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This conclusion renders it unnecessary for us to discuss the constitutional questions raised in behalf of the appellants, or to define the scope and extent of the authority which the statute (Code 1897, § 703) gives to cities “to regulate, license or prohibit theatrical exhibitions,” or to decide whether this delegation of power implies authority to provide penalties for violation of the regulations or prohibitions so enacted. Whatever may be the final holding in these respects, the plaintiffs will find ample protection at law.

The judgment and rulings of the district court are therefore affirmed.

STATE v. CONRLIN et ux, t tSupreme Court of Iowa. Nov. 14, 1911.)

1. CRIMINAL LAW ($ 1178*)—APPEAL–ERRoR WAIVED. Where accused presented no brief or argument upon an alleged error, it will not be considered on appeal. [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3011–3013; Dec. Dig. § 1178.*] 2. RECEIVING StoleN Goods ($ 9°)—TRIAL– VERDICT –EFFECT. Where an information charged the reception and concealment of numerous stolen articles, and no election was compelled in the trial in the justice court, a verdict finding defendants guilty, as charged in the information, was an implied conviction of the reception and concealment of all articles enumerated. [Ed. Note.—For other cases, see Receiving Stolen Goods, Cent. Dig. $ 21; Dec. Dig. § 9.*] 3. CRIMINAL LAW ($ 547*)—Evide NCE—WITNESS WITHOUT JURISDICTION. Where a witness who had testified in a previous trial was beyond the jurisdiction, and his testimony had not been taken down in shorthand, it was permissible for one who heard it to give the substance thereof against accused. [Ed. Note.—For , other cases, see Criminal Law, Cent. Dig. §§ 1237–1246; Dec. Dig. § 547.*]

4. RECEIVING StoleN Goods (§ 4*)—CoNCEALMENT—PoSSESSION. In a prosecution for concealing stolen property, it is not essential to conviction, that accused should have had possession of it; it being enough that he knew it was stolen, and aided in the concealment. [Ed. Note.—For other cases, see Receiving ion Goods, Cent. Dig. § 6; Dec. Dig. §

Weaver and Evans, J.J., dissenting.

Appeal from District Court, Washington County; K. E. Willcockson, Judge.

The defendants were convicted of receiving and concealing stolen property, and appeal. Affirmed.

P. J. Hanley, for appellants. George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

SHERWIN, C. J. The defendants were originally tried in justice court on an information charging that they had knowingly

received and aided in concealing certain stolen property, consisting of onions, cabbage, potatoes, and other articles therein specified; said property having been stolen by one Enos Dean. They were convicted before the justice, and appealed to the district court, where they demurred to the information, on the ground that it charged more than one of— fense, that it failed to set out the names of the owners of the property, and was bad for duplicity. The demurrer was overruled, and thereupon the defendants entered pleas of not guilty and of former acquittal. At the close of the state's evidence, it was required to elect on which of the articles alleged to have been stolen and concealed it would rely for a conviction, and the state then elected to rely upon the charge that the defendants had received and aided in concealing two bunches of shingles. The trial then proceeded, and the defendants were again found guilty. [1] 2. The appellants present no brief or argument on the error claimed to have been committed in overruling their demurrer to the information, and we need not give the subject further consideration. [2] 3. No election was required by the justice, and the defendants say that, as they could only be convicted of receiving and concealing one of the articles enumerated in the information as having been stolen and concealed, they were acquitted of all of the other charges contained in the information. But the jury before whom the trial was had in the justice court found the defendants guilty as charged in the information, and this implied a conviction on every material ailegation in the information. State v. Turner, 19 Iowa, 144. [3] 4. Enos Dean, who stole the property in question, was a witness for the state on the trial of the defendants before the justice, and was fully cross-examined by counsel for the defendants. When the trial took place in the district court, Dean was in the state of Washington, and, of course, beyond the reach of the process of the district court. His testimony on the trial before the justice was not taken in shorthand, but the justice testified on this trial that he made a memorandum of Dean's testimony as it was being given, and that he could repeat the substance of it by refreshing his recollection from such memorandum. The justice was then permitted to testify as to what Dean said when a witness on the first trial. One of the jurors who served on the trial in justice court was also allowed to state what Dean had there testified to. The admission of this testimony is the foundation of the appellant's most serious complaint. We have recently held that the stenographic notes of the testimony of a witness for the state in a criminal trial may be used on a retrial of the same case, where the witness is, at the time of the second trial, living, but beyond the jurisdiction of the court. State v. Grant Brown, 132 N. W. 862. We had theretofore held that such evidence was competent in case of the death of the witness. State V. Fitzgerald, 63 Iowa, 268, 19 N. W. 202; State v. Kimes, 132 N. W. 180. And we have also held that it is competent to prove the substance of the testimony of a deceased witness, even though such testimony be not taken down in writing. State v. Fitzgerald, supra; Greenleaf on Evidence, § 165. See, also, Harrison v. Charlton, 42 Iowa, 573; Fell v. Railroad Co., 43 Iowa, 177.

*For other cases see same topic and section NUMBER in Dec. Dig. & Ann. Dig. Key No. Series & Rep'r Indexes

[4] Dean occupied a room in the defendants' home, and the defendants asked an instruction to the effect that if the stolen shingles were found in his room, in his possession, then they were not in the possession of the defendants. This instruction was refused, and the ruling is said to be error. It was not error to refuse the request. It was not necessary to show that the stolen property was ever in the possession of the defendants. It was enough to show that they knew that it was stolen, and that they, by some means, aided in concealing it. State v. St. Clair, 17 Iowa, 149. And there was abundant evidence of that fact. The evidence, in fact, showed that the shingles were stolen and put in Dean's room upon the defendants' request, and when they were discovered by the aid of a search warrant both defendants stated that they had bought them. We have read the evidence in this case with care, and think it sufficiently supports the verdict and judgment. There is no error demanding a reversal of the judgment, and it is therefore, affirmed.


WEAVER, J. (dissenting). The admission of testimony as to matters formerly sworn to by the absent witness is clearly erroneous, and should work a reversal.

EWANS, J., joins in the dissent.

MOSS v. WILLIAMS. (Supreme Court of Iowa. Nov. 14, 1911.)

ExEcutors AND ADMINISTRATors (§ 416*)— INSOLVENT ESTATES — PERFORMANCE—“SEIZURE OF PROPERTY BY PROCESS OF COURT.” Where plaintiff performed labor for deceased within 90 days of the appointment of an administrator upon his estate, which was found to be wholly insolvent, plaintiff was not entitled to any preference, under Code, § 4019, providing that, when the property of any person shall be seized upon by any process or placed in the hands of a receiver, trustee, or assignee, for the purpose of paying debts, the debts owing to employes for labor performed within 90 days past will have priority, the section not referring to administration; the term “seizure of property by process of court” re

ferring to such writs as attachment, execution, and the like.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 416.”]

Appeal from District Court, Butler County; J. J. Clark, Judge.

Plaintiff filed a claim in probate against the estate of P. J. Clarke, deceased, and asked that it be established and given a preference in the payment of claims. The administrator admitted the claim, but denied plaintiff's right to be treated as a preferred creditor. The trial court allowed the claim, but refused to give it preference over those of other creditors, and plaintiff appeals. Affirmed.

O. M. Greene, for appellant. M. Hartness, for appellee.

WEAVER, J. The plaintiff's claim is for labor performed by him for the deceased during the lifetime of the latter, and within 90 days preceding the appointment of the administrator. The appraised value of the estate is but $1,600, while the admitted liabilities to general creditors amount to about $13,000. The plaintiff's demand for preference is founded upon Code, § 4019. That section, so far as it affects the present case, reads as follows: “When the property of any company, corporation, firm, or person shall be seized upon by any process of any court, or placed in the hands of a receiver, trustee or assignee, for the purpose of paying or securing the payment of the debts of such company, corporation, firm or person, the debts owing to employés for labor performed within ninety days next preceding the seizure or transfer of such property to an amount not exceeding one hundred dollars to each person shall be a preferred debt and paid in full. * * * *

To give the statute the effect claimed for it by the plaintiff would necessitate a forced and unnatural construction of the language employed, which we are not willing to sanction. As ordinarily understood by lawyers, the “seizure” of property by “process of court” has reference to the taking possession thereof by an officer under attachment or execution, or other appropriate writ or order of a court. An administrator does not “seize” the property of his intestate. The legal title to the property is in him. The letters issued to him by the court are evidence of that title, but they have no effect as a writ or other process; and if any person denies his right, or resists him in assuming possession, he must bring his action to recover the same, just as must every other person whose property rights are thus invaded.

Section 4019 is not found in our probate statute, and makes no reference thereto ; and, while the mere fact of its location of

position in the Code does not necessarily praying that his title be confirmed in him as control its application, it is a significant cir- devisee under his father's will. Plaintiffs claimcumstance, which should be accorded due the land as against their attachment, because

ed that intervener was estopped from claiming weight, when we consider that no reference plaintiffs attorney, prior to the attachment, exis expressly made to administrators, or to amined the records and discovered the pending the settlement of estates.

action, and was misled into believing from the

pleadings that defendant still owned the land. It may be true, as counsel says, that there Held, that intervener was not estopped from is just as much reason for giving preference claiming the land as against plaintiffs; he not to labor claims in the one case as in the oth- knowing of plaintiffs' interest in the land, and er, but that is an argument to be addressed the petition in such action not being inconsist

ent with intervener's contract of purchase. to the Legislature, and not to the court. We

(Ed. Note.–For other cases, see Estoppel, must look to the statute as it is written, and Dec. Dig. 8 68.*] doing so we are compelled to hold that plaintiff does not bring himself within its

Appeal from District Court, Muscatine terms.

County; D. V. Jackson, Judge. The judgment below was right, and it is

Action at law upon a foreign judgment affirmed.

against defendant, Rolland E. Vincent. A writ of attachment was issued and levied upon certain real estate as the property of

the defendant. A petition of intervention FRANZ et al. V. VINCENT (VINCENT, was filed by the intervener, whereby he Intervener).

claimed to be the owner of the land. There (Supreme Court of Iowa. Nov. 14, 1911.) was a judgment for the intervener. Plain 1. VENDOR AND PURCHASER (8 44*)—Exist. tiffs appeal. Affirmed. ENCE OF CONTRACT-EVIDENCE. Evidence, in an action, supported by at

L. A. Reiley and Arthur Springer, for aptachment upon realty, in which intervener pellants. C. A. Carpenter and Oscar Hale, claimed to own the attached land, held to show for appellee. that defendant and intervener had executed a binding contract before a certain date, to convey the land to the latter.

EVANS, J. The writ of attachment in [Ed. Note.-For other cases, see Vendor and question was levied upon June 17, 1909. The Purchaser, Dec. Dig. § 44.*)

defendant was a nonresident of Iowa and 2. VENDOR AND PURCHASER (8 143*)-TITLE- a resident of the state of Pennsylvania. The OBJECTIONS—WAIVER.

intervener is a brother of the defendant, and A purchaser of land, by writing to the vendor. requesting delivery of a deed, waived any claim of the intervener is predicated upon

was a resident of Muscatine county. The further objections to the title.

(Ed. Note.-For other cases, see Vendor and the alleged purchase and sale of the attachPurchaser, Cent. Dig. 88 267-270, 311; Dec. ed real estate prior to the date of the levy. Dig. § 143.*) 8. DEEDS (8 38*)_VALIDITY_DESCRIPTION OF that there was

As against this claim, the plaintiffs contend PROPERTY.

no completed contract of That a deed designated the township in sale between the parties prior to June 17, which the land was situated by name, instead 1909. They also pleaded an estoppel. The of by number, did not render it ineffective to facts are not in dispute. We have to do, pass the equitable title.

[Ed. Lote-For other cases, see Deeds, Dec. therefore, only with the legal conclusions to Lig. $ 38.1

be drawn from the undisputed facts. The 4. VENDOR AND PURCHASER (§ 213*)-Riguts defendant, Rolland Vincent, had owned the ARD LIABILITIES OF PARTIES --ATTACHMENT. land in question for several years, having

Property which an owner had theretofore acquired the same by devise from his father. agreed to convey by valid contract was

not In January, February, and March, 1909, nesubject to attachment.

[Ed. Note. For other cases, see Vendor and gotiations were bad by correspondence bePurchaser, Dec. Dig. $ 213 ;. Áttachment, Cent. Itween him and his brother Homer, who reDig. § 151.)

sided near the land, for the purchase and 5. ATTACHMENT ($ 175*)—RIGHTS OF ATTACH- sale of the same. The intervener made an ING CREDITOR.

offer of purchase. The price and terms were In absence of fraud, the rights of an attaching creditor can be no greater than those of agreed upon. These terms called for “merthe debtor in the property attached.

chantable title.” Some question was raised (Ed. Note.-For other cases, see Attachment, by intervener's attorney as to whether the Cent. Dig. 88 518-523; Dec. Dig. 8.175.*] father's will conveyed a fee-simple title to the 6. ESTOPPEL (8 68*)— EQUITABLE ESTOPPEL. defendant, Rolland Vincent, and he advised

Plaintiffs attempted to attach land claimed that action be brought to construe the will, by intervener by purchase from defendant, his and to obtain a confirmation of defendant's brother. Defendant had negotiated with intervener for the sale of the land before the at- title in that way. This subject was dealt tachment, and, to determine whether defendant with in the correspondence between the parhad a marketable title under his father's will, ties, and was assented to by the defendant. as called for by the contract of sale, intervener began a proceeding against defendant and the The defendant was also advised that if all other heirs, to construe the will; the petition | the heirs assented to the proceedings there

would be no trouble in obtaining construction of the will, confirming his fee-simple title. On March 20, 1909, the correspondence between the brothers culminated in the following: “Memorandum of Agreement. Letts, Iowa, Mar. 20, 1909. R. E. Vincent sells his land joining my farm and undivided one-third interest in timber to H. W. Vincent for $8,000.00. R. E. furnishes abstract and merchantable title, leaves $4,000.00 in land at 5 per cent. for 5 years with privilege of partial payments. Transfer to be made as soon as possible and papers dated March 1, 1909. H. W. pays his share of

expense having will interpreted by the court.

and if merchantable title cannot be made, H. W. pays $350.00 cash rent for R. E.'s farm Sept. 1, 1909. H. W. pays 4 per cent. interest on money not left in land till transfer is made.” This memorandum was formulated by the intervener. It was never signed by either party, but it was inclosed with a letter from the intervener to the defendant, and referred to in Such letter as follows: “I inclose herewith outline of agreement of how we should deal on land.” On March 26th, the defendant replied by letter, as follows: “The agreement is O. K. Unless you care to go to further trouble, simply this memorandum is all I care for.” On May 21, 1909, the interevener wrote to the defendant as follows: “Letts, Ia., May 21, 1909. R. E. Vincent, Wellsboro, Pa. —Dear Brother: I saw C. A. Carpenter this a. m. He says the title of the land or the will, will be all O. K. in a few days. All have signed the notices and he says to make out the deeds, sign them before a notary and send them with the abstract to the Letts Bank and I will have mortgage and money on hand soon. How much money do you want to leave in the land? I would like $5,000.00; if it's $4,000.00 I can get along. * * * Send those papers as soon as posSible. Homer W. Vincent.” On May 25th, the defendant replied thereto as follows: “Wellsboro, Pa., May 25, 1909. H. W. Vincent, Letts, Iowa–Dear Bro.: I inclose tax receipts for taxes due to date since abstract was made. Have made out deed, signed and forwarded to bank as you said. The abstract was left at German-American Savings Bank, Muscatine; you may get it by asking for it there. I have written them to hand it to you when you call for it. I leave it optional with you whether you give mortgage on the land or not. In case you do not give mortgage have Mrs. H. W. sign note with you. Wish to leave $4,000.00 in land; later on should you need use of some money, I may be able to help you out $500.00 or $1,000. R. E. Vincent.” In pursuance of this letter, the intervener called at the bank and got the deed, and took it to his attorney and left it there. The

description of one piece of land, in that the township had been designated by name, instead of by number. A part of the land was described as located in Cedar township, Muscatine county, Iowa, instead of in township No. 76 north, etc. If we understand it correctly, the attorney obtained a corrected deed, which eliminated this error. Such corrected deed was not obtained until after June 17th. The corrected deed was recorded, and the first deed was not. No money was paid on the purchase until about July 1st. The intervener learned of the attachment before he paid the purchase price. The action to construe the will went to decree a few days subsequent to June 17th. Such decree construed the will so as to confirm the defendant's title. The substance of the appellants' contention is that upon this staue of facts there was no completed contract of sale between the parties at any time prior to June 17th. They also contend that the contract between the parties amounted to a mere lease until the date of the decree, confirming the defendant's title. On the other hand, the appellee contends that he held a valid and enforceable contract of purchase prior to June 17th, and that he was in possession thereunder, and that he became thereby the equitable owner, and that the land was therefore not subject to seizure under attachment or execution against his grantor. [1] It is to be noted that there is no claim of fraud or bad faith, so far as this feature of the case is concerned. We have to deal here only with a naked legal question. We think it must be said that the negotiations between the brothers had reached a stage, prior to June 17th, whereby they had bound themselves to each other to performance. If it could be said that the memorandum of March 20th was insufficient for that purpose, there is little occasion for debate on that question after the correspondence of May 21–25, and the acts of the parties purSuant thereto. [2, 3] The letter of the intervener was a Call for his deed, and was a clear waiver of any further objection to the title. The response of the defendant thereto indicated clearly that the minds of the parties had met. The act of the defendant in executing and forwarding the deed in compliance with the intervener's request was in intent, if not in fact, a full performance of the contract on his part. The deed so delivered was valid, notwithstanding its alleged defect. It was in every respect consistent with the prior negotiations. If the defect had been even more substantial, it would have been quite immaterial, so far as the equitable ownership of the land was concerned. The mistake could not operate to release the defendant from the intended performance.

ed to a further waiver of all objection to the title, and of all other objections, except the specified one. This objection went to the form, and not to the substance, and did not impeach or repudiate in any degree or in any sense the agreement of the parties. If at any date, subsequent to May 27th, either party to the contract had sought to repudiate the same, it is very clear to us that upon the evidence contained in this record specific performance could have been enforced. Regardless of the question, therefore, of whether the legal title passed by the deed of May 25th (a question which we do not now decide), we are of the opinion that the equitable title passed thereby, if it had not already done so under the previous correspondence and contract. [4] If there was a completed contract of sale prior to June 17th, then the land was not subject to seizure by attachment against the grantor. We do not understand appellant's counsel to controvert this legal proposition. Our previous decisions are decisive at this point. Baldwin v. Thompson, 15 Iowa, 504; Woodward v. Dean, 46 Iowa, 499; Scott v. Mewhirter, 49 Iowa, 487; In re estate of Miller, 142 Iowa, 563, 119 N. W. 977. [5] In the absence of fraud, the right of an attaching creditor can rise no higher than that of his debtor in the property attached. [6] 2. The plaintiffs pleaded an estoppel. The facts pleaded were that, prior to the attachment, their attorney examined the records, and found no evidence of any outstanding interest or claim of any person to said land, except their debtor. That the attorney also discovered the pendency of the action to construe the will, and read its allegations. In form, this action was brought by the intervener, as plaintiff, against his brothers and sisters, including the defendant. Appearances were entered therein by all the defendants. The petition prayed that the title of this defendant be confirmed and quieted in the defendant as devisee of his father. In their plea of estoppel, it was averred by the plaintiffs that they were misled by the allegations of the petition, and were induced to believe thereby that the defendant was still the owner of such land. It is not claimed that the intervener knew anything about the plaintiffs' researches, nor did he know that they were misled or deceived in any way; neither is it claimed that there was any intent on his part to deceive or mislead any one, directly or indirectly. The plea of estoppel cannot be sustained. The intervener was guilty of no wrong. He was ignorant of any right or interest on the part of the plaintiffs. There was nothing in his petition inconsistent with his contract. His contract call

ed for “merchantable title.” We reach the conclusion that the case was rightly decided in the trial court, and the judgment is therefore affirmed.

MURRAY v. CHICAGO, R. I. & P. RY. CO. Nov. 17, 1911.)

1. MASTER AND SERVANT (§ 217*)—INJURY To SERVANT—ASSUMPTION of RISK–ELEMENTS. The court in determining whether risks incident to the operation of machinery are so obvious as to have been necessarily appreciated by an employé as a reasonably prudent person, so that he assumed them, may properly consider the age and experience of the employe, and the nature of the dangers involved, as distinguished from the mere obvious physical construction of the machinery. [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 217.*]

2. MASTER AND SERVANT (§ 288*)—INJURY. To SERVANT—AssunsPTION of RISK–QUESTION FOR JURY. Whether an operator of a o mangle assumed the risk of injury arising from the failure to guard the machinery held, under the evidence, for the jury. [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 2S8.*]

3. MASTER AND SERVANT (§ 153*)—OBLIGATIONS OF MASTER—INSTRUCTING SERVANT. Where the dangers of an employment are not such that the employé, as a reasonably prudent person, in view of his age and experience as known to the employer, must have appreciated them, the employer, charged with knowledge of the risks and dangers, must instruct the employé in regard thereto, and is negligent if he fails to do so. [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 153.”]

4. MASTER AND SERVANT (§ 153*)—OBLIGATIONS OF MASTER—INSTRUCTING SERVANT. A girl 17 years old was employed to operate a laundry mangle. She was inexperienced as to machinery in general, and without knowledge of a particular danger involved in the work, the danger being not incident to the ordinary operation of the mangle, but arising only when an effort, was made in special cases to prevent articles from becoming wound up in the machine. She had heard other employés often scolded for allowing articles to become wound up in the machine, and was injured while attempting to prevent it. Held, that the employer was guilty of actionable negligence in failing to instruct and warn her as to the operation of the mangle. [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 314–317; Dec. Dig. § 153.”] 5. TRIAL ($ 242*) – INSTRUCTIons — SUFFICIENCY. Where, in an action for injuries to an operator of a laundry mangle, the court specifically charged that the burden was on the employer to show that the operator assumed the risk, and in another instruction stated that the burden of proving negligence in the failure of the master to warn the operator was on the latter, an instruction submitting the questions of assumption of risk and the duty to warn was not objectionable as confusing.

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(Supreme Court of Iowa.

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