judgments of justice of the peace, and with equal effect, and from the time of such filing they shall be treated in all respects as to their effect and mode of enforcement as judgments rendered in the district court as of that date, and no execution can thereafter be issued from the said superior court on such judgments, and no real property shall be levied on or sold on process issued out of the superior court." The statutes provide that, when a transcript of a judgment of the justice of the peace is thus filed, "it shall be treated in all respects and in its enforcement as a judgment obtained in the district court. No execution shall issue from the justice's court after the filing of such transcript." Held that, when a transcript of a superior court judgment is filed in the district court, the superior court cannot retain judisdiction of one whom it has appointed to collect notes on which it has decreed a lien, and to hold them and their proceeds subject to its order, nor of the property in his possession.

2. Where a decree provides that "defendants have thirty days to file a supersedeas bond. and in the meantime no execution to issue," filing the bond within that time does not prevent the enforcement of the decree after its expiration, unless an appeal be taken.

3. A decree established an attorney's lien on notes, and provided that plaintiff might accept them at par in payment of the decree. Before all had been credited on the decree, the parties agreed that the court might appoint the clerk as their agent to collect the notes, and to hold them and their proceeds subject to its order. Held, that an order on the clerk to turn over the notes and proceeds to plaintiff was appealable.

4. Under Code, § 4154, providing that certiorari may issue only when "there is no other plain, speedy, and adequate remedy," the writ cannot be granted when the error can be corrected by appeal.

Certiorari proceeding to review an order by the Lee district court. Petition dismissed.

A. J. McCrary and John E. Craig, for petitioners. I. N. Waggonner and James C. Davis, for respondent.

ROBINSON, J. On the 24th day of December, 1897, the superior court of the city of Keokuk rendered a decree in favor of James H. Anderson, and against David K. Oyster and others, for the sum of $10.272.65, and foreclosing an attorney's lien in favor of Anderson on certain promissory notes. The decree provided that Anderson might receive the notes at par, and credit the amount thereof as payment on the decree, and that in such case the ownership of the notes and the rights incident thereto should vest in him. The decree also contained the following: "Defendants have thirty days to file supersedeas bond, and in meantime no execution to issue." On the 22d day of January, 1898, a supersedeas bond in the sum of $12,500 was filed, but no notice of appeal was served until the following April. On the 4th day of February, Anderson made, in the judgment docket of the superior court, an entry which recited, in substance, that in pursuance of the decree, and under section 4035 of the Code, he accepted certain specified notes, which were described in the decree, to the amount of $6,000, and acknowledged the payment of that sum ou the decree. Four days

later a similar credit was given for other notes to the amount of $3,505.40, leaving a balance unpaid of $812. On the day before the last credit was given the parties to the action entered into an agreement by which one Lofton, clerk of the court, was constituted the agent of the parties to collect the notes the receipt of which Anderson acknowledged as stated, and on the same day the appointment so made was confirmed by the supreme court, and Lofton was required to give bond in the sum of $12,000. He gave the bond required on the 9th day of February, and Anderson delivered to him the notes, together with the mortgages given to secure them. On the 2d day of April, 1898, Anderson caused a transcript of the decree to be filed in the district court of Lee county, at Keokuk, and on the same day filed in that court a motion for an order upon Lofton to turn over to him the notes and proceeds of notes which he had received as agent. Notice of the motion was given, and Lofton filed a report of what he had done as agent, showing that he held, subject to the order of the court, $6,742 and certain uncollected notes. Oyster and other defendants resisted the motion, but on the 21st day of April, 1898, the district court found that, when the notes were turned over to Lofton, they were the property of Anderson, by virtue of the decree and his election under it, and the crediting of the amount thereof on the decree, and the motion was sustained.

The petitioners claim that the district court lacked jurisdiction to make the order last mentioned, for the reason that the cause in which it was rendered was heard and determined in the superior court, and it is insisted that the order could have been legally made by that court alone. Section 273 of the Code provides that judgments of a superior court may be made liens upon real estate in the county in which the court is held "by filing transcripts of the same in the district court, as provided in this Code in relation to judgments of justice of the peace, and with equal effect, and from the time of such filing they shall be treated in all respects as totheir effect and mode of enforcement as judgments rendered in the district court as of that date, and no execution can thereafter be issued from the said superior court on such judgments, and no real property shall be levied on or sold on process issued out of the superior court." The effect of filing a transcript in the district court under these provisions is not merely to create a lien on real estate. The filing has "equal effect" with the filing in the same court of transcripts of judgments of justices of the peace. The statutes provide that, when the transcript of such a judgment is so filed and the proper entry is made, "it shall be treated in all respects and in its enforcement as a judgment obtained in the district court. No execution shall issue from the justice's court after the filing of such transcript." It is plain that, under the provisions quoted, all proceedings.

Iowa.)

for the enforcement of the judgment of a superior court, a transcript of which has been properly filed in the district court, must be had in the district court. But it is said that Lofton was virtually a receiver appointed by the superior court; that he had possession of personal property of which the superior court had jurisdiction; and that, by the law which applies in such cases, that court retained jurisdiction of both the receiver and the property which he held. Such a conclusion is contrary to the explicit requirement of the statute, that from the filing of the transcript the judgment shall be treated "in all respects," as to its effect and mode of enforcement, as a judgment of the district court. The appointment of Lofton had direct reference to the enforcement of the decree. He was required to take charge of the notes upon which the lien of Anderson was established, to collect them, and to hold them and their proceeds subject to the order of the court. The transfer to the district court of the power to enforce the decree necessarily carried with it jurisdiction of the property held by virtue of the decree, to be applied in its payment should it not be reversed. See Ex parte Haley, 99 Mo. 150, 12 S. W. 667; Hinckley v. Railroad Co., 100 U. S. 153.

It should be remembered, in this connection, that when the transcript was filed in the district court an appeal from the decree had not been taken. The notice of appeal does not appear to have been served until April 9, 1898. It is true that the decree provided that the defendants might file a supersedeas bond within 30 days, and that during that time execution should not issue; but the right to file the supersedeas bond was statutory, and the only effect of the order was to prevent the issuing of an execution for 30 days. The filing of the bond within that time did not prevent the enforcement of the decree by any lawful means, after that time had expired. Pratt v. Stage Co., 26 Iowa, 241. Therefore the filing of the transcript in the district court was effectual to confer upon that court jurisdiction to enforce the decree and of the property held by virtue of it. That court had jurisdiction to determine the motion in question, and if it erred in sustaining it, and thus requiring Lofton to deliver to Anderson the money and notes which he held by virtue of his agency, the error could have been corrected by an appeal from the order.

Section 4154 of the Code authorizes the issuing of a writ of certiorari in specified cases, when "there is no other plain, speedy, and adequate remedy," and it is well settled that the writ cannot be properly granted when the error complained of can be fully and speedily corrected by an appeal. State v. Schmidtz, 65 Iowa, 556, 22 N. W. 673, and cases therein cited; Ransom v. Cummins, 66 Iowa, 137, 23 N. W. 301; Remey v. Board, 80 Iowa, 470, 45 N. W. 899.

The conclusion we reach makes it unneces

sary to consider some of the questions presented in argument. For the reason that the petitioners had another remedy which was plain, speedy, and adequate, their petition is dismissed.

INDEPENDENT DIST. OF CORWITH v.
DISTRICT TP. OF LUVERNE.
(Supreme Court of Iowa. Dec. 17, 1898.)
SCHOOLS AND SCHOOL DISTRICTS-REORGANIZATION
-DIVISION OF ASSETS AND LIABILITIES
-ARBITRATION.

Under Code 1873, § 1715, which provides that, on the formation or change of boundaries of independent districts, the respective boards of directors, or, in case of their failure to agree, arbitrators chosen by them, shall make an equitable division of the "then existing" assets and liabilities between the old and new districts, no other assets and liabilities can be considered, in making such division, after the formation of a new district, than those existing at the time such new district was organized. Appeal from district court, Kossuth county; W. B. Quarton, Judge.

This is an action in equity to set aside an award of arbitrators made under section 1715 of the Code of 1873. Decree was rendered dismissing plaintiff's petition, and for costs. Plaintiff appeals. Affirmed.

C. R. Wood and Sullivan & McMahon, for appellant. Clarke & Cohenqur, for appellee.

GIVEN, J. The plaintiff district was organized in the spring of 1887; taking as part of its territory sections 1, 2, 11, and 12, township 94, range 27, out of the district township. In 1891 the plaintiff brought an action in the district court, "praying a writ of mandamus issue against the defendant, requiring the defendant to meet with plaintiff for the purpose of making equitable division of the assets and liabilities of said defendant." Judgment was rendered as prayed, which judment was affirmed on appeal to this court. See 88 Iowa, 713, 54 N. W. 221. Arbitrators were selected, the matter submitted to them, and on the 9th day of April, 1896, an award, signed by two of the arbitrators, was filed in the office of the clerk, finding "that upon the equitable settlement between the parties there is two hundred dollars ($200) due this plaintiff from defendant." The other arbitrator filed a report finding "in favor of the plaintiff in the sum of $1,769.67, with 6 per cent. interest on $1,608.39 for equated time same has been held by them." It appears that for the years 1883 to 1886, inclusive, the defendant had received $173.94 taxes derived from said sections 1, 2, 11, and 12; also, that for the years 1887 to 1894, both inclusive, the defendant realized $1,608.39 taxes derived from said sections. There were no other assets or liabilities to be equitably divided. It is appellant's contention that these entire taxes, with interest, should have been awarded to the plaintiff; while appellee contends that it was only the assets existing at the

time the plaintiff district was organized that the arbitrators had any power to consider, and that the allowance of $200 was an equitable division of the taxes then in the hands of the defendant to which the plaintiff was entitled.

Said section 1715, Code 1873, provides that, in case of the formation or change of boundaries of independent districts, "the respective boards of directors shall, immediately after such organization, make an equitable division of the then existing assets and liabilities between the old and new districts; and in case of failure to agree, the matter may be decided by arbitrators chosen by the parties in interest." The evident purpose of this statute is to provide for the division of assets and liabilities as they existed at the time of the formation or change of boundaries. It is the equitable division "of the then existing assets and liabilities" that is to be made, and the provision has no reference to other assets, nor to liabilities subsequently arising between the two corporations. Surely defendant was not liable to plaintiff for the taxes derived from said sections of land prior to the time of plaintiff's organization, and plaintiff was not entitled to such of the taxes that had been derived from said lands and expended for school purposes prior to its organization. Plaintiff was organized in the spring of 1887, and was therefore entitled to the tax derived from these lands for the year 1886, namely, $44.03; and it was this sum that constituted "the then existing assets and liabilities." The majority of the arbitrators seem to have acted upon the theory that plaintiff was entitled to be allowed, in their award, the taxes for the year 1887, amounting to $144.37, and it is this amount, with interest, that makes up their award of $200; but, as the defendant has not appealed, we are not asked to consider whether a less sum should have been allowed. We are of the opinion that the arbitrators had no power to consider any other assets and liabilities than those existing between the parties at the time the plaintiff district was organized, and that the award was an equitable division as to these, of which the plaintiff has no cause to complain. What the rights of the parties may be as to taxes thereafter derived from said sections of land, we do not determine.

Counsel discuss the character of this award, and when and for what causes awards will be set aside; but, in the view we take of the case, we are not called upon to follow this discussion. The decree of the district court is affirmed.

ORMAN et al. v. SMITH et al. (Supreme Court of Iowa. Dec. 17, 1898.)

APPEAL-REVIEW-CONFLICTING DEEDS.

1. A finding of the trial court sustained by the evidence will not be reversed on appeal.

2. Where deeds from a common grantor con

veyed disputed land to two adjoining owners, the grantee in the deed first executed, delivered, and recorded is entitled to the land, in the absence of evidence establishing the other's claim of adverse possession.

Appeal from district court, Chickasaw county; A. N. Hobson, Judge.

Action at law to determine the boundary line between plaintiffs' and defendants' land. The defendants denied that the plaintiffs were the owners of the strip in question. and further pleaded adverse possession. The case was referred to a commissioner, who reported that, if the deed under which plaintiffs held title be sustained, they should be decreed to be the owners, and that, if the deeds under which defendants claim should be sustained, then they should have the decree. On the coming in of the report the trial court found for plaintiffs, and defendants appeal. Affirmed.

J. H. Powers, for appellants. Springer & Clary, for appellees.

PER CURIAM. Although some questions of law are presented in a supplemental brief filed by appellants, they do not appear to have been properly presented to the trial court, and will not be considered here. The only issue which we may consider is that of adverse possession. The trial court found that defendants' claim was not sustained, and, as there is evidence to sustain the finding, we cannot interfere. Plaintiffs' deed covers the land in dispute, as does that under which defendants claim title. They each and all derive their interests from a common grantor, and, as the one under which plaintiffs claim was first executed, delivered, and recorded, they are entitled to an order finding them entitled to the land, unless defendants have established their claim of adverse possession. This, as we have said, they have not done, and the decree of the district court is affirmed.

CREGLOW v. EICHHORN et al. (Supreme Court of Iowa. Dec. 17, 1898.) MORTGAGES-VALIDITY-GENERAL ASSIGNMENT

PREFERENCES.

A debtor executed two mortgages and an assignment for creditors the same hour, but his intention to make the assignment was not known to the mortgagees until after the delivery of the mortgages, which the mortgagees took in good faith, to secure a valid indebtedness for which they had been pressing the debtor, and both mortgages were delivered and recorded before the assignment. Held, that the mortgages were not void, as constituting part of the general assignment with preferences.

Appeal from district court, Plymouth county; F. R. Gaynor, Judge.

The plaintiff obtained judgment against Conway Bros., and this is an action to subject certain real estate and personal property to the payment thereof. On the 21st day of February, 1896, Conway Bros. executed a mort

gage thereon to John Eichhorn, securing the payment of a promissory note of $2,750, and another mortgage on certain real estate to the Fuller & Johnson Manufacturing Company, securing the payment of three notes, amounting to $531.90, and a deed of general assignment of all their property to F. J. Reichmann. All of these were signed between 6 and 7:30 o'clock p. m. by the members of the firm. It is claimed on the part of plaintiff that the execution of the mortgages and deed of assignment was all one transaction, and constituted a general assignment of the firm's property with preferences, and all were void. The district court held otherwise, and dismissed the plaintiff's petition. He appeals. Affirmed.

Edward S. Lloyd and I. S. Struble, for appellant. McDuffie & Keenan and Patrick Farrell, for appellees

It

PER CURIAM. The evidence shows that the mortgages and deed of assignment were executed by Conway Bros. on the same day and all within the limits of one hour. The mortgage to John Eichhorn was signed and delivered to him, and he took possession of the property covered thereby, before the other instruments were signed. The mortgage to the Fuller & Johnson Manufacturing Company had been prepared for several days, but was not signed until a few minutes after the deed of assignment had been subscribed. It was signed and delivered, however, before the deed had been delivered to the assignee or he had accepted the trust. Both mortgagees had been pressing Conway Bros. for payment or security for some time, and had no knowledge whatever of the contemplated assignment until after the delivery of the mortgages, which were received in good faith, to secure the payment of valid debts, and were recorded before the deed. It thus appears the case is ruled by Groetzinger v. Wyman (Iowa) 75 N. W. 513, and the judgment must be affirmed.

McCARTHY v. MULGREW. (Supreme Court of Iowa. Dec. 17, 1898.) MASTER AND SERVANT-INJURIES TO SERVANTMACHINERY-PATENT DEFECTS-ASSUMED RISKS

-EVIDENCE-SUFFICIENCY-ADMISSIBILITY.

1. The danger of using a machine with unguarded revolving rollers three-fourths of an inch apart is so obvious that the master need not warn a servant of it.

2. A servant who, without objection or promise to repair, worked for three years with a defective machine, which he knew, or by the exercise of ordinary care could have known, was dangerous, cannot recover for injuries resulting from the defect.

3. Evidence that a machine alleged to have caused a servant's injury was out of repair a year prior to the accident does not show that it was out of repair at the time of the accident.

4. In an action for injuries to a servant caused by his falling on the revolving rollers of a machine, it was not error to refuse plaintiff per

mission to testify whether defendant warned him of the danger of certain exposed gearings, since the gearings did not cause the injury.

Appeal from district court, Dubuque county; J. L. Husted, Judge.

Action at law to recover damages for injuries sustained by plaintiff, McCarthy, a servant of the defendant, in coming in contact with what is known as a "brake," a machine used by bakers for the purpose of kneading dough. The negligence alleged is that the rollers of the brake were not properly guarded; that plaintiff, when injured, was a minor of about 18 years of age, in the employ of defendant as an apprentice; and that while at work at his trade, and while drawing a trow containing dough to the brake, in order that it might be kneaded, he slipped and fell against and onto the brake, his left arm passing in front of the rollers of the brake, which were three-fourths of an inch apart, and, being drawn into and between the same, was crushed, mangled, and torn, and plaintiff thereby permanently crippled and injured. It is further averred that the castors underneath the trow were out of repair, and in a defective and dangerous condition; that plaintiff did not know of their condition; and that, while rolling the trow towards the brake, the same suddenly stopped by reason of the defective castors, and he, losing his hold, was thrown against and onto the brake, as before stated. He further states that defendant negligently failed to supply the trow

it. Further, he says that he was young and inexperienced at the work, and that his master neglected to inform him of the dangers connected therewith. The defendant denied all negligence; pleaded that the brake was of the kind usually and universally used in bakeries; that its rollers could not be guarded; that plaintiff knew of its condition, and, without objection or protest, used the same for three years or more prior to his injury; and that he thereby assumed the risk incident to its use, and waived any defects therein. Defendant further pleaded contributory negligence on the part of plaintiff, and assumption of risk and waiver in the use of the trow. On the issues thus joined, the case was tried before a jury, and, at the conclusion of plaintiff's evidence, the court directed a verdict for defendant. Plaintiff appeals. Affirmed.

Matthew & Barnes and R. F. Jess, for appellant. Henderson, Hurd, Lenehan & Kiesel, for appellee.

DEEMER, C. J. The alleged defective condition of the brake seems to be abandoned on this appeal, and the sole question with reference to this machine is whether or not defendant was negligent in not informing plaintiff of the dangers incident to its use. Counsel contend that, by reason of plaintiff's youth and inexperience, it was defendant's duty to warn him of the dangers of the brake. The rule upon which they rely has no application to the case, for the reason that the danger was