to stop in the assured clear distance ahead and in driving while under the influence of intoxicating liquor. Plaintiffs further alleged in their petitions that defendant knowingly and willfully drank intoxicating liquors, became intoxicated and knowingly and willfully drove his automobile on the highway in violation of the rules, standards and laws of the road as set in the motor vehicle laws of Iowa, and in disregard of the safety of others. Plaintiffs asked for punitive or exemplary damages in addition to compensatory damages.\\nIn his answer filed in each of the cases, defendant denied all material allegations of negligence and affirmatively pleaded that the sole proximate cause of the collision and the resulting damage to the plaintiffs was the negligence of Virginia Berding in failing to keep a proper lookout, in failing to yield the right-of-way to defendant's auto and in failing to proceed cautiously and with due care when entering a through highway where inhibited by a stop sign.\\nThe plaintiffs state the following issues for review:\\n(1) Trial court erred in failing to instruct the jury that it had already been \\\"judicially established\\\" defendant was intoxicated at the time of the collision.\\n(2) Trial court erred in unduly restricting plaintiffs' cross-examination regarding the testing of specimens of blood taken from defendant to determine the level of blood alcohol therein.\\n(3) Trial court erred in failing to instruct the jury regarding exemplary damages.\\nI. In the first issue stated for review, plaintiffs assert trial court erred in failing to instruct the jury that defendant's intoxication at the time of the accident had been previously \\\"judicially established\\\".\\nOn the first day of trial plaintiffs in three of the four consolidated actions filed amendments to their petitions as follows:\\n\\\"That the above named defendant has previously been adjudged to have been driving his car in an intoxicated condition at the time and place of the accident, by finding and judgment of this District Court of Iowa in and for Cerro Gordo County, and that the fact of the defendant's intoxication is subject to the application of the principle of res judicata.\\\"\\nThe same day, plaintiffs filed the following related motion:\\n\\\"COME NOW the above named plaintiffs and move the Court to instruct the jury that, as to the issue of the defendant's intoxication at the time of the collision, the fact that he was intoxicated at that time and place has been already judicially established in the case of State of Iowa v. Dennis LeRoy Thada, one and the same person as the above named defendant, and that the District Court of Iowa in and for Cerro Gordo County, after trial to the Court, found the defendant guilty of driving while under the influence of an intoxicant, the issue being the same as the one in this case; and the defendant in both cases was the same identical person and had a full and fair opportunity to litigate the issue of intoxication, and that said issue was litigated and resolved against him by the order of a judge of this Court; and thus, the issue of the fact of the defendant's intoxication at the material times to this case has been established for the purpose of this litigation.\\\"\\nTrial court overruled the above motions, and plaintiffs allege such ruling was error.\\nWe disagree. Trial court was correct in refusing to give res judicata effect to defendant's conviction of the crime of operating a motor vehicle while under the influence of an intoxicant insofar as it is related to the issue of his intoxication in this proceeding. We have recently discussed the principles governing the doctrine of res ju-dicata. See Trushcheff v. Abell-Howe Company, 239 N.W.2d 116, 132-133 (Iowa 1976); Bertran v. Glens Falls Insurance Company, 232 N.W.2d 527, 531-534 (Iowa 1975). See also Goolsby v. Derby, 189 N.W.2d 909, 913-917 (Iowa 1971). Extended discussion is unnecessary here, because to accept plaintiffs' assertion as to the issue of res judicata would be to disregard specific statutory direction and render impotent a provision of our codified law.\\nSection 321.489, The Code, provides:\\n\\\"321.489 Record inadmissible in a civil action. No record of the conviction of any person for any violation of this chapter shall be admissible as evidence in any court in any civil action.\\\"\\nThe chapter referred to is, of course, the statute respecting motor vehicles and law of the road.\\nIn Book v. Datema, 256 Iowa 1330, 131 N.W.2d 470, we held the above statute did not require exclusion from evidence of a voluntary plea of guilty, but we so held only because such guilty plea is properly treated as an admission by the defendant. In the instant case, plaintiffs admit defendant did not plead guilty to the charge of operating a motor vehicle while under the influence of an intoxicant. Our holding in Book, therefore, is of no benefit to them.\\nIt is obvious that \\u00a7 321.489, The Code, would be rendered impotent if we were to permit a defendant's conviction to establish conclusively the fact of his intoxication for purposes of subsequent civil litigation. Certainly such authorization would be contrary to the legislative scheme embodied in the above provision. See also 8 Am.Jur.2d Automobiles and Highway Traffic \\u00a7 944, pp. 489-490; 50 C.J.S. Judgments \\u00a7 754b, pp. 269-273; Annot., 18 A.L.R.2d 1287 (1951).\\nAccordingly, we conclude trial court did not err in failing to give the instruction sought by plaintiffs and the first issue stated for review in this appeal is without merit.\\nII. In the second issue stated for review, plaintiffs contend trial court erred in unduly restricting the scope of cross-examination of defendant's witnesses.\\nApparently, while defendant was at a local hospital the evening of the collision, blood was drawn from him for the purpose of testing his blood alcohol level. Although plaintiffs introduced testimony that defendant appeared to be intoxicated on the evening in question, they made no attempt in their case in chief to introduce the results of the blood alcohol test. They did, however, attempt to bring out the test results indirectly through cross-examination of two of defendant's witnesses.\\nDefendant called William F. McElroy, a Mason City policeman, to testify on his behalf. McElroy testified he was on duty on the night of December 30, 1970, and went to the scene of the accident. He later went to the hospital and saw Thada, with whom he was acquainted, and spoke with him. He testified he did not consider Thada intoxicated at that time. On cross-examination plaintiffs' counsel began a line of questioning regarding the blood test. Defendant's attorney immediately asked for a conference on the matter out of the presence of the jury. In the discussions with the court out of the presence of the jury, plaintiffs' attorney stated he intended to \\\"ask this witness and other witnesses as to whether or not a blood test was taken and to ask if they know what the result of that test is, and perhaps to ask them if they say they do, what the result of the test was . \\\" Defendant's attorney then made what he characterized as a motion in limine in which he asked the court to prohibit counsel for plaintiffs from \\\"inquiring of any [witnesses] in substance whether or not a blood test or any other test was taken of the defendant, Thada, from inquiring about the results of any test, [and] from inquiring whether or not a witness knows the results of any test . . .\\\" Trial court overruled defendant's motion.\\nWe believe it suffices to say that further cross-examination of Officer McElroy by plaintiffs' counsel established (1) that a specimen of blood was withdrawn from the defendant, (2) that the blood was tested for alcoholic content, and (3) that based upon \\\"any other information\\\" that McElroy \\\"learned after that time at the hospital,\\\" which he now knew \\\"as to Mr. Thada's condition at the time of the accident,\\\" his opinion that defendant was not intoxicated would not change. An objection was lodged by defendant's counsel to a question by plaintiffs' attorney as to whether McEl-roy knew the results of the blood test. In the objection to such question it was asserted the question called for hearsay, since McElroy was not present during the actual testing of the blood and had no participatory connection with the test. The objection was sustained.\\nSimilar information was brought out by plaintiffs' attorney in cross-examination of the witness Reindl, a Mason City police detective who testified for defendant. Reindl testified he did not consider defendant intoxicated on the evening of the collision. In addition, the following exchange took place between plaintiffs' counsel and the witness Reindl:\\n\\\"Q. And, since that time, I'm asking you based on all of the facts that you now know in regard to Mr. \\u2014 the defendant Thada's condition at that time of the accident, has your opinion changed any as a result of the blood test or anything else that you took or had taken?\\n\\\"A. My opinion changed of his condition?\\n\\\"Q. Yes.\\n\\\"A. No.\\n\\\"Q. Makes no difference to you, those other factors?\\n\\\"A. No.\\\"\\nThe record indicates plaintiffs' attorney did not directly attempt to ask Reindl the results of the blood test.\\nThe scope and extent of cross-examination lie largely within the discretion of the trial court. State v. Monroe, 236 N.W.2d 24, 29 (Iowa 1975), and citations. Clearly, the trial court did not abuse its discretion in ruling on objections made to the questions posed to defendant's witnesses on cross-examination.\\nIt is clear from the record that the cross-examination in this case covered fully and fairly the subject of the police officers' opinions regarding defendant's condition as to sobriety or intoxication on the evening of the auto accident. Without objection from defendant, plaintiffs' attorney was successful in calling to the jury's attention the fact a blood specimen had been taken and tested for alcoholic content. The officers were also examined as to whether the result of defendant's blood-alcohol test influenced their opinions. Both McElroy and Reindl testified their initial opinions that defendant was not intoxicated were not affected by the information which came to them subsequently.\\nIn essence, plaintiffs were unsuccessful only in the sense that they were not able to introduce in evidence the test results by the device of asking the officers what those results were. Clearly, the plaintiffs could have introduced those results themselves as substantive evidence, provided the proper procedure was followed. Section 321B.10, The Code. However, in Lessenhop v. Norton, 261 Iowa 44, 52A53, 153 N.W.2d 107, 111, we said:\\n\\\"Before any result of a blood test analysis can be admitted in any civil or criminal case, the party seeking to introduce such evidence must first lay a proper foundation for its admission. Unless waived, this foundation must show that the specimen was taken by a duly-authorized person using proper sterile equipment, that it was properly labeled and preserved, that its care and transportation were proper, and also the identity of persons processing it so as to give the opposing party the opportunity to cross-examine as to the care and procedure used in the test.\\\"\\nClearly, counsel for the plaintiffs sought to bypass the procedure detailed in Lessen-hop by drawing out the test results in cross-examination of defendant's witnesses. We cannot approve such an attempt to circumvent the established foundation requirements. The questioning by plaintiffs' attorney on cross-examination regarding the blood test results called for patent hearsay and was properly excluded. Accordingly, we perceive no merit in plaintiffs' second issue stated for review.\\nIII. In their third issue stated for review, plaintiffs assert trial court erred in failing to instruct the jury regarding exemplary damages.\\nAn award of exemplary damages is never made as a matter of right. Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976). Exemplary damages are not allowed unless actual damages have been established. Engel v. Vernon, 215 N.W.2d 506, 517 (Iowa 1974); McCarthy v. J. P. Cullen & Son Corp., 199 N.W.2d 362, 368 (Iowa 1972).\\nIn these consolidated cases the jury found for the defendant and against each plaintiff. Even if the trial court erred in failing to instruct on the issue of exemplary damages, such error was cured by the jury verdict in favor of defendant. Shannon v, Gaar, 234 Iowa 1360, 1364-1365, 15 N.W.2d 257, 259-260. Accordingly, we must reject plaintiffs' third issue stated for review as being without merit.\\nWe find no error. This case is therefore affirmed.\\nAFFIRMED.\"}"
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+"{\"id\": \"10749605\", \"name\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee\", \"name_abbreviation\": \"Horn v. Haugh\", \"decision_date\": \"1973-07-03\", \"docket_number\": \"No. 55891\", \"first_page\": \"119\", \"last_page\": \"121\", \"citations\": \"209 N.W.2d 119\", \"volume\": \"209\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:04:24.291517+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and RAWLINGS, LeGRAND, REYNOLD-SON and HARRIS, JJ.\", \"parties\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee.\", \"head_matter\": \"Douglas L. HORN, Appellant, v. Charles HAUGH, Warden, Appellee.\\nNo. 55891.\\nSupreme Court of Iowa.\\nJuly 3, 1973.\\nJohn C. Platt and Jon M. Kinnamon, Cedar Rapids, for appellant.\\nRichard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William G. Faches, County Atty., for appellee.\\nSubmitted to MOORE, C. J., and RAWLINGS, LeGRAND, REYNOLD-SON and HARRIS, JJ.\", \"word_count\": \"957\", \"char_count\": \"5956\", \"text\": \"HARRIS, Justice.\\nIn a postconviction proceeding brought under chapter 663A, The Code, petitioner challenges his conviction of selling a narcotic drug in violation of section 204.2, The Code, 1966. His challenge attacks the constitutionality of section 204.18, The Code, 1966. That section placed on the accused the burden of proof to show any exception, excuse, proviso or exemption under the Uniform Narcotic Drug Act (since repealed). Although petitioner did not raise or suggest any such exception at his trial, he challenged his conviction on the basis of Stump v. Bennett, 398 F.2d 111 (8 Cir. (1968), cert. den. 393 U.S. 1001, 89 S.Ct. 483, 21 L.Ed.2d 466. He appeals the trial court's decree holding the section constitutional.\\nI. Petitioner cannot challenge the constitutionality of the section after having failed to do so during his trial. The question is controlled by section 663A.8, The Code, which provides:\\n\\\"All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.\\\" (Emphasis supplied)\\nIt is now suggested the clause \\\"or not raised\\\" appearing in section 663A.8 relates only to prior postconviction proceedings and does not preclude assertion of matters waived in the original trial. We do not agree.\\nAt the original trial petitioner surely knew if he had the ground he now seeks to assert in his defense. As it transpired, the trial court did not instruct on the issue at all, and never placed on petitioner the burden he now claims section 204.18 unconstitutionally imposed. How is he to claim the trial court, if requested, would not have instructed as he now claims it should ? A ground based on fact, in law, or mixed fact and law may be waived by failure to assert it.\\n\\\"This remedy is not a substitute for any remedy, incident to the proceedings in trial court .\\\" Section 663A.2, The Code.\\n\\\" (A) contention that the statute under which accused was prosecuted, or a provision thereof, is unconstitutional cannot be raised by a petition for post-conviction relief, since such question should have been raised by direct attack.\\\" 24 C.J.S. Criminal Law, \\u00a7 1606(12)b, page 721. See also Torres v. Warden of Md. Penitentiary, 227 Md. 649, 175 A.2d 594, cert. den. 369 U.S. 890, 82 S.Ct. 1164, 8 L.Ed.2d 290. The A.B.A. Standards, Post-Conviction Remedies, Approved Draft, section 6.1(c), page 20 provides in part:\\n\\\"Where an applicant raised in a post-conviction proceeding a factual or legal contention which he knew of and which he deliberately and inexcusably failed to raise in the proceeding leading to judgment of conviction, or having raised the contention in the trial court, failed to pursue the matter on appeal, a court should deny relief on ground of an abuse of process.\\nHere petitioner's attempt to use postcon-viction relief as a substitute for the simple statutory remedy of lodging objections to trial court's instructions, motion for new trial, and direct appeal, violates section 663A.2, The Code. See Parsons v. Brewer, 202 N.W.2d 49, 53 (Iowa 1972); State v. Weiland, 190 Neb. 1111, 206 N.W.2d 336 (1973); State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967).\\nSection 663A.8, The Code, cannot have the legislative intent suggested. If the phrase \\\"finally adjudicated or not raised\\\" referred only to a prior postconviction relief application, the petitioner could not litigate an issue previously intelligently waived (but never litigated), but could relitigate a question thoroughly threshed out and lost in trial and appeal. We reject the contention the clause \\\"or not raised\\\" in section 663A.8 is limited to prior postconviction proceedings. The failure to raise a defense in the original trial, unless excused as provided by the section, waives the issue in any future postconviction proceeding.\\nIn State v. Wetzel, 192 N.W.2d 762 (Iowa 1971) we held the section barred relitigation of previously adjudicated issues. In State v. Masters, 196 N.W.2d 548 (Iowa 1972) we held inadequacy or absence of counsel might be sufficient reason an issue was not asserted or was inadequately raised originally. Others might be imagined. Coercion is an example. See Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (filed April 2, 1973).\\nThe present case presents no situation excusing petitioner for not raising his constitutional question in the original trial, the \\\"proceeding that resulted in the conviction or sentence.\\\" He was well represented by competent counsel. He was not justified under section 663A.8 in awaiting the outcome of the trial before electing to raise the constitutional question. He may have believed there would be some tactical benefit in raising defenses piecemeal in successive proceedings. Such an imagined benefit is denied him by the statute.\\nII. We note his inability to raise the question does him no harm. After the filing of the decree appealed from we filed our opinion in State v. Lynch, 197 N.W.2d 186 (Iowa 1972). In Lynch we considered the precise question presented by petitioner and held the section constitutional.\\nAffirmed.\"}"
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+"{\"id\": \"10763476\", \"name\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee\", \"name_abbreviation\": \"Rick v. Boegel\", \"decision_date\": \"1973-03-28\", \"docket_number\": \"No. 54875\", \"first_page\": \"713\", \"last_page\": \"717\", \"citations\": \"205 N.W.2d 713\", \"volume\": \"205\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:21:45.840167+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.\", \"parties\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee.\", \"head_matter\": \"Richard L. RICK and Carol C. Rick, Appellants, v. Charles W. BOEGEL, Jr., Appellee.\\nNo. 54875.\\nSupreme Court of Iowa.\\nMarch 28, 1973.\\nRichard L. Rick, of Des Moines, pro se and for appellant Carol C. Rick.\\nKeyes & Crawford by Alvin G. Keyes and William R. Crary, Cedar Rapids, for appellee.\\nHeard before MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.\", \"word_count\": \"2076\", \"char_count\": \"12983\", \"text\": \"REYNOLDSON, Justice.\\nPlaintiffs, on December 24, 1970, filed their petition in this law action seeking to gain possession of certain stock certificates, or alternatively, the value of the shares of stock represented by the certificates. Plaintiffs alleged Thelma Langley Boegel (hereinafter decedent) had owned the stock and during her lifetime had assigned and transferred ownership by separate written instruments to plaintiffs, decedent's son and daughter-in-law.\\nPlaintiffs alleged decedent kept the stock certificates in a safety deposit box jointly leased by her and her husband (defendant here) and following transfer to them, decedent retained these certificates in the box for fear her husband would physically beat her if he discovered the transfer. Plaintiffs pleaded defendant refused to deliver the certificates to them upon proper request. Plaintiffs' petition was filed after decedent's death but prior to appointment of any administrator or executor of decedent's estate.\\nOn January 15, 1971, defendant filed a petition in probate asking for his appointment as temporary administrator of decedent's estate. The petition was granted.\\nOn January 22, 1971, defendant filed an answer to plaintiffs' law petition which denied plaintiffs were owners of the stock. On the same day, defendant, as temporary administrator, filed a petition of intervention alleging the stock was an asset of decedent's estate because the assignments, unaccompanied by delivery of the certificates, were ineffective to transfer ownership to plaintiffs.\\nOn February 2, 1971, plaintiffs filed a motion to dismiss the petition of intervention alleging appointment of defendant as temporary administrator was a void ex parte procedure. They further alleged if the assignment was valid the stock would not be an asset of the estate, and defendant, as an individual, was the only one who had an interest in having the estate a party to the law action since plaintiff, Richard L. Rick, and defendant were the sole heirs or intestate beneficiaries of decedent's estate.\\nOn March 5, 1971, defendant filed a motion to dismiss plaintiffs' petition as to him individually. Defendant's motion alleged he had made no claim to the stock individually except as a beneficiary of decedent's estate. He asserted he was not a necessary party because the certificates had been delivered to decedent's personal representative as estate assets. Therefore, defendant contended, no valid claim against him had been stated in plaintiffs' petition.\\nOn March 12, 1971, combined hearing was held on the numerous and prolix motions pending in the instant law action and the related probate proceeding. On March 22, 1971, trial court entered its order and rulings on motions. This disposition removed the temporary administrators (in all, three such fiduciaries had been ultimately appointed), appointed Merchants National Bank as executor, sustained plaintiffs' motion to dismiss the petition of intervention filed in the law action, and sustained defendant's motion to dismiss plaintiffs' petition as to him individually. Numerous other portions of trial court's ruling attempted to posture the litigation to the end that the real issue \\u2014 ownership of the stock \\u2014 could be determined. Apparently, this satisfied none of the parties.\\nOn April 20, 1971, plaintiffs, not knowing whether trial court's order of March 22 was final or interlocutory, filed application for permission to bring an interlocutory appeal to this court. On April 29, 1971, Merchants National Bank filed its declination to serve as executor. On June 8, 1971, the application for interlocutory appeal was granted allowing both plaintiffs and defendant to appeal from so much of trial court's order as each party deemed prejudicial. This appeal followed.\\nThese litigants confine their efforts to two issues: 1) whether trial court erred in dismissing plaintiffs' petition as to defendant individually, and 2) whether trial court erred in dismissing the petition of intervention filed by the defendant as temporary administrator. Of course our review of this law action is confined to errors properly assigned and argued. Rule 344, Rules of Civil Procedure; Copeland v. Stewart, 203 N.W.2d 195 (Iowa 1972).\\nI. Proper party defendant.\\nWe treat plaintiffs' appeal first. Plaintiffs assert trial court erred in sustaining defendant's motion to dismiss as to defendant individually. We agree and reverse.\\nInitially we note several general principles applicable when ruling on a motion to dismiss. A motion to dismiss should be sustained only when it appears to a certainty that plaintiff has failed to state a claim on which any relief may be granted under any state of facts which could be proved in support of the claims asserted in the petition. Iowa Truck Center, Inc. v. Davis, 204 N.W.2d 630 (Iowa, filed Feb. 21, 1973); Wheeler v. Waller, 197 N.W.2d 585 (Iowa 1972); Dragstra v. Northwestern State Bank of Orange City, 192 N.W.2d 786 (Iowa 1971); Osbekoff v. Mallory, 188 N.W.2d 294 (Iowa 1971). For the purpose of testing the legal sufficiency of a petition all its well pleaded facts are assumed true. Id.\\nA motion to dismiss may, not be supported by its own allegations of fact, not contained in- the petition under attack. Griffith v. Red Oak Community School District, 167 N.W.2d 166 (Iowa 1969); McCarthy v. McCarthy, 162 N.W.2d 444 (Iowa 1968); Bales v. Iowa State Highway Commission, 249 Iowa 57, 86 N.W.2d 244 (1957).\\nWhen the petition is not attacked Until after answer, the petition will be liberally construed in favor of plaintiff so as to effectuate justice, and pleader will be given advantage of every reasonable in-tendment. Iowa City v. Muscatine Development Company, 258 Iowa 1024, 141 N.W.2d 585 (1966); Ontario Livestock Commission Co. v. Flynn, 256 Iowa 116, 126 N.W.2d 362 (1964).\\nMotions to dismiss for failure to state a claim upon which relief can be granted must clearly specify wherein the pleading attacked is insufficient. Ke-Wash Company v. Stauffer Chemical Com pany, 177 N.W.2d 5 (Iowa 1970); Hagenson v. United Telephone Company, 164 N.W.2d 853 (Iowa 1969); Wernet v. Jurgensen, 241 Iowa 833, 43 N.W.2d 194 (1950); Wright v. Copeland, 241 Iowa 447, 41 N.W.2d 102 (1950).\\nIf any ground asserted in a motion to dismiss is good, trial court's ruling sustaining motion will be affirmed on appeal, even though ground upon which trial court based its ruling was not good. In re Lone Tree Com. School Dist. of Johnson & Louisa, 159 N.W.2d 522 (Iowa 1968); Crawford v. City of Des Moines, 255 Iowa 861, 124 N.W.2d 868 (1963). However, sustention of a motion to dismiss will not be upheld on a ground not asserted in trial court. Thompson v. Burke Engineering Sales Co., 252 Iowa 146, 106 N.W.2d 351 (1960); American Mutual L. Ins. Co. v. State Auto. Ins. Ass'n, 246 Iowa 1294, 72 N.W.2d 88 (1955).\\nWe now turn to the application of these general rules to the issue at hand. Eliminating all new factual allegations contained in defendant's motion to dismiss, the only specific ground stated in support of the motion was that defendant, as an individual, was not a necessary and proper party to the action. We need not determine whether the motion to dismiss was the proper mode of raising the issue, because we agree with the plaintiffs on the merits.\\nPlaintiffs .in essence pleaded an action in replevin. See chapter 643, The Code. The issue in replevin is the right to possession of the property on the date the action is commenced. Iowa Truck Center, Inc. v. Davis, supra; Marx Truck Line, Inc. v. Fredricksen, 260 Iowa 540, 150 N.W.2d 102 (1967); Cassel v. Western Stage Company, 12 Iowa 47 (1861); Kingsbury v. Buchanan, 11 Iowa 387 (1860). When both parties claim ownership of property in dispute, right of possession depends on ownership, and if nothing further appears, it is presumed that the ownei is entitled to possession. Varvaris v. Varvaris, 255 Iowa 800, 124 N.W.2d 163 (1963).\\nIn neither his motion to dismiss nor on appeal does defendant argue that ownership of stock can not be transferred without manual delivery of the certificates. That issue is not effectively raised in this appeal, so we do not decide it. But assuming as true all allegations of plaintiffs' petition, ownership of the investment securities was transferred to plaintiffs during decedent's lifetime, and therefore the personal representative of decedent had no right to possession of the certificates. Cf. \\u00a7 633.351, The Code.\\nWhen plaintiffs' petition was filed no personal representative of decedent had been appointed. According to the record available to us there is no actively serving personal representative at this time. Prior to filing their petition plaintiffs demanded delivery of certificates from defendant. Defendant failed to comply. Since at the time of the petition defendant had not yet been appointed as personal representative, the interest in the property he asserted by not complying with the demand must have been as an individual. We conclude that defendant, as an individual, was a proper party to this action. The case of Herd v. Herd, 71 Iowa 497, 32 N.W. 469 (1887) supports our conclusion. See generally Annot, 42 A.L.R.2d 418, 437-41. Trial court erred in sustaining defendant's motion to dismiss on any of the grounds stated in the motion.\\nII. Temporary administrator's intervention.\\nWe now treat defendant's appeal as temporary administrator and intervenor. His standing to appeal in that capacity, having been discharged, is not put in issue by plaintiffs. Defendant contends trial court erred in sustaining plaintiffs' motion to dismiss the temporary administrator's petition. The right to intervene in an action is usually raised by a motion to strike, or dismiss, the petition of intervention. Morse v. Morse, 247 Iowa 1113, 77 N.W.2d 622 (1956). In this instance we agree with defendant that the temporary administrator had the right to intervene, and reverse.\\nOur determination that defendant, as an individual, was a proper party, does not preclude the defendant, as subsequently appointed temporary administrator, from intervening. The test of right of intervention is \\\"interest\\\", not necessity. Rule 75, R.C.P.; Schimerowski v. Iowa Beef Packers, Inc., 196 N.W.2d 551 (Iowa 1972); State ex rel. Turner v. Iowa State Highway Com'n, 186 N.W.2d 141 (Iowa 1971). An interested party may intervene at any time prior to trial. Rule 75, R.C.P.\\nTo test the legal sufficiency of a petition of intervention, all allegations of that petition are assumed true. See 67 C. J.S. Parties \\u00a7 71(b), at pp. 1015-1016. The petition of intervention alleged decedent owned the stock at the time of her death. We can conceive of circumstances which under the pleadings might be proven to establish this ultimate factual allegation. Assuming that the stock was decedent's property at the time of her death, then decedent's personal representative had an obligation to take possession of the certificates. See \\u00a7 633.351, The Code (\\\"Every personal representative shall take possession of all the personal property of the decedent .\\\")\\nThe \\\"interest\\\" of the personal representative is obvious. In order to properly perform his fiduciary duty he must know who owns the stock and thus who has the right to possession. The personal representative is entitled to an expeditious determination of this issue which is binding on the estate in order that he may claim or disclaim the property.\\nSince intervention is remedial and is to be liberally construed to reduce litigation and expeditiously determine matters before the court, we hold the intervenor chose a proper mode of obtaining a binding determination of the issue. See Schimerowski v. Iowa Beef Packers, Inc., supra; Peters v. Lyons, 168 N.W.2d 759 (Iowa 1969); cf. \\u00a7 643.4, The Code.\\nAlthough we have treated the merits of the intervention, we now note that plaintiffs' motion to dismiss petition of intervention failed to clearly specify how the petition of intervention was deficient. The grounds asserted in the motion to dismiss consisted mainly of affirmative factual allegations. When ruling on the motion to dismiss, such factual allegations should be ignored. Trial court erred in sustaining plaintiffs' motion to dismiss intervention on the grounds asserted.\\nAs guidance to trial court on remand we point out that when a permanent and impartial personal representative is found he may be substituted as intervenor. See Rule 20, R.C.P. Trial court under certain circumstances has power to order pleadings to be recast or corrected. Rule 81, R.C.P.\\nReversed and remanded on both appeals.\"}"
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+"{\"id\": \"10767778\", \"name\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee\", \"name_abbreviation\": \"Lynch v. State\", \"decision_date\": \"1973-12-19\", \"docket_number\": \"No. 2-56258\", \"first_page\": \"502\", \"last_page\": \"502\", \"citations\": \"213 N.W.2d 502\", \"volume\": \"213\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:43:24.893147+00:00\", \"provenance\": \"CAP\", \"judges\": \"Submitted to MOORE, C. J., and Le-GRAND, UHLENHOPP, REYNOLD-SON and HARRIS, JJ.\", \"parties\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee.\", \"head_matter\": \"Robert LYNCH, Appellant, v. STATE of Iowa, Appellee.\\nNo. 2-56258.\\nSupreme Court of Iowa.\\nDec. 19, 1973.\\nDavid L. McCoid, Mt. Pleasant, for appellant.\\nRichard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Gary L. Wiegel, Co. Atty., for appellee.\\nSubmitted to MOORE, C. J., and Le-GRAND, UHLENHOPP, REYNOLD-SON and HARRIS, JJ.\", \"word_count\": \"293\", \"char_count\": \"1748\", \"text\": \"PER CURIAM :\\nDefendant entered a plea of guilty to a county attorney's information charging him with larceny of a motor vehicle in violation of section 321.82, The Code. He was sentenced to imprisonment and thereafter brought this postconviction proceeding on the claim he was only \\\"joy riding\\\" and was guilty of no more than operating without consent in violation of section 321.76, The Code. He asserts the position he now takes was so obvious at the time he entered his plea as to render the proceedings void as a violation of due process of law.\\nDefendant does not claim noncompliance with the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969). It is unnecessary to consider the substance of defendant's claim; it is enough to hold he is without authority to assert it. The rule is well established that \\\"[a] guilty plea voluntarily and intelligently made by a defendant constitutes an admission of guilt and when accepted by the court constitutes a conviction of the highest order. Such a plea waives all defenses and irregularities except that the information or indictment charges no offense and the right to challenge the plea itself. (Citations).\\\" State v. Burtlow, 210 N.W.2d 438, 439 (Iowa 1973). See also State v. McGee, 211 N.W.2d 267 (Iowa 1973); and State v. Kobrock, 213 N.W.2d 481 (Iowa 1973).\\nWe find no error. The judgment of the trial court must be and is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"10768728\", \"name\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees\", \"name_abbreviation\": \"Smith v. Iowa Employment Security Commission\", \"decision_date\": \"1973-11-13\", \"docket_number\": \"No. 247\", \"first_page\": \"471\", \"last_page\": \"474\", \"citations\": \"212 N.W.2d 471\", \"volume\": \"212\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:10:17.736303+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLD SON, JJ.\", \"parties\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees.\", \"head_matter\": \"Elvin L. SMITH, Appellant, v. IOWA EMPLOYMENT SECURITY COMMISSION and Capital City Mills, Appellees.\\nNo. 247.\\nSupreme Court of Iowa.\\nNov. 13, 1973.\\nNaomi S. Mercer and James F. Fowler, Des Moines, for appellant.\\nWalter F. Maley, Des Moines, for appel-lees.\\nHeard before MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLD SON, JJ.\", \"word_count\": \"1486\", \"char_count\": \"9224\", \"text\": \"LeGRAND, Justice.\\nThis appeal presents only one question \\u2014the sufficiency of notice given plaintiff under section 96.6(2), The Code. The precise issue before us has not been heretofore considered, and this is a matter of first impression. The trial court held the notice sufficient. We reverse. Unless otherwise noted, all statutory references are to the 1966 Code.\\nOn April 2, 1971, one of the Commission's deputies (who are now called representatives) ruled plaintiff had left his employment voluntarily and was therefore disqualified from receiving benefits under the Iowa Employment Security Law. The Commission asserts a notice of disqualification was mailed to plaintiff on that same date at his last known address, advising him both of the disqualification and of the time within which an appeal was permitted. The present controversy centers around that notice and the plaintiff's subsequent attempted appeal as permitted by sections 96.6(2) and 96.6(3), The Code.\\nSection 96.6(2) provides in part as follows :\\n\\\"The deputy shall promptly notify the claimant and any other interested party of the decision and the reasons therefor. Unless the claimant or other interested party, within five calendar days after the delivery of such notification, or within seven calender days after such notification was mailed to his last known address, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith.\\\"\\nWe accept for present purposes the Commission's argument that the five-day delivery provision applies only to notices served personally on a claimant by a Commission representative. We are concerned here only with the alternative method of notification by mail, which directs that an appeal must be taken \\\"within seven calendar days after such notification was mailed to [claimant's] last known address.\\\"\\nWe agree with the trial court there is substantial support for the deputy's conclusion that this statutory provision was complied with and is therefore binding on us as a finding of fact. Section 96.6(10), The Code; Iowa Malleable Iron Co. v. Iowa Employment Security Commission, 195 N.W.2d 714, 717 (Iowa 1972).\\nThis alone, however, does not dispose of plaintiff's appeal. He raises also a constitutional issue, alleging the statute deprives him of due process under both the 5th and 14th Amendments to the federal constitution and presumably section 9, article I of the Iowa constitution. This poses a legal question which we must review and decide.\\nThe difficulty of framing an all-inclusive definition of due process has long been recognized. 16 Am.Jur.2d, Constitutional Law, page 936 (1964); 16A C.J.S. Constitutional Law \\u00a7 567, pages 536-541 (1956). This trouble arises from the very dilemma which confronts us now \\u2014 what may be constitutionally permissible under some circumstances becomes patently unfair and intolerable under others.\\nIt has been said that \\\"due process is an elusive concept [whose] exact boundaries are undefinable and [whose] content varies according to specific factual contexts.\\\" (16 Am.Jur.2d, supra, at pages 937, 938.) It has also been held that due process \\\"is not susceptible of exact or comprehensive definition. Its meaning has been developed in the cases by a process of judicial inclusion and exclusion.\\\" (16A C.J.S., supra, at page 536.)\\nIt is clear, however, that when a hearing is afforded due process demands contestants be given notice thereof sufficient to permit a reasonable opportunity to appear and assert their rights. 16 Am. Jur.2d, Constitutional Law, pages 966-969; 16A C.J.S. Constitutional Law \\u00a7 628, pages 861-867; Eves v. Iowa Employment Security Commission, Iowa, 211 N.W.2d 324, filed October 17, 1973, and authorities there cited; cf. Davis, Administrative Law (one volume edition) pages 162-164 (1972).\\nOur Iowa Employment Security Law was enacted in 1936 for the avowed purpose of minimizing the crushing burden of involuntary unemployment which so often falls upon the unfortunate worker and his family. Section 96.2, The Code; Iowa Malleable Iron Co. v. Iowa Employment Security Commission, supra, 195 N.W.2d at 716. Clearly the chapter should be interpreted liberally to achieve that legislative goal whenever possible.\\nThe notice provisions of section 96.6(2) remain as they appeared in the original act. Until now that section has not been subjected to constitutional attack; and until lately it is doubtful if such an assault would have been considered valid. However, we have recently taken judicial notice of the \\\"continuing breakdown in United States mail deliveries [assuming] proportions of national disaster.\\\" Eves v. Iowa Employment Security Commission, Iowa, 211 N.W.2d 324, filed October 17, 1973. For discussion of a somewhat related problem, see Miami Dolphins, Ltd. v. Florida Dept. of Commerce, Fla.App.1971, 252 So.2d 396.\\nOur task now is to apply the notice provisions of section 96.6(2) to the facts before us in the light of present day conditions. We assume the statute is not unconstitutional on its face; we assume too it did not operate unconstitutionally when enacted. However, we hold the intent and purpose of the notice provisions of section 96.6(2) fail now because of circumstances beyond the control of any interested party \\u2014 -the Commission, the employer, or the claimant.\\nA reading of the statute discloses the legislature intended a claimant to have five days to appeal from an adverse decision rendered under section 96.6(2). In case of notice delivered to him personally, he is given five days to take an appeal. If it is mailed, he is allowed seven days from the day of mailing to do so. Clearly this was on the theory \\u2014 reasonable then \\u2014 that the notice would arrive in due course within two days of mailing. We do not believe the legislature contemplated a day would come when failure to effect delivery of mail in that period, even to nearby cities, would be commonplace.\\nOur holding in the Eves case is significant here, even though we considered there a departmental rule rather than a statute. Nevertheless our conclusion in Eves that a right to a hearing necessarily means a meaningful one with a real opportunity to appear and present one's case is persuasive in reviewing plaintiff's plight in the present appeal. His application for benefits was denied. Notice to that effect was mailed as required by statute. It reached him four days later, allowing only three days within which to seek out an attorney, advise himself of his rights, and decide if an appeal was advisable. Of course, all this could be done in three days; but is it reasonable to require it to be accomplished in that period, particularly in view of the provisions of the statute already referred to?\\nThe statute at best affords an abbreviated appeal period from this administrative holding. The time allowed is considerably longer in most cases. See Bezanson, Judicial Review of Administrative Action in Iowa, 21 Drake Law R. 1, appendix A, pages 54-57 (1971). When such a limited opportunity is further reduced by circumstances beyond anyone's control, an unsuccessful claimant is given little chance to take effective action to pursue his rights.\\nWe do not gainsay the right of the legislature to prescribe notice such as it did in section 96.6(2); nor do we presume to limit its prerogative of determining the length of such notice, assuming it does not offend against basic rules of fairness. We recognize, too, that notice may be constitutionally sufficient even though not received. 16 Am.Jur.2d, Constitutional Law, page 965 (1964). But the notice provided for must at least be one which is reasonably calculated to accomplish its purpose. We hold that a review of the statutory plan and purpose in this case leads to the inevitable conclusion that under present day conditions the provisions of the statute as to notice by mailing operated to deprive plaintiff of the due process he is entitled to and which the legislature intended him to have.\\nWe have said a statute admittedly valid and constitutional on its face may operate unconstitutionally under given facts. We did so most recently in Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973). See also 16 Am.Jur.2d, Constitutional Law, pages 355, 356 (1964). We believe the same rule is applicable here. We emphasize we are dealing with a factual situation in which the parties \\u2014 both the Commission and the plaintiff \\u2014 acted with diligence and dispatch. Nevertheless conditions which neither could control robbed plaintiff of his right anywhere or anytime to dispute the factual determination by which the Commission denied him benefits under the Iowa Employment Security Law.\\nWe say this was a denial of due process and we reverse with instructions that he have the appeal hearing provided for in sections 96.6(2) and 96.6(3), The Code.\\nReversed and remanded.\"}"
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+"{\"id\": \"10772292\", \"name\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants\", \"name_abbreviation\": \"Evangelical Lutheran Good Samaritan Society v. Board of Review of Des Moines\", \"decision_date\": \"1972-09-19\", \"docket_number\": \"No. 55047\", \"first_page\": \"509\", \"last_page\": \"513\", \"citations\": \"200 N.W.2d 509\", \"volume\": \"200\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:35:14.648419+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur, except HARRIS, J., who dissents.\", \"parties\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants.\", \"head_matter\": \"The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Appellee, v. BOARD OF REVIEW OF CITY OF DES MOINES, Iowa and L. L. Daubert, Chairman, Appellants.\\nNo. 55047.\\nSupreme Court of Iowa.\\nSept. 19, 1972.\\nHerrick, Langdon, Belin & Harris, Des Moines, for appellants.\\nBeving & Swanson and Harvey L. Harrison, Des Moines, for appellee.\", \"word_count\": \"2054\", \"char_count\": \"12735\", \"text\": \"MOORE, Chief Justice.\\nWe have before us defendants' appeal in three consolidated cases in which the trial court reversed the. decision of defendant Board of Review and held plaintiff's real property tax exempt for the years 1968, 1969 and 1970.\\nThe sole issue is the eligibility of plaintiff's Rest View property for tax exemption under Code section 427.1(9) which, as pertinent here, provides:\\n\\\"The following classes of property shall not be taxed:\\n\\\"9. All grounds and buildings used by literary, scientific, charitable, benevolent, agricultural, and religious institutions and societies solely for their appropriate objects and not leased or otherwise used with a view to pecuniary profit.\\nPlaintiff, The Evangelical Lutheran Good Samaritan Society, in 1922 was organized and incorporated in North Dakota as a nonprofit and religious corporation. At all material times it has been authorized to do business in Iowa. Plaintiff-corporation is not connected with or controlled by any church and receives no financial direction or any other kind of direction from any Lutheran Church body.\\nIn December 1967 plaintiff purchased Rest View Nursing Home from Charles Shindler. It was then one of 26 nursing homes in the City of Des Moines operating on the same general plan. Neither Rest View nor the other 25 nursing homes had ever made any claim for tax exemption. Plaintiff continued the same service in 1968 to Rest View's then 90 paying residents as that furnished by Shindler during 1967. In 1970 plaintiff changed from an extended care and nursing home to a custodial care home operation.\\nOn January 30, 1968 plaintiff filed its claim for tax exemption, alleging said nursing home was used for charitable, benevolent and religious purposes. That and similar claims filed in 1969 and 1970 were denied by defendant-Board of Review. The three cases arising therefrom were consolidated for trial in the district court.\\nIn addition to the facts already stated the trial evidence establishes plaintiff in 1967 had 118 homes with various types of operations in 14 states, 23 in Iowa. Most showed a profit. Some showed a loss. Of its 15-member board of directors six were administrators of facilities similar to Rest View. Their salaries ranged from $500 to $1000 a month. Rest View's administrator was being paid $850 a month. Rest View paid $360 a month as dues to the central office of the Society.\\nPlaintiff's total equity for its 118 centers was $17,201,211 as of December 21, 1967. The corresponding figure as of December 31, 1968, then 131 centers, was $19,794,964. For December 31, 1969, then with 132 centers, the equity increased to $22,533,006. In other words, plaintiff's increase was approximately $2,000,000 for each year here involved.\\nThe basic rate per patient per day at Rest View under plaintiff's operation as an extended care and nursing home was $14. As to most patients, that was paid by Medicare and Medicaid until those funds were no longer available. Mec^caid was paid at a cost per day plus two percent for profit. Plaintiff in 1970 changed to primarily a custodial care home. Patients needing nursing care were moved to other nursing homes in the Des Moines area. The patients cared for in Rest View thereafter were on public welfare. Plaintiff's first Rest View administrator testified: \\\"All patients have guarantors, son, daughter, or sister or somebody like that took care of the payments and the rest was welfare.\\\"\\nPlaintiff's auditor was unable to testify definitely whether during the years involved plaintiff had a net profit or a loss. The record does justify a finding of approximately $20,000 profit for 1968. The 1969 records are indefinite as the audit showed a possibility of an overcharge Medicaid claim of $105,000. The audit did not reflect a loss or profit due to uncertainty of the $105,000 item. Certainly plaintiff had not made such a refund. The change in 1970 from nursing to custodial care and the reduction from 90 to 41 occupants resulted in a loss of approximately $80,000.\\nLouis Shim, Rest View administrator at trial time, testified: \\\" we have lost sums of money on nursing home operations, and even though we have been subsidized by their funds, their funds are limited, and we cannot afford losing money to continue operating a nursing home.\\\"\\nThe court then asked, \\\"Subsidized from whom?\\\" Shim answered, \\\"From the Central Office.\\\" He further testified, \\\"If somebody offered the price we bought it for I'm sure we would like to sell.\\\"\\nI. The following applicable legal principles are well established. Statutes exempting property from taxation must be strictly construed. If there is any doubt upon the question, it must be resolved against the exemption and in favor of taxation. The burden is upon one claiming exemption to show that the property falls within the exemption statute. Wisconsin Evangelical Lutheran Synod v. Regis, Iowa, 197 N.W.2d 355, 356; Trinity Lutheran Church v. Browner, 255 Iowa 197, 200, 121 N.W.2d 131, 133 and citations in each. See also 84 C.J.S. Taxation \\u00a7 225.\\nAs we point out in Wisconsin Evangelical Lutheran Synod v. Regis, supra, at page 357, 197 N.W.2d, \\\"The current trend in other jurisdictions is to curb and restrict the type of exemption claimed here.\\\" Support for such a trend is found in the testimony of Mr. Regis, Des Moines City Assessor, that approximately 261/2 percent of the property in the City of Des Moines is exempt from taxation.\\nII. The objects and purposes of the corporation as expressed in its articles of incorporation are not controlling in determining the question of exemption. This question must be determined from the use made of the property rather than the declarations made in its articles of incorporation. South Iowa Methodist Homes, Inc. v. Board of Review, Iowa, 173 N.W.2d 526, 530; Readlyn Hospital v. Hoth, 223 Iowa 341, 344, 272 N.W. 90, 91; Theta Xi Bldg. Ass'n v. Board of Review, 217 Iowa 1181, 1183, 251 N.W. 76, 77.\\nIII. There is no evidence plaintiff ever cared for anyone as a matter of charity or benevolence. On the contrary the record discloses as to each it had assurance of payment by a public agency plus a guarantor. There is no evidence it operated as a religious institution. Plaintiff's claim of using its property solely for charitable and benevolent objects is not established by the evidence. $2,000,000 per year increase in assets and eagerness to sell a home showing a loss is strong evidence plaintiff's op eration was \\\"with a view of pecuniary profit\\\" which takes it out of the exemption provided for in Code section 427.1(9). Plaintiff failed to carry its burden of proving its tax exemption claim.\\nIV. Plaintiff, as did the trial court, relies heavily on our holding in South Iowa Methodist Homes, Inc. v. Board of Review, Iowa, 173 N.W.2d 526. It is factually different in several respects from the case at bar. South Iowa Methodist Homes, Inc., was a church organized, church sponsored, church disciplined and church financially-supported, single-unit home. Its real property was originally purchased with church funds and it received substantial contributions for its building fund from the South Iowa Annual Conferences. Its manager was an ordained Methodist minister assigned to that position by the Bishop. No application for admittance was ever turned down because of financial reasons. Some residents were nonpaying. South Iowa enjoyed the services of an active 150 Women's Guild. It could not have operated except for gifts and contributions.\\nReversed and remanded to the district court for entry of judgment in conformance herewith.\\nAll Justices concur, except HARRIS, J., who dissents.\"}"
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+"{\"id\": \"10776230\", \"name\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant\", \"name_abbreviation\": \"Garton v. Garton\", \"decision_date\": \"1995-06-21\", \"docket_number\": \"No. 93-1940\", \"first_page\": \"828\", \"last_page\": \"834\", \"citations\": \"533 N.W.2d 828\", \"volume\": \"533\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:22:14.829012+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.\", \"parties\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant.\", \"head_matter\": \"Cynthia GARTON, Appellant, v. Gilbert GARTON, Executor of the Estate of George R. Garton; Richard C. Garton; Security Bank of Kansas City; George R. Haydon, Jr., Personal Representative of the Estate of Edwin C. Borserine, Deceased, Appellees, and Alice Cockrell, Appellant.\\nNo. 93-1940.\\nSupreme Court of Iowa.\\nJune 21, 1995.\\nCarlton G. Salmons of Austin, Gaudineer, Austin, Salmons & Swanson, Des Moines, for appellant Cynthia Garton.\\nSteven C. Jayne, Des Moines, for appellant Alice Cockrell.\\nThomas M. Cunningham of Shearer, Tem-pler, Pingel & Kaplan, P.C., West Des Moines, for appellee George R. Haydon, Jr.\\nJames D. Meyer of the Meyer Law Firm, Chariton, for appellee Gilbert Garton.\\nJohn E. Orell, Jr., and Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, for appellee Security Bank.\\nRichard C. Garton, pro se, Pittsburg, Kansas.\\nConsidered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.\", \"word_count\": \"3218\", \"char_count\": \"20151\", \"text\": \"NEUMAN, Justice.\\nThis is a dispute among creditors over their right to claim some portion of defendant Richard Garton's inheritance. Plaintiff Cynthia Garton, Richard's former wife, petitioned for a creditor's bill lien to enforce her judgment for unpaid spousal and child support. Ruling by way of summary judgment, the district court found that Cynthia's lien against Richard's beneficial interest was inferior to claims already established in the proceeds by Richard's other creditors, defendants George R. Haydon, Jr. and Security State Bank. We affirm.\\nI. Background Facts and Proceedings.\\nCynthia and Richard Garton were formerly husband and wife. In October 1985, they borrowed $165,000 from Security Bank of Kansas City (hereinafter \\\"Security Bank\\\") secured by a deed of trust on jointly owned real estate. When the Gartons defaulted on the payments, Security Bank foreclosed the deed of trust and ultimately obtained a deficiency judgment against them in the sum of $110,000.\\nRichard Garton was also indebted to George R. Haydon, Jr., personal representative of the estate of Edwin C. Borserine, from whom Richard had borrowed $25,000. In May 1988, Haydon secured a judgment against Richard for the principal sum with interest. The judgment was registered in the Iowa District Court for Lucas County pursuant to the Iowa Uniform Enforcement of Foreign Judgments Act. See Iowa Code eh. 626A (1993).\\nContemporaneously with these financial difficulties, the Gartons' marriage deteriorated. A Nebraska decree of divorce was filed January 8, 1990. Under the decree, Cynthia was awarded alimony and child support for the parties' two sons. Richard has not fulfilled this obligation, and at least $27,000 remains unpaid. The decree also ordered Richard to hold Cynthia harmless for the debts to Security Bank and Haydon.\\nAlso in January 1990, Richard's father, Gordon Garton, died. As one of three heirs, Richard stood to inherit one-third of a gross estate totaling $900,000. He immediately negotiated a promissory note to the Hawkeye Bank in Chariton for a short-term loan of $125,000, giving as security an assignment of his beneficial interest in his father's estate.\\nMeanwhile, under a duly executed garnishment on Haydon's judgment, the sheriff of Lucas County, Iowa, garnished the executor of the Garton estate on April 20, 1990. Following notice to Richard and answer by the garnishee, the district court issued the following judgment and order condemning funds in the hands of the executor:\\nIt is hereby ordered that so much of said funds or property of judgment debtor in the possession of garnishee as is necessary to and will pay the judgment herein in the amount of $25,000 with interest thereon at the per diem rate of $14.28 from the date below written is hereby condemned and appropriated for application on plaintiffs judgment. The garnishee is hereby ordered to turn over so much of said funds or property to the sheriff of Lucas County, Iowa, for delivery to the plaintiff/judgment creditor to satisfy said judgment in accordance with distribution schedules made by the Probate Court, and subject to the payment of federal and state taxes and expenses of administration.\\nWhen Security Bank learned of Richard's potential inheritance, it also sought to stake its claim. A settlement reached between Richard and the bank in August 1990 provided that the bank would release all claims against Richard and Cynthia upon the payment of $90,000. The payment would be made pursuant to a contemporaneous assignment of estate proceeds, executed by Richard, which included the executor's agreement to be bound by the assignment, \\\"subject, however, to any superior claims of other creditors, or order of court directing the [executor] to do other than directed herein.\\\"\\nMore than a year later, just days before the executor filed his final report seeking court approval of the foregoing distributions along with the expenses of administration, Cynthia Garton filed a petition for a creditor's bill hen. See Iowa Code \\u00a7 630.16-.18. She sought a declaration that her Nebraska judgment for child support and alimony was entitled to full faith and credit in the Iowa district court; that she was entitled to a hen against Richard's undistributed share in his father's estate for the arrearage; and that her judgment was entitled to priority over those held by Richard's other creditors. Cynthia's mother, Alice Cockrell, filed a similar petition the following day based on a $30,000 judgment she had obtained against Richard on March 1, 1991.\\nAfter payment of taxes and administrative expense, Richard's anticipated share of the estate totaled no more than $120,000. Upon the agreement of ah parties concerned, the district court entered an order delaying distribution until the priority of competing claims could be determined. Orders were entered permitting the necessary parties to be interpleaded. Various answers and cross-claims were filed. Discovery was undertaken and eventually motions for summary judgment were filed by Haydon and Security Bank. Following hearing, the district court granted the motions. It ordered distribution of available funds in this order: Haydon, Security Bank, Cynthia, and Alice Cockrell. This appeal by Cynthia, joined by Alice Cockrell, followed.\\nII. Scope of Review.\\nBecause Cynthia's petition was filed in equity, our review would ordinarily be de novo. See Iowa RApp.P. 4. As between Cynthia and Haydon, however, the parties concede there are no disputed issues of material fact. Thus the question is whether the district court properly entered judgment for Haydon as a matter of law. Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984). As for the judgment favoring Security Bank, Cynthia claims the court's summary action was improper because a disputed fact issue exists over Cynthia's allegation of a fraudulent conveyance. Thus we review that claim in the light most favorable to Cynthia's resistance. The question is whether the alleged factual dispute is material and, if not, whether the district court properly applied the law. Ottumwa Hous. Auth. v. State Farm Fire & Casualty Co., 495 N.W.2d 723, 726 (Iowa 1993).\\nIII. Issues on Appeal.\\nCynthia attacks the district court's decision on three fronts. First, she claims Hay-don's lien was not properly perfected, thus rendering the garnishment and subsequent order condemning funds inferior to her own lien. She next claims that disputed facts surrounding Security Bank's assignment from Richard preclude summary judgment for the bank as a matter of law. She concludes with a public policy argument that her unpaid judgment for spousal and child support should take precedence over all competing judgments. We shall consider the arguments in turn.\\nA. Haydon judgment. Cynthia begins by claiming that any attempt by Haydon to garnish Richard's distributive share in the estate is prohibited by statute and at common law. The claim is entirely without merit.\\nIowa Code section 642.1 grants judgment creditors the right to garnish an executor \\\"for money due from decedent.\\\" This court long ago interpreted this statute as repealing the rule of custodia legis, a doctrine that formerly protected money or property in the hands of an executor from garnishment. Boyer v. Hawkins, 86 Iowa 40, 42-43, 52 N.W. 659, 659-60 (1892). This court specifically held in Boyer that the legislature intended by this repeal to permit an executor to \\\"be garnished as to a legacy or distributive share.\\\" Id. at 43, 52 N.W. at 660. The court reaffirmed Boyer in Geiger v. Gaige, 105 N.W. 1007 (Iowa 1907). There this court characterized as \\\"well-settled\\\" the right of a judgment creditor to garnish an executor for the distributive share of a beneficiary. Id. at 1008.\\nThe authority upon which Cynthia relies pertains solely to attempts by creditors to garnish an executor's personal funds for a decedent's debts, or attempts to garnish an estate for debts owed by the decedent. See, e.g., Shepherd v. Bridenstine, 80 Iowa 225, 226-27, 45 N.W. 746, 747 (1890); Marion County Bank v. Smith, 205 Iowa 203, 204-09, 217 N.W. 857, 858-59 (1928). Likewise the statute upon which Cynthia relies, Iowa Code section 633.430, speaks to the question of levy and execution under any judgment \\\"against a decedent or personal representative.\\\" It simply has no application to the garnishment of funds due a distributee.\\nCynthia next contends that Richard's January 1990 assignment to Hawkeye Bank of \\\"all right, title and interest\\\" in the estate of George Garton effectively exhausted the funds available to Haydon for garnishment in April 1990. She rightly notes that garnishment is effective only to the extent of a person's interest in the property garnished. Van Maanen v. Van Maanen, 360 N.W.2d 758, 761 (Iowa 1985). But, by its terms, Richard's assignment encumbered his distributive share only to the extent of his indebtedness to Hawkeye Bank. At the time the security was given, Richard's undistributed share was anticipated to be $250,000. The remainder was available for encumbrance as Richard saw fit. Moreover, the debt to Hawkeye was fully repaid well in advance of the order condemning funds in the garnishment proceeding.\\nFinally, Cynthia points to Iowa case law that suggests a garnishment standing alone \\\"creates no specific lien upon the property or money in the hands of the garnishee.\\\" Watts v. Southern Surety Co., 216 Iowa 150, 155, 248 N.W. 347, 350 (1933); see also Pierre v. Pierre, 210 Iowa 1304, 1309-10, 232 N.W. 633, 635 (1930) (no lien is obtained by garnishment, only a right to proceed against the garnishee personally). But see In re Aztec Concrete, Inc., 143 B.R. 537, 539 (Bankr.S.D.Iowa 1992); In re Yetter, 112 B.R. 301, 303 (Bankr.S.D.Iowa 1990) (holding as matter of Iowa law that garnishment creates lien as of date of service); Conklin v. Iowa Dist. Court, 482 N.W.2d 444, 446 (Iowa 1992) (garnishment proceedings constitute valid prepetition lien). She overlooks the fact, however, that Haydon rests his claim of priority, not on the garnishment alone, but on the subsequent judgment and order which condemned so much of Richard's property in the garnishee's hands as would satisfy Hay-don's debt plus accrued interest. This order condemning funds, secured more than one year before either Cynthia or Alice Cockrell filed their petitions to establish a creditor's bill lien, extinguished any right or interest Richard held in the funds so condemned as of the date of garnishment. Kinart v. Churchill, 210 Iowa 72, 75-76, 230 N.W. 349, 350 (1930).\\nWe simply find unpersuasive Cynthia and Alice Cockrell's bare assertion that their creditor's bill liens, granted pursuant to Iowa Code section 630.18 upon filing of petitions under section 630.16, so perfected their claims as to grant them priority over Hay-don's judgment as a matter of law. To the contrary, we believe equity dictates that the \\\"priority by execution\\\" rule applicable in the real property context should apply equally in the case of perfected executions on personalty. See Kesterson v. Tate, 94 Iowa 665, 63 N.W. 350, 351 (1895); Lippencott, Johnson & Co. v. Wilson, 40 Iowa 425, 427 (1875). The district court was correct in so ruling.\\nB. Security Bank's assignment. Cynthia's challenge to the judgment for Security Bank rests on her belief that a factual dispute exists over her claim that Richard's assignment to the bank was fraudulent and, therefore, invalid. She argues the controversy was not ripe for summary judgment. But reviewing the facts, as we must, in the light most favorable to Cynthia, we conclude that the court correctly ruled that no proof of fraudulent conveyance exists and thus Security Bank's assignment takes priority over Cynthia's subsequent filing as a matter of law.\\nIt is true that fraud committed in the assignment of an inheritance, whether actual or constructive, will invalidate the assignment. Klingensmith v. Klingensmith, 193 Iowa 350, 354-55, 185 N.W. 75, 77 (1921). A fraudulent conveyance is one in which the debtor, with the intent to delay or defraud, seeks to place assets beyond the reach of creditors, to the prejudice of their legal or equitable rights. Graham v. Henry, 456 N.W.2d 364, 366 (Iowa 1990).\\nIn the absence of statutory regulation, however, a debtor may prefer one creditor over another. First State Bank, Belmond v. Kalkwarf, 495 N.W.2d 708, 712 (Iowa 1993); Production Credit Ass'n of Midlands v. Shirley, 485 N.W.2d 469, 472 (Iowa 1992). So long as the creditor acts in good faith to protect its own interest, and does not accept the conveyance with the purpose of aiding a debtor's fraudulent motives, a preferential transfer will be honored. Shirley, 485 N.W.2d at 472; Rouse v. Rouse, 174 N.W.2d 660, 668 (Iowa 1970).\\nEach claim of fraudulent conveyance must be decided upon its own peculiar facts. Rouse, 174 N.W.2d at 667. The decision must be informed by a review of all the circumstances surrounding the transaction. Shirley, 485 N.W.2d at 472. To aid that determination, this court has identified the following badges, or indicia, of fraud: (1) inadequacy of consideration for the transfer; (2) insolvency of the debtor; (3) pendency or threat of third-party litigation; (4) secrecy or concealment; (5) departure from the usual method of business; (6) reservation of benefits to the debtor; and (7) retention by the debtor of possession of the property. Id. It is important to note that fraud may not be presumed; it must be proven by clear and convincing evidence. Id. at 473.\\nApplying this law to the undisputed facts before us, we conclude \\u2014 as did the district court \\u2014 that no legal basis exists to set aside Richard's assignment to Security Bank. First, valuable consideration was given by both Richard and the bank in exchange for the assignment. See First Nat'l Bank in Fairfield v. Frescoln Farms, Ltd., 430 N.W.2d 432, 435 (Iowa 1988). Entitled to recover $110,000 plus accrued interest on its deficiency judgment, the bank compromised and agreed to release both Richard and Cynthia upon payment of $90,000 out of Richard's inheritance.\\nClearly Richard and the bank were not related by blood, nor does the record contain proof that Security Bank knew of any pending litigation involving Richard as a debtor. At all times the property in question remained in possession of the executor, not Richard. Moreover, the bank's willingness to accept an assignment of future expectancy in satisfaction of debt does not depart from normal banking practices.\\nCynthia makes much of the fact that she was not advised about the assignment, thereby suggesting the transaction was cloaked in secrecy and, hence, fraud. However, the law does not require that notice of assignment be given. Broyles v. Iowa Dep't of Social Servs., 305 N.W.2d 718, 723 (Iowa 1981). The assignment was filed of record in Lucas County.\\nMore important, Cynthia advances no reasonable claim that she was prejudiced by the conveyance. In return for the assignment, she was released from her obligation to Security Bank, a personal liability that existed irrespective of Richard's legal duty to hold her harmless on the debt. In the absence of any proof that Security Bank acted other than in good faith to protect its interest, the district court correctly recognized the superiority of its assignment from Richard as a matter of law.\\nC. Public policy. As a final proposition, Cynthia seeks to reverse the court's ruling on the premise that public policy favors the payment of child support obligations ahead of other debts. She cites both statutory and case law authority that she believes supports her claim. Her reliance on the authority advanced, however, is misplaced.\\nCynthia first claims that Haydon's garnishment, even if valid, must be subordinated to her creditor's bill lien for unpaid child support in accordance with Iowa Code section 642.24. That statute reads:\\nThe court shall include in any order for garnishment a requirement that any amount garnished for the payment of a support obligation, whether or not the amount represents a current or delinquent support obligation, shall first be paid out of the garnished funds, after subtracting applicable fees related to the issuance of the specific garnishment, before any amounts garnisheed for other purposes are paid out of the garnisheed funds.\\nIowa Code \\u00a7 642.24. By its terms, the section provides for prioritization of funds generated within a particular garnishment. It does not, as Cynthia claims, compel the court to prioritize claims between competing creditors.\\nSection 642.24 presupposes garnishment by a creditor with multiple claims for different debts, among them unpaid support. In such a case, the statute makes plain that funds garnished must first be applied toward current or delinquent child support awards. But we find nothing in the language of section 642.24 to suggest that a court must review every garnishment order in light of other garnishment actions \\u2014 not then before the court \\u2014 which might seek to enforce the debtor's unsatisfied child support obligations. Such a requirement is neither compelled by the statute nor consistent with good sense.\\nAs for Security Bank's assignment, Cynthia claims it should be set aside as violative of the public policy granting child support obligations the highest priority. In support she cites In re Marriage of McMorrow, 342 N.W.2d 73, 76 (Iowa 1982), wherein this court elevated a parent's obligation of support above her homestead rights, and Anthony v. Anthony, 204 N.W.2d 829, 832-34 (Iowa 1973), where this court voided a parental contract that relieved a former spouse from the obligation to provide support. In neither case, however, was the court concerned with the competing claims of third-party creditors. They are thus distinguishable from the case before us. Cf. Smith v. Brown, 513 N.W.2d 732, 734 (Iowa 1994) (holding husband's lien against homestead is assignable to third party, but not subject to wife's judgment for unpaid child support that accrued after assignment but before lien ripened).\\nThere can be no doubt that our own legislature, and others, have wisely strengthened child support collection efforts in recent years. Moreover, neither judgment creditor disputes the fact that Richard has wrongly ignored his financial obligation to Cynthia and his sons. But neither beefed up legislation nor Richard's fiscal irresponsibility can justify the realignment of creditor priorities long established at common law. The right first acquired is, as a rule, superior to those that follow. Briley v. Madrid Improvement Co., 255 Iowa 388, 389-90, 122 N.W.2d 824, 825 (1963). Here both Haydon and Security Bank perfected their creditors' rights to Richard's inheritance long before Cynthia asserted hers. We know of no public policy demanding a reversal of their positions.\\nIV. Conclusion.\\nWe have considered all of the arguments advanced by Cynthia and her mother, whether discussed or not, and find them to be without merit. Accordingly, we affirm the judgment of the district court which granted priority to the claims of Haydon and Security Bank over the petitions for creditor's bill liens filed by Cynthia Garton and Alice Cock-rell.\\nAFFIRMED.\"}"
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+"{\"id\": \"10785834\", \"name\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees\", \"name_abbreviation\": \"Jansen v. Harmon\", \"decision_date\": \"1969-01-14\", \"docket_number\": \"No. 53171\", \"first_page\": \"323\", \"last_page\": \"330\", \"citations\": \"164 N.W.2d 323\", \"volume\": \"164\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:04:00.703385+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.\", \"head_matter\": \"Raymond W. JANSEN and Bernadine Jansen, Appellants, v. Ronald HARMON d/b/a Harmon Heating Service and Louie Katzman a/k/a Louis Katzman, Appellees.\\nNo. 53171.\\nSupreme Court of Iowa.\\nJan. 14, 1969.\\nRonald E. Runge, of Runge & Runge, Sioux City, for appellants.\\nJ. R. Miller, of Miller, Miller & Miller, Cherokee, for appellees.\", \"word_count\": \"3277\", \"char_count\": \"20340\", \"text\": \"MASON, Justice.\\nPlaintiffs Raymond W. and Bernadine Jansen appeal from trial court's ruling sustaining defendant Louie Katzman's special appearance attacking the court's jurisdiction of the subject matter of plaintiffs' action under the provisions of rules 66 and 104(a), Rules of Civil Procedure.\\nJansen and his wife had joined in a law action, individually alleging in separate divisions specific acts of negligence and the doctrine of res ipsa loquitur. Each sought separate recovery for injuries sustained by the husband when he was struck on the head and body by a wooden post falling down an elevator shaft from the second floor of Katzman's building.\\nMrs. Jansen's claim for damages is based on alleged loss of her husband's consortium. Her right to recover is coextensive with the right of her husband. Ordinarily the wife is not entitled to conse quential damages for injuries to her husband where defendants are not guilty of a tort which would give a right of action to the husband. Ziegler v. United States Gypsum Co., Inc., 251 Iowa 714, 715-716, 102 N.W.2d 152, 153, quoting from 41 C.J. S. Husband and Wife \\u00a7 401c, and citing other authorities. Mr. Jansen will therefore he referred to as plaintiff.\\nKatzman and his tenant Ronald Harmon, who operated as Harmon Heating Service, were named as defendants. Since Harmon is not a party to this appeal Louie Katz-man, sometimes known as Louis Katzman, will be referred to as defendant.\\nI.Plaintiff had been employed a number of years as a bookkeeper and salesman in a business owned and conducted by defendant under the trade name National Auto Parts Company. Defendant also owned the Booth building in Cherokee located some distance from the auto parts store. The operation and maintenance of this apartment and business building were not connected in any way with defendant's operation of his auto parts company.\\nJune 1, 1967, defendant directed plaintiff to stop at the Booth building on his way home from work and load various items belonging to National Auto Parts from the loading dock onto the freight elevator in the Booth building. While standing on the freight elevator plaintiff was struck on the head and body by a wooden post which fell down the elevator shaft inflicting the injuries giving rise to plaintiffs' action.\\nNeither plaintiff nor defendant had rejected any provision of the Workmen's Compensation Act, chapter 85, Code, 1966.\\nDefendant's special appearance challenged the jurisdiction of the district court on the ground plaintiff, at the time of injury, was defendant's employee acting in the course of his employment and had made claim for Workmen's Compensation which was accepted as compensable by defendant's carrier. He asserts plaintiff is precluded from bringing suit against him as a third party tort feasor. The special appearance was supported by affidavits showing that .proper proceedings had been had before the industrial commissioner, as the result plaintiff was drawing and accepting weekly compensation payments from Katzman's insurance carrier.\\nThe trial court held the Iowa Workmen's Compensation Act was plaintiff's exclusive remedy against defendant.\\nPlaintiff concedes in written argument that he was an employee of National Auto Parts, was within the scope of his employment at the time of injury and was being paid Workmen's Compensation benefits by National Auto Parts Company.\\nII. Plaintiffs assert the court erred in sustaining defendant's special appearance.\\nThey contend since plaintiff was not em-. ployed by defendant in his capacity as owner of the apartment building where the injury occurred, defendant cannot be given an employer's status in this separate entity and is subj ect to suit at common law.\\nPlaintiffs assert the present facts do not deal with the situation of concurrent or joint negligence of an employer and a third party tort feasor or with the case of an employee suing a negligent employer as third party tort feasor which plaintiffs concede is clearly prohibited by the Iowa Workmen's Compensation Act. They do maintain their action is based on defendant's negligence as owner of a building unrelated to plaintiff's employment, not as an employer.\\nThey further contend the issue whether plaintiff was precluded from joining defendant as a third party tort feasor was strictly a matter of defense and a factual situation rather than jurisdictional; the question cannot properly be determined by special appearance.\\nIII. We first consider plaintiffs' contention the court's jurisdiction of the subject matter cannot be properly determined by special appearance.\\n\\\"A special appearance has for its purpose the interposing of objections to jurisdiction, such being the sole question placed before the court by such a restricted appearance. [Citing authority]\\\" Tice v. Wilmington Chemical Corp., 259 Iowa 27, 34, 141 N.W.2d 616, 621.\\nSince a hearing had upon a special appearance is a special proceeding not tria-ble in equity, it is not reviewable de novo on appeal but only on errors assigned with t\\\"e court's findings .of fact having the force and effect of a jury verdict. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34-35, 141 N.W.2d at 621-622, and citations.\\nWhere \\\"a defendant, by special appearance, makes a direct attack upon the jurisdiction of a court the burden is on plaintiff to sustain the requisite jurisdiction, but once a prima facie showing has been made by him the burden of going forward with the evidence is upon defendant to overcome or rebut, if possible, such pri-ma facie case, [Citing authorities]\\\" Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 47, 143 N.W.2d 86-87, supplementing opinion in 141 N.W.2d 616.\\nIn determining the jurisdictional issue presented by a special appearance, courts accept allegations of plaintiff's petition as true and affidavits which may be submitted in support thereof, rules 80(b) and 116, R.C.P., stand as a verity unless contradicted. Tice v. Wilmington Chemical Corp., supra, 259 Iowa at 34, 141 N.W.2d at 621, and citations.\\nPlaintiffs allege in those divisions of their petition directed against Katzman that Jansen, having the status of an invitee, was injured by Katzman's negligence while on premises possessed by Katzman.\\nThe trial court found that at the time of his injury plaintiff was Katzman's employee acting within the scope of his employment; that National Auto Parts is simply defendant's trade name. There is substantial evidence to support these findings. As stated, plaintiff concedes he was being paid Workmen's Compensation benefits by defendant's insurance carrier.\\nPlaintiff's contention being considered in this division presents the question, Does the district court have jurisdiction of the subject matter of the action alleged?\\nThe rights and remedies of an injured employee against an employer for industrial injuries, that is personal injuries sustained by an employee arising out of and in the course of his employment, have been taken out of the general, original jurisdiction of the district court and placed in that class of cases exclusively in the jurisdiction of the industrial commissioner by chapter 85. Groves v. Donohue, 254 Iowa 412, 419, 118 N.W.2d 65, 69 and Price v. King, 259 Iowa 921, 926, 146 N.W.2d 328, 331.\\nSection 85.3, subsection 1, provides:\\n\\\"1. Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury\\\"\\nIn Groves v. Donohue, supra, 254 Iowa at 419, 118 N.W.2d at 68-69, we said:\\n\\\"Section 85.20, provides the rights and remedies provided in this chapter for an.employee on account of an industrial injury shall be exclusive of all oiher remedies, and further provides the employee shall be conclusively presumed to have elected to take compensation as provided until notice in writing shall have been served on the employer and industrial commissioner.\\n>Jc ?f{\\n\\\"Sections 85.4 through 85.15, Code of Iowa, 1962, provide that either or both the employee and employer may reject the provisions of the chapter. Section 85.17, Code of Iowa, 1962, provides where they have not given notice every contract of hire shall be construed as an implied agreement on the part of the employer to pay and on the part of the employee to accept compensation as provided in this chapter for all personal injuries sustained arising out of and in the course of the employment.\\\"\\nSection 85.22 provides in part:\\n\\\"Liability of others \\u2014 subrogation. When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against some person other than the employer to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. \\\"\\nPlaintiffs are seeking recovery for injuries which they allege were caused by Katzman's negligence. Defendant is urging that the industrial commissioner has exclusive jurisdiction because Jansen was his employee and the injuries were sustained in the course of Jansen's employment. For the district court to have jurisdiction of such subject matter it is necessary for the employee to allege either the rejection of chapter 85 as provided in sections 85.4 through 85.15 or the failure of the employer to insure as provided in section 87.21. Plaintiffs alleged neither condition precedent.\\nAlthough plaintiffs' petition does not state Jansen's injuries were sustained in the course of his employment by defendant, affidavits attached to defendant's special appearance so state and they are not controverted. A jurisdictional question of the subject matter of the action alleged is thus presented.\\n\\\"Where a special statute has placed a particular class of cases in the jurisdiction of the industrial commissioner unless certain conditions precedent are alleged, the district court does not have jurisdiction of the subject matter unless the conditions precedent are alleged. Hlas v. Quaker Oats Co., 211 Iowa 348, 233 N.W. 514.\\\" Groves v. Donohue, supra, 254 Iowa at 422, 118 N.W.2d at 70.\\nRule 104, R.C.P., provides: \\\"Exceptions. Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto, if one is required, or if none is required, then at the trial, except that:\\n\\\"(a) Want of jurisdiction of the person, must be raised by special appearance ; and want of jurisdiction of the subject matter may be so raised. \\\"\\nWe hold that the question of the court's jurisdiction of the subject matter was properly raised by defendant's special appearance. In support see Hlas v. Quaker Oats Co., 211 Iowa 348, 233 N.W. 514 and Bridgmon v. Kirby Oil Industries, Inc., 250 Iowa 229, 93 N.W.2d 771.\\nThis case is distinguishable from Fabricius v. Montgomery Elevator Co., 253 Iowa 860, 114 N.W.2d 297 and Groves v. Donohue, supra. In Fabricius the matters urged were strictly matters of defense and it was there held that such could not be raised by special appearance. In Groves defendants urged that the industrial commissioner had exclusive jurisdiction because of the fact situation surrounding the happenings of the injury and the relation of the parties. Negligence and deceit were the subject matter of plaintiff's claim there. Here, as previously noted, plaintiffs' claim is against Jansen's employer for negligence occurring during the course of employment.\\nIV. Plaintiffs further contend under their assigned error defendant cannot be given an employer's status in the separate entity as owner of the Booth building. They argue the proper approach is whether the Workmen's Compensation Act abolishes tort actions against third parties, not whether it expressly authorizes them.\\nWe agree \\\"a statute will not be construed as taking away a common law right existing at the time of its enactment unless that result is imperatively required [Citing authorities].\\\" Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 388, 101 N.W.2d 167, 174. In Price v. King, supra, 259 Iowa at 924, 146 N.W.2d at 329, we said, \\\"Clearly the act does not deny an employee the common law right to recover damages caused by the negligence of a third person even though he has received workmen's compensation benefits for the same injury. This court has so held. [Citing authorities].\\\"\\nSection 85.22 specifically reserves this right to sue at common law by an employee whose injury has been caused under circumstances creating a legal liability against some person other than the employer.\\nChapter 547, Code, 1966, provides permission to conduct a business under any trade, or assumed name upon compliance with certain conditions specified in the chapter.\\nLouie Katzman, possessor of the Booth building in Cherokee, is not a distinct and separate entity from Jansen's employer, Louie Katzman who conducts business under the trade name National Auto Parts Company. As owner of the building he is not a person other than Jansen's employer against whom plaintiffs may maintain an action as contemplated by section 85.22.\\nWilliams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d 557, 558, presented the question: \\\"Is the administrator of a partnership employee, who died as a result of injuries arising out of and in the course of his employment, precluded from maintaining a common-law action for negligence against the partner who owned the premises where the partnership business was carried on and where the employee was killed ?\\\"\\nIn holding that the Workmen's Compensation Law constituted the administrator's exclusive remedy, the court said:\\n\\\"Regardless of his status as owner of the premises where the injury occurred, an employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, 'a sort of Dr. Jekyl and Mr. Hyde.' \\\"\\nIn reaching its decision the court relied upon the earlier case of Winter v. Peter Doelger Brewing Co., Inc., 226 N.Y. 581, 123 N.E. 895. In that case plaintiff, employed as a delivery man by defendant brewing company, was injured in the course of his usual work while delivering beer to a saloon. Though the premises were located at some distance from the brewery, they were owned and controlled by defendant, and it was defendant's own negligent conduct- \\u2014 the improper maintenance of an elevator \\u2014 that occasioned the injury. Nevertheless, it was held that the employee could not resort to an action at law, since the employer's exclusive liability was under the Workmen's Compensation Law.\\nIn Bross v. City of Detroit, 262 Mich. 447, 247 N.W. 714, 715, plaintiff fireman was injured in a collision between the hook and ladder on which he was riding and a municipally owned street car. In affirming a judgment based on a directed verdict the court said:\\n\\\"It is contended by plaintiff that, as the city of Detroit owned and operated its street railway system, the agency that caused his injury, which was a function distinct from that in which he was employed, the city was 'some person other than the employer' within the meaning of the above-quoted provision of the statute.\\n\\\"No authorities are cited by the plaintiff to support this contention. It is too plainly untenable to require argument. Nor is there any merit to the claim that, because the city was operating a street railway system as a private enterprise, the Workmen's Compensation Law has no application.\\\"\\nDe Guiseppe v. City of New York, 188 Misc. 897, 66 N.Y.S.2d 866, 867, affirmed, De Guiseppe v. City of New York, 273 App.Div. 1010, 79 N.Y.S.2d 163, involved an action for damages for the death of an employee of the city's department of sanitation who, while performing duties within the scope of his employment, was struck by a municipally owned trolley car negligently operated by an employee of the city's board of transportation. There plaintiff contended that since the two agencies of the city were separate and distinct, the sanitation department not being a business for pecuniary gain while the board of transportation was, the decedent was not killed by the negligence of another in the same employ, hence the right to compensation was not the exclusive remedy.\\nIn rejecting such contention the court said:\\n\\\"The statute, of course, saves to an employee the right to proceed against a third party in a common-law action, but it is obvious that a defendant cannot simultaneously be two distinct entities, i. e., an employer and also a third party; for a third party is one who has no connection whatever with the relationship of employer and employee \\u2014 a stranger to that relationship. But here, the employer of the trolley car operator was the City of New York and the employer of plaintiff's intestate was likewise the City of New York. No amount of argument on plaintiff's part, however forceful or fanciful, can provide an escape from this salient fact and destroy the applicability of section 11 [Workmen's Compensation Act].\\\" The court relied on the authority of Williams v. Hartshorn, Winter v. Peter Doelger Brewing Co., Inc., and Bross v. City of Detroit, all supra, in reaching its decision.\\nThe De Guiseppe case and the three cases which we have cited as relied on by the New York court are again cited and followed in Walker v. City and County of San Francisco, 97 Cal.App.2d 901, 219 P.2d 487, 490. There decedent, a member of the San Francisco fire department, was on his fire truck responding to an alarm when a street car of the municipal railway ran into the truck at an intersection resulting in fatal injuries.\\nThe complaint shows decedent was an employee of the city and county which owns and operates the municipal railway. His widow had brought an action to recover damages for wrongful death. The city and county was granted judgment on the pleadings. The widow appealed contending that because the railway was operated by defendant in its proprietary capacity, while fire protection was a governmental function, the problem should be treated as if decedent had been an employee of one corporate entity, functioning govern-mentally, and the motorman and conductor (whose negligence was admitted for the purpose of the motion) were employees of another, functioning in a proprietary capacity. Defendant stood on the fact decedent had been fatally injured within the course of his employment and his dependents were limited, so far as his employer was concerned, to the award of compensation under California's Labor Code.\\nIn reaching its conclusion that the widow's exclusive remedy was under the compensation provisions of the Labor Code, the court quoted from Williams v. Hartshorn, supra, and other cases cited herein.\\n\\\"Attempts have several times been made to subdivide an employer, such as a municipality, and assert common-law rights on behalf of an employee of one city department against a different city department as if it were a stranger. These attempts have been consistently unsuccessful.\\\" 2 Larson's Workmen's Compensation Law, section 72.10.\\nAlthough none of the authorities cited above involve an employer operating under a trade name as here, the reasoning appearing in those opinions furnishes support for our position.\\nThe cases cited by plaintiffs in support of their position involve separate corporations having common officers and stockholders. They do not aid plaintiffs here.\\nThe Workmen's Compensation Act provided the exclusive remedy for plaintiffs.\\nThe action of the trial court in sustaining defendant's special appearance is\\nAffirmed.\\nAll Justices concur.\"}"
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+"{\"id\": \"11607988\", \"name\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant\", \"name_abbreviation\": \"State v. Smothers\", \"decision_date\": \"1999-03-24\", \"docket_number\": \"No. 97-1234\", \"first_page\": \"721\", \"last_page\": \"724\", \"citations\": \"590 N.W.2d 721\", \"volume\": \"590\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:32:38.051135+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. David Max SMOTHERS, Appellant.\\nNo. 97-1234.\\nSupreme Court of Iowa.\\nMarch 24, 1999.\\nLinda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.\\nThomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Michael Clark and Scott E. Schroeder, Assistant County Attorneys, for appellee.\\nConsidered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and CADY, JJ.\", \"word_count\": \"1122\", \"char_count\": \"7268\", \"text\": \"PER CURIAM.\\nThe defendant, David Smothers, was charged with and later convicted of two counts of third-degree burglary. See Iowa Code \\u00a7 713.1, 713.6A (1997). The charges were based on allegations that he burglarized a wig manufacturing business, Today's Modern Option, and an auto parts shop, Skerik's Auto Parts, which are located -within the same building.\\nOn appeal, the defendant argues the businesses are located in the same occupied structure; therefore, his conduct constituted only one burglary. He asserts his trial counsel was ineffective for failing to raise this issue. Finding the businesses are located in separate occupied structures, we affirm his convictions.\\nI. Scope of Review.\\nSmothers' claim of ineffective assistance of counsel is reviewed de novo. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). To establish ineffective assistance of counsel, Smothers must prove, by a preponderance of the evidence, both that his trial counsel failed to perform an essential duty and that prejudice resulted from the failure. State v. Terry, 544 N.W.2d 449, 453 (Iowa 1996). To sustain his burden of proof on the first prong, Smothers must overcome the strong presumption that his counsel's actions were reasonable under the circumstances and fell within the normal range of professional competency. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987).\\nTo the extent that Smothers' argument turns on the interpretation of a statute, our appellate review is at law. State ex rel. Lankford v. Allbee, 544 N.W.2d 639, 640 (Iowa 1996). Our ultimate goal is to determine legislative intent. State v. Schlemme, 301 N.W.2d 721, 723 (Iowa 1981).\\nII. Are the Businesses Located in Separate Occupied Structures?\\nAn individual who enters an occupied structure, without right, license or privilege, with the intent to commit a felony, assault or theft commits burglary. See Iowa Code \\u00a7 713.1. Smothers does not dispute he entered Today's Modern Option and Skerik's, but he claims both businesses are contained in the one occupied structure; therefore, his conduct constituted only one burglary.\\nThe building or facility at issue encompasses one-half of a city block. It is approximately 25,000 square feet, and was described by one of its owners as \\\"three buildings in one.\\\" Skerik's is located in the original, three-story portion of the facility. Later, a second building was constructed, which houses another business, MLS, Inc. Thereafter, a four-story building was constructed, in which Today's Modern Option is now located. Heavy brick walls were constructed between the buildings, and fire doors were erected connecting each of the buildings. Today's Modern Option leases its premises from the company which owns Skerik's and MLS.\\nIowa Code section 702.12 defines \\\"occupied structure\\\" as follows:\\nAn \\\"occupied, structure\\\" is any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an \\\"occupied structure\\\" whether or not a person is actually present. However, for purposes of chapter 713 [burglary], a box, chest, safe, changer, or other object or device which is adapted or used for the deposit or storage of anything of value but which is too small or not designed to allow a person to physically enter or occupy it is not an \\\"occupied structure.\\\"\\nThe crux of Smothers' argument rests on the meaning of \\\"structure.\\\" The Code does not define a \\\"structure\\\"; therefore, the term should be given its ordinary meaning. See State v. Jones, 524 N.W.2d 172, 174 (Iowa 1994) (\\\"Words of a statute are given their plain or ordinary meaning absent legislative definition or particular meaning in the law.\\\"). \\\"Structure\\\" is defined as \\\"something constructed or built.\\\" Webster's Third New Int'l Dictionary 2267 (unabr. ed.1976).Black's Law Dictionary defines \\\"structure\\\" as:\\nAny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind.\\nA combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.\\nBlack's Law Dictionary 1424 (6th ed.1990).\\nIn arguing that the businesses are contained within one occupied structure, Smothers isolates a portion of the latter definition of \\\"structure\\\" and argues Today's Modern Option and Skerik's Auto Parts are parts composing one structure, focusing on the accessibility between the two businesses by the interior fire doors.\\nWe find Smothers' narrow interpretation of \\\"structure\\\" unpersuasive. We have previously determined that the definition of occupied structure is broad. See State v. Baker, 560 N.W.2d 10, 13 (Iowa 1997). Clearly the portions of the facility at issue constitute \\\"something constructed or built\\\" or \\\"any construction.\\\" The facility's construction history and physical make-up demonstrates that the portions are independent working units which constitute \\\"[a] combination of materials to form a construction for occupancy [or] use.\\\"\\nToday's Modern Option and Skerik's are separate legal entities which occupy independent and distinct portions of the facility. Each has its own entrance from the street, each is separately owned and operated, and each is secured for the most part from access by the other. Although the businesses share common walls and are accessible by interior fire doors, those doors are used for very limited purposes. The evidence is undisputed that the businesses occupy separate premises and conduct their operations exclusive of the other.\\nWe conclude the businesses are located in separate structures used for the purpose of carrying on business. Therefore, Smothers entered two occupied structures.\\nIII. Conclusion.\\nBecause the two businesses are located in separate occupied structures, Smothers committed two burglaries. Smothers' trial counsel was not ineffective for failing to raise this issue. See State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998) (counsel not ineffective for failing to raise meritless issue). We therefore affirm the district court judgment.\\nAFFIRMED.\\n. Smothers was also convicted of two charges of second-degree theft and another third-degree burglary charge. He does not challenge these convictions on appeal.\\n. Other than one interior connecting door leading from Today's Modern Option to Skerik's which was used by Today's Modern Option to reach the loading dock, the interior access doors were used in fire or other emergency situations.\"}"
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+"{\"id\": \"11768713\", \"name\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee\", \"name_abbreviation\": \"American Fire & Casualty Co. v. Ford Motor Co.\", \"decision_date\": \"1999-01-21\", \"docket_number\": \"No. 97-1142\", \"first_page\": \"437\", \"last_page\": \"440\", \"citations\": \"588 N.W.2d 437\", \"volume\": \"588\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:36:34.650306+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by McGIVERIN, C.J., and HARRIS, CARTER, SNELL, and TERNUS, JJ.\", \"parties\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee.\", \"head_matter\": \"AMERICAN FIRE AND CASUALTY CO., Appellant, v. FORD MOTOR COMPANY, Appellee.\\nNo. 97-1142.\\nSupreme Court of Iowa.\\nJan. 21, 1999.\\nPhilip H. Dorff, Jr. and Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, for appellant.\\nPaul A. Williams of Shook, Hardy & Bacon, LLP, Kansas City, and R. Todd Gaffney of Finley, Alt, Smith, Scharnberg, May &\\u25a0 Craig, P.C., Des Moines, for appellee.\\nDawn R. Siebert, Des Moines, and Frederick M. Haskins of Patterson Law Firm, Des Moines, for amicus curiae-Iowa Insurance Institute.\\nConsidered by McGIVERIN, C.J., and HARRIS, CARTER, SNELL, and TERNUS, JJ.\", \"word_count\": \"1160\", \"char_count\": \"7101\", \"text\": \"HARRIS, Justice.\\nThis case calls for another interpretation of the economic loss theory in a products liability claim, a matter on which the courts widely disagree. The trial court dismissed this suit against a manufacturer because it involved a claim only for loss of the product itself. Although much could be said for the views of those courts in disagreement with us, we cast our lot in Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995); Nelson v. Todd's Ltd., 426 N.W.2d 120 (Iowa 1988); and Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124 (Iowa 1984). Although those eases involved strict liability and negligence claims that failed, they established an analysis that leads to a different conclusion here. We reverse and remand.\\nPlaintiff American Fire & Casualty Co. brought this action as subrogee of its insured Gary Foust. Foust owned a 1991 pickup truck which was designed, manufactured, and distributed by defendant Ford Motor Co. In 1996 the truck caught fire causing property damage to the truck and its contents. After discharging its obligation to Foust under its policy, American Fire brought this products liability action, claiming a defect caused the pickup to catch fire. The action was dismissed on Ford's motion, the trial court concluding dismissal was mandated by our holdings in the above-cited eases.\\nI. When reviewing an order sustaining a motion to dismiss, we view the allegations of the petition in the light most favorable to the petitioner, resolve doubts in the petitioner's favor, and uphold the ruling only if the petitioner could not establish his or her right to judicial review under any state of facts provable under the allegations of the petition. Lundy v. Department of Human Servs., 376 N.W.2d 893, 894 (Iowa 1985).\\nII. The economic-loss theory, although a much more general and doubtless older doctrine, presents special problems in products liability cases. The general doctrine prohibits tort recovery for purely economic losses, consigning such claims to contract law. Nebraska Innkeepers, 345 N.W.2d at 126. The differing ways in which various courts have applied the economic-loss theory in products liability cases is traced in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866-70, 106 S.Ct. 2295, 2300-302, 90 L.Ed.2d 865, 874-76 (1986), a case that established the principles to be applied when federal courts deal with admiralty law.\\nThe Nelson plaintiffs had purchased a curing agent to treat meat, the curing agent didn't work, and the plaintiffs meat spoiled resulting in lost value of the meat and damage to their business reputation. 426 N.W.2d at 121. We held \\\"that purely economic injuries without accompanying physical injury to the user or consumer or to the user or consumer's property is not recoverable under strict liability.\\\" Id. at 123 (emphasis added). The emphasized language carefully leaves room for the present case. We said the damage occasioned by the curing agent \\\"was not a result of anything hazardous or dangerous\\\" and did not occur because the agent damaged the meat in some active way, \\\"but because it failed to work at all.\\\" Id.\\nWe emphasized \\\"the line to be drawn is one between tort and contract rather than between physical harm and economic loss.\\\" Id. at 125. Factors to be considered are the nature of the defect, the type of risk, and the manner in which the injury arose. Id. at 124 (citing Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir.1981)). The harm to Nelson's meat fell on the contract side because it was a foreseeable result from a failure of the product to work properly. Id. at 125. The loss related to \\\"a consumer or user's disappointed expectations.\\\" Id. The Nelsons lost the benefit of their bargain and therefore must resort to contract law for remedies. Id. at 124.\\nWe said tort theory is generally available when the harm results from \\\"a sudden or dangerous occurrence, frequently involving some violence or collision with external objects, resulting from a genuine hazard in the nature of the product defect.\\\" Id. at 125 (emphasis added). An example was given: if a fire alarm fails to work and a building burns down, that is considered an \\\"economic loss\\\" even though the building was physically harmed. It was a foreseeable consequence from the failure of the product to work properly. But if the fire was caused by a short circuit in the fire alarm itself, it is not economic loss. Id. at 124 (citing Fireman's Fund Am. Ins. Cos. v. Burns Elec. Sec. Serv., 93 Ill.App.3d 298, 48 Ill.Dec. 729, 417 N.E.2d 131, 133 (Ill.App.Ct.1980)).\\nNelson was revisited in Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995), when the operator of a custom cattle feeding business sued the manufacturer of a growth hormone because the cattle treated with the hormone gained weight slower than expected, were sold later than expected, and the plaintiff lost money because of the delay. We said contract law protects a purchaser's expectation, interest that the product will be fit for its intended use, whereas products liability law concerns risk of injury to a person or the person's property through exposure to a dangerous product. 528 N.W.2d at 107 (cited sources omitted). It can be summarized like this: \\\"defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.\\\" Id. (quoting Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 471 N.W.2d 179, 185 (Wis.1991)).\\nThe common thread running through our cases rejecting recovery is the lack of danger created by the defective product. The problem with the curing agent in Nelson and growth hormone in Tomka had only to do with claimed failures to perform as expected. Each plaintiff suffered the loss of the benefit of their bargain. These cases do not bar recovery in the present ease, but rather support it. Both Nelson and Tomka emphasized that hazard and danger distinguished tort liability from contract law. They distinguished the disappointed consumers from the endangered ones. Fire has been characterized as a \\\"sudden and highly dangerous occurrence.\\\" Pennsylvania Glass, 652 F.2d at 1174. A truck starting itself on fire would certainly qualify more as a danger than as a disappointment.\\nThe dismissal of the case must be reversed and the matter remanded to district court to proceed on its merits.\\nREVERSED AND REMANDED.\\nAll justices concur except CARTER, J., who concurs in the result only.\"}"
\ No newline at end of file
diff --git a/iowa/12033566.json b/iowa/12033566.json
new file mode 100644
index 0000000000000000000000000000000000000000..91eaa3dce186c2d5acafe0f26eb3b382b7f7126c
--- /dev/null
+++ b/iowa/12033566.json
@@ -0,0 +1 @@
+"{\"id\": \"12033566\", \"name\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant\", \"name_abbreviation\": \"State v. Quintero\", \"decision_date\": \"1992-01-22\", \"docket_number\": \"No. 90-44\", \"first_page\": \"50\", \"last_page\": \"52\", \"citations\": \"480 N.W.2d 50\", \"volume\": \"480\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:38:03.010941+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and SNELL, JJ.\", \"parties\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Matias Rios QUINTERO, Appellant.\\nNo. 90-44.\\nSupreme Court of Iowa.\\nJan. 22, 1992.\\nLinda Del Gallo, State Appellate Defender and Shari Barron, Asst. State Appellate Defender, for appellant.\\nBonnie J. Campbell, Atty. Gen., Bruce L. Kempkes, Asst. Atty. Gen., William E. Davis, County Atty., and Joe Grubisich, Asst. County Atty., for appellee.\\nConsidered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and SNELL, JJ.\", \"word_count\": \"1231\", \"char_count\": \"7735\", \"text\": \"HARRIS, Justice.\\nDefendant's convictions of cocaine possession and fifth-degree theft were reversed by the court of appeals. Although we do so for different reasons, we agree that the defendant's convictions must be reversed. We accordingly affirm the decision of the court of appeals, reverse the judgment of the district court, and remand the case for a new trial.\\nDefendant Mat\\u00edas Rios Quintero and his three nephews were arrested for involvement in a drug sales operation. After his arrest on drug and theft charges, Quintero made incriminating statements to an investigating officer. Although the State vigorously contends otherwise, the court of appeals unanimously found the officer coerced the statements by threatening that Quintero's sixteen-year-old nephew would be tried as an adult and sent to prison unless Quintero cooperated.\\nThe officer's taped interview of Quintero satisfies us that the incriminating statements were coerced. The officer speculated that both Quintero and his nephew would be harmed in prison and hinted that the boy would be abused either physically or sexually. The officer also speculated that, unless Quintero's statements matched those of his nephews, he would anger the judge and jury and suffer greater punishment. The officer's statements were made even worse by being misleading. Quinte-ro's sentence would be imposed on the basis of Iowa Code section 902.3 (1989) (indeterminate sentence law), not any statement Quintero made to the officer. The officer also misled Quintero by suggesting that his nephew would automatically be tried as an adult, rather than as a juvenile under Iowa Code section 232.8(1).\\nI. The officer's statements and suggestions plainly qualify as coercion. State v. Mullin, 249 Iowa 10, 14, 85 N.W.2d 598, 600 (1957) (statement is coerced unless it is made of free will and not from fear of any threat of harm). Where, as here, it clearly appears a confession is induced by force, threats, or other improper inducements, the question is one of law for the court alone, and the statements should not be admitted into evidence. Id.\\nII. In Arizona v. Fulminante, \\u2014 U.S. -, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the United States Supreme Court, overruling its prior holdings, held that admission into evidence of an involuntary confession did not demand automatic reversal under the due process clause of the federal Constitution. The Fulminante holding implements a harmless error analysis.\\nIn the present case the court of appeals majority held in effect that Fulminante should not be followed in Iowa as a matter of Iowa constitutional law. The majority held that, under the due process clause of the Iowa Constitution, the admission of an involuntary confession should never be harmless error and should result in an automatic reversal.\\nThe court of appeals minority expressed a view that Fulminante should be followed in Iowa. Under the facts here, however, the minority concluded that admission of Quintero's involuntary confession was not harmless error. On further review the defendant contends that we, like the court of appeals majority, should eschew the Fulminante holding by applying an automatic reversal rule to the due process clause of the Iowa Constitution.\\nWe have consistently claimed authority to interpret provisions in the Iowa Constitution so as to expand on personal liberties as defined by the United States Supreme Court in its interpretations of identical or similar provisions in the federal Constitution. We have, however, been reluctant to exercise that authority. The court of appeals dissenters pointed out that, in Des Moines Joint Stock Land Bank v. Nordholm, construing a different right in our state Constitution, we said:\\nThere is no doubt that this court has the power, in interpreting the Constitution of Iowa, to reach a conclusion on the contract clause different from that reached by the Supreme Court of the United States when interpreting a similar clause of the Federal Constitution; that is to say, so long as the Iowa Constitution, as interpreted by this court, does not violate any provision of the Federal Constitution, there will be no complaint from the federal government.\\nBut assuming that to be true, good policy and a desired consistency between the two Constitutions rather dictate that the interpretation of the two clauses be similar. Such consistency in interpretation will accomplish consistency in operation.\\n217 Iowa 1319, 1335, 253 N.W. 701, 709 (1934).\\nThe court of appeals dissenters continued:\\nIowa courts have seen fit to accord special respect and deference to the United States Supreme Court interpretations of language in the federal Constitution which is similar to language in the Iowa Constitution. See State v. Davis, 304 N.W.2d 432, 434 (Iowa 1981). In fact, when the Iowa and federal Constitutions contain similar provisions, the provisions are usually deemed to be identical in scope, import, and purpose. Id. at 434; Redmond v. Ray, 268 N.W.2d 849, 852 (Iowa 1978); In Interest of Johnson, 257 N.W.2d 47, 49 (Iowa 1977); Chicago Title Ins. Co. v. Huff, 256 N.W.2d 17, 23 (Iowa 1977); Davenport Water Co. v. Iowa State Commerce Comm'n, 190 N.W.2d 583, 593 (Iowa 1971).\\nIII. We need not, and therefore should not, invoke the Iowa Constitution in resolving the present appeal; we have consistently refrained from answering constitutional questions when the issue can be otherwise resolved. This has long been our rule. Dubuque & Dakota Ry. v. Diehl, 64 Iowa 635, 640, 21 N.W. 117, 120 (1884) (we decide constitutional questions only when necessary . parties cannot compel us to do so by waiver of issues or agreement). It is still our rule. In re J.A.N., 346 N.W.2d 495, 498 (Iowa 1984).\\nThe present case lends itself to resolution without resorting to constitutional principles. A coerced confession should not be admitted in evidence because of its inherent lack of reliability. Our cases have long reversed \\u2022 criminal convictions for admitting involuntary confessions. The rule was developed, not as a constitutional principle, but because the law has no way of measuring the improper influence or determining its effect on the mind of the accused. See, e.g., State v. Jay, 116 Iowa 264, 266, 89 N.W. 1070, 1071 (1902). Our more recent cases, which added a constitutional dimension to the rule excluding involuntary confessions, nevertheless persisted in grounding the exclusions of coerced confessions on factors pointing to their lack of reliability. See State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982).\\nWe hold that Quintero's involuntary confession was inadmissible, not on the basis of a constitutional principle, but as a matter of the law of evidence. Its probative value, if any exists, is substantially outweighed by the danger of confusion of issues and would be misleading to the jury under Iowa rule of evidence 403.\\nWe need not speculate whether admission of a coerced confession could ever be harmless. It certainly cannot be said to be harmless in this case.\\nWe have also considered and now reject the State's other assertions, including a claim that Quintero waived error.\\nDECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED AND REMANDED.\\nAll Justices concur except NEUMAN, J., who concurs in the result.\"}"
\ No newline at end of file
diff --git a/iowa/12335551.json b/iowa/12335551.json
new file mode 100644
index 0000000000000000000000000000000000000000..c2932f7da82cbd12309b09878952ec324ba7a34c
--- /dev/null
+++ b/iowa/12335551.json
@@ -0,0 +1 @@
+"{\"id\": \"12335551\", \"name\": \"State v. Hall\", \"name_abbreviation\": \"State v. Hall\", \"decision_date\": \"2017-06-07\", \"docket_number\": \"16-0307\", \"first_page\": \"590\", \"last_page\": \"590\", \"citations\": \"902 N.W.2d 590\", \"volume\": \"902\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:50:38.233669+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hall\", \"head_matter\": \"State v. Hall\\n16-0307\\n06/07/2017\", \"word_count\": \"13\", \"char_count\": \"82\", \"text\": \"Affirmed in part, Reversed in part, and Remanded\"}"
\ No newline at end of file
diff --git a/iowa/12337464.json b/iowa/12337464.json
new file mode 100644
index 0000000000000000000000000000000000000000..291f3960a2a4f9bd923d6b4114b90c8ef589d65f
--- /dev/null
+++ b/iowa/12337464.json
@@ -0,0 +1 @@
+"{\"id\": \"12337464\", \"name\": \"Property Seized for Forfeiture from Flora, Matter of\", \"name_abbreviation\": \"Matter of Property Seized for Forfeiture from Flora\", \"decision_date\": \"2017-07-19\", \"docket_number\": \"16-0865\", \"first_page\": \"205\", \"last_page\": \"205\", \"citations\": \"906 N.W.2d 205\", \"volume\": \"906\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:56:57.159029+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Property Seized for Forfeiture from Flora, Matter of\", \"head_matter\": \"Property Seized for Forfeiture from Flora, Matter of\\n16-0865\\n07/19/2017\", \"word_count\": \"11\", \"char_count\": \"81\", \"text\": \"Affirmed\"}"
\ No newline at end of file
diff --git a/iowa/12555035.json b/iowa/12555035.json
new file mode 100644
index 0000000000000000000000000000000000000000..1a5255d2b34ac924c72260fdc926786a824ce9ef
--- /dev/null
+++ b/iowa/12555035.json
@@ -0,0 +1 @@
+"{\"id\": \"12555035\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. Emondre Montrel HENDERSON, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Henderson\", \"decision_date\": \"2017-10-11\", \"docket_number\": \"No. 15-2221\", \"first_page\": \"228\", \"last_page\": \"228\", \"citations\": \"909 N.W.2d 228\", \"volume\": \"909\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-27T21:03:12.209792+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nEmondre Montrel HENDERSON, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nEmondre Montrel HENDERSON, Defendant-Appellant.\\nNo. 15-2221\\nCourt of Appeals of Iowa.\\nFiled October 11, 2017\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"29\", \"char_count\": \"227\", \"text\": \"Sentence Vacated; Remanded for Resentencing.\"}"
\ No newline at end of file
diff --git a/iowa/12556192.json b/iowa/12556192.json
new file mode 100644
index 0000000000000000000000000000000000000000..9c0d13796a9d46b3706f8c4bfea9afaf63455da0
--- /dev/null
+++ b/iowa/12556192.json
@@ -0,0 +1 @@
+"{\"id\": \"12556192\", \"name\": \"STATE of Iowa, Plaintiff-Appellee, v. Brett Edward JONES, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Jones\", \"decision_date\": \"2018-01-10\", \"docket_number\": \"No. 17-0006\", \"first_page\": \"855\", \"last_page\": \"855\", \"citations\": \"912 N.W.2d 855\", \"volume\": \"912\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-27T21:03:14.655346+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nBrett Edward JONES, Defendant-Appellant.\", \"head_matter\": \"STATE of Iowa, Plaintiff-Appellee,\\nv.\\nBrett Edward JONES, Defendant-Appellant.\\nNo. 17-0006\\nCourt of Appeals of Iowa.\\nFiled January 10, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"25\", \"char_count\": \"185\", \"text\": \"Affirmed.\"}"
\ No newline at end of file
diff --git a/iowa/12560978.json b/iowa/12560978.json
new file mode 100644
index 0000000000000000000000000000000000000000..6fdd6f5adfc18a4001b95402aa88108aa8dd090e
--- /dev/null
+++ b/iowa/12560978.json
@@ -0,0 +1 @@
+"{\"id\": \"12560978\", \"name\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B., James A. Kernes and Cheryl Ann Kirk, Petitioners-Appellees, v. Edward Paul Bunch, Jr., Respondent-Appellant.\", \"name_abbreviation\": \"Guardianship D.B. v. Bunch\", \"decision_date\": \"2018-09-12\", \"docket_number\": \"No. 17-1559\", \"first_page\": \"535\", \"last_page\": \"535\", \"citations\": \"924 N.W.2d 535\", \"volume\": \"924\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B.,\", \"head_matter\": \"In the MATTER OF the GUARDIANSHIP OF D.B., L.B., and A.B.,\\nJames A. Kernes and Cheryl Ann Kirk, Petitioners-Appellees,\\nv.\\nEdward Paul Bunch, Jr., Respondent-Appellant.\\nNo. 17-1559\\nCourt of Appeals of Iowa.\\nFiled September 12, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"41\", \"char_count\": \"276\", \"text\": \"Affirmed.\"}"
\ No newline at end of file
diff --git a/iowa/12562555.json b/iowa/12562555.json
new file mode 100644
index 0000000000000000000000000000000000000000..d97c06a7dad3a7d9298b6b1781b049f30b05ba78
--- /dev/null
+++ b/iowa/12562555.json
@@ -0,0 +1 @@
+"{\"id\": \"12562555\", \"name\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children, J.I., Father, Appellant.\", \"name_abbreviation\": \"In re L.I.\", \"decision_date\": \"2019-01-23\", \"docket_number\": \"No. 18-1842\", \"first_page\": \"679\", \"last_page\": \"679\", \"citations\": \"927 N.W.2d 679\", \"volume\": \"927\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children,\", \"head_matter\": \"In the INTEREST OF L.I., G.I., and A.I., Minor Children,\\nJ.I., Father, Appellant.\\nNo. 18-1842\\nCourt of Appeals of Iowa.\\nFiled January 23, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"46\", \"char_count\": \"292\", \"text\": \"See Iowa R. App. P. 6.904\\nA father appeals the permanency order regarding his three children. AFFIRMED.\\nAFFIRMED.\"}"
\ No newline at end of file
diff --git a/iowa/12562929.json b/iowa/12562929.json
new file mode 100644
index 0000000000000000000000000000000000000000..17f0678eabb1e21a21dfcb8388fa74f08feeabea
--- /dev/null
+++ b/iowa/12562929.json
@@ -0,0 +1 @@
+"{\"id\": \"12562929\", \"name\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner Upon the Petition of Robert Allen Sterner, Jr., Petitioner-Appellee, And Concerning Mary Anne Dunham Sterner, Respondent-Appellant.\", \"name_abbreviation\": \"In re Marriage of Sterner\", \"decision_date\": \"2019-03-06\", \"docket_number\": \"No. 18-0409\", \"first_page\": \"156\", \"last_page\": \"156\", \"citations\": \"928 N.W.2d 156\", \"volume\": \"928\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Court of Appeals of Iowa\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner\", \"head_matter\": \"IN RE the MARRIAGE OF Robert Allen STERNER, Jr. and Mary Anne Dunham Sterner\\nUpon the Petition of Robert Allen Sterner, Jr., Petitioner-Appellee,\\nAnd Concerning Mary Anne Dunham Sterner, Respondent-Appellant.\\nNo. 18-0409\\nCourt of Appeals of Iowa.\\nFiled March 6, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"54\", \"char_count\": \"350\", \"text\": \"See Iowa R. App. P. 6.904\\nAFFIRMED AS MODIFIED.\"}"
\ No newline at end of file
diff --git a/iowa/2048583.json b/iowa/2048583.json
new file mode 100644
index 0000000000000000000000000000000000000000..61b66c8a2d0cbffee866a0fff193558784782f84
--- /dev/null
+++ b/iowa/2048583.json
@@ -0,0 +1 @@
+"{\"id\": \"2048583\", \"name\": \"Wamsley v. Lincicum et ux.\", \"name_abbreviation\": \"Wamsley v. Lincicum\", \"decision_date\": \"1886-04-21\", \"docket_number\": \"\", \"first_page\": \"556\", \"last_page\": \"559\", \"citations\": \"68 Iowa 556\", \"volume\": \"68\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:27:26.630352+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wamsley v. Lincicum et ux.\", \"head_matter\": \"Wamsley v. Lincicum et ux.\\n1. Trust: gift op land: mother to daughter: support op mother: DEED DESTROYED: DECREE QUIETING TITLE AS PER TERMS OF GIFT. Plaintiff gave to her daughter the land in question in consideration of one-third of her support during life. The mother executed a deed accordingly, but never delivered it, The daughter took possession and made improvements, and afterwards the mother destroyed the deed and sought to recover the land. The daughter set up the facts in a cross-petition, and asked to have the title quieted in her. Held that the daughter is entitled to the relief asked by her, but that the decree should provide for one-third of the mother\\u2019s support by the daughter, the annual amount of which should be determined by the court and made a lien on the land.\\nAppeal from Page Circuit Court.\\nWednesday, April 21.\\nAction to recover possession of land. The defendants pleaded an equitable defense, and by cross-bill claimed relief. There was a decree granting them the relief prayed for. Plaintiff appeals.\\nClarli do Parslow and F. B. Moore, for appellant.\\nW. W. Morsman, for appellees.\", \"word_count\": \"959\", \"char_count\": \"5641\", \"text\": \"Beck, J.\\nI. The .plaintiff brings this action to recover possession of forty-four acres of land. The defendants, Andrews and Marthena Lincieum, who are husband and wife, deny the allegations of the petition, and set up an equitable defense by way of a cross-bill, alleging that plaintiff, for the purpose of making provision for Marthena, her daughter, gave to her the land in controversy, and executed to her a deed of warranty therefor; that defendants took possession of the land under this gift in 1878, and have since continued therein, and have made valuable improvements upon it; and that the deed is now in the possession of plaintiff. The cause was tried as an action in equity, and a decree was rendered quieting the title in defendant Marthena.\\nII. The evidence, in our opinion, authorizes the conclusion that plaintiff did give and convey the land in controversy to her daughter, but she retained possession of the deed, and never caused it to be recorded. The defendants, relying upon this conveyance, entered into the possession of the laud under the gift, made improvements thereon, paid the taxes, and occupied and cultivated it as their own. All of this was with the consent and under the directions of the plaintiff. She recognized their rights by various acts. One only need be mentioned. A railroad was located over the land. The damages therefor were settled with and paid to defendants at plaintiff's own suggestion, who at the time declared that she had given and conveyed the laud to her daughter. She joined in the deed to the railroad company for the reason that her deed to the daughter had not been recorded. Prior to the commencement of this suit, a disagreement having occurred between plaintiff and defendant, she destroyed the deed.\\nIII. In view of the facts, \\u2014 the gift, conveyance, possession of the land and improvements made by defendant, \\u2014 we are of the opinion that Marthena has established her right to the land. But it quite as clearly appears that such rights are subject to an obligation to contribute one-third of the cost of plaintiff's support during her life-time. The evidence clearly shows that plaintiff owned a farm of a little more than a hundred and twenty acres, upon which she lived with her family, \\u2014two sons and her daughter, Marthena. Upon this farm the plaintiff depended for her support. She deeded separate and nearly equal portions of the land to each of her children, with the understanding that she was to live with them, and receive her support from them. Upon the marriage of her sons, each took possession of his share of the land, and upon the daughter's marriage she and her husband entered upon a separate occupancy of her part. That the defendants were to contribute to the support of plaintiff cannot be questioned; they admit the fact in their own testimony.\\nNow, while the court will enforce the conveyance to the daughter, it will only do it upon the terms of the gift. Defendants cannot claim equity without doing equity. They cannot enforce the gift, excepjt upon compdying with its terms, and while equity has jurisdiction of the case it will see that plaintiff's rights are protected and preserved. It will not cause defendants' title to the land to be quieted, and permit plaintiff to depend upon the unenforced obligation resting upon defendants to contribute to her support. It will p>rovide that she shall be made secure in the receipt of one-third of her support from defendants. To secure the rights of the parties, the cause will be remanded for a decree in the court below, quieting the title of the land in defendants and securing the rights of plaintiff. It shall be declared in the decree that defendants shall hold the land subject to a lien for one-third of the support of pdaintiff during her natural life, and the court below shall, upon supplemental pdeadings to be filed by plaintiff, determine and render a judgment for the amount defendants shall pay annually, or at other shorter pjeriods, for one-third of the support of plaintiff. Such judgment shall be a special lien on the land; and the decree establishing the amount and time of such payments shall provide that upon default of defendants, or either of them, to make payments, at the times prescribed, special execution shall issue, and the lands, or such part thereof as may be necessary, shall be sold to satisfy such judgment, and general execution shall issue, in case of any balance remaining unpaid, as in case of forelosure of a mortgage.\\nModified and Affirmed.\"}"
\ No newline at end of file
diff --git a/iowa/2051356.json b/iowa/2051356.json
new file mode 100644
index 0000000000000000000000000000000000000000..5ef196f5de99d2845fe5f69ad3cf19ec1f4bfa8d
--- /dev/null
+++ b/iowa/2051356.json
@@ -0,0 +1 @@
+"{\"id\": \"2051356\", \"name\": \"The Colfax Hotel Co. v. Lyon\", \"name_abbreviation\": \"Colfax Hotel Co. v. Lyon\", \"decision_date\": \"1886-10-25\", \"docket_number\": \"\", \"first_page\": \"683\", \"last_page\": \"689\", \"citations\": \"69 Iowa 683\", \"volume\": \"69\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:16:18.007032+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Colfax Hotel Co. v. Lyon.\", \"head_matter\": \"The Colfax Hotel Co. v. Lyon.\\n1. Practice on Appeal: rulings adverse to appellant alone considered. In an ordinary action, this court can review only such rulings of the trial court as were adverse to the appellant. Accordingly, where defendant, on three stated grounds, moved the court to direct a verdict for him, which motion the court overruled as to the first and third grounds, but sustained as to the second, and plaintiff alone appealed, held that, as the ruling of the court as to the sufficiency of the first and third grounds could not be reviewed, the j udgment must be reversed if the ruling as to the sufficiency of the second ground was erroneous.\\n2. Corporations: parol agreement to take stock: validity. A parol agreement made with the directors of a corporation to take certain shares of the stock thereof will be enforced, when there is no provision in the charter of the corporation or in the laws of the state requiring such contracts to be in writing.\\n3.--:-: action on: evidence: directors\\u2019 minutes. In an action upon an agreement to take corporation stock, alleged to havo been made at .a meeting of the directors, the minutes of the meeting were admissible to prove the acceptance of the offer by the corporation, but not to prove that the offer was made by the other party; and it is immaterial that the direction to make the recital a part of the record was given at a subsequent meeting.\\nAppeal from, Polla Circuit Court.\\nMonday, October 25.\\nPlaintiff is a corporation, and it brought this action on an alleged contract by defendant to take and pay for fifteen shares of its capital stock. The verdict and judgment were for defendant. Plaintiff appeals.\\nCummins db Wricjht, for appellant.\\nPhillips c& Day, for appellee.\", \"word_count\": \"2272\", \"char_count\": \"12981\", \"text\": \"Need, J.\\nThe plaintiff was incorporated on the eleventh day of June, 1884. Its articles of incorporation contain the following provision: \\\"The capital stock of the organization hereby created is fixed at sixteen thousand dollars, divided into shares of one hundred dollars each, all of which has been subscribed for, and are payable at the- call of the directors of said company, and as provided in said subscription.\\\" There were six incorporators, and, as we understand, those six persons had subscribed for all of the stock, but defendant was not of the number. It is alleged in the petition that oil the twenty-third of July, 1884, defendant subscribed for and agreed to pay for fifteen shares of said capital stock, and that such subscription and agreement' were made with the officers, directors and stockholders of the corporation, and at a meet ing of the corporation. Plaintiff proved on the trial that there was a meeting of the corporation on the twenty-third of Jnly, and that two of the incorporators, at that meeting, desired to cancel their subscriptions to the stock, and that the other incorporators present consented that this might be done. Defendant and four others, who were not then members of the corporation, were present at the time, and, after it had been agreed that said cancellation should be made, there was some discussion as to the disposition which should be made of the stock covered by said subscriptions, and it was agreed that it should be taken by the five persons present who were not members of the corporation. Defendant stated that he would take fifteen shares, and directed the secretary to set him down for that amount. The secretary wrote down the names of each subscriber, with the amount of stock he agreed to take, on a slip of paper, but no formal subscription was signed by any of the parties. After this he was proceeding to fill out the stock certificates for the parties, but before they were completed defendant left the meeting, stating that he desired to go to Des Moines on a train that was then approaching, that being h^s place of residence, and the meeting being at Colfax. But before leaving he directed the secretary to take the certificates to Des Moines on the next day, and promised that he would then pay for them. On the next day the secretary went to Des Moines, but, being unable to see defendant, he inclosed the certificates in an envelope, and left them with another person who, by his direction, delivered them to defendant on the same day. On the next day he telegraphed defendant calling his attention to the matter, and in answer to the dispatch defendant wrote him stating that, owing to sickness in his family, he had not been able to give the matter attention; and that, as the other stockholders wanted the stock, he might let them have it, or, if this could not be done, he would have to wait until he could get round, and promising, if the stock was not otherwise disposed of, to give the matter attention the next week. lie also returned the certificates to the secretary inclosed with his letter. Rut he subsequently refused to receive the stock or pay for it.\\nWhen plaintiff's evidence was closed, counsel for defendant moved the court toodirect the jury to return a verdict for him on substantially the following grounds: (1) That the allegation in the petition that defendant had subscribed for and agreed to pay for the stock is not supported by evidence of a parol agreement by him to take and pay for the same; (2) that the parol agreement to take and pay for the stock is invalid, and cannot be enforced; (3) that the articles of incorporation show that all the stock had been taken before the alleged agreement with defendant, and there was no competent evidence that any portion of it had been surrendered,- or that the corporation could then enter into a valid agreement for the transfer of any portion of its stock to him. The court sustained the motion on the second ground, and overruled it as to the other grounds.\\nI. Counsel for appellee contend that the only question which arises under the appeal is as to the correctness of the ruling of the circuit court in directing the verdiet *\\u00b0r ^ie defendant, and that the judgment ought not to be disturbed if the motion should pave peen sustained on any of the grounds alleged, regardless of whether the ruling was based upon those grounds or not. Rut we think this position cannot be maintained. The cause is an ordinary action, and we can review only such rulings of the trial court as were adverse to the appellant, and are properly assigned as errors. ' If, instead of moving the court to direct the verdict on the grounds alleged, counsel had asked the court to give the three propositions involved in their motion by way of instruction to the jury, and the court had given the one, and refused to. give the others, they would hardly contend that the appeal brought up any questions for our consideration except such as related to the correctness of the instruction given. But, in effect, that is what was done. With either of the propositions given to the jury by way of instruction, a verdict for the defendant would, under the proof, have as certainly resulted as from a positive direction by the court. In effect, the court told the jury that the second proposition was the law of the ease, and, as there was no controversy as to the facts, the verdict must be for defendant. The case, then, is in precisely the condition it would have been in if the proposition, instead of being incorporated in the motion, had been given as an instruction, and the jury, without an express direction from the court, had returned a verdict for defendant; and the only question we can consider on this branch of the case is as to the correctness of that proposition.\\nII. The agreement of defendant to take and pay for the stock was unconditional. He, in effect, directed the secretary to subscribe in his name for the amount of stock named, but no entry was in fact made in the stock-book or records of the corporation until after he had notified the officers of the company that he would not take or pay for the stock, so that the agreement of the parties rests entirely in parol; and the question is whether such agreement is valid and enforceable. It is said by Thompson, in his work on Liability of Stockholders, (\\u00a7 108,) that parol subscriptions for stock are not valid, and that contracts of that character can be proven only by written evidence. The following cases are cited in support of the text: Pittsburg & S. R. Co. v. Gazzam, 32 Pa. St., 340; Vreeland v. New Jersey Stove Co., 29 N. J. Eq., 188; Thames Tunnel Co. v. Sheldon, 6 Barn. & C., 341; Brouwer v. Appleby, 1 Sandf., 170. And Fanning v. Insurance Co., 37 Ohio St., 339, is cited by counsel as sustaining the same doctrine.\\nIt is to be observed, however, that the holding in each o\\u00ed these cases is based very largely upon provisions of the charters of the corporations, or of some general statute governing the question. It is not claimed, however, that there\\n. is any statute of this state which requires contracts of that character to be in writing, and we think there is no provision of plaintiff's articles of incorporation which has that effect. The provision quoted above, which is the only one at all relating to the subject, simply recites that the stock has all been subscribed, and is payable at the call of the directors, as provided in the subscription. It clearly does not create any limitation on the power of the corporation to contract for the disposal of its capital stock. - When the articles of incorporation were adopted, it was not contemplated that the company would ever have occasion to contract for the disposal of any portion of its stock. The stock had then all been subscribed for, and there was apparently no necessity for making any provision on the subject, and accordingly none was made. The question presented by the case, then, is whether, in the absence of any provisions as to the manner in which such contracts shall be entered into either in the charter or the general statutes of the state, a corporation may contract by parol for the disposal of its capital stock. In our opinion, it may. There is nothing in the nature of the contract which requires it to be in writing. For the purpose of effecting the object of its organization, the powers of the corporation, unless restricted by statute, are as broad as those of a natural person. Thompson v. Lambert, 44 Iowa, 239.\\nThere can be no doubt that, under our general statute governing the organization of such bodies, they may, by express provision of their articles of incorporation, clothe themselves with power to contract in that manner, or they might provide that they should be bound only when the contract was entered into in writing. But when no provision or limitation on the subject is made, and the object is one concerning which they have power to contract, it follows necessarily, we think, that they may contract in either manner, as may be determined by the incorporators or directors. The ability to do this is necessarily incident to the powers with which they are vested under the law. We think, therefore, that the cir cuit court erred in the ruling that the contract in question was void.\\nIII. On the trial the plaintiff offered in evidence the record of the proceedings had at the meeting at which the contract was entered into. But, on defendant's objection, it was excluded. This record shows that certain of the officers who had previously been elected tendered their resignations, and that these were accepted; also the election of other of the stockholders to those offices. It also contains the following recital: \\\"The stock was then all subscribed for, and the secretary instructed to issue accordingly. This subscription was made by the parties, or by their written order, and was taken and written down by the secretary by their direction and order, as follows.\\\" And this is followed by a list of the subscribers, with a statement of the amount of stock taken by each. This recital was not entered on the record at the time it was originally written by the secretary; but at a subsequent meeting of the corporation he was directed to enter it in the record of the meeting in question. A number of meetings, however, intervened between that one and the one at which the direction was made. This record was probably not competent evidence of an agreement by defendant to become a shareholder. He denied, in his answer, that he had made the agreement alleged, and he had no part in making the record. He could not, therefore, be bound by its recitals as to his agreement. But the burden was on plaintiff to prove its acceptance of whatever proposition or offer he had made at the meeting to take the stock; and the record was competent evidence to show acceptance, and it should have been admitted for that purpose. It is immaterial, we think, that the direction to make the recital a part of the record was made at a subsequent meeting. Plaintiff had the right, at any time, to correct its record in accordance with the facts. The judgment will be reversed, and the cause remanded fora new trial.\\nReversed.\"}"
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+"{\"id\": \"2063606\", \"name\": \"Thomas v. The Farley Manufacturing Company et al.\", \"name_abbreviation\": \"Thomas v. Farley Manufacturing Co.\", \"decision_date\": \"1888-10-18\", \"docket_number\": \"\", \"first_page\": \"735\", \"last_page\": \"740\", \"citations\": \"76 Iowa 735\", \"volume\": \"76\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:23:13.864094+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas v. The Farley Manufacturing Company et al.\", \"head_matter\": \"Thomas v. The Farley Manufacturing Company et al.\\n1. Pleading: demurrer : \\u201c not entitled to relief demanded : \\u201d when not well taken. A .demurrer based on tbe ground that \\u201c the facts stated in the petition do not entitle plaintiff to the relief demanded,\\u201d is properly overruled where the prayer is for general relief, and the petition shows that plaintiff is entitled to some relief. Accordingly, where the petition showed that defendant had levied an attachment upon property on which she held a valid and duly recorded mortgage, and that she had duly notified him of her lien, and given him a statement of the nature and amount of the debt secured by the mortgage, but that he refused to release the property, though neither he nor the attachment plaintiff had paid or tendered her the amount of the debt nor deposited it with the clerk, and she thereupon prayed for an injunction and for general relief, held that, if she was notentitled to an injunction, she was entitled to judgment settling and determining her right of possession, and that a demurrer on the ground above stated was properly overruled. Though the action for such relief alone should have been brought at law, an error as to the kind of proceedings is no ground for demurrer.\\n2. Chattel Mortgage: levy on mortgaged property : injunction to restrain. A mortgagee of chattels is not entitled to an injunction to restrain an officer from levying on the mortgaged chattels until such officer or the execution or attachment creditor shall first pay or deposit the amount of the mortgage debt; because (1) the mortgagee has several remedies at law, which will be presumed to be adequate until facts are pleaded showing the contrary, and (2) the allowing of an injunction in such a case would deprive the attaching or execution creditor of the rights conferred upon him by chapter 117, Laws of 1886, enabling such creditors to reach the mortgagor\\u2019s interest in mortgaged chattels.\\nAppeal from Cerro Cor do District Court. \\u2014 Hon. John B. Cleland, Judge.\\nFiled, October 18, 1888.\\nDefendant instituted a suit on a money demand against plaintiff, in which they sued out an attachment, on which, the sheriff seized a stock of groceries. Plaintiff then brought this action, alleging in her petition that she holds a mortgage on the attached property, which was duly recorded before the levy; and thatimmdiately after the seizure she gave the sheriff notice, in writing, of her claim, and demanded the release of .the property, also that she gave him a statement of the nature and amount of the debt secured by the mortgage, but that he had refused to release the property ; and that neither he nor the plaintiff in the action had paid or tendered to her the amount of the debt, nor had they deposited the amount with the clerk. She prayed that a temporary writ of injunction issue restraining defendants from holding or taking the property under the attachment, or in any manner interfering with it, without first tendering or depositing the amount of her debt; and that upon the final hearing suchinjunction.be made perpetual; and for general relief. The temporary writ having been allowed and served, defendants appeared, and demurred to the petition. They also filed a motion to vacate the injunction. The district court overruled the demurrer ap.d motion, and, defendants electing to stand on that ruling, judgment was entered for plaintiff, making the injunction perpetual. Defendants appeal.\\nD. W. Hum and \\u00fctt Bros., for appellants.\\nRichard Wilber, for appellee.\", \"word_count\": \"1785\", \"char_count\": \"10478\", \"text\": \"Reed, J.\\n\\u2014 I. The ground of the demurrer was that \\\" the facts stated in the petition do not entitle plaintiff to the relief demanded.\\\" ,As stated above, the prayer of the petition was for an injunction restraining defendants from seizing, taking or holding said mortgaged property under and by virtue of said writ of attachment, or in any manner interfering with the same, without first paying or tendering or depositing the amount of said mortgage debt, and for general relief. The question which has been argued by counsel on both sides is whether, on the allegations of the petition, plaintiff was entitled to the particular relief demanded, viz., the-injunction. Conceding, for the present, that she did not show herself entitled to that relief, a question we will have occasion to consider hereafter, we. think that under the prayer for general relief she was . entitled to have determined any question of right which arises on the allegations of fact in the petition. The question raised by the demurrer is not merely whether she was entitled to that particular relief, but whether she was entitled to any relief whatever. Under a general prayer the. party may be awarded any remedy afforded by the law for the particular injury or wrong complained of. The petition alleges a state of facts which clearly entitles plaintiff to the possession of the property. By the conditions of the mortgage, she had the right, at any time she might deem it necessary for the protection of her rights, to take possession of the property. It* is alleged that the mortgage was given to secure a valid and existing debt, and that it was duly recorded before the levy. Under the general prayer the question as to her right of possession might have been settled and determined by the judgment. It makes no difference that questions as to the right of possession of personal property are within the jurisdiction of courts of law. An error of plaintiff as to the kind of proceedings adopted is not a ground of demurrer. Such error does not cause the abatement or dismissal of the action, but the remedy therefor is by motion to change to the proper proceeding. Code, sec. 2514. We are of the opinion, therefore, that the demurrer was properly overruled.\\nII. The grounds of the motion to vacate the injunction, in substance, are that plaintiff has an adequate remedy at law, and that the petition does not state facts upon which an miunction x d can be allowed. If the judgment had determined and settled the rights,of the parties with reference to the property, as might have been done under the general prayer of the petition, there would have been no necessity, perhaps, to consider the questions raised by the motion. For, with a judgment determining the validity and priority of plaintiff's mortgage, defendants would not have been prejudiced by the injunction. But the judgment does not do that. It simply perpetuates the injunction, which, as stated above, restrains defendants merely from interfering with the property unless they first pay or deposit the amount of the mortgage debt. Giving to the language of the petition the broadest meaning of which it is capable, it amounts to \\u2022 no more than an allegation that defendants have committed a trespass upon plaintiff's rights in the property; and nothing more than that has been claimed for it. Now, it is elementary that courts of equity will not interfere, by injunction, to prevent a mere trespass, unless the right invaded or the act threatened, is of such a character that such interference appears to be necessary for the prevention of an irreparable injury. If the party may be fully protected or indemnified by the ordinary processes' of the law, the courts will remit him to the remedy thus afforded. 1 High, Inj., sec. 697; Council Bluffs v. Stewart, 51 Iowa, 385.\\nOne whose personal property has been unlawfully, or wrongfully taken from his possession is afforded a variety of remedies by our law. He may sue for the recovery of the property, and in such action he may have judgment, at his election, either for its return or for its value. He may also sue the wrong-doer for the trespass. Or if the seizure, as in the present case, was made on a writ or process against another, he may, by intervening in the action, have his right summarily determined. Thus it appears that plaintiff has ample remedy at law for the wrong of which she complains ; and there is no showing in her petition that such remedy would not haye been '.adequate. There is no allegation that defendants are insolvent, and there is nothing either in the character of the property, or her right in it, to take the case out of the ordinary rule. True, she alleges generally that she will sustain irreparable injury unless defendants are. restrained from interfering with the property. That, however, is but the statement of a general conclnsion. It is not shown by any statement of facts that such result would follow.\\nBut there is another consideration which we think is equally conclusive of the question. Chapter 117, Laws Twenty-first General Assembly, prescribes a mode by which creditors of the mortgagor of personal property may reach his interest in the' property. They may pay of tender to the mortgagee, or deposit 'with the clerk, for his use, the amount of the debt secured by the mortgage ; and thereupon they may seize the property on execution or attachment, and apply the proceeds, in excess of the amount paid or deposited, in satisfaction of their debts. The judgment, in effect, compels defendants to pursue that course, or abstain from all further interference with the property. But the fourth section of the act provides that nothing contained in it shall in any way affect the right of any creditor to contest, for any reason, the validity of the mortgage. Under that provision, the creditor may contest the right of the mortgagee upon any ground that goes to its validity. But before he can do that (except, perhaps, by an action in chancery, to which, however, he is not bound to resort), he must acquire an apparent lien upon the property ; for until he has acquired such lien he would have no standing to dispute the mortgage. But he can acquire a lien only by levying on it. Now, if the mortgagee is entitled to the remedy afforded by an injunction after the levy, he is equally entitled to it before that; for he is not required to wait until the threatened injury has occurred before applying for the remedy. So that' by that means he could prevent the creditor from acquiring the interest, which will enable him to test by an ordinary action the validity of the mortgage. It is true perhaps, that he could allege its invalidity in the injunction proceeding. But he ought not, by resort to that means, to be compelled to try the question in a court of chancery rather than in court of law. We thing, therefore, that the court erred in overruling the motion, and the judgment will be\\nReversed.\"}"
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+"{\"id\": \"2068558\", \"name\": \"Fitch et al. v. Reiser\", \"name_abbreviation\": \"Fitch v. Reiser\", \"decision_date\": \"1890-01-22\", \"docket_number\": \"\", \"first_page\": \"34\", \"last_page\": \"40\", \"citations\": \"79 Iowa 34\", \"volume\": \"79\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:06:41.640202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fitch et al. v. Reiser.\", \"head_matter\": \"Fitch et al. v. Reiser.\\nDeed: undue influence : presumption. Where a man over eighty-years old, and of feeble mind, deeded, substantially, all of his property to his daughter, to whom alone he looked for advice, and whose control of him was absolute, and the deed was without consideration, held, in an action by the other heirs to set it aside, that it was incumbent upon the daughter, in order to sustain the deed, to show that it was made voluntarily, and without the exercise of any influence on her part, or in her behalf, to procure the same. (Compare Leighton v. Orr, 44 Iowa, 679; Spargur v. Hall, 62 Iowa, 498.)\\nAppeal from Chiclca-sato District Court. \\u2014 Hon. L. O. Hatch, Judge.\\nFiled, January 22, 1890.\\nThis is an action in equity by which the plaintiffs seek to set aside and annul a deed of certain real estate which was executed by James D. Fitch to the defendant, Martha M. Reiser. The plaintiffs and the defendant are the children of said Fitch. Upon a final hearing upon the merits the district court granted the prayer of the petition, and annulled the deed. Defendant appeals.\\nJ. H. Powers, for appellant.\\nJ. W. SandusTcy, for appellees.\", \"word_count\": \"2052\", \"char_count\": \"11448\", \"text\": \"Rothbook, C. J.\\nJames D. Fitch owned and for many years resided upon a farm of about one hundred acres in Chickasaw county. He was the father of the parties to this action. His wife died on the thirteenth day of September, 1886. On the twenty-first day of the same month he made the deed in question, by which he conveyed his farm to his daughter, the defendant in this action. He died on the twenty-sixth day of September, 1887, at the advanced age of nearly eighty-three years. He was a man of no education, as the term is commonly used. He was several years older than his wife, and the evidence shows that for many years prior to her death he consulted and advised with her about all of his business transactions, even to matters of the most trifling character. The loss of his wife was a great calamity to him. His children were all married, and at the time of his wife's death the daughter of the defendant, aged about thirteen, was the only member of the family. He and his wife had taken this child when she was quite young, and she remained with them as long as they lived. The defendant and her husband resided on one corner of the farm at the time of the death of the father and mother. It is claimed by the plaintiffs that the deed should be cancelled upon two grounds: (1) Because of the mental incapacity of James D. Fitch to make a valid conveyance; (2) because of undue influence exercised by the defendant over her father, which, in his weakened mental condition, induced him to make the deed.\\nThe cause is to be determined upon the preponderance of the evidence upon these questions, and there is a marked conflict in the testimony of the witnesses upon the issue as to the mental capacity of the deceased at the time he executed the deed. One thing, however, is abundantly established, and that is that, by reason of the dependence of the deceased upon the advice and direction of his wife, her death was a greater bereavement to him than it ptherwise would have been. The story of his lamentations over her death, as detailed by the witnesses, is a most pathetic delineation of the crushing and overwhelming sorrow of an aged man at the loss of the partner of his joys and sorrows through a long and happy married life. It was perfectly natural that he should seek counsel and advice of others, and the evidence conclusively establishes the fact that, after the death of his wife, he put himself under the care and control of his daughter, the defendant. Her power over him appears to have been as absolute as that of the mother during her life; and this dependence upon the defendant and her control over him were manifest at once upon the death of the mother.\\nTo show the extent of this influence, we will here quote quite extensively from the testimony of Samuel ' D. Kenyon, cashier of the First National Bank of New Hampton, as to a business transaction he had with the deceased on the twenty-sixth day of November, 1886. The testimony of the witness is as follows: \\\" Mr. Fitch held two interest-bearing certificates of deposit. One of them was for one hundred and seventy dollars; . the other, for one hundred and eighty dollars. Both were due. He presented them for payment, but finally took payment in a new certificate of deposit ($300), running to Emma Reiser, and the balance, of fifty dollars and interest, he took in cash. Mrs. Reiser took a very important part in the transaction. She did nearly all of the talking for Mr. Fitch, and directed the manner in which the transaction should be closed. When the parties came into the bank Mr. Fitch did not have personal possession of the certificates of deposit, but Miss Emma Reiser, who was one of the parties, had them in a little hand-bag. Mr. Fitch stepped to the counter, and said he came after his money. , Mrs. Reiser then said: 'No, pa; you do not want the money; you want it just as we talked.' She then turned to her daughter, Emma Reiser, and received from her the two certificates of deposit, and told me that her father desired to put three hundred dollars of that money in the name of Emma Reiser, his granddaughter. The balance they wanted in cash. After some talk between Mrs. Reiser and Mr. Fitch, he said that was right. The certificate and nearly all the money she gave to her daughter, who put it in her hand-bag. She gave Mr. Fitch only a small portion of the money. The money was laid on the counter in front of Mr. Fitch, and Mrs. Reiser took possession of it. Mr. Fitch had no opportunity to count over the money, as Mrs. Reiser at once took possession of it. I think I can describe Mrs. Reiser's conduct. Mrs.\\\"Reiser was very careful that her father should not do much talking. Nearly always when he would commence to say anything she would interrupt him,, and herself would make a declaration of what he wanted to say, generally, concluding with the remark: ' N ow, that is right, ain't it, pa?' or, 'you know that's right;' or something similar. The conversation between Mrs. Reiser and myself was quite lengthy, and embraced other matters than those I have mentioned, but all pertaining to her father and his business. She never permitted Mr. Fitch to offer any suggestions or direction as to the business, dr how it should be concluded. She herself assumed the sole direction of the whole matter. I was impressed with her peculiar manner towards her father in this business transaction. During late years I have transacted business with Mr. Fitch and his wife. At such times Mrs. Fitch took an active part in such business transactions. She always controlled and directed the transactions. I think I never had any business with Mr. Pitch alone. His wife would always come with him, and look after the business. There were times when he would come into the bank alone with a certificate of deposit for renewal or payment, but would-never close the transaction alone, but would wait for his wife to come in and see to it. At the time Mr. Fitch was in the bank with Mrs. Beiser he was controlled and influenced by her absolutely; that is, so far as the business transaction involved at the time, which she absolutely directed and decided, without permitting him to express his opinion on the matter at all. He followed her direction, and acceded to her request, and complied with her orders and commands, regarding this whole business transaction in this way. He assented to them in this way. She would always close her statement with some appeal to him, such as : 'Now, you know what you want, pa;' or, 'that is right, pa, ain't it?' or words similar in meaning. Mrs. Beiser first mentioned or suggested that three hundred dollars then due Mr. Pitch should be deposited in the name of Mrs. Beiser's daughter Emma. I think it was in response to a question to Mr. Pitch as to what disposition should be made of the certificate. He made no reply to the question, as she did not permit him to, as she answered for him. He made no direction whatever that the certificate should be issued to Emma Beiser, but Mrs. Beiser gave the only directions that were given, but always concluding with some statement to her father, as, 'Now, that is right, ain't it, pa?' or words to that effect. He had not then, nor has he since, had any money in the bank. The Emma Beiser, to whom the three-hundred-dollar certificate of deposit was issued, .was the daughter of the defendant, who lived with Mr. Pitch.\\\"\\nWe have set out this evidence for the purpose of showing the absolute control which the defendant had of her father. We do not wish to be understood as condemning the defendant for acting as an aid and adviser to her father; but a contract or conveyance made by one to a person sustaining such relations of trust and confidence is in equity regarded in a different light from a conveyance between persons where no such trust and confidence exist.\\nThere is much controversy between counsel as to the effect of the evidence upon the mental condition of Mr. Fitch at the time the conveyance was made. The witnesses for the defendant testify that his mind was sound, and they give instances of business transactions made by him without assistance, in which he acted intelligently. On the other hand, there are a number of witnesses in behalf of the plaintiffs who testify to many acts which indicate, not only mental weakness caused by extreme old age, but tend to show a lack of capacity to transact any business. One witness, who does not appear to be related to the parties, and who has no interest in the controversy, testified that he farmed the place for four years, from 1881 to 1884, inclusive; that he lived on the place during those years, and passed through the door-yard of Fitch's house almost daily, and was intimately acquainted with him. He met him in October, 1886, and Fitch did not know him. This witness says: \\\" The deceased walked around the house [the home of witness] twice, and finally said: 'I can't find the way out.' He could not find the road he came in on. I went with him to where his son was putting up hay. The path on which he came was easy to find. It came straight into the door into which he came. He did not act as he did when I was on the place. His mind seemed to be affected. He repeated a story to me about his dog having killed sheep, and repeated it three times within one hour.\\\"\\nWe are not prepared to say that the evidence in the case shows an absolute want of mental capacity to make a testamentary disposition of property. But in consideration of the extreme mental weakness of the deceased at the time the deed was executed, and as the property in controversy embraced substantially all of his estate, and as the deed was without consideration, and in view of the relations of trust and confidence between the parties to the conveyance, we think the learned district judge was right in entering a decree annulling the deed. The control of the defendant over the deceased appears to have been absolute. Under such circumstances it was incumbent on the defendant to show that the conveyance was made voluntarily, and without the exercise of any influence on her part or in her behalf to procure the same. See Leighton v. Orr, 44 Iowa, 679; Spargur v. Hall, 62 Iowa, 498, and Kerr, Fraud & M. 150-152. The decree of the district court will be Affirmed.\"}"
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diff --git a/iowa/2082659.json b/iowa/2082659.json
new file mode 100644
index 0000000000000000000000000000000000000000..0c06f62d92655a90d449e312a85a18cbea54f547
--- /dev/null
+++ b/iowa/2082659.json
@@ -0,0 +1 @@
+"{\"id\": \"2082659\", \"name\": \"State of Iowa, v. William Kirkman, Appellant\", \"name_abbreviation\": \"State v. Kirkman\", \"decision_date\": \"1894-05-19\", \"docket_number\": \"\", \"first_page\": \"719\", \"last_page\": \"719\", \"citations\": \"91 Iowa 719\", \"volume\": \"91\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:35:29.500845+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa, v. William Kirkman, Appellant.\", \"head_matter\": \"State of Iowa, v. William Kirkman, Appellant.\\nInstruction given need not be repeated : sentence not excessive.\\nAppeal from Mahaska District Court. \\u2014 Hon. A. R. Dewet, Judge.\\nSaturday, May 19, 1894.\\nThe defendant was indicted, tried, and convicted of an assault with intent to inflict a great bodily injury, and he appeals.\\nAffirmed.\\nR. R. Sheriff for appellant.\\nJohn Y. Stone, attorney general, and Byron W.Preston, county attorney, for the state.\", \"word_count\": \"355\", \"char_count\": \"2090\", \"text\": \"Rothrock, J.\\nI. The evidence shows that the defendant inflicted a great bodily injury upon one Barton Long. The main contention of appellant's counsel appears to be that the evidence shows that the injury upon Long was inflicted while the defendant was lawfully acting in self-defense. The evidence, as set out in appellant's abstract, leaves room for doubt upon that question; but an additional abstract of evidence, filed by the state, shows that the defendant entered a dwelling house with the avowed purpose of \\\"cleaning out the ranch,\\\" as he -expressed it, and pulled off his coat, and undertook to carry out his intention. A number \\u2022of women were present, one of whom swooned and fell on the floor, and a fight ensued between the defendant and Brown, in which the latter was severely injured. It is true that defendant claimed in his testimony as a witness that he acted in self-defense, and probably there was sufficient conflict in the evidence to authorize an instruction upon that branch ot the law. Such an instruction was asked in defendant's behalf, and it was refused. There was no error in this ruling, because the court, on its own motion, correctly instructed the jury on that question.\\nII. The judgment of the court was that the defendant be imprisoned in the county jail for one year. It is suggested in argument that the term of imprisonment should be reduced. We are not disposed to interfere with the judgment. There is evidence in the record to the effect that the defendant claims to be \\\"a fighter,\\\" and that \\\"he had a good many fights in a year,\\\" \\u2014 as many as fifteen. The judgment of the district court is AFFIRMED,\"}"
\ No newline at end of file
diff --git a/iowa/2086433.json b/iowa/2086433.json
new file mode 100644
index 0000000000000000000000000000000000000000..af45c2468e59abcf775374ac696f192b6f8d2c34
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"2086433\", \"name\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases\", \"name_abbreviation\": \"Charles D. Brown & Co. v. Lucas County\", \"decision_date\": \"1895-04-03\", \"docket_number\": \"\", \"first_page\": \"70\", \"last_page\": \"74\", \"citations\": \"94 Iowa 70\", \"volume\": \"94\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:52:30.313833+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases.\", \"head_matter\": \"Charles D. Brown & Company v. Lucas County, Appellant, and two other cases.\\nConstruction: statute. Code, 3832, provide\\u00bb that for certain public printing not more shall be paid than \\u201cone dollar per square of ten lines of brevier type or its equivalent.\\\" Held, this simply means that a piece of printing worth as much as a square of ten lines brevier is the equivalent of such square. It does not mean that this is the rate for filling the space of ten line\\u00bb brevier with any kind of type. Followed in Brown v. Lucas County and Campbell v. L\\u00faeas County.\\nAppeal from Lucas District Court.-^-Hon. W. D. Tisdale, Judge.\\nWednesday, April 3, 1895.\\nThe plaintiff firm is the publisher of the Chariton Herald, one of the official papers of Lucas county for the publication of its proceedings. The proceedings of the county were published in three instead of two papers, by agreement among the respective publishers, the compensation to the three papers to be the same as is allowed by law to two papers, which would give to each twenty-two and twominths cents per square, instead of thirty-three and one-third cents per square, where the publication is in two papers. The plaintiff firm presented a claim to the board of supervisors of the defendant county for ninety-eight dollars and seventy-seven cents, with interest, which the board refused, and this action is to recover the amount. The case on appeal presents only a question as to the construction of the statute fixing the compensation for such publications. In the district court there was a judgment for plaintiffs, and the defendant appealed\\u00bb\\u2014\\nAffirmed.\\nStuart & Bartholomeiv for appellant.\\nJ. C. Mitchell for appellees.\", \"word_count\": \"1381\", \"char_count\": \"8092\", \"text\": \"Granger, J.\\nAs to legal advertisements, the law provides (Code, section 3882): \\\"In all cases where publication of legal notices of any kind are required or allowed by law, the person or officer desiring such publication shall not be required to pay more than one dollar per square of ten lines of brevier type or its equivalent, for the first insertion, and fifty cents per square for each subsequent insertion.\\\" Section 307 is the one making provision for the selection of newspapers in which are to be published the proceedings of the board of supervisors, and, after providing for such publication, it is said: \\\"And the cost of such publication shall not exceed one-third the rate allowed by the law for legal advertisements.\\\"\\n.The following facts were found by the,,district, cpurt: \\\"First. That, in strictly following copy furnished the plaintiffs by defendant, th'e plaintiffs, were required to set out the matter in tabulated form, with the exception of twenty-three and six-tenths-squares. Second. That the printing sued for by the plaintiffs, and claimed, to be tabulated matter, to-wit, four, hundred twenty and nine-tenths squares, was. tab-, ulated matter. Third.- That tke.plaintiffs published for the defendant twenty-three and six-tenths squares of straight matter, and four hundred twenty and nine-, tenths squares of tabulated matter.'.'\\nBy a stipulation, the following question is for our consideration: \\\"(One.) Was it,competent .for plaintiffs. to show in evidence that the word 'equivalent' and the, word1 'square,' as relating to printed matter, have a well' defined meaning among printers throughout the country, and to further show what space occupied by tabular printed matter is calculated .by printers throughout the country as the 'equivalent' of a 'square of ten lines of brevier'? If it was competent, then this case should be affirmed. If it was not compet\\u00e9nt, then the case should be reversed, unless it should be affirmed on account \\u00f3f res adjudicata.\\\"\\nThe claims of the parties are as follows: Appellant, in its brief, prints ten lines of brevier type, which the law defines as a \\\"square,\\\" and then says: \\\"This we insist is1 the square or unit of mea.surem.eni provided by the legislature, by which all publications of legal notices and proceedings of the board of supervisors must be measured, regardless of tbe kind or character of the type used or the cost of the work.\\\" The meaning of the language may be made clearer by the following statement in the argument: \\\"The square shall be the space occupied by ten lines of brevier type or its equivalent; that is the same space in any kind oh character of type.\\\" From these it appears that appellant's theory of the law is that the specified compensa-, tion is to be paid for the space occupied by ten lines in.. brevier type, regardless of the matter contained within it. If smaller type is used, so that more matter is printed in the same space, and the cost of printing is greater, still the compensation is just the same. If much large type is used, so that much less is printed, and the cost correspondingly less, yet the same corn pen-, station is to be paid. Appellees' claim is that, taking the square of ten lines in brevier type in \\\"straight mat-. ter\\\" as thle standard, if other type or form of printing is - desired, the equivalent of the square in brevier type'is., determined by the necessary cost to the publisher of] the different kinds of printing. As applied to-this'! case, from the facts found by the court, the plaintiff, was required to print a part of the work in a tabulated-., form, instead of as \\\"straight matter,\\\" as plain printing is called in the record. There is evidence to show that it costs three times as much to print matter in a tabulated form ais it does to print it straight We think the legislative intent was, not to fix a compensation for filling a certain space with printing, of whatever kind, but to fix a compensation for a particular space of a particular Mnd of printing, and make it the standard by which other kinds of printing could be measured and compensated. It is fair to presume that the compensation fixed was designed as just for a square of ten lines in brevier type of straight work. If so, it, would be a harsh construction to say that the board could deliver tabular work, \\u2022 requiring three times the,, cost to perform it, and then make compensation on the basis of straight work, because of the Avords, \\\"or its equivalent,\\\" as used in the law. There is, however, justice in the thought that the intent was to fix a compensation for a specified service,' and then allow for addi tional services on the same basis. It is urged that appellees' construction would involve confusion and uncertainty because of different prices for printing. It is said: \\\"The printer 'ixes the price absolutely. The board of supervisors do not know and cannot know the cost of printing their proceedings until the printer presents his bill.\\\" The conclusion is not warranted. With the square in brevier type as a basis, if a different form of work is desired, by which the same space will cost less, then less is to be paid for it If it cosits more for thie same space, then more is to be paid. The payment is to be made, at all times, on the basis of the fixed compensation for the specified space and form of printing. This leaves nothing to the printer, more than to the board of supervisors, for when it seeks different kinds of printing it should ascertain the additional cost. The same certainty exists as to both parties. If such printing is done without giving attention to know the additional cost, then, of course, in case of disagreement and litigation, the usual forms of judicial inquiry are to obtain, which are those employed in this case by using-witnesses presumed, from their skill and experience, to know the additional cost of the work done. It is the system \\u00f3f inquiry adopted, in such cases, throughout the jurisprudence of the country. In fact, we do not understand appellant to question this, unless its construction as to the term \\\"equivalent\\\" obtains.\\nWe have view.ed the questions stipulated in view of the arguments presented, and as thus understood we think the form of inquiry adopted was a correct one, which conclusion leads to an affirmance of the case.\\nThis conclusion renders it unimportant to consider the question as to a former adjudication. \\u2014 Affirmad.\"}"
\ No newline at end of file
diff --git a/iowa/2088716.json b/iowa/2088716.json
new file mode 100644
index 0000000000000000000000000000000000000000..685579ba8e362adf49f8dab213aa0c0dd9215ab4
--- /dev/null
+++ b/iowa/2088716.json
@@ -0,0 +1 @@
+"{\"id\": \"2088716\", \"name\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants\", \"name_abbreviation\": \"Pendelton v. Laub\", \"decision_date\": \"1895-10-15\", \"docket_number\": \"\", \"first_page\": \"722\", \"last_page\": \"724\", \"citations\": \"95 Iowa 722\", \"volume\": \"95\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:22:09.446940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants.\", \"head_matter\": \"M. M. Pendelton, v. H. C. Laub and Bernard Goto, Appellants.\\nInjunction: practice. Pending a suit for specific performance, it was error to make an order restricting all interference with plaintiff\\u2019s possession, upon an unverified motion, without the hearing of evidence and without requiring bond.\\nAppeal from Monona District Court. \\u2014 Hon. A. Van Wagenen, Judge.\\nTuesday, October 15, 1895.\\nAction in equity for 'an. accounting and for specific performance. Decree for plaintiff. Defendants appeal.\\nReversed.\\nT. B. Lutz and Shaw & Kuehnle for appellants.\\nNo appearance for appellee.\", \"word_count\": \"761\", \"char_count\": \"4642\", \"text\": \"Kinne, J.\\nI. Plaintiff allege\\u00ae: That prior to 1890 hO was the owner of certain land wMch was incumbered. That he conveyed the same to the defendant Laub, under a partnership agreement, whereby the land was to be sold, and the profits, after discharging the incumbrances, to be divided equally between plaintiff and said Laub. That on October 12, 1891, a portion of the land having then been sold, a partial settlement was had between them, when it was found that there was one thousand six hundred dollars due the plaintiff from said profits^ It was then agreed that plaintiff should purchase from said partnership' a portion of said land which remained unsold' for the sum of four thousand dollars, and should have credited thereon said one thousand six hundred dollars. Ini pursuance of said agreement, the parties entered into their written contract. That Laub pretended to cancel the contract. Plaintiff avers a readiness to perfora all of its condition\\u00ae, and that defendant is insolvent. Afterward defendant C-otto intervened in said cause, and averred that he, on October 6, 1893, had purchased of said Laub the land in controversy; that said Laub was in possession when he made said purchase; and that intervener had no knowledge or information that plaintiff had any right to the land; that plaintiff is insolvent. Thereafter Laub answered plaintiff's petition, admitting the execution of the contract, denying insolvency, and averring that plaintiff had wholly failed to comply with the terms of said contract, but, in violation of it, had failed to pay the sums due thereon, and had wholly failed to pay the taxes, and that because of said defaults defendant had canceled said contract, and notified plaintiff thereof. March 15, 1894, plaintiff filed whiat is called a \\\"motion for a restraining order,\\\" in which it is averred that plaintiff is in possession of the land in controversy, and has been ever since the execution of the contract heretofore mentioned; that defendant, by his agents, and intervener, by his agent\\u00ae, have attempted to obtain possession of said land by force, and have threatened to take possession, and to* interfere with plaintiff's possession of the same, and prevent Man from leasing the same for the year 1894; that, if plaintiff is prevented from renting said premise\\u00ae', he will- .suffer great los\\u00ae. He asksi for an order restraining defendant and intervener from interfering- or molesting plaintiff or his* lessees in the possession *or occupancy of \\u00a9aid land until the determination of the .suit Defendant 'and intervener filed objections to* the granting of said order, on the ground that it was* a proceeding' unknown toi the law; that no sufficient showing was made therefor; that the application was not under oath-; that it does, not entitle-plaintiff to- any relief. They further averred that great and irreparable loss- would ensue to* them if such an order was- made; that plaintiff was* insolvent. Thereafter the court entered an order that plaintiff rent the land, for 1894, and) that he have the right to* use two hundred dollars of the rent for Ms support, and the balance to* be deposited with the clerk of the court, subject to the final judgment, and ordered that defendant\\u00ae be restrained* from interfering with plaintiff or hi\\u00ae renters \\\"in relation to acts* under this order.\\\" Defendant -and intervener excepted. This, order was made without a trial or hearing or the introduction of any evidence. It wa\\u00a9 in the nature of an injunction. It was* not -ashed for in the petition, nor did that contain any allegation\\u00a9 toucM-ng the possession of the land in controversy. The injunction, for such in effect it was-, wa\\u00a9 granted upon a showing made in a motion which; was not verified, and without requiring a bond to be filed. A\\u00ae plaintiff doesi not appear in this court, we \\u00a9hall reverse this case, because, as we have said, the order was in the nature of iam injunction, granted without .a sworn, petition being filed, and without) requiring the filing of a bond. Code, sections 3388-3395. \\u2014 Reversed.\"}"
\ No newline at end of file
diff --git a/iowa/2101628.json b/iowa/2101628.json
new file mode 100644
index 0000000000000000000000000000000000000000..c329729fd1993dca0f0e3f910dbc53378961efeb
--- /dev/null
+++ b/iowa/2101628.json
@@ -0,0 +1 @@
+"{\"id\": \"2101628\", \"name\": \"State of Iowa v. Frank Sunderland, Appellant\", \"name_abbreviation\": \"State v. Sunderland\", \"decision_date\": \"1896-05-25\", \"docket_number\": \"\", \"first_page\": \"737\", \"last_page\": \"737\", \"citations\": \"101 Iowa 737\", \"volume\": \"101\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:35:52.969999+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa v. Frank Sunderland, Appellant\", \"head_matter\": \"State of Iowa v. Frank Sunderland, Appellant\\nSelling liquor: Conviction sustained.\\nAppeal from Buchanan District Court. \\u2014 Hon. A. S. Blair, Judge.\\nMonday, May 25, 1896.\", \"word_count\": \"183\", \"char_count\": \"1080\", \"text\": \"Per Curam.\\n'This case is submitted upon a transcript' alone, which shows that the defendant was tried and convicted before a justice of the peace on an information in two counts, charging him with having sold intoxicating liquors contrary to law, at certain times and to certain persons named.\\nJudgment was entered against him that he pay a fine of fifty dollars on each count, and costs, and that he stand committed until paid.\\nDefendant appealed to the district court, and in that court entered a plea of guilty to the second count in the information, \\\"which plea the state of Iowa accepts.\\\" Judgment was entered that defendant pay a fine of fifty dollars and costs, and that he stand committed in the county jail of Buchanan county until such fine is paid, from which judgment he appeals to this court.\\nWe discover no error in the proceedings, and the judgment of the district court is, therefore, affirmed.\"}"
\ No newline at end of file
diff --git a/iowa/2118351.json b/iowa/2118351.json
new file mode 100644
index 0000000000000000000000000000000000000000..65b69625ce10dbfb30d6b5837d592e40b5fe2dac
--- /dev/null
+++ b/iowa/2118351.json
@@ -0,0 +1 @@
+"{\"id\": \"2118351\", \"name\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant\", \"name_abbreviation\": \"Chambers v. Illinois Central Railroad\", \"decision_date\": \"1897-12-18\", \"docket_number\": \"\", \"first_page\": \"238\", \"last_page\": \"241\", \"citations\": \"104 Iowa 238\", \"volume\": \"104\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:18:34.651465+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, J., takes no part. -\", \"parties\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant.\", \"head_matter\": \"Albert T. Chambers v. The Illinois Central Railroad Company, Appellant.\\nRemoval of Causes; state court\\u2019s power over. A state court has no jurisdiction to sustain a motion by plaintiff to dismiss the case after defendant has filed a proper petition and bond for removal of the cause to a federal court, under Twenty-fifth United States Statute, chapter 866, sections 3, 3, providing that when such petition and bond are filed \\u201cwithin the time it shall be the duty of the state court to accept the same and proceed no further\\u201d in the suit.\\nAppeal from Woodbury District Court. \\u2014 Hon. Scott MLadd, Judge.\\nSaturday, December 18, 1897.\\nThis case is submitted on appellant\\u2019s' abstract and argument alone, there being no appearance by the appellee. The abstract shows that on December 27, 1895, plaintiff filed his petition, asking to recover six thousand dollars, from defendant on account of personal injuries; that on January 4,1896 (being within the time required), defendant answered, joining issue upon the allegations of said petition; that at the same time the defendant filed its petition and bond for the removal of this case to the circuit court of the United States for the Northern district of Iowa, Western divisi\\u00f3n; that thereafter, to-wit: on January 11, 1896, plaintiff applied to said district court, by motion, to dismiss this case without prejudice to further action, which motion was sustained, to which defendant excepted, and from which ruling it appeals.\\nReversed.\\nJohn F. Duncombe and S. M. Marsh for appellant.\\nNo appearance for appellee.\", \"word_count\": \"933\", \"char_count\": \"5392\", \"text\": \"Given, J.\\nThe petition for the removal of this cause was made under sections 2 and 3 of chapter 866, 25 U. S. Statutes at Large. The abstract shows that the application was as required by these sections, and presented a proper case for removal; also, that the bond was in proper form and amount, and conditioned as required. The application and bond were filed with the answer within the time allowed for answering, and the bond was approved by the clerk, by order of the eourt. Appellant insists that, as the case is a proper one for removal, by the filing of the application and bond, and approval of the bond, within the time required, the jurisdiction of the state court ceased, and that of the United States court immediately attached. Said section provides that when such a petition and bond are filed within the time required, \\\"it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit; and-the said copy being entered as aforesaid in the circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court.\\\" In Stone v. South Carolina, 117 U. S. 431 (6 Sup. Ct. Rep. 799), it is said: \\\"It is undoubtedly true, as was stated in Steamship Co. v. Tugman, 106 U. S. 118-122 (1 Sup. Ct. Rep. 58), that upon the filing of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceases, and that of the United States Court immediately attaches; but, still, as the right of removal is statutory, before the party can avail himself of it, he must show upon the record that his is a case which comes within the provision of the statute. If he fails in this, he has not, in law, shown to the court that it cannot proceed further with the suit. To accomplish the removal, the suit must be one that may be removed, and the petition must show a right in the petitioner to demand a removal. This being made to appear on the record, all the necessary security having been given, the power of the state court in the case ends, and that of the United-States circuit court begins.\\\" In Van Horn v. Litchfield, 70 Iowa, 12, this court said: \\\"It-is a rule settled by the decisions of the United States supreme court that, upon the filing of a petition in a state court presenting a sufficient cause for removal to the United States court, the rightful jurisdiction of the state court comes to an end. The state court must stop when the petition and security are presented;\\\" citing cases. Further citations are unnecessary to show that, when this petition and bond were filed, on January 4, 1896, the district court immediately ceased to have jurisdiction of this case for any purpose, and that jurisdiction thereof immediately passed to the United States court. This being true the state court had no jurisdiction to thereafter, on January 11, 1896, entertain or sustain plaintiff's motion to dismiss the case. The case was then pending in the United States court, and could only be dismissed in that court. Appellant suggests the inquiry whether it is prejudiced by this error of the district court, and answers it by insisting that, as plaintiff could not defeat the removal by reducing the amount of his demand after the removal was asked, he could not defeat it by dismissing after removal was made, and suing for lesser sum. While there is force in this answer, another is that defendant is prejudiced by the error in that it cannot know until this appeal is determined whether the case is still pending against it or not. This being the proper court to review the action of the district court, and its action in sustaining the motion to dismiss being erroneous and prejudicial to appellant, it is reversed.\\nLadd, J., takes no part. -\"}"
\ No newline at end of file
diff --git a/iowa/2157727.json b/iowa/2157727.json
new file mode 100644
index 0000000000000000000000000000000000000000..5b010c9ba0e138c2123424b88565f15a15396960
--- /dev/null
+++ b/iowa/2157727.json
@@ -0,0 +1 @@
+"{\"id\": \"2157727\", \"name\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants\", \"name_abbreviation\": \"Dye v. Augur\", \"decision_date\": \"1907-01-18\", \"docket_number\": \"\", \"first_page\": \"538\", \"last_page\": \"543\", \"citations\": \"138 Iowa 538\", \"volume\": \"138\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:03:56.887778+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants.\", \"head_matter\": \"H. B. Dye v. W. H. Augur and Charles Schrage, Appellants.\\n1 Intoxicating liquors: statement of consent: appeal: payment of fee. Where a proceeding to test the validity of a statement of consent to the sale of liquor was docketed in the district court, prior to filing of a motion to dismiss the same because the docketing fee had not been paid, the motion was rightly overruled.\\nFriday, January 18, 1907.\\nRehearing Denied, Monday, June 8, 1908.\\n2 Sufficiency of statement of consent: manner of trial. The determination of the sufficiency of a statement of consent to the sale of liquor on appeal is a special proceeding triable to the court as a law action, and the right to a continuance for the purpose of taking the testimony in writing does not obtain.\\n3 Same: amendment: limitations. The allegation of citizenship by way of amendment to the original denial of the statement of consent is not the introduction of a new cause of action, and is not barred because not filed within thirty days as provided by Code, section 2450.\\n4 Pleading: denial of capacity to sue. One contesting the sufficiency of a statement of consent to the sale of liquor does so as a representative of the public and may allege his citizenship generally, as showing his capacity to sue, which he is not required to prove under a general denial; but to raise the issue of his want of capacity the facts relied upon must be specifically pleaded.\\n5 Consent petition: withdrawal of signatures. The written with-drawal of names from the statement of consent to the sale of liquor need not show the voting precinct of the signers thereto, as in the case of signatures to the statement itself.\\nAppeal from Grundy District Court.\\u2014 Hon. Franklin C. Platt, Judge.\\nAppeal from a judgment against a statement of consent.\\u2014\\nAffirmed.\\nTlieo. F. Bradford and II. B. Boise, for appellants.\\nF. W. Reisinger, C. T. Rogers, and J. T. Hauser, for appellee.\", \"word_count\": \"1617\", \"char_count\": \"9418\", \"text\": \"Sherwin, J.\\nOn the 22d day of November, 1901, there was filed in the auditor's office of Grundy county, Iowa, a general statement of consent for the sale of intoxicating liquors in said county, which purported to have been signed by 65 per cent, of the legal voters of the county who voted at the last preceding general election therein. The petition was, in fact, signed by more than 65 per cent, of such voters; it being stipulated on the trial in the district court that three thousand one hundred and nineteen legal votes were cast at the general election in 1904, and that two thousand one hundred and five of the voters signed the original petition of consent. Before the board of supervisors canvassed the petition, five hundred and forty purported withdrawals therefrom were filed with the auditor, and the appellants admit that two hundred and thirty-four signers* of the petition signed the withdrawal. The board of supervisors seems to have ignored the withdrawals from the petition.' At any rate, it was found to be sufficient, and thereafter, and within the time provided by section 2450 of the Code, the plaintiff filed with the clerk of the district court a bond and a general denial as to the statement of consent, after which notice was given as required by the same section, and the statement was certified to the district court, where the proceeding was docketed and a continuance given the defendants. Still later, as we understand the record, the plaintiff was permitted to amend his bond and general denial, alleging in the latter that he was a citizen of the county, an allegation that was not made in his original denial.\\nMotions were made to strike this amendment and to dismiss the appeal because the case had not been docketed by the plaintiff and the filing fee paid to the clerk. Both of these motions were overruled, and there-. upon the defendants asked that the case be tried as an equitable action, and this was also denied them. The case seems to have been docketed in the district court some time before the motion to dismiss was made because the docketing fee had not been paid, and under the rule announced in Squires v. Millet, 31 Iowa, 169, there was no error in overruling the motion.\\nThe appellants insist that it was the intent of the Legislature that these cases should be tried on appeal from the findings of the board of supervisors in equity, and not as sPecial proceedings; and that being triable as equitable actions, they had the right to take their testimony in writing and to have a continuance for that purpose. In Green v. Smith, 111 Iowa, 183, we held that the trial provided for by section 2450 was a special proceeding not triable by a jury, and with this holding we are satisfied. The fact that the statute declares that it shall be tried de novo in the district court does not necessarily indicate that the Legislature intended it to be tried as an equitable action. Indeed, the entire statute clearly shows an intent to have a speedy disposition of questions that may arise thereunder, and, if it were possible to compel either side to await the slow process of taking the depositions of a large number of witnesses located all over the county, it would amount to a practical denial of relief. W.e are fully satisfied that such was not the legislative intent.\\nAs we have already said, the plaintiff did not allege in his original denial that he was a citizen of the county, and the appellants urge that it is essential to both allege and prove citizenship; and, further, that the allegation in the amendment to the denial created a new cause of action, and because it was made after the lapse of five months it was barred by the limitation of Code, section 2450, which is thirty days. The allegation of citizenship did not state a new cause of action.\\nThe original denial put in issue'the sufficiency of the general statement of consent, and that was the issue and the only issue that was in fact tried. The amendment did nothing more than to allege that the denial was made by one authorized to make it. The plaintiff instituted the contest as a representative of the public, under a statute expressly providing therefor. It was not a contest, therefore, in which he alone was interested, and acting in a representative capacity he was not bound to prove such capacity until it was put in issue by sufficient allegations in the appellant's pleadings. Code, section 3627, provides that a plaintiff suing in any way implying representative or other than individual capacity need not state the facts constituting such capacity or relation, but may aver the same generally, or as a legal conclusion; and section 3628 says that, if such allegation is controverted, \\\" it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated.\\\" The appellants did not controvert the allegation of citizenship, except by a denial, and hence no issue thereon was raised under the statute, and no proof thereof required. Littleton v. Harris, 73 Iowa, 167; Shear v. Green et al., 73 Iowa, 688.\\nThe appellants further contend that the withdrawals from the petition are insufficient to reduce the petition to less than 65 per cent. The stipulation to which we have already referred admits that the statement of consent as originally filed was sufficient, and the only question remaining for determination is the number of names on the withdrawal that should be taken from the statement of consent. The appellants concede that two hundred and thirty-four signers of the general statement signed the withdrawal, and that the withdrawal of about seventy-five would leave less than the required 65 per cent.; but they say that the same formality must be observed in withdrawing names from the statement that is required in securing it, and, if this be true, that sufficient names cannot be counted to render the statement insufficient. Code, section 2452, provides that every statement of consent shall be accompanied by the affidavit of some reputable person, showing that said person personally witnessed the signing of each name appearing thereon, and that all such statements shall show the voting precinct of the signers thereof. Of the names on the withdrawal, one hundred and thirty-one were accompanied by the affidavit required for the statement, but failed to give the voting precinct. Whether a withdrawal should be accompanied by the same kind of an affidavit that is required for the statement, we need not determine in this case because one hundred and thirty-one of the names thereon were so supported. If the statement complies with the law, the voting precinct of the signer appears thereon, and except in cases where there may be two signers of the same name, either in the same or different precincts, nothing is to be gained by naming the signer's precinct in the withdrawal, for it appears on the statement, and identification is an easy matter. In the event of duplicate names, it will not be difficult to identify the parties if it should become material to do so. In the instant ease the question is of no moment because of the appellants' concession that two hundred and thirty-four signers of the statement signed the withdrawal. What we have already said disposes of the important questions in the case, and we need not go into the question of idem sonans.\\nThe district court was right in declaring the statement of general consent insufficient, and the judgment is affirmed.\"}"
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+"{\"id\": \"2163128\", \"name\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant\", \"name_abbreviation\": \"Watson v. Bowman\", \"decision_date\": \"1909-02-11\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"533\", \"citations\": \"142 Iowa 528\", \"volume\": \"142\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:02:28.348556+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant.\", \"head_matter\": \"J. W. Watson, Appellee, v. W. H. Bowman, survivor, Appellant, Charles G. Freeman, Defendant.\\n1 Mortgages: subrogation: judgment creditors: priority of liens, One who furnished the mortgagor with money' to pay off the mortgage debt may be subrogated to the rights of the mortgagee, through an arrangement with the mortgagor by which the note and mortgage are turned over as security for the money so advanced, although the original mortgagee is not a party to the arrangement; and he may enforce the mortgage as against a judgment creditor whose lien accrued subsequent to the mortgage, but prior to his acquisition of the same. And the taking of a new note and mortgage as collateral without surrendering the original was not a waiver of the right to resort to the original security for protection against intervening liens.\\n2 Evidence: identification and offer of instruments. Where it i s evident from the entire record on a foreclosure of a mortgage, that the' same was tried and determined on the theory that the note and mortgage were in evidence, and no objection was made in the trial court to the identification and proof of the instruments, the cause will not be reversed simply because of a failure to formally offer the same in evidence.\\n3 Mortgages: failure to name mortgagee: priority of liens. Failure to name a grantee in the granting clause of a mortgage, where it clearly appears from the instrument that the holder of the note is intended as the mortgagee, is not available to a judgment creditor of the mortgagor before levy and sale, to defeat the lien of the mortgage in favor of one subrogated to the rights of the mortgagee.\\nAppeal from Keokuk Superior Court. \\u2014 Hon. W. L. McNamara, Judge.\\nThursday, February 11, 1909.\\nRehearing Denied Wednesday, May 12, 1909.\\nThis is an action to foreclose a mortgage, and to establish a priority of lien over a judgment held by defendant Bowman. There was a decree for plaintiff. Defendant Bowman appeals.\\nAffirmed.\\nA. L. Parsons and Hollingsworth & Blood, for appellant.\\nF. T. Hughes, for appellee.\", \"word_count\": \"1729\", \"char_count\": \"9950\", \"text\": \"Evans, C. J.\\nThe defendant Freeman is the owner of certain real estate involved in this controversy. He became such owner in May, 1898, by purchase from one Swettman. At the time of such purchase the property was incumbered by mortgage for $250, held by one Deamude. This mortgage was assumed by Freeman as a part of the purchase price. It bore date September 1, 1897, and was to become due in three years from date. The defendant Bowman is a judgment creditor of Freeman, having obtained a judgment against him for $920 on July 11, 1900. The evidence, on behalf of plaintiff, tends to show that about September, 1899, an arrangement was entered into between Freeman and the plaintiff, Watson, whereby Watson was to take the Deamude mortgage of $250 and carry the same as a debt and lien against Freeman and the property until its maturity. The occasion for this arrangement was that the husband of the mortgagee had expressed a desire for the money at about that time. The plaintiff, Watson, furnished the $250 in pursuance of this arrangement, and- it was taken by Freeman and paid to the mortgagee. lie received the note and mortgage from the mortgagee, and delivered the same to the plaintiff, who has held the same ever since. It is claimed by Freeman that when he took the money to the mortgagee he explained to her the arrangement between him and Watson, and that she made no objection thereto. There was never any formal cancellation of the note or mortgage, and never any release of the mortgage on record until after the commencement of this suit. After the maturity of the Deamude mortgage in October, 1900, the plaintiff took a new note and mortgage from Freeman for the same debt, and held the same as collateral' to the Deamude note and mortgage. He asks that he be held to be the owner of the Deamude note and mortgage, and that he be subrogated to all .the rights of the mortgagee therein, and that his lien be held superior to the lien of the Bowman judgment. On the part of the defendant the evidence tends to show that the transaction between Freeman and Watson was simply a loaning of the funds to Freeman, and that he used the same in paying off the Deamude mortgage, and that such transaction was not had in 1899, but in 1900, after the Deamude mortgage was due, and that the mortgagee of the Deamude mortgage never assented to any ar rangement whereby Watson was to become the owner of such mortgage. He contends that the plaintiff has no other lien than that of his mortgage taken in October, 1900, which is subsequent in date to the defendant's judgment, and he asks that his judgment lien take priority. The lower court found the issues with the plaintiff.\\nIf it be true that there was such an arrangement as is contended for between Freeman and Watson, and srxch arrangement was made known to the mortgagee at the time she received the money for her mortgage, it would amount to an or\\u00e1l equitable assignment of the mortgage, and would present no difficult question of law. The evidence as to whether such arrangement was communicated to the mortgagee by Freeman is so nearly in the balance that we proceed to inquire whether the plaintiff may be subrogated to the rights of that mortgagee under the arrangement between him and the mortgagor, without the knowledge of the mortgagee. It seems to be settled by our decisions that such an arrangement is valid as between the parties thereto, and that the plaintiff is entitled to hold the note and mortgage as security for the money advanced by him in pursuance of such arrangement, even though the mortgagee was not. a party to the arrangement. Heuser v. Sharman, 89 Iowa, 355; National Life Insurance Company v. Ayres, 111 Iowa, 200. The fact of such an arrangement between Freeman and Watson is very clearly proven. If the plaintiff, then, was entitled to hold the Deamude mortgage as against Freeman, he was prior in point of time to the Bowman judgment. Bowman's judgment lien attached only to the interest that Freeman actually had, whether such interest was apparent upon the record or not. In other words, the rights of a judgment creditor as a lienholder are no greater before levy or sale than the rights of the judgment debtor. Moore v. Scruggs, 131 Iowa, 692. When Watson took his second mortgage in October, 1900, he did not know of the judgment. Neither did he surrender'the former note and mortgage; the new note and mortgage having been taken for the same debt. The plaintiff did not lose his right to resort to his first mortgage to protect himself against intervening liens. Young v. Shaner, 13 Iowa, 555. We think the lower court correctly held that the plaintiff was entitled to hold and foreclose as his own the Deamude note and mortgage.\\nII. The plaintiff set up the Deamude note and mortgage in his pleadings by copy thereof. The answer of the defendant contained a general denial. The evidence presented no controversy as to the existence of the Deamude note and mortgage, and as to ^ p\\u00a1ain^\\u00a3f>s actual possession thereof. It fails to appear, however, that they were formally introduced in evidence. The defendant, therefore, contends that plaintiff's case has wholly failed,, and that the decree below should be reversed, and defendant's principal argument'is devoted to this question. The question gives us much difficulty, and we are disposed to censure the carelessness that would permit such an oversight on the part of counsel. It is manifest from the record as a whole that the papers were present in court, and the oral testimony of witnesses refers to \\\"this note and mortgage.\\\" We take this to indicate, either that the note and mortgage were present, or else that reference was had to the note and mortgage set out by copy in plaintiff's petition. The record as a whole satisfies us that the case was tried on the theory that the note and mortgage were in evidence. Certain it is that the question now argued here was in no manner presented to, or considered by, the lower court. The decree entered by the court discloses the fact that the instruments sued on were deemed as being in evidence, and foreclosure is granted thereon. This court has heretofore gone to considerable length to support a judgment of the court below, rather than to reverse, upon a rnani fest oversight. This is especially so where the ground and theory upon which the lower court entered judgment is manifest from the record as a whole. In view of the whole record in this case we think the Deamude note and mortgage were sufficiently identified and proved, in the absence of objections in the lower court, and that we would not be warranted in reversing the decree on such technical ground. Hintrager v. Kiene, 62 Iowa, 605; Pitts v. Seavey, 88 Iowa, 336.\\nIII. It appears from the copy of the Deamude mortgage, which was set up in plaintiff's petition, that no name of a mortgagee appeared in the granting clause of said mortgage, and this defect is urged by the 007 0 d defendant Bowman as fatal to the mortgage, If the rights of purchasers without notice were involved, a serious question might be . presented here. The mortgage does describe the debt which it is given to secure, and fully discloses the beneficiary intended to be secured thereby. There is no question, under the recitals of the mortgage as a whole, but what the holder of the note was intended as the mortgagee. As between the parties to the transaction the mortgage would be good in a- court .of equity. As against Freeman it is good because he.agreed to pay it. As between Freeman and Watson it is good because they made'their contract with reference to it as it was. As already indicated, the rights of Bowman as a judgment lienholder can rise no higher than the rights of Freeman as debtor; The defect, therefore, avails the defendant nothing.\\n' Npon the whole record, the decree of the lower court was right, and it is affirmed.\"}"
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+"{\"id\": \"2165277\", \"name\": \"State of Iowa v. D. T. Blodgett, Appellant\", \"name_abbreviation\": \"State v. Blodgett\", \"decision_date\": \"1909-06-07\", \"docket_number\": \"\", \"first_page\": \"578\", \"last_page\": \"590\", \"citations\": \"143 Iowa 578\", \"volume\": \"143\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:07:36.805817+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State of Iowa v. D. T. Blodgett, Appellant.\", \"head_matter\": \"State of Iowa v. D. T. Blodgett, Appellant.\\n1. Criminal law: forgery: intent: evidence. On the question of defendant\\u2019s fraudulent intent in making an alleged false school order for the payment of money, the evidence is reviewed and held sufficient to take the issue to the jury.\\n2. Same: forgery: school order: indictment. In view of the provisions of Code section 4853, it is not necessary that there should have been a resolution by the school officers directing the issuance of a school order to render the making of a false order forgery, nor is it necessary to allege an intention to defraud any particular person.\\n3. Change of venue: discretion. In passing upon a motion for change of venue on the ground of prejudice of the judge, the court should not base the ruling upon his inclinations, or upon the belief of the accused, or the proprieties of the situation, but should determine the question according to the very right of it; and unless an abuse of discretion is shown his ruling will be sustained.\\n4. Criminal law: forgery: uttering forged instrument: former jeopardy. Forgery and the uttering of a forged instrument are distinct offenses;; and the crime of forgery is not a degree of the crime of uttering, nor is it necessarily included therein. Fraudulent intent in the making of a forged instrument is essential to the crime of forgery, though it need not be proven to establish the crime of uttering; and where there is no doubt of the identity of the defendant accused in both instances, or the identity of the transactions, the question of former jeopardy is one of law for the court.\\n5. Same. An acquittal of the crime of uttering a forged instrument is not a bar to prosecution for forging the same instrument.\\n6. Criminal law: review on appeal: what constitutes the record. The statute requiring the Supreme Court to examine the record without regard to technical errors not affecting the substantial rights of the parties, has reference to the record on which the cause was submitted, which may be a transcript of all papers filed in the case, except those returned by a committing 'magis trate, and all. entries in the record book, but not including the evidence.\\n.Weaver, J., dissenting.\\nAppeal from, Pollc District Court. \\u2014 Hon. W. G. Clements, Judge.\\nMonday, June 7, 1909.\\nRehearing Denied Friday, September 24, 1909.\\nThe defendant was convicted of the crime of forgery, and appeals.\\nAffirmed.\\nH. W. Byers, Attorney-General, Chas. W. Lyon, Assistant Attorney-General, and Lawrence De Ch'aff, County \\\"Attorney, for the State.\\nD. T. Blodgett, pro se.\", \"word_count\": \"4246\", \"char_count\": \"23881\", \"text\": \"Ladd, J.\\nThe indictment accused' the defendant of the false making of an order in words following: \\\"No. 214. $116.00. April 12, 1906. Treasurer of the School Township of Douglas, County of Polk: One year after date without interest pay to D. TBlodgett, or order, the sum of one hundred sixteen dollars from the contingent fund for Cyclopedias in suhdistrict No. -. By order of the board of directors. Frank Berkey, President. E. F. Mathis, Secretary.\\\" The defendant was in the employment of the Holst Publishing Company as a canvasser for the sale of encyclopedias for the use of schools, and the above order was indorsed by the defendant and delivered to B. P. Holst, manager of that company, who credited him with the amount thereof and issued to him a check on a bank for $63. The defendant, in his own behalf, testified to the false making of the order, and explained: That it was done \\\"at the request of B. P. Holst. That the latter was owing him $600 or $800 for work. That he made this order because Mr. Holst wanted it to keep as a memorandum between him and me, as to how much money and books he has given me in payment for services performed. I made the warrant because I didn't think he would <use it for an illegitimate purpose. My intention in making this instrument was that it should be returned to me when certain events transpired. The instrument was given to him to be kept until litigation that was pending should be determined. Holst didn't want the young lady working in the office to know, anything about the fact that he was paying me for making the resistance to the opposition to the sale of his books and that he was paying me for that, and wanted it to appear that he was paying me for selling books, and I made the instrument so that it would appear to be a good one, so that the young lady there at the office would not know anything about it, but that it was a good instrument. That is why there was an attempt to imitate the signatures of the president and secretary of this board. I never demanded any payment on this order.\\\"\\nCross-examination: \\\"Mr. Holst made this request of me to make the instrument at Luther, Iowa. I used a pencil to write Prank Berkey's name, and used ink in simulating the signature of E. P. Mathis, so that it would appear good to the young lady in the office. I never received any school township warrant from Douglass township while Berkey was president and Mathis secretary. I do not know from what source I got the signature of Prank Berkey to simulate his signature on this warrant. I think I had a letter from Mr. Mathis, and I took that letter and laid it over the school warrant and took a knitting needle and run right over the signature, and then I traced that with ink. I don't know how I got the signature of Prank Berkey in pencil. I don't remember whether I had his signature, or anything about that. I made his j ust the same as I did the other. I used indelible pencil in writing the name of Frank Berkey. I traced the line, yes. I did this about a day or two after Holst- made the request. I had these blank warrants. I had a book of them. I inserted the word 'Douglas' on this warrant. The blank said 'the school township of \\u2014.' I don't remember where I got the book of blanks. I next saw Holst at his home in Boone a few days afterwards, five or six, I think, after making this warrant. I intended first to send it to him by mail, but I presented it to him personally. I was at borne in Des Moines, Iowa, when I made' it. No one else was present when I gave this warrant to Mr. Holst at Boone, and no one else was present when he made the request.\\\"\\nHolst denied ever having made the request as testified to by defendant, and swore that ho gave the cheek in the belief that the order was genuine and had no knowledge of the falsity of the instrument until payment was refused. His testimony was somewhat corroborated, and other testimony bearing thereon was adduced, so that the evidence was sufficient to carry the issue as to whether the making was with fraudulent intent to the jury.\\n2. Same forgery school order indictment. II. Appellant urges that the indictment was insufficient, in that it does not allege authority of the officers of the school township to issue the order. The point raised is that as no resolution of the directors directing the issuance of the order . . , was adopted, it necessarily was invalid. Johnson v. School Corporation of Cedar, 117 Iowa, 319. But it is not essential to constitute the offense that the false instrument would have been'of legal efficacy if true. \\\"If any person with intent to defraud falsely make . . . any instrument in writing, being, or purporting to be the act of another by which any pecuniary demand or obligation . . . . is or purports to be created, . he shall be punished.\\\" Section 4853, Code. This purports to be an order on tbe school treasurer issued by the officers authorized by law to execute the same, and is therefore within the language of the section from which we have quoted. It is enough that it is of apparent legal- efficacy. State v. Van Auken, 98 Iowa, 674; State v. Sherwood, 90 Iowa, 550; People v. Munroe, 100 Cal. 664, and cases collected in note to 24 L. R. A. 33. It was unnecessary to allege an intention to defraud any particular person (State v. Maxwell, 47 Iowa, 455), and it is not very material whether the design was to defraud the school township or the publishing company or Holst. See People v. Bibby, 91 Cal. 475 (27 Pac. 781); Commonwealth v. Brown, 147 Mass. 585 (18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep., 736); Gregory v. State, 11 Ohio St. 329.\\nIII. The indictment was returned June 30, 1908, and a few days later an application was presented to the judge, then presiding, praying for a change of venue on two grounds:' (1) Prejudice of the inhabitants of the county, and (2) prejudice of the J \\\\ J judge.- ibis was denied but the court announced that a judge not residing in the county would preside at the trial. A. D. Pugh, Esq., was appointed to defend, and the cause set down for trial on September 28th following. At that time the accused first ascertained that Hon. W. G. Clements of Newton was on the bench and promptly amended the application for change of venue. Thereupon the defendant proceeded to examine his honor touching matters in the past and also testified. In this way it was made to appear: That the judge was not aware that he would preside at the trial until two days previous; that he had known the accused for twenty-five years; that while sitting on the district bench in Des Moines in 1907 he had overruled motions to dismiss three indictments charging defendant with having libeled some of the judges of the ninth judicial district, and before doing so examined the record; that subsequ\\u00e9ntly defendant had written him a letter saying he did not wish him again to make any rulings in any action in which he might be interested; also, that defendant, who was one of the substituted plaintiffs 'in Brown v. Zachary, 102 Iowa, 433, had filed a petition for rehearing therein and a resistance to a motion to strike the same as scandalous, in each of which he had assailed Judge Clements with accusations of unprofessional conduct and as being unworthy of confidence as a witness. It appears that the judge was one of the attorneys for the defendants in that case and as a witness had disagreed with defendant concerning a conversation had between them.\\nTwo things seem important in the administration of justice: (1) That every litigant have a fair trial; and (2) that this be made apparent to him from the rulings and procedure. Doubtless the accused, because of what he had said in the petition for rehearing in Brown v. Zachary and the resistance of the motion to strike the same and in his recent letter, believed that his honor had become prejudiced against him; but the court was not to base the ruling on his inclination or upon the belief of the accused or the proprieties of the situation, but according to the very truth, and, unless in doing so it. can be said there was abuse of discretion, the ruling must be sustained. State v. Billings, 77 Iowa, 418; State v. Foley, 65 Iowa, 51; State v. Hale, 65 Iowa, 575; State v. Ingalls, 17 Iowa, 8.\\nThe rulings on the motions did not furnish the slightest indication of ill-will. Nor can such effect be attributed to the letter written by defendant when disappointed over such rulings, though such letters may be in bad taste. This often happens, and no judge would think of harboring resentment because of such manifestation of one of the infirmities of human nature. Indeed few judges serve any considerable time without receiving communications expressing displeasure with decisions. -The criticisms of ungracious losers are so common that they cannot be treated as a basis for holding that a court is likely to be swerved thereby from a course of rectitude. '\\nNor do we regard what may have been inserted in a petition for rehearing or resistance to a motion to strike the same-more than ten years prior to the trial as likely to have engendered lasting prejudice. It is not uncommon for both attorneys and litigants to become, irritated and extreme, in -their positions in the course of litigation. New attorneys escape entirely the criticism of opposing litigants, and witnesses seldom do; but it does not follow that the unkind things said in the heat of argument are harbored during all the years thereafter and brooded over in the spirit of malevolence. They are but incidents in the course of litigation soon overlooked in the stress of other affairs, especially by attorneys who take up the con-, troversy of others before the one is disposed of; and the statement of his honor that these matters had been overlooked long ago, and that he entertained no feeling against defendant, may well be accepted as true. If there were any doubt on the subject, it is removed upon examination of the record bearing unquestionable proof of the fairness -and patience with which he presided at the trial. There was no error in denying the application for change of venue. What we have said disposes of the criticism of the judge first presiding for inviting Judge Clements to hear the cause, but, as he is not shown to have been aware of any objection to the latter, the criticism in any event was unfounded.\\nIY. The defendant interposed the plea that he had been indicted for uttering the identical instrument in Boone County, tried on said charge, and acquitted, and that this constituted an acquittal of the offense of x forging the same writing. A certified copy of the record of the proceedings in Boone County was attached to the plea, and its sufficiency as a har to the prosecution was raised by a demurrer filed by the State. The demurrer was sustained, and the defendant was not allowed to introduce evidence tending to support the same or to go to the jury on the issue. There being no question as to identity of defendant as the person accused in both trials, nor as to the identity of the transactions, the issue was purely of law and rightly determined by the court. State v. Jamison, 104 Iowa, 343; Hooper v. State, 30 Texas App., 412 (17 S. W. 1066, 28 Am. St. Rep., 926); Gunter v. State, 111 Ala. 23 (20 South. 632, 56 Am. St. Rep. 17); State v. Williams, 152 Mo. 115 (53 S. W. 424, 75 Am. St. Rep. 441). Was it rightly decided? That the offenses of forgery and of uttering a forged instrument are distinct offenses appears from State v. McCormack, 56 Iowa, 585 (9 N. W. 916).\\nAnd the crime of forgery is not a degree of that of uttering. State v. Bigelow, 101 Iowa, 430. It is not necessarily included therein, for one who utters need not be shown to- have forged the instrument' uttered; but, to convict one of having uttered a false and forged instrument, an essential element of the proof is that it is in fact a forgery, or of such a character that, if made with fraudulent intent, the maker would be guilty of forgery. 2 Bishop, N. Cr. 1. section 605. But the fraudulent intent in the false making, though essential to constitute the crime of forgery, need not be proven to establish the crime of uttering. This appears from the statutory definition of the latter offense. Section 4854 of the Code declares that, \\\"if any person utter and publish as true . . . any instrument in writing mentioned in the preceding section (that defining forgery) knowing the same to be false, altered, forged or counterfeited with intent to defraud,\\\" he shall be punished accordingly. If the writing is of the kind enumerated in the preceding section, and is false, it is sufficient as a\\u00f1 instrument with which to commit the offense of uttering and- publishing as true, and to establish the latter offense it is not essential to prove by whom it was made or with what intent.\\nManifestly, then, acquittal of the crime of uttering and publishing as true does not involve a finding that the instrument alleged to have been passed was forged, and this is the conclusion reached by courts generally. Beyerline v. State, 147 Ind. 125 (45 N. E. 772) the accused was acquitted on an indictment for uttering in which he was alleged to have made the instrument, and the court held that this was not a bar to prosecution for the crime of forgery, saying: \\\"Neither is it correct to say that the proof to sustain one charge is the same as would be required to support the other. It is true that it is stated, in the information set out in the plea, 'that the names of the said George Beyerline and Jacob Schapvenacker were false and forged by the said Fred Beyerline'; but that is by way of recital, and not as a charge, the words being simply descriptive of the signatures to the note. Surely if such statement and description had been made, showing that the names had been forged by another person named, it would not be contended by counsel that such other person would thereby be sufficiently charged with the crime of forgery.\\\" In Missouri a statute prohibits a trial of \\\"any offense necessarily included\\\" in an indictment on which the accused has been acquitted or convicted, and in State v. Williams, supra, the defendant interposed as a plea in bar to a prosecution for forgery an acquittal of having uttered the same instrument, and the court held that forgery was not an included offense, and, as proof of forgery by some one else would have sufficed in the charge of uttering, forgery by the accused was not necessarily included in uttering,' and for these reasons the plea was overruled. In Preston v. State, 40 Tex. Cr. App. 72 (48 S. W. 581), a former acquittal of the charge of forging the identical instrument was held not to be a bar to prosecution for' uttering on the ground that the two are distinct offenses, and a like ruling was made in Hooper v. State, 30 Tex. App. 412 (17 S. W. 1066, 28 Am. St. Rep. 926). In Harrison v. State, 36 Ala. 248, a former acquittal of the charge of having forged the instrument alleged to have been passed was held not to be a bar to the prosecution, as it did not appear that \\\"the facts alleged in this, the second indictment, if proven to be true, would have warranted a conviction of the first indictment.\\\" See, also, Ball v. State, 48 Ark. 94 (2 S. W. 462); State v. Moore, 86 Minn. 422 (90 N. W. 787, 61 L. R. A. 819), cited by appellant, is not in point.\\nAs indicated in the-Indiana case, the reference to the instrument alleged to have been passed in an indictment for uttering as false, forged and the'like is descriptive characterizing the means employed to perpetrate the crime. No allegation that the accused made the false instrument or, if he did, that this was done with fraudulent purpose, is essential, and upon conviction or acquittal of the charge the question as to whether the instrument in fact was forged remains open. Section 5405 of the Code provides that \\\"the jury must render a general verdict of 'guilty' or 'not guilty' which imports a conviction or acquittal of every material allegation of the indictment.\\\" Manifestly this has reference to acts or omissions of which the accused is charged. Otherwise there might be a conviction or acquittal of matters for which the accused might not have been responsible at all. Neither in the accusation nor trial for the fraudulent uttering is the responsibility of the accused for the falsity of the instrument involved, and it would be preposterous to say that, though not charged with the false making, a verdict of not guilty would constitute an acquittal thereof. In many of the decisions it is said that-the most infallible test by which to determine whether a former judgment is a bar or not is to inquire whether the same evidence will support both the present and the former prosecution. In State v. Waterman, 87 Iowa, 255, both indictments charged the obstruction of a highway and acquittal on the first was on the ground that there was no highway to be obstructed, and this was held to bar the second prosecution. In State v. Ingalls, 98 Iowa, 728, an acquittal on an indictment for larceny was held not to operate as a bar to a prosecution for breaking and entering, part of the same transaction when the larceny was committed. In State v. White, 123 Iowa, 425, an acquittal of the' charge of keeping a gambling house was adjudged no bar to a prosecution for gambling. In State v. Stone, 75 Iowa, 215, an acquittal of uttering and publishing as true a certain false and- forged note and chattel mortgage was held good as a plea in bar to a prosecution for obtaining money by false pretenses in the same transaction, for in each indictment the essential element of charge was the representation of the false instrument as genuine. In State v. Price, 127 Iowa, 301, an acquittal of the ci'ime of rape on a child under fifteen years of age was held to bar a prosecution for incest alleged to have been committed within the period covered by the charge of rape. See State v. Webber, 76 Iowa, 686. In State v. Caywood, 96 Iowa, 367, a judgment of acquittal in a larceny case was held not to be an adjudication of the truthfulness of the defendant's denial of guilt in the sense that it would bar a prosecution of perjury. In State v. Mikesell, 70 Iowa, 176, the accused had been acquitted of the crime of larceny from a house in the nighttime, and this was adjudged to bar a prosecution based on the same transaction for the crime of robbery on the ground that larceny is an essential element of both offenses. An acquittal of manslaughter is held to be a bar to a prosecution for murder, for that the allegation of unlawful killing of which there has been an acquittal is an essential element of both offenses and has been once adjudicated. Scott v. U. S., Morris (Iowa), 142. As affirming the same principle as applied to other crimes, see State v. Gleason, 56 Iowa, 203, and State v. Murray, 55 Iowa, 530. In State v. Foster, 33 Iowa, 525, a conviction of assault and battery was held not to bar a prosecution for assault with intent to commit a great bodily injury. It will be observed upon examining these and other authorities that until the case at bar no one had ever thought of interposing an acquittal of an offense alleging no act or omission of the accused constituting the crime in the indictment as a bar to the prosecution of the latter, and no case can be found in the books lending support to such a doctrine. It is unsound. All the decisions are the other way. The ruling on the demurrer was correct.\\nV. Appellant also contends that he has been denied the equal protection of the law. This, as we understand the brief, is based on the assumption that the judges before whom he was tried were prejudiced. If so, . . , ,. . , , , , the proposition has been disposed oi by what ^ x A d . bas already been said. In tbe course of bis brief, the suggestion also is made that reliance is placed on other errors we are expected to discover in going through the transcript of evidence on file. Section 5462 of the Code does require the Supreme Court to \\\"examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties and render such judgment on the record as the law demands.\\\" The record meant is that upon which the cause is submitted. This may be on transcript of all papers in the case on file save those returned by a committing magistrate and all entries in the record book. Section 5450, Code. This does not include the evidence. Harriman v. State, 2 G. Greene, 271. See State v. McGlasson, 86 Iowa, 47. Or the appeal may be presented, as appellant elected to submit this, on printed abstracts and arguments as provided by the rules of this court. Section 5461, Code. In the latter event, the abstracts constitute the record referred to and are presumed to contain everything essential to the determination of all points raised in argument. Questions not raised in the printed argument are deemed to have been waived. Because of appellant's reliance on a different construction of these statutes, however, we have examined the transcript of evidence with care and discover no error in any ruling adverse to defendant. \\u2014 Affirmed.\"}"
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+"{\"id\": \"2168312\", \"name\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants\", \"name_abbreviation\": \"Doyle v. Emerson\", \"decision_date\": \"1910-01-11\", \"docket_number\": \"\", \"first_page\": \"358\", \"last_page\": \"362\", \"citations\": \"145 Iowa 358\", \"volume\": \"145\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:12:08.733228+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants.\", \"head_matter\": \"Rosala M. Doyle, Plaintiff, v. Mamie Emerson and C. P. Emerson, Defendants.\\nI Conveyances: covenants against incumbrance:'breach: pleading and proof. In this action for breach of covenant against incumbrances it was alleged in the answer that the grantee accepted the deed with knowledge of the incumbrance and had assumed the same; but as the agreement to assume rested wholly in parol evidence thereof was inadmissible in the absence of a plea of mistake and a prayer for reformation of the deed.\\n2 Same: knowledge of incumbrance. Knowledge of an incumbrance by the grantee is not a defense to an action for breach of Warranty against incumbrances.\\n3 Covenants against incumbrance: breach: redemption from tax sale. In this action the husband bought outstanding tax sale certificates against land owned by his wife and held the same, in no manner treating the' purchase as a redemption. Thereafter both he and his wife conveyed the land with covenants against incumbrance, and it is held that the certificates were an incumbrance rendering their remote grantees liable on their covenants, and which they were justified in redeeming.\\nAppeal from Linn District Court. \\u2014 Hon. E. O. Ellison, Judge.\\nTuesday, January 11, 1910.\\nThis is an action for damages for an alleged breach of covenant of a warranty deed. There was a verdict and judgment for plaintiff, and defendants appeal. \\u2014\\nAffirmed.\\nThompson & Son, for appellants.\\nJos. Melcota and Carroll Bros., for appellee.\", \"word_count\": \"1390\", \"char_count\": \"8081\", \"text\": \"Evans, J.\\nThe defendants are wife and husband. On August 10, 1905, they conveyed by warranty deed certain lots in Cedar Eapids to John E. Doyle. The deed contained full covenants of warranty, including a warranty that the premises were free from incumbrance. In February, -1906, the grantee Doyle died testate, leaving his widow, the plaintiff herein, as his sole devisee. At the time of the conveyance in question, the premises conveyed were subject to a lien for paving taxes to become due in equal annual installments extending over a period of five' or six years. The plaintiff paid these paving taxes and brought this action to recover the amount thereof from the defendants on their covenants. The answer filed by the defendants averred that the grantee, Doyle, had \\\"assumed- and agreed to pay\\\" the paving tax in question, \\\"and that the deed was accepted by him with full knowledge of the tax.\\\" It was not averred whether the agreement was in writing' or not, nor was the answer attacked either by motion or demurrer. The case came to trial before the court and a jury.\\nI. Appellant's argument does not advise us of the specific errors complained of. The instructions of the court are not set forth in the abstract. There do not appear to have been any rulings on the evidence adverse to the appellants. The argument is devoted to the merits of the case as a ^ple. The evidence is undisputed as to the amount of the paving taxes against the property. It is also undisputed that they were a lien upon the property at the time of the execution of the deed, .and at the time of the execution of the contract preceding the deed. Appellants plead such preliminary contract and set it forth in their answer. But such contract expressly provides that the property shall be \\\"clear of incumbrance, with taxes for 1904 to be fully paid.\\\" This contract therefore avails the defendants nothing in support of their defense. The alleged agreement, if any, of Doyle to assume the payment of such paving taxes, rested wholly in parol. It was not available to the defendants in this action under the issues as made. If such was the real agreement between the parties in pursuance of which the deed was executed, then there was a mistake in the deed and contract. The defendants did .not plead such mistake. They could have pleaded the same as an equitable defense or cross-bill. Section 3566 of the Code. They could have asked a reformation of the deed by cross-bill, and would have been entitled to a trial of such issue before a trial of the issues at law. Byers v. Rodabaugh, 11 Iowa, 53. They could also have brought an independent action in equity to reform the deed if they had chosen to do so. They did nothing of this kind, doubtless for the sufficient reason that the evidence available to them was insufficient to establish their claim. The only evidence exhibited on the trial was a carbon copy of a letter purporting to have been written by O. P. Emerson to grantee, Doyle, on August 28, 1905. This letter would indicate the writer's understanding and claim at that time that Doyle was to pay the installments of paving tax falling due in the future. A letter from Doyle dated August 31st makes no reference to the subject. If this letter was the answer to Emerson's letter, an inference of acquiescence might be drawn. The value of this evidence, standing alone, is not very great, although it might have been very important as corroborating evidence. Doyle being dead, the Emersons were precluded from testifying. One Mather acted as agent and.attorney for both parties in the transaction. But he also died before the trial. Appellants' contention is left, therefore, without any support in the evidence.\\nIt is argued that the burden was upon the plaintiff to show misrepresentation and deceit on the part of .the grantors; but there is no merit whatever in this claim. The covenant in the deed against incumbrances was broken as soon as made, and it . _ ' was not material that the grantee had notice of such incumbrance when he purchased. Harwood v. Lee, 85 Iowa, 622; Yancey v. Tatlock, 93 Iowa, 386. Under the evidence in this record the plaintiff appellee was entitled to a directed verdict so far as these paving taxes were concerned. The court saw fit, however, to submit the question to the jury, and the appellants have no ground to complain on that score.\\nII. In 1899 the premises in question were sold at tax sale for the taxes of 1898 to one Heins. The tax purchaser, under his certificate, paid the taxes f\\u00b0r 1899, 1900 and 1901. The tax sale certificates were apparently outstanding against premiSes. The plaintiff after acquiring the premises, sold the same, and, in order to make a good title, made redemption at the auditor's office from such tax sale by paying in the amount necessary to redeem, as computed by the auditor. The amount so paid is included in her claim' in this action. As against this part of the claim, the defendant, C. P. Emerson, claims that in May, 1902, he purchased the tax certificates from Heins, and paid him therefor and that he has held them ever since. Such fact seems to be undisputed. Appellants' contention is that such purchase amounted to a redemption. We infer from the record that the title to the premises was in the defendant Mamie Emerson. Whether the mere purchase of the tax certificate by the husband would operate as a redemption where the legal title was in the wife, we will not now determine. It does not. appear that in this case Emerson treated his purchase as a. redemption, nor that he surrendered the purchased certificate either to his wife, or to the auditor, nor that he brought the matter to the attention of the auditor in any way. So far, there-fore, as third parties were- concerned, there was an outstanding lien apparently valid against the premises which they could not ignore.. That the plaintiff discharged such lien in good faith without any knowledge of the ownership of the certificate by Emerson is not put in question. It seems to us, therefore, that the defendants are in no position to complain as against the plaintiff. If they hold the certificates by purchase, they are undoubtedly entitled to receive the redemption money from the hands of the auditor. If there is any reason why such a course will not fully protect the defendants in that regard, it does not appear in this record. Not only do we find no error in the record, but we see no way whereby a different result could have been properly reached upon the evidence introduced, \\u2022 and upon the issues as made.\\nThe judgment below must therefore be affirmed.\"}"
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+"{\"id\": \"2175919\", \"name\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants\", \"name_abbreviation\": \"Doyle v. Duckworth\", \"decision_date\": \"1910-12-17\", \"docket_number\": \"\", \"first_page\": \"623\", \"last_page\": \"634\", \"citations\": \"149 Iowa 623\", \"volume\": \"149\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:01:33.723897+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants.\", \"head_matter\": \"Terrance Doyle, Appellee, v. Anna C. Duckworth et al., Appellants.\\nl Equitable actions: reference: certificate of referee. Under the statute providing that in equitable actions where issues of fact are joined all of the evidence shall be taken down in writing or by deposition and shall be certified by the judge for the purpose of a retrial, a referee trying the case must certify to the evidence offered before him for the purpose of facilitating a review of his findings; and his certificate .must be as definite and certain as that required to be made by the trial judge, and must cover and include all the evidence offered before him.\\n2 Same: certificate of trial judge. Although the referee\\u2019s certificate of the evidence offered before him is sufficient, still when an appeal to the Supreme Court is taken it is from the order and judgment of the trial court and not from the conclusions ,of the referee, so that it is necessary for the trial judge to certify to the evidence offered and introduced in the district court in order to identify the evidence upon which the court acted, and to make it of record when filed for the purpose of a trial anew under the statute.\\nIn this action neither the certificate of the trial judge nor the decree entered, if treated as a certificate, are sufficient to meet the requirements of the statute.\\n3 Same: certification of evidence: waiver of defect: review on appeal. By filing an amended abstract, as in this case, before moving to strike the appellant\\u2019s abstract because of an insufficient certificate of-the evidence to authorize a trial de novo, the appellee did not waive the defect in the certificate, where he expressly alleged in his amended abstract the lack of such certificate. And where there was no proper certificate of the evidence to permit a trial de novo the appellate court must take the findings of fact as made by the referee and affirmed by the trial judge as true, and determine therefrom the correctness of his conclusions of law and of the final decree.\\n4 Partnership: advancements : interest. Ordinarily interest will not be allowed individual partners on advancements made by them to the partnership; but where they have contracted for the allowance of such interest their agreement will be enforced.\\n5 Same: account stated. Statements by a partner to another will not be treated as an account stated.\\n-6 Same: dissolution: burden of proof. One partner alleging a settlement between them has the burden of proof on this issue in a suit for dissolution of the partnership.\\nAppeal from Pocahontas District Court. \\u2014 Hon. A. D. Bailie, Jtidge.\\nSaturday, December 17, 1910.\\nSuit in equity for a partnership accounting. Defendants denied the partnership and pleaded other matters not necessary to be noticed at this time. The trial court rendered judgment for plaintiff on a referee\\u2019s report, and defendants appeal\\nAffirmed.\\nC. G. Macy, B. J. Price, and Lane & Waterman, for appellants.\\nKelleher & O\\u2019Connor and Ralston & Shaw, for appellee.\", \"word_count\": \"3529\", \"char_count\": \"20171\", \"text\": \"Deemer, C. J.\\nThe case was originally tried to a referee who made a report to the district court with his conclusions of fact and of law. Upon the coming in of the report each party filed objections thereto and motion to set aside and modify the same and the cause was submitted to the trial court upon these motions, resulting in the confirmation of the report and a decree for the plaintiff. From these rulings and from the decree, defendants appeal.\\nThe referee made the following certificate to his report and to the testimony taken before him: \\\"A large part of the evidence was introduced by way of depositions which have been returned into court; and the balarLce the testimony (being that taken 44^ an\\u00bf 5 th, 1908) was reduced to writing and filed herein; so that there is no part of the testimony which had not been fully extended into longhand and transcripts thereof filed herein; and the whole of the testimony is now before the court. These depositions and extended transcripts are now made a part hereof; and in a broad sense this referee reports the facts to be in accordance with the showings made by such testimony and the exhibits returned with it. These depositions are those of the plaintiff, his brother, Dr. E. l\\\\f. Doyle, Cromwell Gf. Macey, and Nelson A. Farr and. The testimony taken before the referee consists of that given by the witnesses Henry C. Doyle Leonard Doyle, II. J. Murray, O. E. Christenson, P. M. Beers, and W. C. Ralston. The exhibits referred to and introduced as a part of the testimony of these witnesses are also a part of the evidence, and all of these are now made a part of this report. It must be a source of satisfaction to the parties herein\\u2014 as it is also to this referee \\u2014 that the evidence is thus placed before the court in full and that whatever mistakes this referee may make in reporting the facts or the law may easily be corrected and reviewed upon the final hearing of this report.\\\" This so-called certificate is found in the final report of the referee.\\nThe only timely certificate made by the judge, if there be any at all, is found in the decree which was signed by the trial court from which we extract the following: \\\"Pursuant to said stipulation and order duly entered of record at the May term, 1909, of the district court of Pocahontas County, Iowa, this cause was duly heard upon the report of F. C. Gilchrist, referee, and the exceptions and objections of both parties thereto. . . . And the cause was thereupon taken under advisement to be decided as aforesaid, . . . and the court having inspected and examined the proofs of service files and records herein, and the report of said referee, together with the objections and exceptions thereto, and having heard, read, and examined the evidence and testimony offered and received upon the part of both the plaintiff and defendants, and having considered the arguments, etc. . . .\\\"\\nAppellee says that this is not a compliance with section 3652 of the Code, as recently amended (Acts 31st General Assembly, chapter 155), reading: \\\"In equitable actions wherein issues of fact are joined, all the evidence offered in the trial shall be taken down in writing, or the court may order the evidence, or any part thereof, to be taken in the form of depositions, or either party may, at pleasure, take his testimony, or any part thereof by deposition. All the evidence so taken shall be certified by the judge at any time within six months after the entry of a final decree, and the evidence and certificate be made a part of the record, and go on appeal to the Supreme Court, which shall try the cause anew. But this section shall be so construed as to include the evidence taken in shorthand, when the reporter's notes of such evidence have been certified to by the judge and reporter within the time herein provided.\\\" Code Supp. 1907, section 3652. This section has been construed in many cases, from some of which we shall quote.\\nIn Smith v. Harlan, 49 Iowa, 101-102, it is said: \\\"We are asked to review the findings of fact. To this the appellees object, upon the ground that they were not reviewable in the court below. .\\u2022 . . Trials before a referee should have as much certainty in their methods are trials in court. As the findings of fact by the referee have the effect of a special verdict, there should be facilities for reviewing them equal to the facilities provided for reviewing a special verdict. The unsuccessful party, therefore, has a right to have all the evidence certified. If the referee omits to certify it, and the unsuccessful party desires a review upon the findings of fact, it appears to us that he is entitled upon a proper motion to have the report set aside and recommitted, with an order to report with the findings all the evidence duly certified.\\\"\\nThis certificate must be as particular and certain as that required of certificates to be made by the trial judge. We doubt if the referee made any such certificate. It does not appear that the referee certified to all the evidence offered. This is the requirement of the section as construed in Second Nat'l Bank v. Ash, 85 Iowa, 74; Baldwin v. Ryder, 85 Iowa, 251; Taylor v. Keir, 54 Iowa, 645; Polk v. Sturgeon, 71 Iowa, 395; Cheney v. McColloch, 104 Iowa, 249; Greenlee v. Ins. Co., 103 Iowa, 484; Dwyer v. Rock, 115 Iowa, 722; Spinney v. Halliday, 115 Iowa, 420.\\nBut conceding, for the purposes of the case, that the referee's certificate was sufficient, it was also necessary for the trial judge to certify the same. On this point we said, in Porter v. Everett, 66 Iowa, 278: \\\"It is not claimed by appellant that the evidence has been so certified but he relies upon a certificate to the evidence made by the referee and returned with his report. It appears to us that the section of the Code referred to is a positive and peremptory requirement and that the certificate must be made by the judge. Of course, .the evidence, as returned by the referee, must be identified by him by some statement or certificate, to enable the district court to know upon what evidence his finding of facts and conclusions of law were based.\\\"\\nAnd again, in Young v. Scoville, 99 Iowa, 177, we announced the same rule by saying: \\\"When an equity case is sent to a referee there are, in' effect, two trials, one before the referee and the other before the district court; and an appeal, when taken, is not directly from the decision of the referee, but from the decision of the district court. In order to try the questions presented to it anew, we must have all the evidence offered or introduced. before the district court, properly certified by the judge who tried the case. The referee can not make this certificate, for he does not know what transpired before the judge who finally decides the controversy. His certificate relates only to that which was offered before him, and is for no other purpose than to identify the evidence upon which he acted. We have held that the referee is not the court (Hobart v. Hobart, 45 Iowa, 501; Belzor v. Logan, 32 Iowa, 322) ; that the power of the court in acting upon the report of a referee is not merely appellate (Edwards v. Cottrell, 43 Iowa, 194; Hodgin v. Toler, 70 Iowa, 21); and that, to secure a review of the findings and conclusions of a referee in a law action, exceptions must be taken to the ridings of the district court thereon; and that exceptions taken before the referee are not sufficient (Roberts v. Cass, 27 Iowa, 225; Bolton v. Kitsman, 80 Iowa, 343; Michael v. Longman, 42 Iowa, 484). Such holdings clearly indicate that where there is a reference there are, in effect, two trials, and that when an appeal is taken, it is from the order and judgment of the trial court, and not from the conclusions of the referee. Such being the case, it is clear that a certificate from the trial judge is necessary to identify the evidence upon which he acted. See Teague v. Fortsch, 98 Iowa, 92.\\\"\\nTreating the recital in the decree of the trial judge as a certificate, it will be observed that it does not meet the statute and decisions before referred to in many particulars. For example, it says that he \\\"examined the files and records and the report of the referee, and read and examined the evidence and testimony offered and received upon the part of both plaintiff and defendants.\\\" What this testimony is no one knows; at least this statement offers no light upon the question. Moreover, under our holdings, a certificate to the testimony offered and received or offered and introduced is not sufficient. .See cases hither.to cited. Moreover, there is no statement whatever as to what the testimony was which was offered and received upon the part of the parties. There is absolutely nothing in this certificate from which the testimony can be identified.\\nIn Bauernfiend v. Jonas, 104 Iowa, 56, we said: \\\"That, with other cases cited, fixes the rule that it is the office of the certificate of the judge to identify the evidence, and make it of record when filed, while it is the office of the certificate of the clerk to identify and authenticate the record. As we have said, the complaint here is that the evidence is not in the record, and, if not, it is not the province of the clerk to certify it to this court. There seems to be no escape from the conclusion that the evidence is not here for consideration.\\\"\\nIn Runge v. Hahn, 75 Iowa, 733, we said: \\\"The statute (Code, section 2742, as amended by chapter 35, Acts 19th General Assembly) requires the trial judge in eqxiitable actions to certify all the evidence offered and introduced upon the trial. The object of this provision is to secure such identification of the trial that no question can fairly arise upon appeal as to what the evidence is. The certificate of the judge, when it properly identifies the evidence, has the effect to make it part of the record. It is not essential, as was contended by counsel'for appellee, that it contain an express declaration or order making the evidence part of the record; but that result follows when it identifies the different items of evidence offered and introduced on the trial, and is signed in due time. And it can not, in the matter of identification, be supplemented by the certificate of the clerk. The office of the certificate of the clerk required by section 3184, since the enactment of chapter 35, Acts 18th General Assembly, is to identify and authenticate the record. Before that enactment, depositions and other papers used merely as evidence were not deemed part of the record, and could be identified by the clerk's certificate; but its effect clearly is to change that rule. Cross v. Burlington & S. W. Ry. Co., 58 Iowa, 63, arose before its enactment, and it is not now authority on the question. A recital in the certificate, that the cause was submitted upon packages of depositions filed upon dates, does not identify the evidence, and does not comply with the requirements of the statute. Bor sxich recital would apply to any depositions which may have been filed upon those dates, and leaves it to the clerk and the parties to determine what particular depositions were intended. But the confusion and uncertainty which was liable to arise under that practice is the very evil which the Legislature intended by the enactment to correct. The certificate then should, by setting out the name of the witness, or the name of the officer before whom the depositions were taken, and the date when taken, or other explicit recital, identify with certainty the items of evidence referred to.\\\"\\nThe certificate in that case said: \\\"And now, on this day, to wit, . . . this cause came, on for hearing. . . . The cause is tried and submitted to the court on the following evidence, and none other, to wit: Plaintiff offers (1) package of depositions filed June 23, 1885; (2) package of depositions filed December 3, 1885; (3) package of depositions filed January 6, 1886. Plaintiff rests. Whereupon the defendant offered the following evidence, to wit: Package of deposition filed December 26, 1885. Defendant rests. I, W. B. Lewis, before whom the above-entitled cause was tried, do hereby certify that the above and foregoing schedule correctly specifies and refers to all the evidence offered and all the evidence received on the trial of the cause.\\\" This certificate was made more specific than the one now before us, but was held insufficient. See, also, Burnett v. Loughridge, 87 Iowa, 324; Bunyan v. Loftus, 90 Iowa, 122; Teague v. Fortsch, 98 Iowa, 92.\\nAppellants say, however, that before moving to strike appellee filed an amended abstract, and that this amounted to a waiver of the question now presented, and they rely upon Sarvis v. Caster, 116 Iowa, 707, and Conners v. Ry. Co., 74 Iowa, 383. The difficulty with this proposition is that in each amendment the record was challenged.\\nThe denial in the first amended abstract read: \\\"The appellee denies that the abstract filed in this cause by the appellant is a full, complete, and correct abstract of the evidence taken in the court below, denies that said abstract shows all of the evidence, objections, and ruling thereon, and denies that it is a complete record of all. of the proceedings had in this canse.\\\"\\nIn the second amendment the averment is: \\\"Appellee expressly denies that the testimony which was taken before the referee is 'of record' in this cause, in accordance with the provisions of the statutes of the state of Iowa. And appellee states and shows that the testimony and evidence which was taken, heard, and offered before the referee was in no manner certified by the referee, save as reference thereto was made in the report of the referee, set out in the abstract, pages 161-1Y3. That no certificate of any kind was made to the said evidence or any part thereof by the court or judge. Appellee expressly and specifically denies that there was a certificate of any kind made or signed by the court or by any judge thereof, within the time allowed for an appeal in said cause, or at any time, and no such certificate was ever made a part of the record or is any part of the record, and no such certificate was ever filed or entered of record in said cause, or executed by any court or judge, and appellee expressly and specifically denies that the said evidence and testimony is of record in said cause or has been preserved as required by law.\\\"\\nThe Conners case, supra, was practically, if not expressly, overruled in Hershey v. Nyenhuis, 103 Iowa, 195, and in the Sa/rvis case it does not appear that any denial was filed.\\nSurely there was no waiver here. In this state of the record there is nothing to be done save to take the findings- of fact of the referee as correct and determine therefrom whether. or not his conclusions of law and the final decree are justifiable.\\nThe only point which we can consider, in view of the record, is an allowance made to plaintiff of interest on certain money furnished by him to the partnership. It was agreed that each party should have interest on money advanced by him or that he should have interest on the excess of capital furnished and for the purposes of this appeal it is immaterial which was in fact the agreement. The trial court allowed six percent interest to each, and on Duck-worth's advancements compounded the interest, so that, no matter what the agreement, defendants got no more than interest on the excess of his investment. Of course, neither party to a partnership is entitled to interest on his advancements, profits being considered a return for the use of the money; but the parties may stipulate, as they did here, for the allowance of interest and their agreement will be respected and enforced. If this be not the true rule, then defendants have had the advantage of interest upon the excess investment, and the decree is more favorable to them than they were entitled to.\\nIf it be any satisfaction to the parties we may add that we have gone over the record and find nothing which would justify us in interfering with the decree of the trial court. There was no such account stated as. wouici Dincl the plaintiff. The parties were partners, and a statement made by one to the other can not be treated as an account stated. Gillett v. Chavez, 12 N. M. 353 (78 Pac. 73); Watts v. Adler, 130 N. Y. 646 (29 N. E. 131); Hughes v. Smithers, 163 N. Y. 553 (57 N. E. 1112); Id., 23 App. Div. 590 (49 N. Y. Supp. 115); Martin v. Smith (N. J.) 13 Atl. 398; Donahue v. McCosh, 70 Iowa, 733.\\nDefendants failed to establish the settlement pleaded by them, upon which issue they had the burden of proof. See Hug hes v. Smithers, supra, first reported in 23 App. Div. 590 (49 N. Y. Supp. 115). Plaintiff's contributions were properly treated as advancements made by him, although as *to some things testified to by plaintiff he was incompetent to testify, but such objection does not lie to all his testimony. Much of it did not relate to transactions with deceased.\\nWe are satisfied that both the referee and the trial court came as near to a correct adjustment of the accounts as is.possible under the circumstances, and the decree must be and it is affirmed.\"}"
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+"{\"id\": \"2182177\", \"name\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\", \"name_abbreviation\": \"Des Moines City Railway Co. v. City of Des Moines\", \"decision_date\": \"1911-05-06\", \"docket_number\": \"\", \"first_page\": \"18\", \"last_page\": \"37\", \"citations\": \"152 Iowa 18\", \"volume\": \"152\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:54:05.678633+00:00\", \"provenance\": \"CAP\", \"judges\": \"McClain, J., concurs in the dissent.\", \"parties\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\", \"head_matter\": \"Des Moines City Railway Company, Appellee, v. City of Des Moines, Appellant, et al.\\nStreet railways: paving: statutes: ordinances: construction. In the construction of a statute all of its parts should be given effect if this can be consistently done; and in arriving at its in terpretation the history of legislaiton on the subject should be regarded.\\nCode, section 834, providing that street railway companies shall at their own expense pave between the rails of the track and one foot outside thereof, unless by ordinance or by virtue of the provisions of any ordinance under which the railway might have been constructed or maintained it may be required to pave other portions of the street, means that the company may be required to pave not less but more than the statute requires; and a city is not bound by an ordinance on the subject existing at the time of the enactment of said section, which is a valid exercise of legislative power, but may enact a new ordinance by virtue of that section fixing the portion of the street which the railway company may be required to pave, and if in force at the time of paving it wjill govern the railway company\\u2019s duty.\\nEvans and McClain, JJ., dissenting.\\n\\u2018Appeal from Polh District Court. \\u2014 Hon. W. H. McHenry, Judge.\\nSaturday, May 6, 1911.\\nAppeal by the city of Des Moines from an order of the district court reducing certain paving assessments imposed by its city council against the Des Mo'ines City Railway Company. The controversy presented for our consideration includes thirty-three appeals. The decisive question is the same in all, and they ar\\u00e9 submitted here by stipulation upon the same record. The city council imposed upon the railway company certain paving assessments. The amount in each case was fixed upon the theory that, the railway company was liable for the cost of the paving for a width of seven feet, viz., three and one-half feet on each side of the center line between its rails. The railroad company concedes its liability for such'paving for a width of five feet, which is the space between its rails. The trial court sustained the contention of the railway company and ordered a reduction of the assessments accordingly. From this order the defendant city has appealed. \\u2014 Reversed.\\nRobert 0. Brennan. and James M. Parsons, for appellant.\\nGuernsey, Parker .& Miller, for appellee.\", \"word_count\": \"6467\", \"char_count\": \"37062\", \"text\": \"Deemer, J.\\nThe solution of the question presented depends upon the construction which shall be placd upon section 834 of the Code, which, so far as material, reads as follows:\\nAll railway and street railway companies shall be required to make, reconstruct and repair all paving, graveling or macadamizing between the rails of their tracks, and one foot outside thereof, at their own expense, unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may have been maintained, it may be bound to pave, macadamize or gravel other portions of said street, and in that case said railway or street railway shall make, reconstruct and repair the paving, graveling or macadamizing of that part of the street specified by such ordinance; and such improvement, or -the reconstruction or repair thereof, shall be of the material and character ordered.by said city, and shall be done at the same time the remainder of said improvement is made,' reconstructed or repaired. . . . They shall keep the paving, graveling or macadamizing between said rails, and one foot outside thereof, or such other part as they are liable to construct or maintain, up to grade and in good repair, using for such purpose the same material as used for the original paving, graveling or macadamizing, or such other material as the council may order. . .\\nThis statute as it now reads was framed by the Code Commission as a codification of the law theretofore existing as found in McClain's Annotated Code of Iowa, 1888, sections 725 and 829, and the Acts of the Twenty-Third General Assembly, chapter 9, section 1, and of the Twenty-Fifth General Assembly, chapter 7, section 10. On the general subject of street improvements, etc., and of the laws then existing with .reference thereto, the Code Commission said:\\nThe present law as to construction of street improvements and sewers is in the greatest confusion. The attempt is made in this chapter to reduce the whole legislation on the subject to a system, preserving the beneficial features of all the statutes (including in instances provisions found in statutes which relate at present only to cities under special charter) and to make the procedure as to the street improvements and sewers harmonize as far as practicable. The powers are made uniform in all cities of five thousand. . . . McClain's Code, sections 817, 853,, are omitted as covered by these general provisions.\\nIn the general report of that Commission we find the following expression as to its purposes, aims, and accomplishments :\\nIn the exercise of the duty of rewriting the law and improving its phraseology, the commission has made many verbal changes, but has done so with great care in order that the meaning of the statutes should not be thereby materially changed. The language of the act as above quoted indicates, however, that some alterations in the law for the purpose of securing completeness, and to improve, systemize, and harmonize it and make it clear and intelligible, were contemplated as within the scope of the duties of the Commission, and it has therefore recommended some changes, having in view, however, the unification and perfection of the system of the written law as it now is, rather than the enlargement of it or its change in material matters. . . . Wherever the Code as reported does not exactly follow the present statutory language the new words are underscored,or if a whole section has been rewritten it is all underscored. The underscoring therefore does not necessarily indicate any new law, but if provisions are new, they are necessarily underscored. . It must be distinctly understood that a change of language does not necessarily indicate any intention to change the meaning of the law. The Commission is authorized to rewrite the sections of the Code and statutes for the purpose of improving the expression of the law, and it has faithfully done so, omitting much that is superfluous and improving the statement and arrangement of the written law where practicable. In some chapters the transposition of words, sentences and sections has been so general that substantially entire chapters are underscored without being in any sense new, for instance in the chapters relating to cities and towns, state institutions, and the public schools.\\nWith this in mind, then, it becomes important to go to the law as it existed at the time the act under consideration was framed. The Twentieth General Assembly passed an act known as chapter 20, containing a section reading in part as follows:\\nAll railway companies and street railway companies in cities of the first class as provided in section one of this act, shall be required to pave, or repave between rails and one foot outside of their rails, at their own expense and cost. Whenever any street, highway, avenue or alley shall be ordered paved or repaved by the council of any such city, such paving or repaving between and outside the rails shall be done at the same time and shall be of the same material and character as the paving or repaving of the street, highway, avenue or alley upon which said railway track is located, or of \\u00a7uch other material as said council may order, and when said paving or repaving is done said companies shall lay in the best approved manner the strap or flat rail, such railway companies shall keep that portion of the streets, highways, avenues or alleys between and one foot outside of their rails, up to grade and in good repair, using for such purpose the same material with which the street, highway, avenue or alley is paved upon which the track is laid, or such other material as said council may order.\\nIt may be that this act did not have reference to the city of Des Moines; but it is part of the legislative history of the state, and from that standpoint should be considered.\\nThe Twenty-Second General Assembly passed an act which, among other things,, contained the following provision :\\nCities of the first class . . . shall have the further -and additional powers conferred by this act, . . . to wit, they shall have power to compel street railway companies, whenever any street is ordered paved, to pave and maintain in width three and one-half feet each way commencing at the center of the space betw\\u00e9en the rails, and in case of failure to do so to provide by ordinance for such paving and maintenance, and for the manner of assessing against such companies the cost thereof . . . Acts Twenty-Second General Assembly, chapter 16.\\nBy the acts of the Twebty-Bifth General Assembly, chapter 7, it was provided, in section 10 thereof, that:\\nWhenever any railroad or street railroad may have been constructed, and shall remain upon any street which the council may direct to be paved, at the time when such direction shall be given, and when the owner of such railroad or street railway may be bound to pave any portion of said street by law or ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city,' under which said railway or street railway may have been constructed or may be maintained, and if the owner shall fail or refuse to comply with the order of the council to do such paving, then the portion of the cost of paving such street assessable upon such railroad or street railway shall be ascertained, and shall be assessed against such street railway.\\nSuch was the condition of the written law of the state when the Code Commission came to rewrite the same. These acts passed the scrutiny of the courts, and it was held that they were constitutional and might be made to apply to street railway companies whose franchises were granted before the law took effect. See Sioux City R. R. Co. v. Sioux City, 78 Iowa, 367, and same case, 78 Iowa, 742.\\nAgain in Marshalltown Light, P. & R. Co. v. Marshalltown, 127 Iowa, 637, which was decided long after section 834 of the Code was adopted, it was held that the provisions of a franchise ordinance exempting a street railway company or its assigns from any duty to pave, macadamize, or improve a street was not such a contract as could not be affected by subsequent legislation imposing a duty upon such company to pave between and outside the rails of its tracks. That decision quotes section 834 of the Code and holds that the city may require paving as provided in said section under a resolution passed after section 834 went into effect. It does not appear in that case when, if ever, an ordinance was passed requiring the street railway to bear its share of the expense of paving. It does appear, however, that the paving was authorized and provided for in the year 1902, which was long after the adoption of section 834 as it now appears in the Code. The franchise ordinance in that case expressly provided that the street railway company should not in any case be required to pave or macadamize any part of the street over which its railway had been constructed.\\nThe result of the whole matter, then, is that, unless section 834 as it now appears changed the law theretofore existing, the trial court was in error in holding that the street railway company was not required to pave more than five feet in width of the street. Going now directly to this section, it will be observed that the primary duty of the street railway company is to pave between the rails of its track and one foot outside thereof. This it must do, unless, by ordinance of the city or in virtue of the provisions or conditions of the ordinance under which the street railway was constructed or is being maintained, it may be bound to pave other portions of said street. In that event the railway company shall pave that part of the street specified by such ordinance. They are also required to keep the paving between the rails and one foot outside thereof or such other parts as they are liable to construct or maintain in good repair, etc.\\nIt is a cardinal rule for the construction of statutes that all parts thereof shall be given force and effect if \\u2022this can consistently be done.\\nLegislative history should always be regarded in arriving at a proper interpretation of any given statute. It is clear that down to the time of the adoption of section 834 it was competent for the city council to require the street railway company to make all paving between the rails of their track and one foot outside thereof at the time when the pavement was ordered notwithstanding the provisions of the franchise ordinance. So that, had the law as it then existed not been changed, there would be no doubt of the validity of the order which is challenged in this ease. At the time when the order in this particular case was made, there was, as we understand it, an ordinance requiring the street railway company to pave that part of the street then occupied by it not exceeding three and one-half feet on each side of the center line between the rails. This ordinance, it is true, was passed after the Code of 1891 went into effect, and it is contended that such ordinance is invalid because unauthorized by section 834 of the Code. Indeed, the broad contention is made that, as the original franchise ordinance enacted in 1866 required the railway to pave the space between its rails, this established its duty, and under the terms of the statute now under consideration relieved it from paving more than the amount required by the franchise ordinance, although the city thereafter passed an ordinance valid under the statutes then in existence, requiring the street railway company to pave a greater portion of the street. We can not believe that this is a proper construction of the statute. Certainly it was not the law prior to the adoption thereof. To arrive at such a conclusion it is necessary to read out of the statute the words \\\"unless by ordinance of the city,\\\" for, if the franchise ordinance specifies what portion of the street the street railway must pave, that ends the matter, under the construction which counsel for the railway company would have us put upon the law, no matter if it appears that thereafter in virtue of a valid law there was another ordi nance requiring tbe railway company to pave more than it was required to do under the franchise ordinance. It seems to us that, to arrive at a proper reading of this statute, we should take into account the law as it then existed and so construe it as to give effect to all its terms. This may easily be done by reference to the ordinance in existence when the paving is ordered. If there be such an one which differs from the franchise ordinance, it of necessity supersedes the original franchise ordinance, and is the one under which, the street railway is then being maintained. If there was no other ordinance than the franchise ordinance, and this franchise ordinance fixed the amount to be paved, that would be controlling. Remembering that the council had power by ordinance to change the original franchise ordinance in this respect, it follows that the franchise ordinance is to that extent superseded and is not the one under which the street railway is being maintained. It may be said that this reads something into the statute which does not there appear; but we think not. The effect of it is to say that we look to the ordinance of the city in . force when the paving is ordered, or, if there be none, to the provisions of the ordinance under which the railway may have been constructed or is then being maintained. The obligation to pave must be found in one or the other, and that obligation is the one in existence when the pavement is ordered. If the franchise ordinance be superseded by another, then the railway company is being maintained under that ordinance and not under its original grant.\\nClaim is made that, to determine what ordinance is to govern, we must look to the conditions as they existed when section 834 of the Code was adopted; that is to say, that the date of the adoption of this section fixed the conditions, and that thereafter no ordinance could be passed with reference to the subject of the width of a street that a, street railway may be required to maintain. If this be the law, it is because of the incorporation of section 834 into the Code of 1897. We do not think that it was the intent of the Legislature to tie the hands of city councils by the adoption of this statute. And our conclusion is bottomed primarily upon the notion that we should look to the conditions existing when the improvement is ordered, and not the ordinance in force when this act went into effect. It is entirely too narrow a construction to say that the law has reference to an ordinance in existence when section 834 was passed. This would tie the hands of the council and limit its power to act in the future with reference to the subject matter. Surely this was not intended. It was not the law before the adoption of section 834, and there is nothing in the terms of the act which indicates that it had reference only to ordinances in existence when the section was passed. It does not say ordinance then in existence; and it manifestly has reference to ordinances at any time legally passed with reference to the subject. Moreover, the writer of this opinion is inclined to believe that it may properly be interpreted to mean that the street railway company must pave between the rails of their tracks and one foot outside thereof, unless there be something in the ordinance of the city, or, if there be none, in the franchise ordinance requiring them to pave more.\\nThe words used in this connection are \\\"unless it may be bound to pave other portions of said street.\\\" The words \\\"other portions of said street,\\\" it seems to me, should be construed to mean, not something less which would be included in what was greater, but something more than the statute requires. This may perhaps be a little forced, but it is confirmed somewhat by the provision as to how much the railway company is required to keep in repair. It says \\\"the part between the rails and one foot outside thereof or such other part (which means to my mind some different part) as they are liable to construct or maintain.\\\" My opinion in this respect is not concurred in by all the other members of the court; but I think it is entitled to consideration. Certainly this is true as applied to the franchise ordinance.\\nLooking to the legislative history of this act; to the report of the Code Commission, to the language used, and remembering the fundamental canon of construction that all parts of it should be permitted to stand and be given effect, we are of opinion that the ordinance, passed by the city after the adoption of section 834 of the Code, requiring the company to be at the expense of the paving between the rails and one foot outside thereof, was a valid exercise of power, and that the city is not bound by conditions as they existed when section 834 went into effect, nor is it bound by the terms of the original franchise ordinance. Prior to the adoption of section 834, the city had the right to change the terms of the franchise ordinance with reference to the subject of paving, an,d we do not think that section 834 deprived it of the power to make changes thereafter. If such was the intent, it was most carefully concealed, and we feel sure in affirming that the Code Commission had no intent to change the law in the manner suggested by counsel for the street railway company. Certainly there was no thought on the part of any one that by the adoption of section 834 the duty of the street railway to pave was fixed by the terms of its original franchise ordinance, if perchance it should be found that in that ordinance the subject of paving was covered.\\nWe do not believe that it was the intent to fix conditions with reference to any arbitrary date. The thought was to require the paving between the rails and one foot outside thereof unless the city having plenary power over the matter should require some other width, and as the writer believes some greater or other width.\\nFrom this it follows that the decree rendered by the trial court is wrong, and that it should be reversed.\"}"
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+"{\"id\": \"2193843\", \"name\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant\", \"name_abbreviation\": \"Black v. Miller\", \"decision_date\": \"1912-11-20\", \"docket_number\": \"\", \"first_page\": \"293\", \"last_page\": \"306\", \"citations\": \"158 Iowa 293\", \"volume\": \"158\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:13:43.844890+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant.\", \"head_matter\": \"Archibald Black, Appellee, v. H. C. Miller, Administrator of the Estate of George Black, Deceased, Appellant.\\n1 .Estates of decedents: claims: withdrawal: refiling. After filing . his claim against the estate consisting of several items, claimant served notice of the claim upon the administrator, stating therein that all but two of the items were for the present withdrawn and would be withheld until the court passed upon his petition in another action, in which he claimed a conveyance of certain land in consideration of services covered by the withdrawn items, and that the other items would come on for trial. Held, that the withdrawn items were not dismissed from the claim as filed, but even if they were, the estate remaining unsettled, claimant was entitled under the circumstances to refile the same by an amendment after disposition of the other action.\\n2 Same: former adjudication: estoppel. In a former action by decedent\\u2019s children to partition certain real property, claimant pleaded an oral agreement with decedent to convey to him certain of the land in consideration for the care and support of decedent during his natural life. His claim as made in that action was dismissed as being without support in the evidence, and without any reservation whatever of his rights in the premises. Held, that the deeree was an adjudication barring his right to recover on a claim against decendent\\u2019s estate for the reasonable value of the same service.\\n3 Specific performance: discretion. Specific performance of a contract is not a remedy which a litigant may demand as a right, but it rests in the sound discretion of the court; where, however, the evidence is sufficient and there are no equitable considerations in . the way such decrees are entered as a matter of course.\\n4 Negotiable instruments: genuineness of signature: proof. Where the original note upon which an action is founded, or a copy thereof, is attached to the petition, the genuineness of the signature to the note will be presumed, unless denied under oath by the person whose signature it purports to be; but where neither the original nor a copy was attached to a claim filed against the estate, and all items of'the claim were denied, the burden was upon claimant to establish the genuineness' of the signature to the note before its admission in evidence.\\n5 Instructions: preservation of exceptions. The statute authorizes the reporter to note in his report of the trial, in shorthand or in writing, the fact that the jury is instructed and all exceptions and objections to the instructions given by the court on its own motion, and this report when properly certified is sufficient evidence of the taking ' of, exceptions to the instructions; but there is no authorized preservation of the record of exceptions by the mere certificates of the judge and reporter that they were taken.\\n6 Instructions. The trial judge in his instructions should clearly state the issues rather than copy the pleadings as a part thereof; and he should not assume the genuineness of decedent\\u2019s signature to a note sought to be proven against his estate.\\n7 Use and occupation: prima facie case. To establish a claim for the use and occupation of decedent\\u2019s land, it is not necessary for the administrator to show that there was a mutual understanding that decedent was to ree\\u00e9ive pay for the use of the land. Proof that the occupant entered upon the land, used and occupied it for his own benefit, with the assent of decedent, implies a promise to pay the reasonable value of the use, in the absence-of proof that the use had been paid for or that it was gratuitous; and such defense must be pleaded to be available.\\n8 Same. The rule with respect to the rendition of services by a relative living in the family has no application to a claim against, an occupant of decedent\\u2019s land for its use while decedent was living with and being supported by the occupant.\\nAppeal from, Jefferson District Court. \\u2014 Hon. M. A. Roberts, Judge.\\nWednesday, November 20, 1912.\\nThe claim of plaintiff was allowed against the estate of George Black, deceased, in the sum of $2,500. The administrator appeals.\\nReversed.\\nCrail & Crail, for appellant.\\nLeggett & McKemey, for appellee.\", \"word_count\": \"4966\", \"char_count\": \"28293\", \"text\": \"Ladd, J.\\nThe plaintiff filed his claim against the estate of George Black, deceased, March 10, 1908, consisting of sev enteen items. The first fourteen items, except the twelfth, related to purchases for or improvements on land. Item fifteen related to the amount claimed to be due on a note, and the twelfth item was for money borrowed. The sixteenth item was for services in caring for stock and work on the farm,. and the seventeenth was for \\\"board, washing, and mending twenty years, 1,040 weeks, at $1.50 per week, $1,560.\\\"\\nIn September, 1908, term of the district court the plaintiff caused to be served on the administrator notice of the filing of the claim, and \\\"that the items of s\\u00e1id claim except Nos. twelve and fifteen are for the present withdrawn, ' ' and that the claim in respect to the said items would come on for hearing on the 5th day of October, 1908, and \\\"that the remaining items of said claim are withheld until the court passes upon the petition of said Archibald Black and wife to quiet his title\\\" to sixty acres of land described, which lands George Black agreed to convey to said Archibald Black in consideration of the services covered by said remaining items of the claim. No trial was had at the time stated, and on November 12, 1910, plaintiff filed what is designated as an \\\" amendment to claim,\\\" alleging therein that he amended \\\"his claim heretofore filed against this estate by changing the seventeenth item of the claim so it will read as follows: First.\\u00a3 (17). Boarding, washing, and mending, twenty years, 1,040 weeks, at $3 per week, $3,120, total amount of claim, $5,170/ and files again the claim as amended. Second. He shows that this claim was not filed heretofore in the present form,' because of the pendency of certain litigation in this court in reference to the partition of the real estate of said George Black, in which this claimant presented the claim to sixty acres of land under the verbal agreement of the deceased; that claimant should have the same in consideration of the services hereinbefore stated; that said cause was pending in the' courts of this state until the - day of -, 1910, when the same was determined by the court's finding against the claim of this claimant of said land, on the ground' that same was not sus tained by sufficient evidence to comply with tbe rules of tbe court in such cases.\\\" The defendant answered denying each item of the claim and\\\"that the estate was in any wise indebted to claimant, and pleaded that the claim was not filed within a year after the appointment of defendant as administrator of the estate of deceased and that the circumstances alleged were not sufficient to authorize the filing of the claim thereafter. The answer also pleaded a former adjudication and interposed a counterclaim for the use and rental of the land. To this answer the claimant filed a demurrer in several grounds: (1) That the claim for the items in controversy was never withdrawn. (2) That, as the claim was filed within six months after the appointment of the administrator, claimant was entitled to prove the same. ' (3) That the record affirmatively showed equitable reasons sufficient to excuse delay in the time of filing the claim, if delay there was. (4) That the facts pleaded did not constitute a former.adjudication. The demurrer was sustained, and we shall first dispose of those grounds assailing the claim as filed.\\nI. It will be observed that the several items of the claim were only \\\"for the present withdrawn,\\\" and that the two excepted items were to come on for trial; and further on the notice recites that \\\"the remaining items of said claim are wdthheld until the court passes upon the petition of said Archibald Black and wife to quiet his title in sixty acres of land, ' ' Plainly enough the purpose of the notice was to bring the two items on for trial, and in doing so to withdraw the others from the trial, but not from the claim as filed. Whether this might be done is not important, for the proposed trial did not proceed and the claim continued on file as before the service of the notice. We are of the opinion that the items thereof -were never actually withdrawn from the claim, and that even if they were, under the circumstances disclosed, i. e., that the estate was unsettled, that' the two items were undisposed of, and the amendment filed within five describing it. months after the final disposition of the ease, involving the same matter, presents a case calling for equitable relief in permitting the filing of the amendment to the claim more than one year after the appointment of the administrator and when it was filed. See Asher v. Pegg, 146 Iowa, 541.\\n2. Same formeradjudication: estoppel. II. In count 3 of the answer the defendant plead the decree in Black et al. v. Chase et al., 145 Iowa, 715,. as res adjudicata and by way of estoppel. The petition in that action was by three children of the deceased praying for the partition of two hundred acres of land left by him. Three other children, Samuel, George, and Arch, set up claims to forty acres each, and subsequently Arch (with his wife) amended his answer by alleging an oral agreement with deceased, said to have been made in 1886, whereby they were to make their home with, care for, and board deceased during the remainder of his life, and as compensation therefor to have sixty acres of land, that they had performed the contract, and prayed that title to said land be quieted in Arch, or the administrator be required to execute a deed therefor, in compliance with said agreement. On hearing, the several forties were held to belong to those claiming them, but the amendment of Arch Black to his answer, setting up said agreement and praying for the conveyance of the sixty acres in compliance therewith, was dismissed and decree entered \\\"that the claim of Arch Black to own sixty acres is without merit and not substantiated by the evidence.\\\"\\nIn this action Arch Black presented his claim against the estate of the deceased for the care and board alleged in said amendment during precisely the same period, and prayed that it be established for the value thereof. The evidence relied on was the same in both cases, save that in the last trial proof of the reasonable value of such board and care was adduced. The only evidence of deceased's expectation to pay for the board and ea.re introduced on the last trial was that of his agreement to give Arch the sixty acres of land alleged in the amendment to the answer in the first action. So that in each trial the claimant herein relied on the same proof of furnishing care and board and upon the alleged agreement to pay therefor by transferring the sixty acres of land, in the former praying that he have the land as compensation, and in the latter that payment therefor be from the funds of the estate. In other words, the issues in both actions are the same; the relief sought only being different. It is plain enough that, had the issues now being tried been first determined, the decision' would have been conclusive in an action for specific performance. Is the converse true ?\\nOf course, to recover in this action, proof that the board and care were furnished with the mutual expectation of the father to pay, and the son to receive,- compensation therefor, would be sufficient. Tank v. Rohweder, 98 Iowa, 154; Weitnaur v. Weitnaur, 117 Iowa, 578. But no testimony of this character was introduced, save as this might be inferred from the evidence of a promise that the son should have the land. Under the evidence, then, if there was to be compensation at all, this was to be the land, and the measure of recovery should be the land, or, in event this cannot be conveyed, then clearly enough claimant would be entitled to its value. It may be conceded that the causes of action are different, the one having been prosecuted in equity and the other at law, the relief sought in one being specific performance and in the other compensation by way of damages, but the same essential issues were involved in each: (1) The existence of the contract and (2) the performance of the services. These were determined in the former action, for there was a hearing and no reservation in dismissing the cross-bill.\\nWhere there is a hearing, and no such words as \\\"without prejudice\\\" appear in the decree, and no reason for dismissal is stated therein, and a decision on the merits is in no wise negatived, the issues raised are presumed to have been heard and decided on the merits. Durant v. Essex Co., 7 Wall. 107, (19 L. Ed. 154) ; Carberry v. Railway, 44 W. Va. 260, (28 S. E. 694) ; 2 Black on Judgments, section 720. See Finch v. Hottinger, 46 Iowa, 216; Hahn v. Miller, 68 Iowa, 745. Says Story, in his Equity Pleading (793) : \\\"A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing and was not in terms directed to be without prejudice.\\\" It was said in Taylor v. Yarbrough, 13 Grat. (Va.) 183: \\\"A bill in equity having been dismissed generally without a reservation of any right of the plaintiff to sue thereafter, is conclusive upon all the issues made up in the ease.\\\" An error may be predicated on the omission to so indicate in the decree dismissing a cause on hearing if this is done for want of jurisdiction or other cause not going to the merits. Freeman, Judgments, section 270A; 2 Black, Judgments, section 720. The circumstance that the former suit was in equity and that now considered iat law is not material, as both are triable in the same court. Madison v. Garfield Coal Co., 114 Iowa, 56; Bruce v. Foley, 18 \\\"Wash. 96, (50 Pac. 935); New York Cent. Ins. Co. v. National Protection Ins. Co., 14. N. Y. 85.\\nThat the issues essential to recovery by the claimant in this action were decided against him in the former suit is put beyond controversy by the record and ordinarily must have been regarded as conclusive in support of the plea of estoppel. Madison v. Garfield Coal Co., 114 Iowa, 56; Reynolds v. Babcock, 60 Iowa, 289; Stevens v. Wadleigh, 6 Ariz. 351 (57 Pac. 622); Southern P. R. Co. v. U. S., 168 U. S. 1 (18 Sup. Ct. 18, 42 L. Ed. 355), 23 Cyc. 1218. But appellee would obviate this result by saying that, whereas strict proof was exacted to make out a case in the former suit, it was only necessary to establish his claim, in this action by a preponderance of the evidence; and further that, in prosecuting the former suit, plaintiff merely mistook his remedy, and, though defeated, may demand an appropriate remedy in a subsequent action. The last proposition may be disposed of on two grounds: (1) The claimant did not fail in the former suit because of having mistaken his remedy but owing to a failure of proof, and (2) even if there were a mistake in the remedy sought, the essential facts to sustain his claim to a different remedy were conclusively adjudicated against him in that action.\\nNothing contained in the decisions cited by the appellee indicates that the conclusive character of a decision of an issue in a former suit is obviated by the circumstance that the plaintiff might have prosecuted a different action or have sought a different remedy. In Zimmerman v. Robinson & Co., 128 Iowa, 72, it appears that plaintiff's assignor had prosecuted an action for the recovery of the price paid on a machine on the theory that the contract of purchase had been rescinded, and it having been decided on appeal that, as the machine had not been returned or a return tendered, recovery might not be had (Zimmerman v. Robinson, 118 Iowa, 117), it was held that the prosecution of that action was not an election of a remedy inconsistent with the maintenance of an action for a breach of warranty in the contract. Manifestly there was no issue decided in the one action, which was essential to the maintenance of the other, and this was true in Lemon v. Sigourney Savings Bank, 131 Iowa, 79, where an action was first prosecuted against the bank for the amount of deposit which it appeared had been paid by the defendants in notes of third parties payable to the plaintiff, and it was held that this was not an adjudication constituting an estoppel in a subsequent suit against the bank for the proceeds of these notes collected by it.\\nNot a single issue involved in the first action was raised in the second. In Asher v. Pegg, 146 Iowa, 541, the plaintiff, under the name of Margaret Pegg, asserted the right to a widow's share in the estate of the deceased, and, this having been denied, she prosecuted a claim against the administrator of the estate for services rendered by her to deceased as housekeeper and assistant in carrying on his farm, and the court held that there was no identity whatever \\\"either of law or fact between the claim asserted in the former action and the one which is now being asserted.\\\" The circumstance that a person may have availed himself of a different remedy does not obviate the principle that that which has once been judicially determined shall not again be made the subject of judicial controversy. See Reynolds v. Lyon, 121 Iowa, 733. The failure of plaintiff in the former action was not owing to mistake of remedy, for that demanded was specific and precisely that to which he was entitled, if any. True, the adverse decision may have been owing to the quantum of proof exacted, for to have succeeded he must have established the contract as well as its performance by clear, definite and con-' vincing evidence. Chew v. Holt, 111 Iowa, 362; McDonald v. Basom, 102 Iowa, 419; Briles v. Goodrich, 116 Iowa, 517; Moore v. Pierson, 6 Iowa, 279. This does not mean that the facts must be proven beyond reasonable doubt. Skeggs v. Horton, 82 Ala. 352 (2 South, 110) and Sherrin v. Flinn, 155 Ind. 422 (58 N. E. 549). But may amount to no more than saying that a higher degree of proof than exacted in actions at law is essential to constitute a preponderance of evidence. Schmuck v. Hill, 2 Neb. (Unof.) 79 (96 N. W. 158).\\nWhatever the explanation, more evidence was necessary' to make out a case in the former suit than was essential to establish the right to recover for services rendered on the claim filed against the administrator. But the claimant voluntarily selected the forum in which to litigate his claim under the alleged contract, and our attention has not been directed to any decision holding that the effect to be given to a judicial decision depended on and is to be measured by the quantum of proof exacted. It is said that acquittal of a person, in a criminal action is not conclusive in a civil action involving the same issue unless for a forfeiture, penalty, or the like exacting the same amount of proof, and the reason sometimes given is that the matter of motive or intent differentiates the two classes of actions, and at others that the evidence determinative in a criminal action is more than sufficient to support a civil action. In other words, the evidence might preponderate against the defendant and yet not be sufficient to exclude all reasonable doubt. See Stone v. U. S., 167 U. S. 184 (17 Sup. Ct. 778, 42 L. Ed. 130), explaining Coffey v. U. S., 116 U. S. 436 (6 Sup. Ct. 437, 29 L. Ed. 684); State v. Meek, 112 Iowa, 338.\\nBut the state never prosecutes a civil action based on a criminal act save for forfeiture, penalty, or the like, and for this reason the parties in criminal and civil actions are never the same. Because of diversity of parties, an adjudication in a criminal prosecution is not binding in the subsequent civil action instituted by an individual for the recovery of damages consequent of the wrongful act. Often several different actions may be maintained on a particular state of facts, and the quantum of evidence exacted in each is a matter to be considered in selecting the remedy to be sought and the forum in which to seek relief; but the determination of the issues presented is not any less binding on the parties because decided in one form of action rather than another. The fact that the issue has been decided by a court having jurisdiction of the parties and the subject-matter is that which renders the decision effective in support of a plea of an estoppel interposed in a subsequent action between the same parties involving the same issue. The amount of proof essential to establish an allegation of the petition, like the burden of proof and other matters, is a mere incident to the trial, exacted as the result of long experience as best adapted to the ascertainment of truth. Whatever the quantum of evidence required to establish a fact, or on whomsoever the burden of proof, the adjudication is binding on the parties and cannot again be litigated if properly interposed as a defense.\\nCases like Gwin v. Sumur, 49 Mo. App. 361; Porter v. Wagner, 36 Ohio St. 471, 475, and McNamara v. Arthur, 1 Ball & Beatty, 175, are sometimes cited as sustaining a different view; but none of these were determined on the merits.\\nMany cases may be found in which a different quantum of evidence was required; but this was given no consideration in determining whether the decision of the issues involved sustained the plea of estoppel. As bearing hereon, see Wolverton v. Baker, 86 Cal. 591 (25 Pac. 54) ; Bruce v. Foley, 18 Wash. 96 (50 Pac. 935); Trayhern v. Colburn, 66 Md. 277 (7 Atl. 459); Fidelity, etc., Trust Co.v. Fridenburg, 175 Pa. 500 (34 Atl. 848, 52 Am. St. Rep. 851); Myers v. Kingstone Coal Co., 126 Pa. 582 (17 Atl. 891). To hold otherwise would permit a party to experiment with different forms of action in enforcing the same right and impair the force which always has been and should be given to solemn adjudication of issues properly raised and regularly decided. Of course, the evidence adduced on the hearing of causes in equity is frequently thought not 'to be of the conclusive character essential to warrant the relief prayed and a dismissal entered for that reason. Such a decree is negative merely, and it may be that the recitals would be construed as a sufficient reservation of the issues for an action at law \\u2014 a point not now necessarily to be determined, for the decree in the former suit purported to be on the merits.\\nSpecific performance has never been regarded as a remedy to be claimed by a litigant as a right, but is said to rest in the sound discretion of the chancellor.- Where the evidence is sufficient, however, and there are no equitable considerations in the way, such decrees are entered as a matter of course. Baltimore, etc., R. Co. v. Brubaker, 217 Ill. 462 (75 N. E. 523); Rogers v. Saunders, 16 Me. 92 (33 Am. Dec. 635); Yazoo, etc., R. Co. v. Railway, 83 Miss. 746 (36 South, 74); Shuman v. Willets,. 17 Neb. 478 (23 N. W. 358); Steadman v. Handy, 102 Va. 382 (46 S. E. 380); 36 Cyc. 550.\\nThere were no peculiar equities in the former suit obstructing the granting of specific performance, and, as recited in the decree, relief must have been denied on the merits alone.\\nThere were no peculiar equities involved in the former suit, and the evidence was such that, had the contract and performance thereunder been proven, the relief prayed must have been granted' as a matter of course. It was denied, as recited in the decree, on a finding that the claim of Arch Black was \\\"without merit and not substantiated by the evidence. ' ' This adjudication of the precise issues now involved and essential to the maintenance of his claim- against the estate of deceased is conclusive against him and should have been held to constitute an estoppel. The demurrer to the plea in estoppel should, have been overruled.\\nIII. Item 15 of the claim was a note of $300, dated October 18, 1902, and purporting to be signed by H. C. Black, Luman Black, and George Black, the latter by his mark. This had been assigned to claimant, and the only testimony tending to identify the note as having been signed by deceased was that of claimant, who testified as follows: \\\" Q-. Have you a note of George Black in your possession? A. Yes, sir; I have a note. Q. Will you be kind enough to let me see it? A. Yes, sir. (Exhibit A marked.) Q. Whose property is this note? A. Mine.\\\" The note was then received in evidence over objection as not having been properly identified, incompetent,'and not binding on the administrator. The signature to a note upon which an action is founded, a copy of which has been attached to the petition, is presumed to be genuine unless its genuineness is denied by-the person whose signature it purports to be, under oath. Section 3640, Code. Neither the original note nor copy thereof was attached to the claim or amendment thereto, and, as each item thereof was specifically denied, the burden of proof was on claimant to show the genuineness of the signature, prior to the introduction of the note in evidence. Smith v. King, 88 Iowa, 105; Schulte v. Coulthurst, 94 Iowa, 418. See, also, Hay v. Frazier, 49 Iowa, 454. It follows that the court erred in receiving the note in evidence.\\nIV. Appellant asserted in his abstract that exceptions had been saved to the several instructions. This was denied by appellee, and to sustain his assertion plaintiff has presented' here a copy of the certificate of the trial judge and the reporter attached to the report of the trial in shorthand, certifying that \\\"all instructions \\u2022 given were duly excepted to by. the party adversely affected or interested.\\\" Whether the exceptions were noted by the reporter in his report does not appear, as the transcript is not before us. Nor is it claimed that any exceptions to the instructions were preserved as required by section 3709 of the Code, or otherwise. Section 3675 of the Code authorizes the reporter to note in his report in shorthand or in writing \\\"the fact that the jury is instructed, all exceptions and objections to instructions given by the court on its own motion, ' ' and this report, when properly certified, undoubtedly would be sufficient evidence of the taking of exceptions to the instructions. But the Code nowhere authorizes the preservation of the record of such exceptions by the mere certificate of the judge and reporter that they were taken. This would enable a party to supply the record from memory of these officers, rather than to establish the preservation of exceptions by what was done at the time. We think, therefore, that the appellant has failed to sustain the abstract in this respect by the certification of the record.\\nIn view of another trial, however, it may be as well to suggest that the issues be clearly stated by the trial court, instead of copying the pleadings as a part of the instructions. See Swanson v. Allen, 108 Iowa, 419. Also, that genuineness of the signature to the note of $300 included in the claim ought not to be assumed in the instructions, but that this is a matter of proof.\\n7 . Use and occupation : prima facie case. Also, that the burden is not upon the defendant, in estab- . fishing his counterclaim for the use of the land alleged to have been occupied since 1886, to show that there was a mutual understanding between him and deceased that the latter should receive pay therefor. Upon proof that the claimant entered upon the land and used and occupied the same for his own benefit with the assent of the deceased, in the absence of other proof, a promise to pay a reasonable compensation therefor arose. 24 Cyc. 1139. The burden of proof was on the claimant to show that use of the land had been paid for, or that its use was to be gratuitous. Oakes v. Oakes, 16 Ill. 106; Sterrett v. Wright, 27 Pa. 259. And if claimed to be gratuitous, this was a matter to be set up in the pleadings. Saddler v. Pickard, 142 Iowa, 691.\\nOf course, the relation of the parties and the circumstances under which the land was occupied are to be considered in determining the understanding between the parties. But the rule prevailing with respect to the rendition of services to a relative living in a family has no application to such a case.\\nBecause of the errors pointed out, the judgment is Reversed.\"}"
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+"{\"id\": \"2211252\", \"name\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant\", \"name_abbreviation\": \"Salmon v. Farm Property Mutual Insurance\", \"decision_date\": \"1915-01-22\", \"docket_number\": \"\", \"first_page\": \"521\", \"last_page\": \"531\", \"citations\": \"168 Iowa 521\", \"volume\": \"168\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:32:10.157301+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, Gaynor and Salinger, JJ., concur.\", \"parties\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant.\", \"head_matter\": \"John Salmon, Appellee, v. Farm Property Mutual Insurance Association of Iowa, Appellant.\\nINSURANCE: Re-formation of Policy \\u2014 Negligence Precluding Relief. 1 On an application for the re-formation of a fire insurance policy, the negligence of the, insured is a proper matter for consideration.\\nPRINCIPLE APPLIED: The insured\\u2019s real name was Herman Salmon. He had always been known and gone by the name of .John Salmon. The application was made out and signed in the name of John Simons by the soliciting agent for the company. The location of the property was not properly described. It was intended to cover insured\\u2019s property in a particular location. The insured never saw the application, never signed it, and did not attempt to describe the location of the property. Policy was issued, delivered to the insured and put away without reading until the day after loss. Held, not sufficient negligence to preclude re-formation.\\nINSURANCE: Cancellation of Policy \\u2014 Statute Superseding By-Law. 2 The cancellation of a mutual fire assessment insurance policy can only be effected by \\u201cgiving five days\\u2019 written notice\\u201d of cancellation, as provided by Sec. 1759-m, Sup. Code, 1913. The provisions of a by-law providing that the association \\u201cis not liable on any policy when assessments are more than 60 days overdue, \\u2019 \\u2019 does not effect a cancellation.\\nINSURANCE: Premature Action \\u2014 Abatement\\u2014Statutes Applicable. 3 An action is premature and abatable when brought within 40 days after service of the notice of loss and proof thereof, under a mutual policy of insurance issued under Ch. 5, Tit. 9, Sup. Code, 1913, See. 1744 of said supplement being applicable to such a policy.\\nINSURANCE: Statutory Time for Bringing Action \\u2014 Waiver. That 4 40 days shall elapse after the service of notice of loss and proof thereof before action may be brought on losses under fire insurance policies is a command of the statute. (See. 1744, Sup. Code, 1913.) This statutory command is not waived by a denial by the company of liability.\\nAppeal from Fremont District Court. \\u2014 Hon. A. B. Thornell, Judge.\\nFriday, January 22, 1915.\\nAction in equity to re-form a policy of fire insurance and to recover a loss suffered by plaintiff. Trial to the court. Decree and judgment for plaintiff, and defendant appeals.\\u2014\\nReversed.\\nGeorge Wambach and Hickman & Chantry, for appellant.\\nWilliam Bammer, and R. C. Campbell, for appelle\\u00e9.\", \"word_count\": \"3356\", \"char_count\": \"19419\", \"text\": \"Deembr, C. J.\\nI. Defendant issued a policy of insurance for $-100.00 on certain household furniture and family stores in Fremont County, Iowa, to one John Simons, of Hamburg, Iowa. The application purports to have been made on June 28th and it was accepted by the officers of the company and a policy was issued July 1, 1912. The application was in fact made out and signed in the name of John Simons by one Rogers, defendant's soliciting agent, at the town of Hamburg. The policy when issued was delivered to plaintiff by Rogers, and. plaintiff, without reading it, put it away for safe keeping where it remained until after the insured property was destroyed by fire.\\nPlaintiff's real name is Herman Salmon, but he has always been known as and gone by the name of John Salmon. The application was written and the insurance effected with plaintiff's implied assent and was intended to cover his property upon a certain lot in the town of Hamburg, but it was issued on its face to John Simons, and the property upon which the insured property was kept was not described as being in the town of Hamburg. Plaintiff paid the advance premium of $1.50 on the policy when it was delivered to him, and claims that he never heard of any assessments on his policy (the defendant being an assessment company) until shortly before this suit was commenced. He discovered that the policy was written in the name of John Simons the day after the fire, and his wife, or someone for him, wrote the company the following letter:\\n\\\"Hamburg, Iowa, Feb. 12, 1913.\\n\\\" C. V. Stanley,\\n\\\"Dear Sir, \\u2014 I will notify you about our house burnt Monday morning 10 Feb. 1913. Please come as soon as possible. I would like to get fixt up as soon as possible. No. 10499.\\n\\\"John Simons.\\\"\\nHe claims that it was signed as it appears by direction of Eogers, the agent. The defendant made the following response to this letter:\\n\\\"Des Moines, Iowa, Feb. 12,1913.\\n\\\"Mr. John Simons,\\n\\\"Hamburg, Iowa.\\n\\\"Dear Sir: Eeplying to your favor of the 12th, beg to say that we have .looked up our records and they show that the 1912 assessment, levied October 1st, has not been paid, and that the Company is not liable for a loss occurring sixty days after this levy, unless the assessment is sooner paid.\\n\\\"We trust you will find we are correct.\\n\\\"Yours truly,\\n\\\"Forrest Huttenlocher, Pres.\\\"\\nThereafter one of plaintiff's attorneys wrote the defendant a letter, to which its attorney made the following response:\\n\\\"Des Moines, Iowa, Feb. 18, 1913. \\\"Mr. William Bammer, Attorney,\\nHamburg, Iowa.\\nDear Sir:\\u2014\\nAs attorney for the Farm Property Mutual Insurance Association of Iowa, I am writing you in response to a letter you wrote them regarding some fire loss sustained by John Simons. Would say that your client evidently did not inform you that he failed to pay the assessment for last year, and that he was delinquent at the time the fire occurred; by reason of which, his policy became void. If you will take the pains to ask him, he will, no doubt, inform you that he did not pay his last year's, assessment, and on further examination of the by-laws, you will find that there can be no liability under a policy where the member is delinquent at the time the loss occurs. I am simply writing you this so you may be advised of the true condition of things.\\nYours truly,\\nGeo. 'W'ambach.\\\"\\nThe fire occurred on February 10, 1913, and this action was commenced on February 26th of the same year.\\nThe suit was brought in equity for the purpose of re-forming the policy so as to make the plaintiff, John Salmon, the insured instead of John Simons, and to locate , , , , . the property insured upon lots seven and , el^^> m Block 107, m the city of Hamburg, Iowa, instead of the same lots and block in Fremont County, Iowa.\\nIt is manifest from the facts above recited that the policy should be so reformed in equity as to express the intent of both plaintiff and defendant's soliciting agent, who wrote the application and delivered the policy, unless it be that plaintiff was so negligent in not reading his policy as to deprive him of the relief prayed. The only negligence relied upon is failure to read the policy, and the copy of the application which was made a part thereof. Plaintiff never saw the original application, nor did he sign it, and he had a right to rely upon the agent's truthfully stating the facts when he assumed to do whatever was necessary to secure the policy. Again when the policy was delivered to the plaintiff he had a right to assume that he was the assured named in the policy, and that the property was correctly described, unless there was something in the circumstances surrounding the transaction calculated to arrest his attention.\\nWe do not find such negligence on his part as to deny him relief in equity. Had plaintiff himself signed the application or done anything to mislead the agent, doubtless a different result would be indicated; but he did neither, nor did he attempt to describe the location of the property. Negligence in such circumstances is a question of fact, and we are constrained to hold that plaintiff was not so careless as to deprive himself of relief in equity.\\nII. An assessment was made by defendant company on its policy holders about October 1, 1912, and the amount of plaintiff's assessment was sixty cents. As the same was not paid when due, an addition of twenty-five cents was made thereto on November 1st, and another like penalty on December 1st (all according to defendant's by-laws), making the aggregate $1.10. Defendant claims to have addressed and sent by mail to John Simons, at Hamburg, Iowa, two notices of the assessment \\u2014 one about October 1st, and another about November 1st, each being sent in an open-faced envelope, each having a return card printed thereon; and that neither of these letters was returned to it.\\nIt also appears that defendant sent a registered letter early in December, 1912, notifying Simons of the assessment, addressed to him at Hamburg, Iowa, and that this was returned to it bearing the following endorsement: \\\"Refused. Returned to writer. ' ' This was received at Des Moines December 7, 1912. Plaintiff denied having received or refused any of these letters, and it appears that the November one was delivered to one Arthur A. Simon, but he took it back to the post office and he (plaintiff) specifically denied that he ever saw or refused to receive the December letter. That letter, so far as material, was as follows:\\n\\\"Des Moines, Iowa, December 2, 1912.\\n\\\"Dear Sir:\\u2014\\n\\\"At this date your assessment for 1912, due October 1st, has not been received at this office. It is now sixty days past due and we must insist upon immediate payment of the amount as given in the coupon below. You may have been so busy that you have neglected to remit but you should never allow your insurance to remain unpaid, as losses occur when least expected, and the Association is not liable for loss occurring when dues are in arrears.\\n\\\"We wish to be as lenient with you as possible, and will waive payment of the penalty added December 1st,, (as per by-laws) if you remit on or before December 12th, 1912. Send the amount due at once and save yourself the extra cost of delay.\\n\\\"This notice is sent you by registered mail, which is a legal notice. Make remittance by draft or postal or express money order. Bills or coin are sent at your risk.\\n' ' Third Notice, December 2, 1912.\\nJno. Simons,\\nHamburg*\\nIowa.\\nIf mailed Before Dee. 12, 1912, send $ .85\\nIf paid After Dec. 12, 1912, send 1.10\\nReturn this coupon with your remittance sure.\\n\\\"In case you cannot attend our next annual meeting in person, you may wish to appoint someone to represent you. In the form given below, you may write the name of your choice, date same and sign it, and enclose with your remittance.\\n\\\"I hereby appoint..............as my proxy to represent me at the Annual Meeting of members of Farm Property Mutual Insurance Association of Iowa, to be held on the Third Wednesday of January, 1913, and to cast my vote upon all questions that may come before such meeting.\\nDated this........day of..............191...\\nPolicy No.........(Sign here)...............\\\"\\nDefendant's by-laws, among other things, provided that:\\n\\\"Nor shall this Association be liable for any loss under any policy on which the assessment is delinquent more than sixty days from date of notice of the assessment. And no action shall be brought nor shall any suit be maintained at law or in equity in any court upon any policy in this Association for loss or damage unless brought within one year from the time of the loss. ' '\\nThis by-law is pleaded as a defense to the action, and it is contended that this defense is conclusively established by the facts above recited. The defendant is a mutual assessment company, organized under Title Nine of Chapter 5 of the Code and amendments thereto (Sec. 1759-a et seq. of the Code Supplement), and See. 1759-m provides that:\\n\\\"Any policy of insurance issued by any association operating under the provisions of this chapter may be can-celled by the association giving five (5) days' written notice thereof to the insured, or if the insured shall demand in writing or in person, of the association, the cancellation of his policy, the association shall immediately advise him, by letter to address named, the amount, if any, due, as his pro rata share of losses and expenses incurred since date of his policy. Upon surrender of his policy and payment of all sums due, his membership shall cease, provided, that during the months of June, July and August, hail insurance policies may be cancelled only at the option of the officers of the association carrying the risk. Upon the expiration or cancellation of any policy of insurance issued under the provisions of this act, all obligations to the association having been paid, the members shall be entitled to and shall be paid by the association a sum equal to at least seventy-five per cent (75%) of the unexpended portion of the amount contributed by him to the reinsurance reserve.\\\" 32 G. A., Ch. 80, See. 13.\\nTo forfeit such a policy as the one in suit, for non-payment of assessments, notice must be given of the assessment, and if not paid within five days, the policy would be forfeited. This notice may doubtless be given by registered letter. We may assume, for the purposes of the case, that the registered letter was properly directed to Simons, and that, although he did not receive it, yet he should be held bound by what it contained on account of the way in which his name appeared in the policy, and yet it does not follow that the policy has been cancelled or that such a notice as the statute requires was given. The assessment was treated as valid and collectible, and no statement was made that the policy would be forfeited for nonpayment. It was treated as in full force, and plaintiff, or Simons, was considered a member, invited to attend the annual meeting or to send a proxy. This does not meet the requirements of the statute, and the policy was never legally forfeited. The by-laws of the Association do not control as against a statute, and the ease in this respect is ruled by Beeman v. Ins. Co., 104 Iowa 83; Bradford v. Ins. Co., 112 Iowa 495, although both were decided before the change in the statute already noticed.\\nIII. The final point made is that the action was prematurely brought in that the forty days' time allowed by Sec. 1744 of the Code was not observed, the suit having been commenced within sixteen days of the fire. Plaintiff contends that the section relied upon is n\\u00b0l applicable to such companies as the defendant, it having been organized, as already stated, under the provisions of the Code Supplement authorizing the formation of mutual fire assessment associations. It is true that the chapter and title of the Code under which defendant was organized, it being Secs. 1759 to 1759-0 of the Code Supplement of 1913, makes no provision as to proofs of loss, and contains no limitations as to the time of bringing suit, and this chapter was enacted after the provisions of the Code upon which appellant relies. But we have heretofore disregarded chapter numbers of the Code, and felt ourselves bound to construe the entire insurance Code as a whole. Corson v. Iowa Assn., 115 Iowa 485; Stork v. Supreme Lodge, 113 Iowa 724, and cases cited. See apparently to the contrary, Brinsmaid v. Iowa Assn., 152 Iowa 134.\\nSome doubt was expressed in Bradford v. Ins. Co., 112 Iowa 495, regarding the applicability of Sec. 1744 to com pa\\u00f1\\u00edes organized as this defendant was, under prior statutes relating to mutual assessment companies, by reason of the changes made in the Code of 1897; but no definite pronouncement was made upon the proposition. Whatever of doubt there may have been seems to have been removed by amendments to that Code, passed by the 27th and 29th General Assemblies.\\nThe 27th G. A. passed an act known as Chapter 44, which amended Sec. 1744 of the Code of 1897 by inserting the words \\\"seventeen hundred and forty-two hereof,\\\" making the section read as it appears in the Code Supplement of 1913, as follows:\\n\\\"The notice of loss and proof thereof required in section seventeen hundred forty-two hereof, and the notice and proof of loss under oath in ease of insurance on personal property, shall be given within sixty days from the time loss occurred, and no action for such loss shall be begun within forty days after such notice and proofs have been given to the company, nor shall the time within which action shall be brought be limited to less than one year from the time when a cause of action for the loss accrues. No provisions of any policy or contract to the contrary shall affect the provisions of this and the three preceding sections. ' '\\nThe 29th G. A. passed an act known as Chapter 73, which is now Sec. 1742-a of the Code Supplement of 1913, reading as follows:\\n\\\"In furnishing proofs of loss under any contract of insurance for damages or loss of personal property it shall only be necessary for the assured, within sixty days from the time the loss occurs, to give notice in writing to the company issuing such contract of insurance accompanied by an affidavit, stating the facts as to how the loss occurred, so far as same are within his knowledge, and the extent of the loss, any agreement or contract to the contrary notwithstanding.\\\"\\nThe title to the first act was \\\"To amend Sec. 1744 of the Code relating to proofs of loss under contracts of insurance,\\\" and the title to the last was, \\\"An act relating to notice and proofs of personal property insured. [Amendatory of Chapter 4, of Title 9 of the Code, relating to insurance other than life.] \\\"\\nThe latter section of the Code Supplement by its express terms relates to proofs of loss under any contract of insurance for loss of personal property, and 1744 relates to insurance of personal property, and if these sections are not applicable to mutual fire assessment insurance associations, then there are no provisions on the subject anywhere. In such circumstances this court has held in analogous cases that the general insurance law is applicable to mutual benefit societies, especially with reference to \\\"applications for insurance. See the Stork and Corson cases, supra. Christie v. Indemnity Co., 82 Iowa 360; Parsons v. A. O. U. W., 108 Iowa 6.\\nThere is every reason why these sections should be held applicable to mutual companies organized under title 9, Chapter 5, as well as those organized under chapter 4 of the same title, and following the cases already cited, we think they should be so held.\\nBrinsmaid's case, supra, does not decide the point and the suggestion made in that case as to Sec. 1742 of the Code not applying to all contracts and policies of insurance has now been met by the adoption of what is known as Sec. 1742-a, Code Supplement, which expressly relates to any (or all) contracts of insurance covering personal property. To now hold that all the law relating to mutual fire assessment insurance associations is to be found in Chapter 5 of title 9 of the Code would introduce a great deal of confusion and uncertainty as to the rights, duties and responsibilities of the parties in ease of loss, and leave such associations free from any provisions whatever as to applications for membership or insurance, to notice and proofs of loss, to valuation of property, and to the time within which suits should be brought, to say nothing of other provisions of the general insurance code which by their terms are made applicable to all insurance contracts.\\nFor the reasons pointed out, we think this suit was prematurely brought, and that the trial court was in error in not sustaining defendant's plea in abatement.\\nDefendant's denial of liability did not waive the provisions of the statute. Blood v. Ins. Co., 103 Iowa 728; Vore v. Hawkeye Ins. Co., 76 Iowa 548; Quinn v. Ins. Co., 71 Iowa 615.\\n. . The decree must therefore be, and it is\\u2014 Reversed.\\nLadd, Gaynor and Salinger, JJ., concur.\"}"
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+"{\"id\": \"2217069\", \"name\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant\", \"name_abbreviation\": \"Funk v. Anchor Fire Insurance\", \"decision_date\": \"1915-09-24\", \"docket_number\": \"\", \"first_page\": \"331\", \"last_page\": \"346\", \"citations\": \"171 Iowa 331\", \"volume\": \"171\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:42:21.439944+00:00\", \"provenance\": \"CAP\", \"judges\": \"Deemer, C. J., Ladd and Salinger, JJ., concur.\", \"parties\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant.\", \"head_matter\": \"Kate D. Funk, Appellee, v. Anchor Fire Insurance Company, Appellant.\\n1 INSURANCE: Insured Not \\u201cUnconditional and Sole Owner\\u201d\\u2014 Knowledge \\u2014 Waiver\\u2014Estoppel. An insurance company that issues a policy to one who has an insurable interest in the property, but who, it knows, is not the \\u201csole and unconditional\\u201d owner, and collects the premium and later makes the policy payable to a mortgagee, knowing that the mortgagee was taking the policy as security for a loan, waives absolutely, and is estopped to insist on, the provision of the policy that the \\u201cpolicy shall be void if the interest of the insured be other than unconditional and sole owner.\\u201d\\n2 INSURANCE: Condition of Title \\u2014 Knowledge of Company through Agent \\u2014 Sufficiency of Evidence. A finding that an insurance company had knowledge of the actual ownership of insured property is justified by a showing that the agent of the company (a) took the acknowledgment of the deed which showed the condition of the title and (b) prepared for the actual owner, and had in his possession, an abstract of title to the property showing the actual ownership.\\n3 INSURANCE: \\u201cInsurable\\u201d Interest \\u2014 Homestead in Property. A homestead interest in property is an insurable interest.\\n4 INSURANCE: Forfeiture \\u2014 Foreclosure \\u201cWith Knowledge of Insured\\u201d \\u2014 Service by Publication \\u2014 Strict Construction of Policy. A policy of insurance, payable to a mortgagee, is not voided under a clause providing that \\u201cif, with the Imowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy, by virtue of any lien . . . thereon, this policy shall be void,\\u201d when, in the foreclosure proceedings and sale, service on the insured was by publication only. Constructive notice is not \\u201cknowledge\\u201d within the meaning of the policy.\\n5 INSURANCE: Forfeiture under Mortgage Foreclosure Clause \\u2014 Consent to Mortgage \\u2014 Effect. A forfeiture of a policy of insurance cannot be predicated on a provision that the policy is voided, \\u201cif foreclosure proceedings be commenced ... by virtue of any lien . . . \\u201d on the property, when the foreclosure complained of was of a mortgage to which the insurance company had consented.\\n6 INSURANCE: Forfeiture \\u2014 Prohibited Change of Possession \\u2014 Tenant. The fact that there is some shadowy showing in the record that a party was in possession, at one time, of the insured premises, possibly as a tenant, is wholly insufficient on which to base a forfeiture under tho clause of the policy that \\u201cif any change other than by death of the insured takes place in the possession of the property . . . the policy shall be void.\\u201d\\nAppeal from Muscatine District Court. \\u2014 Hon. A. P. Barker, Judge.\\nFriday, September 24, 1915.\\nAction by mortgagee on a policy issued to mortgagor and made payable to mortgagee as her interest might appear. Judgment and decree in the court below for the plaintiff. Defendant appeals.\\nAffirmed.\\nE. M. Warner, and E. E. Richman, for appellee.\\nSullivan & Sullivan, for appellant.\", \"word_count\": \"5055\", \"char_count\": \"28655\", \"text\": \"Gaynor, J.\\n\\u2014 This action is brought by the plaintiff against the defendant company upon a certain policy of insurance, issued on the 28th day of November, 1904, in which defendant company undertook to and did insure, by the terms of the policy, the premises in controversy against loss by fire for the term of five years. The plaintiff bases her right to recover from the company upon the following facts, which are not disputed in this record:\\nOn the 3d day of June, 1905, she loaned to one Lulu R. Henning $550.00, and took a mortgage upon the premises insured to secure the loan. At the time the loan was made by the plaintiff to Mrs. Henning, the policy in controversy was delivered to the plaintiff by one H. H. Arnold, with the following endorsement upon it:\\n\\\"Permission is granted for encumbrance upon the real property insured in this policy not to exceed the principal sum of $550.00 and loss, if any, is made payable first to Kate D. Funk, of Muscatine, Iowa, mortgagee, (or trustee), as her interests may appear, subject to the conditions of this policy.\\n\\\"Attached to and made a part of policy No. 49832, of the Anchor Fire Insurance Company, of Des Moines, Iowa, this 28th day of November. (Signed) H. H. Arnold, Agent.\\\"\\nThe property covered by said policy and by said mortgage was totally destroyed by fire on the 9th day of February, 1908. Due notice of loss was given as required by the terms of the policy.\\nThe defendant interposes certain defenses to plaintiff's right to recover.\\n1. That the policy in question was issued to W. F. Henning, who stated that he was the unconditional and sole owner of the property, and that the defendant had no knowledge that he was not the owner, until long after the destruction of the property by fire; that he was not in fact the owner at the time the policy was issued; that the property was owned by his wife, Lulu R. Henning; that W. F. Henning wrongfully and fraudulently concealed this fact from the defendant; that the policy provided by its terms: ' ' This policy shall be void . if the interest of the insured be other than unconditional and sole owner\\\"; that the said W. F. Henning was not the sole and unconditional owner of the premises at the time the policy was issued nor at the time the loss occurred; and that, by reason thereof, the policy was not in force at the date of the destruction by fire.\\n2. The defendant alleges, as a complete defense to plaintiff's claim, that the contract of insurance further provided: \\\"Or if any change, other than by death of the insured, whether by legal process, judgment, voluntary act of the insured, or otherwise, take place in the possession, or in the interest or title of the insured in or to the property covered by the policy . or if, with the knowledge of the insured, foreclosure proceedings be commenced; or notice given of the sale of any property of this policy by virtue of any lien or incumbrance thereon, this policy shall be void.\\\"\\nThat, after the issuance of the policy and before the destruction of the property by fire, this plaintiff commenced a suit against W. F. and Lulu R. Henning upon a certain mortgage upon the premises covered by the policy, and judgment was rendered in foreclosure proceedings against W. F. Henning and Lulu R. Henning and a decree of foreclosure entered, and sale made under special execution, and possession of the property taken by the plaintiff herein; that this defendant had no notice or knowledge of the foreclosure proceedings until after the destruction of the property; that by reason of this fact the policy, by its terms, became void, and was not in force at the date of the destruction of the property.\\nPlaintiff in reply pleads an estoppel and says that H. H. Arnold was the agent of the defendant and issued the policy and knew, at the time the policy was issued, that the property belonged to Lulu R. Henning; and that, with full knowledge of this fact, he issued the policy to W. F. Henning; that with full knowledge of the fact that the property belonged to Lulu R. Henning, he undertook, as agent of defendant company, to issue insurance that would protect the plaintiff's mortgage interest, and delivered to the plaintiff the policy in suit, both as the agent of the defendant and of Lulu R. Henning, and the plaintiff accepted and relied upon the same. Plaintiff denies that W. F. Henning made any representations to the defendant as to his ownership of the property, or that he fraudulently concealed the knowledge of the exact title at the time the policy 'was issued.\\nUpon the issues thus tendered, the cause was tried to the court, and judgment and decree entered for the plaintiff as prayed. From this judgment, the defendant appeals.\\nThe facts disclosed by the record appear to be substantially as follows:\\n\\\"W. F. Henning and Lulu R. Henning were husband and wife, and resided upon the property in controversy as their homestead. Prior to the 2nd of August, 1902, the title to the property was in W. F. Henning. On that day, he conveyed the title to his wife, Lulu R. Henning. The title continued in her until the 11th day of November, 1908. On the 28th day of November, 1904, defendant company issued this policy of insurance to W. F. Henning for the sum of $500 for the term of five years. On the 3d day of June, 1905, the plaintiff made a loan of $500 to Lulu R. Henning, the note being signed by Lulu R. Henning and her husband, W. F. Henning, and the same was. secured by a real estate mortgage on the homestead. At the time said loan was made, some controversy arose as to whether or not the real estate, independent of the building thereon, was sufficient security for the loan, and the plaintiff was informed that there was a policy of insurance upon the building on the premises. At the time the loan was made and the mortgage executed, the policy in controversy, with the mortgage clause endorsed, was delivered by one H. H. Arnold to Mr. E. F. Richman, the attorney for the plaintiff, in the presence of Mrs. Henning, and the policy continued in the possession of Richman, as attorney for plaintiff, up to the time of the commencement of this trial. The lot on which the insured building stood was worth not to exceed $200. Upon making the loan, Richman, representing the plaintiff, went to see the property. Richman testifies:\\n\\\"The application for the loan from Mrs. Funk to the Hennings came from H. H. Arnold. He was a loan agent. He represented that he had an application for a loan, but had no funds, and wanted to know if I could make it. I told him if the security was satisfactory I would do so. I went to see the property. The lot itself was probably not worth more than $200. Without the insurance on the house, the security would not be sufficient. Arnold told me there was insurance upon the property to the amount of $500, but did not say in what company. The day the loan was closed up, Arnold brought Mrs. Henning and her husband to my office to close the loan. The policy was delivered to me by Arnold in the presence of Mrs. Henning, with the mortgage clause attached.\\\"\\nRichman was attorney for Mrs. Funk at the time. There is no evidence that there was anything said by W. F. Henning or his wife, touching the ownership of the property, to the defendant company or to anyone representing the defendant company at any time. There is no evidence that W. F. Henning said that he was the owner of the property absolutely, qualifiedly or otherwise. There is no evidence that he concealed from the defendant, or its representatives, the title to the property. There is no evidence of what occurred, or what was said at the time the policy in question was issued, touching the title to this property. It appears, however, that Lulu E. Henning was in fact the owner; that W. F. Henning was her husband that, as such, he had an insurable interest in the property; that the only interest, however, which he had in the property was the homestead right.\\nWhile there is no direct evidence of the fact, we think it cannot be disputed, under this record, that H. IT. Arnold was the agent of the defendant company'at the time this policy was issued, and at the time it was turned over to the plaintiff's attorney with the mortgage clause attached. At the time the policy was issued, it was countersigned by H. H. Arnold, as agent. At the time the mortgage clause was attached, his name appears as agent, immediately following the mortgage clause. At the time this trial was had he was dead. Lulu E. Henning also was dead. W. F. Henning was not a witness at the trial. It appears that he had left the country for parts unknown long prior to this trial. The only direct evidence appearing in the record, touching the relationship of Arnold to the defendant company, is the statement of the witness Eicliman that Mr. Arnold said to him:\\n\\\" T am agent of the company that carries this insurance, and I will bring the policy to you later.' The next day he brought the policy to me with the mortgage clause endorsed. This was the day the mortgage was executed or immediately after. The policy was delivered to me by Arnold.\\\"\\nWe feel that we are justified in saying that Arnold was the agent of the company in some capacity, either soliciting agent or recording agent. Touching the question of Arnold's knowledge of the ownership of the property in question, the record discloses that the deed from W. F. Henning to Lulu R. Henning was dated August 2, 1902, and was duly filed for record in the office of recorder of deeds in the county on September 16, 1902; that the acknowledgment of this deed was taken before Arnold as notary public; that at the time this loan was made by the plaintiff to Mrs. Henning, and at the time the policy of insurance was delivered to her attorney with the mortgage clause attached, Arnold brought an abstract of the property and delivered it to plaintiff's attorney; that the abstract was continued by Arnold down to the date of its delivery to the plaintiff's attorney; that the continuation was in Arnold's handwriting; that the conveyance to Lulu R. Henning, as it appeared upon the abstract, was in the handwriting of H. H. Arnold. Arnold was the local agent for the defendant company, and was also the agent of Mrs. Henning in procuring this loan, and acted for her in securing the loan from the plaintiff, and knew that the insurance was demanded as additional security for the loan. The policy of insurance bears date of November 28, 1904. The property was destroyed by fire on the 9th day of February, 1908. A premium of $9.00 was paid for the policy for the term of five years. The policy would expire on November 28,1908.\\nNeither the plaintiff nor her attorney knew that the policy of insurance was in the name of W. F. Henning. Though delivered to plaintiff's attorney, it was not examined by him or her, further than to see that the mortgage clause was attached. Arnold was then acting for the company. He procured the mortgage clause to be attached to the policy, making the loss, if any, payable to the plaintiff as her interest might appear. While representing the company, he knew that plaintiff was taking this policy as additional security for her loan. He knew, at that time, that Lulu R. Henning was the owner of the property. He must have known that the policy was made payable to her husband, and yet, though representing the company, he did not' disclose this fact to the plaintiff. Plaintiff took it in good faith, believing that the policy thus delivered afforded her additional security for her loan, and did not learn of the objection now urged by the defendant to the policy until after the loss occurred.\\nIt is a general rule that the knowledge of an agent of an insurance company as to all matters which come within the scope of his general employment is the knowledge of the company. Insurance companies, like other corporations, necessarily act through their agents. The agents are the eyes and ears of the company, through which it must receive information, if at all. Knowledge which comes through these avenues to the company is its knowledge. As a legal entity, the only information or knowledge it can acquire is through these agencies. As the knowledge of the agent is the knowledge of the company, it is bound thereby. There is no distinction in this state between soliciting and recording agencies. See Secs. 1749 and 1750 of the Code of 1897.\\nIt is the misfortune of the company if it has a negligent or careless agent, and not the fault of the assured. If the agent of the company knows of facts which, at the inception of the contract of insurance, would render the security paid for of no avail to the insured, the company is bound by such knowledge, and if he fails to communicate this knowledge to the company, the insured, in the absence of fraud, ought not to be bound by such failure. Where a fact which would constitute a breach of a condition precedent to any liability of the company on the policy is fully known to its agent, local or general, who is authorized to consummate the contract of insurance, the agent's knowledge is the knowledge of the company, and his act in executing the policy as a valid completed eodtraet is an exercise of the power of the company, and constitutes a waiver by it of such condition precedent, estopping the company from claiming a forfeiture for breach of condition. See Farnum v. Phoenix Ins. Co., 83 Cal. 246 (17 Am. St. 233). See, also, Manhattan Fire Ins. Co. v. Weill, 28 Gratt. (Va.) 389 (26 Am. R. 364). In this last case it is said, quoting from Bidwell v. Northwestern Ins. Co., 24 N. Y. 302:\\n\\\"Indeed it is not easy to perceive why an insurance company, by reason of the formal words or clauses (of a general and comprehensive nature) inserted in \\u00e1 policy intended to meet broad classes of contingencies, should ever be allowed to avoid liability on the ground that facts of which the company had full knowledge at the time of issuing the policy were then not in accordance with the formal words of the contract, or some of its multifarious conditions. If such facts are to be held a breach of such a clause, they are a breach eo instanti of the making of the contract, and are so known to be by the company as well as the insured. A.nd to allow the company to take the premium without taking the risk would be to encourage a fraud. It would, as a legal principle, be equivalent to holding that a warranty of the soundness of a horse is a warranty that he has four legs, when one .has been cut off. ' '\\nSee also Insurance Co. v. McDowell, 50 Ill. 120 (99 Am. D. 497).\\nAs has been said, the reason that notice to an agent is held notice to his principal is because it is the agent's duty to give the principal notice of the facts, and it will be presumed that he-has done so. This is true whenever the notice is connected with the subject-matter of the agency. See Jordan v. State Ins. Co., 64 Iowa 216, in which it is said:\\n\\\"It has been determined by this court that an insurance company issuing a policy and receiving the premium thereon, with knowledge of facts which are breaches of the warranties by the assured, and of the conditions of the policy, will be estopped to deny the validity of the instrument, and will be regarded as having waived the violated conditions. ' '\\nW. F. Henning did have an insurable interest in this property. It was his homestead. True, he was not the sole and unconditional owner of the property. Can the company avoid liability because of this condition of the policy, when, through its agent, it knew just what interest W. F. Henning had in the property insured ? Even assuming that it was the purpose and intent of the company to issue the policy to W. F. Henning, \\u2014 -that he was the party intended to be insured by the policy, \\u2014 that his interest in the property was the interest intended to be covered by the policy, \\u2014 yet, through its agent, it consented to the mortgage and endorsed upon the policy so issued a provision consenting to the mortgage and providing that the loss should be payable to the mortgagee as her interest might appear. It knew, through its agent, at the time that it consented to this mortgage, and to the mortgage clause which was attached to its policy, that the plaintiff was accepting the policy, with the mortgage clause attached, for the purpose of additional security for the loan made, and said, \\\"Permission is granted for encumbrance upon the real property insured in this policy, not to exceed the principal sum of $550.00, and loss, if any, is made payable first to Kate D. Funk, mortgagee, as her interest may appear.\\\"\\nThere was, in this, mortgage clause, an affirmative assertion that the property was insured in the policy. True, it is said, \\\"Subject to the conditions of the policy.\\\" The condition here invoked to defeat the policy is that W. F. Henning was not the sole and unconditional owner of the property. The fact is that he had a homestead interest in the property. The fact is that the company insured this interest to the amount of $500. The fact is that the company knew, through its agent Arnold, that he had only a homestead interest in the property. The company cannot, by.inserting in the policy that it is at its inception void, because he is not the unconditional, owner, accept the premium for the insurance, guarantee indemnity, and then say, \\\"We knew that he was not the unconditional owner; we knew that the only insurable interest he had in the property was that of a homestead. We inserted in the policy a condition directly opposing the fact, as it was known to us at the time, and thereby we have defeated the policy.\\\" That is to say, \\\"We issued you a policy, Mr. Henning; we received your money; we knew that the clause stated in the policy, in view of the facts which we then knew, made the policy absolutely void eo instcmti upon its delivery; we took your premium, but we took no risk, and are not liable under it for the loss.\\\"\\nThere is no evidence in this record as to the value of the homestead interest in the property. Under Sec. 1742 of the Code of 1897, the amount stated in the policy is prima-facie evidence of the insurable value of the property at the date of the policy. See Wensel v. Insurance Assn., 129 Iowa 295. At the time the company issued its mortgage clause, it knew that the mortgage was executed by the party named in the policy of insurance, and his wife, Lulu R. Henning, and knew that Lulu R. was then the owner of the fee title; that the assured had only a homestead interest, and was not the unconditional and sole owner.\\nUpon this question, see McMurray v. Capital Insurance Co., 87 Iowa 453. In this case, the policy contained a warranty that the insured was the unconditional owner of the property, when, in fact, he had only a contract for a deed. The company sought to defeat recovery upon the policy after loss because of this condition of the policy. It appeared, however, that the recording agent issued the policy with knowledge of the fact that the insured was not the sole and unconditional owner, and the company was held bound. See also Carey v. Home Ins. Co., 97 Iowa 619. In that ease, the court said: \\\"Appellant, with knowledge, through its agent, of the true state of the title of the insured property, and that it was not entirely unconditional and sole, issued this policy to the plaintiff, who had an insurable interest in the property.\\\" The property was in fact the homestead only of the plaintiff. There was a condition in the policy that it should be void if the interest of the assured was other than the entire, unconditional and sole ownership. The court said, citing Lamb v. Ins. Co., 70 Iowa 238: \\\"The defendant knew, when it issued the policy, that the assured did not own the fee simple title to the real estate, and it knew precisely what title he had, and, so knowing, issued the policy. If there was a false statement, the defendant so knew, and must be held to have waived the conditions of the policy in this respect.\\\" The court said, \\\"This decision is decisive of the question under consideration.\\\" See also the following eases: Fitchner v. Fidelity Mutual Fire Assn., 103 Iowa 276; Gurnett v. Ins. Co., 124 Iowa 547, in which it is said: \\\"The principle is well settled that when an insurance policy contains a condition which renders it void at its inception, and this is known to the insurer, it will be held to have waived such condition by receiving the premium and issuing its policy.\\\" See Wensel v. Ins. Co., 129 Iowa 295; Padrnos v. Ins. Co., 142 Iowa 199; Kesler v. Ins. Assn., 160 Iowa 374; Frane v. Ins. Co., 87 Iowa 288.\\nThis disposes of the first two errors relied upon by appellant.\\nOn the 21st day of November, 1906, prior to the destruction of the property by fire, plaintiff commenced a suit in the district court upon her n\\u00f3te and mortgage, hereinbefore referred to, making W. F. Henning and the heirs of Lulu R. Henning, who had died in the meantime, parties defendant. There was no personal service of the notice of the commencement of this action, or of any proceedings thereunder served upon W. F. Helming, the assured. The notice to him was issued, but never served, the sheriff certifying that he could not be found within the county. There was an affidavit filed in the case that he was a nonresident, and that personal service could not be made upon him. Notice thereupon was published as required by law, and this is the only notice, so far as the Hennings are concerned. There is a provision in the policy to this effect:\\n\\\"If, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy, by virtue of any lien or encumbrance thereon, this, policy shall be void. ' '\\nDefendant seeks to avoid the policy on this ground. It will be noted that the provision of the policy relied upon is that it shall be void in the event that foreclosure proceedings are commenced, or notice of sale given, with the knowledge of the insured. W. F. Henning was the insured. There was no personal service of any notice upon him in the suit. There is no evidence that he had any knowledge of the commencement of this suit. Defendant, having' prepared this policy and these conditions upon which a right to forfeiture is predicated, must be held to have chosen the words advisedly, and must be held to have used the word \\\"knowledge,\\\" as distinguished from constructive notice, advisedly, with the intent to limit the right of forfeiture to those cases in which the insured had knowledge of the commencement of the foreclosure proceedings, or \\u2014 what has been .sometimes held equivalent \\u2014 actual notice. That the word \\\"knowledge\\\" as used in the contract means actual knowledge, as distinguished from constructive knowledge or constructive notice, see Fidelity & Casualty Co. v. Gate Natl. Bank, 25 S. E. (Ga.) 392. That knowledge and notice are not synonymous or interchangeable, see Words & Phrases, Vol. 5, p. 3941.\\nPolicies of insurance of this character are strictly construed against the company. If the company had intended by this provision to cover cases in which foreclosure proceedings were commenced without the knowledge of the assured, in his absence, and without notice to him, they could have so said; but they limited the right of forfeiture to foreclosure commenced with the knowledge of the assured.\\nHowever that may be, we are not inclined to believe that it was the intention and purpose of this provision of the policy to defeat the policy in the event foreclosure proceedings were commenced upon a mortgage, to the giving of which the company consented after the issuance of the policy. The foreclosure proceedings did not have the effect of creating any new lien upon the property, but simply of establishing and confirming the lien to which the company had already consented. See 2 Pomeroy, Equity Jurisprudence (3d Ed.) Sec. 592. Upon this point, see Fitzgibbons v. Ins. Co., 126 Iowa 52; see, also, Greenlee v. Ins. Co., 102 Iowa 427.\\nIt is nest contended that, prior to the destruction of the property, there was a change of possession, in violation of the terms of the policy. On this point, the policy provides: \\\"If any change other than bii death of the insured takes place in the . , possession of the property covered by the policy, the policy shall be void.\\\"\\nIt appears that W. F. Henning abandoned his wife some time prior to the loss, \\u2014 just when is not shown. We assume from the record, which is very indefinite on this point, that W. F. Henning and his wife were in possession of this property at the time this policy was issued; that W. F. Henning abandoned his wife and left the country. When this occurred does not definitely appear. We assume that she remained in possession of the property up to the time of her death; that whatever change took place in the possession of the property was due to her death, and was made by those who represented the estate.\\nThe allegations of the defendant are that Elmer Jennison was in possession of the property, pursuant to a sale or contract of sale by the plaintiff. This fact is not shown in the record, nor have we any evidence upon which such a finding could be made. The only evidence that Jennison was ever in possession of the property is the fact that, in the foreclosure proceedings, notice was served upon him as tenant. At any rate, the evidence on this point is too meager to make a finding of fact upon which a forfeiture upon this provision of the policy could be sustained.\\nWe find no error in the record, and the cause is\\u2014 Affirmed.\\nDeemer, C. J., Ladd and Salinger, JJ., concur.\"}"
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+"{\"id\": \"2253741\", \"name\": \"Paul Wagner, Appellant, v. Elmer H. Allen et al., Appellees\", \"name_abbreviation\": \"Wagner v. Allen\", \"decision_date\": \"1918-10-25\", \"docket_number\": \"\", \"first_page\": \"894\", \"last_page\": \"897\", \"citations\": \"184 Iowa 894\", \"volume\": \"184\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:47:53.138166+00:00\", \"provenance\": \"CAP\", \"judges\": \"Preston, C. J., Ladd and Salinger, JJ., concur.\", \"parties\": \"Paul Wagner, Appellant, v. Elmer H. Allen et al., Appellees.\", \"head_matter\": \"Paul Wagner, Appellant, v. Elmer H. Allen et al., Appellees.\\nSPECIFIC PERFORMANCE: Unconscionable Contract. Specific performance will not be granted of a contract whicli is unconscionable because of grossly inflated values in favor of tbe plaintiff.\\nAppeal from Poweshiek District Court. \\u2014 John F. Talbott, Judge.\\nOctober 25, 1918.\\nSuit in equity for specific performance of a contract for an exchange of lands. The answer admitted the contract, but denied performance thereof by the plaintiff. It further averred a rescission thereof by the defendant for good cause. There was-a decree dismissing the petition, and the plaintiff appeals.\\nAffirmed.\\nW. J. Vander Ploeg and Lewis & Dickson, for appellant.\\nR. J. Smith and Thomas J. Bray, for appellees.\", \"word_count\": \"921\", \"char_count\": \"5458\", \"text\": \"Evans, J.\\nThe contract in suit was entered into on November 8, 1915. By the terms thereof, the plaintiff agreed to convey to the defendant, on March 1, 1916, a farm of 320 acres, situated in Warren County, Iowa, and the defendant agreed to convey to the plaintiff/ in exchange, a farm of 154 acres, in Jasper County, and also a residence property in the town of Keswick. Each conveyance was to be made subject to specified encumbrances. Time was of the essence. Place of performance was fixed at the bank in Montezuma. The defendant appeared at such place on March 1, 1916, and remained there throughout the business hours of the day. The plaintiff did not appear, but sent tq the bank a deed and abstracts in purported pursuance of the contract. The deed was materially defective in description of the property, and the abstracts presented showed materially defective record title, and showed, also, unsatisfied mortgages in excess of the encumbrances to be assumed by the defendant. In this form, they were tendered to the defendant by the bank officials, and were declined by the defendant. At the close of the day, the defendant declared a rescission of the contract, accompanied with certain general objections to the abstract of title. At about 8 P. M.', the plaintiff arrived at the bank, where he called the attorney of the defendant by phone, and obtained a conference with him at the bank, which had no' result. The plaintiff offered, in general terms, to fully comply with his contract, and to remedy any defects in his deed or in his abstracts which might be pointed out to him. He did not, however, cause any corrections to be in fact made, either in the deed or in the abstracts, for at least some months thereafter. His wife was not present at any time on March 1st, the plaintiff being a nonresident of that county. Sometime thereafter, the plaintiff took up his own residence upon the farm in question, and made valuable improvements thereon. He also began an action for damages against the defendant, under a special provision of the contract, which provided for $5,000 to be paid by either party in the event of breach of the contract. Later, he amended his petition, and sought a specific performance, and obtained a transfer of his cause to the equity side.\\nThe defendant's defense sets forth, not only the default of the plaintiff in the presentation of his deed and abstracts, but also that the defendant was induced to sign the contract in question by false representations, which false representations included representations as to value. Many interesting questions are presented in the briefs. For the plaintiff, it is contended that the defendant waived all his defenses except such as were included in the objections made to the abstract of title on the first day of March, when he declared a rescission. For the defendant, it is claimed that the plaintiff waived his right to a specific performance, by his acquiescent conduct, and by electing to prosecute his action for damages. We do not find it necessary to go into these questions. The evidence was such as to justify the court in finding that the valuation put upon plaintiff's 320-acre farm was grossly exaggerated. The valuation fixed in the contract was $130 an acre. The valuation of the defendant's farm was fixed at $175 an acre. The farm of the plaintiff is described as rough land. The defendant was not a resident of Warren County, and was not familiar with values there. The plaintiff had acquired the farm on. the first of March preceding. Its purchase price to him was $77.50 per acre. Under the evidence, we are satisfied that the overvaluation put upon it in the contract was not less than $40 an acre. Whether this valuation was agreed to by the defendant by reason of false representations is not a controlling consideration in a specific performance suit. The fact itself gives the contract an unconscionable color. It is argued that the contract was a trading proposition, and that the property of the defendant was also put in at an exaggerated valuation. Even if that be true, we are satisfied from the evidence that the degree of exaggeration was moderate, as compared with that pertaining to the plaintiff's land. Furthermore, if it had been exaggerated to the extent of $40 an acre, the acreage was less than one half of the farm of plaintiff, and it would still leave the plaintiff a large gainer by the inflated price. Manifestly, a court of equity will not be swift to award the extraordinary and discretionary remedy of specific performance for the enforcement of grossly inflated valuations. The decree of the district court will be \\u2014 Affirmed.\\nPreston, C. J., Ladd and Salinger, JJ., concur.\"}"
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+"{\"id\": \"2257687\", \"name\": \"C. P. Sickles et al., Appellants, v. J. W. Lauman, Appellee\", \"name_abbreviation\": \"Sickles v. Lauman\", \"decision_date\": \"1918-12-14\", \"docket_number\": \"\", \"first_page\": \"37\", \"last_page\": \"46\", \"citations\": \"185 Iowa 37\", \"volume\": \"185\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:34:05.995364+00:00\", \"provenance\": \"CAP\", \"judges\": \"Preston, C. J., Gaynor and Stevens, JJ., concur.\", \"parties\": \"C. P. Sickles et al., Appellants, v. J. W. Lauman, Appellee.\", \"head_matter\": \"C. P. Sickles et al., Appellants, v. J. W. Lauman, Appellee.\\nCONTRACTS: Restraint of Trade \\u2014 Assignability. eAn agreement, in part consideration for tire sale of a business, that the vendor will not, for a stated time, enter into business in the same local ity, in competition with the vendee, is incident to the property and business sold, and is assignable by the vendee, along with a re-sale of the business, and is enforcible by such latter assignee.\\nAppeal from Buena Vista District Cou/rt. \\u2014 James DeLand, Judge.\\nDecember 14, 1918.\\nAction for equitable relief. Petition dismissed, and plaintiff appeals. The facts are stated in the opinion.\\nReversed and remanded.\\nF. F. Faville, for appellants.\\nT. H. Chapman, for appellee.\", \"word_count\": \"2750\", \"char_count\": \"16021\", \"text\": \"Weaver, J.\\nFor a considerable period prior to the transaction hereinafter mentioned, the defendant, J. W. Lauman, was the owner and proprietor of an established business, conducting and carrying on a laundry and the work of cleaning and pressing clothes, also the business of maintaining a station for the buying and shipping of cream. On May 29, 1916, defendant entered into a written contract with one Olive I. Wright, for the sale and transfer to the latter of the business aforesaid, together with the machinery, fixtures, and equipment of every kind and character used in connection therewith, and including in such transfer a list of the customers dealing with the defendant. After describing the business and the property in a general way, the contract contains a clause in the following words:\\n\\\"The first party hereby sells the good will of his business and as a part of the consideration hereof agrees that he will not directly or indirectly enter into business in Sioux Bapids, Iowa, in competition with said second party for a period of five years from the date hereof.'\\nThe deal was completed, and the said Olive L Wright entered into possession and control of the business so pur-, chased by her, in Jnne, 1916, and. continued therein until' January 25, 1917; on which date, while said business, property, and plant were still a going concern, she bargained and sold the entire outfit, property, business, and good will thereof, to the present plaintiffs, C. P. Sickles and Ruth Sickles. These purchasers, when buying said property, business, and good will, were informed and knew of the terms of the sale from defendant to Wright, and as a part of the purchase, they took from Wright an assignment of her contract with defendant, and of all the rights acquired by her thereunder. Such purchase having been consummated, plaintiffs went into possession of said property and business, since which time they have been the owners and proprietors thereof, including not only the good will acquired or attaching to the said business during the proprietorship of their immediate assignor, but during that of her assignor as well.\\nThe petition in this case, after reciting the facts as aforesaid, alleges that, since said purchase by the plaintiffs, the defendant, in violation of the terms of his said contract and the terms of the sale of said property and good will, has re-entered the cleaning, pressing, laundry, and cream-buying business in the town of Sioux Rapids, and has endeavored and is now endeavoring to re-establish such business in competition with plaintiffs, and unless restrained from so doing, will continue to advertise and solicit patronage and customers away from the plaintiffs, and to interfere with the plaintiffs' business, and cause them irreparable injury. Upon this showing, plaintiffs pray the issuance of an injunction restraining defendant from further violation of his said contract, and for general relief.\\nTo this petition the defendant demurred, because:\\n1. The facts stated by the plaintiffs do not entitle them to the relief demanded; and\\n2. The contract entered into by the defendant with Wright is not assignable.\\nThe' demurrer was sustained; and, plaintiffs electing to stand upon their petition without amendment, it was dismissed, and they appeal. The correctness of the ruling as to the sufficiency of the pleading is the sole question raised by the appeal.\\nThe position taken by the appellee in support of the ruling below is that his agreement not to re-enter business at Sioux Rapids is one of which only his immediate purchaser can take advantage; or, in other words, that the right which the first purchaser acquired under that agreement was personal to that purchaser alone, and could not be lawfully or effectually assigned or transferred to a second purchaser of the same business., This proposition is said to be justified by certain of our own decisions, no other authorities being cited or called to our attention. Of the cases so cited, Haldeman v. Simonton, 55 Iowa 145, does not appear to ns to be in point, either in fact or in principle. There, the defendant, a physician, in selling his practice, agreed not to \\\"re-settle\\\" in the town of Mitchellville, and this was held not to be broad enough to prohibit his practicing his profession in that town after removing therefrom, and while living in the city of Des Moines. It is, perhaps, in point upon the proposition that contracts of this kind will be construed with care not to unduly or unreasonably extend the agreed restriction beyond the expressed or fairly implied intent of the parties; but otherwise, it affords no light upon the question before us. The decisions in Streichen v. Fehleisen, 112 Iowa 612, and Rapalee v. Malmquist, 165 Iowa 249, both turn upon the identity of the party agreeing to refrain from entering into competition with a business sold. In each case, the party making the agreement was a named partnership, only; and this was held not to operate as a restriction upon the liberty of an individual member of the firm. Somewhat in the same line is Barron v. Collenbaugh, 114 Iowa 71. There, the defendant sold his lively business to Fogarty & Barron, and agreed not to reenter the business at that place \\\"during the time said parties of the second part may- be engaged in said livery business on the above-named premises.\\\" Thereafter, one of the purchasers, Fogarty, sold out his interest to his partner, Barron, who continued']the business individually. Collenbaugh then re-entered the livery business, in competition with Barron, who brought action for an injunction. Relief was denied, on the theory that the period of restriction was, by the express terms of the agreement, limited to the time Fogarty & Barron should continue in the business sold to them, and when Fogarty sold out or retired, the obligation of the defendant under the agreement terminated.\\nThe precedents above cited go to the limit of strict construction in favor of the seller of a business entering into an agreement of this character, \\u2014 further, indeed, than the writer of this opinion believes is justifiable; but none of them, either expressly or by implication, lays down the rule contended for by the appellee, that such, a contract gives to a purchaser no more than a mere personal right, which he cannot assign to another to whom he, in turn, sells the business. There is, indeed, an expression in the Barron case to the effect that, \\\"had the firm of Fogarty & Barron assigned the contract, no right of action would have passed to their assignee, by reason of the peculiar reading thereof.\\\" If we give proper effect to the concluding clause of that quotation, it is probably not open to material criticism; but in any event, it is pure dictum, for the assignability of the contract was not there in question. So far as we have been able to discern, this court has never committed itself to the doctrine, for which the appellee contends.\\nAs to property right' in the good will of a business, and of its protection in equity, it has been said:\\n\\\"The good will of a trade or business may be the subject of bargain and sale, when connected with any specific stock in trade, or with some valuable secret of trade, or with a well-established stand for business. A court of equity will decree specific performance of a contract for the sale of the good will of a trade or business.\\\" Moorhead v. Hyde & Braden, 38 Iowa 382.\\nDirectly in point >upon the question in this case is Hedge, Elliott & Co. v. Lowe, 47 Iowa 137. There, Lowe sold his business to one Vorse, by a contract which contained an agreement that he would not re-engage .in the same business in the same town for a period of fiye years, without the consent of Vorse. Vorse sold and assigned an equal interest in the business and contract to one Hedge, and later, sold and assigned his remaining interest therein to one Elliott. Thus, the entire interest of the original purchaser in .the business and good will was eliminated. Thereafter, Lowe resumed business of a like nature in the same town, and in defense to an action against him for an injunction, he raised the very objection on which appellee now relies, that the contract between him and Vorse was personal, and could not be assigned. The court held the point not well taken, saying:\\n\\\"If the agreement not to engage in the agricultural business was of sufficient value to constitute, in part, an inducement to Vorse to purchase, it must be admitted tha 1 it might be of equal value to a vendee of Vorse. If Vorse, because of this agreement, was induced to purchase, no good reason can be given why Vorse should not be able to avail himself here of this agreement as a means of effecting a sale. The question here is not whether this agreement may be the subject of transfer in the abstract, but whether it may be transferred with the business to which it originally pertained\\\" (citing California Steam Nav. Co. v. Wright, 6 Cal. 258, and 8 Cal. 585; Guerand v. Dandelet, 32 Md. 561, 569).\\nThis decision does not appear to have been overruled, nor do we find that its authority has ever been limited or questioned. It is also quite in line with the views expressed on the same subject by nearly all the courts. See Francisco v. Smith, 143 N. Y. 488 (38 N. E. 980); Gompers v. Rochester, 56 Pa. St. 194; Fleckenstein v. Fleckenstein, (N. J.) 53 Atl. 1043; Public Opinion Pub. Co. v. Ransom, 34 S. D. 381 (148 N. W. 841) ; Diamond Match Co. v. Roeber, 106 N. Y. 473 (13 N. E. 419) ; Up River Ice Co. v. Denler, 114 Mich. 296 (72 N. W. 157) ; Haugen v. Sundseth, 106 Minn. 129 (16 Ann. Cas. 259); Webster v. Buss, 61 N. H. 40; American Ice Co. v. Meckel, 109 App. Div. 93 (95 N. Y. Supp. 1060); Palmer v. Toms, 96 Wis. 367.\\nSporadic instances are not wanting in which a contrary view is announced or suggested, but they are not generally recognized as authoritative precedents. The one most directly in point to that effect is Hillman v. Shannahan, 4 Ore. 163. It is there held that the contract, having made no reference to \\\"the heirs and assigns\\\" of the purchaser, must be construed as personal only, and not enforcible in the. hands of his assignee. The reasoning employed is by no means persuasive, and the citation of authorities wholly omits reference to or consideration of the numerous precedents to the contrary. The presence or absence of express mention of the words \\\"heirs and assigns\\\" is discussed in several of the cases first above cited, and in each instance, it is held to be immaterial. Indeed, in our own leading case of Hedge v. Lowe, supra, the agreement was with the purchaser by name, without any express mention of heirs or assigns; and it was held to be assignable. This decision has been cited and followed in nearly all the other states where the question has come up for adjudication. In many cases, the courts go much beyond what we have had occasion to hold, and say that, even if there is no express transfer of the contract, the good will assigned by the first seller follows the business into the hands of the second pur chaser, without any express mention, iis an incident to the business, \\u2014 a rule for which many good, reasons may be found. Public Opinion Pub. Co. v. Ransom, 34 S. D. 381 (148 N. W. 841, Ann. Cas. 1917A, 1010) ; Parnell v. Dean 31 Ont. 517; Palmer v. Toms, 96 Wis. 367; Gompers v. Rochester, 56 Pa. St. 194; Didlake v. Roden Groc. Co., 160 Ala. 484 (18 Ann. Cas. 430); Fairfield v. Lowry, 207 Mass. 352 (93 N. E. 598). In the Gompers case, the court touches upon a distinction which those who deny the rule in Sedge v. Lowe usually overlook. It is there said that the fallacy of the argument denying the assignability of the contract is in regarding it as merely personal in character, \\\"whereas it was alone an incident to property which they had parted with, and the business also. It would not have been binding for want of, a consideration, unless as incident to the property.\\\" In the Palmer case, supra, the Wisconsin court, on the same subject, says:\\n\\\"To determine the question, the nature of the contract must be understood. It does not constitute a distinct property right, independent of the business it was designed to protect, any more than the good will itself. The purpose of the contract being to protect the property or business to which it related, it was an incident of, and adhered to, such property and business. It could not otherwise exist.\\\"\\nTo construe such contracts as personal only, where the design to so narrow or restrict their effect is not clearly expressed, is to deprive them of much, if not most, of their value. The seller expects a better price, and the buyer is willing to pay a better price, ]than the business would command without it. But the business, when once purchased, is worth on the market only what the owner can reasonably hope to sell it for; and if he cannot sell it, without destroying its protection against competition by the man who created and built it up, he is quite sure to suffer loss. To hold that the parties to a contract of sale intend such inequitable and absurd results, the language should reveal it so clearly as to place it beyond all reasonable doubt. What the defendant sold in the first instance was not only the physical property, but the established business, together with its protection for five years against competition by him. It was this property and this business, so protected, which Wright bought and owned, and, as such owner, had the right to sell, and did sell, to the plaintiffs. Though the protection existed as incident to the property and business, it was, nevertheless, a property right which the plaintiffs acquired with the property and business; and as such, the courts will recognize it, and enjoin its wrongful invasion. The defendant undertook to refrain for five years, from competition with the business sold by him, and is presumed to have received a sufficient consideration therefor; and it is but equitable that he be required to perform his agreement in good faith.\\nIn discussion, courts sometimes indulge in the loose generality that the law does not favor contracts in restraint of trade, and therefore, an agreement by which a party undertakes not to enter a specific business in a specified city or town will be strictly construed. What the law does disfavor are contracts which unreasonably restrict the individual in his liberty of occupation and employment. But there is no public policy or rule of law which condemns or holds in disfavor a fair and reasonable agreement of this character, and such a contract is entitled to the same reasonable construction and the same effective enforcement that are accorded to business obligations in general. For an illuminating discussion of this subject, see Diamond Match Co. v. Roeber, 106 N. Y. 473 (13 N. E. 419).\\nIn our opinion, the plaintiffs' petition stated a good cause of action, and the demurrer thereto should have been overruled. The ruling and judgment below are, therefore, reversed and tlie cause remanded, with instructions to the trial court to overrule the demurrer, and for further proceedings not inconsistent with the views hereinbefore expressed. \\u2014 Reversed and remanded.\\nPreston, C. J., Gaynor and Stevens, JJ., concur.\"}"
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+"{\"id\": \"2273436\", \"name\": \"The State of Iowa v. Rollet\", \"name_abbreviation\": \"State v. Rollet\", \"decision_date\": \"1858-10-13\", \"docket_number\": \"\", \"first_page\": \"535\", \"last_page\": \"536\", \"citations\": \"6 Iowa 535\", \"volume\": \"6\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:34:51.920332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Iowa v. Rollet.\", \"head_matter\": \"The State of Iowa v. Rollet.\\nWhere an indictment charged the defendant with selling intoxicating liquors by the glass or dram, on the l\\u00e1th of October, 1867 ; Held, That the district court had no jurisdiction of the offense charged, and no legal authority to render judgment against the defendant.\\nThe saving clause in section three of the 12th article of the constitution of the State of Iowa, applies only to offenses committed before the same took effect.\\nAlthough the time laid in an indictment is not material, and need not be proved as laid, yet where the defendant pleads guilty to the offense alleged, the fact that the State was not confined to the exact time laid in the indictment, and might have proved that the offense was committed at a prior date, cannot operate to uphold the jurisdiction of the district court, not otherwise shown by the record.\\nWhere a defendant pleaded guilty to selling intoxicating liquors by the glass or dram, and being adjudged to pay a fine of fifty dollars and costs of suit, and to stand committed until the fine and costs were paid, he paid the fine and costs before the taking of the appeal; Held, That the defendant was not estopped from assigning errors upon the judgment and proceedings of the district court.\\nAppeal from the Lee District Court.\\nWednesday, October 13.\\nThe record shows that to an indictment charging the defendant with selling intoxicating liquors by the glass or dram, he pleaded guilty, and was adjudged by the court to pay a fine of fifty dollars and costs of said suit, and to stand committed until the fine and costs were paid. It is further shown by the record, that the fine and costs were paid before the taking of the appeal. The indictment charged the offense to have been committed on the 14th day of October, 1857. The defendant appeals.\\nJ. M. Beclc, for the appellant.\\nSamuel A. Rice, Att\\u2019y G-eneral, for the State.\", \"word_count\": \"603\", \"char_count\": \"3497\", \"text\": \"Stockton, J.\\n\\u2014 As the time is laid on the 14th of Octo ber, 1857, which was after the taking effect of the present constitution of the State of Iowa, the district court had no jurisdiction of the offense charged, and no legal authority to render judgment against defendant. Constitution, article 1, section 11. It is only to offenses committed before the taking effect of the present constitution, that the saving clause applies, which provides that they shall be subject to indictment, trial and punishment, in the same manner as if the new constitution had not been adopted. Constitution, article 12, section 3. Although the time laid in the indictment is not in general material, and need not be proved as laid; yet defendant only pleaded guilty to the charge of selling liquors on the 14th of October,\\\" when the new constitution was in force; and the fact that the plaintiff was not confined to the exact time laid in the indictment, and might have proved that the offense was committed before the adoption or taking effect of the new constitution, cannot, under the circumstances, operate to uphold the jurisdiction of the court, not otherwise shown by the record. The jurisdiction is excluded by the constitution, and by the provisions of the statute which affixes the punishment for the act to which the defendant pleaded guilty.\\n\\\"We think the defendant was not estopped from assigning errors upon the judgment and proceedings of the district court, by the fact that he had discharged the fine and costs imposed upon him by the judgment of the court, before taking his appeal.\\nJudgment reversed.\"}"
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+"{\"id\": \"2276406\", \"name\": \"Clara Harding, Appellee, v. City of Des Moines, Appellant\", \"name_abbreviation\": \"Harding v. City of Des Moines\", \"decision_date\": \"1922-05-09\", \"docket_number\": \"\", \"first_page\": \"885\", \"last_page\": \"892\", \"citations\": \"193 Iowa 885\", \"volume\": \"193\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:12:54.751411+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stevens, C. J., Evans and Faville, JJ., concur.\", \"parties\": \"Clara Harding, Appellee, v. City of Des Moines, Appellant.\", \"head_matter\": \"Clara Harding, Appellee, v. City of Des Moines, Appellant.\\nMUNICIPAL CORPORATIONS: Officers \\u2014 Salary of Wrongfully Discharged Policeman. A city is not liable to policemen for the salary of which they have been deprived during a period of wrongful discharge by the civil service commission, when the city has actually paid said salary to other policemen, even though it be impossible to point out the particular policemen to whom said salary has been paid. The principle is that the public may not be compelled to pay twice for the same service.\\nAppeal from Polk District Court. \\u2014 J. D. Wallingford, Judge.\\nMay 9, 1922.\\nAppeal from judgment of the district court in favor of policemen who sued to recover salaries they did not receive between January 23, 1915, the date of their dismissal from the force, under orders of the civil service commission, and July 1, 1917, the date of their reinstatement on the force, by decree of court, the amount of the judgment being $3,072.40. \\u2014\\nReversed.\\nCharles W. Lyon, Edwin J. Frisk, Chaunoey A. Weaver, and Russell Jordan, for appellant.\\nParsons & Mills, for appellee.\", \"word_count\": \"2586\", \"char_count\": \"15186\", \"text\": \"Arthur, J.\\n\\u2014 I. Under the terms of a stipulation, two actions, Tyler Harding v. City of Des Moines and A. J. Butin v. City of Des Moines, presenting identical issues nf fact and law, were tried as one case in the district court, and on this appeal are to be so considered as one action, and for convenience the title is ' ' Clara Harding, Executrix, v. City of Des Moines. ' '\\nTwo Civil War veterans, Tyler Harding and A. J. Butin, prior to January 23, 1915, for several years were police officers in the city of Des Moines. The chief of police of the city of Des Moines filed complaint against these two policemen, charging incompetency for service, and upon such complaint a hearing was had before the civil service commission, resulting in the general finding that the hardships of past years and the infirmities of old age had incapacitated these men for further efficient service as police officers, and an order was entered dismissing them from the police department.\\nHarding became a member of the police force in 1900. Butin became a member of such force in 1895. Each continued to discharge his duties as a member of such force until January 23, 1915, when each was discharged by the order above mentioned. Each appealed from the order of discharge, and a writ of certiorari was sued out, and the findings and orders of the civil service commission were reviewed in the Polk district court, and were annulled by said court; and on appeal to the Supreme Court of Iowa, each case was affirmed. Butin v. Civil Service Com., 179 Iowa 1048. The Harding case was affirmed on stipulation June 18, 1917, following the Butvn decision. On July 1, 1917, Harding and Butin were restored to their places on the Des Moines police force. Two years, five months, and eight days intervened between their discharge and reinstate ment. On tbe 23d day of January, 1915, the date of their discharge, and continuously thereafter until the 1st day of April, 1917, the compensation of a policeman of the grade of Harding and Butin was $82.50 per month, payable semimonthly; and on the 1st day of April, 1917, up until after the 15th day of June, 1917, the pay of such police officers was $91 per month, paid semimonthly. At the time of the discharge of Harding and Butin, the police force of the city of Des Moines consisted of about 105 men, and it has since said time been no less. The force has been kept up to practically the full quota of men during all of the time since the 23d day of January, 1917; and immediately following the discharge of Harding and Butin, other men were appointed and served and were paid by the city for their services as policemen, to keep up the force to the full quota provided for by the police department. Following their reinstatement, Harding. and Butin made demands upon the city council of the city of Des Moines, in writing, for the payment of their salaries during the time they wore deprived of their offices, which claims were denied by the city council. On August 17, 1917, Harding and Butin instituted these suits against the city of Des Moines for the recovery of their salaries alleged to be due them during the periods of their suspension from the police force, which suits were consolidated, as above mentioned, and tried in the Polk district court, to the court without a jury, and judgment entered in their favor in the sum of $3,072.40, with interest and costs, from which judgment this appeal is prosecuted.\\nErrors relied upon for reversal in the entering of judgment against the city are: .\\n(1) The civil service commission is a distinct and inde-i pendent branch or department of local government, carried on under and authorized by special legislative act, and the city is not liable for acts of the commission performed while within the scope of its authority.\\n(2) Policemen are public officers Or state officers, and are not entitled to salaries or compensation not earned.\\n(3) Harding and Butin were de-jure officers, while defacto officers acted and were paid for their services.\\n(4) There is no showing in the record that Harding and Butin ever made any effort to or did at any time engage in any other employment during the period of their suspension.\\n(5) If Harding and Butin have any cause of action, it is founded in tort, and not upon contract.\\nCounsel for the city concede that appellees were honorably discharged soldiers of the Civil War, and were entitled to the benefit of the preference statutes enacted for their protection. It must be further conceded (it was so found by the trial court) that the discharge of appellees from service was wrongful. It was, therefore, an invasion of their rights. Appellant's position, stated briefly, is that it did nothing to cause the invasion of appellees' rights, and was powerless to control it, and consequently that it cannot be made to respond in damages. Counsel for the city argue that the city did not discharge Officers Harding and Butin from the police department; that the city was shorn of that power when the local police department became a part of the classified* civil service regime, under legislative acts in Code Supplement, 1913, Sections 1056-al5, 1056-al6, and 1056-a32(b).\\nAppellees urge that:\\n(1) Being -honorably discharged soldiers of the Union Army of the Civil War, they were entitled to protection of the statutes Sections 1056-al5, 1056-al6, and 1056-a32(b).\\n(2) The order of the civil service commission discharging appellees was annulled on certiorari hearing provided by statute.\\n(3) Appellees' rights to the offices carried the right to compensation of the offices during the time they were suspended.\\nAppellees say that, the action of the civil service commission discharging them from service having been adjudged void and annulled, they never ceased to be policemen: that is to say that, the order of discharge being annulled, they were legally all the time members of the police force, but their compensation was not paid.\\nIt may be stated as the general rule that the right to the possession of an office carries with it the right to the emoluments of such office. McCue v. County of Wapello, 56 Iowa 698. See, also, Code Sections 1222, 1223. Many cases from other, jurisdictions might be cited, holding to the same effect.\\n. II. Ordinarily, a de-jure officer may sue a de-facto incumbent who has deprived him of his rights, and recover the salary of the office for the period during which he has been deprived of the office by the de-facto incumbent. McCue v. County of Wapello, supra; Code Sections 1222, 1223.\\nIn most cases where the salary pertaining to an office has been involved, the issue has been between an officer de jure and an officer de facto, following a controversy as to which party was entitled to the lawful possession of the office. The instant case is not such a suit.\\nAs excuse, perhaps, for not bringing suit against policemen who were appointed when appellees were discharged, for the salaries as de-facto officers, counsel for appellees present the situation with good logic, in substance that the nature of the office was such that, although the quota of 105 policemen was filled when appellees were discharged, no particular appointees were or could be singled out as de-facto successors of appellees; that, in the instant ease, where the police force consisted of a number of men, the men appointed when appellees were wrongfully discharged cannot be said to be their successors. City of Houston v. Estes, 35 Tex. Civ. App. 99 (79 S. W. 848).\\nBut such situation, if it be conceded, of impossibility of identifying men appointed when appellees were discharged as de-facto officers, holding places which appellees were entitled to the possession of, is not proper basis for recovery against the defendant city of the salary of which appellees were deprived.\\nIII. Manifestly, the defendant city would not be liable for salaries or in damages for loss of salaries to appellees, in the absence of allegation and proof that it caused or was instrumental in causing their discharge from service. That leads to the pertinent inquiry: What did the defendant city have to do with the discharge of Harding and Butin? It is true that the chief of police of the city of Des Moines filed complaint against these two men, charging incompetency. A hearing was had on the charges, before the civil service commissioners. It may be assumed, as provided by statute, that the chief of police, in filing complaint against Harding and Bntin, did not act at the instance or direction of the defendant city, through its council. The statute creating the civil service commission and defining its powers and duties provides for the filing of complaint by the chief of police against members of the police department, such as were filed against Harding and Butin, and provides for hearing the charges by the civil service commissioners. Section 1056-a32. The chief of police filed the charges, under authority of the statute. It is not claimed that the proceedings before the civil service commissioners were not regular, and in accordance with the statute in every way. In other words, Harding and Butin were discharged under proceedings authorized by the statute, and the statute was followed. Their discharge, on review by the Polk County district court, was held to be wrongful, because the charges of incompetency were not sustained by the evidence, and not because of excess of jurisdiction or irregularities in the proceedings.\\nIY. While, as above adverted to, no particular appointees could be singled out as the successors of appellees, as de-facto officers supplanting appellees while appellees were suspended, still, the police force having been filled up to the full qu\\u00f3ta, there were officers who took appellees' places and were paid for their services; and the question is whether the city, having acted in good faith in the payment of officers who took their places, can be held liable on the claims of appellees for salary not earned. The city paid for services rendered which appellees would have rendered, had they been continued in the service. In other words, Can the city be held liable twice? Under our holding in Brown v. Tama County, 122 Iowa 745, this central and controlling question must be answered in the negative. In the Brown case, we held, in effect, as stated in the syllabus:\\n\\\"Where a county pays an officer de facto, during his incumbency, the salary provided by law, the rightful officer, after obtaining possession of the office by judgment of court, cannot recover from the county the salary for the same period.\\\"\\nSee, also, McCue v. County of Wapello, supra.\\nWhile there is lack of harmony in decisions of courts of other jurisdictions, and courts of high authority hold to the contrary, a decided preponderance of the authorities sustains our holding' in the Brown case, to' the effect that, by payment of a salary to a de-facto officer, the right of the de-jure officer to collect his salary from a municipality is lost. In Thompson v. City & County of Denver, 61 Col. 470 (158 Pac. 309), a de-jure officer was held not entitled to recover from the municipality a salary for the period during which he had been wrongfully excluded from office, where the salary had been paid to the de-facto officer, although the exclusion covered a period of over two years, while an appeal was pending from the decision of the police board discharging him from service. The Colorado court said:\\n\\\"The rule adopted in this state is based on public policy, to the effect that the people cannot be compelled to pay twice for the same service.\\\"\\nHolding to the same effect, see State v. Milne, 36 Neb. 301 (19 L. R. A. 689); Stearns v. Sims, 24 Okla. 623 (24 L. R. A. [N. S.] 475).\\nCounsel for appellees rely largely on Jackson v. Independent School Dist., 110 Iowa 313, and other cases holding similarly. We do not regard the Jackson case as being in point. There the action was on contract. Jackson entered into a written contract with the district, under which she was employed to teach for a certain period, and was wrongfully discharged by the board of directors. We think the instant action cannot be considered an action on contract; but that the remedy available to appellees, if any, must be an action in tort for damages, and not to collect salaries past .due, Fitzsimmons v. City of Brooklyn, 102 N. Y. 536; City of Hoboken v. Gear, 27 N. J. L. 265. In the Fitzsimmons case, the New York court said:\\n\\\"We have often held that there is no contract between the officer and the state or municipality, by force of which the salary is payable. That belongs to him as an incident of his office.\\\"\\nY. Counsel for appellees urge as controlling that these men belong *to a class that were favored in the law; that special statutes had been passed for their protection; and that such preference statutes were not observed, but were ignored; that observance of the statutes compels the payment to these honorably discharged soldiers by the defendant city of salaries during their suspension from office; and that the proper and liberal construction which should be given these statutes, to effect the purposes of preference for which they were intended, would place liability on the defendant city for the payment to appellees of the salary of which they were deprived by wrongful suspension from their positions on the police force. \\\"We think such position is not tenable. These men were not discharged from service because they were ex-soldiers, nor were they reinstated because they were ex-soldiers. They were reinstated the same as they would have been had they not been ex-soldiers, because the charges laid against them of incompetency were not sustained by proof. We can see no difference, so far as liability of the city is concerned, between the instant case and one where the men suing for salary would not be ex-soldiers.\\nWe reach the conclusion that the city is not liable. Accordingly, the judgment of the trial court must be and is reversed.- \\u2014 Reversed.\\nStevens, C. J., Evans and Faville, JJ., concur.\"}"
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diff --git a/iowa/2283045.json b/iowa/2283045.json
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+"{\"id\": \"2283045\", \"name\": \"Robb, Admr., v. McBride\", \"name_abbreviation\": \"Robb v. McBride\", \"decision_date\": \"1869-01-05\", \"docket_number\": \"\", \"first_page\": \"386\", \"last_page\": \"388\", \"citations\": \"28 Iowa 386\", \"volume\": \"28\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:32:34.068547+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robb, Admr., v. McBride.\", \"head_matter\": \"Robb, Admr., v. McBride.\\n!\\u2022 Homestead: abandonment: change oe. A temporary absence of several months, during which the homestead was in the possession of a tenant, was held not to work an abandonment thereof.\\n2.-The sale of the homestead, and the investment of the proceeds in other property of the same character, will invest the latter with the homestead character, and exempt it to the same extent as the old one.\\nAppeal from General Term, Second Bisi/rict (Monroe County).\\nWednesday, January 5.\\nProceeding in equity to set aside a deed made to the wife, Melinda, and subject the property therein conveyed to the payment of a judgment in favor of plaintiff\\u2019s intestate against the husband, D. II. McBride. It is claimed that the conveyance was made to the wife in fraud of the rights of creditors.\\nTo this it is answered, first, that the property was paid for with the money of the wife, and, second, that it is her homestead (the husband being dead), and as such not liable to this debt,\\nThe General Term affirmed the judgment of the District Court, dismissing plaintiff\\u2019s bill, and he appeals.\\nPerry & Townsend- for the appellant.\\nDaniel Anderson for the appellee.\", \"word_count\": \"548\", \"char_count\": \"3186\", \"text\": \"Wright, J.\\u2014\\nIf either ground assumed in the answer is sustained by the proof, there is, of course, an end to plaintiff's case. Upon the first we need not express an opinion, as we unite in the conclusion that, upon the second, this judgment is right. The question of fact, Was there an abandonment of the homestead ? we find for defendants. The evidence is somewhat conflicting, but it preponderates decidedly in favor of the proposition that the husband and wife left Albia, in Monroe county, and went to Madison and Warren counties for a temporary purpose, intending to return, and with no design of abandoning their home. They were gone a few months and did return; lived a few weeks with the wife's sister, until the tenant left their home ; they at once took possession ; the husband died soon after, and here the. wife has continued to reside to this time. There was, then, no abandonment. The testimony we need not set out, nor further discuss.\\nAt the time plaintiffs' debt was contracted, the husband and wife were in possession of one lot as a homestead, which was afterward changed for another, and which they occupied in the same way. This was sold, about the time they left for the temporary purpose as above explained, and they bought at once the property in controversy, with the proceeds of the other, and into this property they did not remove until after their return from their temporary absence, nor until a few days after plaintiff's judgment was recovered. Upon these facts, in accordance with the prior rulings of this court, it is held that the property, as to this debt, was invested with the homestead character. The first and second purchases were certainly exempt, and the third is equally so. It is not as though this was the first homestead acquired, but of which possession was not taken until after judgment. That was Hobinson's case, 23 Iowa, 208. '\\nThis case falls rather within the principle ruled in Pearson v. Minturn, 18 id. 36. And see Sargent v. Chubbuck, 19 id. 39.\\nAffirmed.\"}"
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diff --git a/iowa/2283121.json b/iowa/2283121.json
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+"{\"id\": \"2283121\", \"name\": \"The State v. Brindle\", \"name_abbreviation\": \"State v. Brindle\", \"decision_date\": \"1870-04-21\", \"docket_number\": \"\", \"first_page\": \"512\", \"last_page\": \"513\", \"citations\": \"28 Iowa 512\", \"volume\": \"28\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:32:34.068547+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State v. Brindle.\", \"head_matter\": \"The State v. Brindle.\\nIntoxicating liquors: lager, beeb. It is no violation of the prohibitory liquor law to sell lager beer. The limitation contained in the concluding words of section 1583 of the Revision does not apply to beer.\\nAppeal from Jackson Circuit Court.\\nThursday, April 21.\\nInformation was filed before a justice of the peace of Jackson county, accusing defendant of the crime of selling intoxicating liquor contrary to law; for that, etc., he did \\u201c unlawfully sell to, etc., one keg of intoxicating liquor, commonly called lager beer, contrary to the form, etc.\\u201d Warrant was issued and served. The defendant pleaded \\u201cguilty of selling lager beer in the town of Bellvue, in said State of Iowa, manufactured in the State of Illinois.\\u201d The justice of the peace adjudged him guilty, and fined him twenty dollars and costs. The defendant appealed to the Circuit Court, and there moved to dismiss the prosecution, because the information charged no criminal offense. This motion was sustained. The State appeals to this court.\\nE. O\\u2019Oonnor, Attorney General, for the State.\\nWm. E. Lejfmgwell for the appellee.\", \"word_count\": \"394\", \"char_count\": \"2308\", \"text\": \"Cold, Oh. J.\\u2014\\nThis record presents but one question, and that is-, whether lager beer may be sold in this State by the keg. Revision, section 1583, being part of an act passed in 1858, enacts, that \\\"wherever the words intoxicating liquors occur in this act, or the act to which this is amendatory, the same shall be construed to mean all spirituous and vinous liquors : provided that nothing in this act shall be so construed as to forbid the manufacture and sale of beer, cider from apples, or wine from grapes, currants or other fruit grown in this State.\\\"\\nUnder this statute it is clear that the information, which fails to specify the place in, or the material from which, the beer was manufactured, does not charge an offense. But, further than this, in our opinion, if the guilt of the defendant was to be measured by his plea: \\\" Guilty of selling lager beer in the town of Bellvue, in said State of Iowa, manufactured in the State of Illinois,\\\" he would be equally guiltless of crime under the statute above quoted. The limitation contained in the last words of the section does not apply to beer; it may be manufactured and sold, regardless of where the material was grown.\\nAffirmed.\"}"
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diff --git a/iowa/2291662.json b/iowa/2291662.json
new file mode 100644
index 0000000000000000000000000000000000000000..8371f4e2f9839baf0d16566e92f2bde42411fd5b
--- /dev/null
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+"{\"id\": \"2291662\", \"name\": \"The County of Linn v. Day, Adm'r\", \"name_abbreviation\": \"County of Linn v. Day\", \"decision_date\": \"1864-04-21\", \"docket_number\": \"\", \"first_page\": \"158\", \"last_page\": \"163\", \"citations\": \"16 Iowa 158\", \"volume\": \"16\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:39:46.288940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The County of Linn v. Day, Adm\\u2019r.\", \"head_matter\": \"The County of Linn v. Day, Adm\\u2019r.\\n. 1. Execdtok: actions asainst. It is not a prerequisite to the commencement and prosecution of proceedings against' an administrator to correct errors in accounts taken between the plaintiff aud the decedent, that a claim shall be stated, sworn to and filed in the office of the county judge.\\nAppeal from, Linn District Court.\\nThursday, April 21.\\nFor five years previous tp the 1st day of January, 1860, the decedent, N. M. Day, was the recorder and treasurer of Linn county. In his settlement with the county judge, as the law required, two errors or mistakes were made, both against the county, amounting in the aggregate to four hundred and seventy-six dollars and four cents. When discovered, the defendant was asked to correct the same, which she refused to do, and thereupon the plaintiff obtained permission to prosecute its remedy in the District'Court. This proceeding in chancery followed, asking the Court to open the settlements aforesaid; to have a new accounting and to correct the error. By agreement of the parties, the cause was tried according to the second method of trying equitable issues and submitted to the Court, who f\\u00f3und the facts and rendered judgment thereon as follows:\\n\\u201c That the defendant is th.e administratrix of the estate of. N. M. Day, deceased; that said N. M. Day was recorder and treasurer of the county of Linn, State of Iowa, and acted as such from January 1st, A. D. 1855, to January 1st, A. D. 1860, inclusive; that said N. M. Day died on the 1st day of January, A. D. 1868 ; that while such Day was recorder and treasurer the said N. M. Day and the county j udge of the county aforesaid, in behalf of the county of Linn, came to a mutual accounting in reference to the fiscal affairs of the county, and as to the amount of money which said Day, as such recorder and treasurer as aforesaid, had received, and also the amount which he had disbursed, and at that time, to wit, on the 15th day of September, A. D. 1859; and on said accounting a statement of said account was made, in writing, when nothing was found due from said N. M. Day to the county of Linn, and nothing was found due from the county of Linn to said N. M. Day \\u2014 it appearing from said statement that said Day had disbursed on account of the county of Linn the same amount which he had received on account of the county aforesaid; that in such settlement and statement, a mutual mistake occurred, whereof the said N. M. Day failed to charge himself with the sum of two hundred and eighty-one dollars and sixty cents, which sum of money the said Day received as interest on delinquent taxes, from the 1st day of October, A. D. 1858, to the 15th day of September, A. D. 1859, in his capacity as treasurer of said county; and that said Day, his heirs or assigns, have never paid over said amount to the county aforesaid, or its representatives.\\n\\u201c The said mistake was not discovered by plaintiff till the 5th day of June, A. D. 1862, when defendant was requested to rectify and correct said mistake, which she refused to do.\\n\\u201cThat, on the 8th day of June, A. D. 1856, the said N. M. Day and the county judge of the county aforesaid, came to an accounting in reference to the fiscal affairs of the county aforesaid, and as to the amount of money which said N. M. Day, as recorder and treasurer, as aforesaid* had received, and also the amount which he had disbursed, as such recorder and treasurer as aforesaid; and at that time a statement of said account was made in writing, whereby nothing was found due from the said Day to the county, and nothing found due from the county to the said Day \\u2014 it appearing from said settlement and statement in writing, that said N. M. Day had disbursed, on account of the county aforesaid, the same amount which he had received on account of the county aforesaid; that an error occurred in said settlement, of which both parties were ignorant at that time; that said Day, in said settlement, was credited with the sum of $194.44 more than he was entitled to; that said Day, his representatives, heirs, nor assigns have ever accounted to the county for said sum; that the plaintiff did not discover said error in said settlement until the 5th day of June, A. D. 1862, and then immediately pointed out said error to defendant, and requested the correction and payment of the same, which the defendant refused; that on the 5th day of September, A. D, 1862, the plaintiff made application to the County Court of Linn county, Iowa, that being the court which issued letters of administration to the defendant, authorizing her to administer upon the estate of the said N. M. Day, deceased, and being the court which had jurisdiction over the estate of the said N. M. Day, deceased, for authority to prosecute this cause, originally in the District Court of Linn county, Iowa, and that said application was granted, the following being a copy of the entry made in the records of the County Court aforesaid: In the matter of the application of the county of Lynn asking authority of the County Court to prosecute certain claims against the estate of N. M. Day, deceased, in the District Court of Linn county, Iowa; on the 5th day of September, A. D. 1862, the county of Linn makes a showing to this Court, that it has certain claims and demands against the estate of N. M. Day, deceased, which claims arose from mistakes and errors in certain fiscal statements between it and said N. M. Day, as treasurer and recorder of the county of Linn, Iowa, in his lifetime; and the county of Linn asks authority from this Court to prosecute said claims in the District Court of Linn county, Iowa; and it appearing that, in adjusting said demands, it will be necessary to open stated accounts, and restate the same; and it also appearing that the county of Linn is a party in said proceedings, and that said errors and mistakes were made a long time since; it is therefore adjudged by this Court that the county of Linn be authorized to prosecute said demands originally in' the District Court of Linn county, Iowa.\\n\\u201c That the plaintiff never filed a sworn statement of this claim i\\u00f1 the County Court of Linn county, Iowa, against the estate of said N. M. Day.\\n\\u201cAnd notwithstanding the foregoing facts found, my conclusion of law is, that inasmuch as said claim has not been stated, sworn to and filed with the County Court, that judg ment should be for defendant for costs, to which plaintiff excepts. Judgment accordingly.\\n\\u201cN. W. Isbell, Judge, &c.\\u201d\\nCorbett for the appellant.\\nSmith for the appellee.\", \"word_count\": \"1548\", \"char_count\": \"8751\", \"text\": \"Lowe, J.\\nThe errors complained of are: First, that the Court erred in holding that the claim should have been sworn to and' filed in the Probate Court. Secondly, in rendering judgment for defendant typon the facts found and entered of record.\\nThe assignment is well made, and the errors must be sustained. The gist of the complaint (that of correcting a mistake in a settlement), is one first to be ascertained, and until the settlement is opened, and the error corrected, the plaintiff had not, in contemplation of law, any claims which he could swear to or file in the County Court. Besides, our interpretation of \\u00a7 2391 of the Revision of 1860, which requires claims against an estate to be clearly stated, sworn to, and filed, is, that it simply supplies a rul\\u00e9 of action, where the claim is intended to be collected of the administrator, by establishing the same in the County Court. If, however, the claim is peculiar in its nature, intricate or difficult to be established, or the jurisdiction of a court of equity is to be invoked; it is the right and privilege of the claimant to prosecute the same originally in the District Court, in some cases without, in others with, the approbation of the County Court, \\u00a7 2295. In all such cases, the rule prescribed by \\u00a7 2391, above referred to, has no application, and does not obtain. It is plain that a compliance with it would be a useless formality, for the reason that the decision of the District Court (or of this court, should the case be appealed), must be conclusive upon the administrator ; and the County Court, in allowing or disallowing tbe claim thus adj udicated. Nevertheless, in the case before us, although tbe plaintiff bad very fairly stated, and as fairly proved tbe mistakes in the settlement, and the defendant's consequent indebtedness, tbe Court held that it was not entitled to recover, because tbe plaintiff bad not, prior to tbe commencement of its suit, sworn to and filed with the County'Court, its claim.\\nThis is clearly a misapprehension of the statute regulating the proof and establishment of claims against the estates of decedents, and the judgment will be reversed and the cause remanded.\\nReversed.\"}"
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diff --git a/iowa/2292971.json b/iowa/2292971.json
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index 0000000000000000000000000000000000000000..c6633012a1a5372e0e3827a8d4fe8ffe0d9ff7ef
--- /dev/null
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+"{\"id\": \"2292971\", \"name\": \"J. W. Thompson, Appellee, v. O. E. Garrett, Jr., Appellant\", \"name_abbreviation\": \"Thompson v. Garrett\", \"decision_date\": \"1925-03-17\", \"docket_number\": \"\", \"first_page\": \"361\", \"last_page\": \"366\", \"citations\": \"200 Iowa 361\", \"volume\": \"200\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:06:55.661688+00:00\", \"provenance\": \"CAP\", \"judges\": \"Faville, C. J., and Arthur and Albert, JJ., concur.\", \"parties\": \"J. W. Thompson, Appellee, v. O. E. Garrett, Jr., Appellant.\", \"head_matter\": \"J. W. Thompson, Appellee, v. O. E. Garrett, Jr., Appellant.\\nMarch 17, 1925.\\nRehearing Denied June 25, 1925.\\nCarl Jordan, for appellant.\\nDeacon, Sargent & Spangler and Carl Hendrickson, for appellee.\", \"word_count\": \"1845\", \"char_count\": \"10690\", \"text\": \"Evans, J.\\nThe plaintiff and the defendant are stockholders in a corporation known as the Cedar Rapids Paper Company. They mutually organized this corporation in April or May, 1922. For nearly a year prior to such date, they had been engaged in the same line of business as a partnership; and the corporation was organized to take over the business of such partnership and to open the way for additional -capital. The partnership was operated upon a capital of $5,000. The most of this capital was actually furnished by the defendant. The plaintiff's contribution to such capital was represented by his promissory note, given to the defendant, for $2,500, on which note he subset quently paid the sum of $600. In the organization of the corporation the working capital wras fixed at $10,000, all of which was to be furnished by the -defendant, pursuant to a written agreement hereafter set forth. For the capital so furnished, the defendant took 56 shares of the stock, at the par value of $5,600. The plaintiff took 44 shares of the stock, at the par value of $4,400. The cash necessary for the purchase of the plaintiff's stock was furnished by the defendant, and the plaintiff executed and delivered to him his four interest-bearing promissory notes, aggregating $4,400. At about the same time, the following written agreement was entered into by the parties:\\nExhibit No. 1 .\\n\\\"Agreement For Loan and Terms of Payment\\n\\\"It.is hereby stipulated and agreed between O. E. Garrett, Jr., and J. W. Thompson, both of Cedar Rapids, Iowa, that the said O. E. Garrett, Jr., shall make a loan to J. 'W. Thompson upon the following terms and conditions, to wit:\\n\\\"O. E. Garrett, Jr., is to loan to J. W. Thompson forty-four hundred dollars, which the said J. \\\"W. Thompson-agrees to use in the purchase of common stock to the extent of forty-four shares in the Cedar Rapids Paper Co. Said shares are to be issued to J. W. Thompson.\\n\\\"As security for said loan, the said J. W. Thompson hereby agrees to immediately assign said shares to O. E. Garrett, Jr., and O. E. Garrett, Jr., is to hold said shares as security for said loan until said loan is paid.\\n\\\"It is understood and agreed that the said loan is to be evidenced by promissory notes, and it is understood and agreed that the said J. \\\"W. Thompson has the privilege of paying up said loan at any time, but it is also understood and agreed that the collateral to secure said loan, to wit, the stock in the Cedar Rapids Paper Co., is to be accompanied by the proxy of J. W. Thompson to O. E. Garrett, Jr., entitling O. E. Garrett, -Jr., to vote said stock in \\u00bf11 meetings of the Cedar Rapids Paper Co. It is understood and agreed as part of the consideration for this loan, that the aforesaid proxy shall not be revoked by O. E. Garrett, Jr., his heirs or assigns until such a time as the earnings upon said stock shall have equaled the amount of the loan herein provided for. It is the intention of the parties by this agreement to provide that the said O.E. Garrett, Jr., is to be entitled to vote said shares of stock and to hold them as security for this agreement and to provide that the right to vote the shares of stock so assigned, shall continue even beyond the period when the amount of this loan may be repaid until such a time as the earnings on said stock shall have equaled the amount of this loan.\\n\\\"This agreement made and entered into this 6th day of July, 1922.\\n\\\"0. E. Garrett, Jr.\\n\\\"J. W. Thompson.\\\"\\nPursuant to the foregoing agreement, the stock issued to the plaintiff was delivered to the defendant, together with plaintiff's ' ' proxy, ' ' which contained the following provision:\\n\\\"I hereby surrender toffhe said O. E. Garrett, Jr., the above rights and divest myself, my heirs and assigns from all rights to revoke this proxy until such a time as the earnings upon my stock originally taken in this corporation shall have equaled the amount of the loan provided for in an agreement for a loan and terms of payment entered into between O. E. Garrett, Jr., and myself on the 6th day of Jtdy, 1922, and evidenced by a writing of that date.\\\"\\nThe foregoing proxy bore date in October, 1922.\\nOn June 15, 1922, stock was sold and issued to two other parties, Cejka and Hahn. Each of them purchased and received 23 shares of stock, and paid $2,300 therefor. At a later time, the plaintiff, Thompson, acquired 11 additional shares of stock. The final distribution of stock at tlie time this suit was commenced, in May, 1924, was as follows: Garrett, 56 shares; Thompson, 55 shares; Cejka, 23 shares; Hahn, 23 shares.\\nThese four stockholders constituted the working force of the corporation. Garrett was in charge of .the home office, and the other three were the traveling salesmen. The corporation was in operation for two years prior to the beginning'of this suit. No dividend had been declared or earned, nor had the gains of the corporation kept pace with its expenditures and losses. The capital had become impaired to the amount of $3,000, which was about 20 per cent of the par value. Though no dividend had been declared, we infer from the record that the current expenditures of the corporation included the payment of salaries to the four stockholders.\\nThe plaintiff sought to revoke his proxy, and for that purpose tendered payment of his notes. The defendant denied the. right of the plaintiff to thus release his shares of stock from the operation of the proxy. Hence this suit.\\nThe defendant predicates his defense upon an alleged prior oral agreement and understanding, pursuant to which the written agreement above set forth was entered into. The claim is that only a part of such oral agreement and understanding was .included in the written agreement; that the oral understanding was that the defendant should be the real owner of the full 100 shares of stock which his money paid for; that an inducement should be furnished to the plaintiff to work for the success of the company, in that he should become entitled to 44 shares as soon as the earned dividends of the corporation were sufficient to pay the defendant for such stock; that the promissory notes were taken from the plaintiff largely as-a matter of form, and as. an evidence that $4,400 would be due the defendant out of the dividends; that, until the amount of such notes should be thus paid out of such dividends, the defendant was to continue in the ownership of such stock, and was to control and vote the same; that the execution of the proxy was intended to carry out this purpose.\\nThe argument for defendant is that \\\"his money\\\" paid for the stock, and that therefore it equitably belonged to him; that, though the title was held in the name of the plaintiff, yet it was so held in the nature of a trust; and that the equitable ownership of the defendant was subject only to the future contingency that the defendant should be reimbursed for such stock out of earned dividends. In so far as the defendant relies upon the terms of the written agreement, such reliance is predicated upon the last paragraph thereof, which we have italicized above.\\nThe position of defendant thus outlined involves not only some conflict with the written agreement actually executed, but also some inconsistency with itself.\\nThe written agreement seems to imply a mutual expectation that the dividends of the corporation would pay the notes before they became due. Their due d\\u00e1tes do not appear in the record. It does appear, however, that they bore interest, and that each note was an absolute promise to pay, and was drawn in the ordinary form of a promissory note. If the agreement was as contended for by the defendant, there was no occasion for the promissory notes at all; for they had no function to serve. When the plaintiff tendered to the defendant, full payment of the notes, with accrued interest, and demanded the re-ton of his proxy, the defendant was put to a test which he failed to meet. If the defendant was the real equitable owner of the stock, and if the real purpose of the proxy was only to recognize that fact, then consistency required, not only that the defendant should so assert, but also that he should renounce all claim against the plaintiff upon his notes, and should tender a return of the same. Such a course would at least have rendered him consistent in his attitude.\\nThe notes are valid on their face. They purport to be for a consideration. The written agreement discloses a full consideration. Whether plaintiff horroived the money from the defendant with which to buy the stock, or whether he should be. deemed to have purchased the stock from the defendant, is quite immaterial. Either hypothesis furnishes a. full consideration for the notes. The defendant's position amounts to a repudiation of the notes, as being nugatory. He cannot both repudiate them and yet hold them as the obligations of the plaintiff.\\nIt must further be said that the oral agreement or understanding contended for by the defendant is essentially contradictory to the written instruments executed by the parties. The primary written agreement expressly provides that the defendant ' ' is to hold said shares as security for said loan until said loan is paid. ' ' It also provides that the plaintiff is to assign said shares to the defendant ' ' as security for said loan. ' ' The instrument as a whole is capable of a construction wholly consistent with the foregoing provisions. The contention of the defendant is wholly inconsistent with such provisions. The fact that the parties mutually expected the dividends to anticipate the maturity of the notes is not inconsistent with any provision of the contract. That great expectation, however, has faded away. The experience of the first twm years gives no promise that it will ever be realized. Notwithstanding this, the plaintiff is liable' upon his notes. According to defendant's theory, he may withhold from plaintiff forever the control of his stock, notwithstanding the payment of his notes, provided only that, as holder of a controlling interest, he may so manage the corporation that the dividends will never pay for the shares.\\nWe construe the written instruments to mean that the defendant holds the 44 shares and the proxy of the plaintiff \\\"as security for said loan, ' ' and that the payment of the loan necessarily discharges the collateral. Such was the finding of the trial court, and its decree is, accordingly, affirmed. \\u2014 Affirmed.\\nFaville, C. J., and Arthur and Albert, JJ., concur.\"}"
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diff --git a/iowa/2294982.json b/iowa/2294982.json
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+"{\"id\": \"2294982\", \"name\": \"Adairs v. Wright\", \"name_abbreviation\": \"Adairs v. Wright\", \"decision_date\": \"1862-10-15\", \"docket_number\": \"\", \"first_page\": \"22\", \"last_page\": \"28\", \"citations\": \"14 Iowa 22\", \"volume\": \"14\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:23:46.092666+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Adairs v. Wright.\", \"head_matter\": \"Adairs v. Wright.\\n1. Construction op a contract. A contract for the sale of a mill specified that the vendor should receive a sum named, a portion of which was payable in installments maturing in six, eighteen and twenty-four months, with interest \\u201con the whole amount due at ten per cent annually:\\u201d Held, That the interest commenced to run at the date of the contract and not at maturity of the several installments.\\n2. Same : water power. Contract relating to water power considered and construed.\\nAppeal from Clayton District Court.\\nWednesday, October 15.\\n.Plaintiffs sold to defendant a mill and water power in Butler county, for the sum of ten thousand dollars. . Five thousand dollars were paid, and a payment of three thousand dollars due in eighteen months, and a remaining one of two thousand dollars due in two years, being unpaid, this action was brought to recover the same, with interest, and to foreclose a mortgage given upon the said mill property, to secure the same. The agreement to sell, deed, and mortgage were all made on the same day \\u2014 June 15, 1857. Defendant answers, admitting the contract and indebtedness as set out by plaintiffs, but setting up, by way of counter-claim and set-off, certain damages, on account of the failure of plaintiffs to keep and fulfill the covenants of tbeir deed, and divers obligations contained in tbeir agreement of sale, as also upon an account for work and labor, goods and merchandise and money.\\nA decree was entered for plaintiffs, January 5th, 1861, for tbe sum of $1,019.67, and defendant appeals.\\nC. H. Conklin and L. P. Brainard for the appellant,\\nas to 'the construction of tbe contract cited Par. Contr., 36, notes and cases cited; Smith et at. v. The Proprietors of the First Congregational Meeting-house of Lowell, 8 Pick., 178 ; Taft v. Inhabitants of Montague, 11 Mass., 282,; Olmstead v. Beall, 19 Pick., 528'; Hun v. 'Whitney, 13 Mete., 12; 1 Gray, 282; Jennings v. Camp, 13 John., 91, and tbe cases there cited; Faxon v. Mansfield & Holbrook, 2 Mass., 117 ; Masterton v. The Mayor, &c., of Brooklyn, 7 Hill, 68 ; Griffin v. Coloer et al., 16 N. Y., 189; Sedg. Dam., 77; as to tbe computation of interest, Williams v. Sherman, 7 Wend., 109 ; The Bank of Utica v. McEinster, 11 Id., 177; Still v. Hall, 20 Id., 52; Sedg. Dam., 376.\\nL. L. Ainsworth for tbe appellee,\\ncited Blanchard v. Fly, 21 Wend., 312; Smith v. Condray, 1 How., 28; Decal y. Arnold, 3 Dallas, 333; Sedg. Dam., \\u00a7 70.\", \"word_count\": \"2062\", \"char_count\": \"11566\", \"text\": \"Wright, J.\\nIt is reasonably apparent from tbe decree that tbe court below rejected all claims for damages, and allowed tbe plaintiffs the full amount claimed, with interest at ten per cent from tbe date of tbe contract, less the sum of $1,755.87, admitted to be owing defendant for goods, labor, money, &c. Some other minor items may have entered into the calculation, but this, we conclude, is substantially tbe view taken of tbe case. And, thus considered, we are met with the question made by appellants, whether \\u00a1alaintiffs were entitled to ten per cent interest from tbe date of tbe contract.\\nThe agreement specifies that plaintiffs have sold their flouring mill for $10,000 \\u2014 $2,000 in hand, $3,000 in six months, $3,000 in eighteen months, and $2,000 in two years from date, \\\" interest on the whole amount due at ten per cent, annually to be paid by said John F. Wright.\\\" The mortgage uses the same language precisely, as also the following: \\\"Now if the said John F. Wright well and truly pays the above named sum of money, with the interest named, at the specified time, then this mortgage to be,\\\"&c. No notes were executed- Appellants now elaim that interest did not commence until' after the maturity of each payment- This, we think, is giving an importance and weight to the word \\\" due,\\\" found in the language above quoted, not justified by all the circumstances and the whole spirit and tenor of the contract. The parties evidently used this word in the sense of unpaid. This is shown by the construction of the sentence, for if interest was only to commence after each payment matured, it would have been so stated, 'instead of treating all as then due. Then, again, nothing was then due, to which this language, according to appellant's construction, could apply. In addition to this, the presumption is, that the parties expected'the money to be paid as it matured, and, unless they employed language quite clearly rebutting this, it is not to be supposed that they provided for interest to commence after they expected the debt to be paid. But all possible doubt is removed by the language of the mortgage, which provides that the installments are to be paid \\\" with the interest named.\\\" And this, too, is a part of the instrument which authorizes its foreclosure, if the payments are not promptly made. In connection with these considerations, take the further fact, that defendant entered into the immediate use and occupation of the premises, and the further thought that while plaintiffs claim this interest in their petition, their right to it is not controverted by the answer, nor in any stage of the case until the parties get into' this court, and it seems to us that the point is clearly with the appellees, and that in this respect the court below did not err.\\nThe position 'most relied upon by appellant, however, is, that by the terms of the contract between the parties, certain matters were to be performed by plaintiffs as conditions precedent to their right to recover any portion of the purchase money. Or that, at least, he is entitled to damages for the non-performance of their contract on the part of the plaintiffs. As already stated, the agreement to sell was made June 15, 1857. As far as material, the contract was this: G. W. & W. Adair agreed to sell to Wright \\\" their flouring mill,\\\" for which Wright was to pay $10,000, in manner as below stated. Plaintiffs agreed that said defendant \\\"shall have sufficient water-power to properly propel three wheels now in said mill, with the machinery attached thereto (meaning three run of mill stones attached to the machinery).\\\" \\\" George W. Adair agrees/ to be at two-thirds of the expense of building a good apron to the dam of said flouring millj and of putting said dam in good repair for the present, and of being at one-half of the expense of keeping said dam in good repair thereafter. And the said Wright is to be at the other half of keeping said dam in good repair, and at one-third the expense of the first repair. And the said Geo. W. agrees to make any person or persons to whom he may sell water from said dam equally responsible with them for the repairs necessary on said dam, in proportion to the whole amount.\\\" The deed bears the same date, and describes the property sold thus: \\\" The S. W. of block five, on which is located the flouring mill in the town of Shellrock, as designated on the recorded plat of said town of Shellrock, together with sufficient power to properly propel the three water wheels now in said mill, at all times, when there is sufficient in the stream, together with the machinery attached thereto, and three run of stone, with all the appurtenances now belonging to said mill and premises.\\\" This deed was signed by both the plaintiffs. The mortgage describes the property in the same way.\\nThe town of Shellrock is located upon the W. a of the N. E. a and the E. i of the N. W. a Sec. 11, T. 91, R. 15. The mill in controversy is upon the south side of the stream. Upon the north side is a saw mill, and other machinery. The town was laid out by G. W. Adair and one Glenn in August, 1856, the legal title to the N. W. \\u00a3 of the N. E. a of said section (and upon which most, if not all, the \\\" mill property \\\" is situated) being in Adair. George W. sold and conveyed to William an undivided half interest in the S. W. a of block five (being the flouring mill block) and a certain amount of water to propel the machinery to be placed in the mill which they purposed to erect. The title to all the water-power, the saw mill before that time erected, the dam and all other parts of said block five being in Geo. W. Adair. When the contract was made with defendant, the mill was not completed. The dam was about five and a half or sis feet high and was in a leaky condition. It was afterwards repaired, how and by whom is not very clearly shown, but probably by the joint action of both parties. Defendant has introduced a large amount of testimony to show that the dam was not high enough \\u2014 that he did not have the amount of water provided for in the contract \\u2014 that plaintiffs diverted the same to the saw mill, and permitted the same to be used by other parties on the north side of the stream, who, under a contract with G. W. Adair, had erected other machinery \\u2014 that the head of water, instead of being sufficient to \\\"properly propel the three wheels with the machinery attached,\\\" was at times so low that the mill had to stop, at others he could riin but one pair of burrs \\u2014 and at no time could he run the mill with the advantage and profit contemplated, and secured\\\" to Mm by the contract. His damages in these respects are estimated by witnesses at say from three to twelve or fourteen thousand dollars.\\nIn determining these questions it becomes material to advert to the contract and settle therefrom the respective rights and obligations of the parties. And briefly we understand these to be as follows: Defendant bought the mill as it stood, with the necessary water-power, to be furnished by the dam, race and pond as then constructed. That is to say while plaintiffs agreed that defendant should have sufficient water-power to properly propel the three wheels, he was to take it from the head then furnished by the dam, if sufficient \\u2014 and plaintiffs were under no obligations to add to the dam, if with or without repairs the required amount of water could be obtained. If it could not be thus obtained, then they were bound to do whatever was necessary to furnish it. The obligation to build the apron and keep the dam in repair, so far as it related to plaintiffs was upon Geo. W. and not upon both of them. As to these matters defendant had a duty to perform. A failure to fulfill his'contract on the part of Geo. W. would not give defendant a right of action against the plaintiffs jointly. And of course he would have no remedy if the fault was with himself. Equally clear is the proposition that plaintiffs were only bound to furnish water when it was in the stream. '\\nWhen one fact is settled, therefore, we need have no difficulty in determining the rights of these parties. And that is this: was this dam, if properly repaired \\u2014 if so tightened as to suitably retain and confine the water \\u2014 sufficiently high to give the required head to properly propel all the machinery there erected ? If it was, then plaintiffs are not liable, for it must be remembered that the obligation to repair it is upon one and not both of them. And while defendant has introduced a great mass of testimony, we are constrained to hold that upon this pivotal point he has most signally failed. It matters not how much he has lost by not having sufficient water power, unless this loss can be traced to a breach of the contract on the part of plaintiffs. It can avail defendant nothing in this controversy, that by using the three wheels he might have made large profits, if the inability to use them is attributable to his own fault, or that of himself and one of the plaintiffs. And as the testimony fails to satisfy us that plaintiffs were in fault, the decree must stand\\nAffirmed.\"}"
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diff --git a/iowa/2296603.json b/iowa/2296603.json
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+"{\"id\": \"2296603\", \"name\": \"William J. Kluender, Appellant, v. A. H. Semann, Appellee\", \"name_abbreviation\": \"Kluender v. Semann\", \"decision_date\": \"1927-02-15\", \"docket_number\": \"\", \"first_page\": \"68\", \"last_page\": \"71\", \"citations\": \"203 Iowa 68\", \"volume\": \"203\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T01:11:30.371612+00:00\", \"provenance\": \"CAP\", \"judges\": \"'\\u25a0 Evans, C. J., and De Grape and Moeling, JJ., concur.\", \"parties\": \"William J. Kluender, Appellant, v. A. H. Semann, Appellee.\", \"head_matter\": \"William J. Kluender, Appellant, v. A. H. Semann, Appellee.\\nFebruary 15, 1927.\\nJames B. Linsda/y, for appellant.\\nW. J. E. Thatcher and Heald, Cook & Heald, for appellee.\", \"word_count\": \"951\", \"char_count\": \"5559\", \"text\": \"Albert, J.\\nThe substance of plaintiff's petition is, .that, about the month of April, 1923, the defendant .orally uttered, of and concerning the plaintiff, to one Christ Pries, who resided in the town of Paullina, the following false, malicious, and defamatory words, to wit: . \\u2022\\n\\\"He is a dope fiend. He takes so much dope that he is not right in his mind, and you cannot believe a thing, he says. ' '\\nThe petition further states- that the defendant intended by said statements to charge the plaintiff with using narcotic drugs unlawfully and excessively, and with violating the laws, in that he was having in his possession narcotic drugs unlawfully,- and for the purpose of using the same unlawfully, ancL was thereby charging plaintiff with the violation of the .penal statutes of the state of Iowa and of the United States; that the said statements were false and untrue, and were made maliciously, and with knowledge of their falsity and untruth, for the purpose of expressly injuring the. good name, character, and reputation of the plaintiff with his friends and neighbors in said community; that, by reason of said false and slanderous statements, as above stated, plaintiff has been damaged in the sum of $10,000. Wherefore he asks judgment for $10,000 actual damages and $5,000 exemplary damages. \\u2022\\nTo this petition a demurrer was interposed, on the ground that the petition did not set out a cause of action, or entitle plaintiff to any judgment, in this: ,\\n' ' The words alleged- to constitute slander are not slanderous, and do not constitute slander, and .the plaintiff is not entitled to any damages by reason thereof, and said words do not. charge the plaintiff with the commission of any crime.\\\"\\nThere are some elementary principles of law which lie at the threshold of this case. In Abrams v. Foshee, 3 Iowa 274, we said:\\n\\\"To maintain an action of slander, the consequence of the words spoken must be to occasion some injury or loss to the plaintiff, either in law or in fact. As the declaration in this case claims no special damages, or a loss or injury in fact, we are left to inquire whether the charge referred to- in the instructions refused was of such a character as to amount to an injury in law. To determine this, it becomes material to ascertain in what cases this action may be maintained, without proof of special damages.\\\"\\nThis distinction thus pointed out corresponds largely, if not wholly, with the ordinary phrases used by text-writers and the court, \\u2014 -words being actionable \\\"per se\\\" or \\\"per quod.\\\" The words which are actionable at law are ordinarily designated as actionable \\\"per se,\\\" while those actionable on the facts are known as actionable \\\"per quod.\\\" 36 Corpus Juris 1150. In other words, certain words or language the law holds to be a basis for damages. Other words or language are not the basis of an action for damages, without proof of special damages in addition thereto. In Dahl v. Hansen, 152 Iowa 555, we said:\\n\\\"The rule is that words are to be given their ordinary and natural meaning, regardless of the intention of the speaker, unless' the defendant shows'that by reason of the attendant circumstances some other and different meaning is to be placed upon them. # It is a general rule that it is immaterial how the words were understood' by a particular person, if their ordinary and natural meaning did not warrant such an understanding \\\"\\nAnother rule is that an innuendo is not an averment, but is only a matter of explanation. It cannot extend the sense of the expressions in the alleged libel beyond their own meaning. Wallace v. Homestead Co., 117 Iowa 348. An innuendo is only explanatory of the subject-matter previously expressed, and it can only be explanatory thereof, and cannot extend the sense of the words beyond their own meaning, unless something is put in the record for it to explain. It is the duty of the court to determine whether the language used in the publication can fairly or reasonably be construed to have the meaning imputed to it in the petition.\\nApplying these rules to the, present petition, we find that there is no .inducement or colloquium,, and the only innuendo is that \\\"defendant intended by said statements to charge the plaintiff with violating the laws of the state of Iowa and of the United States.\\\" As heretofore said, the rule is that, where the language is clear and concise, its meaning cannot be extended beyond the usual and ordinary meaning which should be applied to such language. More than this, a pleading which simply alleges an innuendo by. way of alleged intendment on the part of the defendant is not sufficient unless it further alleges that it was so understood by the hearer. Nevertheless, we do not feel that the alleged innuendoes here are fairly or reasonably deducidle. from the language used. The language used does not impute a crime, and is not of that character which, in law, in and of itself, can be,held to be the basis for damages; and no special damage.is alleged-. We are not; to be understood as holding that, under all circumstances, .the language used could not be the basis of an action of this character, but we do hold that the naked allegations set out herein are not sufficient to support an action of this kind.\\nThe ruling on the demurrer, therefore, was not erroneous. \\u2014Affirmed.\\n' Evans, C. J., and De Grape and Moeling, JJ., concur.\"}"
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diff --git a/iowa/2300150.json b/iowa/2300150.json
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+"{\"id\": \"2300150\", \"name\": \"Citizens State Bank of Earlham, Appellant, v. John F. Martens, Appellee\", \"name_abbreviation\": \"Citizens State Bank v. Martens\", \"decision_date\": \"1927-10-25\", \"docket_number\": \"\", \"first_page\": \"1378\", \"last_page\": \"1385\", \"citations\": \"204 Iowa 1378\", \"volume\": \"204\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:24:35.773122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Evans, C. J., and Stevens, Faville, and Wagner, JJ., concur.\", \"parties\": \"Citizens State Bank of Earlham, Appellant, v. John F. Martens, Appellee.\", \"head_matter\": \"Citizens State Bank of Earlham, Appellant, v. John F. Martens, Appellee.\\nOctober 25, 1927.\\nRehearing Denied January 13, 1928.\\nJohn A. and William T. Guiher and William E. Miller, for appellant.\\nWilson & Shaw and Leo C. Percival, for appellee.\", \"word_count\": \"2275\", \"char_count\": \"13639\", \"text\": \"Kindig, J.\\nThis controversy arose over an attempt by appellant, as plaintiff, to collect two promissory notes from appellee, as defendant. Both are payable to \\\"myself,\\\" and indorsed by said John F. Martens, November 6, 1919. One was for $3,000, due nine months after said date, and the other for $4,000, maturing in one year thereafter.\\nA chronological statement of the facts is essential for an understanding of the legal questions involved. Appellee subscribed for stock in the Sel way Steel Post & Fence Company in the amount of $25,000. At that time, and as a part of the trans action, the indebtedness was evidenced by five notes, for the following amounts: Two payable to the Selway Company, one for $7,000 and the other $8,000, and three payable to \\\"myself,\\\" for $3,000, $4,000, and $3,000, respectively. The agent inducing the sale and procuring said evidences of indebtedness was Henry Martens, appellee's brother. Said last note for $3,000 has been paid, and the $7,000 and $8,000 instruments are not involved here. Upon receipt thereof, the agent sold the three \\\"myself\\\" notes, aggregating $10,000, to Harry W. Hill, of the Citizens State Bank of Earlham. November 12, 1919, Hill transferred the negotiable paper in question to his client, A. R. Hemphill, six days after the execution date. That transaction resulted in the case of Hemphill v. Citizens State Bank, wherein an opinion was handed down by this court February 17, 1925, 199 Iowa 489. As a result of said litigation, Hemphill was declared to be the holder of said written- promises to pay, as against Hill and the said bank. Title thereto by appellant was obtained by virtue of a judgment of the district court of Madison County in May, 1925, growing out of an attachment proceeding wherein the Citizens State Bank of Earlham was plaintiff and said A. R. Hemphill defendant. Limited rights, however, in the property were fixed by the court in this: appellant was given the authority to collect from the maker and retain sufficient of the proceeds to pay its judgment against said Hemphill, and the remainder, if any, was to be refunded to the attachment debtor. Accordingly, September 25, 1925, the present lawsuit was instituted, through a petition containing two counts, covering the individual obligations in question. Answer was interposed, including a general denial, and in addition thereto, special defenses that: First, there was no consideration; second, procurement was through fraud in the inception, due to misrepresentations made by Henry Martens, representative of said Selway Company; and third, material alteration, in that the words \\\"Citizens State Bank, Earlham, Iowa,\\\" were filled in a blank following the phrase \\\"payable at.\\\" By way of reply, appellant alleged: First, estoppel, growing out of the facts that (a) appellee filed, in the matter of the Selway Steel Post & Fence Company receivership proceedings pending in Polk County, his petition and claim, asking for judgment against said institution on the two documents named in the petition in this cause, and the other one for $3,000 previously paid, and obtained judgment for $10,000, and (b) during the trial of said Hemphill v. Citizens State Bank case, supra, appellee testified as a witness, in substance, that he had never given Hemphill or Hill any notice that would invalidate the notes, did not know Hemphill at all, and never communicated with him, but told Hill about the fraud in August, 1921; and second, wording of the instruments was completed in the present form before delivery.\\nMaterial assignments of error will now be considered.\\nI. Earnest argument is made that there was mistake on the part of the district court in not directing a verdict in appellant's favor upon the theory of said estoppel. We are constrained to hold that the objection is without merit on this phase of the controversy. Such bar is founded upon the legal basis that, because of the position assumed in the first litigation, the party taking the attitude cannot change it afterward, to the injury or prejudice of another. Patton v. Loughridge, 49 Iowa 218; Wolfinger v. Betz, 66 Iowa 594; Biegel v. Ormsby, 111 Iowa 10; Baird v. Connell, 121 Iowa 278. Established criterion, however, is the disadvantage or harm caused the litigant asserting the principle of law. City Bank of Boone v. Radtke, 87 Iowa 363; Durlam v. Steele & Jenks, 88 Iowa 498; Vogt v. City of Grinnell, 123 Iowa 332; Archer v. Barnes, 149 Iowa 658; Helwig v. Fogelsong, 166 Iowa 715; Ludden v. Butters, 181 Iowa 94; City Bank of Mitchellville v. Alcorn, 188 Iowa 592. Consistently the burden of proof, in such event, is upon him who mal\\u00edes the allegation and relies upon the defense. Kocher v. Palmetier, 112 Iowa 84; Howell v. Goss, 128 Iowa 569; Baldwin v. Lowe, 22 Iowa 367; Mandelko v. Hinds, 186 Iowa 1355; City Bank of Mitchellville v. Alcorn, supra.\\nEntirely wanting is the proof in this regard. No showing is made that Hill, Hemphill, or appellant changed position in any way because of appellee's action or testimony in the eases of Selway and Hemphill versus Hill and the bank. Code of 1924, Section 9519. In fact, so far as the record is concerned, no reliance at any time or in any event was made thereon. All this is said, assuming the version given by appellant concerning the same is correct. Analysis will not support the liberal inter pretation indulged in by the Citizens Bank. There is no indication \\u00ed\\u00f1 the abstract that appellee declared, in the Selway action, by word or writing, that appellant or its predecessors were holders in due course for a consideration, without notice. Only a judgment is set out in connection with the Selway transaction. So far as material, its recitation is that appellee has recovered for\\\" the sums of money which he paid upon his subscription's to the\\\" capital stock, and that the amount may be increased by future application for sums assessed against him in favor of the receiver. Reasons for making the entry do not appear: Preliminary applications, pleadings, admissions, and finally the declaration of witnesses, if any, \\u00e1re entirely absent.\\nManifestly, it cannot be said that said element of estoppel is 'present. Inconsistency is nowhere' to be found.\\nII. Doctrine of former adjudication is not in this case. Appellant was not a party to the previous legal quarrel. Distinction pointed out in Macedonia State Bank v. Graham, 198 Iowa 12, does not exist here, and this is said without determining the materiality, of the satisfaction of or failure to collect on the Selway judgment (in truth it was not paid), 'for the very good reason that it is not revealed in the case at bar that the advantage there gained was because of any incongruity intimated.\\nIII. 'Equally must appellant fail in its'plea relating to' the assertions of appellee as a witness in the Hemphill v. Citizens State Bank case, supra. Rather than being affirmative,- the testifier was negative. Conclusion based upon the result of that transaction cannot be that TIill and Hemphill were holders in due course. Ground cov\\u00e9red by the examination was not broad or'conclusive enough in its scope to have that effect. - Even though the affiant did not leam, or serve notice of, the fraud and defects, this does not foreclose the fact that Hill or Hemp-hill may h\\u00e1ve otherwise acquired the knowledge. Consequently, it' was for the jury to decide, under all the circumstances,' the-fact question to be ultimately' settled.\\n' ' IV. Conflict appears throughout the record on the interpretation placed by the parties upon Sections 9474, 9585, and 9586 of the Code of 1924. According to the order named, said provisions are: '\\n\\\"9474. Where the instrument is wanting in any material particular, the person, in. possession thereof has a. prima-facie authority to complete it by filling up the blanks therein; And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima-facie authority to .fill it up as such for any amount. In order-, however, that any. such instrument.-when completed- may be. enforced against, any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, -after completion, is negotiated to a holder in due course it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with -the authority given and within a reasonable time.\\\". . \\u2022 .\\n\\\"9585. \\\"Where a negotiable instrument is materially altered without the assent, of all parties fiable th.ere.on, ]t is avoided, except as against a party who has himself made, authorized,, or assented to the alteration and subseqpent indorsers. But when an instrument has been materially, altered and is in the hands of a holder in due course, not a party to the alteration,, he may enforce payment thereof according to its original tenor.\\\"\\n\\\"9586. Any alteration which changes; The time or place of payment; Or which adds a place of payment where no place of payment is specified, .or any other, change or addition which alters the effect of the instrument in any respect, is a material alteration. \\\"\\nAppellee contends that, because he delivered the notes with the place- of payment blank, and afterward someone else supplied the words in dispute, \\u2014 t.o wit, \\\"Citizens State Bank, Earl-ham, .Iowa,\\\" \\u2014 as said place, voidness follows; his theory being that said Section 9474 is not.applicable, or if so, is entirely overcome by the two remaining sections, 9585 and. 9586. Johnston v. Hoover, 139 Iowa 143, has ruled adversely. See, also, Marion Sav. Bank v. Leahy, 200 Iowa 220. When harmony, uniformity, and enforcement of all portions of the act are possible, it is our duty so to proceed, in order that no part will be discarded and the entirety made effective. Truly, a material alteration will work an .avoidance. Also, \\\"change of place of payment\\\" may amount to such \\\"material alteration.\\\" But not so if the transaction involves the \\\"filling in\\\" of a blank intended therefor, within the purview of said Section 9474. Language in Johnston v. Hoover, supra, is to the following effect:\\n\\\"What has already been said is sufficient to make it plain that to the ease in hand Subsections al24 [9585] and al25 [9586] have no application. We are aware, of course, that our conclusion on the case is not in harmony with some of our former cases; but the interposition of the statute is sufficient to account for that.\\\"\\nTherefore, Section 9474 prevails where the facts and circumstances are such as are therein cohthmplated, and in that contingency, Sections 9585 and 9586 have no bearing on the situation.\\nV. Again, appellant complains because appellee was permitted to testify, over objection, to the effect:\\n\\\"I left the place of payment blank in both notes, and did not authorize anyone to fill in the place of payment in the blanks. ' '\\nError is said to appear here because the witness does not claim to have forbidden the insertion of \\\" a place of payment, ' ' and, according to said Section 9474, the presumption is that the authority had been given, and necessarily a verdict should have been directed for appellant. Really what was meant by, and the net result of, the declaration quoted is that there was no express right conferred upon anyone to supply the absent clause in-the vacant space. This is not sufficient to overcome the statutory presumption. For assertion is not made that the act was prohibited, or in violation of an express agreement. 8 Corpus Juris 185, Section 315. Yet the evidence was material to show that the \\u2022 writings, as they now appear, were incomplete when delivered by appellee, and \\\"the absence of any agreement as to what was to be placed in the blanks.\\\" Marion Sav. Bank v. Leahy, supra.\\nVI. Finally, insistence is made that there must be a reversal because the trial court submitted the issue of material alteration to the jury. Defense of appellee is not that the blank following the words \\\"payable at\\\" was filled contrary to instructions, but rather, that the same was done without authority. Impliedly, there was granted the right to make the inser tion, when possession Was permitted with the peculiar blank in question. That in itself amounted to an invitation, coupled with the statutory presumption of authority, to complete the instrument. Johnston v. Hoover and Marion Sav. Bank v. Leahy, supra. No dispute existed. On this issue, we said, in Marion Sav. Bank v. Leahy, supra:\\n\\\" it was his [the possessor's] privilege, under this section of the statute [9474], to fill in said blanks in any way he saw fit, in the absence of any agreement between them as to what was to be placed in the blanks.\\\"\\nNecessarily, under the showing made, the jury had before it nothing upon which to base a finding of fact. Said legal prerogative was paramount; and, without claim and testimony that some other understanding supplanted it, the question was one for the court, rather than the fact-finding body. Prejudice appears because of this. We conclude that the district court erred in the manner indicated.\\nThe judgment must be, and hereby is, reversed, and a new trial granted. \\u2014 Reversed.\\nEvans, C. J., and Stevens, Faville, and Wagner, JJ., concur.\"}"
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diff --git a/iowa/2305004.json b/iowa/2305004.json
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@@ -0,0 +1 @@
+"{\"id\": \"2305004\", \"name\": \"Cummings v. Tovey\", \"name_abbreviation\": \"Cummings v. Tovey\", \"decision_date\": \"1874-09-22\", \"docket_number\": \"\", \"first_page\": \"195\", \"last_page\": \"197\", \"citations\": \"39 Iowa 195\", \"volume\": \"39\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:45:19.073643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cummings v. Tovey.\", \"head_matter\": \"Cummings v. Tovey.\\n1. Mortgage: sale under execution : bona fide purchaser. The sale, under execution, of personal property which was subject to a chattel mortgage executed before the levy, when the sheriff and attorney of the judgment plaintiff had knowledge of the existence of the mortgage, and the purchaser became aware of it before the payment of the purchase money, will not entitle the purchaser, under such circumstances, to protection as a bona ficie, purchaser.\\n2.--.\\u2022 -: lien. To enable a purchaser to hold property discharged of a prior lien, he must have paid the purchase money before notice of such lien.\\nAppeal from Allamakee District Court.\\nTuesday, September 22.\\n. Plaintiff-alleges that he is the owner, under a chattel mort-. gage, .of a dark brown stallion, eight years old, of the value of $500, and that he is, under the terms of said chattel mortgage, entitled to the immediate possession of the same. That defendant wrongfully took possession of said horse, and claims the same in virtue of a sheriff\\u2019s sale under an execution against the property of the mortgagor.\\nThe defendant answered alleging that, on the 27th day of January, 1872, the sheriff, in virtue of an execution in favor of J. S. Upton & Co., against the property of Tollef Tollefson, one of the makers of said mortgage, levied upon said horse, when the property of, and in the sole possession of, said Tollef Tollefson, and sold and delivered the same to defendant, for the sum of one hundred and sixty-seven dollars and sixty-seven cent's, on the 5th day of March, 1872; and that defendant purchased the horse without notice, actual or constructive, of the existence of said mortgage, and that the mortgage, at the time of the sheriff\\u2019s sale, had not been recorded. The cause' was tried by the court, and judgment was entered for the defendant. Plaintiff appeals.\\nJohn T. Olurk and M. V\\u25a0 Burdick, for appellant.\\nNoble, Hatch <& Frese, for appellee.\", \"word_count\": \"754\", \"char_count\": \"4437\", \"text\": \"Day, J.\\nThe chattel mortgage bears date the 28th day of August, 1867, and was filed for record, September 2d, 1867, and recorded in the proper book of records. It is executed by Tollef Tollefson, William S. Moore and Alonzo F. Moore, and it describes, amongst other property, \\\" three horses, one a dark brown stallion, three years old.\\\" The filing for record, and the record itself, describe the property merely as three horses, omitting the remainder of the description.\\nThe attorneys of the plaintiffs in execution had actual knowledge of the mortgage before the sale, and the deputy sheriff, who made the sale, had the mortgage in his hands at the time. The evidence is conflicting ag ^ whether the defendant had actual knowledge of the mortgage before the sale, but he admits that he had such knowledge within one half hour after the sale, and before he had paid anything thereon.\\nBefore the sale, defendant made arrangements with Gran ger, one of tbe attorneys of Upton & Co., for a little time on the purchase, if he should buy at the sale.\\nNo part of the bid was paid, until about a week after the sale, and then but forty-three dollars was paid in money, and the balance by the transfer of a note, a part of which .is not yet paid.\\n\\u00a5e need not determine whether the description in the mortgage, as recorded, is sufficient to affect defendant with constructive notice. The attorney of the execution plaintiff and the officer making the sale, both had actual knowledge of the mortgage. They knew that the judgment defendant, the mortgagor, had no interest in the property which could be levied on and sold under execution. Campbell v. Leonard, 11 Iowa, 489; Gordon v. Harding, 33 Iowa, 550. Their attempt to dispose of the property under execution operated as a fraud upon the mortgagee.\\nThe defendant was advised of the mortgage, about half an hour after the sale, before he had paid the purchase price, or in any way changed his situation or condition. It was manifestly his duty then to refuse to complete the sale, or to do anything further to divest the mortgagee of his rights.\\nAs he paid the entire consideration several days after he had knowledge of the mortgage to plaintiff, he cannot claim protection as an innocent purchaser without notice.\\nIn order that a purchaser may hold property discharged of a prior lien or cliai'ge, he must have paid the purchase money before notice. 1 Story's Equity Jurisprudence, Section 640, and cases cited.\\nThe judgment is erroneous.\\nReversed.\"}"
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diff --git a/iowa/2310642.json b/iowa/2310642.json
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index 0000000000000000000000000000000000000000..7418d5c4f711f4194d270656d2a5c08f5566e9cb
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+"{\"id\": \"2310642\", \"name\": \"Uplinger v. Kettering et al.\", \"name_abbreviation\": \"Uplinger v. Kettering\", \"decision_date\": \"1876-06-13\", \"docket_number\": \"\", \"first_page\": \"483\", \"last_page\": \"484\", \"citations\": \"43 Iowa 483\", \"volume\": \"43\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:19:09.469055+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Uplinger v. Kettering et al.\", \"head_matter\": \"Uplinger v. Kettering et al.\\n1. Appeal: certificate of judge. An appeal will not be entertained by the Supreme Court, where the amount in controversy, with the added costs, is less than one hundred dollars, unless it be accompanied by a certificate of the trial judge, as required by Sec. 3173 of the Code.\\nAppeal from Lima Circuit Court.\\nTuesday, June 13.\\nThe plaintiff sued the defendant before a justice of the peace on a note for $68.98. The defendant interposed a counter claim for $169.25. Judgment was rendered for defendant for $9.89, and costs. Seven days thereafter plaintiff went to the justice for the purpose of taking an appeal, and presented a bond. The justice said the bond was good and that he would approve it, but he failed to mark it approved, and failed to note in his docket that an appeal was taken. Ten days there after a transcript of the justice\\u2019s docket was sent to the clerk of the Circuit Court, and the filing fee was paid. At the next term of court, to-wit, the 6th of January, 1875, I. M. Preston & Son entered an appearance for defendant, and moved to dismiss the appeal, on the ground that no appeal had been allowed, that no bond was ever filed or approved, and that there was nothing to show that an appeal had been taken within the time allowed by law. This motion was sustained on the 15th of the same month. On the 15th day of March following the plaintiff presented his petition for an injunction, asking that the enforcement of the judgment against him be restrained, and that the appeal be reinstated. An injunction was granted, which afterward, on motion of defendant, was dissolved. The plaintiff appeals.\\nThompson c& Davis, for appellant.\\nI. M. Preston dk Son, for appellees.\", \"word_count\": \"489\", \"char_count\": \"2839\", \"text\": \"Day, J.\\nThe plaintiff sued for $68.98; the defendant, on counter claim, had judgment for $9.89. The object of this action is to restrain the enforcement of the judgment against plaintiff, and to have the appeal reinstated, so that he may have an opportunity to recover the amount by him originally claimed. i\\nThe amount in controversy between these parties, as shown-by the petition for injunction, is the difference between a judgment for plaintiff, for $68.98, which he claims, and one in favor of defendant for $9.89, and the costs, which he has recovered. The petition does not state the amount of costs accrued, so that the amount in controversy, so far as the petition shows, is found by adding what plaintiff claims to what defendant recovered, amounting to $78.87. There is no certificate of the court, such as section 3173 of the Code requires. The appeal must, therefore, be dismissed. We reach this conclusion with greater satisfaction, in view of the fact that, if the question were properly presented for our determination, we should affirm the order dissolving the injunction upon its merits\\nDismissed.\"}"
\ No newline at end of file
diff --git a/iowa/2310726.json b/iowa/2310726.json
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index 0000000000000000000000000000000000000000..82c298b5a6ada9b9b4b9f6970d2a98cbcf52bbde
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+"{\"id\": \"2310726\", \"name\": \"Thompson v. McKean\", \"name_abbreviation\": \"Thompson v. McKean\", \"decision_date\": \"1876-06-12\", \"docket_number\": \"\", \"first_page\": \"402\", \"last_page\": \"403\", \"citations\": \"43 Iowa 402\", \"volume\": \"43\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:19:09.469055+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thompson v. McKean.\", \"head_matter\": \"Thompson v. McKean.\\n1. Tax Sale: ekaud. A alleged that his grantor procured a tax deed upon lands sold for the taxes of 1860, and that R received a deed upon the same lands under a sale for the taxes of 1859', and had since fraudulently procured a decree quieting his title; the abstract showed tliat A. introduced only the tax deed and the conveyance to himself: Held, that the facts did not sustain the allegation that B's title was fraudulent.\\n2.--:--: judgment. Even if the sale under which B claimed was for taxes delinquent prior to the year 1860, the decree quieting his title would not be fraudulent, but erroneous only and not vulnerable to collateral attack.\\nAppeal from Jones District Court.\\nMonday, June 12.\\nAction in chancery to quiet the title of certain land described in the petition. There was a decree dismissing plaintiff\\u2019s petition; he now appeals to this court. The facts of the case appear in the opinion.\\nDosh Brothers c& Carstine, for appellant\\nSheean <& McCarn, for appellee.\", \"word_count\": \"675\", \"char_count\": \"3861\", \"text\": \"Beck, J.\\nI. The petition shows that both parties claim under different tax titles. Plaintiff's title is based upon a tax sale made March 16, 1863, for. the taxes of 1860. The treasurer's deed was executed March 21, 1866. Plaintiff alleges in his petition, that defendant's tax title is based upon a tax sale and deed, made subsequently to the sale and deed under which he claims, for taxes of the year 1859. It is also averred that defendant's intestate instituted an aetion against plaintiff's grantor to quiet the title of the lands in him; that since service of notice was had by publication and more than two years have elapsed since judgment therein was rendered, granting the relief prayed for by the plaintiff in that action. It is alleged that this judgment was obtained by fraud, because the treasurer of the county bad no right to sell the land for the taxes of 1859, it having been sold to plaintiff's grantor for the taxes of 1860. Every allegation of the petition is denied. Special defenses set up need not be mentioned.\\n\\\"We need not determine whether the facts alleged in plaintiff's petition as fraudulent, if established, would have avoided defendant's title. The abstract before us utterly fails to show that they were proved to the court. It shows that all the evidence introduced by the plaintiff was the tax deed and the conveyance from the grantee therein to himself. It then proceeds to state that all the evidence offered by defendant was the decree quieting the title in him, or rather in his intestate. The decree, it is admitted, was regularly obtained, proper proof of service by publication, etc., appearing by the files. But the abstract fails to show that defendant's tax deed, which was admitted to have been made on the 22d day of March, 1867, was upon a sale for taxes becoming delinquent prior to 1860, the year in which the taxes, for which the land was sold to plaintiff's grantor, became delinquent. Eor all that appears in the abstract the sale under which defendant claims title may have been for the taxes of a year subsequent to 1860. The abstract utterly fails to show the facts of which plaintiff complains and which he alleges constitute the fraud in the case.\\nII. It is not claimed that the decree quieting title in defendant's intestate is irregular or invalid, unless it be for the alleged fraud. Even if the allegation in the petition 0f the faet that the sa]e Iin(3er which defendants claim was for taxes delinquent prior to the year 1860, be taken as true, it is, indeed, difficult to see how this alone constitutes fraud. No act of defendant's intestate or others, or any proceeding of the court, is charged to have been fraudulent. All that can be said about it is that the decree is erroneous, not fraudulent. No steps have been taken to correct the error. It must be regarded as a valid decree.\\nAffirmed.\"}"
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diff --git a/iowa/2312777.json b/iowa/2312777.json
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index 0000000000000000000000000000000000000000..2226cbf52bf767d25014f1b28cf73e1900d9673c
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+"{\"id\": \"2312777\", \"name\": \"Prime v. Eastwood\", \"name_abbreviation\": \"Prime v. Eastwood\", \"decision_date\": \"1877-04-19\", \"docket_number\": \"\", \"first_page\": \"640\", \"last_page\": \"644\", \"citations\": \"45 Iowa 640\", \"volume\": \"45\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:08:18.126903+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Prime v. Eastwood.\", \"head_matter\": \"Prime v. Eastwood.\\n1. Slander: interpretation op words. Words are to be construed in the sense in which, in the light of all the circumstances known to speaker and hearer, they are calculated to impress the hearer\\u2019s mind and will be naturally understood.\\n2. -: evidence: quo animo. Evidence of other slanderous utterances than those charged in the petition is admissible for the purpose of showing malice.\\n3. -: mental distress: aggravation oe damages. Mental anxiety and distress of mind cannot be shown in aggravation of damages in an action for slander.\\n4. -: repetition oe slanderous words. The repetition of slanderous words is wrongful, and damages which result therefrom are a consequence of that wrong and not a natural, immediate and legal effect of the original speaking by defendant.\\nAppeal from Story Circuit Court.\\nThursday, April 19.\\nThis is an action for the recovery of damages for slanderous words alleged to have been spoken by defendant concerning plaintiff, charging plaintiff with stealing defendant\\u2019s hogs. The first count of the answer contains a general denial to all the counts of the petition. The other counts of the answer admit that defendant had conversations similar to those alleged in the second and third counts of the petition, but allege that he spoke the words without malice, and without any intention of charging plaintiff with the commission of a crime.\\nThere was a jury trial, and a verdict and judgment for plaintiff for $400. The defendant appeals.\\nBainbolt db Barnes, for appellant.\\nMcCarthy, Stevens db Underwood, for appellee.\", \"word_count\": \"1719\", \"char_count\": \"10013\", \"text\": \"Day, Ch. J.\\nI. Upon the trial one P. L. Porter testified as follows: \\\"About the first of November, 1875, defendant came to my house and said that he was out loolcing for some hogs/that he had lost, and claimed that his hogs were over at plaintiff's who would not give them up to him; that he had asked plaintiff for them, and plaintiff said they were his own hogs and he would not give them up. Defendant further said that he had cut off the ears and tails of them, to make them look like his hogs. I had another conversation four or five days afterward with- defendant in regard to the matter. ITe said: 'Porter, I know you Avon't steal hogs, but I know George Prime will.' Says I: 'Mr.' Eastwood, that is sa3>ing a good deal; you can't convince me any way you can fix it that George Prime would steal; he has his bad ways, same as you and me, but so far as his stealing, I don't think he would do that. I have lived alongside of him-as long as you have, and I say he won't steal.' Defendant said: ' I have lived near him as long as you have, and I know-that he will.' \\\"\\nIt is strongly urged by appellant that the words spoken to Porter are not actionable, and could not reasonably have been understood in-an actionable sense. Appellant insists that, although the Avords themselves charged the plaintiff with the commission of a criminal offense, yet if they were understood in a different sense by Porter, and defendant intended that they should be so understood, defendant is not liable.Citing McCaleb v. Smith, 22 Iowa, 242; Desmond v. Brown, 33 Iowa, 13; 1 Hilliard on Torts, 3d ed., p. 258; Townshend on Slander, 2d ed., p. 214, note 3, p. 173, note 1, and p. 189. The position of appellant would be correct if there were any proof' of circumstances known to Porter from which he understood that the words in the connection in which they were employed were not intended to impute a- crime. Words are t\\u00f3 be construed in the sense in which, in the light of all explanatory \\u2022circumstances known to speaker and hearer, they are calculated to impress the hearer's mind and will naturally be understood. Dixon v. Stewart, 33 Iowa, 125, arid authorities cited; The conversation in this case had reference to the plaintiff's having defendant's hogs in his possession, claiming them as his own, and having cut off their ears and tails to make them look like his own. Eespeetiug this, defendant said: \\\" Porter, I knoAv.y.ou won't steal hogs, but I know George Prime will. I have lived near him as long as you have, and I know that he will.\\\" The natural import of these words is to charge the crime of larceny. There is nothing in the circumstances proved tending to show that Porter could reasonably have understood them in any different sense, or that he did in fact understand them in a different sense. Upon the contrary, the whole testimony of Porter shows that he understood the crime of larceny to be charged. The words, therefore, must be considered in their usual and ordinary acceptation.\\nII. The plaintiff introduced one Frank Gibson, who testified as follows: \\\" I met defendant one day and passed the time of day with him, and he spoke something about hogs; he said that plaintiff had stolen some of his hogs, and he could prove it.\\\" This testimony was objected to for the reason that there is no allegation in the petition of a-conversation with this witness. Such evidence is admissible for the purpose of showing malice. Beardsley v. Bridgman, 17 Iowa, 290; Schrimper v. Heilman, 24 Iowa, 505.\\nIII. The plaintiff, against defendant's objection, was permitted to prove that, in consequence of the charge, he had been troubled, and suffered mental anxiety. If this testimony was at all admissible it must have been for the purpose of aggravating the damages. The action of slander is given for injuries affecting the reputation. In Terwilliger v. Wands, 17 N. Y., 54, it was held that special damages, to support an action for defamatory words not actionable in themselves, must result from injury to - the plaintiffs reputation which affects the conduct of others toward him, and that his mental distress, physical illness and inability to labor, occasioned by the aspersion, are not such natural and legal consequences of the words spoken as to give an action.\\nIn this case the court say: \\\" It would be highly impolitic to hold all language wounding the feelings and affecting unfavorably the health and ability to labor of another a ground of action, for that would be to make the right of action depend often upon whether the sensibilities of a person spoken of are easily excited or otherwise; his strength of mind to disregard abusive, insulting remarks concerning him, and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, and would be thought by them, and should be by all, undeserving of notice, might be exceedingly painful to some, occasioning sickness and an interruption of the ability to attend to their ordinary avocations. There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages; and a clear and wise one has been fixed by the law. The words must be defamatory in their nature, and must in fact disparage the character; and this disparagement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result. In this view of the law words which do not degrade the character do not injure it, and cannot occasion loss.\\\"\\nThe same doctrine is announced in Wilson v. Goit, 17 N. Y., 442. It seems to us that these cases announce the proper doctrine. If mental anxiety and distress of mind do not constitute such special damages' as will sustain an action of slander for words not actionable per se, it is because distress of mind and mental anxiety do not constitute such damage as can be redressed by an action for slander, and consequently they cannot enhance the damages when the words spoken are actionable per se. And this is the view declared in Townsliend on Slander and Libel, section 391, in which it is said: \\\"The plaintiff, to aggravate damages, cannot prove the defendant's wealth, nor that it was currently reported that defendant had charged the plaintiff with the crime mentioned in the declaration, nor that the plaintiff had suffered distress of mind.\\\" The case of Swift v. Dieherman, 31 Conn., 285, holds a contrary view; so also does Dufort v. Abodie, 23 La. Ann., 280.\\nIY. Against the objection of defendant the court permitted the plaintiff to prove that there was a rumor in the neighborhood in reference to plaintiff', and that defendant . , , had claimed that plaintiff had some ol his hogs. The court instructed the jury as follows: \\\"In determining the amount of damages to be given to the plaintiff, if ho is entitled to recover, you may consider the extent of the publication, as how far known and how understood 'and believed in the community where known, so as to determine the extent of the injury to his reputation.\\\" The words charged were spoken on different occasions to Porter, to Tilden, and to McCarthy, no one else being present.; \\\" Every speaker is the publisher of what he speaks, and is solely liable therefor. That the words spoken have been previously published by another can neither relieve the subsequent speaker from his liability for the publication made by him, nor impose any liability on the previous publisher.\\\" Townshend on Slander, sections 114, 202. See also Terwilliger v. Wands, 17 N. Y., 54 (58); Ward v. Weeks, 7 Ring., 211; Stevens v. Hartwell, 11 Metcalf, 542.\\nThe true rule upon the subject, we think, is that recognized in Terwilliger v. Wands, supra, that where there is no proof of the circumstances under which slanderous words are repeated by the parties who originally heard them, the general rule that a repetition of slanderous words is wrongful applies, and damages which result from repeating them are a consequence of that wrong, and not a natural, immediate and legal effect of the original speaking by the defendant.\\nThe effect of the action of the court in receiving this evidence and in giving the above instruction was to hold the defendant liable for the extent to which the publication was known, and consequently for the repetition of the publication by others, without reference to the circumstances under which the repetition was made. In this there was error.\\nReversed.\"}"
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+"{\"id\": \"2313449\", \"name\": \"W. N. Doyle, Appellant, v. Annie R. Jennings, Executrix, Appellee (two cases)\", \"name_abbreviation\": \"Doyle v. Jennings\", \"decision_date\": \"1930-03-11\", \"docket_number\": \"No. 40107\", \"first_page\": \"853\", \"last_page\": \"858\", \"citations\": \"210 Iowa 853\", \"volume\": \"210\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:06:05.355918+00:00\", \"provenance\": \"CAP\", \"judges\": \"Morling, C. J.,-and Faville, Kindig, and Grimm, JJ., concur.\", \"parties\": \"W. N. Doyle, Appellant, v. Annie R. Jennings, Executrix, Appellee (two cases).\", \"head_matter\": \"W. N. Doyle, Appellant, v. Annie R. Jennings, Executrix, Appellee (two cases).\\nNo. 40107.\\nMarch 11, 1930.\\nRehearing Denied September 22, 1930.\\nJ. M. Doiuer, for appellant.\\nIlatier c6 Earned, for appellee.\", \"word_count\": \"1854\", \"char_count\": \"10860\", \"text\": \"Evans, J.\\nI. The plaintiff's claim had its origin in July, 1919, when the plaintiff contracted to sell his farm in Iowa County to E. C. Mullin, a neighbor, for $48,000. Pursuant to this contract, a deed was executed by Doyle to Mullin on March 1, 1920. Mullin paid $12,000 of the purchase price, and executed a mortgage for the balance, $36,000, together with a promissory note for a like amount, due in 20 years. Catherine Mullin, the wife of E. C. Mullin, joined in both note and mortgage. Prior to such date of settlement, Mullin had sold the farm to Bevins and Donohoe, who assumed and agreed to pay the mortgage. On July 28, 1921, Mullin died; and on July 30th of the same year, Catherine died. They were survived by one child, Mrs. .Jennings, who is the defendant-administrator. In November of the same year, letters of administration were issued to her in both estates. This accounts for the double title carried herein. For convenience of discussion, we shall refer to the estate of E. C. Mullin only, though identical proceedings were had in both estates. The period for filing claims against the Mullin estate expired on November 17, 1922. The plaintiff filed his claim on November 2, 1923, and served notice on the executrix in the city of Chicago in January, 1924. In February, 1924, an order of allowance was entered on a purported default, and in the absence, and without the knowledge, of the executrix or her attorney, as claimed. At a later date, an application was filed by the executrix to set aside such allowance, upon several alleged grounds. The application was sustained, and the order of allowance was set aside, from which order an -appeal was prosecuted to this court. See Jennings v. Doyle (Iowa), 216 N. W. 777 (not officially reported). On such appeal, the order of the district court was affirmed by operation of law, as the result of an equally divided court. Thereupon, the case proceeded to trial in the district corirt upon the issue of equitable circumstances, entitling plaintiff to relief, such issue being made by appropriate pleading. The substance of the plaintiff's complaint and ground for equitable relief was, as he alleged, that he- had been misled by Simmons, cashier of the Farmers.Savings Bank of 'Williamsburg, and that he had been led to believe that Simmons would file .a claim against the Mullin estate, and, in substance, that ,he believed that Simmons had so filed it. His, testimony in, sqpport of his contention was vigorously denied. Affirmative testimony also was introduced, tending to show that plaintiff ivas fully advised in advance of the very date of expiration, of the period for filing, and that he professed to be doubtful in purpose whether to file or not, and that, with full knowledge of his rights, he allowed the period to expire, either negligently or intentionally, without filing a claim. It appears that both Doyle and Mullin were residents of the village of Parnell, in Iowa County, some 10 or 12 miles distant from Williamsburg. They were friendly neighbors. Both wore customers of the Farmers Savings Bank, of which Simmons was cashier, and had been such for many-years. Both of them were recipients, from time to time, of the courtesies and assistance usually extended to customers by bank officials. The land transaction between the parties Avas had in this bank, and Simmons assisted them therein. Sometime after March 1, 1920, and before the death of the Mullins, Simmons loaned to the plaintiff the sum of $9,000, and took his OAvn note therefor, secured by the $36,000 note of .Mullin as his collateral. After the death of the Mullins, Simmons assisted the daughter, Mrs. Jennings, by way of advice and, information in the matter of administration of the estate of her parents. He employed an attorney for her for the settlement of the estates, and occupied an attitude of willingness to assist her in such manner as he could. Because of the assistance thus rendered by Simmons, the plaintiff charges that he was interested in the estate, and that because of such interest he misled in some manner the plaintiff, and failed to exercise good faith towards the plaintiff, and intentionally failed to tile the plaintiff's note against the Mullin estate, because of his alleged interest in the Mullin estate. Simmons had in fact no financial interest in the Mullin estate, nor any financial interest to be subserved by the protection of the Mullin estate against the plaintiff's claim. On the contrary, whatever financial interest he had, as between the Mullins and the plaintiff, was in the direction of filing the claim. He held the plaintiff's note as collateral. He did, in fact, advise the plaintiff to 'file a claim therefor. Doyle was a man of intelligence and business experience. He had himself previously served' as administrator of an estate. He had also served as guardian of a ward. He knew the requisite of filing a claim against the estate and the effect of a failure so to do. The defendant introduced important evidence of specific conversations with the plaintiff, wherein he was advised of the date of expiration of the period for filing, and wherein he expressed doubt as to whether he would file or not. At that time, he purported to believe that his security under the mortgage was quite abundant. In addition to that, Bevins, one of the assumptors, was considered good. We think this attitude of mind on the part of th\\u00e9 plaintiff is fairly proved by a preponderance of the evidence. Without dispute, the plaintiff knew of the death of the Mullins and of the pending administration later. He knew his rights in the premises, and was versed in the requisites of the statute. Though he testified indefinitely to his reliance and expectation that Simmons would, file the claim, yet he did so by a merely categorical answer to a leading question. There was no claim that Simmons'had promised to file it, or had misled him with representation that he had filed it. It must 'be said, therefore, that the district court was justified in finding a failure on the part of plaintiff to prove the alleged equitable circumstances.\\nThe \\\"equity\\\" most forcefully contended for by counsel is the fact that the claim was a just claim; that the Mullin estates were solvent; that no one had suffered prejudice by the delay; that, therefore, equity required that such just claim be paid. The argument has its appeal, but quite independently of the statute. It is an argument for amended legislation. As applied to the existing statute, it is quite subversive of it. If the justness of the claim is a sufficient equity to comply with the requirements of the statute, then the statute itself is an idle one. The requisite of justness is imperative, even when the claim is filed within the period of limitation. It is no less required after the period of limitation, even when peculiar circumstances entitling the plaintiff to equitable relief are approved. In other words, the justness of the claim is not a \\\"peculiar circumstance,\\\" within the meaning of this statute. On the contrary, it is of the very essence of the claim itself.\\nA careful reading of the evidence in the case satisfies us that the plaintiff failed to prove peculiar circumstances, within the meaning of the statute. Such was the holding of the district court. Upon a careful consideration of all the evidence in this record, we find no fair basis for the claim that Simmons practiced any fraud upon the plaintiff, or that he failed in any duty resting upon him toward the plaintiff. There was no inconsistency in his respective relations to the plaintiff and to the administratrix of the Mullin estate. He had always been friendly with both families, and plaintiff knew it. Nor can it be held, upon this record, that the failure of the plaintiff to file his claim within statutory time was caused by any act on the part of Simmons. If the plaintiff had lacked information of any material fact, or had been misled as to- any material fact, such a lack of information would be entitled to consideration as a \\\"peculiar circumstance.\\\" The fact that the claimant had not heard of the death of his debtor or of the pendency of administration is one which often appears in this class of cases. No want of knowledge appears herein. The plaintiff at all times knew every material fact requisite to a proper understanding of his rights and of the statutory limitations upon them, as well as he knows them now. The only suggestion of ignorance of fact appearing in his evidence is that he did not know that Simmons had acted, or was acting, in the interests of the Mullin estate. We necessarily reach the conclusion that the plaintiff failed to prove \\\"peculiar circumstances,'' within the meaning of the statute.\\nII: The appellant assigns error'upon the ruling of the district'court in \\\"setting aside, in the- year 1926, the previous order of allowance made in 1924. This appellant appealed from that order to this court. That order, and that alone, was involved in the former appeal. That order was affirmed by an equally divided court, and by operation of law. Such affirmance was effective to give finality to the adjudication. That the question presented by that appeal was close and doubtful is indicated by the equal division of the court. The result was no less effective oh that account. The general rule here enunciated is not challenged by appellant's counsel. The theory upon which he contends for a review of that order of the district court is that such order was not in fact appealable; that, therefore, no jurisdiction was conferred upon this court by such appeal; that our former decision was, therefore, nugatory, and had no effect upon the order appealed from; and that the order thus appealed from still inheres in the final judgment of the district court, and as a part of its record.\\nThis appellant was likewise appellant in the former appeal. His appeal was from\\\" that order, and from nothing else. On that appeal, the appellee challenged the appellant's right of appeal- on the ground that such order was not appealable, and moved to dismiss the appeal. The appellant contended for the appealability of the order. We sustained him in such contention, and overruled the motion of appellee. Our ruling bn that motion was not by a divided court. It was a\\\" finality, and became the law of the case. The appellant is not entitled, on this appeal, to have a review thereof or a rehearing thereon. Adams County v. B. & M. R. Co., 55 Iowa 94; Barton v. Thompson, 56 Iowa 571. The order of the district court is, accordingly, \\u2014 -Affirmed.\\nMorling, C. J.,-and Faville, Kindig, and Grimm, JJ., concur.\"}"
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+"{\"id\": \"2319785\", \"name\": \"L. A. Andrew, State Superintendent of Banking, Appellant, v. G. H. Austin et al., Appellees\", \"name_abbreviation\": \"Andrew v. Austin\", \"decision_date\": \"1930-09-22\", \"docket_number\": \"No. 40160\", \"first_page\": \"963\", \"last_page\": \"969\", \"citations\": \"213 Iowa 963\", \"volume\": \"213\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:43:14.959334+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hording, C. J., and Evans, Favidle, De Graff, Albert, Wagner, and Grimm, JJ., concur.\", \"parties\": \"L. A. Andrew, State Superintendent of Banking, Appellant, v. G. H. Austin et al., Appellees.\", \"head_matter\": \"L. A. Andrew, State Superintendent of Banking, Appellant, v. G. H. Austin et al., Appellees.\\nNo. 40160.\\nSeptember 22, 1930.\\nRehearing Denied January 14, 1932.\\nC. H. E. Boardman, for appellant.\\nM. W. Hyland and Deacon, Sargent & Spangler, for appellees.\", \"word_count\": \"2169\", \"char_count\": \"12893\", \"text\": \"Stevens, J.\\nAustin and G-oodell, appellees, were the president and cashier, respectively, of the Commercial Savings Bank of Tama, Iowa, and they, with the other defendants, constituted the board of directors. On December 31st, 1923, appellees, on the demand of the state superintendent of banking, in writing guaranteed the payment of certain customers' notes held by the bank, a list of which was attached to the contract. The foregoing contract, which is the one in suit, was executed to take the place of a prior similar contract bearing date December 24, 1922. The lists of notes attached to the respective contracts are not in all respects identical. On March 20, 1926, $49,200 advanced by the shareholders of the bank was applied as follows: $29,276.45 to take up paper covered by the guaranty; $19,097.79 to take up paper not included in such guaranty; and $10,498.00 to reduce the total amount due the bank secured by real estate. This left $927.76 of the amount unaccounted for.\\nThe principal controversy in this case involves the sum applied in satisfaction of the notes admittedly covered by the guaranty. It is the contention of appellant that the sum so advanced or paid by the shareholders was, in fact, a voluntary assessment on -the stock held by them, and therefore it belonged absolutely to the bank, and could not legally be applied to the payment of notes covered by the guaranty so as to discharge the guarantors from, liability thereon. The--answer.of appellant to this contention is that the sum raised was not intended to constitute an .assessment, voluntary or otherwise,, on the stock, but that it was voluntarily raised in part for the express purpose of taking up notes included in the guaranty.\\nIt is urged by appellant that the evidence is without com flict and that only questions of law-are presented. It seems to us, however, that the evidence is not only conflicting in material respects but that it is susceptible of contradictory inferences. Prior to the execution of the guaranty, the banking department was strenuously insisting that something be done to strengthen the condition of the bank. There was talk of an involuntary assessment. Correspondence had by the -bank with the banking department refers to the transaction as a voluntary assessment. Testimony was offered in behalf of appellees, tending to show that the sum raised voluntarily was paid by the shareholders for the purpose of taking out of the bank's assets a portion at least of the notes for the payment of which they had assumed liability as guarantors. The banking department was fully advised of the steps taken by the directors, the amount realized, and the application made thereof. On March 17, 1926, the appellee Austin wrote to the deputy superintendent of banking, giving a complete list of the notes taken out of the bank's assets. The letter refers to the fund raised as a voluntary assessment. The record discloses no protest from.the banking, department as to the application made of the funds by the officers of the bank. The evidence also shows that three of the bank's directors, including the president, were constituted as trustees to .collect the sum in question from the shareholders, and that cash and cheeks received for that purpose were kept in an envelope until the holders-of all but eight shares had responded. The mere designation of the transaction as a voluntary assessment does not conclusively establish its character. If the sum collected was, in fact, an assessment upon the shareholders of the corporation, it belonged to the-bank, and could not be legally applied in settlement of the obligation of the guarantors. Brodrick v. Brown, 69 Fed. 497; Bidwell v. Pittsburg, O. & E. L. Pass. Ry. Co., 6 Atl. (Pa.) 729. There can be no question but that the shareholders had a perfect legal right to make a voluntary contribution for the benefit of the bank, to be applied as they saw fit.. The fund was denominated a \\\"pool.\\\" The notes, to the aggregate amount stated, were actually taken out of the assets of the bank, and are in the possession of the shareholders. They were not, however, transferred by endorsement or assignment, nor were they, in the usual and ordinary manner, charged off the books. A bracket in lead pencil was drawn on the page of the ledger on which they were entered, coupled with the naked pencil memorandum 'Bought by the pool. \\\"\\nIt will be observed, and this is a circumstance of weight in determining the fact questions involved, that the application of more than $10,000 of the total amount collected was made for the benefit of the bank, to purposes wholly consistent with appellant's theory of . voluntary assessment. We find nothing in the record tending to show that it was contemplated by either the banking department or appellees that the latter were to advance a 100% assessment on their stock, independent of and additional to the liability previously assumed for an equivalent sum. ' Of' course, it is significant at this point that the \\u2022 guaranty bears date December 31, 1923, whereas the collection of the fund was completed in March, 1926. There was evidence before the court tending to support both the theory of appellant and of appellees. There was testimony from which the inference might be drawn that an assessment upon the stock required by the department in charge was intended to be voluntarily carried out. On the other hand, there was testimony to the effect that no assessment was intended, and that the shareholders formed and carried out their own plan to form a pool and purchase the bad paper; and thereby get the benefit of the salvage, if any, in the notes. There was testimony to the effect that this matter was discussed with a bank examiner. In this situation of the record we think a fact issue was clearly presented. The finding of' the trial court thereon is conclusive on this count.\\nII. We are not on this appeal'concerned with the ap plication made of the $10,498.00. There remains, however, a series of notes covered by the guaranty which were not purchased by the pool, and which have not been paid or otherwise accounted for. Appellees deny liability upon any of the remaining notes. Their denial is based upon two grounds: First, that the bank held no-such notes as are described in the guaranty .at the time it was signed; and second, that they -were released by subsequent material alterations and changes in the notes. Before proceeding to consider these contentions as applied to the separate notes, it may be well to discuss briefly the law applicable to and. governing the liability of guarantors. , The same rule is to be applied in the construction of contracts of guaranty as other contracts. Harmon v. Hartman, 178 Iowa 912. The contracts of sureties and guarantors are to be construed strictly according to their terms, which will not be enlarged or.extended by implication. Schoonover v. Osborne, 108 Iowa 453; Harmon v. Hartman, supra; Davis Sewing Machine Co. v. McGinnis, 45 Iowa 538; Bousquet v. Ward, 116 Iowa 126; Crapo v. Brown, 40 Iowa 487; Hancock v. Wilson, 46 Iowa 352; Berryman v. Manker, 56 Iowa 150; Springer. Litho. Co. v. Graves, 97 Iowa 39; Tansey v. Peterson, 88 Iowa 544; Merchants Nat. Bank v. Cressey, 164 Iowa 721; Ida County Savings Bank v. Seidensticker, 128 Iowa 54; Hatch & Brookman v. Kula, 195 Iowa 619; Dewey Column & Mon. Wks. v. Ryan, 206 Iowa 1100. In other words, a guarantor is entitled to have his contract carried out strictly according to its very terms. No deviation, even for the benefit of the guarantor, will be tolerated. Schoonover v. Osborne, supra. Appellant relies upon the exception to this general .rule that a guarantor will not be released from liability if he knew of and assented to changes in the terms of the contract. This exception is also well established. Schoonover v. Osborne, supra. Accepting the foregoing rules that a surety or guarantor is-a favorite of the law, that any. material-deviation from the terms of their contracts operates to release them from liability, and that such contract may not be enlarged or extended beyond the strict terms thereof, let us consider each of the remaining notes in controversy separately. They are referred\\\" to in the written guaranty merely as the following described bills receivable, or other assets, and are described in the list attached thereto as follows: \\\"E. W. Bartlett, $205; Carl A. Moyer, $1352; J. H. Stice, $125; G. & L. Holden, $5000; Frank A. Moyer, $2000; E. C. Morris, $2000; Earl M. Richards, $2147.\\\" The notes actually held by the bank were as follows: \\\"E. W. Bartlett, a note of $225; a note of Charles A. (not Carl) Moyer, $1352; J. H. Stice, $241, formed by merging' the original note with other indebtedness; G. & L. Holden notes aggregating $6199.40; Frank A. Moyer five notes, aggregating $6547.66; E. C. Morris two notes, aggregating $3008.98; Earl M. Richards, three notes, aggregating $2147.07.\\\"\\nSome of the foregoing notes were renewed subsequent to the guaranty, with other and different sureties. So far as there were changes and alterations in the notes actually in the bank that were covered by the guaranty, the changes were brought about by either the president or cashier of the bank, who were in full charge thereof. These officers are, therefore, conclusively charged with notice thereof, and must be held to have assented thereto. But do such notice and assent avoid the rule which requires that the contract be strictly carried out according to its very terms ? There is no ambiguity in the instrument. The names of the principal debtors are given in every instance, together with an amount,.as above shown. The guaranty and list of notes attached were prepared on behalf of the banking department, and were presented to and signed by appellees at the request thereof. A series of notes aggregating an amount exactly, or approximately, equal to that stated in the guaranty and the alleged corresponding note designated in the guaranty are by no means identical. There is, for example, a clear distinction between a note for $205 and a note for $225. The president and cashier of the bank, and, no doubt, other members of the board of directors, were familiar with the notes held by the bank at the time the guaranty was executed. It would not, of course, have been a difficult matter to have correctly described the notes and obligations of which it was desired to have the directors assume the payment. The instrument before us must bo construed most strongly against the party preparing it. This is the universal rule. To permit the introduction of parol testimony to show what notes and obligations were, in fact, contemplated by the parties, and that they are different from those described in the guaranty, would be to vary the terms of an unambiguous contract for the purpose of sub jeeting guarantors to liability. This would be contrary to the established rules governing such liability.\\nThere is no way to harmonize the notes described with the notes actually in the bank, except to receive parol testimony for that purpose. The guaranty was not voluntarily assumed by the directors, but was made necessary by the ruling of the state banking department. No different rule of construction is to be applied because of the relationship of appellees to the corporation or their intimate knowledge of and connection with the assets of the bank. 'Appellees, by signing the written contract, assumed an independent liability: that is, one not imposed upon them either as shareholders, officers, or directors of the bank. It goes without saying that they were deeply interested in keeping the bank open and maintaining its credit. None of these matters, however, invoke a different rule of construction. . In the last analysis they were guarantors in the usual- sense, and nothing more. We see no escape from the conclusion reached by the trial court as to the liability of appellees for the payment of the notes in question. There is a claim made by appellant that some of the notes were taken out by the pool on which the full amount of interest due was not paid.\\nThe record is.not quite clear on this point.\\nThere is also one item that was compromised on terms causing a loss to the bank. There is also another involving the disposition of real estate. The notes involved in these settlements were delivered to the makers. We find no. sound basis-in the record on which a reversal may be predicated. We conclude, therefore, that the judgment must be, and it is, affirmed. \\u2014 Affirmed.\\nHording, C. J., and Evans, Favidle, De Graff, Albert, Wagner, and Grimm, JJ., concur.\"}"
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+"{\"id\": \"2320343\", \"name\": \"The McDonald Manufacturing Co. v. Thomas\", \"name_abbreviation\": \"McDonald Manufacturing Co. v. Thomas\", \"decision_date\": \"1880-04-26\", \"docket_number\": \"\", \"first_page\": \"558\", \"last_page\": \"561\", \"citations\": \"53 Iowa 558\", \"volume\": \"53\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:41:08.486618+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The McDonald Manufacturing Co. v. Thomas.\", \"head_matter\": \"The McDonald Manufacturing Co. v. Thomas.\\n1. Promissory Note: failure of consideration: notice. Pacts considered which, were held insufficient to charge the purchaser of a promissory note before maturity with notice of a failure of the consideration of such note.\\n2. Warranty: language used by seller: question of fact. Whether, in a sale, the language of the seller constituted a warranty of the article sold, is a question for the jury under proper instructions, and such instructions should not limit them to the words used, when there is any doubt as to the understanding of the parties, but should direct them to consider the words used in connection with all the proven circumstances of the transaction.\\nAppeal from Franklin Oi/reuit Cowrt.\\nMonday, April 26.\\nAction by plaintiff as a corporation, upon two promissory notes given for- a threshing machine. The notes were exe cuted to a corporation known as the Fond du Lac Threshing Machine Co., and sold by that company to the plaintiff for value before maturity. The defendant, for answer, avers that the machine for which the notes were given was sold 'to him by the Fond du Lac Threshing Machine Co., with a warranty; that it was wholly worthless, all of which was known to the plaintiff at the time it purchased the notes. There was a trial by jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.\\nMcKenzie da Ilemenway, for appellant.\\nKi/ng\\u25a0 da Ilenley, for. appellee.\", \"word_count\": \"1102\", \"char_count\": \"6445\", \"text\": \"Adams, Cn. J.\\nI. The defendant, at the time he purchased the machine, made a cash payment. The evidence showed that the machine was defective and not xvorth more than the amount paid. Whether the plaintiff, at the time of its purchase, knew it was defective, is one of the pi-incipal questions in the case. To show that the plaintiff did know it, the defendant introduced as a witness one McDonald, who was president and stockholder of the Fond du Lac Threshing Machine Co. from its organization until the sale to plaintiff of the notes in question, and was at the time of the trial vice president and stockholder of the plaintiff company. He was asked an interrogatory in these words: \\\" State whether or not the Fond du Lac Threshing Machine Co. did not manufacture a lot of poor machines that bx*oke aixd gave trouble to the company?\\\" To this question the plaintiff objected, but the objection was overruled and the witness answered: \\\" The company made a fexv machines that the parties that purchased them claimed did not work well, while machines manufactured in the same * manner, sold to other parties, gave good satisfaction. Of course in those cases where the machine was said not to work well it gave the company more or less trouble.\\\"\\nThe defendant's theory is, that, if the plaintiff's vice president had knowledge that the machine for which the notes were given was defective, the plaintiff must be deemed, through him, to have knowledge also.\\nWhether in any case a corporation can be charged with having knowledge, by reason of the knowledge which its vice president had pertaining to, and at the time of, a given transaction, without showing that he was charged with some duty or responsibility in regard to the transaction, we need not determine. We see nothing to show that McDonald was the vice president Or even member of the plaintiff's company at the time it purchased the notes in question. Besides, it appears to us that McDonald's knowledge, if any, that the Pond du Lac Company manufactured some defective machines, would not be knowledge that the machine for which the notes were given was defective. It would not be such knowledge even if it were shown that the Pond du Lac Company manufactured all its machines according to one pattern. The dif ference in material, to say nothing of the difference ip the quality of work, might be such as to constitute the difference between a good machine and a poor one. If McDonald's knowledge that the Fond du Lac Company manufactured some defective machines is to be deemed knowledge 'that the machine bought by the defendant was defective, then the fact that the Fond du Lac Company manufactured some defective machines, would be evidence that the machine bought by the 'defendant was defective. But such evidence is not admissible. It is probable that few manufacturers, doing considerable business, have been so successful as never to make and sell a defective article. Indeed it is often through failures that success is achieved. It would be an exceedingly unjust and oppressive rule to hold that the making of a defective article by a manufacturer should constitute presumptive evidence that all other articles made by him were defective.\\nII. There was in this case no warranty of the machine in terms. The warranty relied upon consists of a mero affirmation that it was a good machine, etc. The court gave an instruction in these words: \\\" To constitute a warranty the word warrant need not be used; any equivalent words stating the quality of the machine, calculated to induce the purchase, and which was instrumental in causing it to be sold to defendant, will be considered a warranty; as a statement that a machine would do good work, or was a good machine, will be considered a warranty that the machine will work reasonably well with the use of reasonable skill in its management.\\\" The giving of this instruction is assigned as error.\\nIt appears to us that the last part of the instruction can hardly be approved. The statement that a machine will do good work, or is a good machine, does not necessarily constitute a warranty. It may do so under some circumstances. A statement does not constitute a warranty unless the vendee is justified in relying upon it as a statement of a fact as distinguished from an opinion. The question as to whether a statement constitutes a warranty is often a difficult one. It may depend not only upon the words used, but upon the character of the thing sold, the known character of the buyer, his opportunity for inspection, or whatever else may reveal anything in regard to the real understanding of the parties. It is a question for the jury under a proper instruction; Tewkesburry v. Bennett, 31 Iowa, 83; and the instruction should not restrict the jury to the words used, where there is any doubt as to the understanding of the parties, but should direct them to consider the words used in connection with all the proven circumstances of the transaction.\\nEeversed.\"}"
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+"{\"id\": \"2322276\", \"name\": \"Rhode v. Bank et al.\", \"name_abbreviation\": \"Rhode v. Bank\", \"decision_date\": \"1879-12-02\", \"docket_number\": \"\", \"first_page\": \"375\", \"last_page\": \"377\", \"citations\": \"52 Iowa 375\", \"volume\": \"52\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T18:21:58.804462+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Rhode v. Bank et al.\", \"head_matter\": \"Rhode v. Bank et al.\\n1. Life Insurance: proceeds op: distribution. Under section 1182 of the Code, the proceeds of a policy of insurance upon the life of an individual become the separate property of the husband, or wife and children, of such individual, or, in case the insured leaves a wife and no children, of the wife, to the exclusion of the other heirs, and section 2372 should be construed in harmony with such provisions.\\nAppeal from Lee Circuit Court.\\nTuesday, December 2.\\nAdalbert 11. E. Rhode, deceased, at the time of his death held an insurance policy on his life in the Mutual Benefit Life Insurance Company. The policy was for $1,000, payable to the assured, his executors, administrators or assigns.\\nThe plaintiff is the widow of said Rhode, and he left no children surviving him, and never had any children as the fruits of his marriage with plaintiff.\\nThe defendant Henry Bank is the administrator of the estate of said Rhode, and as such collected upon said insurance policy the sum of $992.56. The intervenors are the brothers and sisters of said Rhode, deceased. They are the next of kin, and, with plaintiff, are the only heirs at law of said deceased.\\nThe plaintiff, by this action; claims that slie is entitled to the wliole of the proceeds of said insurance policy. The intervenors claim that they, as brothers and sisters of the deceased, are collectively entitled to one-half of such proceeds, and that plaintiff is entitled to the other one-half.\\nThe Circuit Court adjudged to the plaintiff one-half, and to the brothers and sisters of the deceased one-half. Plaintiff appeals.\\nGillmore dk Anderson, for appellant.\\nJR. II. Sherman, for the administrator.\\nSprague dk- Gibbons, for intervenors and appellees.\", \"word_count\": \"1035\", \"char_count\": \"5941\", \"text\": \"Roti-irock, J.\\nSection 1330 of the Code of 1851 provided that, \\\"The avails of any life insurance are not subject to the debts of the deceased, except by special contract or arrangement, but shall, in other respects, be disposed of like other property left by the deceased.\\\" The same provision was contained in the Revision of 1860, section 2362. By the 18th section of chapter 173, acts of the 12th general assembly, it was provided that, \\\"A policy of life insurance on the life of an individual, in the absence of an agreement or assignment to the contrary, shall inure to the separate use of the husband or wife and children of said individual, independently of his or her creditors; and an endowment policy, payable to the assured on attaining a certain age, shall be exempt from liability for any of his or her debts.\\\" This provision was incorporated in the Code of 1873, section 1182. Section 2372 of the Code is also identical with section 1330 of the Code of 1851, and section 2362 of the Revision of 1860.\\n\\\"It is a rule of construction that when a doubtful statute is susceptible of two constructions, one of which will give effect to the whole, and the other render inoperative a portion thereof, the former should prevail.\\\" Rheim v. Robbins, 20 Iowa, 45. Another rule to be observed is, that two or more statutes on the same subject must be construed with reference to each other.\\nApplying these rules in construing these two sections, it seems to us that the wife is entitled to the whole of the insurance. We reach this conclusion upon the strength of section 1182 of the Code, which provides that the policy shall inure to the separate use of the husband, or the wife and children. This provision, as wo have seen, was first enacted in the laws of the 12th general assembly. At that time section 2362 of the Revision was in force, which provided that the avails of life insurance should not be subject to the debts of the deceased, but should in other respects be disposed like other property left bj^ the deceased. Both provisions having been retained, both must be considered in force. Each, too, must be so construed that it will have a force of its own, unless its provisions are so repugnant to the other that no force can be given thereto. It will not do to say that after the enactment of the laws of the 12th general assembly the law upon the subject stood precisely as it did before \\u2014 that is, the avails of life insurance were not subject to debts, and descended to the heirs of the decedent according to the general law of distribution. Yet that is the effect of the ruling of the court below. Under that ruling no case can be supposed, so far as we can see, where any person's rights would be different in any respect by reason of that enactment.\\nThe provision was manifestly designed to restrict the distribution of the avails of life insurance to the classes named. We do not infer this merely from the fact that the legislature must'be presumed to have had some object. The language used indicates very clearly that the legislature had in view restriction in distribution. The provision is that the policy shall inure to the separate use of, etc. Now these words are not used to cut off creditors. They were cut off before. Separate use, therefore, does not mean a use separate from the creditors. The restriction, then, must have reference to those wiio might otherwise take as distributees.\\nThe provision of section 2372 of the Code, that the avails of life insurance \\\"shall in other respects be disposed of like other property left by the deceased,\\\" does not necessarily mean that it shall be distributed to the same class or classes of persons. The avails will, in some sense at least, be disposed of like other property left by the deceased, if distributed by the administrator to the persons entitled thereto under the law governing the distribution. It should be restricted to the classes named in section 1182, if both or one exists; but if not, it should be distributed according to the general statute for the distribution of property. This construction gives each one of the sections in question a force of its own, and we think does violence to neither. \\u2022\\nReversed.\"}"
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+"{\"id\": \"2324129\", \"name\": \"Bays v. Herring\", \"name_abbreviation\": \"Bays v. Herring\", \"decision_date\": \"1879-06-06\", \"docket_number\": \"\", \"first_page\": \"286\", \"last_page\": \"294\", \"citations\": \"51 Iowa 286\", \"volume\": \"51\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:33:45.063480+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bays v. Herring.\", \"head_matter\": \"Bays v. Herring.\\n1. Practice: continuance: absence of witness. Amotion for continuance based upon the absence of a witness, filed after the second day of the term, should be supported by an affidavit showing that the motion was made as soon as the affiant learned of the absence of the witness, and that he desired his evidence.\\n2. Evidence: malicious prosecution. In an action for malicious prosecution for the sale of mortgaged property, it was held' to be competent to prove what the defendant had testified to upon the trial of the criminal action, with respect to the sale of the mortgaged property.\\n3. Practice : PRESUMPTION. Where the petition in an action for damages contains two counts, and the verdict for plaintiff is general, it will be presumed to have been based upon the count which was sustained by the evidence, rather than upon the one not so sustained.\\n4. Evidence: malicious prosecution : character. Whether in an action for damages for malio'ous prosecution the defendant may repel the charge against him, when the pivotal point in the case is established by mere circumstances, by proof of general good character, may well be doubted.\\n5.--: IMPEACHMENT : number of witnesses. The court may in its discretion limit the number of witnesses to be introduced for the purpose of impeaching a witness. .\\n6. -: to sustain witness. Evidence to sustain the reputation of a party for truth and veracity does not stand upon the same footing as impeaching evidence, and a question for that purpose, limiting the inquiry to the reputation of a party among a particular class, was held not to be erroneous.\\nAppeal from Harrison District Court.\\nFriday, June 6.\\nThe petition states that the defendant, without reasonable or probable cause, filed an information before a justice of the peace charging the plaintiff with having sold and disposed of certain personal property, which had been mortgaged to the defendant, to secure an indebtedness to him which remained unpaid; that said property was sold without the consent of the defendant; that plaintiff was recognized by the justice to appear at the' next term of the District Court, when and where an indictment was found against him; that the defendant was a witness before said grand jury, and that the testimony given by him before both the justice and said jury was false, and known to be so by said defendant. The answer, with the exception referred to in the opinion, consisted cf a denial. There was also a counter-claim pleaded. There was a jury trial, verdict and judgment for the plaintiff, and defendant appeals.\\nJ. C. Naylor, A. W. Clyde and Hubbard & Secor, for appellant.\\nBolter & Michel, for appellee.\", \"word_count\": \"2898\", \"char_count\": \"16625\", \"text\": \"Seevebs, J.\\n\\u2014 I. On the 5th day of September, 1878, a motion for a continuance was filed, based on the absence of a witness. The defendant knew on August 31, 1878, that he desired the evidence of the absent witness. The statute requires that such motion must be filed on the second day of the term, \\\"if it is then certain it will have to be made before the trial, and as soon thereafter as it becomes certain it will so need to be made.\\\" Code, \\u00a7 2752. We are unable to determine from the abstract on what day court commenced, but counsel for the aqopellant state in their argument it was on the 27th day of August, 1878. Conceding this to be correct, the defendant could not have filed the motion on that day. He states in his affidavit that the witness resides in Minnesota, but' he fails to state when he first learned this fact. He may have known it before August 31st, or he may have learned it on that day. He should have filed his motion when he obtained such knowledge, and knew that he desired the evidence. It is not shown that the motion was made as soon after the second day of the term as it became certain it would have to be made. .\\nII. A motion was filed to.suppress the deposition of Margaret E. Bays. The abstract shows the following action of the court in reference thereto: \\\"This case having been reached for trial when the motion to suppress depositions was filed, the same was overruled.\\\" This ruling is in accord with chapter 26, Laws of Seventeenth General Assembly. The presump-' tion is that the foregoing statement is correct, and there is nothing in the record which conflicts therewith. It is true, it appears that on the succeeding day the \\\"cause came on for hear- \\u2022 ing before the court and a jury;\\\" but for aught that apjaears the jury may have been impanelled on the preceding day, and that to this extent the trial had actually begun when the motion was filed. The rule being that error must affirmatively appear, we cannot say there was any in this action of the court.\\nIII. One Stoker, when on the stand as a witness, was asked to state what the defendant had testified to when the plaintiff was tried on the criminal charge in relation to the sale of the mortgaged property. Defendant's objection to this question having been overruled, the witness answered that the defendant testified he told Bays, or his wife, that he did not care what became of the property so he got his money.\\nIf material, it was competent to prove what defendant testified to in relation to the sale of the property. So. far there can be no doubt. The question was, therefore, unobjectionable, and there was no request made to strike out the answer. We also think the' evidence tended to show the-defendant consented that the property might be sold. There was no error in the ruling of the court.\\nIV. The plaintiff, when on the stand as a witness, was-asked to state a conversation he had with the defendant in relation to the disposition of the property after he had in fact sold it. To this the defendant objected because it was immaterial; but certainly it was not so on its face. In the response it might have appeared that the defendant' had admitted he, had consented the property might be sold before the sale was in fact' made. The objection was, therefore, properly overruled. Now, it may be conceded the answer was immaterial and irrelevant, but as no request was made to strike it out in the court below, it cannot be made for the first time here.\\nV. The indictment and papers connected therewith in the criminal case, including the verdict of the jury, with a statement attached thereto that the jury were of \\\"opinjon that this is a case of malicious prosecution, and recommend that the costs be taxed to the prosecuting witness, \\\" was allowed to go to the jury as evidence. It is urged that the statement of the jury attached to their verdict should have been excluded. In this view we concur, but we cannot remedy the wrong because no objection was made in the court below when the evidence was offered. Had there been it would have been undoubtedly excluded, for the court, on its own motion, instructed the jury to disregard it.\\nIt is also urged' that evidence tending to show the plaintiff had been acquitted of the criminal charge should not have been admitted, because it was not averred in the pleadings that he had been acquitted. There was no objection made to the petition by motion or demurrer, and the evidence, as we have said, was admitted without objection. But it is said an objection was made in the motion for a new trial and in arrest of judgment. This is true. .\\nThe abstract, however, as we understand, does not purport to contain the whole of the petition. Indeed the contrary expressly appears. It is impossible for us to say the evidence aforesaid was erroneously admitted. But, conceding the sufficiency of the petition, it is urged no recovery should have been had, and that a new trial should be granted because there was no legal evidence introduced showing the plaintiff had been acquitted of the criminal charge.\\nThe judgment in that action does not appear to have been introduced, and that the verdict of a jury is not sufficient evidence of an acquittal is without doubt true.\\nIf it be conceded that one count in the petition is for malicious prosecution, there is also a count based on the perjury committed by the defendant, whereby the prosecution was commenced and indictment found, and because of such matters the plaintiff was obliged to incur expense, and was put to great trouble and cost.\\nUnder this last count it was not essential the plaintiff should prove he had been acquitted of the criminal charge which had been set on foot by means of the perjury of the defendant. The verdict was general. It is impossible, therefore, to say with certainty on which cause of action stated in the petition it was based. What, then, is the presumption ? Certainly, we think that it was based on the count which was sustained by the evidence. We cannot presume the verdict was found under the count that had not been proved or established. This being true error has not been affirmatively shown.\\nYI. The plaintiff gave evidence tending to show that the defendant had given his consent to the sale of the mortgage# Property, and in the petition the defendant is in substance charged with the crime of perjury, rpp0 <jefen(ia:at sought to prove what his general \\\"character for honesty, morality and truthfulness\\\" was and had been. An objection to this evidence was sustained. It is urged that defendant's general character was involved and in issue, and that, therefore, evidence to sustain it was admissible. In support of this position 1 Greenl. on Ev., \\u00a7 54, is cited. The rule, as stated by the learned author, is that \\\"whenever in actions of tort the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel it.\\\" Conceding this case is within the rule in other respects, it will not do to say the charge in the petition is sustained by mere circumstances. As to the pivotal fact in the case \\u2014 that is, the consent of the defendant to the sale of the mortgaged property \\u2014 the evidence was direct and positive. The only question was whether it was true, and the preponderance with the plaintiff. Besides this, the defendant gave evidence tending to show that he had conditionally consented the property might be sold. The rule alluded to was established at a time when parties were not permitted to testify in their own behalf, and because of an apparent or real necessity, and for the reason that a party could not by his own testimony explain the circumstances tending to show his moral turpitude. Without committing ourselves thereto, we may be permitted to express a doubt whether the rule should now be recognized. If the reason for its establishment has ceased to exist, it is doubtful whether the rule itself should be enforced.\\nVII. The defendant asked to \\\"introduce further witnesses impeaching the general reputation of George W. Bays for truth and veracity.\\\" To this the court said: \\\"Seven witnesses having already been examined on that point the application is denied.\\\" The trial court must, of necessity, have the power, in the exercise of a legal discretion, to control the number of witnesses that should be examined to establish any fact. Otherwise trials might be prolonged to an alarming extent, and for the purpose of bringing about a mistrial by reason of the necessity that existed to adjourn the court. There is nothing in the record to indicate that the discretion with which the court is vested was abused. On the contrary it seems to us to.have been wisely exeieised.\\nVIII. The defendant pleaded as a counter-claim that he had obtained a judgment against the plaintiff, which was unpaid. The plaintiff on the trial admitted this was true. The defendant sought to prove that the judgment had been eobtained on the note secured by the mortgage on the ground that it would tend to prove he had not given his consent to the sale of the mortgaged property. Upon objection being made the court below thought otherwise, and in this view we concur. There was no pretense the note had been paid, and the fact that judgment had been obtained thereon added nothing to this significant fact.\\nIX. There was evidence tending to impeach the plaintiff's character for truth and veracity in the community in which he lived. For the purpose of sustaining it, a witness was asked \\\"what his general reputation is for truth and veracity in that community, among the business men with whom he deals?\\\" An objection to this question was overruled, and the witness, after stating that he possessed the requisite knowledge, stated that it was good.\\nIf the purpose had been to impeach, the question was improper. It should not have been confined to the business men with whom he had dealings. Dance v. McBride, 43 Iowa, 624.\\nEvidence to sustain a witness does not stand on precisely the same footing, and yet we are not aware that any recognized and clear distinction exists. If a person's reputation is good it is not usually discussed. It would be strange to hear it said of a man that his character for truth and veracity was good if it never had been doubted. Hence we believe it is quite usual to sustain the character of a witness by proving by witnesses that they had never heard it mentioned or discussed.\\nConceding, however, that strictly speaking the evidence was inadmissible, we should be unwilling, for this reason, to reverse. Several other witnesses testified that the character of the plaintiff, in the community generally in which he lived, was good. Therefore, the evidence objected to could not have influenced the jury to the injury of the defendant. Nor was it by any means an important factor in the case.\\nThe abstract states that before the evidence and argument were concluded the defendant filed an amended answer. Whether it was filed with the leave of the court does not affirmatively appear. On the same day it was filed the plaintiff moved the court to strike it from the files, because it \\\"required proof not introduced on the trial,\\\"- and because it was filed after \\\"defendant had made his argument and submitted his cause to the jury.\\\" This motion was sustained. It is impossible for us to say from what is before us that the court abused the discretion with which it is undoubtedly vested in such eases. On the contrary, we incline to think there are good reasons that may be urged in favor of its action. It is quite evident the defendant knew, or should have known, whether or not he desired to amend his answer, at least as early as the close of the plaintiff's testimony in chief. Instead of doing so at that time he waited until his counsel had concluded his argument to the jury. Such delay, ordinarily, would be inexcusable, and favors the thought that it was for a purpose which should not be entitled to consideration at the hands of the court.\\nXI. We have read with care the two instructions asked and refused, and the tenth instruction given by the court, and have to say in reference thereto that the latter, by the use of less words, covers the ground embraced in the former. Therefore, as has been repeatedly held, there was no error in refusing the instructions asked.\\nXII. In stating the issues to the jury the court assumed that the prosecution before the justice was commenced on the 16th day of December, 1876. It is urged that there was no evidence or averment in the pleading which warranted such assumption. When the petition was filed, and at the time the trial commenced, there were blanks therein. The answer admitted the prosecution was commenced at the time stated in the petition, but in fact when the answer was filed no time was stated in the petition. During the trial the plaintiff asked and obtained leave to fill the blanks in the petition, and, as we learn from the motion for a new trial, the blank in question was filled with the date aforesaid. As the pleadings stood at the time the instructions were given it was admitted therein that the prosecution had been commenced at the time stated by the court. The assumption aforesaid was not, therefore, unwarranted.\\nXIII. The other instructions of the court are criticised by counsel. All, or nearly all of them, are claimed to be erro neous. We do not deem it necessary to take tlie space required to state the reasons why, in our opinion, the objections are not well taken. We have read the instructions, evidence and argument of the counsel, and feel well satisfied that no well grounded objections exists to the instructions.\\nIt is also urged that the verdict is not sustained by the evidence. The evidence was conflicting, and if more credit was given to the witnesses of the plaintiff than the defendant by the jury, and this they might well do, then the verdict is sustained by the testimony. \\u2022\\nAffirmed.\"}"
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diff --git a/iowa/2330451.json b/iowa/2330451.json
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+"{\"id\": \"2330451\", \"name\": \"Lillian Nalon, Appellee, v. City of Sioux City, Appellant\", \"name_abbreviation\": \"Nalon v. City of Sioux City\", \"decision_date\": \"1933-09-26\", \"docket_number\": \"No. 41930\", \"first_page\": \"1041\", \"last_page\": \"1046\", \"citations\": \"216 Iowa 1041\", \"volume\": \"216\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:53:05.966195+00:00\", \"provenance\": \"CAP\", \"judges\": \"Albert, C. J., and Evans, Kindig, and Claussen, JJ., concur.\", \"parties\": \"Lillian Nalon, Appellee, v. City of Sioux City, Appellant.\", \"head_matter\": \"Lillian Nalon, Appellee, v. City of Sioux City, Appellant.\\nNo. 41930.\\nSeptember 26, 1933.\\nH. C. Harper, A. 0. Jepson, and Jesse E. Marshall, for appellant.\\nGriffin, Griffin & Griffin, for appellee.\", \"word_count\": \"1982\", \"char_count\": \"11316\", \"text\": \"Donegan, J.\\nThe plaintiff, Lillian Nalon, is the owner of a lot having a frontage of 30 feet on the north side of West Thirteenth street, in the city of Sioux City, Iowa, and extending northward about 108 feet in depth. West Thirteenth street is a paved street running east and west, and, prior to the digging of the ditch involved in this action, extended some distance west of plaintiff's property. Perry creek, in the vicinity of plaintiff's lot, ran in a generally southeasterly direction. The natural channel of the creek, at its nearest point to plaintiff's property, was approximately 150 to 200 feet west of the rear or north end of plaintiff's lot. At this point nearest the plaintiff's lot the natural channel of the creek bent westward, thence southward, thence eastward, forming what is known as a horseshoe bend. The city of Sioux City undertook to straighten the channel of this creek and cut a new channel from the point where the horseshoe bend began west of the plaintiff's lot, thence in a southeasterly direction to where this new channel met the natural channel at a point south and east of plaintiff's lot. Plaintiff's lot is located in a residence section of Sioux City, and on this lot there was a two-story six-room residence and a double garage. The residence stood- near the southwest corner of her lot; the west side of such residence being about 2 feet from the west line of the lot, and the front of the residence about 2 or 3 feet from the south line of the lot.\\nIn straightening out Perry creek, the defendant city dug a ditch about 20 feet wide and 20 feet deep. This ditch runs in a southeasterly direction, and near the southwest corner of plaintiff's lot the top of the ditch is 5 feet from the southwest corner of plaintiff's house. The ditch extends diagonally southeast across West Thirteenth street in front of plaintiff's property, and at the south line of the street the east edge of the ditch is approximately south of the east line of plaintiff's lot.\\nIn her petition plaintiff claimed damages, because after heavy rainfalls the creek deposits large quantities of debris and filth along its hanks; because, as constructed, the change in the channel deprived plaintiff's lot of its lateral support; because access to the street is rendered more difficult; and because of removal of a shade tree which was immediately in front of plaintiff's house.\\nDefendant admitted constructing the new channel, denied generally all other allegations of the petition which were not admitted, and pleaded other special defenses. Trial was had to a jury, and at the close of plaintiff's evidence defendant moved the court to direct the jury to return a verdict in favor of the defendant. This motion for a directed verdict was overruled. By agreement of parties, the jury was discharged, and the cause submitted to the court on the question of damages; it being agreed that the court might enter a judgment with all the force and effect of a finding of the jury. Thereupon the court discharged the jury and entered judgment in favor of the plaintiff for $1,250 and costs. From this ruling and the judgment of the court the defendant appeals.\\nThe only error relied upon by the appellant for reversal is as follows:\\n\\\"1. The sole proposition presented on this appeal is that the Court erred in overruling defendant's motion for a directed verdict and should have held as a matter of law that there is no right of action for an incidental injury to the value of property caused by a proper work of public improvement where there is no direct taking of plaintiff's property or trespass thereon.\\\"\\nAppellant's brief and argument is devoted to this one proposition, that there was no taking of plaintiff's property within the meaning of the constitutional provision against taking property without compensation, and that any and all damages claimed by appellee resulted indirectly from the construction of the ditch adjacent to the appellee's property and are incidental and consequential. Article 1, section 18, of the Constitution of the state of Iowa, provides as follows:\\n\\\"Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof\\\".\\nAppellant cites authorities in support of its contention that there can be no taking of private property within the contemplation pf this provision of the Constitution unless there is a physical appropriation of the property itself, and that, where the property is not physically taken, any damages resulting to such property because of a public improvement are indirect and consequential and, in the absence of statutory provision authorizing payment thereof, cannot be collected against a city when acting in its governmental capacity. It may be conceded that, in construing provisions such as that in our Constitution, which merely provide for compensation for the taking of property, the authorities quoted by appellant are in conformity with appellant's contention. It does not necessarily follow that there may not be, in any case, a taking of property without the actual invasion of the physical property itself. On the contrary, there is ample authority in support of the rule that, even where the provision is only for compensation for the taking of property, there may be a taking of property by preventing or substantially interfering with the owner's access to his property from a public street.\\nPrior to the case of Long v. Wilson, 119 Iowa 267, 93 N. W. 282, 60 L. R. A. 720, 97 Am. St. Rep. 315, there may have been some confusion in our decisions. Since the decision in that case, this court has become firmly committed to the doctrine that a substantial interference with a property owner's right of access to his property from a public street amounts to a taking of property and that damages can be recovered therefor. In that case the abutting property owner had been deprived of all but 13 feet of a street 70 feet in width in front of his property. The lower court overruled a demurrer to the petition of plaintiff, and, in sustaining the lower court, we said:\\n\\\"It may not be of importance to the general public whether a particular street is vacated or not. It is important to the individual owner of abutting property that he shall be able to get to and from his residence or business, and that the public shall have the means of getting there for social or business purposes. In such a case access to thoroughfares connecting his property with other parts of the town or city has a value peculiar to him, apart from that shared in by citizens generally, and his right to the street as a means of enjoying the free and convenient use of his property has a value quite as certainly as the property itself. If this special right is of value, \\u2014 and it is of value if it increases the worth of his abutting premises, \\u2014 then' it is property, regardless of the extent of such value. Surely no argument is required to demonstrate that the deprivation of the use of property is to that extent the destruction of its value.\\\"\\nAgain, in the case of Borghart v. City of Cedar Rapids, 126 Iowa 313, 101 N. W. 1120, 68 L. R. A. 306, where the city had vacated and sold a portion of a public square through which plaintiff obtained access to his property, in affirming the decision of the lower court allowing damages to the plaintiff, we said:\\n\\\"But here the injury complained of is peculiar to plaintiff's property, and not such as is shared by the public generally. In so far as the street or public ground was necessary to the free and convenient way for travel to and from the lot, her right to its use for that purpose was appurtenant to her premises, and essential to their enjoyment. The abutter has a right, in common with the community, to use the street from end to end for the purpose of passage; but, in addition to this common right, he has an individual property right, appendant to his premises in that part of the street which is necessary to free and convenient egress and ingress to his property. That this latter right is private and personal and unshared by the community, and cannot be taken away without answering in damages, is held by substantially all the authorities.\\\" (Citing cases.)\\nLikewise, in the case of City of Ridgway v. City of Osceola, 139 Iowa 590, 117 N. W. 974, 975, where a street and alley had been vacated and deeded to a railway company which proceeded to bar the same to traffic, although the plaintiff's property was not entirely deprived of access, we held that he was entitled to prosecute his action for damages, and said:\\n\\\"The transfer to the railway is unimportant, save as the use thereof by the company interferes with plaintiff's use of the property for a street or alley. In Barr v. Oskaloosa, 45 Iowa 275, it was expressly held that a property owner could not recover damages from a town or city for damages sustained by reason of the vaca-, tion of a street or alley, and thus the law stood until the decision in Long v. Wilson, 119 Iowa 267, 93 N. W. 282, 60 L. R. A. 720, 97 Am. St. Rep. 315, and Borghart v. Cedar Rapids, 126 Iowa 313, 101 N. W. 1120, 68 L. R. A. 306. In these latter cases it is held that, where the street or alley is necessary to the free and convenient access to the premises of the particular owner, his right to such use is appurtenant to his premises, and cannot be taken away without the payment of damages.\\n\\\"Appellee's counsel contend that what was said in these latter cases was purely obiter, and not controlling, but it is manifest from a reading thereof that there was a purpose to recede from the broad doctrine announced in the Barr case, and that to some extent at least that decision was overruled.\\\"\\nSee, also, Richardson v. Webster City, 111 Iowa 427, 82 N. W. 920; Furgason v. Woodbury County, 212 Iowa 814, 237 N. W. 214.\\nIn the case at bar, the petition alleges among other grounds \\\"that access to the street is rendered more difficult; that said creek is now immediately in front of plaintiff's property where there was formerly a paved street\\\".\\nAnd in plaintiff's testimony she said:\\n\\\"They have changed the channel so that it runs right in front of my place, they tore up Thirteenth Street and it is barricaded immediately in front of my house. You wouldn't have a chance to rent it as readily and it is more difficult to get into the house from the street.\\\"\\nThe witness Haag testified:\\n\\\"The change has caused the street to stop right in front of this house, that fact depreciates the value of this house.\\\"\\nUnder the rule that a substantial interference with access to property by means of a public street does, amount to a taking of property for which damages may be collected, there was evidence to carry this case to the jury, and the trial court did not err in overruling the appellant's motion for a directed verdict.\\nAs this is the only question which has been presented to the court under the errors relied upon for reversal, the ruling and judgment of the trial court must be, and is, hereby affirmed.\\nAlbert, C. J., and Evans, Kindig, and Claussen, JJ., concur.\"}"
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+"{\"id\": \"2332918\", \"name\": \"The State v. Nickerson\", \"name_abbreviation\": \"State v. Nickerson\", \"decision_date\": \"1877-09-18\", \"docket_number\": \"\", \"first_page\": \"447\", \"last_page\": \"448\", \"citations\": \"46 Iowa 447\", \"volume\": \"46\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:12:30.519862+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State v. Nickerson.\", \"head_matter\": \"The State v. Nickerson.\\n1. Criminal law: indictment: perjury. In an indictment for penury,, it is necessary to aver that the court or person before whom the oath alleged to be false was taken had authority to administer the same.\\nAppeal from Webster District' Court.\\nTuesday, September 18.\\nIndictment for perjury. The defendant, having been convicted,' appeals.\\nJohn F. Duncombe, for appellant.\\nJ. F. McJunhin, Attorney General, for appellee.\", \"word_count\": \"534\", \"char_count\": \"3081\", \"text\": \"Seevers, J.\\nThe indictment charges that an action was pending in the District Court of Webster county, Iowa, wherein one Elias Cadwell was plaintiff and the defendant herein was defendant \\\" for a money demand and' to foreclose a verbal contract, being an action in equity, and the said court had jurisdiction of said action, which was by an order of said court referred to D. D. Miracle to hear, try and determine as referee, and said referee had jurisdiction of said cause to hear and try the same, and then and there said action came on for hearing and trial before said D. D. Miracle, referee as aforesaid, and the said W. P. Nickerson, witness as aforesaid, was then and there by said referee, D. D. Miracle, duly and legally sworn to speak the whole truth and nothing but the truth, as a witness in said cause.\\\" It is unnecessary to set forth any more of the indictment in order to fully present and determine the question which is decisive of this appeal.\\nThe objection taken to the indictment is, that it is not averred the referee by whom the oath was administered had authority to administer the same. That no such averment is contained in the indictment is clear. Is this a fatal defect? We are forced to the conclusion that it is. Such an averment is found in all forms of indictment to which our attention has been called.\\nIn 2 Wharton's Precedents of Indictments, 577, note (d), it is said this averment should always appear by specific averment. See, also, 2 Wharton's Criminal Law, Secs. 2239 to 2242, and authorities cited in the notes.\\nIt is provided by statute, \\\" In an indictment for perjury, it is sufficient to set forth the substance of the controversy, or matter in respect to which the offense was committed, and in what court or before whom the oath alleged to be false was taken, and that the court or person before whom it was taken had authority to administer the same .*.\\u00bb\\u00bb Code, Sec. 4312.\\nIt certainly was necessary to prove on the trial that the person who administered the oath had authority to do so. If necessary to be proved, it should have been averred, unless such averment was dispensed with by statute. So far from this being true, such an averment is required. The indictment was, therefore, bad, and no legal conviction could be had thereunder.\\nMany other questions are presented in the record which we deem it unnecessary to determine. We venture, however, to suggest that in any future indictment it be averred clearly and distinctly that the defendant swore \\\"falsely,\\\" as such word is used in the statutory definition of the crime. The State v. Morse, 1 G. Greene, 503.\\nAffirmed.\"}"
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+"{\"id\": \"2341998\", \"name\": \"Johnson & Co. v. Tostevin & Le Ray et al.\", \"name_abbreviation\": \"Johnson & Co. v. Tostevin & Le Ray\", \"decision_date\": \"1882-12-06\", \"docket_number\": \"\", \"first_page\": \"46\", \"last_page\": \"50\", \"citations\": \"60 Iowa 46\", \"volume\": \"60\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:49:15.433435+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Johnson & Co. v. Tostevin & Le Ray et al.\", \"head_matter\": \"Johnson & Co. v. Tostevin & Le Ray et al.\\n1. Jurisdiction: personal action: non-resident defendants: voluntary appearance. An action to recover for a breach of contract is a personal action, and may be maintained by acquiring jurisdiction of the persons of the defendants, no matter where the contract was made, nor where it was to be performed; and when the defendants, though non-residents, appear and demur to the petition filed against them in-such an action, the court thereby acquires jurisdiction of their persons. Code, \\u00a7 \\u00a7 2586, 2626.\\n2. Pleading: written contract in several parts: setting out copy: demurrer. \\\"Where the petition showed on its face that the contract declared on consisted of a written order, and a letter and the answer thereto in relation to such order, but failed, without giving any sufficient reason therefor, to set out a copy of one of the letters,\\\" held that a demurrer to the petition was properly sustained, under Code, section 2648.\\n3. Practice in Supreme Court: presumption in favor of court below. Where there was doubt whether the ruling of the lower court, sustaining a demurrer, was made before or after the filing of an amendment which avoided the ground of the demurrer, held that the lower court must be presumed to have ruled correctly, and, therefore, to have ruled before the amendment was filed.\\nAppeal from Clarke Ciro%dt Court.\\nWednesday, December 6.\\nIt appears from the averments that Tostevin & Le Ray is a co-partnership in the manufacture of fanning mills, and that Peter Le Ray\\\" and J. P. Tostevin are the individual members of the partnership, and it is alleged that on the 14th of February, 1880, one W. IT. Keefer made and delivered to the plaintiffs an order in these words:\\n\\u201cMessrs, Tostevin & Le Ray, Raeine, Wis. Please hold subject to the order, or ship to Messrs, A. S. Johnson & Co., of Osceola, Iowa, forty-seven fanning mills, called the Union Sifter, and charge the same to my account.\\nTours, etc., W. II. Keefer.\\u201d\\nThat said order was delivered to plaintiffs, and that they forwarded the same to defendant by mail, and received in return an acceptance thereof as follows:\\n\\u201cMr. A. S. Johnson & Co., Osceola Iowa. Sir: Tours of the 21st is at hand, and in reply Mr. W. H. Keefer sends us a letter to let you have forty fanning mills, and charge them to his account. We are willing to do so, but can\\u2019t fill the order inside of two months, as we have as much orders as we can fill up to that time. Let us know if this will be satisfactory. Tours truly, Tostevin & Le Rat.\\u201d\\nThat the plaintiffs immediately, upon the receipt of said acceptance, assented to the same, including the extension of time as asked, and so notified defendants by mail. That plaintiffs paid to Keefer the sum of $470 in full for said fanning mills, and that defendants refused to ship the same to plaintiffs, although requested so to do. Damages are claimed for failure to deliver the mills to plaintiffs.\\nThere was a demurrer to the petition which was sustained. An amendment was filed, and the defendants again demurred. On the same day on which the last demurrer was determined, an amendment to the petition, and to the amended petition, was .filed, which set out what was alleged to be a copy in substance of the written assent of the plaintiffs to the defendant\\u2019s acceptance of the order of Keefer. The demurrer was sustained. Plaintiffs elected to stand upon their petition as amended, and they appeal.\\nW. II. Wilson and Mclntvre Bros., for appellants.\\nM. 8. Terrvple and John Ohaney, for appellees.\", \"word_count\": \"1455\", \"char_count\": \"8388\", \"text\": \"Rothrook, J.\\nI. One ground of demurrer was to the effect that the court had no jurisdiction of the defendantsj nor of the subject matter of the suit, for the reason that the petition shows that the partnership, and members thereof, are residents of \\\"Wisconsin, and that the place of performance of the contract is in and there is no averment of a breach thereof, at Wisconsin, the place of performance. The demurrer was filed in behalf of all of the defendants. This constituted an appearance to the action, and the court thereby acquired jurisdiction of the \\u00a1versons of defendants. Code, \\u00a7 2626. The objection that there was no breach of the contract shown by the petition, is not correct. It is expressly averred therein, that the defendants refused to ship the mills upon demand being made therefor.\\nWe are at a loss to understand what counsel mean by the objection that the court had no jurisdiction of the subject-matter of the suit. The petition sets forth a contract and a breach thereof on the part of the defendants, and claims damages for the breach. It is a personal action which may be maintained by acquiring jurisdiction of the persons of the dedefendants, no matter where the contract was made, nor where it was to be performed. Non-residents of the State may be sued in a personal action in any county where they may be found. Code, \\u00a7 2586.\\nII. Another cause of demurrer was as follows: \\\"That the said petition claims upon a written contract composed of an 01'der by one W. IT. Keefer to plaintiffs and upon defendants, and' written correspondence by and between plaintiffs and defendants, and that a part ^ saj,j wlqting so sued upon is not incorporated into, nor attached to, plaintiff's petition, and that no sufficient reason for want thereof is given, to-wit: the answer of the plaintiffs to the letter of defendants, in which plaintiffs claim that they assented to defendant's terms upon which they offered to accept the order on them.\\\"\\nThe demurrer was properly sustained if the above ground therefor is correct in its statement of facts. Code, \\u00a7 2648. There is a dispute as to the record in the case, and we have resorted to the transcript to ascertain, if we can, the state of the pleadings to which the demurrer was interposed and sustained. It appears that the petition was filed on the 31st day of July, 1880. A demurrer to the petition was filed on the 31st day of August, 1880. It is not disputed that this demurrer was sustained at the August term, 1880. The transcript shows otherwise, but the appellants assert in their abstract that the ruling was made in August, and appellees do not deny it. On the 6th day of September, 1880, what is denominated an amended petition, was filed. On the 21st day of February 1881 a demurrer to the amended petition was filed. This demurrer was sustained on the 17th of March, 1881, and on the same day what is denominated as an \\\"amendment to petition and to amended petition,\\\" was filed. This last amendment contained proper averments as to the writings between the parties, and was not vulnerable to the ground of demurrer above set out. The appeal was taken from the ruling sustaining the last named demurrer, and the controversy as to the record is whether the amendment to the amended petition was considered by the court in making the ruling. If it was considered, the demurrer should have been overruled, because there is no other ground of demurrer that has any merit whatever. -If the last amendment was not considered, the ruling of the court was correct.\\nIt is certain that the demurrer was not filed to the last amendment, because it was filed long before said amendment, and the ground of demurrer under consideration was not applicable after the last amendment. There is nothing in the-transcript by which it can be determined with absolute certainty whether or not the last amendment was filed before-the ruling on the demurrer. But the record entry recites, that the hearing was had and the ruling made upon the demurrer to the petition as amended, and no reference is made-therein to an amendment to the amended petition. Now,, we think, it is for the appellants to show by the record that the last amendment was not only on file when the ruling was. made but that it was considered by the court. \\\"Where presumptions are indulged upon questions like this they are-always in favor of the ruling of the court, and upon the ground that error must affirmatively appear. If appellants had taken care to file the last amendment, and made the record show that snch filing was before the submission of the demurrer, or if they had asked the court to make the record show that the last amendment was considered in making the ruling, they would have presented a record here which would have supported the argument that the court considered the last amendment.\\nAffirmed.\"}"
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+"{\"id\": \"2348547\", \"name\": \"Appanoose County Rural Taxpayers Association, Inc., et al., appellants, v. Iowa State Tax Commission (members), appellees\", \"name_abbreviation\": \"Appanoose County Rural Taxpayers Ass'n v. Iowa State Tax Commission\", \"decision_date\": \"1968-04-09\", \"docket_number\": \"No. 52836\", \"first_page\": \"1191\", \"last_page\": \"1203\", \"citations\": \"261 Iowa 1191\", \"volume\": \"261\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T01:11:37.199742+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"Appanoose County Rural Taxpayers Association, Inc., et al., appellants, v. Iowa State Tax Commission (members), appellees.\", \"head_matter\": \"Appanoose County Rural Taxpayers Association, Inc., et al., appellants, v. Iowa State Tax Commission (members), appellees.\\nNo. 52836.\\n(Reported in 158 N.W.2d 176)\\nApril 9, 1968.\\nMcGrane & Haugan, of Des Moines, Life, Davis & Life, of Oskaloosa, and Hugh W. Lundy, of Albia, all for appellants.\\nRichard C. Turner, Attorney General, George W. Murray, Special Assistant Attorney General, and Harry Griger, Assistant Attorney General, of Des Moines, for appellees.\", \"word_count\": \"3590\", \"char_count\": \"21790\", \"text\": \"Becker, J.\\nPlaintiffs are an incorporated taxpayer's association and four individual taxpayers of Appanoose County. They seek declaratory and injunctive relief alleging the defendant Iowa State Tax Commission and its members, as such, acted arbitrarily and illegally in ordering the county board of review to adjust the assessed value of the real estate in Appanoose County by increasing the valuations of all agricultural land 20 percent and decreasing the valuations of all agricultural buildings 25 percent. Defendants.filed motion to dismiss and motion to strike. The trial court sustained their motion to dismiss on all grounds and passed the motion to strike as moot under the circumstances.\\nI. A brief review of the assessment procedures in Iowa is provided in Hougen v. George, 254 Iowa 1055, 1058, 120 N.W.2d 497. Rather than repeat the summary here we will note plaintiffs allege the county assessor and county board of review prepared and transmitted to the state tax commission an abstract of the real and personal property in the county containing, the items required by Iowa Code, 1966, section 441.45.\\nIowa Code, 1966, provides for state action after county officials have performed their statutory duties:\\n\\\"441.46 State board of review. The state tax commission shall constitute the state board of review, and shall meet at the seat of government on the second Monday of July in each year.\\n\\\"441.47 Adjusted valuations. The state board of review shall adjust the valuation of property in the several counties adding to or deducting from the valuation of each kind or class of property such percentage in each ease as will bring the same to its taxable value as fixed in this chapter and chapters 427 to 443 inclusive. It shall also adjust, the valuations as between each kind or class of property in any city assessed by a city assessor and each kind or class of property in the same county assessed by the county assessor.\\\"\\nSection 421.17, dealing with the powers and duties of the state tax commission, gives it supervisory powers over local taxing bodies to the end that all assessments of property and taxes levied thereon be made relatively just and uniform in substantial compliance with the law.\\nIn Des Moines Gas Co. v. Saverude, 190 Iowa 165, 170, 180 N.W. 193, we said: \\\"The duty of the state board of equalization is to adjust the value of property of the several kinds, adding to or deducting from the valuation of each kind or claim such percentage, in each case, as will bring the same to its reasonable value. Its function is to equalize the value of property between the several counties, not to review the action of the assessor or of the local board of review, or of the district court on appeal.\\\" (Emphasis supplied.)\\nII. Plaintiffs allege Appanoose County hired the J. M. Cleminshaw Company, a professional property appraisal firm, to reappraise and revalue all taxable real property in the county. This was done pursuant to order of the state tax commission. The professional appraisement was .completed in accordance with the law and regulations of the commission. The results (with certain irrelevant exceptions) were approved by the county assessor and county board of review. The abstract as furnished contained assessed valuations of all real property based on 27 percent of fair market value as thus determined.\\nPlaintiffs also allege the commission sitting as a board of review then notified the auditor of Appanoose County of proposed adjustments including a 20 percent increase on all agricultural land and a 20 percent decrease on all mercantile land. On hearing the 20 percent decrease in mercantile property was withdrawn but the increase on agricultural land was effectual for 1966, 1967 and 1968.\\nThereafter the state tax commission sitting as such ordered a 25 percent decrease in the value of all agricultural buildings. This order was entered February 22, 1966. When the Appanoose County board did not comply; another order to the same effect was formally issued May 24, 1966, and this time the county did comply.\\nPlaintiffs state the alleged purpose of the commission oi'ders was to adjust the valuations of those classes of property in the several counties to bring the valuations of those classes of property in Appanoose County to their taxable value as fixed in chapters 427 through 448, Code of Iowa, 1962; the commission refused to disclose the data, computations and information used as a basis for the orders. The sole reasons given for the orders were the county valuations were in error and not in line with those established in other counties for similar classes of property. Plaintiffs then alleged as conclusion that the actions of defendants were arbitrary, capricious, illegal and discriminatory for the following reasons:\\n\\\"(a) The increase ordered in agricultural land places a discriminatory rate of 72% of actual value on agricultural land while other property in Appanoose County bears the legal rate of 60% of actual value.\\n\\\"(b) The decrease ordered in agricultural buildings places a discriminatory rate of 45% of actual value on agricultural buildings while other property in Appanoose County bears the legal rate of 60% of actual value.\\n\\\"(c) The adjustments created an inequalization of the property tax burden of Appanoose County, Iowa.\\n\\\"(d) The Commission's order of adjustment of May 24, 1966, relative to agricultural buildings was issued without authority, the Commission having no statutory authority to order such adjustments.\\n\\\"(e) The December 29, 1965, order of the Board of Review is void for the reason that Section 441.47, Code of Iowa, 1962, is unconstitutional and void in that said Section fails to establish standards for adjustments and further constitutes an unlawful delegation of power in that same attempts to give the Board of Review authority to assess property in excess of 60% of actual value as limited in Section 421.21, Code of Iowa, 1962.\\\"\\nDefendants' motion to dismiss was \\\"sustained on all grounds\\\", which may be summarized as follows:\\n1. Plaintiffs have no standing to sue.\\n2. Plaintiffs have failed to allege wherein the commission's actions were illegal, void, arbitrary or otherwise capricious.\\n3. There is no appeal from the commission's exclusive jurisdiction to enter the order of which plaintiffs complain.\\n4. The petition asks for relief that neither the commission nor this court can gx*ant.\\n5. A final order of equalization by the board of review is not appealable.\\n6. The May 24th order of the commission was carried out by the local board of review and failure to appeal that order as by statute provided is fatal.\\nIII. Defendants assert a voluntary taxpayer's association has no standing to bring an action of this type on behalf of its members. The cases cited involve unincorporated associations. One plaintiff is a corporation. A corporation is treated as an entity separate from its stockholder or stockholders under all ordinary circumstances. Inn Operations, Inc. v. River Hills Motor Inn Co., 261 Iowa 72, 84, 152 N.W.2d 808, 815. The corporation does not claim to be a taxpayer. The other four plaintiffs allege they are taxpayers. If the individuals have standing to sue, the corporation would be subject to motion to dismiss as an improper party under rule 27, R.C.P., but the cause as to the individual taxpayers would remain. Misjoinder of parties is not ground for dismissal of action under rule 27. See Comment in Cook, Iowa Rules of Civil Procedure, page 186.\\nThe individual plaintiffs argue they have a right to maintain this action as taxpayers, their action being in form and effect a class action. It is alleged they are residents, freeholders and taxpayers of Appanoose County whose situation is similar and interest identical to that of many other residents, freeholders and taxpayers of the county. In Pierce v. Green, 229 Iowa 22, 44, 294 N.W. 237, 250, 131 A.L.R. 335, we said: \\\"There are a great many decisions in which discrimination against a taxpayer, or a class, or large numbers of taxpayers caused them to pay a disproportionate share of the tax burden, either because of the law itself, or because of the arbitrary, systematic and intentional administration of the law. In these cases, because there was no plain, speedy, and adequate remedy at law, relief was granted in equity. In many of these cases relief was granted because the due process or equal protection of the law clauses of the fourteenth amendment were violated.\\\"\\nThe four individual taxpayer plaintiffs have standing to bring action under the principles set forth in Pierce v. Green, supra, and this is a class action under rule 42, R.C.P.\\nIV. Defendant's second ground for motion to dismiss is essentially failure to state a cause of action. They assert plaintiffs have failed to allege by well pleaded ultimate facts wherein the commission's action was illegal, void, arbitrary or otherwise capricious.\\n\\\"A motion to dismiss is sustainable only where it appears to a certainty a plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claims asserted by him.\\\" Newton v. City of Grundy Center, 246 Iowa 916, 920, 70 N.W.2d 162.\\nPlaintiffs have alleged the assessment was completed by the county assessor and county board of review with the help of the Cleminshaw Company in accordance with valuation standards prescribed by law and approved by the commission and as a result the burden of property taxes was equal and uniform in the county. They further assert the two orders referred to result\\u00e9d in a discriminatory rate -of 72 percent of agricultural land and 45 percent on agricultural buildings while all other property in the county bears the legal 60 percent rate. They contend the changes were made without explanation other than that the valuations changed were in error and not in line with the valuations on the same classes of property in other districts.\\nIt is the duty of the commission to equalize the various .classes 'of property of each county with all the-other counties and to -equalize all the counties with each other. It is also the duty of the commission to see that all property in each' county is as reasonably uniformly and equally appraised and taxed as is possible. Plaintiffs assert the noted deviation in equal percentage rates results from a coinmission order having no factual basis or reason of any kind. They contend the actions of the. assessor and county board of review carry a strong presumption of correctness: .\\u2022\\nV. Defendants argue the appraisals contain no presumption of correctness at all until the tax commission has acted. The proper rule as applied to this case would appear to lie somewhere between- the extremes. Certainly the presumption of correctness is not as strong before the commission's action as after it has been confirmed. But we have little doubt the action of the county assessor and the .county board of review is entitled to some presumptive validity. The work of the regular officials is strengthened by the help of an independent firm of valuation experts. See Brennan v. Black, 34 Del. Ch. 380, 104 A.2d 777, 794. Since the state commission is en joined by law to review such work, this presumption is probably not as strong here as it is against a taxpayer challenging the validity of an assessment. But we have held where valuations were made by county officers and challenged by taxpayers there is a presumption assessing authorities have performed their duties and the assessments are correct. Deere Mfg. Co. v. Zeiner, 247 Iowa 1364, 1370, 78 N.W.2d 527, 79 N.W.2d 403; Chicago & N.W. Ry. Co. v. Iowa State Tax Comm., 257 Iowa 1359, 137 N.W.2d 246, 253. To set such assessments aside without reason would constitute arbitrary action. Plaintiffs allege the expert appraisers were hired pursuant to order of the commission and at substantial cost to the county.\\nVI. All of the foregoing observations are made pursuant to the rule set forth in Halvorson v. City of Decorah, 258 Iowa 314, 138 N.W.2d 856, 860; the well pleaded ultimate facts are taken as true. Under such rules the petition pleads a cause of action. We do not intimate the tax commission did in fact act arbitrarily, but hold only that under the facts alleged a motion to dismiss should have been denied. \\u2022 The entire nature of the action and the burden of plaintiffs is similar to that noted in Brennan v. Black, supra, where at page 408 of 34 Del.Ch., 792 of 104 A.2d, the Delaware Court said: \\\"What the taxpayer is seeking here is to set aside the entire assessment on the ground that the Board has completely disregarded the applicable constitutional and statutory provisions in the performance of its duty. In such a case the burden resting upon the taxpayer is a Very heavy one.\\\" In Chicago & N.W. Ry. Co. v. Iowa State Tax Comm., 257 Iowa 1359, 1371, 137 N.W.2d 246, we said: 'Unless the assessment is so out of line with other actual values as to give rise to the inference the authority has not properly discharged its duty, the assessment should not be disturbed.\\\"\\nVII. Plaintiffs also challenge the constitutionality of the procedure and the statutory validity of the commission's acts. The question is not whether they can successfully carry their burdens in relation to such assertions, but whether they have alleged enough to remain in court to try to do so.\\nDefendants cite People ex rel. State Board of Equalization v. Pitcher, 61 Colo. 149, 174, 156 P. 812, 820, \\\"Throughout the states of the Union, boards of equalization are not generally required to examine witnesses or to base their action on any particular kind or quantum of evidence, but may proceed in their own way and act on any information which is satisfactory to them.\\\" (Emphasis supplied by defendants.) This statement must be interpreted within the context of the constitutional due process clauses. The discretion of the commission is a legal discretion.\\nDefendants cite Hacker v. Howe, 72 Neb. 385, 390, 101 N.W. 255, 257, as follows: \\\"The question, therefore, of fraud, arbitrary or capricious action, or other alleged improper motive or conduct on the part of the different members of the board in entering the order complained of, must be eliminated in the consideration of all further questions arising in the case.\\\" But that observation came after approval of the lower court's finding the board of equalization acted in good faith and without fraud.\\nThe better rule of that case on that point is found in the opinion at page 394 of 72 Neb., page 259 of 101 N.W.: \\\"In the absence of fraud, or other misconduct, or arbitrary exercise of power equivalent thereto, the rule is universal to the effect that the discretion of assessing officers and boards of equalization cannot be controlled by the courts in collateral proceedings, nor can errors of judgment and overvaluation in the assessment of property be rightfully reviewed by them in the absence of statutes authorizing such proceedings.\\\" (Emphasis supplied.) This rule is similar to our pronouncements in Pierce v. Green, supra (where arbitrary action was alleged), and Hougen v. George, supra (where arbitrary action was not alleged).\\nYIH. Defendants base their third ground for dismissal on lack of statutory authority to appeal.\\nIt is clear there is no statutory appeal from the state board of review's equalization action taken pursuant to the mandate in Iowa Code, 1966, section 441.47. This action is not an appeal. In 2 Am. Jur.2d, Administrative Law, section 707 page 606, we find the following: \\\"The fact that a statute does not provide for judicial review of action of an administrative agency does not preclude the courts from providing such review as is necessary or required, and the courts will, in some appropriate proceeding, provide such review.\\\" See Pierce v. Green and Hougen v. George, both supra.\\nIn Hoover v. Iowa State Highway Commission, 207 Iowa 56, 60, 222 N.W. 438, where after a careful review of the rights of the individual vis-a-vis the state where such a defense is asserted, this court concluded: \\\"So, where the individuals composing a commission or board or other arm of the state violate the clear provisions of the state Constitution or statute, and attempt to appropriate private property for public use without authority, the rights of the owner may be protected by the courts through the agency of an injunction or some other suitable means.\\\"\\nWe hold a suit of this nature is maintainable under proper allegations.\\nIX. Defendants' next point would deny the jurisdiction of this court to allow any of the relief asked by plaintiffs; that is, by declaratory judgment or injunction. Where there is a justiciable controversy relief by way of declaratory judgment has frequently been afforded. Annotations, 132 A.L.R. 1108; 11 A.L.R.2d 359. A cautionary note is sounded at 11 A.L.R.2d 359: \\\"The courts will frequently refuse to enter declaratory judgments in controversies concerning taxes even though the statutes are broad enough to authorize the entry of a judgment. The courts have a discretion as to whether they will enter a declaratory judgment; th\\u00e9y should proceed cautiously in tax cases to avoid interfering with the collection of revenues; and the cases are often such that the court ought to deny declaratory relief.\\\"\\nWe have not passed on the declaratory judgment question in this field. Iowa Rules of Civil Procedure, Nos. 261 to 269, authorize declaratory judgments in very broad terms and we have often said such rules are to be liberally construed to carry out their purpose. Lewis Consolidated School District of Cass County v. Johnston, 256 Iowa 236, 127 N.W.2d 118; Wright v. Thompson, 254 Iowa 342, 117 N.W.2d 520.\\nPlaintiffs also seek injunctive relief. Rule 266 provides: \\\"Supplemental relief based on a declaratory judgment may be granted wherever necessary or proper.\\nIt is true, as defendants assert, the courts are reluctant to interfere with the tax process and will not substitute their own judgment for the judgment of the state tax commission exercised pursuant to statutory authority. It does not follow that the taxpayer is totally without relief if'the tax commission has acted illegally, arbitrarily or beyond its statutory authority. Plaintiffs do not ask the court to substitute its judgment for that of the commission. They ask for declaration the commission acted illegally. If their allegations and proof are sufficient Pierce v. Green, supra, affords basis for relief. Declaratory judgment and injunction may be appropriate if plaintiffs sustain their burden at trial.\\nX. Defendants' fifth ground also involves denial of plaintiffs' right to \\\"appeal.\\\" As noted in Division VIII this is not an appeal. What was said in that division is determinative here.\\nXI. Defendants' last position is plaintiffs seek relief that, should have been sought as to their individual assessments. In addition to our approval of class actions we note defendants' own assertion for a different purpose. \\\" [W] here a taxpayer, contesting an ad valorem tax, alleges that his property is valued at a higher percentage of actual value than other property his comparison must be between similar and like property; comparison with dissimilar property or property of a different class is not sufficient. Clark v. Board of Review of Lucas County, 242 Iowa 80, 44 N.W.2d 748.\\\" (Emphasis supplied by defendants.)\\nIt is the very fact that this is, as defendants contend, an equalization problem, and not an individual assessment problem which precludes the taxpayers from attacking the matter piecemeal as individual taxpayers. Plaintiffs claim the equalization by class was arbitrary and discriminatory, hence the approach by class action would seem not only proper but necessary.\\nXII. Since we remand this ease for further proceedings one more matter should be noted. Plaintiffs argue the tax commission's action ordering changes in valuation without an appraisal of its own is, in itself, arbitrariness. We cannot agree. The tax commission's methods of arriving at its determination are not to be dictated by any such holding. Hougen v. George,supra, lists some ten factors used by the commission in its equalization process. The use of part or all of these factors are matters for determination by the commission, not the courts.\\nBut the record is as yet silent as to what, if any, factors the commission considered. The May 24th order does not give any reason for the commission's action. It simply orders the changes made. The commission has a right to so act. But having so acted, it leaves the courts with no information contra to the allegations of fact resulting in plaintiffs' charge of arbitrary action.\\nWe may appropriately close this opinion with the concluding lines of Pierce v. Green, supra, at page 55 of 229 Iowa: \\\"By our decision we are merely holding that the motion to dismiss should have been overruled. The judgment dismissing plaintiff's action is hereby reversed and the case is remanded to the district court for such further disposition, not inconsistent herewith, as the action of the parties may properly require. Any relief which that court may grant must depend upon the record then made and the facts and conditions as they then exist.\\\" \\u2014 Reversed and remanded.\\nAll Justices concur.\"}"
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+"{\"id\": \"339450\", \"name\": \"Sloan v. Waugh\", \"name_abbreviation\": \"Sloan v. Waugh\", \"decision_date\": \"1865-04-04\", \"docket_number\": \"\", \"first_page\": \"224\", \"last_page\": \"227\", \"citations\": \"18 Iowa 224\", \"volume\": \"18\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:23:29.233612+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sloan v. Waugh.\", \"head_matter\": \"Sloan v. Waugh.\\n1. Statute of limitations: another state. In the absence of a statute to the contrary, the law is, that a debt, barred by the laws of the State in which it is contracted, is not, for that reason, barred iu another State in which suit may be brought.\\n2. - statute. Under \\u00a7 2746 of tiie Revision of 1360, such bar may bo set up to any action brought in tlxis State, when such bar was complete, under the laws of any State where the defendant has previously resided.\\n3. - homestead. A homestead, acquired after a debt was barred by the statute of limitations, and before it was revived by a new promise to pay, is not exempt from sale for its satisfaction.\\nAppeal from Monroe District Court.\\nTuesday, April 4.\\nHomestead right, as affected by statute of limitations: Revision, \\u00a72746, construed: petition in equity to restrain sale of homestead on execution. Tiie cause was submitted to the court upon an agreed statement of facts, of which the following is a condensed bat accurate abstract:\\n1st. The plaintiff and Wm. Sloan were married prior to June, 1857, and have ever since lived together as husband and wife.\\n2d. The property claimed as a homestead was acquired by Wm.-Sloan in 1850, and has ever since been used as a home, and is now so used.\\n3d. In 1837 or 1838, William Sloan was indebted to Wm. P. Waugh (defendant\\u2019s testator) in the State of North Carolina, where both parties then'resided, this debt being evidenced by notes of hand.\\n4th. On the 20th day of June, 1857, in consideration of said previous indebtedness, and for no other consideration, Wm. Sloan executed to the defendant, as executor, anew promissory note of that date. [On the same day Wm. Sloan executed to his wife, the plaintiff, a deed for the property which she now claims as the homestead.]\\n5th. On this note of June 20th, 1857, suit was brought against Wm. Sloan, and judgment rendered against him September 6th, 1859, by the District Court of Mahaska county, for $276, upon which execution issued, which was levied upon the property claimed as a homestead.\\n6th. \\u00a5m. Sloan has no other property subject to execution.\\n7th. The plaintiff and her husband, \\u00a5m. Sloan, removed to Iowa in 1848, and have resided here ever since.\\nIt is agreed that if, upon the foregoing facts, the homestead is not liable to sale on the execution, it shall be perpetually enjoined, but if thus liable, the petition shall be dismissed at plaintiff\\u2019s cosh The court below decided against the plaintiff, who appeals.\\nJames A. Seevers for the plaintiff.\\nWinslow & Lindley for the defendant.\", \"word_count\": \"1264\", \"char_count\": \"7088\", \"text\": \"Dillon, J.\\nThe statute (Rev., \\u00a7 2281) makes the home-stead liable to \\\"sale on execution for debts con, . tracced prior to the passage of this law (July 1st, 1851), or prior to the purchase of such homestead.\\\"\\nThe debt to the defendant's testator was contracted in 1837 or 1838, which was a period long prior to the passage of the homestead act or the purchase of the homestead property.\\nThe argument of the plaintiff's counsel is bottomed wholly upon the proposition that the defendant's debt was barred prior to the purchase of the homestead, or, at all events, was barred when the new note of June 20th, 1857, was executed; that, being barred, the debt did not exist; that the note of June 20th, 1857, created a new debt of that date, from which the property in question, being then and for some years before tbe homestead, would be exempt. The proposition is not maintainable, either in fact or in law. There is nothing in the agreed statement showing that the debt was barred at the time the homestead was purchased, or when the new note was executed.\\nIn the absence of a statute to the contrary, the law is, that a debt, barred by the statute of a State in which it was contracted, is not barred by the laws of another State in which suit may be brought. See leading and well-considered case of Leroy v. Crowningshield, 2 Mason C. C., 150-156, where the subject is extensively discussed by Story, J., and Crocker v. Avery, 4 Am. Law Reg., 462.\\nHence, a note might be barred against the maker in North Carolina, and he afterwards removing to Iowa, where the limitation time was longer, could not plead the North Carolina statute in bar. It was to obviate this effect, and to settle any question of this nature which might be supposed to exist, that section 2746 of the Revision was enacted.\\nThat section is as follows: \\\"When a cause of action has been fully barred by the laws of any country .where the defendant has previously resided, such bar shall be the same defense here as if it had arisen under the provisions of this chapter.\\\" '\\nTo enable a party to avail himself of this section, he must show that he has, previously to his removal to Iowa, resided in another State, by the laws of which the cause of action \\\"has been fully barred.\\\"\\nIt is not shown that there is any statute of limitations in North Carolina, nor that the note was barred thereby. The maker of the note in question was not, therefore, entitled to the benefit of section 2746, above quoted.\\nHe had not resided in Iowa, at the time the now note was given, sufficiently long (ten years) to enable him to plead the Iowa statute in bar. Rev., \\u00a7 2745. He must rely upon either the domestic or foreign bar. Under our siatute, as it stands, a defendant cannot weld the time which elapsed before he came to the State, to that which elapsed after he came to the State, and thus, by this annexation or addition, obtain the number of years requisite to amount to the limitation period provided by law. It is clear, then, that this debt was not barred by the Iowa statute. It is not shown b3r the plaintiff that it was \\\" fully barred by the laws of any other State where the debtor had previously resided.\\\" In any view of the case, then, so far as shown in this record, it was a debt, a subsisting, enforceable debt, contracted prior to the purchase of the homestead. The homestead was, consequently, liable to be sold to pay it.\\nII. If it be assumed or admitted, for the argument, that the original debt was barred, this would present a neWj kut no\\u00a1\\u00a1 to our minds a difficult, question upon the homestead act.\\nA debt, though barred, is still a debt. If it has not been paid, there is a moral obligation upon the debtor to pay. This moral obligation, so far from being weakened or destroyed, acquires rather an additional force and strength from protracted delinquency.\\nWe recognize the principle that the homestead act is to be liberally expounded, but it is not to be strained or stretched to cover cases not within either its letter or its policy. Creditors have rights, as well as debtors. Courts stand between the two, to administer the law just as it is, with even-handed impartiality, and even without sympathy.\\nIt was never intended by the homestead act that a subsequent homestead right should override and control the moral obligation of a debtor to renew an unpaid debt, and to pay the same when of sufficient ability to do so.\\nIn either view of the case, we are of the opini\\u00f3n that the petition of the plaintiff was properly dismissed.\\nAffirmed!\"}"
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+"{\"id\": \"339534\", \"name\": \"Coates v. The Galena and Chicago Union Railroad Company\", \"name_abbreviation\": \"Coates v. Galena & Chicago Union Railroad\", \"decision_date\": \"1865-04-07\", \"docket_number\": \"\", \"first_page\": \"277\", \"last_page\": \"280\", \"citations\": \"18 Iowa 277\", \"volume\": \"18\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:23:29.233612+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Coates v. The Galena and Chicago Union Railroad Company.\", \"head_matter\": \"Coates v. The Galena and Chicago Union Railroad Company.\\n1. Practice: objection to pleading: waiver. An objection, to a pleading should be taken before trial; but where an objection is made after trial, and the adverse party asks leave to amend, and does amend, he cannot afterward insist that such amendment is unnecessary.\\n2. - motion for new trial. Where there is a verdict or finding of the court for one party, whereupon the other moves in arrest of judgment, upon the ground of defects in the pleadings, and thereupon, in order to cure the alleged defect, an amended pleading is filed, and additiofial evidence submitted in support of the new allegation, to which a demurrer is interposed, and is sustained by the court, and the judgment against the defendant is arrested, and one is entered against the plaintiff for costs, a motion for a new trial is not necessary in order to present exceptions duly taken on appeal.\\n3. Pleadings: denying corporate capacity. Under \\u00a7\\u00a7 2923, 2925 of the Revision of 1869, an answer denying the corporate capacity of the defendant must set out a specific statement of faets relied upon as a denial; and must deny such capacity as existing at the time the action was commenced.\\n4. - demurrer to evidence. Before a party can. demur to evidence, the facts must be ascertained, found and admitted on the record; and the demurrant not only admit every fact found, but every conclusion in favor of the other party whieh the evidence conduces to prove, or whieh the jury might have inferred from it in his favor. -Without such, admission, the other party is not bound to join in demurrer; neither can the court render any judgment thereon.\\nAppeal from Marshall District Court.\\nFriday, April 7.\\nPlaintiff seeks to recover double tbe value of two steers killed by. defendant. Before the justice, be recovered for the full amount of bis claim; and on appeal to the District Court, there was a similar verdict. Defendant moved no arrest, beeause the pleadings did not show tbe capacity iji whieh it was sued, whether as a corporation, copartnership, or other artificial person. Plaintiff there^ upon bad leave to, and did, amend his petition, averring the corporate capacity, and introduced evidence tending to establish the same. Defendant demurred to this evidence; the demurrer was sustained; and judgment rendered against the plaintiff, notwithstanding the verdict. Plaintiff appeals.\\nT. Brown for the appellant.\\nM. II. Tyrrell and Withrow & Smith for the appellee. \\u25a0\", \"word_count\": \"1141\", \"char_count\": \"6687\", \"text\": \"Wright, Ch. J.\\nWe agree with plaintiff, that the objection to the petition should have been taken before trial. Inasmuch, however, as he voluntarily' asked leave to, and did amend, he must be held to the eage ag ma(j6) an(j js not entitled to retrace his steps and insist that such amendment was unnecessary. Nor, on the other hand, are we prepared to agree with defendant, that plaintiff should have moved for . _ . _ a new trial, m order to be beard upon the mam point made in this court. There was a verdict (or the finding of the court, which is the. same in legal effect), in his favor. Defendant moves in arrest, and thereupon, in order to cure the defect insisted upon, plaintiff amended his petition and introduced certain evidence; to which evidence, defendant demurred. This demurrer was sustained ; the judgment arrested; and defendant recovered costs. No member of the eourt has held a motion for a new trial necessary, in such a case, in order to present the exceptions duly taken on appeal. . So to bold would, in effect, require such a motion from a plaintiff after the sustaining of a motion for a new trial on the part of defendant. In this case plaintiff says, in effect, that the judgment was improperly arrested, and he is property in this court to have that question examined. And in deciding it, we have but little, if any, difficulty.\\nIn the first place, the answer denying defendant's corporate capacity is clearly not such as is required by \\u00a7 2928 and 2925 of the Revision. There is no specific statement of the facts relied on as a denial to the general allegation of defendant's corporate capacity. Not only so, but the answer does not -deny: the corporate capacity at the time the action was -brought; But treating these defects as waived by the introduction of evidence, we come to consider the demurrer interposed to suck evidence.- And here it is proper. to remark that defendant answered the original petition in. the name by which it was sued without objecting that it had no existence. The answer was sworn to by one Howe, who under oath, said that he was \\\" the superintendent, general managing agent, and was an officer of the defendant named in the action.\\\" The defendant also appeared- on the trial before-the justice by attorney, and afterwards signed the appeal bond in the capacity in which it was sued. Under these circumstances, and in view of the character of the answer interposed to the amendment to the petition, but little if any evidence should have been required of plaintiff to prove the existence of the corporation. But it will be remembered that there was a demurrer to evidence, and it was upon this that the court found for defendant, and refused to enter judgment on the verdict.\\nIt must be confessed that such a demurrergvas interposed at an unusual stage of the action. This resulted, however, from the confused manner in which the case was submitted, and appellee certainly cannot complain if we consider it as though presented at the proper time. -\\nThus viewing the case, the rule is, that before a party can demur to evidence, the facts -must be first ascertained and found and admitted on the record. By demurring, the truth of the facts found are not alone admitted, but in addition, thereto every fact and every conclusion in favor of the other party, which the evidence conduces to prove, or which the jury might have inferred from it in his favor. And without these admissions plaintiff would not be bound to join in demurrer, and even if he should, the court can pronounce no judgment thereon. (Jones v. Ireland, 4 Iowa, 63; Gould Pl., 480, 487; Hardin v. Snyder, 15 Iowa, 460.)\\nIn the case before us these rules were either entirely disregarded or overlooked, and for this if for no other cause, the action of the court was erroneous. Did the case require it we might go further and show that from the testimony, aside from any. aid from admissions or presumptions, the court erred in refusing to render judgment on the finding.\\nThe above view, however, sufficiently' disposes of the case, and it will therefore be remanded with instructions to enter judgment-in accordance with the verdict or finding.\\nReversed.\"}"
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+"{\"id\": \"341546\", \"name\": \"Howes v. Carver\", \"name_abbreviation\": \"Howes v. Carver\", \"decision_date\": \"1859-04-04\", \"docket_number\": \"\", \"first_page\": \"491\", \"last_page\": \"493\", \"citations\": \"7 Iowa 491\", \"volume\": \"7\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:36:11.579865+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Howes v. Carver.\", \"head_matter\": \"Howes v. Carver.\\nAn action for the recovery of the value of a mare, alleged to have been taken up by defendant, and which he suffered to escape, or failed to re- \\u25a0 turn, when demanded. The answer denied that defendant was guilty, . for that on, &c., at, &c., one E. found, running a large, a certain tnare, with a halter on, then and there appearing to have lately escaped from, the control of her owner; that said E. caught and confined the said mare, for the purpose of safely keeping, and returning her to her owner', then unknown ; that E. requested defendant to take the mare to his stable, and confine her ; that, at the instance and request of said E., the defendant took the mare to his stable, and .did then and there carefully keep her; that thereafter, on, &c., at., &c., she was stolen or escaped from said stable, without the fault or negligence of the defendant; and that he has had no other mare in his possession, and does not know to whom this one belonged. Demurrer to answer, on two grounds : 1. It does not show a good defense in law ;. 2. It neither confesses nor admits the allegations of plaintiff\\u2019s petition. Demurrer sustained. Held, That the demurrer was properly sustained.\\nAppeal from the Winneshiek District Court.\\nMonday, April 4.\\nPlaintiff sues for the value of a mare, taken up, as he alleges, by defendant; and which he suffered to escape, or failed to return, when demanded. The action was commenced in Allamakee county, in 1855, and a change of venue ordered, on the motion of the defendant, in 1857. After this, by leave of court, an amended answer was filod^ the defendant being required to pay all costs made since the change of venue. To this answer there was a demurrer, which was sustained. Judgment for plaintiff, and defendant appeals. The other facts appear in the opinion of the court.\\nIt. Noble and I Drummondfor the appellant.\\nJ. T. Clark, for the appellees.\", \"word_count\": \"835\", \"char_count\": \"4751\", \"text\": \"Wright, C. J.\\nThe errors assigned are: First. In sustaining the demurrer to the amended answer, and rendering judgment for plaintiff. Second. In requiring defendant to pay all costs made after the change of venue, upon filing the amended answer.\\nIf the ruling upon the demurrer, and the judgment 'which followed, were correct, then, as this judgment would entitle the plaintiff to full costs, the examination of the second question would become unnecessary.\\nThe substance of the answer is as follows : Defendant denies that he is guilty, for that on, &c., at, &c., one Evans found, running at large, a certain mare, with a halter on, then and there appearing to have lately escaped from the control of her owner; and that said Evans caught and confined the said mare, for the purpose of safely keeping and returning her to her owner, then unknown; that Evans, requested defendant to take the mare to his stable, and confine her; that, at the instance and request of said Evans, the defendant took the mare to his stable, and did then and there carefully keep her; that thereafter, on, &c., at, &c., she was stolen or escaped from said stable, without the fault or negligence of defendant; and that he has had no other mare in his possession, and does hot know to whom this one belonged. The demurrer was for two grounds: First. That the answer did not show a good defense in law. Second. That it neither confesses nor admits the allegations of plaintiff's petition.\\nWe think the demurrer was correctly sustained. If the defendant relied upon the fact, in defense, that the mare had been stolen from him, or had escaped, without any fault, or negligence of his, (granting, even, that it was necessary to set up such matter specially, and that it would excuse him, if established), he should have shown, in some manner, that the animal thus entrusted to his care by Evans, was the property of plaintiff, and the one in controversy in this action. Eor aught that appears from this answer, the mare which he alleges was stolen or escaped, was another and different animal. If he designed to avoid, he should have confessed the talcing, or have stated that if the mare of the said plaintiff was ever in his possession, he was not liable, for the reason that she was stolen, or had escaped without the fault, &c.\\nThe suggestion of defendant's counsel, that the court erred in rendering judgment for plaintiff on the demurrer, while the general issue, or plea of not guilty, ivas on file, is without weight, from the fact, that as we understand the pleadings, there is no general issue, or denial, distinct from that reached by the demurrer. It was evidently the design of the pleader, to set forth the gronnds upon which defendant claimed that he was not guilty, and not to file, as a distinct plea, a general denial of his guilt.\\nJudgment affirmed.\"}"
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+"{\"id\": \"343473\", \"name\": \"Lamb v. Drew et al.\", \"name_abbreviation\": \"Lamb v. Drew\", \"decision_date\": \"1865-01-25\", \"docket_number\": \"\", \"first_page\": \"15\", \"last_page\": \"16\", \"citations\": \"20 Iowa 15\", \"volume\": \"20\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T20:37:24.355131+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lamb v. Drew et al.\", \"head_matter\": \"Lamb v. Drew et al.\\n1. Injunction: forcible entry and detainer. A court of equity will not interfere by injunction with proceedings for forcible entry and detainer when there is no allegation of fraud, mistake, accident or surprise.\\nAppeal from, Jasper District Court.\\nThursday, January 25.\\nOn the 6th day of August, 1862, the plaintiff executed a written lease of his house and farm, for the term of three years and a half, or until the 1st day of March, 1866, to one John Holmes. About the 17th day of November, 1865, Holmes vacated the possession of the leased premises in favor of the defendant, James Kirk, who, against the consent of plaintiff, claims the use and occupancy thereof up to the close of the lease, for a consideration paid to Holmes. Plaintiff finding the premises vacant, took and now holds possession of the same. On the 20th day of November, 1865, Kirk commenced his action of forcible entry and detainer, against plaintiffs, for possession, before justice O. G\\\\ Drew, who gave judgment against plaintiff, who has appealed, but the effect of which does not stay the writ of possession. Holmes is insolvent; his sub-lease to Kirk fraudulent and void. Plaintiff is the owner of the premises and entitled to possession, and if removed will lose his rent, &c. These facts are embodied in a bill, and made the foundation of relief, to the effect that defendants might be restrained from suing out a writ of restitution under the judgment specified, and the plaintiff\\u2019s title to the premises quieted, &c.\\nA motion to dissolve the inj unction and dismiss the bill, as presenting no sufficient grounds for equitable interference, was made and sustained, and the same, by appeal, is made the subject of our revision.\\nWinslow & Idndley for tbe plaintiff.\\nQ. K. Sharp for tbe-defendants.\", \"word_count\": \"434\", \"char_count\": \"2572\", \"text\": \"Lowe, Ch. J.\\nthe motion to dismiss was weil made and properly sustained. the purpose of the bill is to restrain proceedings at law; upon wbat ground ? Not that any fraud, mistake, accident, surprise, or even irregularity had intervened therein. All the matters complained of, occurred antecedently to the action of forcible entry and detainer, and could have been urged, and it may be, were urged, as a defence to that action. There is, in the bill, no averment of any kind, impeaching the validity of the proceedings before the magistrate. the jurisdiction is not questioned; nothing subsequent to the rendition of the judgment is relied on. Indeed, scarcely the semblance of the case is made, to justify a court of equity to interfere.\\nTbe judgment will stand\\nAffirmed.\"}"
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diff --git a/iowa/4372252.json b/iowa/4372252.json
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+"{\"id\": \"4372252\", \"name\": \"State of Iowa, Appellee, v. Harry Whitney, Appellant\", \"name_abbreviation\": \"State v. Whitney\", \"decision_date\": \"1935-12-17\", \"docket_number\": \"No. 43033\", \"first_page\": \"1203\", \"last_page\": \"1212\", \"citations\": \"220 Iowa 1203\", \"volume\": \"220\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T00:50:19.193176+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kinteinger, C. J., and Albert, Powers, Donegan, Mitchell, Hamilton, and Parsons, JJ., concur.\", \"parties\": \"State of Iowa, Appellee, v. Harry Whitney, Appellant.\", \"head_matter\": \"State of Iowa, Appellee, v. Harry Whitney, Appellant.\\nNo. 43033.\\nDecember 17, 1935.\\nCarl E. Patterson, for appellant.\\nEdward L. O\\u2019Connor, Attorney General, Walter F. Maley, Assistant Attorney General, and Carl A. Burkman, County Attorney, for appellee.\", \"word_count\": \"3447\", \"char_count\": \"20021\", \"text\": \"Richards, J.\\n\\u2014 Defendant was indicted, charged with rape of Julia Scofield, a female child under the age of sixteen years, under section 12966 of the 1931 Code. The jury found defendant guilty of assault with attempt to commit rape and he was sentenced to a term of ten years in the penitentiary. From such judgment, he has taken this appeal. In support of one of his assignments of error, the defendant claims the case should not have been submitted to the jury on account of the lack of evidence, other than that of the prosecuting witness, tending to connect the defendant with the commission of the offense charged. Defendant relies on Code, section 13900, which provides in substance that a defendant in a prosecution for rape, or assault with attempt to commit rape and certain other offenses, cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense. Under this statute it is incumbent upon the state not only to establish that the offense was committed, but also to .point out and identify the defendant as the person by whom the offense was committed by evidence other than the testimony of the injured person. It is well settled that evidence of mere opportunity to commit the offense by reason of defendant's presence at the time it is claimed the crime was committed is not sufficient to meet the statutory requirement, but we have often held that in cases where it is shown that the defendant had himself created the opportunity to commit the offense, it is for the jury to determine whether such evidence connects the defendant with the commission of the offense. In the case at bar the state offered no evidence having appearance of connecting defendant with commission of the alleged offense excepting the testimony that defendant was present at the time and place prosecutrix claims she was raped, and evidence claimed by the state to be sufficient to establish that defendant created the opportunity to be so present and alone with the prosecutrix at the time it is claimed the offense was committed. In order to have a proper understanding of the state's evidence on this point, it is necessary to relate somewhat of the facts constituting the background. Defendant was forty-two years old, married, living with his wife, two stepdaughters, and his mother-in-law. Julia Scofield lived in the home of her father and mother, the other members of the family being a sister eighteen years old and a brother, known in this record as Junior, who was twelve years old at the time of the trial in March, 1935. All of these people had been residents of Des Moines for many years with occasional absences. Defendant and Mrs. Scofield, mother of Julia, were brother and sister. During many years defendant and his family and the Scofield family had been associating in the friendly and intimate manner natural to such close relationship, members of one family frequently entering the home of the other family without the formality of knocking at the door. Each family rendered help and assistance to the other in many ways. One illustration is the fact that the Scofield family, after a temporary absence, returned to Des Moines in the later part of 1934 and were taken into the home of the defendant and there lived for some time, until other arrangements could be made for their housing. Both families were in necessitous circumstances at the times involved herein and for a considerable period defendant'and also Scofield, father of Julia, were both engaged two days per week in employment in the work provided by public funds for relief of the unemployed. Both were waiters by occupation! The mother of defendant and of Mrs. Scofield being ill at her home in Osceola, on January 19, 1935, Mrs. Scofield had gone to that town to help care for the mother. Mrs. Scofield was in Osceola on the following January 21, the date on which it is claimed the offense was committed. It is shown in the evidence of both the state and the defendant that on the date last mentioned there was a letter that had been received in the Scofield home from Osceola, written by Mrs. Scofield after her arrival in Osceola to care for the sick mother of defendant and Mrs. Scofield, and upon defendant's arrival at the Scofield home on the afternoon of January 21, he inquired whether there was any mail from Mrs. Scofield and was informed by the prosecutrix that there was.\\nReverting now to the facts claimed by the state to estab lish that defendant himself created the opportunity to commit the offense, it is claimed by the state that the offense was committed on the afternoon of January 21, 1935, some time after 2:30 o 'clock. It is admitted by the state and defendant that at about 2:30 o'clock on that afternoon defendant, by telephone, called a party living across the hall from the Scofield family, and had a conversation with Junior Scofield who was called to the phone. It is the evidence of the state's witness, Junior Scofield, that in this conversation defendant asked Junior whether Scofield, Junior's father, had gone to the commissary yet, and that defendant said that he, defendant, would be over-and take Scofield to the commissary. Soon thereafter defendant arrived at the Scofield home, jtl.st after Scofield had departed to the commissary, the arrival of defendant and the departure of Scofield being so close in point of time that it was the evidence of Junior that his father could not have gotten more than downstairs when defendant came up. Defendant had an automobile he frequently drove, Scofield was without one. It is also agreed in the evidence of the state and defendant that when defendant arrived he asked whether there was any mail from Mrs. Scofield at Osceola, and was informed that there was a letter. The Scofield home at this time was on the second floor of a building, only two rooms of which were occupied as such home. When defendant arrived at this home, the only persons present were Julia and Junior Scofield. Shortly thereafter there came into the rooms neighbor children living in the building, two boys and a girl, Dolores Carr\\u00f3n, eight years old, hereinafter referred to. One of these boys was fourteen years old, the other nine. There were then in the two rooms the five children and defendant. It is the state's evidence that these children wanted to play marbles and that Junior for that purpose made a search, but his marbles were not to be found. He went into the back room to get some water, defendant being in that room. Julia was in the front room-. Junior testified that in the back room defendant said to Junior that Junior's father did not allow the kids in the house to play, to which suggestion Junior testified he paid no attention. Junior testifies that after while defendant came in and offered a penny to him and one to Dolores, and that Dolores not accepting; he, Junior, took both pennies and put them in his pocket. The state's witness, Dolores Carr\\u00f3n, a child eight years old, after testifying that she remembered the occasion when defendant was np to Junior's- home, testified to the following matters not related by Junior Scofield, namely:\\n\\\"Q. Now what did he do when he came? A. He said 'Hello' then he gave Junior a penny. 'Here is a penny, you can go and buy a stick of gum with Junior. ' ' '\\nIt is the evidence of Junior that soon after Junior pocketed the pennies all the children, including Julia, left the rooms and went downstairs and played around, leaving defendant alone in the two rooms constituting the Scofield home, where was admittedly the letter from- Osceola. The departure of Julia, with the other children going downstairs to play is not associated with any evidence of any act of defendanMFndicating a purpose to detain her or to procure her return from downstairs.- There is no evidence that Julia and the children had not departed from the rooms for an indefinite period of playing. Nest in the sequence of time is the testimony of Junior that he remained downstairs for awhile playing around and went back upstairs. He testified that when he returned upstairs to the rooms he saw Julia sitting on the bed and defendant standing in the archway and that \\\"the bed was mussed up quite a bit in the middle of the bed.\\\" He testifies that his father had made the bed that day before going to the commissary.\\nIn State v. Sells, 145 Iowa 675, 681, 124 N. W. 776, 778, considering the same subject-matter of corroboration, we had the following to say concerning the manner of weighing the evidence on that question:\\n\\\"The probative force and effect of a given fact or circumstance depends very largely upon its setting and that, which under some conditions would carry with it the effect of conelusiveness of guilt, may under other conditions be wholly without weight or significance in that direction. For instance, while opportunity alone is in no case sufficient corroboration yet opportunity is a 'material fact, and it may cut a vastly greater figure in some cases than in- others. For instance, if it were claimed that defendant assaulted the prosecuting witness in her own home or in some other place where he had no legitimate errand, proof that at or near the tim\\u00e9 in question he was seen to enter the room or place where the alleged offense occurred, and that later he made ambiguous or misleading statements con-\\ncerning his conduct, would reasonably justify a finding of his complicity in the crime. On the other hand, if, as in the case at bar, the offense is charged to have been committed in his own home or office where he had an undoubted right to be and in a room or place where he was accustomed to meet visitors or transact business with patrons, upon one of whom the assault is said to have been made, no possible sinister significance can be given to the mere fact of his presence there, and the corroboration which will satisfy the requirement of the law in such a case ought to be more direct and satisfactory than would be held sufficient were he a trespasser or an intruder.\\\"\\nIn the case at bar, the coming of defendant to, and his presence in the Scofield home, in the light of the circumstances above pointed out, cannot fairly be said to have in it anything sinister or suggestive of ill intent. From defendant's message over the 'phone, that he would come and take Scofield to the commissary, the only fair inference is, that defendant did not anticipate a situation in which he would be in the home alone with Julia, and his finding her alone with Junior was not a situation of his creation, but happened because Scofield failed to wait and had departed only a few moments before defendant's arrival. The defendant's interest in gaining information with respect to his mother's illness, as well as his offer to come and take Scofield to the commissary, would seem to make his presence in the Scofield home a natural and normal thing. There remains then whether after his arrival the defendant created an opportunity to commit the alleged offense. The state's proof on that proposition seems to consist in the evidence of the suggestion alleged to have been made by defendant to Junior that Scofield did not allow these children, then including three neighbor children, to play in the house, and the evidence of the presenting of the pennies, and the evidence of the little girl, Dolores, that defendant suggested she go with Junior and buy gum, and the evidence of Junior as to the condition of the bed when he returned, and found defendant and Julia in the room, Julia sitting on the bed, defendant standing in the archway. The state claims that by these suggestions and acts defendant created an opportunity by which he could commit the alleged offense and that therein there is sufficient corroboration that he committed the offense some time between the departure of Julia and all of the children and the alleged return of Junior. It is difficult in reviewing this situation to say at what point the duty of the court ends and merges into the exclusive province of the jury. The reason why the law requires corroborative evidence is sound, and we have stated that the rule is salutary because it is easy to charge but difficult to .disprove offenses of such character. On account of the latter statement being so true, we cannot but take into consideration that in this case the only corroborative evidence, that is essential to establish that defendant is the one guilty of the alleged offense, is that of a child twelve years old, brother of prosecuting witness, and that of another child of but eight years. In considering the weight of the testimony of the latter witness, we have the same hesitancy and doubt that was expressed by this court in Kilburn v. Mullen, 22 Iowa 498. In that case the court, speaking through Dillon, J., with reference to the alleged error of the lower court in refusing to allow to be sworn as a witness a child about eight and one-half years old, used this expression: \\\"We are not satisfied that the court made no further inquiry of the little girl, than the one concerning her age. Being considerably less than nine years of age, the presumption in favor of capacity to understand the obligation of an oath would, at most, not be very strong.\\\" It is to be noticed that in the case at bar this eight year old witness was the only witness who testified to any suggestion of defendant as to the child and Junior going away from the home to purchase gum, and it is also to be noted in her testimony above quoted that she related the transaction as one that happened when defendant came to the Scofield home, the defendant saying, \\\"Hello,\\\" and proceeding with the transaction of the pennies, whereas it is the claim of the state and the undoubted fact that this little girl was not present when defendant arrived and the transaction could not have happened when and as related by her. The testimony of Junior Scofield as to the gift of the pennies is free from any suggestion of defendant that he take the pennies and leave the house for making-some purchase and the transaction has more of a normal and innocent act than one indicating bad motive, because the state's evidence is full of instances where the defendant, apparently out of a feeling of good will toward all members of the Scofield family, had many times made small donations to various members of the family, especially the children, for small expendi tures and insignificant purposes. As to the children not being allowed to play in the house, the state makes no attempt to show that this was not a rule imposed by Scofield, called to Junior's attention by defendant. But there is the further evidence as to the condition of the bed, the evidence that Julia was sitting on the bed, that defendant was standing in the archway, and that no other persons were present. True, the commission of the offense itself can be established solely by the testimony of the person claiming to have been assaulted. But there is applicable to the ease before us the rule laid down in State v. Sells, 145 Iowa 675, 682, 124 N. W. 776, 778, that:\\n' ' if the story of the prosecutrix be in all respects clear, consistent, and natural, and convincing to the unprejudiced mind, if it has the 'ring of truth', corroboration might be held sufficient which would not be sufficient where her testimony is neither clear, consistent, convincing, or natural.\\\" In that case we also said, \\\"We are not unaware that this discussion leads us close to the border line beyond which all these considerations must be left to the jury, but the court sits to see justice done to the accused as well as to the state, and if the corpus delicti though having some support in the evidence is dependent on proof of glaringly doubtful and uncertain character and is supported by corroboration of such weakness and ineonclusiveness that a conviction thereon shocks the conscience and makes it reasonably apparent that there has been a failure of justice, a new trial should be ordered.\\\"\\nMental reservations as to the clear, consistent, and convincing character of the testimony of the prosecuting witness, whose evidence the state seeks to corroborate, results from a careful reading of her testimony. She testified before the grand jury that on an earlier date defendant had intercourse with her at a place described by her as being a point on the river. In later testimony on the trial of this case, she said that was all a big mistake, that she did not mean it at all. What impresses one is not merely that there was contradiction in her testimony, but it is the nature of the subject-matter of her testimony as to which she changed her statements. The subject-matter was whether at a point on the river she had intercourse with the defendant. If there was ever a subject-matter on which a young girl witness could not be honestly mistaken, here is such a one. Regrettably, the prosecuting witness had been deprived, without fault of hers, of some of those better associations that should be a part of a young girl's life. It is in the evidence that her parents in making a livelihood at times traveled about the country engaging in various employment and occupations at street carnivals and county fairs, taking along with them the prosecuting witness, their itinerary including parts of Minnesota, Iowa, and Missouri. It is the testimony that the prosecuting witness operated at these places some sort of a game of chance, called a \\\"hoopla joint\\\", and was more or less in contact with those engaged in the concessions at these carnivals and county fairs.\\nA consideration of the evidence offered on the part of the defendant tends, of course, to throw further controversy into the question of the light in which to view the corroborating testimony. But we have not- referred thereto in the foregoing except as the defendant's evidence accorded with that of the state. Confining our consideration solely to the state's evidence, we are constrained to say that the record is such that the corroboration contemplated by the statute should have'been established by evidence in its nature more substantial than that offered by the state. The corroborative evidence offered is inferential in character. Aside from the testimony of the witness Junior Scofield, as to the condition of the bed, and the presence of defendant and Julia alone, it is difficult to find therefrom any reasonable deduction of bad motive to create an opportunity to commit the offense. The evidence of the witness, Junior, just referred to has for its substance the condition of the bed and the presence of defendant and the prosecuting witness. Associated with these matters of testimony of Junior is the fact admitted by the state that during all of the period during which the offense could have been committed by defendant there were children playing downstairs, who had but recently left the Scofield rooms and whose reappearance at any moment was to be anticipated. The testimony of Junior that the bed was mussed up in the middle is devoid of any showing as to the extent or particulars of the alleged disarranged condition of a bed that witness says was then being used by Julia. The use by Julia necessarily resulted in some disarrangement and her contribution to the disarrangement is not shown. It all leaves the testimony of Junior where conclusions are more conjectural, than fair and reasonable inferences. We are not satisfied that the intention of the Legislature in requiring corroboration in such offenses has been met by the testimony in this case. For that reason, the case is reversed.\\u2014 Reversed.\\nKinteinger, C. J., and Albert, Powers, Donegan, Mitchell, Hamilton, and Parsons, JJ., concur.\"}"
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diff --git a/iowa/4372336.json b/iowa/4372336.json
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--- /dev/null
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+"{\"id\": \"4372336\", \"name\": \"Jones & White, Appellee, v. Saidee C. Park et al., Appellants; Clyde E. Park et al., Appellants, v. Saidee C. Park (R. E. White et al., Appellees)\", \"name_abbreviation\": \"Jones v. Park\", \"decision_date\": \"1935-10-15\", \"docket_number\": \"No. 15158; No. 15160; No. 42980\", \"first_page\": \"903\", \"last_page\": \"906\", \"citations\": \"220 Iowa 903\", \"volume\": \"220\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T00:50:19.193176+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kintzinger, C. J., and Anderson, Albert, Powers, Mitchell, Donegan, and Richards, JJ., concur.\", \"parties\": \"Jones & White, Appellee, v. Saidee C. Park et al., Appellants. Clyde E. Park et al., Appellants, v. Saidee C. Park (R. E. White et al., Appellees).\", \"head_matter\": \"Jones & White, Appellee, v. Saidee C. Park et al., Appellants. Clyde E. Park et al., Appellants, v. Saidee C. Park (R. E. White et al., Appellees).\\n(No. 15158)\\n(No. 15160)\\nNo. 42980.\\nOctober 15, 1935.\\nEei-iearing Denied January 24, 1936.\\nWilliam A. Hunt, for appellants.\\nRalph W. Burt and Jones & White, for appellees.\", \"word_count\": \"921\", \"char_count\": \"5157\", \"text\": \"Hamilton, J.\\nThis is in reality a race to see who is entitled to attorney fees in the partition of certain real estate. Cause No. 15158, which for brevity we will designate appellees' case, was filed four hours ahead of cause No. 15160, which will be designated as appellants' case.\\nCompleted service on all necessary parties was first obtained in appellants' case, and hence was first commenced, and, if there was nothing more involved in the controversy, we would have to hold that appellants' case was entitled to stand as first pending and that the other should be abated. Boone v. Boone, 160 Iowa 284, 137 N. W. 1059, 141 N. W. 938.\\nHowever, Clyde E. Park, plaintiff in appellants' case, had no present vested interest or title in the real estate involved. He had at one time owned this and other real property, but some time prior to the commencement of this action, in a divorce suit between said Park and his wife, Saidee C. Park, the court by decree divested him of all right, title, or interest in this property and awarded same to his wife, Saidee C. Park, and Jones & White et al., her attorneys, as alimony and to apply on attorneys' fees.\\nThereafter they succeeded in patching up their domestic infelicity and remarried, but there was no reconveyance of the property. This is all revealed by a perusal of appellants' petition, and also by the evidence. Appellees promptly filed a motion to dismiss on the ground that plaintiff, standing in the relationship of husband of the title holder, had no such interest in the real property involved as to entitle him to maintain the action or to the reli\\u00e9f demanded. Counsel for appellants, apparently recognizing- this motion was well taken and would have to be sustained, did not wait for a ruling on the motion, but, no doubt with grave financial misgivings, proceeded to bestir himself. He filed what is denominated \\\"Amended and Substituted Petition\\\", by which he dismissed his cause of action \\\"without prejudice\\\" as to his wife, Saidee C. Park, and brought her in as a party plaintiff with himself, and reiterated the allegations of the original petition. To this the appellees filed a plea in abatement alleging the husband never had any right to maintain the partition suit against his wife and her cotenants, and that the filing of the amended and substituted petition was in fact the commencement of a new action completely changing the issues, and that, \\\"where an amendment to a petition states a new cause of action, such new cause of action is deemed to have been started as of the date of the filing of the amendment.\\\"\\nThe trial court held with appellees and abated appellants' cause of action and granted partition in appellees' case.\\nWe have carefully read the briefs and arguments and find nothing substantial upon'which appellants rest their contention of priority in point of time in the pendency of their action. The appellant Clyde E. Park had no such interest as entitled him to institute the suit in the first place. He was not a joint owner or tenant in common of this real estate, and under our statute (Code 1931, section 12310 et seq.) partition can only be had when the land is so owned. Smith v. Runnels, 97 Iowa 55, 65 N. W. 1002; Johnson v. Moser, 72 Iowa 523, 34 N. W. 314; Henderson v. Henderson, 136 Iowa 564, 114 N. W. 178; Boone v. Boone, supra; Frahm v. Seaman, 179 Iowa 144, 159 N. W. 206; Shillinglaw v. Peterson, 184 Iowa 276, 167 N. W. 709; Traversy v. Bell, 195 Iowa 1243, 193 N. W. 439.\\nIt is equally clear that an entirely new and independent cause of action was started by the amended and substituted petition, and under our prior holdings is deemed commenced as of date of the filing of the amendment. The court in the case of Box v. Chicago, R. I. & P. Ry. Co., 107 Iowa 660, 665, 78 N. W. 694, 696, in discussing what constitutes a new cause of action said:\\n\\\"An action is a proceeding in court. Code, section 3424. The came of the action is the fact or the facts that 'justify it or show the right to maintain it.' Hence, when a material fact, necessary to a recovery, is- omitted from a petition, we say it does not state a cause of action.\\\" (Italics ours.)\\nSee, also, as bearing on this question, Brooks v. Seevers, 112 Iowa 480, 84 N. W. 517; Van Patten v. Waugh, 122 Iowa 302, 98 N. W. 119; Pease v. Citizens State Bank, 210 Iowa 331, 228 N. W. 83; Cornick v. Weir, 212 Iowa 715, 237 N. W. 245; Page v. Koss Construction Co., 219 Iowa 1017, 257 N. W. 426.\\nWe fear appellant in his haste must find himself in a place illustrative of the scriptural statement, \\\"The first shall be last and the last shall be first.\\\"\\nWe are satisfied the action of the trial court was right, and the case is affirmed. \\u2014 Affirmed.\\nKintzinger, C. J., and Anderson, Albert, Powers, Mitchell, Donegan, and Richards, JJ., concur.\\nParsons, J., takes no part.\"}"
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+"{\"id\": \"4375233\", \"name\": \"First Trust Joint Stock Land Bank of Chicago, Appellant, v. John H. Merrick et al., Appellees\", \"name_abbreviation\": \"First Trust Joint Stock Land Bank v. Merrick\", \"decision_date\": \"1936-04-07\", \"docket_number\": \"No. 43291\", \"first_page\": \"585\", \"last_page\": \"591\", \"citations\": \"221 Iowa 585\", \"volume\": \"221\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:28:57.794959+00:00\", \"provenance\": \"CAP\", \"judges\": \"Donegan, C. J., and Mitchell, Kintzinger, Farsons, Hamilton, Richards, Albert, and Anderson, JJ., concur.\", \"parties\": \"First Trust Joint Stock Land Bank of Chicago, Appellant, v. John H. Merrick et al., Appellees.\", \"head_matter\": \"First Trust Joint Stock Land Bank of Chicago, Appellant, v. John H. Merrick et al., Appellees.\\nNo. 43291.\\nApril 7, 1936.\\nWhitney, Whitney & Stern, for appellant.\\nMcCulla & McCulla, for appellees L. E. and Emma Julius.\\nJohn Loughlin, for appellee John H. Merrick.\\nA. R. Nelson, for appellee Cherokee County.\", \"word_count\": \"1887\", \"char_count\": \"10960\", \"text\": \"Stiger, J.\\nOn November 25, 1933, plaintiff filed its petition in foreclosure of a real estate mortgage.\\nDefendant L. E. Julius, owner of the premises, filed.his answer, alleging that on November 17, 1933, he leased the premises to Donald and Myrtle Blair for the year beginning March 1, 1934, and that on the same day he assigned said lease to W. P. McCulla, intervener, for a valuable consideration.\\nIn answer to the petition of intervention by W. P. McCulla claiming the 1934 rents under the assignment thereof from Julius, the plaintiff alleged that such assignment, if there was an assignment, was colorable only, without consideration, and made for the sole purpose of preventing plaintiff from procuring a receiver.\\nOn March 23, 1934, a decree of foreclosure was entered denying plaintiff's application for a receiver and finding that McCulla, intervener, was the owner of the 1934 lease.\\nOn May 19, 1934, plaintiff, at sheriff's sale under special execution bid $13,734.51, and received a sheriff's certificate of sale for the land involved in the foreclosure action. There was a deficiency judgment of $2,000.\\nOn February 27, 1935, the defendant Julius filed his application for an extension of the period of redemption under chapter 110, Laws of the Forty-sixth General Assembly.\\nThe plaintiff filed its resistance to the application, which reads as follows:\\n\\\"Comes now the plaintiff and resists the application of L. E. Julius, for continuance and as grounds therefore states:\\n\\\"That the plaintiff makes the petition, answer, all pleadings filed and all proceedings had in said cause, a part of this resistance, by reference.\\n\\\"That the said L. E. Julius has refused to do equity, that he wrongfully disposed of the entire 1934 rentals, thereby depriving the plaintiff of any portion whatsoever of the 1934 rentals. That he has refused to pay the taxes.\\n\\\"That to grant said L. B. Julius a continuance under the provisions of House File 84 of the Acts of the Forty-sixth General Assembly [chapter 110] would be inequitable to the plaintiff. That the defendant is estopped from obtaining relief under the provisions of House File 84 of the Acts of the 46th General Assembly, because of his conduct in the past and because of his refusal to do equity.\\n\\\"Wherefore, plaintiff prays that the application for extension of redemption be denied.\\\"\\nThe applicant, Julius, filed a reply, denying the allegations of the resistance and stating that the question of the disposition of the 1934 rentals was disposed of by this court adversely to plaintiff's contention, that no appeal was taken, and that the question is now res adjudioata. The plaintiff thereafter filed an amendment to the resistance, stating in substance that the defendant L. E. Julius did not file a motion for continuance under chapter 182 of the Laws of the Forty-fifth General Assembly, and that, after the sale of said premises, the said Julius did not file any application for an extension of the redemption period under chapter 179 of the Acts of the Forty-fifth General Assembly; that chapter 110, Laws of the Forty-sixth General Assembly, applies only to cases where an application for an extension was pending prior to March 1, 1935; and that the case at bar does not come under the provisions of said chapter 110.\\nOn July 12, 1935, the trial court granted L. B. Julius, owner of the premises, an extension of the period of redemption to March 1, 1937, and the plaintiff appeals from this order.\\nThe trial court found that Mr. McCulla, the intervener, purchased the 1934 lease for a valuable consideration.\\nThe assignment of rent by the owner prior to the commencement of a foreclosure action does not, of itself, defeat the owner in his attempt to take advantage of the moratorium laws of this state. Prudential Ins. Co. v. Brennan, 218 Iowa 666, 252 N. W. 497.\\nIn the Brennan case, supra, the assignment of the rents was for the first year of the extended period of redemption.\\nIn this case the owner, Julius, did assign the 1934 rents, but the land was not leased nor the lease assigned for any year of the period of redemption. The plaintiff-appellant insists that the record shows that it is impossible for Julius to make redemption by refinancing or sale or otherwise within the extended period of redemption.\\nThe appellant purchased the real estate at sheriff's sale for $13,734.51. E. F. Ducharme, field man for appellant, was the only witness that testified to the value of the farm. In his opinion the value of the buildings is $2,450 and the value of the land is $10,000. He stated the buildings were in fair to good condition.\\nThe record shows that Julius owns personal property of the value of $3,000, encumbered with a chattel mortgage of $800. In addition, he' owes about $300. His equity in the personal property is around $2,000, which, with the value of the farm fixed at $12,450, brings the total vaule of his property to $14,450.\\nJulius has a complete line of farm machinery, 65 hogs, 34 head of cattle, including 15 milch cows, and from 10 to 12 horses.\\nThe amount necessary to redeem is $13,734.51 and interest plus around $900 paid by plaintiff on taxes since the execution sale.\\nA commitment of $7,500 was made by the Federal Land Bank.\\nThe purpose of the statute is to afford the owner of the land, who is in financial distress, an opportunity to refinance or pay the indebtedness and save his farm within the moratorium period. If the financial circumstances of the owner are such that the court can reasonably hold that there is no possibility of saving the property and that he is hopelessly insolvent, the application will be denied. Federal Land Bank v. Wilmarth, 218 Iowa 339, 252 N. W. 507, 94 A. L. R. 1338.\\nIn the Wilmarth case, supra, the court states on page 353 that:\\n\\\"When determining what is or is not good cause, the district court must keep in mind the purposes of the statute, together with the fact that under the statute the granting of the continuance is to be the rule.\\\"\\nClearly the appellee Julius is not hopelessly insolvent. We cannot reasonably hold that there is no possibility, under the record in this case, that Julius cannot save his farm.\\nAppellant claims Julius failed to do equity.\\nJulius purchased this farm in 1929, and went into possession March 1, 1930. He paid two years taxes and interest to November, 1931. In 1935 the fences were washed out by high waters, and Julius repaired the damage, and the farm is fenced and cross-fenced hog tight. The failure of Julius to do equity, as claimed by appellant, was his failure to pay interest and taxes in 1931 and the years following. These are the years that inspired the Forty-fifth General Assembly in February, 1933, to declare an emergency and enact chapters 179 and 182 of said session. It was the inability of farm owners to pay interest and taxes because of low prices of farm products, and the flood of foreclosure suits resulting therefrom, that induced the legislature to act.\\nIt would not be logical to hold that the very cause of the wholesale foreclosure of real estate mortgages, to wit, the inability to pay interest and taxes which induced the enactment of the moratorium statutes, would be an adequate cause for refusing to an owner the benefit of the laws enacted to meet the emergency.\\nSince Julius has been the owner of the farm, he has sold over $614 worth of gravel from this farm and given the proceeds to the appellant.\\nAppellant's final contention is that Julius does not come within the benefit of chapter 110 of the Forty-sixth General Assembly because he failed to file an application for a continuance under chapter 182 of the Forty-fifth General Assembly, citing Wade v. Farrell, 270 Mich. 562, 259 N. W. 326, 904.\\nIn the Wade case, supra, there was a petition for relief under section 4 of the Mortgage Moratorium law (Pub. Acts Mich. 1933, No. 98). The material portions of the law to the case are sections 2 and 4.\\n\\\"Sec. 2. In all actions for the foreclosure of real estate mortgages now pending in which decree has not been entered the court, upon application, may from time to time order such cause continued,\\\" etc.\\n\\\"Sec. 4. In any case of mortgage foreclosure now pending in a court of chancery in which the equity of redemption has not expired, the court, upon application may grant such order or orders or continuance,\\\" etc.\\nThe court held that on the effective date of the act, June 2, 1933, the suit was pending and no decree had been entered; that the case was clearly within section 2 of the act, and the applicant's only relief was under section 2 by an application for a continuance, and that relief could be had under section 4 only in a case where decree had been entered at the time of the effective date of the act. The court in considering said sections 2 and 4 states that, if on the effective date of the act no decree had been entered, relief must be had under section 2, but, if decree had been entered on June 2, 1933, then relief must be had under section 4.\\nThe wording of the- Iowa Moratorium act is quite different than the wording of the Michigan Moratorium act. Chapter 179, Forty-fifth General Assembly, is a separate enactment providing for the extension of the period of redemption of real estate, and section 1 reads:\\n\\\"Section 1. In any action, for a real estate foreclosure of a mortgage or a deed of trust, which has been commenced in any of the courts, and in which a decree has been or may hereafter he entered, but the redemption period, as now provided, has not expired, upon application of the owner or owners of such real estate, the court shall, ' ' etc.\\nUnder this chapter, the redemption period may be extended in an action in which a decree is entered after the effective date of the act, which was March 18, 1933. In this case the decree was entered March 23, 1934, and after the effective date of said chapter 179. Furthermore, the applicant, Julius, signed his application for an extension of the redemption period under chapter 110 of the Forty-sixth General Assembly. We do not believe the legislature intended to deprive an owner of relief under chapter 179 by reason of his failure to proceed under chapter 182 of the Forty-fifth General Assembly.\\nThe district court did not abuse its discretion in granting an extension of the period of redemption to the owner, L. E. Julius, who resides on this farm as his homestead, and the order of the trial court granting an extension of the period of redemption of March 1, 1937, is affirmed. \\u2014 -Affirmed.\\nDonegan, C. J., and Mitchell, Kintzinger, Farsons, Hamilton, Richards, Albert, and Anderson, JJ., concur.\"}"
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@@ -0,0 +1 @@
+"{\"id\": \"4377306\", \"name\": \"Carter v. The Kansas City, St. Joseph & Council Bluffs Railway Company\", \"name_abbreviation\": \"Carter v. Kansas City, St. Joseph & Council Bluffs Railway Co.\", \"decision_date\": \"1884-12-09\", \"docket_number\": \"\", \"first_page\": \"287\", \"last_page\": \"289\", \"citations\": \"65 Iowa 287\", \"volume\": \"65\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:01:36.817955+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Carter v. The Kansas City, St. Joseph & Council Bluffs Railway Company.\", \"head_matter\": \"Carter v. The Kansas City, St. Joseph & Council Bluffs Railway Company.\\n1. Negligence: pleading: evidence. Where plaintiff averred negligence of one kind, it was erroneous to permit him, over defendant\\u2019s objection, to introduce testimony as to negligence of a different'kind, not referred to in the petition.\\n2. Railroads: fires from engine : means used to prevent : evidence. Where defendant was charged with negligence in the construction and use of a locomotive, whereby damage by fire resulted to plaintiff, it should have been allowed to show why a netting finer than the one actually used by it to prevent the escape of sparks could not, be used without interfering with the working capacity of the locomotive.\\nAppeal from Shelby District Court.\\nTuesday, December 9.\\nAction for damages sustained by a fire alleged to have been set out by the defendant. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.\\nSapp & Pusey, for appellant.\\nP. P. Kelley and Macy & Gammon, for appellee.\", \"word_count\": \"725\", \"char_count\": \"4235\", \"text\": \"Adams, J.\\nI. The plaintiff averred in his petition that the defendant's \\\"freight train was so carelessly and negligently managed and operated that the sparks from the engine set fire to and burned ninety tons of etc. On trial, the evidence tended strongly, if not conclusively, to show that the fire was not set out by reason of any defect in the appliances used, or by reason of any negligence of the defendant in the manner in which the train was managed or operated. But the plaintiff was allowed to introduce evidence tending to show that defendant was guilty of negligence in allowing dry grass and other combustible material to accumulate on the right of way, and that a spark, though perhaps escaping without the negligence of the defendant, set fire to the combustible material negligently left on the right of way. The defendant objected to the introduction of such evidence, but the objection was overruled, and the overruling of the objection and admission of the evidence are assigned as error.\\nWhether it was necessary for the plaintiff to aver that the defendant was guilty of negligence, and, if so, whether it was necessary for him to aver in what the negligence consisted, we need not determine. Having averred negligence, and in what the negligence consisted, we think that the plaintiff should not have been allowed to show other negligence. The defendant, it seems to us, was justified in assuming that the issue was not broader than that which the plaintiff, by his express averments, had seen fit to tender. If we should hold that the plaintiff might aver one kind of negligence and prove another, we should not only hold, in effect, that the averment had no significance, but that it was allowable for the plaintiff to so frame his petition that it should be well calculated to deceive and mislead the defendant. In allowing the evidence as to combustible material in the right of way, we think that the court erred. As tending to support our view, see Denton v. Chicago, P. I. & P. R. Co. 52 Iowa, 161.\\nII. The evidence showed that the defendant, to prevent the escape of sparks, used a cone and netting, but that such appliances, though useful, were not effectual to Prevent the escape of sparks entirely. For the purpose of showing that the defendant was not negligent, notwithstanding the escape of sparks, it asked its engineer a question in these words: \\\" Now, suppose that there was a netting of much smaller mesh used over the smoke-stack, and a larger cone, \\u2014 one that would more obstruct the stack, what effect would that have upon the draft of the engine, if any \\u2014 upon its capacity to perform its work?\\\" This question was objected to by the plaintiff, and the objection was sustained, As a netting might doubtless have been used with so. small a mesh as to prevent all escape of sparks, and as sucli fact must have been obvious to the jury, and probably present to tlieir mind, we think, that the defendant\\u00a1 should have been allowed to show why such netting could not properly be used.\\nSome other questions are presented, but, as they may not arise upon another trial, and as we might not be agreed in relation to them, we omit to consider them.\\nReversed.\"}"
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diff --git a/iowa/4411213.json b/iowa/4411213.json
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+"{\"id\": \"4411213\", \"name\": \"Magdalen Hackman, administratrix of estate of Clem Hackman, appellee, v. Donald Beckwith et al., appellants\", \"name_abbreviation\": \"Hackman v. Beckwith\", \"decision_date\": \"1954-05-04\", \"docket_number\": \"No. 48484\", \"first_page\": \"791\", \"last_page\": \"809\", \"citations\": \"245 Iowa 791\", \"volume\": \"245\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:53:36.176877+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"Magdalen Hackman, administratrix of estate of Clem Hackman, appellee, v. Donald Beckwith et al., appellants.\", \"head_matter\": \"Magdalen Hackman, administratrix of estate of Clem Hackman, appellee, v. Donald Beckwith et al., appellants.\\nNo. 48484.\\n(Reported in 64 N.W.2d 275)\\nMay 4, 1954.\\nDonohue & Wilkins, of New Hampton, for appellants.\\nZastrow, Noah & Smith, of Charles City, for appellee.\", \"word_count\": \"6227\", \"char_count\": \"35807\", \"text\": \"Thompson, J.\\n\\u2014 On November 20, 1952, plaintiff's decedent, Clem Hackman, was employed as a truck driver by the Diamond Transportation System, Inc. He was forty-five years of age, in good health, and had a life expectancy of 25.21 years. In the late afternoon of the date in question he drove a semitrailer outfit belonging to his employer, loaded with four farm tractors, eastward from Charles City on Highway No. 18. The truck and tractor combined weighed about 37,000 pounds, and were about forty-five feet in length. About eight miles east of Charles City the highway crosses the tracks of the Milwaukee railroad on a viaduct. On this viaduct he met a ton and one-half Chevrolet truck, loaded with beer cases and containers and perhaps some other merchandise, owned by defendant Capital Tobacco Corporation and driven by defendant Donald Beckwith. This truck was proceeding west. It was twenty feet long, and weighed, empty, about 12,000 pounds. It had a heavy box, eight by twelve, and seven feet high, built on the rear of the chassis for the purpose of containing the merchandise being transported.\\nA collision occurred on the viaduct between the two trucks, resulting in serious injuries to plaintiff's decedent from which he died nine days later without regaining consciousness. This action was brought by the administratrix of his estate. Other facts, many of which, are quite material, will be set out in the various divisions of the opinion as they become pertinent.\\nI. Defendants-appellants' first assignment of error raises the proposition that the court was in error in refusing to direct a verdict for them at the close of all the testimony and in denying their motion for judgment notwithstanding the verdict. The only direct evidence in the ease was furnished by the driver of appellant's truck, Donald Beckwith. Each driver was alone in his vehicle at the time of the collision. No other witness claims to have seen the actual collision, and the court told the jury in its instructions that appellee relied upon circumstantial evidence. This means her case must be supported by evidence such as to make her theory of causation reasonably probable, not merely possible, and more probable than any other hypothesis based on such evidence. Smith v. Darling & Co., 244 Iowa 133, 136, 56 N.W.2d 47, 49, and cases cited. But this means only the evidence must be such as to raise a jury question within the limits of the foregoing rule; it need not be conclusive. Smith v. Darling & Co., supra. It is of course so well established as to require no citation of authority that we must accept the evidence in its construction most favorable to the plaintiff. Ordinarily, disputed questions of fact from which reasonable minds might draw varying conclusions are for the determination of the jury. Roller v. Independent Silo Co., 242 Iowa 1277, 1282, 49 N.W.2d 838.\\nIt therefore becomes important to consider the evidence in more detail. The viaduct upon which the collision occurred is twenty-four feet wide, with a sixteen-inch curb on each side, restricting the. actual width available for vehicles to twenty-one feet and four inches. The Diamond truck came to rest after the collision in about the center of the viaduct east and west, with all of its wheels on the right-hand side against the south curb. This means it was as far to the right of its right-hand side of the road as it was possible for it to get. The appellants' truck was about one hundred twelve feet farther to the west, just off the west end of the viaduct, slanting diagonally to the northwest across the highway with its left rear wheels on or slightly across the center line of the highway and its front end on the shoulder on its right-hand side. Further facts shown in evidence which were either disputed or not conceded by the appellants were that there was a series of scuff marks along the south curb immediately at the rear of the Diamond truck, extending back some fifty-six feet, from which the deduction might properly be made that the truck had been driven so' close to the curb on its right-hand side as to rub against it. The tires on its right-hand side also showed abrasions. The rear wheels of the tractor on this combination were torn entirely loose from the vehicle, being driven back under the tank. The front end of the tractor was down on the pavement. It is urged from this the truck, weighing as it did some 37,000 pounds, could have moved only a slight distance after the crash, and that the probabilities are strong it could not have been across the center line at the time of the collision and then been moved back to its resting place with its entire length of forty-five feet snug against the curb on its right-hand side.\\nCertain marks were also testified to by plaintiff's witness Ingram. This evidence showed that they ran from a point on the south side of the roadway, and somewhat east of the final resting place of the Diamond truck, to the rear wheels of the defendants' truck. The collision occurred about 5:15 p.m., and at that time of the year dusk was falling. While the weather was clear, the evidence shows there was some moisture on the pavement, caused by frost or dew, and in this moisture the witness Ingram testified he saw the tracks leading from a point which would have been on appellants' left-hand side to the rear wheels of their truck as it finally rested at the west end of the viaduct.\\nThese tire tracks, the respective weights of the two trucks, the fact that the outfit driven by the plaintiff's decedent was a combined unit, which would make it most difficult to drive both the tractor and trailer to the right after the collision, so that they would end in a straight line against the curb, and the nature of the damage sustained by the respective vehicles, .wc think clearly made a jury question, both upon the issues of defendants' negligence and of plaintiff's contributory negligence. It was not necessary for appellee to negative every possible theory or conceivable hypothesis which might be devised to account for decedent's injury. Hayes v. Stunkard, 233 Iowa 582, 587, 588, 10 N.W.2d 19, and eases cited. The appellants argue ably and ingeniously that the distances shown, the place of the debris upon the pavement immediately after the accident, and many other details negative appellee's showing to the point where it vanishes, and a peremptory verdict should have been returned for them. As to the debris, we note the testimony of Sheriff IL J. Daly, who said that before some of the pictures, showing most of the debris from appellants' truck on its right-hand or the north side of the road, were taken, the south side had been cleaned off so that traffic might move through. When he first observed the scene, before anything in the way of refuse had been moved, it was strung along the way from the rear of the Diamond truck to the rear of the Capital Tobacco truck; about as-much on one side as on the other. This seems to strengthen rather than to weaken appellee's case. Practically all the debris came from appellants' truck, which some evidence shows careened on down the road from the point of collision to its final resting place. In any event, the deductions to be made from the positions of the vehicles as they come to rest after an accident, the tracks found on the roadway, and the location of dirt and debris from collisions, are ordinarily for the jury. Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 55 N.W.2d 528. The appell\\u00e1nts have furnished us with a quotation from Shafer v. State, 171 Md. 506, 509, 189 A. 273, 274, which we think appropriate here: \\\"Reliance upon such evidence [marks on the highway] alone for judicial determination of movements leading to a collision is beset with dangers, but there would seem to be no room for doubt that in some eases it might amount to proof of negligence.\\\" We think this is such a case, particularly when there is much other substantial evidence pointing in the same direction. We stress the word \\\"might\\\" in the foregoing quotation; whether it does amount to such proof is for the jury to say; we hold no more than that.\\nII. Appellants' next complaint is of the action of the trial court in instructing on the no-eyewitness rule. It is contended that the evidence did not warrant an application of the rule, aucl further that the instruction ivas erroneous as a matter of laAv even if the rule was properly in the case.\\nThe only possible eyewitness to the accident and the events immediately preceding it was the defendant driver, Donald Beckwith. The substance of his testimony is this: \\\"I come on around and made my swing and as I was over the viaduct I looked and here was a tractor coming and I swerved to the right. There was one impact and it just seemed like a second and there was a second one and I don't know what happened. # * It appeared to me like he was oA'er the black line and I made a swerve to try to avoid the collision.\\\"\\nThis evidence was not sufficient to remove the no-eyewitness rule from the case. The court properly submitted the matter to the jury to find whether there was in fact an eyewitness. The facts shown by Beckwith's testimony are no stronger, if as strong, in favor of appellants' contention that there was no occasion for the application of the rule than were those in Hayes v. Stunkard, supra; Davidson v. Vast, 233 Iowa 534, 10 N.W.2d 12, and Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225. In each of these cases Ave held the question \\u2014 -whether there was- an eyeAvitness \\u2014 was properly submitted to the jury. It is evident in the case at bar Beckwith did not see, or at least did not so testify he saw, the decedent at all times material. His observation was a most fleeting one and was confined to the position of the vehicle driven by plaintiff an instant before the crash. If we grant, as a majority of this court held in Rickabaugh v. Wabash Railroad Co., 242 Iowa 746, 44 N.W.2d 659, that an eyewitness who observes the course and operation of a motor vehicle immediately before an accident in Avhich it is involved also observes the conduct of the driver and so his testimony makes the no-eyewitness rule inapplicable, we still may not eliminate the rule here. In Hittle v. Jones, 217 Iowa 598, 601, 250 N.W. 689, 691, Ave said: \\\"Nevertheless, if the witnesses who attempt to describe decedent's actions in a case of' this kind did not see him during all the material moments of his actions, the inference of due care, may be draAvn under the rule relating to the instinct of self-preservation.\\\"\\nThe instruction given by the court on this point seems to have been identical in substance and almost in actual wording with that given in Azeltine v. Lutterman, 218 Iowa 675, 682, 683, 254 N.W. 854, 858. The defendants complain the court failed to clearly instruct the jury the inference under the rule was to be considered only in connection with the issue of plaintiff's contributory negligence. The final paragraph of the instruction did exactly that. Further attack is made on the instruction because it is said the jury was not told the rule should not be applied if they found there was an eyewitness. The objection is hypercritical. We said in Azeltine v. Lutterman, supra, page 683: \\\"Of course, it is elementary that such inference cannot be indulged in the event there are eyewitnesses to the occurrence or accident.\\\" We approved the instruction when given in the Azeltine case and we approve it in the ease at bar.\\nIII. The third error assigned by appellants consists of many criticisms of Instructions Nos. 4, 5, 6 and 7 given by the court, and its refusal to give certain requested instructions. It is impossible within the reasonable length of this opinion to discuss these matters in detail. They are largely hypercritical, and many of them are answered by reference to the long-established and thoroughly understood rule that instructions are to be read as a whole. Thus, it is charged the court failed to instruct properly as to the meaning of the terms \\\"burden of proof\\\", \\\"preponderance of the evidence\\\", and \\\"proximate cause\\\", in the fourth, fifth, sixth and seventh instructions and failed to give their application to the evidence. Instruction No. 12 advised the jury it must consider the instructions as a whole, and each instruction must be considered in harmony with and in the light of all others. Instruction No. 4 clearly and properly defined the terms set out and Instruction No. 14 gave their application to the case at hand. No more was required. Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Pestotnik v. Balliet, 233 Iowa 1047, 10 N.W.2d 99; Lathrop v. Knight, 230 Iowa 272, 297 N.W. 291.\\nIt is further said that in Instruction No. 6 the court instructed upon legal excuse, when there was no such issue in the case. Keller v. Dodds, 224 Iowa 935, 949, 950, 277 N.W. 467; Deweese v. Iowa Transit Lines, 218 Iowa 1327, 256 N.W. 428, and other eases are cited upon the point that the giving of such an instruction when there is neither pleading nor proof of legal excuse is reversible error. Passing the question whether Instruction No. 6 did in fact go into that matter, we find no proper exception taken which clearly advised the court of the complaint made. In addition, appellants' requested Instruction No. 6 was in substance and meaning identical with that given by the court to which objection is now made; and it is elementary a litigant cannot complain of error which he has invited or to which he has assented.\\nAgain, appellants say the court erred in using the word \\\"proximately\\\" in stating the contributory negligence of the plaintiff's decedent which would bar recovery. The first sentence of Instruction No. 7 says: \\\"By 'contributory negligence' is meant the negligence of the person injured which contributed in any way or in any degree in producing the injury complained of.\\\" At other points, however, the court used the words \\\"directly or proximately\\\" contributing in any degree to the injury. As is pointed out in Hamilton v. Boyd, 218 Iowa 885, 886, 256 N.W. 290, contributory negligence such as will bar a plaintiff's recovery need not be a proximate cause of the injuries; it is enough if the negligence contributes in any way or degree. But here the instruction was in the alternative; the jury was told that if the negligence was either direct or proximate it would be sufficient to require a finding for defendant. Stilson v. Ellis, 208 Iowa 1157, 1167, 225 N.W. 346, 351. We do not approve the use of the word \\\"proximate\\\" in connection with contributory negligence; but there was no prejudicial error in its use here. We find no merit in the matters urged at this point or in the refusal to give the requested instructions.\\nIY. The court in its Instruction No. 8 defined circumstantial evidence and told the jury appellee relied upon it. It then gave the rule set forth in Division I of this opinion, that when circumstantial evidence is relied upon plaintiff could prevail only if a preponderance of the evidence supported her theory so as to make it reasonably probable, not merely possible, and more probable than any other conclusion based upon the same facts and circumstances. The jury was then referred to Instruction No. 14, in which the court told them the necessary elements of appellee's case. Appellants now complain the court gave the jury an insufficient guide in applying the law; that if it found it impossible to determine how the accident happened its verdict should be for the defendants. The instructions, read as a whole, made this clear, and the complaint lacks merit.' We think the language of Justice Weaver in Law v. Bryant Asphaltic Paving Co., 175 Iowa 747, 753, 157 N.W. 175, 177, 7 A. L. R. 1189, is appropriate:\\n\\\"It is probably true that no instruction or charge to a jury has ever been drawn with such perfect clearness and precision that an ingenious lawyer,'in the seclusion and quiet of his office, with a dictionary at his elbow, cannot extract therefrom some legal heresy of more or less startling character. The real test of the meaning and effect of an instruction for the purpose of review by an appellate court ought to be, and we think is, the idea which the language objected to is fairly calculated to convey to the minds of jurors drawn from the ordinary walks of life; and the fact that, upon a minute, technical or hypercritical analysis, some other interpretation can be placed thereon, may be disregarded.\\\"\\nY. The negligence charged against appellants by the petition was found in four specifications: (1) Failure to yield one half of the traveled portion of the highway; (2) failure to keep a proper lookout and to observe plaintiff approaching; (3) failure of defendant driver to have the truck under control- and on the right-hand side of the roadway upon approaching a curve; and (4) failure to drive the truck at a careful and prudent speed under the conditions then and there existing. Appellants' fifth assignment of error concerns the refusal of the court to sustain their motion to withdraw specifications Nos. 2, 3 and 4; and further that the court did not submit No. 3 as pleaded by plaintiff, but omitted therefrom the words \\\"and on the right-hand side of the roadway\\\" so that the specification as given by the court read: \\\"that he failed to have his truck under control upon approaching a curve.\\\" As to this latter complaint, no exception was taken by defendants to Instruction No. 1, in which the court stated the issues, and we find nothing in the exceptions to Instruction No. 5, in which the court instructed on the specification just referred to, which fairly calls the court's attention to the omission now stressed. We cannot consider it.\\nOur discussion in Division I is, in effect, a determination that there was sufficient evidence to warrant submission of the first specification of negligence above set out. It is appellants' contention this was the only specification which should have been submitted, if there was anything whatever for the jury to consider. This is a common argument, when a collision occurs between vehicles going in opposite directions. But we think it not necessarily sound. It may be there are no other grounds of negligence proven, as in Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696, relied upon by the defendants. But if the evidence fairly supports other grounds so that a jury question is engendered they should also be submitted.\\nUpon the question of alleged failure of the defendant driver to keep a proper lookout, we think it was properly submitted. Appellants concede in argument that \\\"If we had direct testimony offered by the plaintiff that defendant, in approaching the decedent's vehicle, was driving over the black line, then, we admit, the instruction as to lookout would have been proper.\\\" We are given no reason why there should be a different rule when the plaintiff's evidence is circumstantial rather than direct, if it raises a jury question; and we think there is none. We again quote the driver Beckwith: \\\"I come on around and made my swing [apparently around the curve leading to and upon the viaduct] and as I was over the viaduct I looked and here was a tractor coming and I swerved to the right. There was one impact and it seemed like a second and I don't know what happened.\\\"\\nIn the Ehrhardt case, supra, the defendant driver testified he observed the other vehicle coming for one fourth of a mile and watched it all the time. Here the impression might be drawn from Beckwith's testimony that he saw the approaching truck only an instant before the collision; at best, his testimony was vague and furnished the court no basis for holding as a matter of law he kept a proper lookout. There was evidence for the jury to consider, circumstantial it is true, that defendants' vehicle was on its left-hand side. As said in Pazen v. Des Moines Transportation Co., 223 Iowa 23, 27, 28, 272 N.W. 126, unless we are to presume it was driven there willfully, there arises a fair inference of failure to keep a proper lookout. Motorists do not ordinarily drive on the left in the face of a near approaching vehicle if they see it coming; and if they do not, the question of lookout may become a material one, proper for the jury's consideration.\\nSection 321.288, paragraph 3, Code of Iowa, 1950, provides the driver of a motor vehicle shall have it under control and shall reduce the speed to a reasonable and proper rate when approaching and traversing a curve. Section 321.285 is the general speed provision paraphrased in the court's statement of specification of negligence No. 4. The approach to the viaduct on which the accident occurred from the east is, as shown by the exhibits and the testimony of Beckwith, on a rather wide curve. The viaduct itself is somewhat curved. The application of the third specification of negligence to this situation is apparent. Beckwith's testimony has to some extent been set out above. In addition, he said, when asked as to his speed as he came on the viaduct: \\\"Well, I may have picked up. I figure about forty-five.\\\" The condition of the vehicles after the crash has some bearing upon speed also, although it would not always be sufficient in itself to take this issue to the jury. But we think a speed of forty-five miles per hour; even though not beyond the statutory limit, under the circumstances here, might have been found excessive, under both the third and fourth specifications of negligence. The weight of the truck driven by Beck-with, the nature of the approach to the viaduct, the fact that it rises considerably above the level of the highway on each side so that the view of the opposite side is obscured, the condition of the pavement, and other elements shown in evidence support the submission of each of these specifications. See Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 33, 34, 55 N.W.2d 528, 530, 531.\\nVI. The appellee's witness Jenkins was permitted to testify to an experiment he made with a tractor-trailer outfit similar to the one driven by decedent. He said that, starting with the left wheels on the center line of the highway, it required seventy-five feet to bring it sufficiently to the right so it would be lined up against the curb on that side as was decedent's vehicle immediately after the collision. The court took some part in interrogating the witness, apparently for the purpose of clarifying the matter in its own mind. To all of this the defendants excepted. Of this procedure, it is said: \\\"It is a matter peculiarly within the discretion of the court 20 Am. Jur., Evidence, section 758. The same rule is elaborated in 20 Am. Jur., Evidence, section 759: \\\"The scope of the subject matter of experiments which may be used as evidence is very wide. The use of such evidence rests almost entirely with the trial judge.\\\" We find nothing here which shows an abuse of discretion. Nor was there error in the short examination of the witness through the few questions asked by the court. See Pothast v. Chicago Great Western Ry. Co., 110 Iowa 458, 462, 81 N.W. 693; State v. Eggleston, 201 Iowa 1, 2, 206 N.W. 281; and Cedar Rapids National Bank v. Carlson, 156 Iowa 343, 136 N.W. 659, 664, where we said (page 356 of 156 Iowa): \\\" he [the trial judge] has a perfect right to do so [examine witnesses] if he can thereby expedite the trial or assist the witness in giving his testimony and elicit the facts.\\\" The motion to withdraw the specifications Nos. 2, 3 and 4 was properly denied.\\nVII. Appellee's witness Ingram testified to certain marks on the pavement, which had some early evening dampness, which indicated the defendants' truck had been on the south or left-hand side of the pavement prior to the collision. The witness said these marks began about seventy-five feet east of the final location of the Diamond truck and could be followed directly to the rear wheels of the Capital truck. Other witnesses spoke of the damp condition of the pavement so that tire tracks could be seen, although no one else placed them east of the probable scene of the collision. Appellants complain of the admission of the testimony of Ingram, saying it was indefinite and much of it in response to leading questions. We find it sufficiently definite. It has been often held that evidence of tire tracks, skid marks, \\\"burns\\\" and other marks on the paving following an accident is admissible if it fairly tends to throw some light on what actually happened. Thornbury v. Maley, 242 Iowa 70, 77, 78, 45 N.W.2d 576, 581; Brady v. McQuown, 241 Iowa 34, 37, 38, 40 N.W.2d 25; McKeever v. Batcheler, 219 Iowa 93, 99, 257 N.W. 567. A foundation must be laid by showing conditions were the same when the tracks were observed as at the time of the accident, and there must be identification of the marks with the automobile involved. Ingram was a farmer living about one hundred rods from the scene of the collision. He heard the noise, jumped into his pickup truck and hastened to the viaduct, being the first to arrive. We think his testimony meets the requirements of the foregoing rule. As to rulings on objections to leading questions, we have repeatedly held the trial court has a considerable discretion in admitting or excluding answers thereto, and we find nothing here so-objectionable that we can say the court abused its discretion. There must be a clear showing of such abuse to justify a reversal. State v. Wheelock, 218 Iowa 178, 189, 254 N.W. 313; Withey v. Fowler Co., 164 Iowa 377, 382, 145 N.W. 923, 925.\\nVIII. The witness Newton testified that he arrived at the scene of the accident shortly after five o'clock, when only Beckwith and one other man were present, and Beckwith was trying to get Hackman out of the cab of the Diamond truck, and he heard Beckwith say four or five times that he \\\"didn't know what happened.\\\" This was admitted over objection, the trial court holding it was part of the res gestae. The court later told the jury in its Instruction No. 15 if it found plaintiff entitled to recover against Beckwith its verdict should also be against the defendant Capital Tobacco Corporation; and it submitted a form of verdict accordingly. Appellants now complain that the statements of Beckwith were not part of the res gestae, should not have been admitted against the Capital Corporation, and the court should have submitted separate forms of verdict against each defendant. In State v. Berry, 241 Iowa 211, 215, 216, 217, 40 N.W.2d 480, 483, Justice Smith made a somewhat exhaustive analysis of the res gestae rule. The matter was also given extensive consideration in Skalla v. Daeges, 234 Iowa 1260, 1281, 1282, 1283, 15 N.W.2d 638. The authorities were reviewed and the proper rule announced in these two cases, and it would serve no good purpose to elaborate them again. In State v. Berry, supra, we held the essential considerations to Qoustitute declarations ,a part of the res gestae are \\\"spontaneity and such closeness of connection with the transaction as to exclude any presumption of fabrication Applying this test here, the soundness of the trial court's conclusion becomes apparent. The statements made by Beckwith as testified to by Newton must have come within a very few minutes after the crash. He was attempting to rescue Hackman from the cab of his truck, where he was pinned by the collision. The conclusion that Beckwith was still under the influence of the excitement of the collision and had no opportunity to fabricate an account of what happened seems inescapable.\\nAppellants further urge, however, that the statement made by Beckwith does not purport to be an account of what happened; and it is urged such a statement must afford a reasonable explanation of the transaction. We doubt it is seriously contended that no statement can be admitted as part of the res gestae unless it gives a full and detailed story of the occurrence. The very fact that it must be made under such circumstances as to negative any thought of fabrication, reasoned excuse or evasion of consequences demonstrates it need not be a full explanation. Laboring under the excitement of an unusual occurrence it would be strange indeed if a participant paused to give complete details. Statements which are made as part of the res gestae are usually fragmentary, and it is sufficient if they have some bearing on the transaction. In Roushar v. Dixon, 231 Iowa 993, 996, 997, 2 N.W.2d 660, 662, this court held statements in the form of inquiries as to whether the witness thought \\\"they would hang him\\\" or \\\"Doctor, do you think they will put me in jail?\\\" to be part of the res gestae. It may also be noted that if, as appellants urge, Beckwith's statement had no bearing on the manner of the happening, no prejudicial error was committed in receiving it. But we think it was sufficiently connected with the event to render it admissible. We have held that where statements of the driver of a motor vehicle involved in an accident are made as part of the res gestae, they are admissible also against the owner and are substantive evidence. Skalla v. Daeges, supra, at page 1282 of 234 Iowa, and cases there cited.\\nIX. Perhaps the most troublesome proposition urged by the appellants is that the verdict of the jury was not sup ported by tbe evidence and was so excessive as to indicate passion and prejudice. The verdict was in the sum of $26,938.65. The court instructed the jury if it found for plaintiff it might allow medical, hospital and nursing bills in an amount not exceeding $603.65; interest on the funeral expense, which expense the evidence showed to have been $1534.13, for such period of time as it found this cost to have been prematurely incurred; and the present value of the net estate which it found the decedent would have saved and accumulated from the time of his death if he had lived the normal term of his life. It is not contended the court did not give the jury the proper measure of damages; but it is strongly urged the amount found by the jury was so far in excess of anything justified by the record that passion and prejudice appear therefrom. In argument the parties agree that, after allowing the medical bills and interest on the funeral expense, there remained in the verdict the sum of $25,100 as the present worth of the net estate which would have been accumulated.\\nThe evidence shows, in addition to the age of the decedent, that he was married, had two children' \\u2014 a daughter twenty-one and a son eighteen years of age \\u2014 was in good health and physical condition, and had earned an average of approximately $5000 per year for the five years immediately preceding the fatal accident. His widow testified, \\\"I own my own home in Charles City.\\\" D. H. Dudley, a banker at Ionia, testified he had known decedent for eleven years; that he formerly lived on a farm near Ionia. Mr. Dudley had had business dealings with him, and his credit was good. Decedent was reliable, and \\\"I would say he made money and was careful of his business transactions.\\\" There is no evidence of what, if any, savings decedent had made nor of any property he owned.\\nWe have said repeatedly a comparison of verdicts in other cases is of little value in determining such questions as the one before us here. Jettre v. Healy, 245 Iowa 294, 302, 60 N.W.2d 541, 546; Dunham v. Des Moines Railway Co., 240 Iowa 421, 35 N.W.2d 578. It is also thoroughly established the amount to be allowed is primarily a question for the jury, and an appellate court should not interfere unless it clearly appears the verdict was prompted by passion and prejudice or the jury has disregarded the evidence or the instructions of the court. Jettre v. Healy, supra, at page 302 of 245 Iowa, page 546 of 60 N.W.2d; DeToskey v. Ruan Transport Corp., 241 Iowa 45, 48, 49, 40 N.W.2d 4, 17 A. L. R.2d 826. Many other cases might be cited in support of this elementary principle without adding to the sum total of knowledge or authority already available to the- legal profession. For a thorough analysis, with authorities, see Elings v. Ted McGrevey, Inc., 243 Iowa 815, 821, 822, 53 N.W.2d 882.\\nThe DeToskey ease, supra, is, however, factually quite illuminating upon the question before us. Here a locomotive fireman sixty-one years of age, with a life expectancy of 13.47 years, had suffered what was determined to be a wrongful death. A recovery by his estate in the sum of $23,325 was upheld. It appeared he had reared and given a high school education to four children, all of whom were grown to maturity. He was industrious, of good habits, had earned $4409.40 in the year preceding his death, had savings in cash and bonds of about $1000, and paid taxes on a home. As here, it did not appear he owned or had purchased the home. Except for the item of savings his situation was very similar to that of Hackman in the instant case. In the DeToskey case we commented upon the much diminished purchasing power of the dollar, as we did also in Dunham v. Des Moines Railway Co., supra, Dedman v. McKinley, 238 Iowa 886, 29 N.W.2d 337, and Waterloo Savings Bank, Admr. v. Waterloo, Cedar Falls & Northern Railroad, 244 Iowa 1364, 1376, 60 N.W.2d 572, 579. There is of course some force to the argument of appellants that by the same token the cost of living has risen by leaps and bounds, so it is much more difficult for even the most thrifty to save and accumulate.\\nIn Dunham v. Des Moines Railway Co., supra, we reversed the trial court which had held a verdict of $20,000 for the estate of a truck driver thirty-three years of age, with an expectancy of thirty-four years, to be excessive. In Jettre v. Healy, supra, we upheld a verdict of like amount for the estate of a truck driver thirty years of age. There was in the latter case a showing of certain facts which led two of the Justices to express the opinion under these circumstances the amount allowed was excessive; but the decision is no less a precedent because arrived at by a majority instead of a unanimous court.\\nOur problem comes to this: was the finding of the jury so excessive we must find passion and prejudice, as appellants contend? In the light of our previous pronouncements, particularly DeToskey v. Ruan Transport Corp., where we held $23,325 not excessive for the estate of a decedent with a life expectancy of 13.47 years as against Hackman's expectancy of 25.21 years, and with somewhat smaller earnings than Hack-man had, we are unable to hold as appellants think we should. The allowance to plaintiff is substantial, but we find nothing to show it resulted from passion and prejudice.\\nAppellants do not argue that we should reduce the verdict, in the absence of a finding of passion and prejudice. The court has the undoubted power to so act, however, in a proper case. Elings v. Ted McGrevey, Inc., supra, at page 822 of 243 Iowa. We do not find occasion for the exercise of this power here. In Booth v. General Mills, Inc., 243 Iowa 206, 210, 49 N.W.2d 561, cited by appellants, we found the verdict awarded appeared to be the full amount of the decedent's prospective earnings for his full expectancy and granted an alternative prayer for reduction. The case is not in point on its facts.\\nThe contentions made by appellants are many and we have considered them in detail without finding reversible error. It has not been possible to discuss all of them within the reasonable length of an opinion, which we have devoted to the major points raised by the litigants. \\u2014 Affirmed.\\nAll Justices concur.\"}"
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+"{\"id\": \"4443012\", \"name\": \"William Quaas et ux., appellees, v. Orval E. Quaas et ux., appellants\", \"name_abbreviation\": \"Quaas v. Quaas\", \"decision_date\": \"1958-10-14\", \"docket_number\": \"No. 49417\", \"first_page\": \"24\", \"last_page\": \"36\", \"citations\": \"250 Iowa 24\", \"volume\": \"250\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:08:31.239015+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"William Quaas et ux., appellees, v. Orval E. Quaas et ux., appellants.\", \"head_matter\": \"William Quaas et ux., appellees, v. Orval E. Quaas et ux., appellants.\\nNo. 49417.\\n(Reported in 92 N.W.2d 427)\\nOctober 14, 1958.\\nD. H. Smith and John G-. Vernon, of Marion, and J. J. Locher, Jr., of Barnes, Wadsworth, Elderkin, Locher & Pirnie, of Cedar Rapids, for appellants.\\nL. M. Hullinger, Sr., and Robert M. Fassler, both of Cedar Rapids, for appellees.\", \"word_count\": \"4362\", \"char_count\": \"25563\", \"text\": \"Oliver, J.\\nWilliam Quaas and his wife, De Merle, instituted this suit against William's father and mother, Orval E. Quaas and Alice Quaas, to establish in William a one-half interest in fee simple in defendants' farm, and to partition the property. Defendants denied plaintiffs' claims of part ownership and by counterclaim or cross-petition asked that their title be quieted against plaintiffs. Trial resulted in judgment establishing, in plaintiff William Quaas, an undivided one-half interest in the property, for his life only, denying partition and denying the prayer of defendants' cross-petition. Defendants have appealed. Plaintiffs have not appealed.\\nDefendant Orval E. Quaas was sixty-one years old when this case was tried. He lived upon and had operated for many years a 400-acre stock and dairy farm in Linn County, near Cedar Rapids. Part of this farm came from the estate of his father by inheritance and purchase and part had been purchased from others. Title to part of it was in defendants Orval and Alice Quaas and part of it in Orval alone. Defendants have four children, three daughters and'plaintiff William O. Quaas.\\nIn 1944 William, then age seventeen years, was taken out of school and commenced working on the farm. He testified his father said, \\\"if I would stay home and help, he would give me half the farm.\\\" The first two years thereafter William received spending money and the use of an automobile. In 1946 he married and for the next two years worked on the farm on the basis of one fourth of the profits. He testified his father \\\"said he wanted to put me on a fourth and then gradually \\u2014 in a year or two \\u2014 he would deed half the farm over. Yes, if I would stay with him. He always said he was going to give me one half the farm. He wanted me to have one half the farm as he thought I might leave him I guess.\\\" In 1948 William's share of the profits was increased to one half. He was then twenty-one years old. His one-fourth share had amounted t0' between $10,-000 and $12,000. \\\"My father thought it was too much money and later he suggested a fifty-fifty agreement, and if I would stay with him, he would deed me one half the land.\\\"\\nDecember 30, 1950, plaintiffs and defendants went to the law office of Attorney D. H. Smith in Marion. Mr. Smith was attorney for Orval Quaas and had prepared income tax returns for William and the partnership. Orval Quaas testified the partnership agreement between himself and William was the first matter discussed \\u2014 it had been previously discussed in connection with the preparation by Mr. Smith of their income tax re turns. Mr. Smith dictated to the stenographer and she prepared the partnership agreement in another room. She returned with it and Orval and William signed it \\u2014 more than one copy was signed. In the meantime the deed to William had been discussed and was next prepared by the stenographer.\\nMrs. Alice Quaas testified she read and signed the deed and knew the partnership agreement was signed, and that she had not previously made any commitments to pass any of her interest in the land to William and had not heard her husband make any promises to do so. There was no evidence of any such previous commitments or knowledge on her part.\\nAn original of the pleaded Co-Partnership Articles of Agreement, Exhibit 1, and the original deed, Exhibit A, each dated December 30, 1950, were placed in evidence and have been certified to this court. Exhibit 1 appears to be a typewritten form of a general partnership farming agreement, with various blanks for names, dates, and special provisions, most of which blanks were filled in. After naming Orval and William as the parties, the agreement recites that whereas each of them \\\"either own or have under their control real estate and personal property, which they have devoted to farming on a co-operative plan and now wish to merge all of their interests in all livestock, machinery\\\", etc., \\\"excepting only the real estate which each one will continue to be vested of title, in order to form an absolute partnership for all purposes.\\\"\\nParagraph 4 states in part: \\\"This agreement shall operate as a lease by each of the parties to lease his entire real estate, excepting [the following appears to have been filled in], as to the interest of Orval E. Quaas, he has leased and hereby confirms such fact for the life of William O. Quaas, an undivided one-half interest in all the farm lands of Orval E. Quaas, and his wife, included within the scope of this partnership agreement.\\\"\\nParagraph 5 recites in part: \\\" each partner agrees to devote his entire working time to the operation of the firm's business, etc. Profits and losses of the business are to be shared and borne 50-50 in proportion to the interest of the partners.\\\"\\nThe deed, Exhibit A, appears to be a Nebraska form of quitclaim deed. It names Orval E. Quaas and Alice L. Quaas of the first part and William O. Qnaas of the second part. It recites that the parties of the first part in consideration of the sum of one dollar and other valuable consideration have quitclaimed, etc. \\\"a life estate only in and to an undivided one-half interest in the lands of the said grantors subject to. farming operations between the grantor and the grantee and more particularly described in deeds of record of the grantors, including: [18 lines of legal description of the various tracts of land] and excepting all public highways, and excepting all lots in Auditor's Plat No. 302.\\\" The deed does not specifically recite the State or County in which the land is situated.\\nAt the end of the partnership agreement, Exhibit 1, are the purported signatures of Orval E. Quaas and Wm. O. Quaas and the certificate of acknowledgment and seal of D. H. Smith, a notary public, of date December 30, 1950, and in regular form.\\nThe father and son continued to operate the farm, sometimes called North Lawn Stock Farm, as equal partners until near the end of 1954. According to Orval Quaas, William became dissatisfied and wanted to quit feeding cattle and milking cows, and to operate only a grain farm, and Orval did not think this would provide sufficient income to support both families: \\\"He [William] said that he wasn't going to stay and he didn't want to do so much. He was just going to grain farm and I says, 'William I couldn't do it; I love my livestock.' Along in the fall at corn picking time he says, 'I am not going to stay around here any more.' I didn't want him to leave. He went to- Chicago with the cattle and then to California. I didn't want him to leave home.\\\"\\nAfter William left the farm he purchased and operated a poultry ranch in California. He testified the cause of the disagreement with his father was that the father \\\"wanted to take most of the farm and put it in lots and build houses on them.\\\" It appears twelve acres of Orval's land, not included in the farming operations and specifically excepted in the deed, Exhibit A, as lots in Auditor's Plat No. 302, were within the newly incorporated town of Hiawatha. This land was platted into lots and eight houses were built on them. Some time before he left the farm, William had bought an interest in an airplane, and had about one hundred hours flying time, which he testified did not cause much trouble between his father and himself.\\nAfter William bought the California poultry ranch he returned temporarily to the Iowa farm and he and his father arranged a sale of the partnership property, including all the hogs and cattle, the payment of partnership debts and the settlement of its affairs. This sale was held in April 1955. William's wife testified the understanding was that Orval was to run the farm, himself, from then on out. There were some disagreements over the settlement but these were adjusted. William testified: \\\"I took $14,000 with me to California, after paying all my borrowings to buy cattle\\\", and paying taxes and expenses of the sale. In April and November 1955 quitclaim deeds to the real estate in question were requested by defendants and refused by plaintiffs. This suit was instituted in September 1956.\\nWe have already stated William claimed and brought suit for a one-half interest in the land in fee simple. He testified his father \\\"was going to give it to me like for a Christmas present\\\", but did not act until December 30 (1955); and that he was in the lawyer's office when the deed (Exhibit A) was drawn, and read the deed but did not see the words \\\"life estate.\\\" This part .of the suit need not be considered in detail because plaintiffs did not appeal from the adjudication that William was not given an interest in fee simple in the farm.\\nWilliam denied the signature \\\"Wm. O. Quaas\\\" on Exhibit 1, the partnership agreement, was his signature and testified that the first time he saw that agreement was after the suit was started. His wife testified the quitclaim deed was the only paper executed in the lawyer's office December 30, 1955.\\nI. Whether Orval and William Quaas entered into the Co-Partnership Articles of Agreement, Exhibit 1, is the main issue of fact. The judgment of the trial court states in part:\\n\\\"Now, I have come to the conclusion that this deed conveys a life estate for the life of William O. Quaas. And I reached that decision independent of any testimony \\u2014 oral testimony that was introduced by either side. I reached that from an examination of the deed itself. .\\n\\\"That brings us to the counterclaim or cross-petition of the defendant and the relief asked for there. That relief is largely premised on establishing this instrument denominated in the trial record as Exhibit '1'. The court is not convinced that William O. Quaas ever affixed his signature to this Exhibit '1'. And the court finds that the burden of proof is necessarily upon the defendant to establish the essential allegations to permit him to recover under his counterclaim. And the court finds he has failed to establish those. Among other things, he has failed to establish this written agreement as such, and he relies almost entirely on this written instrument, Exhibit '1', to establish his right to have a conveyance back or the title to this whole thing quieted in the defendant. But we must take Exhibit 'A' as a verity, and the court does take it as a verity, and as having-conveyed to and placed in William O. Quaas -an undivided one-half interest in this real estate for the life of William O. Quaas. The defendants and cross-petitioners have not established that this deed was an integral part of an arrangement for the operation of this farm.\\\"\\nDefendants testified William executed Exhibit 1. Plaintiffs denied this. The judgment states the burden of proof was upon defendants to establish this agreement as such and that they had failed to do so. But the foregoing testimony was not the only evidence upon this issue. For the purpose of comparing- handwriting defendants offered in evidence four canceled checks for $1000, $2269.51, $650 and $21,000 respectively, made by Orval payable to the order of William and bearing the latter's purported indorsements. Orval testified the indorsements were made by William. However, as we understand the record, the only purported signature he actually saw William write was the indorsement by William of his name on the back of the $21,000 check. William either denied or refused to admit the handwriting on any of the checks was his.\\nHence, the only signature placed in evidence by defendants which could possibly be used as a basis for comparison would be that on the $21,000 check. Taking the circumstances into consideration, we find the evidence establishes that the , signature upon the back of the $21,000 cheek was William's. The only purported signature of William offered by plaintiffs for comparison was a signature made in September 1956 in connection with the pleadings in this suit. The record does not show whether the trial court made a comparison of the disputed signature on the contract with the signature indorsed on the $21,000 cheek. We have done so and, as nonexperts, are of the opinion they were made bj'' the same person.\\nThere are two propositions connected with the issue whether William executed Exhibit 1, neither of which appears to have been taken into consideration by the trial court.\\nOne of these stems from the pleadings. Rule of Civil Procedure 100(a.) provides: \\\"If a pleading copies a writing purporting to be signed by an adverse party, such signature shall be deemed genuine for all purposes in the case, unless such party shall not only deny it, but support his denial by his own affidavit that it is not his genuine or authorized signature.\\nDefendants' counterclaim or cross-petition copied .the partnership agreement, Exhibit 1, purporting to be signed by William and Orval. Thereafter plaintiffs filed a reply but did not comply with the provisions of rule 100(a). Later as a witness in the trial William denied the signature in question was his.\\nDefendants contend the effect of the failure to so plead such denial was that, in the language of the rule \\\"such signature shall be deemed genuine for all purposes in the case, We have so held in cases decided upon the pleadings only. Evans v. Herbranson, 241 Iowa 268, 279, 41 N.W.2d 113, 120, 15 A. L. R.2d 925; Weik v. Ace Rents Incorporated, 249 Iowa 510, 513, 87 N.W.2d 314, 316, 317. However, in this case plaintiffs' reply was sufficient to permit the introduction of evidence denying William's signature.\\nThe question thus presented was considered in Ainsworth Savings Bank v. Colthurst, 197 Iowa 363, 366, 195 N.W. 581, 582, which states: \\\"The argument for plaintiff is that, in the absence of a written denial under oath, no issue was tendered on the question of signature, and that, therefore, the g\\u00e9nuineness of such signature should be deemed conclusively proved or admitted. If the question were an open one, the argument would be very persuasive. But this statute has been in effect for more than 50 years, and has been repeatedly construed in this regard. The substance of that construction is that, if the purported maker of the instrument fail to conform to the provision of this section, then he relieves the plaintiff of the burden of proof on that question. He may, nevertheless, by an unverified general denial or by a statutory denial put the question of genuineness in issue, with this qualification: that the burden of such issue will be upon the defendant, and not upon the plaintiff. In such a case, the signature is deemed 'prima, fade genuine, and the plaintiff may put the instrument in evidence without further proof; but the defendant may, nevertheless, assume the burden of attack upon its genuineness. Such is the uniform holding of our eases. Douglass v. Matheny, 35 Iowa 112; Sankey v. Trump, 35 Iowa 267; Ashworth v. Grubbs, 47 Iowa 353; Sully v. Goldsmith, 49 Iowa 690; Brayley v. Hedges, 52 Iowa 623; Smith v. King, 88 Iowa 105.\\\"\\nThe holding in the Ainsworth case was based upon section 3640, Code of Iowa, 1897. As to the question here presented, rule 100(a) is substantially the same as that section. See also McFerren v. First National Bank, 214 Iowa 198, 202 to 204, 238 N.W. 914; Hedinger v. Herweh, 239 Iowa 1146, 34 N.W.2d 202. We hold rule 100(a) is here applicable and that in the language of the Ainsworth case plaintiffs did \\\"assume the burden of attack npon its [William's signature] genuineness.\\\"\\nThe other proposition, apparently overlooked in the trial, was the effect of the certificate of acknowledgment of the notary public that Orval E.. Quaas and William O. Quaas, to him known 'to be the persons named in and who executed the instrument, Exhibit 1, personally appeared before him December 30, 1950, and acknowledged that they executed the same as their voluntary act and deed. This certificate was in the language and form approved by Code section 558.39\\\".\\nSection 622.26, Code of Iowa, 1958, provides in part that duly acknowledged private writings may be read in evidence without further proof. Code section 622.36 contains a similar provision applicable to instruments affecting real estate.\\nNorthwestern Mutual Life Ins. Co. v. Blohm, 212 Iowa 89, 99, 100, 102, 234 N.W. 268, 272, states: \\\" after the acknowledgment accompanying the release was introduced in evidence, the duty of going forward with the evidence was then east upon appellant. That is true because the release was acknowledged before a notary public who duly certified such fact, and the certification is in due and regular form.\\n\\\"Unless, then, the appellant has overcome the facts affirmed in the certificate of acknowledgment by clear, satisfactory, and convincing evidence, the same must stand as true. Morris v. Sargent, 18 Iowa 90 (l.c.95); Bailey, Wood & Co. v. Landingham, 53 Iowa 722 (l.c.724); Bird v. Adams, 56 Iowa 292; Herrick v. Musgrove, 67 Iowa 63 (l.c.65); Swett v. Large, 122 Iowa 267 (l.c.271); Johnston v. Linder, 168 Iowa 441; Vanderveer v. Warner, 191 Iowa 1106; Hutchins v. Jones Piano Co., 209 Iowa 394. In the Hutchins case, last named, we declared:\\n\\\" 'Certification (in the Hutchins case) of the notary is in due and regular form. Hence, the burden was upon appellee to prove his contention (that the acknowledgment was not taken) by clear and convincing evidence. Great weight is given to the certificate of acknowledgment (citing cases). The notary public who misstates the material fact in the certificate shall be liable for damages, and guilty of a misdemeanor. An officer is presumed to obey the law and perform his official duty. Roberts v. Roberts (176 Iowa 610), supra. Therefore, presumption is in favor of the acknowledgment.'\\n\\\" #\\n\\\"When taken together with all the facts and circumstances revealed by the record, we cannot say that the foregoing proof is so clear, satisfactory, and convincing as to support a finding that the notary's certificate on the acknowledgment is false and untrue. Putting the thought differently, appellant has not met the burden of proof cast upon him to overcome the statements contained in the notary's certificate.\\\"\\nOur most recent pronouncement upon this point is Stephenson v. Stephenson, 247 Iowa 785, 792, 793, 74 N.W.2d 679. Another decision is First Trust Joint Stock Land Bank v. McNeff, 220 Iowa 1225, 264 N.W. 105.\\nThe record in the case at bar, considered in the light of the foregoing rules, requires the conclusion that Orval and William entered into the partnership agreement, Exhibit 1, as alleged by defendants. The contrary finding of the trial court was erroneous.\\nII. We have already set out parts of the quitclaim deed, Exhibit A, from defendants to William for \\\"a life estate only in and to an undivided one-half interest in the lands of the said grantors subject to farming operations between the grantor and the grantee , including: [legal description] and excepting all public highways, and excepting all lots in Auditor's Plat No>. 302.\\\"\\nThe record shows the deed, Exhibit A, was prepared and executed immediately after the partnership agreement, Exhibit 1, and that each instrument was part of the same transaction. The deed states the conveyance is \\\"subject to farming operations between the grantor and the grantee.\\\" At this point the question is, what is the meaning of the quoted clause? Appellees argue it is merely a double description of the property, and would write the clause, \\\"being the subject of the farming operations between the grantor and grantee\\\", etc. We do not agree the language is fairly susceptible to that interpretation. The word \\\"subject\\\" as used in the deed is an adjective. The interpretation appellees would give it in the suggested clause would make it a noun.\\nConsidered alone the meaning of the clause, stating the conveyance is \\\"subject to farming operations between the grantor and the grantee\\\", is ambiguous. No other provisions in the deed clarify this ambiguity. However, when Exhibit A and Exhibit 1 are considered together it is at once apparent that the clause, \\\"subject to farming operations\\\", etc. has reference to the partnership operations. The two instruments were executed contemporaneously and affect the same parties and the same property. As stated in 16 Am. Jur., Deeds, section 175:\\n\\\"It is a general rule of construction, well settled by the authorities, that in order to ascertain the intention of the parties, separate deeds or instruments, executed at the same time and in relation to the same subject matter, between the same parties, or, in other words, made as parts of substantially one transaction, may be taken together and construed as one instrument.\\\"\\nTo the same effect is the language of 26 C. J. S., Deeds, section 91. It is clear Exhibit A and Exhibit 1 should be taken together and construed as one instrument.\\nThat the father and son had for some time operated the farm as partners under oral agreement affords no substantial basis for concluding this rule is here inapplicable. It is fair to assume no written agreement was deemed necessary prior to the execution of the deed, Exhibit A.\\nIII. Paragraph 4 of Exhibit 1 recites Orval has leased to the partnership, for the life of William, an undivided one-half interest in all the farm lands of. Orval and his wife included in the partnership agreement. Also leased to the partnership was the other undivided half interest in the farm lands for William's life which his parents, as part of the transaction, were conveying to him by the quitclaim deed, Exhibit A. In this manner all the farm lands were leased to the partnership for the life of William. Moreover, the partnership agreement required each partner to devote his entire working time to the partnership business, except for time lost on account of illness or casualty. The provisions of the partnership agreement indicate the intention of the parties that it continue during William's life. Orval's testimony upon his examination by the court supports this conclusion.\\nHe testified: \\\"We wanted to combine this agreement. Oh, we talked about it for a year or so before, see. Well, he [the lawyer] was just going to put this up as a partnership deal, see; as long as the partnership was in effect, it was to be. Well, William was to get one-half interest as long as either one of us was alive and work together. The court: What about after you passed on, was anything said about that? A. He would go on the same as long as he was there.\\\"\\nWilliam himself testified his father said, \\\"he would deed half the farm over\\\" if William \\\"would stay with him. He wanted me to have one half the farm as he thought I might leave him, I guess.\\\" His father had suggested a 50-50 agreement, \\\"and if I would stay with him he would deed me one half the land.\\\"\\nThus it appears that .both the father and the son understood the gift to the son of a life interest in the farm was to be conditioned upon the son remaining on the farm and participating in its operation. The provisions of the partnership agreement, Exhibit 1, fit into and apply this understanding. We have already held the deed and the clause in it, \\\"subject to farming operations between the grantor and the grantee\\\", should be considered with Exhibit 1.\\nUnder the circumstances it is our conclusion the language should be interpreted as meaning the estate conveyed to William for his life would continue only as long as he continued the farming operations set out in the partnership agreement. William did not continue the farming operations as the deed (Exhibit A) and the partnership agreement required. His abandonment of these operations and his permanent removal to California terminated the \\\"farming operations\\\" in question.\\nNor does the record present any valid excuse for this. William testified his only argument with his father was about the father selling some of the land and dividing it into lots.\\n\\\"Q. You could have stayed if you wanted to? A. Been pretty rough. Q. What was it made it rough? A. Building houses all over the place and I would like to farm. Q. The houses were being built on a little fifteen-acre tract down next to Hiawatha? A. Look at them five years from now, though. Q. Were they not being built on a little fifteen-acre tract in Hiawatha? A. Yes, starting, yes. Q. And they weren't being built all around the farm? A. He was talking about on the west side, building over by Buffalo. Q. He platted a little area down next to Hiawatha? A. Yes.\\\"\\nThe tract upon which the houses were built was excepted from the deed (all lots in Auditor's Plat No. 302) and was not included in the partnership agreement. Of course, William could have prevented the building and sale of houses on any part of the land included in the life estate conveyed to him. As a practical proposition no such operations could have been carried on or started unless William had joined in them.\\nIt is our conclusion that defendants and each of them are entitled to judgment, quieting in them and against plaintiffs their respective titles to the various tracts of land in Linn County, Iowa, described in their pleadings.\\nThe judgment is reversed and the cause remanded for judgment accordingly. \\u2014 Reversed and remanded.\\nAll Justices concur.\"}"
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+"{\"id\": \"4446146\", \"name\": \"James E. Struth, appellee, v. Community Builders, Inc., et al., appellants\", \"name_abbreviation\": \"Struth v. Community Builders, Inc.\", \"decision_date\": \"1957-09-17\", \"docket_number\": \"No. 49199\", \"first_page\": \"1250\", \"last_page\": \"1258\", \"citations\": \"248 Iowa 1250\", \"volume\": \"248\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:53:03.512717+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"James E. Struth, appellee, v. Community Builders, Inc., et al., appellants.\", \"head_matter\": \"James E. Struth, appellee, v. Community Builders, Inc., et al., appellants.\\nNo. 49199.\\n(Reported in 85 N.W.2d 1)\\nSeptember 17, 1957.\\nHerrick & Langdon, of Des Moines, for appellants.\\nDuffield, Pinegar & Spencer, of Des Moines, for appellee.\", \"word_count\": \"3107\", \"char_count\": \"16836\", \"text\": \"Bliss, J.\\nPlaintiff alleged in his petition that on May 21, 1956, he was the owner of a dwelling house in Polk County, Iowa, of a fair market value of $500, which on said day, the agents and employees of the corporate defendant, \\\"while acting within the scope of their employment on the orders and at the direction of defendant Robert K. Stout within the scope of his employment as President of the defendant corporation with the aid of a bulldozer maliciously injured, defaced and destroyed said building\\\", and caused it to have no market value. The petition also alleged that when said orders were given by the defendant Stout he knew \\\"that the giving of said orders would and did result in the malicious injury, defacement and destruction of the aforesaid building.\\\"\\nIn their answers each defendant denied any malice on the part of either in the destruction of the building.\\nAs shown by the petition, the action is not based on the negligence of defendants, but solely on the alleged malice in their conduct. Since the issue of malice must be determined from the facts as they appear in the record, those pertinent are stated. The appellant Community Builders, Inc., of Des Moines, is an Iowa corporation engaged in building construction. The corporation owns real estate known as 1601 Southwest McKinley, in Des Moines, which it bought from Dan DeHeck for building purposes. On the property were several old buildings, consisting of a farmhouse, a barn, milksheds and other outbuildings, which the corporation resold to Mr. DeHeck for the purpose of disposing of them and clearing the ground. Mr. DeHeck immediately sold all the buildings but the house, and they were promptly salvaged and removed. He had placed an advertisement in a newspaper for the sale of the buildings. The appellee and his wife saw the ad on April 22, 1956. They had a small one-bedroom house and two children, and desired to add additional bedroom space. The appellee and his wife contacted Mr. DeHeck on April 22 and a verbal agreement was made for the purchase of the house by the appellee for $100, which sum was paid by Mrs. Struth on April 23, 1956, to Mr. DeHeck at his place of employment.\\nThere is disagreement in the testimony of Mr. and Mrs. Struth and that of Mr: and Mrs. DeHeck, who were witnesses for defendants-appellants, as to the time limit for the removal of the house. The DeHecks testified that the Struths \\\"would have two to three weeks to get that house off Community Builders' property.\\\"' Mr. 'and Mrs. Struth testified that the time limit was thirty days. They made' several trips to the property to dismantle and remove the house but found the entrance doors locked to both the first and the second story. They observed furniture and other articles on the ground floor and they deferred dismantling the house, and made little; if any, effort to get the key to the house. It had been agreed that the appellants were to remov\\u00e9 and retain the bathroom fixtures. On May 6 the contents on the first floor were removed by appellants, and on May 13 the second floor was vacated.' The appellee began the dismantling' of the house as soon as the removal of its contents was begun. He was assisted by some of his relatives.\\nThe following statement is from appellee's brief and argument: \\\"On May 20, 1956, the plaintiff and his father worked, all day on the house. They were assisted by plaintiff's wife. That was the last day the plaintiff worked on the house. By the end of May 20, 1956, the plaintiff had the house stripped down to the 2x4s, floor joists, and the flooring which were the parts of the house .he intended to use. The house was two stories, 20 by 28 feet, in a general rectangular shape, and the 2x4s were approximately . 18. to 20 feet long, placed upright and exposed. They projected about 8 feet above the floor level of the second story. None had been removed. They were about 16 inches apart all the way around the house. The floor joists were 2 inches by 8, inches, about. 20 feet long, placed lengthwise, about 16 inches apart. Nothing was taken from the house between the time the plaintiff left it on the evening of May 20, 1956, and the time it was destroyed. Plaintiff eould have completed the dismantling of the house in two and one-half or three more days. He could have done it in less time than that if someone was helping him.\\n\\\"On May 19, Mrs. Struth talked to Mrs. DeHeck on the phone. Mrs. DeHeck told Mrs. Struth that Stout had said he was going to bulldoze down the house. Mrs. Struth told Mrs. DeHeck that they had been held up because the house was locked for two weeks. Mrs. Struth stated they would need more time 'one more week-end after this one coming up.' Mrs. DeHeck said she would tell Mr. Stout and would call Mrs. Struth and let her know. Mrs. DeHeck never called back. This conversation took place two days before the house was destroyed by the defendants.\\\"\\nMrs. DeHeck testified that Mr. Stout had never told her he was going to \\\"bulldoze down the house\\\", and that her message to that effect to Mrs. Struth was \\\"just a bluff on her part.\\\"\\nAfter Mrs. Struth learned of the bulldozing of the house, she called for Mr. Stout, and left word that he call her back, which he did and asked her to meet with him and talk it over and they would settle it. They had the meeting, but no settlement was effected. Mr. Stout told her he thought that plenty of time had been given to remove the house.\\nThere is no controversy over the foregoing factual statements.\\nThe appellee contends that the house was \\\"but a pile of junk\\\" after the bulldozing. It appears from the record that the corporate defendant, through Mr. Stout, arranged with Mr. Le-Roy W. Hahn, a road contractor, to remove the partly dismantled house as it was on May 21, to move it out of the way about 150 feet so that the ground could be prepared for the construction of a new building. He was the only witness testifying to what he did. His testimony was not rebutted. As a witness for defendants, he stated:\\n\\\"Ordinarily we just use one tractor to move a house like that. It was fair sized. One of my operators and myself looked the house over very carefully and decided it would be best by taking' two machines we could put one on one corner of the house and one on the other and move along very carefully. That seemed the proper way to do it. So he operated one machine and I operated another machine. We had them both in low gear, which is the lowest speed we have, travel about a quarter of a mile per hour. We started moving the house. It seemed to be going okay until we got it about half off the foundation, then the foundation collapsed. Of course, when the foundation under the house collapsed, the house also collapsed with it. We stopped immediately because we wanted to try to plan some other way to continue on with it, and we studied it over very carefully. The only thing we could see then was to continue on, going very slowly with .two machines. We moved it on around. Of course, as we moved the house a lot of the smaller pieces had fallen down, lath and old shingles. They laid on the ground. The house \\u2014 walls and stuff, we were very careful of after we moved it a short distance, stopped then and picked up all the salvageable pieces, carried them over to the location where the house was to be placed, then we continued on with the two tractors as slowly as we could. I have had practically 20 years experience as a bulldozer. By having a tractor on each corner, moving along gently, we had every hope and belief in the world we could move that house without damaging it. As I say, when the foundation gave way it left the house \\u2014 lost its support and it fell down.\\n\\\"I have no financial interest in the outcome of this contro- . versy. I don't own any stock in the Community Builders. I don't know the plaintiff or Mrs. Struth. I don't have any malic\\u00e9 or animosity toward Mr. and Mrs. Struth in any way. We tried, we did everything in our power to move that as gently as we could because I don't want to destroy anything at all, that is why we used two machines. If we wanted to push it over we could have taken one machine and just pushed it over. . [Cross-examination] We had two crawler type tractors. One Allis Chalmers, one a Caterpillar.\\n\\\"We used the blade part of the tractors to put under the house to lift it up. The blade is in a slightly vertical and horizontal position together, it slants up. The bottom is about a foot forward as compared to the top. The blade itself is 13 feet long and about 3 feet high.\\n\\\"I took the blade and tucked it under the house to raise it up, get the friction off the ground. A cable control unit on it raises up the blade. We tucked the blade under the house by moving up to the side, moving the foundation in, just pressing the foundation in further so that the blade gets underneath and starts raising up the house and sill. On the other side of the house, at the same time, there was a D-4 Traxivator on one corner, on the west side of the house, and I was on the east corner of the house. I was on the southeast corner and he was on the southwest corner. We were going to push the house north about 150 feet. As we knocked down part of the foundation we would put our blade under there. # After we moved it north off the foundation we would gradually turn and go east to the area where we could leave the house. There was a bas\\u00e9ment under the house, probably three feet, it really wasn't a basement; I would call it just a dugout, about three feet deep on the west side, about four feet deep on the east side. As we moved ahead we pressed the old foundation in, that gave us a footing there so we could travel on, and after we moved a short distance we backed up, took some more dirt and bulldozed it in there so we would have level traveling. We kept dozing dirt in, just moved the house a little at a time until we moved some more dirt in. Then we went back and gently tucked the 13-foot blade in it and moved it a little more. The house was setting on the remaining east side, and that left the house out of shape, settled down in there. The house was about six inches higher than the ground. I think the house must have slipped off the dozer blade, hit the wall and went down in. The house fell off the dozer blade first, slipped down and knocked the foundation down and then \\u2014 one side went into the basement. Naturally, it tipped over to the one side. The house collapsed. One wall fell out and one wall fell in. Part of the roof was still up there. After we had moved the house about half the distance off the foundation it fell. It did not fall off the machine of the other person working on the bulldozer, my employee, at the same time it fell off mine. It stayed on his. That is what caused it to go sideways. It slipped off my machine. After the hopse collapsed and fell into the basement hole, we stopped then and tried to find out what would be the next best move to continue on with it without damaging any of the materials. We took the dozers and moved some more dirt down into the old basement and got the machine underneath the part of it that slipped down there, tried to raise it up, get it out of the basement, to continue onto the place where we were going to put it. As we moved along a little at a time, if any of the pieces fell off we would stop and pick them up so the dozer wouldn't run over them and crush them, move just a few feet at a time, stop and pick up more of the stuff. We tried to save every bit of it. As the house fell it caused a lot of lath and plaster to break up. # I and my man both got out there and threw everything out of there, any loose pieces, before we dozed the dirt in there. After the house collapsed, we still moved it in one piece for awhile. The floors were intact yet and the walls rode on the floor as we moved it around, to a certain extent, but then, of course, after we moved it the sides would fall off, whatever was left on the roof would slide off the side because the floor wasn't large enough to carry the house in a down position like that. As we moved it along. We were going as carefully as we could.\\n\\\"It looked as though it was going to stay intact. As we moved it along it was pretty much of a unit, it was pretty hard to tell whether it was causing any damage or not. After it collapsed we moved it about 125 feet, sliding it along on the first floor. All the small pieces that fell off that we could carry by hand we carried over there and laid in a pile. Large sections that fell off that we couldn't lift or carry by hand we took-the dozer and moved them along on the gromid. They were too heavy for two men to lift a large section, so we used one bulldozer and slid them along on the ground. We pushed them from the side of the house to the point we piled it as shown on the pictures. ' I believe we started working on the job shortly after five o'clock in the evening. I think I paid the man who was with me until eight o'clock- that night when we finished, until we got everything picked up and piled over there out of the way. If we had wanted to push it over we could have taken one machine and just pushed it over.\\\"\\nRalph J. Leto, an employee of Community Builders, Inc., had charge of cleaning up and removing all of the material in the partly dismantled house after it was moved by Mr. Hahn. He testified that he had three men pull all of the nails out of the material and stack it. \\u2014 \\\"In the course of my work, I have complete charge of all materials used for building. From my experience I am able to tell whether or not lumber is usable for building construction. From what I personally saw, I would describe the lumber as all useful, 90% of it was. Mr. Hahn's orders were to move it in one piece. The lumber we piled there included 2x4s and 2x8s. They were from 12 to 18 feet in length. Some were 8-foot studs.\\\"\\nNeither Mr. Leto nor Mr. Stout was present when Mr. Hahn was moving the building. The latter did the work as a subcontractor using his own equipment and employee.\\nWe have set out all the material evidence pertinent to the issues. There is no material dispute in it nor contradiction of it. It is our judgment that it falls far short of establishing the allegations of plaintiff-appellee's petition of any willful misconduct or malice on the part of the defendant-appellants, or either of them, or of the subcontractor, Hahn, or his employee.\\nFrom the evidence and the record the jury could fairly find that the defendants, without the permission of the plaintiffappellee, were instrumental in the moving and damaging of the latter's building while he was dismantling it.\\nSection 714.1 of the 1954 Code of Iowa provides that \\\"if any person maliciously injure, deface, or destroy any building\\\", he shall be subject to a specified fine and imprisonment, \\\"and be liable to the party injured in a' sum equal to three times the value of the property so destroyed or injured.\\\" The petition alleged the malicious destruction of the property and its fair market value to be $500, and prayed for damages against the defendants and each of them in the sum of $1500 with interest at 5% per annum from May 21, 1956. The jury returned a verdict for the amount prayed against defendants and judgment for said amount was entered against both defendants and for costs.\\nThe court instructed the jury that if plaintiff was found entitled to recover they should first determine the amount of actual damages suffered and in no event to exceed $500, and if they found the act of defendants was maliciously done, they should allow a recovery of three times the actual damages but in no event to exceed $1500.\\nWhile the verdict of the jury contained no specific finding of the amount of actual damages, it must be assumed from the verdict of $1500 that the actual damages found were in the amount of $500.\\nAs we have noted the court erred in submitting the issue of malice to the jury. However, it is our conclusion and judgment that the record and evidence do' sustain the jury's finding of actual damages in the sum of $500. The judgment is therefore reversed insofar as it is based on malice, as provided in section 714.1 of the 1954 Code of Iowa, and is reduced by $1000, and judgment for plaintiff-appellee in the sum of $500 with interest at the rate of 5% per annum from the 21st day of May, 1956, is affirmed.\\nCosts are taxed two thirds to appellee and one third to appellants. Affirmed in part and reversed in part.\\nAll Justices concur.\"}"
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+"{\"id\": \"643682\", \"name\": \"Security Savings Bank v. C. D. Carroll, Treasurer of Linn County, Iowa, and Linn County, Iowa, Appellants\", \"name_abbreviation\": \"Security Savings Bank v. Carroll\", \"decision_date\": \"1906-10-19\", \"docket_number\": \"\", \"first_page\": \"605\", \"last_page\": \"613\", \"citations\": \"131 Iowa 605\", \"volume\": \"131\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:25:29.992242+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Security Savings Bank v. C. D. Carroll, Treasurer of Linn County, Iowa, and Linn County, Iowa, Appellants.\", \"head_matter\": \"Security Savings Bank v. C. D. Carroll, Treasurer of Linn County, Iowa, and Linn County, Iowa, Appellants.\\nTaxation of omitted property: injunction. A taxpayer may en-.1 join the collection of a void assessment; it is only where the same is irregular that he is confined to the remedy of appeal or certiorari.\\nSame: assessment to agent: personal liability. The money. 3 notes, credits or other personal property of a non-resident which are in the possession or under the control of a resident agent for pecuniary profit, either to himself or the owner, may, if he refuses to disclose the name of the owner, be assessed to the agent; but before he can be made personally liable for the tax the fact of agency and possession or control of such property for profit must be shown.\\nSame: pleadings: effect of demurrer. Where the answer, in an 3 action to enjoin the collection of .taxes assessed to an agent on omitted property, alleges the agency and other facts necessary to warrant the assessment, a demurrer thereto is an admission of the allegations, and it cannot be said that the treasurer acted solely on suspicion and surmise in making the assessment.\\nAssessment of omitted property: power of treasurer. Where one 4 in response to a notice from the treasurer to appear and show cause why property held by him as an agent should not be assessed and he appears and denies having any such property, the treasurer has the same power to make' an assessment as is conferred by law upon a regular assessor.\\nSame: sufficiency of evidence: review. The question of whether 5 the treasurer acted upon sufficient information in making an assessment of omitted property cannot be determined on the pleadings, in an action to enjoin the collection of the tax, but the remedy is by an appeal from the assessment.\\nAppeal from Linn District Court.\\u2014 Hon. J. H. Preston, Judge.\\nFriday, October 19, 1906.\\nSuit in equity to enjoin the county treasurer from enforcing an assessment of property made under section 1371 of the Code. There was a judgment for the plaintiff on demurrer to an amendment to the- petition and to the answer to the original petition. The defendants appeal.\\u2014\\nReversed.\\nVoris & Haas, for appellants.\\nDawley, Hubbard & Wheeler and Cooper, Clemons & Lamb, for appellee.\", \"word_count\": \"3040\", \"char_count\": \"17627\", \"text\": \"Sherwin, J.\\u2014\\nIn December, 1903, the appellant, C. D. Carroll, as treasurer of Linn county, listed and assessed against the appellee, as agent for others who were not named, moneys, loans, and credits alleged to have been omitted from taxation for the years 1899 to 1902 inclusive. The plaintiff in this.action seeks to restrain the treasurer from collecting, or attempting to collect, the tax so assessed by him. By an amendment to the petition the plaintiff also seeks to restrain the appellant from making a proposed similar assessment for the year 1903. The original petition alleged that the board of supervisors of the county employed the firm of Fleener, Schleicher & Martin to assist the county treasurer in attempting to discover property omitted from taxation in said county; that on or about the 7th day of November, 1903, said firm,, for the purpose of extorting from the plaintiff any information it might possess as to property owned by others, not in any way in the possession or under the control of plaintiff as agent, made a report to the defendant treasurer that the plaintiff had in its possession and under its control as agent for other parties, not naming them, moneys, loans, and credits that had been omitted from taxation for the years 1899 to 1902 inclusive, aggregating over $2,000,-000; that on November 10, 1903, defendant gave to the plaintiff notice of said report and of a proposed assessment thereon; that, at the time said report was made and filed, said firm had no evidence that appellee had in its possession or under its control, as agent, moneys, loans, and credits belonging to other parties, and the same was based solely on surmise and conjecture, and the said Carroll, at the time he sent appellee the notice, knew, that said firm had no evidence of the truth of the matters set forth in the report and notice. The petition further alleges the filing of written objections to the listing and assessing of said property, and a denial by appellee that it had in its possession, or under its control, for other parties, property liable for taxation for said years; that said Carroll, .on the 1st day of December, 1903, listed and assessed against plaintiff as agent for others the property alleged to have been omitted from taxation for said years; that at said time no evidence was offered or furnished to said defendant upon which said listing and assessing could be based, and the same was so listed and assessed on surmise and conjecture; that no evidence was offered or produced to \\u2022show that plaintiff was acting as the agent of any person; that there was no evidence to show that plaintiff had in its possession or under its control any moneys, notes, credits, or personal property belonging to other persons, with a view of investing the same for pecuniary profit for plaintiff or the owner; that no evidence was offered showing the name of any person owning such personal property. The defendant demurred to this petition, and, the demurrer being overruled, he answered, admitting some of the allegations of the petition, but denying that the report of Fleener, Schleicher & Martin was based solely upon surmise and conjecture; denying that the defendant acted without evidence and upon surmise alone in listing and assessing the property, and with-o'ut evidence that the plaintiff was acting as agent and had in its possession moneys and other personal property belonging to other persons, for the purpose of investment; denying that there was a lack of evidence showing the names of the persons to whom the property belonged. The answer affirmatively alleges \\\" that plaintiff had in its possession and control as agent for others, nonresidents of Iowa, unknown to defendants, moneys and credits, holding the same for pecuniary profit, and omitted from taxation \\\" for the years for which it had been assessed by the defendant. After the filing of this answer the plaintiff filed an amendment to its petition assailing the proposed assessment of property omitted in 1903 for substantially the same reasons given in the original petition. Appellant's demurrer to the amendment to the petition was overruled, and thereafter appellee demurred to the answer and the demurrer was sustained. The defendant elected to stand on his demurrer to the amendment to the petition and on his answer to the original petition, and the relief asked by the plaintiff was granted.\\nThe defendant having appealed from the ruling on his demurrer to the amendment to the petition as well as from the ruling on the plaintiff's demurrer to his answer, all of the questions raised by the plaintiff in his original petition are practically before us for determination notwithstanding, the affirmative averment of the answer which the demurrer admits.\\nThe important and controlling question in this case is whether the assessment made by the treasurer was absolutely void or erroneous only. If illegal and void, its collection may enjoined in equity even if there be a tribunal provided for reviewing the same. It is only in cases where the tax is irregular or erroneous that the remedy by appeal is exclusive; where the tax is void, the party 'is not obliged to appeal or. proceed by certiorari.. Barber v. Farr, 54 Iowa, 57; Powers v. Bowman, 53 Iowa, 359; Rood v. Board, 39 Iowa, 444; C. M. & St. P. Ry. Co. v. Phillips, 111 Iowa, 377; Layman v. Telephone Co., 123 Iowa, 599.\\nThe appellee contends that the assessments made by the defendant, as treasurer, were illegal and void, and made without authority of law for the following reasons: An agent cannot be assessed for the tax on pfioperty his principal. An assessment against proper^y 0f a nonresident must be made in the name of the property holder and not in the name of the agent. Before the agent can be made personally liable for the tax, the fact of agency must exist, and there must be evidence showing same and the existence of property subject to taxation which is held by the agent for pecuniary profit. It is further said that the assessment was based on fraud and conspiracy, and made for the purpose of extorting information from the appellee. Code, section 1316, provides that \\\" any person required to list property belonging to another . . . shall list it as if it were his own, but he shall list it separately from his own giving the assessor the. name of the person or estate to wdiich it belongs.\\\" And Code, section 1320, is as follows: \\\"Any person acting as the agent of another, and having in his possession or under his control or management any money, notes and credits, or personal property belonging to such other person, with a view' to investing or loaning or in any other manner using or holding the same for pecuniary profit, for himself or the owner, shall be required to list the same at the real value, and such agent shall bo personally liable for the tax on the same; and, if he refuse to render the list or to swear to the same, the amount of such money, property, notes or credits may be listed and valued according to the best knowledge and judgment of the assessor.\\\"\\nThe property in question was assessed to the plaintiff as agent without giving the names of the owners thereof, and the appellee argues that the defendant had no authority to so assess it, because of the requirement of section 1316 that a person required to list property belonging to another, shall list it separately from his own, giving the assessor the name of the person to whom it belongs. While this section makes it the duty of a person required to list property, to list it separately from his own and to give the assessor the name of the owner, and it may perhaps be said that section ,1320 contemplates the same thing, it does not follow that an assessment may not be made to a party as agent under the latter section. The purpose of the section is to reach property belonging to nonresidents of the State. Trust Co. v. Board of Equalization, 121 Iowa, 325. When the agency, and the possession, control, or management is shown to exist, for the purpose designated by -the section, the agent becomes personally liable for the tax. This liability was undoubtedly imposed by the Legislature for the purpose of more completely enforcing collection of the tax, and with the idea of compelling the agent to stand in the place of his principal; otherwise such personal liability would probably not have been imposed. If the agent lists the property and discloses the name of his principal, it may be that the property should then be assessed to the principal, but we are not certain that such was the intent. The agent's personal liability being fixed in any event, it would naturally follow that the property should be assessed to him for the purpose of avoiding mistake, and confusion in the future. But, however that may be, it is clear that personal property must be assessed to some \\\" named individual; \\\" and if the agent refuse to disclose the name of his principal, we know of no sound reason for holding that there can be no assessment. If such a rule were to be adopted it would greatly facilitate the evasion of just taxation, and might effectually destroy the purpose of the statute. While the precise question now under consideration was not directly involved in the case, we referred to it in Trust Co. v. Board, supra, and said: \\\" The assessment must be made to some named individual \\u2014 the owner, if an inhabitant of the State; but, if he be a nonresident, then the resident agent found in possession or control of the property.\\\"\\nIn this case the plaintiff denied its agency and asserted that it had no property liable to assessment; hence, if the assessor found that the other conditions of the section existed, we think he was justified in assessing the property to appellee as agent without naming the owners thereof. Before an agent can be made personally liable for the tax, the fact of agency must be shown, and it must further be shown that he has possession or control of property for investment or use as provided by the statute. Code, section 1320; Trust Co. v. Board, supra.\\n8' Sfngs*: efflct of demurrer. The appellee claims that none of these requirements had been met when the treasurer made the assessment in question, and that he was therefore without jurisdiction and .his act absolutely illegal and void. The precise point is made that the treasurer . i i i \\u2022 i \\u2022 , acted solely on surmise and conjecture as to those matters. As to the tax for the years 1899 to 1902 inclusive, the answer alleges the existence of the agency and the other facts necessary to warrant an assessment, and the truth of the allegations are admitted by the demurrer. The appellee seeks to avoid the force of this position by arguing that the answer admits facts which show that the assessment was void, first, because it admits that the assessment was made in the name of the bank and failed to state the name of the owner of the property; it admits that the appellee denied holding any property as agent, and fails to allege that the agent refused to list the property of its principal. All of these contentions are practically disposed of by what has been said relative to the assessment to the plaintiff as agent. Tt is true, the answer admits that the appellee denied holding moneys or credits as agent, but such ad mission does not destroy or modify the positive allegation of the answer to the contrary. So far, then, as the assessment for the years 1899 to 1902 is concerned, the contention that it was made on surmise and conjecture cannot be sustained.\\nSection 1314 of the Code confers on the treasurer the power to assess omitted property, and, in the exercise of this power, he notified the appellee to appear and show cause why the property in question should not be l 1 i \\u2022 ,7 77 t assessed; and, when the appellee, responding . . . to such notice, appeared and denied that it had in its possession or under its control as agents any part of the amount named in the notice as subject to taxation, we think the treasurer had the same power to assess that is conferred on the regular assessor by Code, section 1320.\\nThe appellee further contends that the demurrer to the amendment to the petition was properly sustained because the allegations of said amendment,, admitted by the demurrer, show that the firm making the report the treasiirer> and the treasurer himself, had no eviqeuce sustaining the report, or upon which an assessment could be based.- Whether Eleener, Schleicher & \\\"Martin had evidence upon which to base their report, we do not consider material. The duty of making an assessment did not rest on them; and hence the basis of their report could in no way affect or control the action of the treasurer. The amendment does not allege that the plaintiff was not, in fact, the agent of others, having in its possession or under its control for investment, moneys, notes, and credits. It seems to have carefully. avoided such an allegation; it went no further than to aver that it had made such claim in response to the notice of the treasurer. Had the pleading negatived all of the essentials for a legal assessment under Code, section 1320, an entirely different case would be presented. But it simply says that the treasurer will assess without sufficient evidep.ce of the several matters necessary for a legal assessment. If, as a matter of fact, the plaintiff was liable as agent under section 1320, and there is no denial of this in the pleading under consideration, the notice required by chapter 50, Acts 28th General As-\\u00a1\\u00a1 semhly, gave the-treasurer jurisdiction to make the assess-1 ment, and the question whether he acted on sufficient evidence can be determined only on an appeal. It is fundamental that jurisdiction can never depend on the sufficiency of the evidence. If an officer or tribunal who has the power and whose duty it is to hear and determine a cause is guilty only of a defective or wrongful execution of such power, the judgment is not void, it is only voidable and stands as valid until reversed on appeal. 17 Am. & Eng. Enc. of Law, 1047, 1071, 1072, and cases cited. An appeal is provided' in these cases, and we are of opinion that it is on an appeal that the court must determine on the whole evidence whether an assessment has been properly made, \\\" and, if it finds that, under the evidence, no assessment should have been made,\\\" it should set it aside. Schoonover v. Petcina, 126 Iowa, 261. It is true, as we said in Galusha v. Wendt, 114 Iowa, 597, an assessment should not be made on mere surmise, but that goes to the question of the sufficiency of the evidence alone; and hence is not jurisdictional. Code, section 1374, provides thaf when the treasurer is apprised \\\" that property subject to taxation is, for any reason, not listed and assessed, he shall act; and, by chapter 50, Acts 28th General Assembly, an appeal from his action is provided for. A remedy by appeal being thus provided, an action to restrain the treasurer will not lie unless it be made clearly to appear that the assessment is absolutely illegal and void/ See cases heretofore cited, and Security Savings Bank v. Carroll, 128 Iowa, 230; Home Savings & Trust Co. v. Hicks, 116 Iowa, 114; Stevens v. Carroll, 130 Iowa, 463.\\nThe district court erred in sustaining the demurrers, and its judgment must be, and it is, reversed.\"}"
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+"{\"id\": \"7064317\", \"name\": \"In the Interest of J.M., Minor Child, J.M., Minor Child, Appellant\", \"name_abbreviation\": \"In the Interest of J.M.\", \"decision_date\": \"2013-03-27\", \"docket_number\": \"No. 12-1963\", \"first_page\": \"713\", \"last_page\": \"723\", \"citations\": \"832 N.W.2d 713\", \"volume\": \"832\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Court of Appeals\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:55:58.286108+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.\", \"parties\": \"In the Interest of J.M., Minor Child, J.M., Minor Child, Appellant.\", \"head_matter\": \"In the Interest of J.M., Minor Child, J.M., Minor Child, Appellant.\\nNo. 12-1963.\\nCourt of Appeals of Iowa.\\nMarch 27, 2013.\\nDana L. Copell, Davenport, for appellant.\\nThomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Walton, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.\\nTimothy Tupper, Davenport, for mother.\\nJack E. Dusthimer, Davenport, for ami-cus curiae.\\nConsidered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.\", \"word_count\": \"5004\", \"char_count\": \"30067\", \"text\": \"MULLINS, J.\\nThe child's guardian ad litem (GAL) appeals from a modification and permanency review order changing the child's level of care from foster family care in Iowa to relative care in Mexico. The GAL contends the juvenile court erred in (1) refusing to grant a continuance, (2) refusing to grant a motion for a child therapist to examine the child, (3) refusing to grant a request for a neutral translator, (4) refusing to hold a hearing on whether the Department of Human Services (DHS) prevented the GAL from performing her duties, (5) modifying the level of care in the absence of any substantial and material change in circumstances, (6) admitting a home study performed in Mexico into evidence, and (7) modifying the level of care in the absence of any showing it would further the child's best interests. We find the juvenile court was without subject matter jurisdiction to adjudicate the child as a child in need of assistance. Accordingly, we vacate in part, reverse in part, and remand.\\nI. Background Facts & Proceedings\\nJ.M. was born in Texas on August 3, 2010. J.M.'s mother is a citizen of Mexico who came to the United States at the age of sixteen. J.M.'s father lives in Texas and is married to another woman. The father was aware of J.M.'s birth, but until these proceedings, his wife was not. J.M.'s mother and father did not maintain a relationship after J.M.'s birth but did communicate about issues relating to J.M. The mother has three other children from a previous relationship who are not at issue in the present appeal.\\nFrom August 3, 2010, through an unspecified date in February 2011, J.M. lived in Texas with the mother and three siblings. In February 2011, the mother returned to Mexico because, as she later explained, her grandmother was ill. In May 2011, the mother returned to Texas.\\nAt some point between May 2011 and July 2011, the mother asked J.M.'s paternal aunt in Texas to watch her three older children. The mother indicated she was leaving with J.M. and another woman to look for employment. Although J.M.'s paternal aunt was not related to the three children, she agreed to watch them. The mother, J.M., and the other woman then boarded a bus for Iowa.\\nOn July 26, 2011, police officers executed a search warrant at a hotel room in eastern Iowa where the mother and J.M. were staying. Police officers found the mother in possession of over six ounces of methamphetamine. Officers arrested the mother, removed J.M. from her care, and placed J.M. into foster family care. The mother remained in custody on state and federal charges with a hold from the U.S. Immigration and Customs Enforcement for the remainder of these proceedings because of her illegal immigration status.\\nThe next day the juvenile court entered an ex parte removal order and temporarily placed J.M. with DHS for foster family care placement. After outlining the circumstances leading to J.M.'s removal, the court found \\\"The father is also a known drug dealer and may not be appropriate to assume care of the child.\\\"\\nLater that day a DHS worker interviewed the mother at the Scott County jail with the assistance of an interpreter. According to the DHS report, the mother stated she \\\"did not have a current residence when she left for Iowa.\\\" The mother explained that before coming to Iowa she \\\"was staying at hotels with [J.M.] and her other children.\\\" She also indicated she \\\"was unemployed when she came to Iowa\\\", and had \\\"been supporting herself by receiving food and medical assistance, and receiving child support from [J.M.'s father].\\\" The mother asserted that the father was a good father, was involved with J.M., and financially assisted her in caring for J.M. After the interview, DHS was able to obtain the father's date of birth and last known address in Texas. An initial criminal history search for the father revealed no criminal history in Iowa or Illinois.\\nOn July 28, 2011, the State petitioned to adjudicate J.M. as a child in need of assistance (CI\\u00d1A). The petition asserted the juvenile court had jurisdiction to make a child custody determination because Iowa was \\\"the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding.\\\" In the alternative, the State asserted the juvenile court had jurisdiction because \\\"[t]he child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child . is subjected to or threatened with mistreatment or abuse.\\\"\\nTo support a jurisdictional basis for the CINA petition, the State attached a standard jurisdictional affidavit from the DHS worker who interviewed the mother at the Scott County jail. Although the child had never lived with the father, the affiant listed the child's address as the father's last known address in Texas. In response to the jurisdictional form's request to list \\\"[t]he places where the child has lived within the last five years and the names and present addresses of person who have lived with the child during this period\\\", the affiant listed the mother's name and did not include an address. In response to an inquiry about whether DHS had \\\"information of any custody proceedings concerning the child pending in an Iowa state court or any other state court\\\", the affiant stated \\\"No\\\". The affiant further indicated DHS knew of no other \\\"persons (sic) not a party to the proceeding who has physical custody of the child or claims to have custody or visitation with the child.\\\"\\nSoon after petitioning for adjudication, a DHS worker made contact with J.M.'s paternal aunt. The aunt expressed a desire to be considered as a placement option for J.M. She indicated that the father's wife did not know he had fathered J.M. She denied that the mother or the father had any history using or selling drugs. DHS then made contact with J.M.'s father. The father expressed a desire to have J.M. placed in his care. He denied any history of illegal drug use.\\nIn August 2011, the juvenile court held an uncontested removal hearing. The court asserted that it had jurisdiction over the parties and the subject matter. The court then ordered J.M. to continue to be placed with DHS for foster family placement.\\nIn September 2011, the juvenile court held an uncontested adjudication hearing. The court found it \\\"has jurisdiction of the parties and of the subject matter. The mother appeared, submitting to the jurisdiction of the Court.... The father has submitted to jurisdiction of the Court by submission of an Application for Appointment of Counsel.\\\" The court then adjudicated J.M. as a child in need of assistance. Afterwards, DHS initiated procedures to request an Interstate Compact on the Placement of Children (ICPC) home study for the purpose of placing J.M. with relatives in Texas.\\nIn October 2011, the juvenile court held an uncontested dispositional hearing. The court asserted that it \\\"has jurisdiction of the parties and of the subject matter.\\\"\\nLater that month the Texas Department of Family and Protective Services (Texas FPS) closed Iowa's home study request. The father used his sister's address in Texas for the home study. The Texas FPS explained that they closed the home study because the father failed to return identification and social security cards for his sister and her husband. The father indicated he would attempt a home study at his address. If he did not pass this home study, he listed his mother and father in Mexico as an alternate placement option.\\nIn November 2011, the mother was indicted on federal charges. She was transported to a jail in Illinois pending the outcome of her case. After learning that the father's home study had been denied, the mother requested home studies on her brother and her cousin, Sandra, in Mexico. Sandra contacted DHS about J.M. and provided sufficient information for DHS to contact the Mexican Consulate to request a home study.\\nIn February 2012, the court held on uncontested review hearing. The court found it \\\"has jurisdiction of the parties and of the subject matter.\\\" The court noted that a second ICPC request had been made in an attempt to place J.M. with the father. At that time, the Mexican Consulate had not responded to many calls to facilitate placement with relatives in Mexico. The court noted that DHS \\\"is going to change the child's foster home to a foster-to-adoption home in the near future as a concurrent plan. Meanwhile [DHS] shall diligently pursue possible placement of [J.M.] with his father or relatives in Mexico.\\\" The court found that it was \\\"disconcerting that the child's father has not followed through with ICPC and has not even visited his young son since his placement. No explanation for his lack of contact, other than distance, was given.\\\"\\nIn late February 2012, DHS made contact with the Mexican Consulate. The Mexican Consulate approved home studies for J.M.'s paternal grandmother and the mother's cousin, Sandra. After considering the wishes of both parents and J.M.'s best interests, DHS decided to request the court's permission to place J.M. with Sandra and her husband in Mexico.\\nIn March 2012, the Texas FPS closed a second home study request for placement with the father. This request was denied because the father indicated he was moving into his sister's home. Texas FPS indicated they could not perform a home study in a home where the father did not yet reside. The agency requested Iowa resubmit a home study request with the current address after the father moved. DHS declined to pursue another home study for placement with the father.\\nIn June 2012, the juvenile court held a contested permanency hearing. The court took the matter under advisement and did not issue a decision at that time.\\nAfter the permanency hearing, the GAL filed a petition to terminate the mother's and the father's parental rights. In explaining the urgency of termination, the GAL argued, in part, \\\"If [termination of parental rights] is not ordered, the father could simply go get the child and may be able to initiate custody proceedings in Texas.\\\" Termination of parental rights proceedings were set to begin in September 2012, but were re-set for December 2012.\\nOn October 3, 2012, the State filed a motion to modify the dispositional order. The State sought to change the level of J.M.'s care from foster family care to relative placement with the intent of placing J.M. with Sandra and her husband in Mexico. The State's motion indicated Sandra would be in Iowa from October 2 through October 9, 2012, and requested the court set a hearing to determine whether the requested placement was in J.M.'s best interests. The motion asserted \\\"Notice to the parties is the earliest notice possible given the geographical constraints inherent in this case.\\\" The juvenile court set a hearing for October 8, 2012. Between October 2 and October 9, 2012, Sandra exercised supervised visits with J.M.\\nJust hours before the October 8, 2012 hearing, the GAL filed a response to the State's motion and moved for a continuance. The GAL indicated that the one hour scheduled for the hearing on the State's motion to modify was insufficient to address J.M.'s best interests. The GAL asserted she was not given access to observe Sandra's interactions with J.M., and requested time to determine whether DHS had interfered with the GAL's role. The GAL also requested a neutral interpreter and a child therapist to address the possibilities of an attachment disorder inherent in removing a young child from a closely-bonded foster family and placing the child in a foreign country.\\nThe juvenile court denied the GAL's motion for a continuance and proceeded with the hearing on the State's motion to modify disposition. The State presented testimony from Sandra. She reported that she was a U.S. citizen born in Illinois. She asserted that she is a human rights attorney in Mexico and her husband is an attorney for an agency similar to DHS. She indicated they had already adopted one child in Mexico, and reported the adoption procedures were similar to those utilized in the United States. She arranged for a bilingual day care and a bilingual private school for J.M. pending the outcome of the proceedings.\\nOn October 10, 2012, the juvenile court issued a written decision on the June 2012 permanency hearing. The court outlined its jurisdictional basis as follows:\\nThe Court has jurisdiction of the parties and of the subject matter. The child lived in several different jurisdictions, a few months in Mexico and the remaining months in Texas, in the six months prior to his arrival in Iowa. His only connection to Iowa was his and his mother's presence in the State at the time of removal. He was removed from his mother's custody by law enforcement officers as they arrested her for a federal drug delivery charge. No other jurisdiction has asserted its primacy over the parties or the subject matter. No party to this action has disputed Iowa's jurisdiction at any hearing, including this hearing.\\nThe court confirmed J.M.'s adjudication as a child in need of assistance. The court then concluded it \\\"could not find that termination wouldn't be in the best interests of [J.M.] \\\"\\nOn October 18, 2012, the juvenile court resumed the hearing on the State's motion to modify disposition. The GAL presented testimony from J.M.'s daycare provider and J.M.'s foster family care parent. At the conclusion of all the evidence, the GAL resisted modifying the prior dispositional order changing the level of care. The mother, the father, and DHS supported placing the child with Sandra and her husband in Mexico.\\nOn November 1, 2012, the juvenile court ordered that the permanency order entered on October 10, 2012, be modified. The court placed J.M. with Sandra and her husband in Mexico under the supervision of DHS. The juvenile court granted the GAL's request for an emergency stay preventing the child from leaving the country, and the GAL filed an appeal.\\nOn appeal, this court sua sponte raised the issue of whether the juvenile court had subject matter jurisdiction to adjudicate the child as a child in need of assistance pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). See Iowa Code ch. 598B (2011). We will develop additional facts and circumstances as necessary.\\nII. Standard of Review\\nWe review jurisdictional issues under the UCCJEA de novo. See In re Guardianship of Deal-Burch, 759 N.W.2d 341, 343 (Iowa Ct.App.2008).\\nIII. Subject Matter Jurisdiction\\nTo determine whether the juvenile court erred in modifying the disposi-tional order, we must first address the question of whether the juvenile court had subject matter jurisdiction to enter the child in need of assistance and dispositional orders. The UCCJEA sets forth statutory requirements to establish jurisdiction over a child custody determination. See Iowa Code ch. 598B. Whether a case satisfies those statutory requirements raises a question of subject matter jurisdiction. See In re Jorgensen, 627 N.W.2d 550, 554 (Iowa 2001) (analyzing former Iowa Code chapter 598A, the Uniform Child Custody Jurisdiction Act (UCCJA), predecessor to the UCCJEA). Neither the parties nor the court may waive the issue of subject matter jurisdiction by consent or through failure to address or prove jurisdiction. See id. Only the constitution or a statute may confer subject matter jurisdiction. See Klinge, 725 N.W.2d at 15. The parties, or the court, may raise a question of subject matter jurisdiction at any time. See Jorgensen, 627 N.W.2d at 554. On appeal, we may, and should, examine the grounds for subject matter jurisdiction even though the parties have not. See id. at 555. If the juvenile court lacks subject matter jurisdiction, we must dismiss. See id.\\nThe UCCJEA section 598B.201(1) provides \\\"the exclusive jurisdictional basis for making a child-custody determination.\\\" Iowa Code \\u00a7 598B.201(2). Section 598B.201(1) provides:\\n1. Except as otherwise provided in section 598B.204, a court of this state has jurisdiction to make an initial child-custody determination only if any of the following applies:\\na. This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.\\nb. A court of another state does not have jurisdiction under paragraph \\\"a\\\", or a court of the home state of the child has declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 598B.207 or 598B.208 and both of the following apply:\\n(1) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.\\n(2) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.\\nc. All courts having jurisdiction under paragraph \\\"a\\\" or \\\"b\\\" have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 598B.207 or 598B.208.\\nd. No court of any other state would have jurisdiction under the criteria specified in paragraph \\\"a\\\", \\\"b\\\", or \\\"c\\\".\\nTo analyze whether the juvenile court had subject matter jurisdiction under chapter 598B, we must first consider the provisions under section 598B.204. See Iowa Code \\u00a7 598B .201(1) (\\\"Except as otherwise provided in section 598B.204.... \\\").\\n1. Temporary Emergency Jurisdiction\\nSection 598B.204 provides for temporary emergency jurisdiction under certain circumstances. An Iowa court \\\"has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.\\\" \\u00a7 598B.204(1). In this case, J.M. was removed from his mother's custody while she was temporarily in the state for the apparent purpose of trafficking narcotics. At the time of removal, the court could not identify an appropriate care provider while the mother was in jail. Under these circumstances, we find the juvenile court had temporary emergency jurisdiction to enter the temporary removal order. See id.; In re E.D., 812 N.W.2d 712, 716-17 (Iowa Ct.App.2012).\\nA custody determination made under the court's temporary emergency jurisdiction is a temporary order. See Uniform Child Custody Jurisdiction and Enforcement Act (1997) \\u00a7 204 cmt. (setting forth the official comments to the temporary emergency jurisdiction section of the UCCJEA). A court cannot premise a subsequent child in need of assistance adjudication and dispositional order on section 598B.204(1) alone. See E.D., 812 N.W.2d at 718.\\n2. Home State Jurisdiction\\nExcept as provided under the temporary emergency jurisdiction provisions, a court has jurisdiction to make an initial child custody determination if \\\"[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding.\\\" See Iowa Code \\u00a7 598B.201(l)(a). \\\"Home state\\\" is defined as \\\"the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.\\\" Id. \\u00a7 598B.102(7).\\nIn the State's CINA petition, it asserted Iowa was J.M.'s home state, or in the alternative the court had temporary emergency jurisdiction. It was the State's burden to make a prima facie showing of jurisdiction. See Addison Ins. Co. v. Knight, 734 N.W.2d 473, 476 (Iowa 2007); see also Iowa Code \\u00a7 598B.209. At the commencement of the CINA proceeding and throughout the proceeding, the evidence clearly shows that the State did not meet its burden to show that the child had lived in Iowa for at least six consecutive months. We find that Iowa was not J.M.'s home state. See Iowa Code \\u00a7 598B.102(7). As previously articulated, the court cannot predicate a final child custody determination on temporary emergency jurisdiction alone. See E.D., 812 N.W.2d at 718.\\nAs Iowa was not J.M.'s home state, we must consider whether another state was the child's home state, \\\"or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.\\\" See Iowa Code \\u00a7 598B.201(1). For purposes of the home state analysis, periods of \\\"temporary absence\\\" do not count as part of the six month calculation. See id. \\u00a7 598B.102(7).\\nJ.M. was born in Texas. He lived in Texas from August 3, 2010, through an unspecified date in February 2011. From February 2011 through May 2011, the mother was in Mexico. The mother later explained that she was in Mexico because her grandmother was ill. In May 2011, she returned to Texas. Although she boarded a bus for Iowa, she had asked J.M.'s paternal aunt to watch three of her children while she looked for employment \\u2014 evidencing a clear intent to return to Texas. At the time the State commenced the child custody proceedings in July 2011, neither the State nor the juvenile court knew what day in February the mother left Texas for Mexico and whether or not the mother's intent was to reside in Mexico. Thus, we cannot determine whether the mother lived in Texas for the requisite six months \\u2014 August 3, 2010 through February 3, 2011 \\u2014 not counting a period of temporary absence from Texas and are unable to make a home state determination. See id. \\u00a7 598B.201(l)(a), .102(7).\\n3. \\\"Significant Connection\\\" Jurisdiction\\nWe now turn our analysis to section 598B.201(l)(b) to determine whether Iowa or Texas has jurisdiction. Pursuant to section 598B.201(l)(b), a court has initial child-custody jurisdiction, if\\n(b) A court of another state does not have jurisdiction under paragraph \\\"a\\\", or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 598B.207 or 598B.208 and both of the following apply:\\n(1) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.\\n(2) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.\\nAt the time the State commenced the initial child custody proceedings in July 2011 in the Iowa juvenile court, the mother had no connection to Iowa other than her temporary presence. We find neither the mother nor the child had a significant connection with this state other than their mere physical, temporary presence. Thus, Iowa did not have significant connection jurisdiction. See id. \\u00a7 598B.201 (l)(b)(l). Further, substantial evidence concerning the child's care, protection, training, and personal relationships was not available in Iowa. See id. \\u00a7 598B.201 (l)(b)(2).\\nOn the other hand, at the time these proceedings commenced, the father lived in Texas. The mother had lived in Texas for the past four years and was only temporarily in Iowa for the apparent purpose of distributing narcotics. The mother's three other children, J.M.'s half-siblings, continued to live in Texas. J.M. was born in Texas and for the majority of his life had lived in Texas \\u2014 notwithstanding the absence from February through May of 2011. Upon our de novo review, we find J.M., the mother, and the father all had a significant connection with Texas. See id. \\u00a7 598B.201 (l)(b)(l). Substantial evidence of J.M.'s care, protection, training, and personal relationships was also available in Texas. See id. \\u00a7 598B.201(l)(b)(2). Thus, we find Texas, and not Iowa, had jurisdiction under section 598B.201 (l)(b).\\n4. Jurisdiction Under Section 598B.207 or .208\\nThe State and the GAL argue Iowa communicated with Texas and Texas declined jurisdiction. Under section 598B.201 (l)(a) and (b), a court having either home state or significant connection jurisdiction may decline to exercise jurisdiction because another state is a more convenient forum or party seeking to invoke its jurisdiction engaged in unjustifiable conduct. See id. \\u00a7 598B.201 (l)(a), (b), .207, .208. Iowa DHS contacted Texas FPS to arrange for home studies on J.M.'s relatives living in Texas. Part of the reason the home studies were denied is because Iowa did not have access to the type of information about the relatives that would have been available to agencies in Texas. Although DHS communicated with Texas FPS, this is not a substitute for a Texas judicial determination that it has declined to exercise jurisdiction or that Iowa is a more appropriate forum under the factors set forth in section 598B.207 or 598.208. See id. Thus, Iowa did not have subject matter jurisdiction under section 598B.201(l)(c).\\n5. Default Jurisdiction\\nThe State and the GAL argue Iowa had jurisdiction pursuant to Iowa Code section 598B.201(l)(d). Under section 598B.201(l)(d), a court of this state has jurisdiction to enter an initial child custody determination if no other state has jurisdiction under subparagraphs \\\"a\\\", \\\"b\\\", or \\\"c\\\" under section 598B.201(1). As we find Texas had jurisdiction under section 598B.201(l)(b), the Iowa juvenile court did not have jurisdiction by default.\\n6. Jurisdiction under Iowa Code section 598B.204(2)\\nWe recognize that even when Iowa is not the child's home state, a temporary child custody order may become a final child custody determination. See Iowa Code \\u00a7 598B.204(2), (3). Pursuant to section 598B.204(2), \\\"If a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 598B.201 through 598B.203, a child-custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.\\\" Upon our de novo review of the juvenile court's adjudication and subsequent dispositional orders, the juvenile court did not so provide. See E.D., 812 N.W.2d at 721-22.\\nIV. Conclusion\\nJuvenile courts have an obligation to determine the existence of subject matter jurisdiction. See State v. Lasley, 705 N.W.2d 481, 485-86 (Iowa 2005). It is well-settled that \\\"when a court is confronted with a question of its own authority to proceed, it should take charge of the proceedings affirmatively, regardless of the vehicle used to raise the issue.\\\" Id. (citations omitted). To assist the court in its subject matter jurisdiction analysis in a child-custody proceeding, each party has an obligation to submit a jurisdictional affidavit in its first pleading. Iowa Code \\u00a7 598B.209(1). If a party fails to present the jurisdictional information, \\\"the court, upon motion of a party or its own motion, may stay the proceedings until the information is furnished.\\\" Id. \\u00a7 598B.209(2). Here, only the State presented such an affidavit. The bare assertions in that affidavit were insufficient to establish jurisdiction in this case.\\nIf a court is uncertain as to whether the facts support a finding of subject matter jurisdiction, the best practice is to stay proceedings until all parties submit jurisdictional affidavits or, in an appropriate case, communicate with a court having jurisdiction under section 598B.201. See E.D., 812 N.W.2d at 719-21. Unfortunately that did not happen in this case. As we find the juvenile court was without subject matter jurisdiction to enter the adjudication and subsequent dispo-sitional orders, we must reverse and remand for an order dismissing both the child-in-need-of-assistance petition and the petition to terminate parental rights. See E.D., 812 N.W.2d at 722; Jorgensen, 627 N.W.2d at 555. We vacate the order adjudicating the child as a CI\\u00d1A and vacate all subsequent dispositional orders.\\nThis ruling does not affect the authority of the juvenile court to continue to exercise its temporary emergency jurisdiction pursuant to section 598B.204 for a reasonable time.\\nVACATED IN PART, REVERSED IN PART, AND REMANDED.\\n. The mother denied any methamphetamine use. A subsequent hair stat test on J.M. was negative for the presence of any drugs.\\n. The State filed a previous motion on October 2, 2012, requesting the court set a hearing for October 5, 2012. Although the court set a hearing for October 5, 2012, the State filed the subsequent October 3, 2012 motion after learning of a scheduling conflict.\\n. \\\"Subject matter jurisdiction is the court's power to hear and determine cases of the general class to which the proceedings in question belong, not merely the particular case then occupying the court's attention.\\\" Klinge v. Bentien, 725 N.W.2d 13, 15 (Iowa 2006) (discussing the difference between subject matter jurisdiction and the court's authority to hear a particular case).\\n. See Part III.6 (recognizing that even when Iowa is not the child's home state, a tempo rary child custody order may become a final child custody determination under section 598B.204(2) and (3)).\\n. We note the Texas version of this provision of the UCCJEA is substantially the same as Iowa's version. Accordingly, we will only cite the Iowa statute in this analysis. See Tex. Fam.Code Ann. \\u00a7 152.201.\"}"
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+"{\"id\": \"8360255\", \"name\": \"STATE of Iowa, Appellee, v. Timothy Allen WILLARD, Appellant\", \"name_abbreviation\": \"State v. Willard\", \"decision_date\": \"2008-09-19\", \"docket_number\": \"No. 07-0315\", \"first_page\": \"207\", \"last_page\": \"216\", \"citations\": \"756 N.W.2d 207\", \"volume\": \"756\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:01:14.623315+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Appellee, v. Timothy Allen WILLARD, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Timothy Allen WILLARD, Appellant.\\nNo. 07-0315.\\nSupreme Court of Iowa.\\nSept. 19, 2008.\\nMark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.\\nThomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Harold L. Denton, County Attorney, and Jason A. Burns, Assistant County Attorney, for appellee.\", \"word_count\": \"3094\", \"char_count\": \"19487\", \"text\": \"STREIT, Justice.\\nTimothy Willard is a sex offender subject to the residency restrictions found in Iowa Code section 692A.2A (2005). He bought a house within two thousand feet of a school. The sheriff told Willard he could not live in the house. After Willard did not move out of the house, he was charged with violating section 692A.2A. He filed a motion to dismiss, claiming the two-thousand-foot rule was unconstitutional. The district court denied his motion, and Willard was convicted. We hold section 692A.2A is not a bill of attainder and does not violate equal protection or procedural due process. Willard failed to preserve for appeal his claim alleging interference with the right to interstate travel. We affirm.\\nI.Facts and Prior Proceedings.\\nIn April 1997, Willard pled guilty to two counts of indecent contact with his then twelve-year-old stepdaughter. The girl told her school counselor Willard touched her genitals and was pressuring her to have sex with him. As a result of his conviction, Willard is subject to the residency restrictions found in Iowa Code chapter 692A. A person who has committed a sexual offense against a minor may not live within two thousand feet of a school or child-care facility. Iowa Code \\u00a7 692A.2A(2).\\nIn February 2004, the federal district court for southern Iowa held the two-thousand-foot rule unconstitutional on several grounds and enjoined the State from enforcing the law. See Doe v. Miller, 298 F.Supp.2d 844 (S.D.Iowa 2004). However, the Eighth Circuit Court of Appeals reversed the district court on April 29, 2005. Doe v. Miller, 405 F.3d 700 (8th Cir.2005), cert. denied, 546 U.S. 1034, 126 S.Ct. 757, 163 L.Ed.2d 574 (2005). A few days later \\u2014 May 7, 2005 \\u2014 Willard signed a contract to purchase a house located at 120 First Street in Alburnett, Iowa. He notified the Linn County Sheriff of his new address. See Iowa Code \\u00a7 692A.2, .3 (requiring a person convicted of a sexual offense to register with the sheriff of the county of the person's residence).\\nIn October 2005, the sheriff notified Willard his new house was within two thousand feet of a school. The sheriff gave Willard thirty days to establish a residence in compliance with section 692A.2A. After Willard did not move, the State charged him with violating the residency restrictions under section 692A.2A, an aggravated misdemeanor.\\nWillard filed a motion to dismiss, alleging section 692A.2A violated his right to procedural due process, constituted a bill of attainder, was vague and overbroad, violated his right to equal protection, unconstitutionally affected his family relationships, and violated his right to travel. The court held a hearing on the motion. Thereafter, the'parties filed briefs with the district court. Willard briefed only three constitutional claims: bill of attainder, equal protection, and procedural due process. The district court denied Willard's motion to dismiss, concluding section 692A.2A did not violate Willard's \\\"constitutional rights of equal protection nor procedural due process, and it is not a bill of attainder.\\\"\\nWillard waived his right, to a jury trial and stipulated to the minutes of evidence. The district court found he violated the residency restrictions and imposed a $500 fine.\\nOn appeal, Willard challenges the district court's denial of his motion to dismiss and contends the two-thousand-foot rule is a bill of attainder, violates his constitutional right to equal protection and procedural due process, and interferes with his constitutional right to travel. We affirm for the reasons that follow.\\nII. Scope of Review.\\nConstitutional claims are reviewed de novo. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).\\nIII. Merits.\\nIowa's two-thousand-foot rule has withstood constitutional challenge on several occasions. See Miller, 405 F.3d at 704-05; Wright v. Iowa Dep't of Corr., 747 N.W.2d 213 (Iowa 2008); State v. Groves, 742 N.W.2d 90, 93 (Iowa 2007); State v. Seering, 701 N.W.2d 655, 668 (Iowa 2005). Willard attempts to distinguish those cases by claiming he \\\"contracted for his home during a time when he could legally reside there\\\" and then was subsequently \\\"ban ished.\\\" At the outset, we find this statement to be untrue. Willard purchased his house several days after the Eighth Circuit reversed the district court decision finding the law unconstitutional. Willard places much emphasis on the fact the federal district court's injunction was still in effect at the time he purchased his house. On remand, the federal district court recognized an agreement of the parties to resume enforcement of the statute on September 1, 2005. We conclude Willard was not legally entitled to reside in his house when he purchased it. Rather, the State simply agreed to postpone enforcement of the statute. Willard should not have been under any illusion that he was entitled to live in the house when he purchased it. We turn now to his specific claims.\\nA. Bill of Attainder. A bill of attainder is a legislative act that inflicts punishment on a particular individual or readily identifiable group without a judicial trial. Atwood v. Vilsack, 725 N.W.2d 641, 651 (Iowa 2006). A bill of attainder is prohibited under the United States and Iowa Constitutions. See U.S. Const, art. I, \\u00a7 10 (\\\"No State shall . pass any Bill of Attainder....\\\"); Iowa Const. art I, \\u00a7 21 (\\\"No bill of attainder . shall ever be passed.\\\"). Willard claims section 692A.2A is a bill of attainder because it (1) identifies a class of individuals, (2) inflicts punishment on the individual member of the class, \\\"solely and specifically because of their status as members of a class,\\\" and (3) fails to provide a judicial trial. We recently rejected this argument in Wright, 747 N.W.2d at 217-18.\\nCertainly, section 692A.2A identifies a class of individuals \\u2014 sex offenders whose victims were minors. However, merely being subject to the residency restrictions is not punishment. See Seering, 701 N.W.2d at 668 (stating \\\"we cannot conclude that the statute imposes criminal punishment under this record\\\"). Willard was not punished solely for being a member of this group. Instead, he was punished for violating the residency restrictions that were enacted for the legitimate purpose of protecting children. Id. Moreover, he was afforded all of the protections of the judicial process when he was charged with violating section 692A.2A. His bill-of-attainder argument is therefore without merit.\\nB. Equal Protection. Willard claims section 692A.2A denies him equal protection under the law. The Fourteenth Amendment provides a state may not \\\"deny to any person within its jurisdiction the equal protection of the laws.\\\" U.S. Const, amend. XIV, \\u00a7 1. Similarly, the Iowa Constitution states \\\"the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which upon the same terms shall not equally belong to all citizens.\\\" Iowa Const, art. I, \\u00a7 6.\\nThe first step of an equal protection claim is to identify the classes of similarly situated persons singled out for differential treatment. Ames Rental Prop. Ass'n v. City of Ames, 736 N.W.2d 255, 259 (Iowa 2007).\\nIf the statute treats similarly situated persons differently, the court must then determine what level of review is required \\u2014 strict scrutiny or rational basis. A statute is subject to strict-scrutiny analysis \\u2014 the state must show the classification is narrowly tailored to a compelling state interest \\u2014 -when it classifies individuals \\\"in terms of their ability to exercise a fundamental right or when it classifies or distinguishes persons by race or national origin.\\\" All other statutory classifications are subject to rational-basis review in which case the defendant must show the classification bears no rational relationship to a legitimate government interest.\\nWright, 747 N.W.2d at 216 (citing In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001)).\\nWillard fails to identify the classes of similarly situated persons singled out for differential treatment by the statute. See State v. Philpott, 702 N.W.2d 500, 503 (Iowa 2005) (stating \\\"[d]efendant's equal-protection argument must fail because she has identified no similar class of persons that is treated more favorably under the act than she was\\\"). In Wright, the defendant argued section 692A.2A violated his right to equal protection because he claimed the law was more likely to be enforced against sex offenders on probation as opposed to sex offenders not currently on probation. Wright, 747 N.W.2d at 216-17. We held the two groups were not similarly situated because one group is subject to state monitoring while the other is not. Id. at 217. We also noted Wright failed to show section 692A.2A treated the classes differently. Id. While we acknowledged there may be some truth to Wright's enforcement argument, we noted Wright had failed to show sex offenders not on probation escaped prosecution for violating section 692A.2A. Id.\\nWillard takes a different tack. He attempts to trigger strict scrutiny by claiming section 692A.2A \\\"severely impairs his ability to make a home with his family,\\\" which he deems a fundamental right. See Moore v. City of E. Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531, 537 (1977) (striking down a zoning ordinance because it unconstitutionally interfered with \\\"freedom of personal choice in matters of marriage and family life\\\" by \\\"selecting] certain categories of relatives who may live together and declar[ing] that others may not\\\"). We disagree.\\n\\\"[A]n alleged infringement of a familial right is unconstitutional only when an infringement has a direct and substantial impact on the familial relationship.\\\" Seering, 701 N.W.2d at 663. The two-thousand-foot rule does not prevent sex offenders from living with their families. Willard's real complaint is the rule prevents him from living in the house of his choosing. However, in Seering, we held \\\"freedom of choice in residence is . not a fundamental interest entitled to the highest constitutional protection.\\\" Id. at 664. Thus, \\\"an interest in choice of residency is entitled to only rational basis review.\\\" Id.\\nUnder the rational-basis test, we must determine whether the two-thousand-foot rule is rationally related to a legitimate governmental interest. Ames Rental Prop. Ass'n, 736 N.W.2d at 259. Under this deferential standard, the law is valid unless the relationship between the classification and the purpose behind it is so weak the classification must be viewed as arbitrary or capricious. Id. A statute is presumed constitutional and the challenging party has the burden to \\\"negat[e] every reasonable basis that might support the disparate treatment.\\\" Id.\\nIn Seering, we found a reasonable fit between the government interest (public safety) and the means utilized by the State to advance that interest (the two-thousand-foot restriction). Seering, 701 N.W.2d at 665. Although the two-thousand-foot rule is not necessarily the perfect protection against the danger posed by sex offenders, \\\"perfection is not necessary to meet the rational basis standard.\\\" Id. We have previously acknowledged \\\"when applying a rational basis test under the Iowa Constitution, changes in the underlying circumstances can allow us to find a statute no longer rationally relates to a legitimate government purpose.\\\" Groves, 742 N.W.2d at 93. However, Willard has not articulated any reason why our conclusion in Seering was incorrect and has not developed an evidentiary basis for this court to conclude the statute fails to promote a legitimate government interest. Instead, he argues he should have an unfettered right to choose his house. Because we rejected that argument in Seer-ing, this claim must fail.\\nC. Procedural Due Process. Willard claims section 692A.2A denies him procedural due process under the Fourteenth Amendment and article I, section 9 of the Iowa Constitution. \\\" 'A person is entitled to procedural due process when state action threatens to deprive the person of a protected liberty or property interest.' \\\" Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002)). Accordingly, the first step in any procedural due process inquiry is to determine whether a protected liberty or property interest is involved. Id. Such liberty interests have their source in the Federal Constitution and \\\"include such things as freedom from bodily restraint, the right to contract, the right to marry and raise children, and the right to worship according to the dictates of a person's conscience.\\\" Id. Protected property interests \\\" 'are created and their dimensions are defined' not by the Constitution but by an independent source such as state law.\\\" Id. (citation omitted).\\nOnce it is determined a protected interest is at issue, we weigh three factors to determine what process is due:\\nFirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements] would entail.\\nMathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). At the very least, procedural due process requires \\\"notice and opportunity to be heard in a proceeding that is 'adequate to safeguard the right for which the constitutional protection is invoked.' \\\" Seering, 701 N.W.2d at 665-66 (quoting Bowers, 638 N.W.2d at 691). However, \\\" '[n]o particular procedure violates [due process] merely because another method may seem fairer or wiser.' \\\" Id. (quoting Bowers, 638 N.W.2d at 691).\\nWillard contends that, because section 692A.2A interferes with his right to contract, he is entitled to a predeprivation hearing. See Bowers, 638 N.W.2d at 691 (recognizing the right to contract is a protected liberty interest). However, his right to contract is not directly affected by the two-thousand-foot rule. Nothing prevents him from purchasing the house, only from living there.\\nAssuming arguendo a protected liberty or property interest is at stake, Willard has failed to prove the procedures in place are constitutionally inadequate. Willard contends he is entitled to an individualized hearing to determine whether he is dangerous before being subjected to the residency restrictions. This argument was rejected in Miller. There, the Eighth Circuit said \\\" 'due process does not entitle [a person] to a hearing to establish a fact that is not material under the [state] statute.'\\\" Miller, 405 F.3d at 709 (quoting Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 1164, 155 L.Ed.2d 98, 104 (2003)).\\nThe [residency] restriction applies to all offenders who have been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings. Once such a legislative classification has been drawn, additional procedures are unnecessary, because the statute does not provide a potential exemption for individuals who seek to prove that they are not individually dangerous or likely to offend against neighboring schoolchildren.\\nId. The court concluded,\\n[u]nless the [sex offenders] can establish that the substantive rule established by the legislative classification conflicts with some provision of the Constitution, there is no requirement that the State provide a process to establish an exemption from the legislative classification.\\nId.\\nIn Seering, we rejected a similar argument for a hearing to request \\\"an exemption based on difficulty of finding a suitable place to live outside the two-thousand-foot restriction.\\\" Seering, 701 N.W.2d at 666. We said \\\"[b]ecause there are no exemptions in the statute, Seering was not entitled to a hearing before he was charged under the statute to attempt to persuade the court that the statute should not be applied to him.\\\" Id. Moreover, we found \\\"the minimum protections necessary under due process would be met by the notice under the statute and the trial.\\\" Id. We see no reason to revisit our conclusion in Seering. Section 692A.2A does not violate procedural due process.\\nD. Right to Travel. Finally, Willard claims section 692A.2A violates the right to interstate travel by limiting the ability of sex offenders to establish residences in towns or cities. He states section 692A.2A deters sex offenders from immigrating to Iowa from other states. The fundamental right to interstate travel recognized by the Supreme Court protects interstate travelers against two sets of burdens: \\\"the erection of actual barriers to interstate movement\\\" and \\\"being treated differently\\\" from intrastate travelers. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 276-77, 113 S.Ct. 753, 763, 122 L.Ed.2d 34, 51 (1993).\\nThere are at least three problems with this claim. First, Willard did not preserve error on his right to travel claim. He failed to brief that ground to the district court and failed to obtain a ruling on that basis. See Kimm v. Kimm, 464 N.W.2d 468, 475 (Iowa Ct.App.1990) (holding \\\"the trial court may not be put in error unless the issue was presented for ruling, and the failure to obtain a ruling is inexcusable unless the court refuses or fails to rule after a ruling is requested\\\").\\nSecond, he has failed to mention how his right to interstate travel has somehow been impinged. A \\\"litigant cannot 'borrow the claim of unconstitutionality of another.' \\\" State v. Hepburn, 270 N.W.2d 629, 631 (Iowa 1978).\\nFinally, Willard fails to recognize the Eighth Circuit considered and rejected this claim in Miller. There, the court said section 692A.2A\\nimposes no obstacle to a sex offender's entry into Iowa, and it does not erect an \\\"actual barrier to interstate movement.\\\" There is \\\"free ingress and regress to and from\\\" Iowa for sex offenders, and the statute thus does not \\\"directly im pair the exercise of the right to free interstate movement.\\\" Nor does the Iowa statute violate principles of equality by treating nonresidents who visit Iowa any differently than current residents, or by discriminating against citizens of other States who wish to establish residence in Iowa.\\nMiller, 405 F.3d at 712 (citations omitted). For these reasons, Willard's right to travel claim must also fail.\\nIV. Conclusion.\\nWe conclude Iowa Code section 692A.2A is not a bill of attainder and does not violate equal protection or procedural due process. Willard failed to preserve for appeal his right to travel claim.\\nAFFIRMED.\\n. Willard does claim he will \\\"face a huge financial loss if forced to sell his property and buy another to replace it.\\\" Even if that were true, he bought his house a few days after the Eighth Circuit found the two-thousand-foot rule to be constitutional. If he was hoping the court's panel decision would be reversed en banc, that was a risk he chose to accept when purchasing the house.\"}"
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+"{\"id\": \"8425190\", \"name\": \"STATE of Iowa, Appellee, v. Thomas Leonard CAMPBELL, Appellant\", \"name_abbreviation\": \"State v. Campbell\", \"decision_date\": \"2006-05-19\", \"docket_number\": \"No. 04-0396\", \"first_page\": \"622\", \"last_page\": \"632\", \"citations\": \"714 N.W.2d 622\", \"volume\": \"714\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:00:02.863536+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Iowa, Appellee, v. Thomas Leonard CAMPBELL, Appellant.\", \"head_matter\": \"STATE of Iowa, Appellee, v. Thomas Leonard CAMPBELL, Appellant.\\nNo. 04-0396.\\nSupreme Court of Iowa.\\nMay 19, 2006.\\nLinda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.\\nThomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Joel Dalrymple, Assistant County Attorney, for appellee.\", \"word_count\": \"4814\", \"char_count\": \"28638\", \"text\": \"CARTER, Justice.\\nDefendant, Thomas Leonard Campbell, convicted of four counts of burglary as an habitual offender, appeals, challenging an alleged denial of his right to a speedy trial and the district court's limitation of his cross-examination of a State's witness. The court of appeals affirmed defendant's conviction. , After reviewing the record and considering the arguments presented, we find that defendant's right to a speedy-trial was not violated. We do conclude, however, that the district court committed reversible error by improperly restricting his cross-examination of a State's witness. We vacate the decision of the court of appeals. The district court's judgment on the burglary charges is reversed and the case remanded to the district court for a new trial on those charges.\\nOn June 14, 2003, a neighbor of Hope Voshel, defendant's girlfriend, heard glass breaking in the vicinity of Voshel's residence. She had recently observed defendant arriving at the residence. The neighbor approached Voshel's home and observed that a window had been broken. At about this time, she witnessed defendant driving away from the residence. She then telephoned Voshel, who was at her brother's house. The neighbor informed Voshel of the broken window and defendant's apparent involvement in the matter.\\nVoshel returned home to inspect the broken window. She then went to the police station to report what had happened and defendant's involvement in the incident. While she was at the police station, she received a cell phone call from defendant in which he admitted that he had broken the window. Voshel told the police of defendant's conduct with regard to her broken window and also informed them that defendant had been involved in four recent burglaries in Waterloo involving a jewelry store, a clothing store, a hair salon, and an antique gallery. She told police that defendant had shown her a television set he had stolen from the hair salon.\\nAfter speaking with Voshel, the police became aware that defendant was at the home of Tangala Saffold., They went to that residence and placed defendant under arrest. Saffold informed them that defendant and Voshel occasionally stayed at her home, and when this occurred, they occupied one particular room. At the time of defendant's arrest, police officers seized a coat identified as belonging to defendant. In the pockets, they discovered a mask and a pair of gloves. Additionally, acting with the consent of Saffold, the police searched the room in which defendant and Voshel sometimes stayed and seized a fur coat, a bag of shoes, several antique books, and an antique radio, all of which were later identified as items taken in recent burglaries. Later the same day, Voshel delivered to the police several items of jewelry, which she claimed defendant had taken in a burglary at Newton's Jewelry Store in Waterloo. In a trial information filed on June 27, 2003, defendant was charged with four counts of burglary involving the jewelry store, clothing store, hair salon, and antique gallery. He was also charged with malicious mischief in the third degree as a result of allegedly breaking a window at Voshel's home. He entered a plea of not guilty on all counts and demanded a speedy trial.\\nThe speedy-trial deadline was September 25, 2003. Trial of all charges was initially scheduled for September 2. At the request of defendant's counsel, it was rescheduled for September 9. On September 5 counsel for defendant advised the court that time was required to hear certain undisclosed legal issues to be raised by him. Although those issues were ultimately never asserted, the trial.date was delayed to September 16 in anticipation that they would. On September 8 the State filed a notice of additional minutes of testimony, listing several new witnesses against defendant. On September 10 defendant requested in writing that the court remove his court-appointed counsel, David Fiester. On September 12 defendant filed a pro se motion to suppress evidence of the items seized at Tangala Saffold's residence. On September 13 attorney Fiester noted that he had a conflict of interest with a jailhouse informant listed as a witness against defendant in the additional minutes of testimony that had recently been filed. He requested permission to withdraw for this reason.\\nA hearing was held on September 15, 2003. With regard to the matter of defendant's request for the removal of his court-appointed counsel, the presiding judge asked defendant whether he wanted to be represented by attorney Fiester. Defendant replied that he did not. In response to that answer, the judge told him, \\\"Okay. Now you understand, I'm not saying what I'm going to do, but if you get a new lawyer your trial is going to be continued for probably three, four weeks. You can't have a new lawyer come in and be ready to go to trial in a week.\\\" Defendant responded by asking how long it would take to receive a ruling on his motion to suppress because he claimed that he was prepared to defend himself. The following colloquy then took place:\\nTHE COURT: Well, I mean, the only problem with that, sir, is you filed a motion to suppress. We can't have a motion to suppress before the trial tomorrow. That's just humanly impossible. And representing yourself, I have yet to see anybody who has done that effectively. Even people who have a college education and extensive education past that and understanding of the Rules of Criminal Procedure and the laws.\\nWhat I'm willing to do is grant your request to have a new attorney appointed to represent you because of the conflict that exists between \\u2014 or the predicament that Mr. Fiester [defendant's court-appointed attorney] is in. So I'm willing to appoint a new attorney to represent you, but that's going to necessitate continuing your trial. If you want to represent yourself your trial is going to have -to be continued too because there would have to be a hearing on your motion to suppress because that can't be held today. It can't be held before your trial tomorrow.\\nTHE DEFENDANT: Okay. Well, why is it being assessed to me when he's the one' that \\u2014 the prosecuting, attorney filed a trial information on September 8th when he had this information on June 14th?\\nTHE COURT: The trial information can be filed and amended any time up to and including the date of the trial.\\nAnd the alternative is to either allow the amended minutes or to grant a continuance. If the amended minutes are granted, if that's allowed, then the remedy for a defendant is to have the trial continued, but you'd be requesting the trial be continued plus there's a problem with your attorney who would run into an ethical problem because you don't want him to represent you since he represents a guy that's gonna testify against you. And presumably the guy who's going to testify against you probably doesn't want him to represent him because he represents you as well. So like I said, you know, I'll get you a new lawyer, but\\u2014\\nTHE DEFENDANT: So if I drop my request for a motion of \\u2014 to suppress and I state that I want to go to trial tomorrow and represent myself can I do that?\\nTHE COURT: Well, you may be able to, but I think it wouldn't be wise....\\nTHE DEFENDANT: I'll take my chances. I'm prepared to come to trial tomorrow....\\nTHE COURT: I'll let you represent yourself, but it won't be tomorrow. I'll appoint a standby attorney to be present in case you have questions that have to go through that lawyer. And I'll reset your trial. I'll give you until the end of the week to rethink representing yourself because the standby counsel won't represent you. They'll only be there if there's a problem. Otherwise\\u2014\\nTHE DEFENDANT: I'm fine with that.\\nTHE COURT: Otherwise it would be up to you to represent yourself, to ask the potential jurors the questions that they need to be asked, to determine which of the people will serve on the jury, to make objections to questions in an appropriate form, to determine what the jury instructions should say, whether you have any objections to those, all those decisions would have to be made on your own. Standby counsel wouldn't have anything to do with that.\\nTHE DEFENDANT: All right.\\nTHE COURT: So what I'll do is indicate that Mr. Fiester is allowed to withdraw; I'll appoint a standby attorney; I'll reset your trial; I'll indicate that you're going to represent yourself and you have until the end of the week, which would be the 19th, to reconsider that because I think to be \\u2014 I don't know anything about you, sir, but I think it would be a silly, foolish decision to attempt to represent yourself on a case that you could face 62 years in prison on. There's a mandatory minimum three on each of the habitu\\u00e1is. If all those are run consecutive you may have a mandatory minimum of 12 years in prison before you'd be eligible for parole. And that's my own opinion and you don't have to listen to that. I'll do an order in conformity with what we've talked about. Do you want to have a hearing on your motion to suppress before your trial is scheduled in a couple of weeks?\\nTHE DEFENDANT: Yes.\\nTHE COURT: Okay.\\nTHE DEFENDANT: Wait a minute. If my trial is going to be scheduled in a couple of weeks what's the purpose of me going pro se?\\nTHE COURT: That's kind of what I'm trying to tell you, sir. We can't have a standby attorney for you tomorrow morning. That just can't be done. And so your trial is going to have to be reset.\\nTHE DEFENDANT: So if I drop my motion to suppress then I can go to trial tomorrow?\\nTHE COURT: No, sir. You have to have a standby attorney to help you in this case. There won't be an attorney available tomorrow.\\nTHE DEFENDANT: So I'm going to have to end up having to wait for an attorney anyway?\\nTHE COURT: Well, what I'm trying to tell you is you ought to have an attorney, but if you insist on representing yourself I'll appoint somebody as a standby attorney.\\nTHE DEFENDANT: My goal was to go to trial tomorrow.\\nTHE COURT: Well, you're not going to go to trial tomorrow.\\nTHE DEFENDANT: Well, then I withdraw my request to be my own lawyer because I might as well wait for a lawyer.\\nTHE COURT: All right. So I'll appoint another attorney to represent you....\\nOn the day following the September 15 hearing, the district court allowed attorney Fiester to withdraw as defendant's counsel and appointed attorney Tammy Banning to represent defendant. In this order, the trial was rescheduled for October 7. Attorney Banning met with defendant at the jail on September 23 and, after introducing herself, was told by defendant that he did not wish her to represent him. She filed a motion to withdraw, and defendant appeared in court in support of that motion on October 3. Attorney Banning's motion to withdraw was granted on the ground of irreconcilable differences with her client, and Brandon Adams was appointed to represent defendant. In the order approving this change of counsel, defendant's trial was rescheduled for November 4. The trial actually commenced on November 5, 2003, due to the illness of defendant's new counsel.\\nAt the trial Hope Voshel testified for the State and indicated that defendant had admitted to her that he had committed the burglaries with which he was charged. During her cross-examination, defendant's counsel attempted to question her concerning an accusation that defendant had made implicating Vosh\\u00e9l's nephew, Justin, as the perpetrator of the burglaries and defendant's threat to turn Justin in to the police. That confrontation supposedly took place on the night before the events surrounding Voshel's broken window and her trip to the police station to accuse defendant of the burglaries. The trial court sustained the State's objection to this testimony and refused to allow defendant's counsel to pursue it in front of the jury. Additional facts will be discussed in our consideration of the legal issues presented.\\nI. The Speedy-Trial Issue.\\nA. Scope of remew. We review a trial court's ruling on a motion to dismiss based on speedy-trial grounds for an abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999); State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991). However, that discretion is a narrow one, as it relates to circumstances that provide good cause for delay of the trial. State v. Winters, 690 N.W.2d 903, 907-08 (Iowa 2005).\\nB. Speedy trial provisions of Iowa Rule of Criminal Procedure 2.33(2)(b). After defendant's trial was continued beyond the original ninety-day speedy-trial deadline of September 25, his counsel filed a motion to dismiss the prosecution based on a denial of speedy trial. Defendant later filed a pro se motion asserting the same request. On the opening day of trial, immediately prior to the jury selection, the district court denied those motions in a ruling that was dictated into the record. The substance of the ruling was that the delay in trial was attributable to the defendant. Defendant urges on appeal that this ruling was in error. In particular he asserts that the delay caused by the withdrawal of attorney Fiester was not attributable to defendant but, rather, was attributable to the State's late filing of additional minutes of testimony that produced a conflict for Fiester.\\nIowa Rule of Criminal Procedure 2.33(2)(5) provides:\\nIf a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.\\nIn applying this rule, we have recognized that, if trial does not commence within ninety days of the filing of the charging instrument, the charge must be dismissed \\\"unless the State proves (1) defendant's waiver of speedy trial, (2) delay attributable to the defendant, or (3) 'good cause' for the delay.\\\" Nelson, 600 N.W.2d at 600; accord Winters, 690 N.W.2d at 908. In determining whether there is good cause for a delay, we focus only on one factor, the reason for the delay. Nelson, 600 N.W.2d at 601. The attending circumstances bear on that inquiry only to the extent they relate to the sufficiency of the reason itself. Id.\\nIn holding that the State showed sufficient reason for the delay in the present case, the court of appeals stated:\\nDefendant's August 28 request for a continuance from the original trial date of September 2 caused seven days of delay, as the trial was rescheduled to September 9. This delay must be attributed to defendant. Defendant's September 5 request for further proceedings caused seven more days of delay, as trial had to be rescheduled to September 16, even though defendant later withdrew the request for further proceedings. This delay must also be attributed to defendant. These two delays, which are attributable to defendant, caused fourteen days of delay.\\nDefendant may not cause delay and later take advantage of that delay. Thus, we extend defendant's original speedy trial deadline of September 25 by fourteen days; the result being defendant's speedy trial deadline was actually October 9.\\nTrial would have occurred on October 7, which was within the recalculated speedy trial period. However, defendant and his attorney had \\\"irreconcilable differences,\\\" which resulted in defendant's attorney seeking to withdraw and defendant agreeing that the attorney should withdraw. Thus, the delay from the October 7 trial date to November 4 must also be attributed to defendant. . Therefore, we conclude that with certain delays properly attributed to defendant and good cause, defendant's trial occurred within the speedy trial period.\\nThe court of appeals did not consider it necessary to determine whether the delay caused by attorney Fiester's withdrawal was attributable to the defendant or to the State.\\nWe are not persuaded that the court of appeals employed the proper rationale in reaching its conclusion on the speedy-trial issue. In considering whether a delay of trial beyond the ninety-day period provided in Iowa Rule of Criminal Procedure 2.33(2)(6) warrants dismissal of the prosecution, we do not deem it appropriate to identify a certain number of days related to events that are believed to have impeded the progress of the case, attribute those events to the defendant or to other good cause, and then extend the speedy-trial deadline by a like number of days. Evaluation of the delay may not be made in such a mechanical fashion because it is not accurate to assume that pretrial events consuming a measurable amount of time will force a delay in the trial of a like amount of time. The decisive inquiry in these matters should be whether events that impeded the progress of the case and were attributable to the defendant or to some other good cause for delay served as a matter of practical necessity to move the trial date beyond the initial ninety-day period required by the rule. In making that inquiry in the present case, we conclude that this question must be answered in the affirmative.\\nDefendant may not attribute the period of delay caused by the withdrawal of attorney Fiester to the State's addi tion of a new witness to the minutes of testimony that worked a conflict for Fiester because defendant had actively sought Fiester's removal as his counsel for other reasons prior to the time that the alleged conflict of interest had surfaced. It is impossible to conclude from the present record that there would not have been a change of counsel irrespective of the alleged conflict of interest. The delay required for Fiester's replacement to become familiar with the case was the precipitating cause of moving the trial date beyond the original ninety-day speedy-trial period. Thereafter, defendant's own conduct was a substantial factor in the withdrawal of his new lawyer, necessitating yet another change in counsel and an additional period of time for new counsel to achieve familiarity with the case. The time allowed in each instance for counsel to gain familiarity with the case was well within the discretion of the trial court. In considering the totality of the events that occurred, the delay in bringing defendant to trial was for reasons that preclude a finding that his speedy-trial rights were violated.\\nII. Exclusion of Evidence Relating to Witness Bias.\\nHope Voshel testified on behalf of the State. She indicated that, on the night defendant broke out the windows in her apartment, she had stayed at her brother's home because she and defendant had argued. In questioning her as to this matter on cross-examination, the following occurred:\\nQ. Now, that argument that you had with Mr. Campbell, was your nephew's name, Justin, brought up? A. Yes, sir.\\nQ. Now your nephew Justin, is he in a training school up in Eldora?\\nAt this point, the State objected as follows:\\nPROSECUTING ATTORNEY: Your Honor, I'm going to object. I believe it's essentially 404(6) evidence that is not relevant to this case.\\nThe colloquy then took place outside of the jury, and defendant made the following offer of proof:\\nDEFENDANT'S COUNSEL: Your Honor, the substantive facts that I believe that we will get from Ms. Voshel herself is that the argument that was had between Mr. Campbell and Ms. Voshel was concerning this nephew in particular by the name of Justin in conjunction with other nephews accusing him of doing something because they were, in fact, confronted by Mr. Campbell himself as that they shouldn't be doing it, meaning the burglaries themselves, and so that's the information that we expect to get from Ms. Voshel, that she will testify that Mr. Campbell, in fact, indicated that these nephews shouldn't be doing this and that they believed that they were, that he was going to turn them in, and, in fact, reported this to Ms. Voshel. That's what I believe at least the substantive facts are that I believe will come out.\\nThe district court sustained the State's objection, stating its ruling as follows:\\nNevertheless, if the only evidence that these other individuals may be responsible for these crimes is the defendant's statement of such to this \\u2014 to Ms. Vosh-el, then I do believe that it's nothing more than mere suspicion and there are no substantive facts, and so I agree with the state in its analysis.... I further agree with the state that this \\u2014 that this is hearsay as it stands and for both those reasons, I will not allow the defendant to get into that .\\nIn seeking to uphold the district court's ruling on appeal, the State relies on two propositions. First, it urges that Iowa Rule of Evidence 5.404(6) applies so as to exclude the proffered evidence of other bad acts and, second, that evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that another person committed the offense. Defendant argues that neither of these theories justifies the denial of cross-examination of Voshel designed to show her bias as a result of defendant's intention to turn her nephew or nephews in for the same burglaries with which he was charged. We agree.\\nDefendant is correct in contending that rule 5.404(6) has no application to the present evidentiary problem. Perhaps some of the blame for the State's reliance on that rule is attributable to unnecessary language contained in State v. Roth, 403 N.W.2d 762 (Iowa 1987). In Roth we held that a second-degree murder conviction could not be used to impeach a witness under a rule of criminal procedure that, at the time, limited impeachment based on prior convictions to only those offenses showing dishonesty or false statements. In making that determination, an unnecessary reference was made to Iowa Rule of Evidence 404(b) (now 5.404(6)), and with respect thereto, we stated:\\nAlthough the principle codified in Iowa Rule of Evidence 404(b) has surfaced frequently with respect to the conduct of accused persons in criminal trials, this rule is equally applicable to witnesses generally.\\nRoth, 403 N.W.2d at 765. This was clearly a misstatement of the applicability of rule 5.404(6). It is not a rule pertaining to witnesses, but, rather, a rule pertaining to evidence of past conduct in order to prove subsequent conduct. Moreover, it only relates to proof of the conduct that is at issue in the case. See United States v. Morano, 697 F.2d 923, 926 (11th Cir.1983) (evidence of extraneous bad acts of those not on trial do not implicate the policy of Federal Rule of Evidence 404(b)); United States v. Krezdorn, 639 F.2d 1327, 1332-33 (5th Cir.1981) (same).\\nThe second proposition on which the State relies is misapplied. As the State notes, we have previously determined that evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense. State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987); State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984). We are satisfied, however, that this was not the primary purpose sought to be accomplished through the cross-examination of Voshel. The evident purpose of the attempted cross-examination was to show bias in the sense that the witness was motivated to protect her nephews from defendant's accusations and intentions to inform the police. As stated by a leading evidence text:\\nCase law recognizes the slanting effect on human testimony of the witness's emotions or feelings toward the parties or the witness's self-interest in the outcome of the case. Partiality, or any acts, relationships, or motives reasonably likely to produce it, may be proved to impeach credibility.... In criminal cases the defendant has a qualified constitutional right to show the bias of government witnesses.\\n1 John W. Strong, McCormick on Evidence \\u00a7 39, at 144-45 (5th ed. 1999) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347, 354-55 (1974)) (footnotes omitted). In State v. Rowe, 238 Iowa 237, 26 N.W.2d 422 (1947), this court reversed a criminal conviction in which the trial court limited cross-examination of a state's witness on matters aimed at affecting the credibility of a wit ness. Rowe, 238 Iowa at 242, 26 N.W.2d at 425. In so doing, we stated:\\nWe hold that cross-examination along the line of that offered should have been permitted as bearing on the interest and activities of witness, Conaway, and we think that the court erred in so ruling. It is a well-established rule of law that in a criminal case the ill-will or hostility of a witness testifying against one charged with the commission of a crime may be shown and that it is proper to do so by cross-examination. Such evidence may be considered by the jury in testing the credibility of such witness.\\nId.\\nApplying these principles to the issue now before us, we are convinced that the district court erred in limiting the cross-examination of Hope Voshel on the subject of defendant's accusation of her nephews. If the facts were as suggested in defendant's offer of proof, they would provide a plausible motive for Voshel to attribute guilt for the burglaries to defendant in order to protect her nephews. This would not be any less the case because the defendant was the source of her knowledge of the nephews' involvement and defendant's intention to turn them in.\\nVoshel was a critical witness for the State, testifying to admissions by the defendant concerning the burglaries and identifying some of the stolen property as having been under defendant's control. Her credibility was certainly not beyond reproach. She provided an entirely unsatisfactory explanation of the source of the jewelry that she produced for the police and attributed to a burglary by defendant. We are convinced that the trial court's restriction of the cross-examination of Voshel produced a sufficiently high potential for prejudice that defendant should be afforded a new trial.\\nIII. Ineffective Assistance of Counsel.\\nBecause the issue might again arise in further proceedings in the case, we consider defendant's contention that his trial counsel was ineffective in failing to seek suppression of the evidence obtained in the search conducted at Tangala Saffold's residence. We are satisfied that the record on direct appeal is sufficient to resolve that legal issue at this stage.\\nDefendant, as a frequent overnight guest at Saffold's home, enjoyed an expectation of privacy in the room where he kept some personal belongings. That expectation of privacy, however, is applicable only to the unwarranted actions of government actors. It does not ensure the guest's possessions will not be disturbed by the host and those persons for whom the host allows entry. Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85, 94 (1990); United States v. Oates, 173 F.3d 651, 656 (8th Cir.1999); United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992). A motion to suppress the evidence obtained at Saffold's residence would have been unavailing. Consequently, counsel's failure to file such a motion did not constitute ineffective assistance.\\nWe have considered all issues presented and conclude that the judgments of conviction on the four burglaries must be reversed. Consequently, the decision of the court of appeals is vacated. Because the State has prevailed on the only issues affecting the conviction for criminal mischief in the third degree, that conviction is affirmed. The case is remanded to the district court for further proceedings not inconsistent with this opinion.\\nDECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.\\n. Defendant was also convicted of the offense of criminal mischief in the third degree. We will dispose of that conviction summarily at the conclusion of our decision.\\n. Her testimony in that regard was as follows:\\nQ. Where did you get this jewelry from?\\nA. From the back of a building.\\nQ. In the back of what? A. A building.\\nQ. How did you know this jewelry was there? A. It been put there.\\nQ. Who put it there, do you know? A. No.\\nQ. How did you know that that jewelry was there? A. I been told.\\nQ. Who told you it was there? Ms. Voshel, who told you that the jewelry was there? A. A guy.\\nQ. Who? A, A guy.\\nQ. Who is it? A. I don't know sir.\"}"
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+"{\"id\": \"8642382\", \"name\": \"State of Iowa, appellee, v. Vincent G. Finnegan, appellant\", \"name_abbreviation\": \"State v. Finnegan\", \"decision_date\": \"1952-10-14\", \"docket_number\": \"No. 47938\", \"first_page\": \"166\", \"last_page\": \"173\", \"citations\": \"244 Iowa 166\", \"volume\": \"244\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T02:07:26.992482+00:00\", \"provenance\": \"CAP\", \"judges\": \"All Justices concur.\", \"parties\": \"State of Iowa, appellee, v. Vincent G. Finnegan, appellant.\", \"head_matter\": \"State of Iowa, appellee, v. Vincent G. Finnegan, appellant.\\nNo. 47938.\\n(Reported in 55 N.W.2d 223)\\nOctober 14, 1952.\\nRehearing Denied December 19, 1952.\\nRaymond Rosenberg, of Des Moines, and John Donahey, of Panora, for appellant.\\nRobert L. Larson, Attorney General, Raphael R. R. Dvorak, Assistant Attorney General, and Robert Y. Taylor, County Attorney, for appellee.\", \"word_count\": \"2156\", \"char_count\": \"13006\", \"text\": \"Gabeield, J.\\nTbe indictment charged defendant with the third offense of operating a motor vehicle while intoxicated as defined in section 321.281, Code, 1950. However, the indictment alleged three prior convictions, not merely two, the first on December 4, 1936, all in Guthrie County.\\nDefendant demurred to the indictment. Only ground of the demurrer necessary to mention was in substance that since three previous convictions were alleged defendant was actually charged with a fourth offense and section 321.281, Code, 1950, provided no punishment for any offense higher than the third.\\nAfter the demurrer was filed the court permitted the State, on its motion over defendant's objection, to amend the indictment by striking the allegation pertaining to the first previous conviction on December 4, 1936. Defendant then demurred to the indictment as amended on the ground, in substance, it appears therefrom, together with the minutes attached thereto, that defendant was still charged with a fourth offense not covered by section 321.281. The demurrers were overruled.\\nUpon trial the jury returned a verdict of guilty of a second offense. From judgment and sentence on the verdict defendant has appealed. Aside from a ruling on a question of evidence complaint is made of the overruling of the demurrers to the indictment and the permission given to amend it. Defendant argues that both the original indictment and the amended one really charge a fourth offense of \\\"drunken driving\\\" for which Code section 321.281 provided no punishment.\\nIt is true section 321.281, prior to its amendment by.the Fifty-fourth General Assembly in 1951, made no express provision for punishment of any offense higher than the third. At the time of the principal offense here charged, 321.281, so far as now material, stated:\\n\\\"Whoever, while in an intoxicated condition operates a motor vehicle shall, upon conviction be punished, for the first offense by ; for the second offense by ; and for a third offense by imprisonment in the penit\\u00e9ntiary for a period not to exceed three years.\\\"\\nChapter 118, Acts of the Fifty-fourth General Assembly, amended the above statute by inserting after the words \\\"third offense\\\" the words \\\"and each offense thereafter.\\\" However, this amendment was passed after the main offense here charged was committed and is not applicable to the present case.\\nI. Since defendant was not tried under the original indictment we might decline to consider whether it was demurrable on the ground asserted by defendant. If the amendment to the indictment was rightly permitted and the amended indictment under which defendant was tried was not subject to the demurrer thereto, defendant may not complain of the ruling on his demurrer to the original indictment because he was not prejudiced by it. State v. Kiefer (Ladd, J.), 183 Iowa 319, 331, 163 N.W. 698, holds defendant' was not prejudiced by an unauthorized amendment to an indictment where he was not tried thereunder.\\nWe are clear, however, that the original indictment was not demurrable on the ground urged by defendant. As previously stated, the indictment charged only a third offense \\\"as defined in section 321.281.\\\" Such an offense was clearly punishable by section 321.281 as it then stood. It does not follow from the fact the indictment went on to allege unnecessarily three prior convictions rather than two that defendant was charged with a fourth offense for which the statute provided no punishment.\\nCode section 773.3 states in part that an indictment may charge an offense by using the- name given it by statute and \\\"may sefer to any statute creating the crime charged therein, and in determining the validity or sufficiency of such indictment regard shall be had to such reference.\\\" The charging part of the indictment used the name \\\"third offense\\\" which is found in the statute and referred to section \\u2022 321.281 which creates the crime charged.\\nIf defendant had been tried under the original indictment, the allegation of the first prior conviction which was stricken by the amendment might have been disregarded as surplusage in accordance with Code section 773.30 which provides, \\\"Any allegation unnecessary under existing law may, if contained in an indictment, be disregarded as surplusage.\\\" See in this connection State v. Murray, 222 Iowa 925, 931, 270 N.W. 355; State v. Anderson, 125 Iowa 501, 101 N.W. 201; State v. Ansaleme, 15 Iowa 44, 46; 42 C. J. S., Indictments and Informa- tions, section 155a, page 1086; id., section 155b(3), page 1091; 27 Am. Jur., Indictments and Informations, section 109, page 670 (\\\"and a fact stated may be rejected-as surplusage if it is merely in aggravation, so that it may be stricken out and yet leave the offense fully described.\\\"). See also State v. Briggs, 68 Iowa 416, 27 N.W. 358.\\n42 C. J. S., Indictments and Informations, section 222h, states \\\"An indictment is not demurrable for the presence of surplusage .\\\"\\nOur conclusion that the original indictment was not rendered invalid by alleging three prior convictions rather than two finds support in Code section 773.29 which states: \\\"No indictment shall be invalid by reason of any repugnant allegation contained therein; provided that an offense is charged in accordance with the provisions of section 773.3.\\\" We do not mean to say the allegation of three prior convictions was in fact repugnant. But if it were, the indictment would not be invalid because thereof.\\nNothing in this opinion is to be taken as an approval of the implication running through defendant's argument that one who had been convicted more than twice of \\\"drunken driving\\\" was, prior to the amendment of Code section 321.281 in 1951, immune from punishment for a subsequent offense except perhaps as a first offender. The amendment removes any possible doubt on that point as to offenses committed after it took effect and makes unnecessary any extended discussion of the meaning of the statute before it was amended.\\nHowever, it seems absurd to contend in effect that if one had previously been convicted more than twice he had not been convicted twice so as to be punishable as a third offender. We think one who had three prior convictions necessarily had two such convictions just as the greater includes the lesser in mathematics and, upon committing a subsequent offense, was punishable as a third offender. Of course section 321.281 provided no greater punishment for a subsequent offense higher than the third.\\nIt may be well at this point to call attention to our holding in State v. Barlow, 242 Iowa 714, 721, 46 N.W.2d 725, 729, that Code section 321.281 merely provides increased punishment for second and third offenses and failure to prove the prior convictions as charged does not prevent conviction for the principal offense.\\nII. What we have said is really determinative of the appeal except for the question of evidence presented. However, we will say we have \\u00f1o doubt of the propriety of permitting the amendment to the indictment. As above explained it merely eliminated an unnecessary allegation which without the amendment could have been disregarded as surplusage. Accordingly defendant was not prejudiced by the withdrawal of the allegation of the first prior conviction.\\nThe law seems to be plain that an indictment may properly be amended to eliminate surplusage. State v. Gardiner, 205 Iowa 30, 33, 215 N.W. 758; 42 C. J. S., Indictments, and Informations, section 240, page 1256 (\\\"Surplusage may be stricken by amendment .\\\"). See also State v. Bamsey, 208 Iowa 802, 807, 226 N.W. 57.\\nCode section 773.42 provides: \\\"The court may, on motion of the state, and before or during the trial, order the indictment so amended as to correct errors or omissions in matters of form or substance.\\\"\\nThe most that can be properly contended is that the allegation of the first previous conviction was an error in a matter of substance although we have indicated our feeling it does not amount to an error.\\nThere is no merit to defendant's contention that permitting the amendment was contrary to section 773.45, which says: \\\"Such amendment shall not be ordered when it will have the effect of charging the accused with an offense which is different than the offense which was intended to be charged in the indictment as returned by the grand jury.\\\"\\nThe premise to defendant's argument on this point is that the grand jury intended to charge a fourth offense for which section 321.281 made no provision. From this it is argued the indictment could not be amended to charge a third offense in violation of statute. As we have indicated, we think this premise is untenable.\\nIII. It is obvious that if, as we have said, the original indictment was- not demurrable on the ground urged by defend ant the amended indictment was not subject to demurrer upon a like ground. The amendment removed from the indictment the allegation of the first prior offense so only two previous convictions were alleged. The amended indictment was not rendered demurrable by a reference to the first previous offense in minutes of testimony attached to the indictment. Such minutes are not part of the indictment. State v. Briggs, supra, 68 Iowa 416, 420, 27 N.W. 358. Grounds of demurrer must appear on the face of the indictment. Code section 777.2; State v. Lamb, 239 Iowa 176, 180, 30 N.W.2d 734, 736; State v. Boucher, 237 Iowa 772, 23 N.W.2d 851.\\nIY. We consider -now the question of evidence presented. The indictment grew out of defendant's driving his truck just before he stopped at the side of a country road about mid-afternoon. The sheriff, who had followed defendant for about three and one-half miles, arrested him and took him to the county seat. On cross-examination of the sheriff defendant sought to show he hated to leave his truck on the highway and did show that the sheriff returned to the truck about two hours later for the purpose of checking it. On redirect examination the sheriff testified without objection that upon his return he examined the truck for articles that might be stolen from it and, over defendant's objection of incompetent, irrelevant, immaterial and not proper redirect examination, he found in the truck two boxes each containing six cans of beer. These articles were then received in evidence over like objection.\\nThat this evidence was received on redirect examination presents no ground for reversal. It was somewhat explanatory of testimony brought out on cross-examination. Further, it was within the court's discretion to admit the evidence on redirect examination if it would have been proper on direct. 58 Am. Jur., Witnesses, section 562; 70 C. J., Witnesses, section 862. See also Robson v. Barnett, 241 Iowa 1066, 1071, 44 N.W.2d 382, 384, and citations.\\nIt is argued that because the cans were unopened defendant could not have drunk from them and the evidence therefor has no bearing upon the issue of his intoxication. It is also contended the evidence was inadmissible because, it is said, it was not shown the exhibits were in the truck when defendant was ar rested. We are not persuaded tbe admission of this evidence was reversible error.\\nTbe finding is warranted that tbe exhibits were in tbe truck when defendant was arrested. Defendant brought out on recross-examination of tbe sheriff that be then saw on tbe seat of tbe truck tbe boxes containing tbe cans but was unable to take them at that time because defendant was too bard to handle and it was necessary to go back to get them. It is not probable someone else would \\\"plant\\\" these cans of beer in tbe boxes in which, they were found in tbe truck during tbe time it was parked at tbe side of a country road. As a witness defendant did not deny tbe beer was bis. See in this connection State v. Jenkins, 203 Iowa 251, 253, 254, 212 N.W. 475.\\nOf course defendant could not have drunk tbe beer found in bis truck. Nevertheless its presence there tended to throw some light on tbe situation. Our conclusion as to tbe admissibility of these exhibits finds some support in State v. Pearce, 231 Iowa 443, 1 N.W.2d 621; State v. Salisbury, 209 Iowa 139, 142, 227 N.W. 589; State v. Bryant, 208 Iowa 816, 225 N.W. 854; State v. Jenkins, supra, 203 Iowa 251, 253, 254, 212 N.W. 475.\\nIf it were true, as defendant argues, that tbe exhibits prove nothing, their receipt in evidence could hardly have been prejudicial so as to require a reversal. See State v. Stuart, 241 Iowa 1004, 1006, 43 N.W.2d 702, 703, and citations, especially State v. Bryant, supra, 208 Iowa 816, 225 N.W. 854. \\u2014 Affirmed.\\nAll Justices concur.\"}"
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diff --git a/iowa/8644371.json b/iowa/8644371.json
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+"{\"id\": \"8644371\", \"name\": \"State of Iowa, Appellee, v. Ray Decker, Appellant\", \"name_abbreviation\": \"State v. Decker\", \"decision_date\": \"1942-02-10\", \"docket_number\": \"No. 45840\", \"first_page\": \"775\", \"last_page\": \"776\", \"citations\": \"231 Iowa 775\", \"volume\": \"231\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T21:50:13.710980+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bliss, C. J., and Miller, Oliver, Garfield, Wennerstrum, Sager, and Hale, JJ., concur.\", \"parties\": \"State of Iowa, Appellee, v. Ray Decker, Appellant.\", \"head_matter\": \"State of Iowa, Appellee, v. Ray Decker, Appellant.\\nNo. 45840.\\nFebruary 10, 1942.\\nMarshall F. Camp and E. F. MeEniry, for appellant.\\nJohn M. Rankin, Attorney General, and George F. Allen, County Attorney, for appellee.\", \"word_count\": \"434\", \"char_count\": \"2588\", \"text\": \"Stiger, J.\\nInstruction No. 7 reads:\\n\\\"The crime charged is one that is usually committed in secret, and the proof of the guilt of a defendant is usually to be had only from the testimony of children of tender years.\\n\\\"In considering the testimony of the witnesses Barbara Whitehead and Berneice Wynn the jury should take into consideration their age, intelligence, experiences in life, conduct, character and every fact and circumstance developed in the evidence being upon the credibility of such witnesses and the weight to be given their testimony, in order that you may correctly, weigh their evidence and determine its truth or falsity. Their motive or lack of motive to tell the truth or to make an untruthful accusation should be carefully considered and from all of the evidence in the case the jury should determine that weight and credibility you will give to their evidence. Under the law you may return a verdict of guilty upon the uncorroborated evidence of such witnesses alone if you believe that such witnesses speak the truth, and that the acts described by them were done by the defendant with the intent and purposes prohibited by the Statute under consideration in this case. If corroborated by other credible evidence or witnesses their story is strengthened. You are the sole judges of the weight of their evidence and the credibility you will give to the same.\\\" (Italics supplied.)\\nDefendant claims that because of the use of the italicized word \\\"being\\\" the instruction is prejudicially erroneous and requires a reversal.\\nIt is obvious the trial court intended to use the word bearing and that there was either a clerical mistake in copying the instruction or an inadvertent use of the wrong word. Otherwise the instruction is not subject to criticism, and, considering the instruction in its entirety, the possibility that the jury was misled to the injury of the defendant is so remote that we must decline to reverse.\\nIn State v. Steen, 125 Iowa 307, 312, 101 N. W. 96, 98, it is stated:\\n\\\"The use of 'his' instead of 'her' in framing the instruction is such an evident slip of the pen that no juror of average mental capacity could possibly be misled by it.\\\"\\nDefendant, a witness, admitted the commission of acts constituting the crime charged.- \\u2014 -Affirmed.\\nBliss, C. J., and Miller, Oliver, Garfield, Wennerstrum, Sager, and Hale, JJ., concur.\"}"
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diff --git a/iowa/8645287.json b/iowa/8645287.json
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+"{\"id\": \"8645287\", \"name\": \"Caroline Wendland, Appellant, v. Harry Berg et al., Appellees\", \"name_abbreviation\": \"Wendland v. Berg\", \"decision_date\": \"1919-10-25\", \"docket_number\": \"\", \"first_page\": \"202\", \"last_page\": \"204\", \"citations\": \"188 Iowa 202\", \"volume\": \"188\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:47:20.394652+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, C. J., Preston and Salinger, JJ., concur.\", \"parties\": \"Caroline Wendland, Appellant, v. Harry Berg et al., Appellees.\", \"head_matter\": \"Caroline Wendland, Appellant, v. Harry Berg et al., Appellees.\\n1 PRINCIPAL AND AGENT: Liability of Agent \\u2014 Nonfeasance. An agent is not personally liable to a third person for mere non-feasance.\\n2 PRINCIPAL AND AGENT: Liability of Agent \\u2014 Rental of Defective Premises. Agents who rented real property to a tenant were not liable for an accident resulting from the giving away . of a filled well, where, although they knew that the well had been filled, they knew nothing which would, cause them to believe there was any danger, and where there was no duty of inspecting the same, even as between them and their principal.\\nAppeal from Scott District Court. \\u2014 M. F. Donegan, Judge.\\nOctober 25, 1919.\\nRehearing Denied January 20, 1920.\\nAction\\\" for damages for personal injuries sustained by plaintiff as a result of falling into a hidden excavation upon the premises occupied by plaintiff as tenant. At the close of the evidence, there was a directed verdict for the defendants, and the plaintiff appeals.\\nAffirmed.\\nAndrew L. Chesem and M. V. Gannon, for appellant.\\nAlbert W. Eamcmn, for appellees.\", \"word_count\": \"794\", \"char_count\": \"4647\", \"text\": \"Evans, J.\\nThe plaintiff was a tenant of certain residence premises in Davenport. The owner was Margaret Harrington, nonresident of the city.\\nThe defendants were related to such owner, and acted as her agents in the renting of said premises and in collecting the rents therefrom. The plaintiff originally rented the premises from a Mrs. William Harrington, another relative of the owner's, and made the initial payment of rent to her. Thereafter, she paid all the rent to the defendants. After she had been in the occupancy of the premises about one year, she suffered a remarkable accident. The ground gave way under her feet, and she fell into an excavation, 14 feet deep. She claims damages for her injuries from these defendants on the following grounds: (1) That the defendants were in the occupancy of the premises; (2) that they placed the plaintiff in occupancy thereof as tenant, and negligently failed to inform her of the hidden excavation, although they themselves had knowledge thereof.\\nAs to the first ground, it is enough to say that defendants were not in occupancy of the premises in any other sense than that they acted as agents for the owner in reference thereto.\\nit appears from the evidence that there formerly been an old well upon these premises, which was not in use. In the year 1913, the then tenant of the premises obtained permission to fill it up, and did so. It was filled level with the ground, and the place thereof soon became grass-grown, and a part of the lawn. There was nothing on the surface to indicate any peril of any kind. The defendants knew of the existence of the old well, and knew that it had been filled up. They knew nothing which would cause them to' believe that any danger was covered thereunder. The accident to the plaintiff happened about four years after the filling of the well. The record offers no explanation of the cause of the hidden excavation, other than the inference that there must have been a process of settling, which caused the excavation into which the surface finally fell.\\nThe evidence discloses no wrongful act on the part of the defendants in an affirmative sense. There was no misfeasance. If they can be charged with negligence, it must be because they failed to perform some duty owed by them to the plaintiff.\\nA defendant may not plead agency in defense of his wrongful act, to the injury of another. Even an agent'may be held personally liable for wrongful acts of misfeasance committed by him. But when a charge of negligence against an agent is based upon mere nonfeasance, quite a different question is presented. Negligence by nonfeasance can occur only by failure to perform some duty owed to the injured party. It is the general rule, recognized in this state, that an agent is not personally liable to a third party for mere nonfeasance. Williams v. Dean, 134 Iowa 216; Minnis v. Younker Bros., (Iowa) 118 N. W. 532 (not officially reported).\\nIn this case, the defendants did not know that any danger was lurking at the place in question. The evidence discloses nothing which imposed upon them the duty of inspection and discovery, even as between them and their principal. If they owed no such duty to their principal, they owed no more to the tenant of the principal. The tenant knew them as agents, and nothing more, and presumably knew that their duties as to the premises were limited by their obligations to the principal. The motion for a directed verdict was properly sustained, and judgment is \\u2014 Affirmed.\\nLadd, C. J., Preston and Salinger, JJ., concur.\"}"
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diff --git a/iowa/8646244.json b/iowa/8646244.json
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+"{\"id\": \"8646244\", \"name\": \"Mabel Fritz, Appellant, v. Rath Packing Company et al., Appellees\", \"name_abbreviation\": \"Fritz v. Rath Packing Co.\", \"decision_date\": \"1938-03-08\", \"docket_number\": \"No. 44272\", \"first_page\": \"1116\", \"last_page\": \"1121\", \"citations\": \"224 Iowa 1116\", \"volume\": \"224\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:18:17.345067+00:00\", \"provenance\": \"CAP\", \"judges\": \"StigeR, C. J., and DoNegaN, ANDersoN, Miller, HamiltoN, Eiohards, and Kintzustger, JJ., concur.\", \"parties\": \"Mabel Fritz, Appellant, v. Rath Packing Company et al., Appellees.\", \"head_matter\": \"Mabel Fritz, Appellant, v. Rath Packing Company et al., Appellees.\\nNo. 44272.\\nMarch 8, 1938.\\nWorthen & McConnell and Kepford & Kepford, for appellant.\\nSwisher, Swisher & Cohrt, for appellees.\", \"word_count\": \"1565\", \"char_count\": \"9130\", \"text\": \"Sager, J.\\nThere has been filed herein a motion to dismiss this appeal for failure to comply with the rules of this court. We have examined this motion and the resistance, and are satisfied that it should be, and it is, overruled.\\nPreliminary to a brief outline of the facts presented by the record, we call attention to the rules of law applicable to cases of this kind. These have been so often announced by us as scarcely to require the citation of authority.\\nSection 1452 of the Code provides:\\n\\\" In the absence of fraud the findings of fact made by the industrial commissioner within his powers shall be conclusive. ' '\\nIn keeping with the statutory rule thus announced, we have said time and again that where there is a conflict as to material matters of fact, the finding of the industrial commissioner is final and conclusive upon the courts. See Brown v. Rath Packing Co., 219 Iowa 9, 11, 257 N. W. 411, 413. Mitchell, C. J., dissented from the conclusion reached by the majority, but not upon the proposition just stated. On the contrary, his dissenting opinion contains the following language:\\n\\\"There is of course no question, under the holdings of this court, that, if there is a conflict in the evidence, the findings of fact made by the commissioner are conclusive upon the court.''\\nSee, also, Schuler v. Cudahy Packing Co., 223 Iowa 1323, 275 N. W. 39; Pattee v. Fullerton Lbr. Co., 220 Iowa 1181, 263 N. W. 839; Smith v. Soldiers' & Sailors' Mem. Hosp., 210 Iowa 691, 231 N. W. 490. Other decisions might be cited, but these are sufficient for our present purpose.\\nWith the rule in mind, we direct attention to the record upon which the industrial commissioner and the trial court acted. No attempt will be made, nor is it necessary, to give more than the barest outline of the facts to show that there was sufficient conflict in the evidence to make the controversy a matter entirely within the decision of the industrial commissioner. Our own views as to the weight or sufficiency of the evidence to sustain the conclusion reached are not important. The trial court, correctly apprehending the record and the rules of law applicable, declined to interpose its own conclusions.\\nThe claimant Fritz, while working for the packing company, on more than one occasion sustained injuries to her fingers in wrapping hams for the market. These injuries were_ caused by the sharp edges of certain ribbons or tapes that were used to tie wrappings. It is her claim that on May 24, 1935, she sustained injuries of the general nature described, and immediately went to the company nurse and had medicated strips placed upon her fingers. Miss Harvey, the company nurse, while admitting that claimant had appeared before her on different occasions for attention, disclaimed having any record of claimant's appearance before her in the month of May, 1935, basing her testimony largely, if not entirely, upon the absence of a record of any such visit on the books she kept for that purpose. No claim is made at this point that any notice of claim for compensation was lodged with Miss Harvey. On Tuesday following the Friday upon which the injury is claimed to have been sustained, claimant rode to her home with Sprowl, the foreman of her department, and in the course of that journey this took place, according to her testimony:\\n\\\"I showed Mm how sore my fingers were, I eonld hardly open them, they were swollen on the cuts then. I thought when I showed him maybe he would change my work but he made very little notice of me.\\\"\\nAs a part of this same conversation she added, on cross-examination, this:\\n\\\"I said to Mr. Sprowl, 'Look at my fingers, they are so sore, I can't hardly open my hand.' That is all that I said.\\\"\\nTen weeks after the injury claimant went to the packing company's plant and was paid by the insurance carrier's check for thirteen weeks at $10 per week. At that time she consulted the nurse with reference to a very serious condition in one of her legs, but made no claim for compensation. At or about the same time she had a talk with Donnell, superintendent of the packing company, which she thus narrates:\\n\\\"I talked to him about getting my husband a job because we had no income, neither my husband or I was neither one working, so I talked to Mr. Donnell about giving my husband a job, and he promised that he would. Q. Did he say anything to you with reference to the compensation? A. Yes, he said that they had paid me all the state allowed. He gave my husband a job but laid him off after nine weeks.\\\"\\nLydia Powell, a witness for claimant, who worked near the latter, testified that she recalled claimant's having an injury on May 24, 1935, and of her having left for treatment and coming back with her hand taped. Her testimony, however, discloses that trips to the nurse for various cuts were frequent and common, and it developed on cross-examination that there was much uncertainty in her mind as to the particular time of this injury. Her testimony is devoid of any reference to notice of injury to the company.\\nDena DeG-roote likewise remembered seeing a bandage on the hand of claimant, but she, like the witness PoweE, was uncertain as to just when this was. She, like Marie Wren, who testified in substance to the same thing and with the same uncertainty, had nothing to say with reference to any notice to the company.\\nThe testimony of Ethel Helm along the same general lines completes the evidence in support of claimant, except as to the medical testimony describing the nature and extent of the injuries for which claimant was treated.\\nOn behalf of the defendants, in addition to the testimony of June Harvey, the company nurse, to which reference has already been had, there appears the testimony of Sprowl, the foreman, who testified that he had no recollection of any special time the claimant reported an injury. If she had, he said, he would have sent her to the company's First Aid.\\nClaimant's own testimony, as hereinbefore noted, discloses that her talk with Donnell, superintendent of the packing company, contained no hint of a claim for compensation.\\nOther testimony on either side of the controversy might be cited, but sufficient has been set out, we think, to indicate that there was a fair question of fact as to notice, and other questions involved, for decision by the industrial commissioner.\\nTo go back a little in the record of these proceedings, it should be pointed out that the original arbitration hearing was had at Waterloo on October 13, 1936, as a result of which the deputy commissioner found for the claimant. On the 27th day of October, 1936, the defendants filed a petition for review, upon which petition and review, on March 1, 1937, additional testimony was talien with reference to the nature and extent of claimant's injuries. This hearing was had before the commissioner himself, and he, on March 11, 1937, reversed the finding of his deputy, holding:\\n\\\"1. Claimant has failed to discharge the burden of proving injury arising out of employment as the proximate cause of existing disability.\\n\\\"2. The record fails to disclose notice or knowledge on the part of the employer of any claim for compensable injury within a period of ninety days as required by law. ' '\\nIt was- on appeal from this ruling that the matter came before the district court of Black Hawk county, and thence to this court.\\nThe opinion of the commissioner is an interesting and able discussion of the matters submitted at the hearing, but it is too long to be quoted. We think it is justified by the record. The opinion, among other things, calls specific attention to the fact that claimant at no time seems to have made a claim for com pensation. This statement from the opinion is not without support:\\n\\\"The record indicates that she could hardly have more carefully concealed any mention of compensation obligation. This could not have been due to reticence, inadvertence or ineptitude. It is plainly indicated that in the exercise of common knowledge and exceptional intelligence she had no thought of asserting a compensation claim until long after the period of ninety days, within which the employer must have notice or knowledge of a compensation claim. ' '\\nIn this situation the trial court, after commenting on the findings of the commissioner, among other things, said:\\n\\\"The court has carefully examined all of the record in the ease, including the somewhat voluminous testimony submitted, and finds that the decision of the Industrial Commissioner has substantial support in the testimony and that under the rule in such cases this court cannot interfere therewith.\\\"\\nIt thereupon affirmed the finding of the commissioner and denied claimant's demand. Its action in this regard, being in keeping with the rules of law applicable, was right, and it is affirmed. \\u2014 Affirmed.\\nStigeR, C. J., and DoNegaN, ANDersoN, Miller, HamiltoN, Eiohards, and Kintzustger, JJ., concur.\"}"
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diff --git a/iowa/8646320.json b/iowa/8646320.json
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+"{\"id\": \"8646320\", \"name\": \"State of Iowa, Appellee, v. Leon Cartwright, Appellant\", \"name_abbreviation\": \"State v. Cartwright\", \"decision_date\": \"1919-11-15\", \"docket_number\": \"\", \"first_page\": \"579\", \"last_page\": \"583\", \"citations\": \"188 Iowa 579\", \"volume\": \"188\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:47:20.394652+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ladd, C. J., G-atnor and Stevens, JJ., concur.\", \"parties\": \"State of Iowa, Appellee, v. Leon Cartwright, Appellant.\", \"head_matter\": \"State of Iowa, Appellee, v. Leon Cartwright, Appellant.\\n1 TRIAL: Objections \\u2014 Necessity for Evidence of Fact. An objection based upon an alleged fact will be disregarded, when the record is barren of any evidence of such fact.\\n2 CHIMIN AL LAW: Alibi \\u2014 Cautionary Instructions. Instructions to tbe effect that an alibi is easily manufactured, and that the proofs pertaining thereto should be scanned with care and caution, are proper.\\n3 CRIMINAL LAW: Accomplice \\u2014 Insufficient Evidence. Evidence held insufficient to show that the witness in question was an accomplice; and, therefore, no occasion arose for instructing in reference thereto.\\nAppeal from Boone District Cowrt. \\u2014 E. M. Wright, Judge.\\nNovember 15, 1919.\\nRehearing Denied February 23, 1920.\\nThe defendant was indicted upon charge of maliciously threatening to injure the property of one Anna Carson, with intent thereby to extort money from the said Anna Carson, against her will. To the charge, the defendant pleaded \\u201cnot guilty,\\u201d and, upon trial to a jury, was convicted. From the judgment entered on the verdict, he appeals.\\nAffirmed.\\nW. W. Goodylcoonts, for appellant.\\nII. M. Havner, Attorney General, F. G. Davidson, Assistant Attorney General, and Charles W. Lyon, for ap-pellee.\", \"word_count\": \"1273\", \"char_count\": \"7289\", \"text\": \"Weaver, J.\\nThe points made by counsel for a reversal of the judgment of conviction are as follows:\\nI. The record shows that the trial of the defendant was begun on December 5, 1918. On that day, a jury was impaneled and, after the introduction of the State's evidence in chief, and after a beginning had ^een made upon the testimony for the defendant, the court was adjourned to December 16, 1918, because of sickness in the family of a juror. On the date last named, a further adjournment was made to December 30, 1918, because of the absence of jurors. On December 30, 1918, the defendant ob jected to proceeding further with the trial, because, after the last adjournment of court, and. since the trial began, one of the members of the trial jury had been appointed administrator of the estate of one Elliot, deceased, and the firm of which J. R. Whitaker, assistant attorney for the State, was a member, was representing said administrator in that proceeding. Mr. Whitaker, being present in person, stated to the court that he had no personal knowledge of the facts of the matter referred to. The objection was thereupon overruled, and appellant assigns error thereon.\\nThere are several good reasons why this exception cannot prevail; and of these we need only suggest one, which is that, so far as the record shows, the alleged fact upon which the objection was based, does not appear to have been admitted, or any evidence thereof submitted to the court.\\nII. Objection is also raised to several paragraphs of the court's charge to the jury, because they are obscure, if not ambiguous, and do not clearly and distinctly present to the jurors the simple essential questions upon which they, were required to pass.\\nAs to most of these paragraphs, counsel do not claim, nor do we think it can fairly be said, that, when read with an intelligent desire to ascertain their meaning and effect, they, or any of them, state an erroneous proposition of law. These instructions have special reference to what is meant by the words \\\"intent,\\\" \\\"motive,\\\" and \\\"malice,\\\" and, if open to any objection at all, it is not because they are incorrect, but because the attempt to define and illuminate the meaning of simple words of common, everyday use tends of tener to confuse than to help the mind unaccustomed to critical definition of terms. We have read the court's charge in this respect with much care, and we find therein no prejudicial error.\\nIII. The court gave an instruction upon the defense of alibi; and in so doing, made use of the language found in some of our eases, cautioning the jury that it is a defense \\\"easily manufactured,\\\" and that the Pr0\\u00b0fs should be \\\"scanned with care and caution.\\\" That this cautionary instruction may properly be given, has been affirmed by this court in several cases. State v. Whitbeck, 145 Iowa 29, 41; State v. Worthen, 124 Iowa 408. The writer of this opinion is convinced, however, that the rule is a vicious one, and ought to be displaced by one more in accord with enlightened justice. With such an instruction, the defense of alibi, though supported by an array of witnesses of the highest character, is sent to the jury defaced with the stigma of judicial suspicion, which is quite sure to rob it of all value for him who offers it. Such, however, is not the view of the court; and the exception to the charge in this respect must be overruled.\\nIV. Counsel argue that the State's case rests upon the testimony of an accomplice, who is not corroborated, as required by law. This question does not seem to have been raised or ruled upon in the court below, and does no^ as we fairly arise in this n{\\u00ed5\\u00a10\\nThere appears to be no evidence which tends to show that the boy Johnson, to whom reference is made by counsel, was a confederate or accomplice in the alleged crime. The facts, so far as shown, are that the threatening letter was first seen tacked to a door of Anna Carson's house. In it was a warning to her to enclose $800 in a bundle, and leave it by a post at a certain corner of her lot before 11 o'clock of the following Saturday night. Mrs. Carson took the letter to an officer, and it was planned to have her make up a dummy package of paper, and leave it at the designated place, while a watch was set for developments. Soon after 11 o'clock of Saturday night, the watchers saw Voyle Johnson, a boy of 13 years of age, approach the comer and pick np the package, and at once arrested him. He said to his captors, and testified on the trial, that, on the evening in question, he met the appellant on the streets, and appellant arranged with him first to go past the designated corner, and see if there was a package there, and, if so, to report to appellant. This he did, and appellant then wished him to get the package, and directed him how to approach the place; and it was while carrying out these instructions that he was arrested.\\nThere is no evidence that the boy had any connection with' the writing or sending of the letter, or had any knowledge or notice of what appellant expected to find in it. On this showing, there seems to be no sufficient ground for treating the young witness as an accomplice, or for applying the rule as to the testimony of accomplices to the case made by the State.\\nV. . Aside from the question raised as to the testimony of an accomplice, it is not argued tha-t the verdict of guilty is not supported by the evidence. Nor, indeed, can it be. If the jury believed the State's witnesses, a conviction was inevitable.\\nThat a man of average common sense, who has maintained a fair reputation among his neighbors for integrity of character, should have conceived and attempted to carry out such a harebrained and preposterous criminal enterprise, hoping to elude detection and punishment, is almost incredible; and yet the history of crime is replete with examples of like folly.\\nWe find nothing in the record upon which we are authorized to disturb the verdict, and the judgment appealed from is \\u2014 Affirmed.\\nLadd, C. J., G-atnor and Stevens, JJ., concur.\"}"
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diff --git a/iowa/8648286.json b/iowa/8648286.json
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index 0000000000000000000000000000000000000000..4dd54289ed2c15377b0d7c70ba26c93d0a619afb
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+"{\"id\": \"8648286\", \"name\": \"Maggie Edmonds, Appellee, v. W. M. Davis, Sheriff et al., Appellants\", \"name_abbreviation\": \"Edmonds v. Davis\", \"decision_date\": \"1904-02-03\", \"docket_number\": \"\", \"first_page\": \"561\", \"last_page\": \"564\", \"citations\": \"122 Iowa 561\", \"volume\": \"122\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T19:57:09.737913+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Maggie Edmonds, Appellee, v. W. M. Davis, Sheriff et al., Appellants.\", \"head_matter\": \"Maggie Edmonds, Appellee, v. W. M. Davis, Sheriff et al., Appellants.\\nHomestead: exemptions: evidence. A sale under general execution of a portion of the premises constituting a homestead will he enjoined, where it appears that the result would he to unreasonably interfere with the use and occupation of such homestead. Evidence in the case considered and held that the sale in question should he enjoined.\\nAppeal from Marion District Court. \\u2014 HoN. J. D. Gamble Judge.\\nWednesday, February 3, 1904.\\n* AotioN in equity for an injunction to restrain tbe sale under \\u2019general execution of certain described premises on the ground that such premises constitute the homestead of plaintiff. The property in controversy consists of a fractional part of a lot in the city of Knoxville, on which is situated a two-story brick-veneered building, in size twenty by fifty feet, and fronting on the street line. On the rear is a small addition, also two stories in height. The lower floor of the main building is in one room, and sinqe the year 1892 plaintiff has occupied the front portion of such room as a millinery shop. The rear portion of the room during all that time has been used by herself and family for living purposes \\u2014 sitting room, dining room, and bed-room. The first-story room in the addition has been used as a kitchen. In the second story are three rooms, two in the main building and one over the kitchen in the addition. Plaintiff is an invalid, and occupies the bed on the first floor. Her husband occupies the front room in the second story as a bed room. The other second-story room in the main building was formerly occupied as a kitchen, but at the time of the levy was in temporary use as a storage room. The room over the kitchen is used as a servant\\u2019s bedroom. An inside stairway goes up from the main first-floor room to the storage room, from which there is a door into the front room. There is also an outside stairway, with a landing, from which separate doors open into the second-story rooms of the main building. The servant\\u2019s room is reached by an inside back hall and stairway. The plaintiff became indebted to defendants S. Strauss & Go. in the year 1894, and, judgment having been rendered upon such indebtedness, an execution was issued and placed in the hands of the defendant Davis, as sheriff, who levied upon the first story and the middle room of the second story of the building in ques tion, and advertised tbe same for sale. A preliminary writ of injunction was allowed, which, 'upon trial of tbe action on its merits, was by decree in favor of'plaintiff made permanent. Defendants appeal.\\nAffirmed.\\nOrozier & McGormaclc for appellants.\\nHays & Amos for appellee.\", \"word_count\": \"1115\", \"char_count\": \"6437\", \"text\": \"Bishop, J.-\\nTbe only question presented for our determination is whether tbe property levied upon forms a part of, or is so connected with tbe homestead of appellee, that tbe same is exempt from sale on execution. Under tbe policy of this state, homestead and other exemption statutes are to be given a liberal construction in favor of tbe persons for whose benefit they were enacted. It is not always easy, however, to make practical application, where, as in this case, it is sought to subject certain designated portions of a building which is used as a homestead or in connection therewith. One thought clearly runs through all the adjudicated cases; that is, that the homestead, if such exists, should be preserved, and there can be no sale of any portion of the building if the result thereof .will be to unreasonably interfere \\\"with the use and occupation of such homestead. It follows that each case presented must be determined in greater part upon the particular facts involved therein. Appellants in this case rely upon the cases of Mayfield v. Maasden, 59 Iowa, 517, and Johnson v. Moser, 66 Iowa, 536. In the former case the front portion of the first-story room was partitioned off and used as a grocery, restaurant, and saloon. The rear- room was used for storage only. The upper floor was used for residence purposes, and was reached by a stairway leading from the street, and partitioned off from the first-story room. The first story, saving the stairway, was held subject to execution.- In the latter case the building was four stories in height. The first story was used exclusively for business purposes, the second and third for residence purposes, and the fourth was unfinished. The first and fourth floors were connected by inside hatchway in which was operated a hoisting apparatus. There was an outside stairway 'leading to the second floor, and also inside stairways leading from the first floor to those above it. It was held that the first and fourth floors were not exempt, as they could be used by others without unreasonably interfering with the use and occupancy of the second and third stories. We are disposed to think that the cases thus cited are distinguishable from the case now before us, and therefore are not to be accepted as controlling. Here a large portion of the first story room was actually used for living purposes, and the rooms in the addition could only be used conveniently in connection therewith. The plaintiff is a cripple, unable to go up and down stairs, and the first story is therefore absolutely essential to the continuation of her occupancy of the premises as a place of residence. To sell a portion of the first-story room, extending a certain number of feet back from the front, would not only cut off access to the second-story rooms from within, but would render it practically impossible for plaintiff to use and enjoy the remaining portion of the room and the adjoining room in the addition. And we think it fairly within the spirit of the statute to say that where it appears, as in the case before us, that a room is used as a place of residence, the owner should not be deprived of the exemption given by the statute, because in the prosecution of her ordinary business the front windows and a portion of such room is given over thereto. The conclusion thus reached by us finds support, in principle at least, in the following cases, in each of which the fact conditions presented were to a greater or less extent identical with those presented in the instant case, and in which the exemption was allowed: Cass Co. Bank v. Weber, 83 Iowa, 63; Smith v. Quiggans. 65 Iowa, 637; Groneweg v. Beck, 93 Iowa, 717.\\nIt follows that the decree should be and it is aekkbced.\"}"
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diff --git a/iowa/8649370.json b/iowa/8649370.json
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+"{\"id\": \"8649370\", \"name\": \"Samuel Hechtman, Appellant, v. Chicago Great Western Railway Company, Appellee\", \"name_abbreviation\": \"Hechtman v. Chicago Great Western Railway Co.\", \"decision_date\": \"1921-09-28\", \"docket_number\": \"\", \"first_page\": \"1255\", \"last_page\": \"1259\", \"citations\": \"191 Iowa 1255\", \"volume\": \"191\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T22:42:53.274928+00:00\", \"provenance\": \"CAP\", \"judges\": \"Evans, C. J., Peeston and De Grape, JJ., concur.\", \"parties\": \"Samuel Hechtman, Appellant, v. Chicago Great Western Railway Company, Appellee.\", \"head_matter\": \"Samuel Hechtman, Appellant, v. Chicago Great Western Railway Company, Appellee.\\nRAILROADS: Negligence \\u2014 Employee Alighting From Moving Train. 1 Testimony that a passenger train was made up, inspected, and started on its journey in the ordinary way, reveals no negligence as to an employee whose duty was to refill the ice coolers prior to the starting of the train and without notice of such starting, but who, on the occasion in question, was upon the train when it started, and was injured in attempting to alight.\\nNEGLIGENCE: Proximate Cause \\u2014 -Speculative Nature of Testimony. 2 The negligence alleged as the basis for an action must be proven substantially as alleged \\u2014 not left to a mere inference or guess.\\nAppeal from Fayette District Court. \\u2014 W. J. SPRINGER, Judge.\\nSeptember 28, 1921.\\nAction at law to recover damages for personal injury. There was a directed verdict for defendant, and plaintiff appeals.\\u2014\\nAffirmed.\\nJames Cooney and E. H. Estey, for appellant.\\nE. B. O\\u2019Brien and Carr, Carr & Evans, for appellee.\", \"word_count\": \"1661\", \"char_count\": \"9249\", \"text\": \"Weaver, J.\\nPlaintiff was an employee of the defendant railway company at Oelwein. In such employment, he was required, among other things, to supply ice to the water coolers on passenger coaches calling at the Oelwein station. On the day m question, it became his duty to ice the cooler in a car which had arrived from Chicago, Illinois, bound for Omaha, Nebraska. When he was emptying the ice into the cooler, the train started, and, while it was in motion, plaintiff went to the car platform, and undertook to pass down the steps, and in so doing, he fell or was thrown to the ground, receiving personal injury. In this action, he seeks to recover damages on account of such injury, on the theory that defendant, by its employees, was negligent in failing to give him any warning of the starting of the train, or to allow him sufficient time to perform the work assigned to him, before putting the ear in motion.\\nHe also charges that defendant had negligently permitted the existence of a protruding \\\"nail or screw or other obstruction\\\" upon one of the steps over which he was leaving the car, and that, while he was making his exit, his trousers caught upon such obstruction, causing him to fall, and thus sustain the injury of which he complains.\\nIssue was taken upon these allegations, and tried to a jury. At the close of plaintiff's testimony, the court sustained defendant's motion for a directed verdict in its favor, because of the insufficiency of. the evidence to sustain a recovery of damages. A reading of the record leads us to the conclusion that there was no error in the ruling complained of.\\nThe only witness testifying of the accident and the attend ing circumstances is tile plaintiff himself, and, for the purposes of this appeal, we may concede the entire truthfulness of his story. He says, in substance, that, after the arrival of the Chicago' train, more or less switching was done, some of the cars being attached to trains there being made up for the several branches of the railway radiating from Oelwein. At some time during the wait at this station, plaintiff, in pursuit of his employment, took a pail of ice into the Omaha car, and emptied it into the cooler. While so engaged, he noticed that the car was in motion, but says he did not know it was pulling out, but felt sure it was not, believing that it was a mere switching movement. He says:\\n\\\"I ivent out on the platform, and started to get off. * # * When I got on the platform, the train had gone about a couple hundred yards. Was going about 10 to 12 miles an hour. I had on my left arm the empty pail. Took hold of the grab iron Avith my left hand. Went doAAm the steps. There were three steps. Tried to get off, but something caught on my left foot by the pants. Something caught me, and I didn't notice. When I got down on the lower step, and before I tried to get off, I was standing with both feet on the lower step. Then I swung, hanging doAvn, holding the grab handle. I took my right foot off that lower step, and my left foot still on the loAver step. Then I tried to reach the grormd with my right foot and take off the other, and I would be down. When I started to put my right foot down, and take my left foot off the step, it throwed me doAvn. The lower step was made of Avood, covered by a piece of rubber matting fastened with sereAArs or nails. Don't know what threw me doAvn. Something caught on my pants, and I could not get my foot off the platform to get down, and that is what held me. ' '\\nOn cross-examination, he says:\\n\\\"When I went back with the ice, the train was made up, but I didn't notice. I figured on another coupling, and didn't notice it Avas made up. It was made up, but I expected them to make another move \\u2014 another coupling. While I was doing that [filling the cooler], I felt the train start. I kept on filling the. cooler, and the train Avas moving at that time. After I got that done, went back .to where the porter was, to see if he didn't want some ice. The train was moving all that time. Don't remember whether he wanted any ice. After the train started, it was only about two minutes till I decided to get off. .I did not know whether the inspector was through with his work, or whether the conductor had signaled 1 all right, ' for the train to start. After I got on the train, and found it was in motion, I was still waiting for another stop.\\\"\\nPlaintiff explains that he was misled into believing the train had not started from the station, because the order in which the several cars were attached or coupled together was not such as was usually observed by the defendant in making up that train, and because it is \\\"usual\\\" for the car inspector, when a train is ready to start, to pull a cord, that \\\"gives lots of noise over all the train.\\\" That signal, he says, means that the inspector notifies the engineer that the air-hose is all connected and in good order. This signal is answered by the engineer, with the air, making a blowing noise; the conductor ' ' gives some kind of a sign with his hand; and the train starts.\\\" He says that the air test and signal to the engineer are given after the train has been fully made up, and adds:\\n\\\"When I went back with that pail of ice, I didn't know\\u2014 I didn't know whether the air had been tested, or whether the inspector had signaled all right for the train to start. ' '\\nWithout further quotation from the record, it appears to us very clear that plaintiff's allegations of negligence on the part of defendant are without any substantial support. There is no showing whatever of any rule or custom of the defendant at this station, entitling plaintiff to warning before allowing its train to start. It was a regular train, accustomed to stop at Oelwein but a few minutes after its arrival from Chicago. The nature of the service being performed by plaintiff was not such as exposed him to peculiar danger, against which it can fairly be found that he was entitled to other notice or warning than such as was afforded him in the conduct of defendant's employees in coupling up the cars, and in the familiar preparation of the train for its journey. Even if we were to assume that plaintiff could rightfully place some degree of reliance upon the inspector's signal to the engineer, or upon the engineer's response thereto, or upon the conductor's call, there is no evidence that all these were not given in the usual manner. In deed, plaintiff's story fairly .indicates that these preliminaries were, or might have been, attended to before he entered the car. He admits that he did not enter the car with his ice until after the train had been fully made np, and he did not know and could not say but that the signals between inspector and engineer had already been given; and his only explanation of his heedlessness i's, not that he was depending upon a signal, but that he in some way took it for granted that there would be another stop, and another coupling made. Under such circumstances, it must be said that there is no evidence of any neglect of duty by defendant in failing to give warning of the moving of the train.\\nOn the charge of negligence with respect to the condition of the step or steps from the ear platform, the failure of evidence is equally apparent. Plaintiff was not a passenger, and the res iPsa doctrine, which might, under some cir-eumstances, be invoked in favor of a passenger, ]ias no application here. The allegation that there was a protruding \\\"nail or screw or other obstruction\\\" in the step finds no substantial support in plaintiff's testimony. Neither he nor any other witness appears to have examined the step, either before or after the accident. He admits that he does not know what the leg of his trousers caught upon, when he undertook to drop from the step to the ground, but says it was \\\"something,\\\" the character of which he does not and cannot describe. This is entirely too vague and indefinite to justify the conclusion that the unknown and undefined cause of his misfortune was the failure of the defendant to exercise reasonable care for his safety.\\nThe court did not err in directing a verdict for the defendant. \\u2014 Affirmed.\\nEvans, C. J., Peeston and De Grape, JJ., concur.\"}"
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diff --git a/iowa/8664006.json b/iowa/8664006.json
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index 0000000000000000000000000000000000000000..6753e9785673ad33f40eef816b0cd9082fe7d8fa
--- /dev/null
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+"{\"id\": \"8664006\", \"name\": \"Raymond Brothers v. Williams & Chapman\", \"name_abbreviation\": \"Raymond Bros. v. Williams\", \"decision_date\": \"1874-12-15\", \"docket_number\": \"\", \"first_page\": \"117\", \"last_page\": \"119\", \"citations\": \"40 Iowa 117\", \"volume\": \"40\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:10:26.999800+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Raymond Brothers v. Williams & Chapman.\", \"head_matter\": \"Raymond Brothers v. Williams & Chapman.\\n1. Account: interest. Where parties 'are engaged in continuous dealings, the presentation of bills at various times stating parts of the account does not raise the presumption of liquidation, under which interest is thereafter chargeable upon the balances shown to be due.\\n2. Practice in the Supreme Court: error without prejudice. Error without prejudice will not justify the reversal of a judgment.\\nAppeal from Bl-aekhawk Oiretdt Qowrt.\\nTuesday, December 15.\\nAction upon an account for goods sold. The cause was submitted to the court without a jury, and a judgment rendered against defendant for $346.83. Plaintiffs appeal. The facts are fully stated in the opinion.\\nOrdway & Husted, for appellants.\\nMiller & Preston, for appellees.\", \"word_count\": \"934\", \"char_count\": \"5585\", \"text\": \"Beck, J.\\nThe first item of charge against defendants in the account is of the date of April 18, 1864, the last March 28, 1868. The items of the account both debit and credit are numerous, showing almost daily transactions. The balance of the account at the expiration of six months from the date last mentioned as shown therein is $2,522.21 in favor of plaintiffs. Within these six months large payments are entered in the account to the credit of defendants, and after their expiration other large credits are also given. The account was often balanced during the time of the transactions, and bills, made of the items, were presented to defendants.\\n- The court found that September 28, 1868. there was due plaintiffs $425.11, and allowed interest thereon from that date. From the sum of- the principal and interest, the payments made after that date were deducted, making due allowance for interest thereon.\\nI. The plaintiffs insist that interest should have been allowed upon the account from the day each bill of items was presented; that the presentation of these bills, to which no-objections were made by defendants, amounts to a settlement or liquidation of the account, and thereon interest will be chargeable against' defendants, calculated upon the balance as shown by each bill. .It may be admitted 'that the presentation of an account showing a bal-.anee clue, to which the person charged makes no objection, will raise a presumption of its liquidation, and that interest will be chargeable thereon. afterwards. This was so ruled in David v. Conrad & Co., 1 G. Greene, 336. B\\u00fatthe question in this case is, whether continuous dealings, represented in one account, may be divided into separate accounts, which will be presumed liquidated simply by the rendering and presentation of bills of items covering parts of the transactions. We think this cannot be done. All of the trarisactions are tb be regarded as one account, and the mere fact that bills of items were frequently rendered by the creditor, does not require it to be considered as more than one; nor will the separate bills rendered for parts of the account together, be regarded as' a liquidation of the whole.\\nII; We understand'from tlie result of the court's fiuding as exhibited in the amount of the - judgment, that interest was allowed upon the amount due on the account, after six months from the date of the last debit item, and payments made thereafter, with proper allowance of interest, were deducted therefrom. The court's finding as set out in the abstract is hardly intelligible when read in connection with the account sued on. It refers to payments made after 'May 13, 1812. \\u2022 No such payments are shown in the abstract. Certain payments were \\u2022made between September 28, 1868, and May 13, 1872. The last item in the account on the credit side is of .the date last mentioned. We ascertain by a calculation, that the sum found by the court is the a'mount stated in the finding as due September 28,1868, with interest thereon from that date, less the payments which the court.finds were made and interest thereon:\\nBut plaintiff insists that the court should have allowed interest on a larger sum. The account shows that on the 28th of September, 1868, $2,522.21 were due; but the court finds $425.41, as the balance on that day. This is readily accounted for; the court found that the credits of the defendants were'not correctly given 'in the account, and that one item,, entered subsequently to the 2&th of September, was paid before that date, and so considered it in making up the judgment. This is readily discovered by an inspection of the -account and -the findings of the court. At all events the court found $425.11 tobe due September 28, 1868; this, sum with interest from that day, less -credits and interest thereon, as found by .the court, is the amount of the judgment. -The evidence in the case is not before us; the correctness of the court's'findings -upon the-facts cannot, therefore, be questioned.. ' , ;\\n- Counsel on both sides argue the case; as though the court calculated the interest from the date of.the last credit item in the account, and not from September 28,1868, six months after the date of the last.debit item. But, in the'fact assumed, they are evidently mistaken.\\nWe are not called upon to decide under which, of the rules interest should be calculated. The plaintiffs do not object to the rule adopted, if the one contended for by them is not followed, for their judgment is greater than ; , J \\u00b0 L it. would have been it interest had been calculated by the rule which both sides assume was applied. They suffer no prejudice and cannot complain. The defendants cannot object to the judgment as they did not appeal. In our opinion the judgment of the Circuit Court ought to be\\nAffirmed.\"}"
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diff --git a/iowa/8665094.json b/iowa/8665094.json
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index 0000000000000000000000000000000000000000..8a78279743b6cf00fbf0dfd0b12185c3432bd9a4
--- /dev/null
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+"{\"id\": \"8665094\", \"name\": \"Wilmer v. Farris\", \"name_abbreviation\": \"Wilmer v. Farris\", \"decision_date\": \"1875-03-19\", \"docket_number\": \"\", \"first_page\": \"309\", \"last_page\": \"310\", \"citations\": \"40 Iowa 309\", \"volume\": \"40\", \"reporter\": \"Iowa Reports\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T23:10:26.999800+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wilmer v. Farris.\", \"head_matter\": \"Wilmer v. Farris.\\n1. Specific Performance: contract: evidence. When an alleged. contract is supported only by the testimony of the plaintiff,' corroborated by admissions made in conversations with third persons, and is positively denied by the defendant, specific performance will not be decreed.\\n2. Statute of Frauds: sale of realty: specific performance. Specific performance will not be enforced of a parol contract for the sale of real estate by one partner to another, where the only change of possession is the withdrawal of the vendor and the continuance of the vendee in possession.\\n3. Specific Performance: inequitable contract. Specific performance of an inequitable contract will not be decreed.\\nAppeal from Buchcmcm District Court.\\nFriday, March 19.\\nThis is a suit in equity to enforce the specific performance of an alleged contract of sale, by parol, of the plaintiff\\u2019s equal and undivided interest as a partner with defendant in certain real estate, being six lots in the town of Jessup, with a valuable stone elevator and other buildings thereon; and also the sale of his interest in the partnership business of buying and selling wheat, coal, lumber, implements, etc. The-defendant denies the alleged contract and claims set up by the plaintiff. The cause was tried to the court, who found for defendant, and rendered judgment accordingly. The pl\\u00e1intiff appeals.\\nWm. Mills & Son and William, Graham, for appellant.\\nBoies, Alien & Couch, for appellee.\", \"word_count\": \"562\", \"char_count\": \"3431\", \"text\": \"Cole, J.\\n'We must affirm this judgment, because: First. The plaintiff lias failed to prove, satisfactorily, the alleged contract and its definite terms. The plaintiff alone testifies to the contract, while the defendant with equal positiveness denies it under oath as a witness; and the only corroboration of plaintiff consists of admissions by defendant in conversations with third persons \\u2014a kind of evidence the law recognizes as weak and unsatisfactory, and some of which, in this case, may be accounted for upon the ground that the defendant expected to make the purchase, and others of them upon other grounds, tending to negative their title to any credit as corroboratives. Noel v. Noel, 1 Iowa, 423, and cases cited in note b. of Cole's edition.\\nSecond. The alleged contract was for the sale of an interest in real estate, and exists only in parol. The only alleged change of possession was that plaintiff claimed to withdraw from the management of the partnership business, leaving the defendant alone in possession of the property and business. This does not show that the defendant \\\" has taken and held possession under and by virtue of the contract,\\\" so as to make the parol evidence competent under the statute of frauds,'or take the case out of the statute. The possession must unequivocally refer to and result from the agreement. Here, the defendant merely continued in possession; the case is not unlike a sale to a tenant, in which the continued possession by the tenant has been held insufficient. Mahana v. Blunt, 20 Iowa, 142, and authorities cited.\\nThird. The evidence tends to show that the alleged price agreed to be paid for the property was very largely in excess real value so Hindi so as to show it to be inequitable. Harper v. Sexton, 22 Iowa, 442, and authorities cited; Gilroy v. Alis, 22 Iowa, 174.\\nThese are our conclusions, and we deem it unnecessary to review the evidence, which is very voluminous and conflicting.\\nAliKIRMED.\"}"
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+"{\"id\": \"8665338\", \"name\": \"Preston et al. v. Daniels et al.\", \"name_abbreviation\": \"Preston v. Daniels\", \"decision_date\": \"1850-06\", \"docket_number\": \"\", \"first_page\": \"536\", \"last_page\": \"541\", \"citations\": \"2 Greene 536\", \"volume\": \"2\", \"reporter\": \"Reports of Cases in Law and Equity, Determined in the Supreme Court of the State of Iowa\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-10T17:53:22.088555+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Preston et al. v. Daniels et al.\", \"head_matter\": \"Preston et al. v. Daniels et al.\\nIf it appears by a bill in equity, that complainants had a plain and adequate remedy at lav it is good ground for demurrer,\\n\\\"Where funds collected by a sheriff on fi. fa. -were demanded by D and N, and also by P and H, and each party showed an equal right to them; it was held J) and N had not a plain and adequate remedy at law and that they might proceed in equity.\\nWhere from any defect in the common law, want of foresight in the parties, or other mistake or accident, there -would'be a failure of justice, it is the duty of a court of equity to interfere and supply the defect or furnish the remedy.\\nThe supreme court is not authorized to grant a lien upon a judgment for an attorney\\u2019s fees, as it-would be an exercise of original^ urisdietion.\\nIn Equity. Appeal from Linn District Court.\", \"word_count\": \"1783\", \"char_count\": \"10010\", \"text\": \"Opinion Toy\\nG-\\u00edreeNe, J.\\nA. Daniels and C. Nye filed their bill, in which the following facts are stated'! March 18, 1816, E. T. Lewis obtained judgment against Levi Lewis, in the district-court of Linn county, for the sum of one hundred and forty three dollars and thirty nine cents, and on the 23rd of tlie same month\\\", assigned fifty two dollars of the judgment to Preston ;and Hastings. July 21, 1816, E. T. Lewis assigned the balance of the judgment to the complainants, who filed the assignment in the cleric's office. In April of that year, Levi Lewis took the judgment by writ of error, to the supreme court, wherein July, 1817, it was affirmed. Shortly -after, a writ of fi.fa. was issued from the supreme court to the sheriff of Linn county, who collected the money, paid $56,82 over to Preston & Hastings, and retained the balance in his hands. This .balance of $100,19 was demanded of the sheriff by complainants under the assignment which had been made to them, but the sheriff refused to pay the same over to them <on the pretense that Preston & Hastings had a lien of .$90,00 on the amount, for their fees as attorney for E. T, Lewis.\\nComplainants charge that the $52 assigned by Lewis to Preston & Hastings, was the only lien they had aequir-ed for their professional services; that the $90, were neither claimed nor acquired until after judgment in the supreme court; that Preston & Hastings had notice of the assignment to them; and the claim of $90 was intended to defeat and defraud them, that E. T. Lewis was insolvent and that they had no remedy at law. The bill concludes with a prayer, that the pretended lien be adjudged inoperative and that a writ of injunction may issue, to restrain the sheriff from paying the money over to any other person than themselves. E. T. Lewis, I. M. Preston, S. C. Hastings and A. Harlan the sheriff, were made defendants.\\nPreston & Hastings demurred to the bill on the ground; First, That E. T. Lewis should be a plaintiff, if a party at all to the bill; Second, That the complainants had an adequate remedy at law. Thereupon, Lewis filed a disclaimer of all interest. The demurrer was overruled, and the bill dismissed as to Lewis.\\nPreston & Hastings' answer admits the judgment, assignments, &c., that the $52 assigned to them was for pro-fesssional services; that the $90 claim was partly for other services than those rendered in the suit against Levi Lewis; but claims that the $90, was a lien allowed by the supreme court, that their claim for fees was in accordance to an agreement between them and E. T. Lewis, at the time he placed his claim against Levi Lewis, in their hands for collection; that at the time Preston received notice of the assignment to complainants, he gave them notice of his and Hastings' claim, for additional fees, upon the judgment; and insists that said assignment was not in good faith, and that if any consideration passed, it was for \\u00e1 pre-existing debt, which was not cancelled by the assignment. Exceptions were taken to the separate answer of I. M. Preston, and thereupon, he filed an amended answer in which he states, that the services for which $90,00 are claimed, were rendered in suits prior to April 1, 1847.\\u2014 Hponthe bill and answers the court decreed, that the supposed lien of Preston & Hastings be inoperative as against the assignment to the complainants, and that the sheriff should pay the money over to them.\\n1. It is objected, that the demurrer to the bill should have been sustained on the ground, that complainants had a plain and adequate remedy at law. If complainants had an adequate remedy at law, it is clear that the demurrer should have been sustained, and the bill dismissed. But we think, that the facts stated in the bill show no such legal remedy. The money was in the hands of tbe sheriff, and demanded from him by two different parties, both of whom showed prima facie, an equal right to it; and therefore, the sheriff was justified in not paying the money over to either of them. The sheriff was not in default. He was not required by the process upon which he had collected the money, to pay it over to complainants; nor does it appear, that the time had expired within which he was required by law to make return of the fi. fa., to the supreme court. As the sheriff had not neglected his duty in the premises, the complainants had no action at law against him; and as Preston & Hastings had not obtained possession of the funds claimed by complainants, they had no remedy against them.\\nCounsel have failed to point out the plain and adequate remedy at law, which complainants had for this money. We are told, that they might have had their remedy at law against Preston and Hastings, if the sheriff had paid the money over to them. If this proposition was correct, it could not add force to the demurrer in the present case. It by no means follows, that they had a plain and adequate remedy at law, because they might have had such a remedy if certain things had taken place. As the contingency did not happen, it follows, that complainants did not acquire the remedy which it is claimed they had.\\nIt was not necessary for them to lay by and lose the use of their money, upon the supposition that some event might happen which might enable them to proceed by suits at law. A court of chancery will not require a party to defer his rights to the supposition that a contingency may happen which will give him a remedy at law. The rule is laid down by Chancellor Walworth, and is doubtless approved by all equity tribunals, that where from any defect of the common law, want of foresight in the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to interfere and supply the defect or furnish the remedy. Quick v. Stuyvesant, 2 Paige 84. The bill in the case at bar comes with obvious propriety under this rule. A gain, it was held in Winthrop v. Lane, 3 Desau. 323, that tbe general powers of a court of equity are very great; that it is assistant to the courts of law in counteracting fraudulent judgments, or when in conscience and equity the plaintiff ought not to avail himself of a judgment at law. And in Watson v. Palmer, 5 Ark. 501, it was held that equity will relieve from a judgment at law, when the \\u00a1party was prevented by unavoidable necessity from appearing or making his defense. The lien allowed to Preston & Hastings by the supreme court, in the present case was upon their expande application, without notice to the complainants and without their knowledge. In conscience and equity, according to Winthrop v. Lane, they ought not to avail themselves of the benefit of that lien to the prejudice of complainant's previously acquired right. And according to Watson v. Palmer, equity ought to afford them relief, because from a want of notice they were not permitted to appear and defend against the application. Again, whenever the remedy at law is defective, doubtful or diifieu.lt, a court of equity has jurisdiction, Seymour v. Delaney, 3 Cow. 445; Amer. In. Co. v. Fisk, 1 Paige 90; League v. Russell, 2 Stewart 420.\\nUpon the first point we conclude then, that the bill presents a case in which relief may be given in a court of equity, and that the demurrer was correctly overruled.\\n2. As an objection to the decree, it is urged that the right of Preston & Hastings to a specific lien was res ad-judicada,; that the allowance was made to attorneys as officers of the court, and is obligatory.\\nIf the matter had been within the jurisdiction of the supreme court, and if all the parties affected by the lieu had been properly notified of the proceeding, it might with propriety be regarded as res adjudicata. B ut as the powers of this court are merely corrective and appellate as they comprise no original jurisdiction; our authority to grant an original application for a lien may well be questioned. Such an act cannot but be regarded as an assumption of original piower, unauthorized by the constitu tion and laws of the state. -By sncb an application a new issue was raised, new parties were substituted, and a subject matter not before adjudicated, was brought before this court. The motion was hastily presented, no one appeared to object, and without sufficient consideration the lien was granted. We are now satisfied that this proceeding was extra judicial, that the lien was coram non judice and void. The court below then did not err in declaring the lien to be inoperative.\\nS. Whicher and I. M. J*r-eston, for .appellants.\\nW. W. Isbell and Wm. Smytht for. appellees.\\nThe fact that the attorneys were officers of this court, cannot change the case; it cannot enlarge our jurisdiction.\\nAn attorney is doubtless entitled to a lien for his services upon a judgment obtained by him for his client; but that lien must be secured before a court of original jurisdiction.\\nIf the lien is sought for services rendered in the su-jireme court, it can only be secured by having the judgment returned to the district court.\\nAs this question of jurisdiction justifies the decision of the court below it is not necessary to inquire into the merits of the lien.\\nDecree affirmed.\"}"
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diff --git a/iowa/9458245.json b/iowa/9458245.json
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+"{\"id\": \"9458245\", \"name\": \"IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Timothy J. RYLAARSDAM, Respondent\", \"name_abbreviation\": \"Iowa Supreme Court Board of Professional Ethics & Conduct v. Rylaarsdam\", \"decision_date\": \"2001-11-15\", \"docket_number\": \"No. 01-0914\", \"first_page\": \"90\", \"last_page\": \"94\", \"citations\": \"636 N.W.2d 90\", \"volume\": \"636\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Iowa Supreme Court\", \"jurisdiction\": \"Iowa\", \"last_updated\": \"2021-08-11T00:00:54.307171+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Timothy J. RYLAARSDAM, Respondent.\", \"head_matter\": \"IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Timothy J. RYLAARSDAM, Respondent.\\nNo. 01-0914.\\nSupreme Court of Iowa.\\nNov. 15, 2001.\\nNorman Bastemeyer and Charles Harrington, Des Moines, for complainant.\\nTimothy Rylaarsdam, Sioux Center, pro se.\", \"word_count\": \"1848\", \"char_count\": \"11723\", \"text\": \"TERNUS, Justice.\\nThe Iowa Supreme Court Grievance Commission has filed a report with this court, finding that the respondent, Timothy J. Rylaarsdam, has violated the Iowa Code of Professional Responsibility for Lawyers. The Commission recommends that Rylaarsdam's license to practice law be suspended for six months. Upon our de novo review, we agree that Rylaarsdam has committed ethical violations. We therefore suspend his license to practice law indefinitely with no possibility of reinstatement for six months.\\nI. Background Facts and Proceedings.\\nRylaarsdam practiced law in Sioux Center, Iowa from June 1991 until August 1999. Initially, he practiced part-time with a Sioux Center law firm and also acted as a part-time assistant county attorney for Sioux County. In January 1999, his position in the county attorney's office became full-time and he remained in that position until August of that year. Since that time he has worked as a computer technician for a computer company.\\nIn 1992 Rylaarsdam undertook the representation of Madonna and Richard Harrington. Mrs. Harrington's brother, Donald Lehrman, had died and Rylaarsdam opened an estate for him, having Mr. and Mrs. Harrington appointed as administrators. The only assets in the estate were a shed owned by Donald and a house he had owned jointly with his brother, Robert.\\nOn or about July 5, 1993, Rylaarsdam prepared a petition to sell the shed and he forged the administrators' signatures to this document. At about the same time, he forged Mrs. Harrington's signature to two forms admitting claims filed in the Donald Lehrman estate. Other than the forged nature of the signatures on these documents, the contents and propriety of the petition and the admissions of claims were not in dispute. Rylaarsdam failed to close the Donald Lehrman estate, although he represented to the Harringtons that he had done so.\\nIn 1996, Madonna Harrington again requested Rylaarsdam's assistance. Her brother, Robert, had died and she wanted help in opening an estate to probate his assets. This time Rylaarsdam did not even open the estate. Instead, he took a blank letter-of-appointment form from the clerk of court's office. Then, without the knowledge or consent of the clerk, he completed the form and embossed the clerk's seal on it. Presenting this document to Mrs. Harrington, Rylaarsdam represented to her that the estate had been opened.\\nThe primary asset owned by Robert was the house he had originally held jointly with his brother, Donald. Although Ryla-arsdam prepared some preliminary paperwork to effect a sale of this property, he did not complete the transaction. Rather, the respondent misrepresented the status of the sale to Mrs. Harrington and then, in August 1998, used his personal funds to make payments to Robert's heirs, representing that these funds were proceeds of the sale.\\nRylaarsdam did not benefit financially from his wrongdoing. Nor did he receive any fees for his work on the Donald Lehr-man estate.\\nAfter Rylaarsdam became a full-time assistant county attorney in 1999, one of the attorneys in his former firm reviewed the Harrington files. This review eventually led to discovery of the delinquent nature of the Donald Lehrman estate and the forged letters of appointment in the Robert Lehr-man estate.\\nRylaarsdam's conduct was reported to the Ethics Board. Initially, he failed to respond to the Board's inquiries. He did, however, cooperate after formal charges were filed.\\nRylaarsdam did not contest the charges brought by the Board. He admitted his ethical misconduct and acknowledged the necessity of a sanction. He was also sincerely remorseful for what he had done. At the hearing he offered no excuses, but he did try to explain what had led to his unprofessional conduct with a tale that is all too familiar.\\nRylaarsdam's problems began when he agreed to handle the Harringtons' estate matters, an area he knew little about and in which he had no experience. Com pounding the difficulties inherent in such a situation was Rylaarsdam's reluctance to ask for help from the other attorneys in his firm. Although he initially tried to compensate by reading the applicable statutes and treatises in the area, he found it harder and harder to motivate himself to work on the file. Complicating the matter even further were difficulties Rylaarsdam had in meeting with his clients. Mrs. Harrington was having medical problems during this time and, when she was available, Rylaarsdam would usually have to travel to Sioux City, where the Harringtons were employed, in order to meet with them.\\nIn 1994 Rylaarsdam and his wife began to experience marital problems. One of the problems in their relationship from his wife's point of view was the amount of time Rylaarsdam spent at the office. Consequently, Rylaarsdam, now suffering from mild depression, attempted to spend more time with his family. Although he would take files home to work on after the children went to bed, he found he did not have the energy to tackle these matters and the files would just sit there, untouched.\\nRylaarsdam's marital situation deteriorated in 1997 and he and his wife eventually divorced in October 2000. Rylaarsdam's mental state followed suit. By April 1999, he was diagnosed with severe depression. He began seeing a psychiatrist and a counselor and was put on medication for his condition. To his credit he recognized that he could not function as a lawyer, and he quit his position with the county attorney and has not practiced since August 1999. Shortly after his resignation, he was hospitalized for a week for treatment of his depression. Since that time he has continued counseling and a medication regimen prescribed by his psychiatrist.\\nThe Commission decided that Rylaars-dam had violated DR 6-101(A)(3), which states that \\\"[a] lawyer shall not . [n]e-glect a client's legal matter.\\\" It also concluded that Rylaarsdam's deceit and misrepresentations constituted a violation of DR 1-102(A)(4), (5), and (6). See Iowa Code of Profl Responsibility for Lawyers DR 1-102(A)(4) (prohibiting \\\"conduct involving dishonesty, fraud, deceit, or misrepresentation\\\"), (5) (prohibiting \\\"conduct that is prejudicial to the administration of justice\\\"), (6) (prohibiting \\\"any other conduct that adversely reflects on the fitness to practice law\\\"). Finally, the Commission stated that the respondent's failure to respond to the Board's inquiries was a violation of DR 1-102(A)(5) and (6).\\nIn recommending a six-month suspension, the Commission offered the following evaluation of Rylaarsdam's conduct:\\nThe Grievance Commission is seriously concerned about the Respondent's acts of deceit, particularly those involving falsification of court documents and forgery of an official's signature. The Commission is likewise concerned about the Respondent's failure to seek help in an area of the law in which he had no expertise. However, the Commission understands the pressures the Respondent was under and recognizes the role which Respondent's marital problems and, more importantly, his mental health condition played with respect to his behavior.\\nThe Commission also stated that it \\\"was impressed with Respondent's sincerity, his remorse, [and] his acceptance of responsibility for all his actions with no attempt to blame others.\\\"\\nThe Commission's report is now before this court for review pursuant to Court Rule 118.10. Our review is de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672, 679 (Iowa 2001). \\\"Although we are not bound by the Commission's, findings, we give them weight, particularly when consider- mg the credibility of witnesses.\\\" Id. Similarly, although we are not bound by the Commission's recommended discipline, we give its recommendation our respectful consideration. Id.\\nII. Ethical Violations.\\nAs we have already noted, Rylaars-dam did not contest the nature of his conduct nor the fact that it violated our code of professional responsibility. We agree with the conclusions of the Commission that the respondent's neglect of his clients' legal matters, his deceit, his misrepresentations, and his failure to respond to the Board constituted violations of the Code provisions listed above. We turn now to consideration of the appropriate discipline.\\nIII. Discipline.\\nIn determining suitable discipline, we consider \\\"'the nature of the alleged violations, the need for deterrence, protection of the public, maintenance of the reputation of the [bar] as a whole, and the respondent's fitness to continue in the practice of law.' \\\" Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Freeman, 603 N.W.2d 600, 603 (Iowa 1999) (quoting Comm. on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also take into account \\\"both aggravating and mitigating circumstances.\\\" Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Mears, 569 N.W.2d 132, 134 (Iowa 1997).\\nWe have recently considered a disciplinary case that bears some resemblance to the case before us. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652 (Iowa 2001). In the Hohenadel case, we reviewed a matter involving an attorney, Randy Hohenadel, who had neglected his clients' legal matters and then lied to his clients and the court to cover up his misconduct. 634 N.W.2d at 653-54. This conduct was aggravated by the fact that Hohenadel had been previously reprimanded for a similar ethical violation and by the fact that his current misconduct resulted in harm to his clients. Id. at 656. On the other hand, Hohenadel's wrongdoing appeared to be a consequence of his alcoholism, a condition that he ultimately acknowledged and for which he sought treatment. Id. at 656-57. We suspended Hohenadel's license indefinitely with no possibility of reinstatement for three months. Id. at 657.\\nAlthough the present case bears striking similarities to the Hohenadel matter, the ethical violations committed by Rylaarsdam are even more serious. Ryla-arsdam's misconduct went beyond lying to his clients; he actually forged his clients' signatures and, in an even more calculated and unscrupulous attempt to hide his neglect, falsified a court document. See generally Comm. on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990) (\\\"Fundamental honesty is the base line and mandatory requirement to serve in the legal profession.\\\"). We think this conduct warrants a more severe sanction than that imposed in the Hohenadel case, despite the fact Rylaarsdam has no prior disciplinary record.\\nIn view of the pertinent factors and the aggravating and mitigating circumstances, we concur in the recommendation of the Commission that a six-month suspension is appropriate. Therefore, we suspend Ryla-arsdam's license to practice law indefinitely with no possibility of reinstatement for six months. This suspension applies to all facets of the practice of law. Ct. R. 118.12.\\nUpon any application for reinstatement, Rylaarsdam must establish that he has not practiced law during the suspension period and that he has in all other ways complied with the requirements of Court Rule 118.18. In addition, Rylaarsdam's application for reinstatement must be accompanied by an affidavit from a licensed mental health professional stating that Rylaars-dam is mentally and emotionally competent to practice law. Costs of this action shall be taxed to the respondent pursuant to Court Rule 118.22.\\nLICENSE SUSPENDED.\"}"
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