ACTIONS

INDEX.

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AGENCY

ACTIONS.
Certiorari. The action of an inferior tribunal will not be annulled
in a certiorari proceeding unless it is shown that such action
was prejudicial; and in determining this question the Supreme
Court is not limited to the petition and answer, but it will re-
sort to the facts as they appear in the record. Blodgett v.
McVey, 522.

Election of remedies. The prosecution of an action against a
bank for the amount of a deposit which it was determined had
been paid by a transfer to the depositor of the notes of third
parties, is not an election of remedies, barring an action for
the proceeds of the notes left with the bank and collected by it.
Lemon v. Savings Bank, 79.

Mandamus: Appointment to office... Mandamus will lie to com-
pel the appointment to office of an honorably discharged soldier
under the Act of the Thirtieth General Assembly. Shaw v.
City of Marshaltown, 128.

Burden of proof. In an action for an accounting a defendant
pleading a general settlement has the burden of proof on that
issue. Johnson v. Berdo, 524.

A general denial of the settlement of an action will not permit
proof of fraud or mutual mistake in the settlement; the fraud
or errors relied upon must be pointed out, and the party seek-
ing to avoid the settlement has the burden of proof. Idem.
ADMISSIONS. See REAL PROPERTY.

ADVANCEMENT. See PARENT AND CHILD.

ADVERSE POSSESSION. See HIGHWAYS

REAL PROPERTY.

AGENCY.

See PAYMENT.

Brokerage: Prospective profits: Damages: Evidence. Where
the prospective profit on a real estate transaction was proven
and plaintiff testified that he was acting for himself, that the

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ANIMALS

profit belonged to him and that he was in position to close
the deal, it was error to direct a verdict for defendant on
the ground that plaintiff had failed to establish an interest in
the profits. Lucas v. Telegraph Co., 669.

In an action on a contract to pay commissions for procuring
a purchaser for land, the defendant, under a general denial, is
not confined to evidence simply in denial of the contract as al-
leged in the petition, but may prove the contract in fact made
and plaintiff's nonperformance. Tracy Land Co. v. Polk
County Land & Loan Co., 40.

A letter written by defendants in an action to recover commis-
sions for finding a purchaser of land, in which they stated that
they had not received all of the earnest money due under the
contract of sale but that a portion was held in escrow pending
litigation over the right to the same, and stating that when
received they would pay plaintiff's commission, did not con-
clusively estop defendants from claiming, as a defense, that
they were not liable for the commission until the contract of
sale was fully completed.

On a review of the whole evidence it is held, that the question
of whether defendants were to pay the commission when the
contract of sale was signed, or upon completion of the sale,
was one of fact and a directed verdict for plaintiff should not
have been entered. Idem.

ANIMALS.

Injury by dogs: Recovery of damages. The doing of an “un-
lawful act as provided in the Code, Section 2340, that will de-
feat recovery for damages caused by dogs, must be such as
contributed directly to the injury complained of and it must
be pleaded and proved by the defendant. Permitting an animal
to run at large on the public highway is not an unlawful act
within the meaning of the statute. Beckler v. Merringer, 614.
Same: Proximate and intervening cause: Instruction. Where
the action of dogs so frightened a horse while on the public
highway that it ran violently, and its running put in motion
part of the harness which served as a whip and kept it going
until the injury occurred, the action of the harness was a
mere incident to the original cause of fright and not the
direct proximate cause of the injury. Idem.

Same: Liability as owner. A married woman permitting the
dogs of her husband to remain on the home premises, the legal
title of which is in her, will not render herself liable as owner

APPEAL

ANIMALS Continued

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of the dogs for injuries caused by them to one driving along
the public highway. Burch v. Lowary, 719.

APPEAL.

Abstract: Amendment. Where the appellee argues a question
on appeal which was not raised in the trial court, the appel-
lant may file an amendment to his abstract to show the record
on the point thus raised, and the objection that it was filed
after argument will not obtain. Biglow v. Ritter, 213. ·
Independent abstract by appellee. Where the appellee by
amendment has made such additions to the appellant's ab-
stract as he thought necessary, an independent abstract subse-
quently filed by the appellee, to which slight reference is made
in argument and which is not of material aid to the court, will
be stricken from the files. Dale v. Coal Co., 67.
Assignment of errors. Where the appellant's assignment of
errors is sufficiently definite to point out the precise errors re-
lied upon, the technical rules with respect thereto which were
followed prior to the enactment of the 30th General Assembly
will not be considered. Idem.

Notice of appeal: Service upon insane person: Discrepancy in
name. Where notice of appeal properly named an insane per-
son confined in a hospital, a discrepancy in the name given
as returned by the Superintendent of the Hospital in his ac-
ceptance of service, is held insufficient to deprive the appel-
late court of jurisdiction, there being no showing that the per-
son named in the return was not the same as the one to whom
the notice was addressed. In re Estate of Strang, 583.
Parties: Jurisdiction. Where a co-party will not be affected
adversely by the decision in a cause on appeal to the Supreme
Court, failure to serve him with notice of appeal will not de-
prive the court of jurisdiction. Oliver v. Perry, 654.
Parties: Minors. Where minor legatees were duly served with
notice in a proceeding to construe a will and were represented
in the district court by a guardian ad litem, a general guardian
thereafter appointed and authorized to prosecute an appeal
was a proper party to the appeal, and notice served upon him
gave the appellate court jurisdiction of the minors. In re Es-
tate of Strang, 583.

Petition for rehearing: Effect. Notice of rehearing and the fil-
ing of a petition will not operate to suspend the judgment
entered on appeal and continue in force an order, previously
made by a justice of the Supreme Court, restraining the en-
forcement of the judgment until the appeal was determined,
VOL. 131 IA.-48

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BANKS AND BANKING

unless the court or one of the judges so orders. State v. Ca-
hill, 286.
Presumption as to pleading. Where there was no ruling on a
motion to strike an amendment to a pleading it will be pre-
sumed on appeal that the court passed on the issue raised by
the pleading as they stood. Widner v. Wilcox, 223.
Question not raised below. Where a bank, entrusted with the
collection of a mortgage debt for another, demands and re-
ceives the interest from a subsequent purchaser of the land
who assumed and agreed to pay the debt, the mortgagee cannot,
for the first time on appeal, raise the question of the purchaser's
interest in the premises as effecting his right to discharge the
whole debt. Griffin v. Erksine, 444.

Appeal from action of fence viewers: Jurisdiction. Where the
bond on appeal from the action of fence viewers is not filed
with the township clerk within twenty days from the date of
the order or decision appealed from as required by Code, Sec-
tion 2369, the district court does not require jurisdiction. Hahn
v. Lumpa estate, 722.

APPRENTICESHIP. See CONTRACTS.

ATTACHMENT.

The attaching creditor of an agent cannot acquire a lien upon
funds of the principal deposited in a bank in the name of the
agent simply as a matter of convenience. Anderson v. Taylor,

485.

Garnishment: Judgment against garnishee. Judgment against a
garnishee should not be entered prior to a judgment against the
principal debtor. State Bank v. Hessler, 691.

Payment into court. There is no occasion for ordering the
fund in the hands of a garnishee to be paid over to the clerk
prior to judgment against the principal defendant, where there
is no showing that he cannot safely keep the same; and an
order denying a motion to that effect is not appealable. Idem.
ATTORNEYS.

Fees and expenses: Allowance. Where no claim is made for at-
torney fees or expenses in the pleadings or proofs it is error to
allow the same as a set-off. Galt v. Provan, 277.

BANKS AND BANKING.

Application of deposits. A bank cannot apply the proceeds of
property coming into its hands by inadvertence or mistake and
in the name of one who has no interest therein, to the satisfac-

BANKS AND BANKING Continued

tion of the debts of such party, as against the owner in fact of
the property. McLennan v. Savings Bank, 696.
Deposit of sureties: Negligence: Burden of proof. In an ac-
tion against a bank for the value of papers deposited with it
for safe keeping the allegations and proof of the deposit and
breach of the implied contract to return the same make a prima
facie case, without a showing of the bank's negligence in pre-
serving the same by plaintiff; but loss notwithstanding the ex-
ercise of due care is an affirmative defense on which the bank
has the burden of proof. Sherwood v. Savings Bank, 528.
Care: Consideration. A bank receiving securities for safe keep-
ing and the collection of interest, is held to an exercise of such
care in preserving the same, as business men of prudence
would exercise in keeping property of like value in like circum-
stances. Idem.

Special deposits: Authority of cashier. A savings bank has au-
thority to receive special deposits of valuable securities for safe
keeping, and when a cashier is held out to the public as having
general power to act for the bank in that regard and has for
some time exercised such power, his acts done within the scope
of his authority are binding upon the bank. Idem.
Local custom: Evidence. In an action for the value of lost
securities deposited with a bank for safe keeping, evidence that
it was the local custom of banks to receive and care for valu-
able papers of customers was admissible, on the question of the
bank's powers and the cashier's authority to act for the bank, un-
der the plea that the securities had been misappropriated by the
cashier without fault on the part of the bank. Idem.
Misappropriation of securtities: Negligence of bank: Liability.
Ordinarily a bank is not responsible for the act of its man-
aging officer in appropriating to his own use a gratuitous
special deposit, but where the bank retains in the position one
whom it knows has been using bank funds for the purpose of
private speculation, it is negligent in the exercise of ordinary
care and becomes responsible for the misappropriation. Idem.
Authority of officer. The authority which the president of a bank
may exercise in its behalf, when his duties are not specifically
defined by its board of directors, articles or by-laws, may be
established by long acquiescence by the bank in his perform-
ance of certain acts. Griffin v. Erskine, 444.

Same: Liability of bank. Where it appears that the president
of a bank in his official capacity conducted the making and
transfer of commercial paper his acts in relation thereto are
binding upon the bank; and this rule has been declared by stat-