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lowa.) INDEPENDENT DIST. OF CORWITH v. DISTRICT TP. OF LUVERNE. 525 time the plaintiff district was organized that reyed disputed land to two adjoining owners, the arbitrators had any power to consider,

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.



-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 & Cohengur, for appellee.

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, 39 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

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

the grantee in the deed first executed, delivered,

and recorded is entitled to the land, in the aband that the allowance of $200 was an equita

sence of evidence establishing the other's claim ble division of the taxes then in the hands of of adverse possession. the defendant to which the plaintiff was en

Appeal from district court, Chickasaw countitled. Said section 1715, Code 1873, provides that,

ty; A. N. Hobson, Judge.

Action at law to determine the boundary in case of the formation or change of boundaries of independent districts, “the respective The defendants denied that the plaintiff's

line between plaintiffs' and defendants' land. boards of directors shall, immediately after such organization, make an equitable division

were the owners of the strip in question, of the then existing assets and liabilities be

and further pleaded adverse possession. The

case was referred to a commissioner, who tween the old and new districts; and in case of failure to agree, the matter may be decided

reported that, if the deed under which plain

tiffs held title be sustained, they should be by arbitrators chosen by the parties in in

decreed to be the owners, and that, if the terest.” The evident purpose of this statute

deeds under which defendants claim should is to provide for the division of assets and

be sustained, then they should have the deliabilities as they existed at the time of the

cree. On the coming in of the report the formation or change of boundaries. It is the

trial court found for plaintiffs, and defendequitable division “of the then existing assets

ants appeal. Affirmed. and liabilities" that is to be made, and the provision has no reference to other assets, J. H. Powers, for appellants. Springer & nor to liabilities subsequently arising between Clary, for appellees. the two corporations. Surely defendant was not liable to plaintiff for the taxes derived

PER CURIAM. Although some questions from said sections of land prior to the time of law are presented in a supplemental brief of plaintiff's organization, and plaintiff was

filed by appellants, they do not appear to not entitled to such of the taxes that had

have been properly presented to the trial been derived from said lands and expended court, and will not be considered here. The for school purposes prior to its organization. only issue which we may consider is that Plaintiff was organized in the spring of 1887, of adverse possession. The trial court found and was therefore entitled to the tax derived that defendants' claim was not sustained. from these lands for the year 1886, namely, and, as there is evidence to sustain the find$44.03; and it was this sum that constituted ing, we cannot interfere. Plaintiffs' deed “the then existing assets and liabilities.” The covers the land in dispute, as does that unmajority of the arbitrators seem to have der which defendants claim title. They each acted upon the theory that plaintiff was en- and all derive their interests from a common titled to be allowed, in their award, the taxes

grantor, and, as the one under which plainfor the year 1887, amounting to $144.37, and tiffs claim was first executed, delivered, and it is this amount, with interest, that makes

recorded, they are entitled to an order findup their award of $200; but, as the defendant ing them entitled to the land, unless defendhas not appealed, we are not asked to con- ants have established their claim of adverse sider whether a less sum should have been possession. This, as we have said, they have allowed. We are of the opinion that the arbi- not done, and the decree of the district court trators had no power to consider any other is affirmed. 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

CREGLOW v. EICHHORN et al. which the plaintiff has no cause to complain. (Supreme Court of Iowa. Dec. 17, 1898.) What the rights of the parties may be as to MORTGAGES-VALIDITY - GENERAL ASSIGNMENTtaxes thereafter derived from said sections of

PREFERENCES. land, we do not determine.

A debtor executed two mortgages and an Counsel discuss the character of this award,

assignment for creditors the same hour, but his

intention to make the assignment was not and when and for what causes awards will

known to the mortgagees until after the debe set aside; but, in the view we take of the livery of the mortgages, which the mortgagees case, we are not called upon to follow this took in good faith, to secure a valid indebted. discussion. The decree of the district court

ness for which they had been pressing the debt

or, and both mortgages were delivered and reis affirmed.

corded before the assignment. Hold, that the mortgages were not void, as constituting part of the general assignment with preferences.

Appeal from district court, Plymouth counORMAN et al. v. SMITH et al.

ty; F. R. Gaynor, Judge. (Supreme Court of Iowa. Dec. 17, 1898.) The plaintiff obtained judgment against ConAPPEAL-REVIEW-CONFLICTING Deeds.

way Bros., and this is an action to subject

certain real estate and personal property to 1. A finding of the trial court sustained by the evidence will not be reversed on appeal.

the payment thereof. On the 21st day of Feb. 2. Where deeds from a common grantor con- ruary, 1896, Conway Bros. executed a mortwage thereon to John Eichhorn, securing the mission to testify whether defendant warned payment of a promissory note of $2,750, and

him of the danger of certain exposed gearings, another mortgage on certain real estate to the

since the gearings did not cause the injury. Fuller & Johnson Manufacturing Company, Appeal from district court, Dubuque county; securing the payment of three notes, amount- J. L. Husted, Judge. ing to $531.90, and a deed of general assign- Action at law to recover damages for injuries ment of all their property to F. J. Reichmann. sustained by plaintiff, VcCarthy, a servant of All of these were signed between 6 and 7:30 the defendant, in coming in contact with what o'clock p. m. by the members of the firm. is known as a "brake," a machine used by It is claimed on the part of plaintiff that the bakers for the purpose of kneading dough. execution of the mortgages and deed of as- The negligence alleged is that the rollers of the signment was all one transaction, and con- brake were not properly guarded; that plaintitf, stituted a general assignment of the firm's when injured, was a minor of about 18 years property with preferences, and all were void. of age, in the employ of defendant as an apThe district court held otherwise, and dis- prentice; and that while at work at his trade, missed the plaintiff's petition. He appeals. and while drawing a trow containing dough to Affirmed.

the brake, in order that it might be kneaded. Edward S. Lloyd and I. S. Struble, for ap

he slipped and fell against and onto the brake, pellant. McDuffie & Keenan and Patrick

his left arm passing in front of the rollers of Farrell, for appellees

the brake, which were three-fourths of an inch apart, and, being drawn into and be

tween the same, was crushed, mangled, and PER CURIAM. The evidence shows that the mortgages and deed of assignment were

torn, and plaintiff thereby permanently cripexecuted by Conway Bros. on the same day

pled and injured. It is further averred that

the castors underneath the trow were out of reand all within the limits of one hour. The

pair, and in a defective and dangerous condimortgage to John Eichhorn was signed and

tion; that plaintiff did not know of their condelivered to him, and he took possession of

dition; and that, while rolling the trow towards the property covered thereby, before the other

the brake, the same suddenly stopped by reainstruments were signed. The mortgage to

son of the defective castors, and he, losing his the Fuller & Johnson Manufacturing Com

hold, was thrown against and onto the brake, pany had been prepared for several days, but

as before stated. He further states that dewas not signed until a few minutes after the

fendant negligently failed to supply the trow deed of assignment had been subscribed. It was signed and delivered, however, before the it. Further, he says that he was young and

with handles or any other means of moving deed had been delivered to the assignee or he had accepted the trust. Both mortgagees had

inexperienced at the work, and that his mas

ter neglected to inform him of the dangers been pressing Conway Bros. for payment or

connected therewith. The defendant denied security for some time, and had no knowl

all negligence; pleaded that the brake was of edge whatever of the contemplated assignment

the kind usually and universally used in bakeuntil after the delivery of the mortgages,

ries; that its rollers could not be guarded; which were received in good faith, to secure

that plaintiff knew of its condition, and, withthe payment of valid debts, and were recorded

out objection or protest, used the same for before the deed. It thus appears the case is ruled by Groetzinger v. Wyman (Iowa) 75 N.

three years or more prior to his injury; and

that he thereby assumed the risk incident to W. 513, and the judgment must be affirmed.

its use, and waived any defects therein. Defendant further pleaded contributory negli. gence on the part of plaintiff, and assumption

of risk and waiver in the use of the trow. McCARTHY v. JULGREW.

On the issues thus joined, the case was tried (Supreme Court of Iowa. Dec. 17, 1898.)

before a jury, and, at the conclusion of plain

tiff's evidence, the court directed a verdict for MASTER AND SERVANT-INJURIES TO SERVANTMACHINERY-PATENT DEFECTS-AssIMED Risks

defendant. Plaintiff appeals. Affirmed. -EVIDENCE-SUFFICIENCY-ADMISSIBILITY.

Matthew & Barnes and R. F. Jess, for appel1. The danger of using a machine with un

lant. Henderson, Hurd, Lenehan & Kiesel, guarded revolving rollers three-fourths of an inch apart is so obvious that the master need

for appellee. not warn a servant of it.

2. A servant who, without objection or prom- DEEMER, C. J. The alleged defective conise to repair, worked for three years with a defective machine, which he knew, or by the ex

dition of the brake seems to be abandoned on ercise of ordinary care could have known, was this appeal, and the sole question with referdangerous, cannot recover for injuries resulting ence to this machine is whether or not defrom the defect.

fendant was negligent in not informing plain3. Evidence that a machine alleged to have caused a servant's injury was out of repair a

tiff of the dangers incident to its use. Counsel year prior to the accident does not show that contend that, by reason of plaintiff's youth it was out of repair at the time of the acci- and inexperience, it was defendant's duty to dent. 4. In an action for injuries to a servant caus

warn him of the dangers of the brake. The ed by his falling on the revolving rollers of a

rule upon which they rely has no application machine, it was not error to refuse plaintiff per- to the case, for the reason that the danger was

so obvious and patent that his employer was of the court directing a verdict for defendant under no obligation to inform him of it. The was clearly correct, and the judgment is af. danger from the use of a machine with re- firmed. volving iron rollers placed within three-fourths of an inch of each other is so apparent that any boy of fifteen years of age would see it. When one, without objection or promise of

WEAVER V. SHEEAN et al. repair, works for three years with a machine

(Supreme Court of Iowa. Dec. 17, 1898.) which is dangerous, and which he knew, or by the exercise of ordinary care ought to have

EXECUTION--SALE-REVERSAL ON APPEAL. known, was dangerous, he waives the defect, On a decree obtained against husband and

wife, certain land and tax certificates belonging and, if injured, cannot ordinarily recover.

to the wife were sold under executions. The Juldowney v. Railroad Co., 39 Iowa, 615, and decree was reversed on appeal. Held, that the cases cited. Again, the duty of the master to wife could not recover the value of the cerinstruct and warn the servant only arises as

tificates sold from a creditor whose judgment

was satisfied by sale of the land. to dangers which the master knows or has reason to believe the servant is ignorant of. Appeal from district court, Jones county; It does not arise as to dangers known to the W. P. Wolf, Judge. servant, or that are so open and obvious as A decree was entered subjecting certain that, by the exercise of ordinary care, he would real estate and 79 tax certiticates held by know of them. Yeager v. Railway Co., 93 F. D. Weaver and Nancy L. Weaver to the Iowa, 1, 61 N. W. 215; Newbury V. Manu- satisfaction of four judgments against I). facturing Co., 100 Iowa, 441, 69 N. W. 743. Weaver. Upon appeal this decree was reversIt is clear that plaintiff cannot recover for any ed. Jamison v. Weaver (Iowa) 53 N. W. 1076. negligence in the use of the brake.

No supersedeas bond was filed, and execu2. As to the alleged defective castor in the tions issued on these judgments, and the land trow which plaintiff was using at the time of and the tax certificates were levied on and the accident, we are of opinion that there was sold. Afterwards the plaintiff redeemed the not sufficient evidence, either of defect in the land sold by paying to the clerk of court the trow, or of the defect, if there was one, being sum of $1,151.70. F. D. Weaver has assignthe cause of the injury, to take the case to the ed his interest in the certificates to the plainjury. There is evidence, it is true, that some tiff. She seeks to recover in this action the trow was out of repair a year before the acci- amount of money paid to redeem the real esdent, but no proof that this was the trow tate, and the value of these certificates. The which plaintiff was using at the time he was answer sets up that no certificates were sold injured. Again, the evidence shows that the under the execution issued by virtue of plaintrow stopped because of some obstruction up- tiff's judgment against D. Weaver, and that on the floor. Plaintiff's case in these particu- the redemption was either made in behalf of lars is based almost wholly upon surmise and D. Weaver, or else amounted to a voluntary speculation. In this respect it is quite like payment. Trial to court, and judgment for Sorenson v. Pulp Co., 56 Wis. 338, 14 N. W. the defendants. The plaintiff appeals. Af. 416. Moreover, if the trow which caused the firmed. accident was defective, and had been so for inore than a year, plaintiff knew of it; or, if he

Hubbard, Dawley & Wheeler and Remley did not know of it, it was due to his own

& Ercanbrack, for appellant. F. 0. Ellison, negligence and want of observation.

D. McCarn, and J. S. Stacy, for appellees. 3. The court refused to allow plaintiff to state whether or not defendant ever told him PER CURIAM. In so far as the amount how to operate the brake, and warned him of paid by the plaintiff to redeem the land from the exposed gearings. This ruling was cor- sheriff's sale is in controversy, the case is rect. Plaintiff was not injured by the gearing, ruled by Weaver v. Stacy, 93 Iowa, 683, 62 and the evidence shows that plaintiff, after N. W. 22. The petition alleges the 79 tax three years of experience, knew exactly how to certificates were all sold under the four exeoperate the machine. Again, if there was er- cutions issued on the judgment against D. ror, it was without prejudice, for the reasons Weaver, and that for costs in the equity case; stated in the first division of this opinion. and the evidence shows that the judgment

Other rulings on the admission and rejection of these defendants against him was entirely of evidence are complained of. As a rule, satisfied from the sale of land, and that no they were correct. Where incorrect, they tax certificates were sold thereunder. The were clearly without prejudice. From our conclusion, then, under such allegations, is point of view, the injury received by plaintiff inevitable, that the certificates must have was clearly an accident, for which no one is been sold under the other executions. It was responsible. In its facts it is quite like the immaterial, then, under the issues of this following: Tinkham v. Sawyer (Mass.) 27 N. case, how many or for what prices they were E. 6; Buckley v. Manufacturing Co. (N. Y. sold under the other executions; and the App.) 21 N. E. 717; Young v. Mattress Co., 79 plaintiff was not prejudiced by the rulings towa, 415, 44 N. W. 693; McKee v. Railroad similar to those considered in Weaver v. Co., 83 Iowa, 616, 50 N. W. 209. The ruling | Stacy (Iowa) 75 N. W. 610. Allirmeil.

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in its new location. At the same time $200 MCCOY V. IOWA STATE INS. CO. of insurance was added to cover the new (Supreme Court of Iowa. Dec. 17, 1898.)

building. This added insurance was written INSURANCE--Actions-PLEADING-Evidence

upon the old policy. On the face of the polCONDITIOXS-WAIVER.

icy was written these words: “Loss, if any, 1. A waiver of a condition of an insurance on the building, payable to Mrs. M. M. Mcpolicy against additional exposures, without Coy, as her interest may appear.” The propconsent, must, in an action on the policy, be

erty covered by the policy was totally depleaded.

2. Insured transferred a policy on merchan- stroyed by fire on November 10, 1896. Ou dise to his own new building, standing de- March 11, 1897, plaintiff commenced this suit. tached. The policy was voidable for the erec

The defenses interposed have already been tion of buildings which were additional exposures, unless the insurer was notified and

stated, and need not be repeated here. That consented. Insured erected an oil house six what follows may be properly understood, it feet froin his building, and alleged that he is perhaps well to say that plaintiff did not called the soliciting agent's attention to a platform, and stated he would build such oil house

plead waiver of any of the conditions of the on it. Held that, as the case was tried on the

policy, nor did he plead an estoppel. The erroneous theory of a waiver of the additional main issues were tendered by the denial risk which had not been pleaded, it was im

which the law interposed to the affirmative proper to submit such point, as relating to the description of the property.

defenses pleaded in answer. The building 3. In an action on an insurance policy which was described in the policy as follows: "The had been transferred to new premises, to which one-story frame building occupied by the as. new exposures were added after issuance of the policy, it is immaterial that they substantially

sured as a general store, situated upon a cerconform to the environs of the original risk. tain lot [describing it]." One of the condi

4. An insurance policy conditioned to be void tions of the policy was in the following if the insured's "interest" was less than abso

words: “If any alteration shall be made in lute, and that fact was not so stated in the policy, is not violated by an omission to so

any house or building * * * after insurstate, where insured has the entire beneficial ance has been made on property therein in interest except the naked legal title.

| this company,

or if any building or 5. It was error to refuse to submit special interrogatories which called for essential ulti

buildings be erected contiguous or near to the mate facts.

property insured,

then it shall be

the duty of the assured to forthwith notify Appeal from district court, Hardin county;

the secretary in writing of such alteration S. J. Weaver, Judge.

and changes and additional buildings, and, if Action at law upon a policy of insurance

he fails to do so, this policy shall be void." covering a certain building and fixtures in the

At the time the policy was issued there was town of Robertson, and a stock of goods kept

a platform at the rear end of the building for sale therein. Defendant pleaded a breach

which was made the floor of an oil house of condition of the policy against the erec

that was built after the policy was transtion of buildings contiguous or near to the

ferred. This oil house was within six feet property insured; that the plaintiff was not the owner of the building, and that such fact

of the main building, and appellant contends

that this is a violation of the condition just was not disclosed to the company, and that

quoted, and avoided the policy. On the other the insured's interest was not stated in the

hand, appellee insists that he fully explaiupolicy; that the insured placed a mortgage

ed to appellant's soliciting agent, at the time upon the stock of goods covered by the pol

the transfer of the policy was made, that he icy without the knowledge or consent of the

intended to build an oil house over the platcompany; and that the action was prema

form, which platform he had then commenturely commenced. The case was tried to a

ced to build, and that for this reason the poljury on these issues, resulting in a verdict

icy was not avoided. and judgment for plaintiff, and defendant ap

The trial court instructed the jury as folpeals. Reversed.

lows: “I next call your attention to the deH. Scott Howell & Son, for appellant. J. fense based on the alleged fact that, after the H. Scales, for appellee.

date of the change in the policy, plaintiff

erected another building near the insured DEEMER, C. J. On the 11th day of Au

building without notice to, or consent by, the gust, 1892, the defendant issued its policy of

defendant. Under the terms of the policy, insurance against loss by fire upon a stock

if, after the date thereof, any building was of general merchandise situated in a one and erected near or contiguous to the building a half story building in the town of Robert- insured, and plaintiff did not notify the de. son. Thereafter plaintiff erected a one-story

fendant's secretary thereof in writing, the franie building upon lot 1, block 3, in said policy was made void, and, if you so find, town, the legal title to which was in the name your verdict will be for the defendant. If, of Mrs. M. M. McCoy, his wife. On July of however, you find from the evidence that the year 1893, the insured moved his stock plaintiff undertook to erect a new store and of goods into the building erected by him, and warehouse in close proximity, substantially on the 31st day of July the policy of insur- after the plan of the building from which he ance was transferred so as to cover the stock removed, and in which the goods were first

77 X.W.34


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