The district court ruled that the country was liable for one item of the claim, and was not liable for the other items, but the judge signed a certificate to the effect that the cause involves the determination of a question of law, upon which it is desirable to have the opinion of the supreme court, the amount in controversy being less than $100.

Seth Morgan, for appellant. W. W. Phillips and C. H. Sweeney, for appellee.

The

If

REED, J., (after stating the facts as above.) The question certified is whether "a peace-officer, who serves a search-warrant duly and lawfully issued under section 1544 of the Code of Iowa, is entitled to receive pay from the county for serving said search-warrant when he fails to find any intoxicating liquors by said search." The proceedings upon which a search-warrant of the character contemplated by the question may be issued, the mandate of the writ, the duties of the peace-officer to whom it is delivered for service, and the proceedings after seizure by which the property may be condemned or restored to the owner, are prescribed by sections 1544-1546 of the Code. warrant can issue only after information under oath is filed with the justice, alleging that the informant has reason to believe that intoxicating liquors are kept by the person named, at a designated place, which is required to be described as particularly as may be, with intent to sell the same contrary to law. The liquors are also required to be described as particularly as may be. Upon finding probable cause therefor, the justice is required to issue his warrant, directed to any peace-officer, commanding him to search the premises described, and seize any intoxicating liquors which he may find in the designated place. It is made the duty of the officer who receives the warrant to immediately serve it, by searching the place described, and seizing any intoxicating liquors therein, and make return of his doings. liquors are seized under the warrant, it is the duty of the justice to fix a day for the hearing, of which notice is required to be given to the person named in the information as the owner, or by posting at the place where the seizure was made; and on the day thus designated any person claiming to be the owner of the proper seized, or any portion of it, may appear and be made defendant in the proceeding, and assert his right to it. But, whether such appearance is made or not, a trial is to be had, in which the question to be determined is as to the intent or purpose for which such liquors were kept, and judgment of condemnation or for the return of the property is entered in accordance with the finding on that question. Section 1546 contains the following provision: "If no person be made defendant in manner aforesaid, or if judgment be in favor of the defendants who appeared and are made such, then the costs of the proceeding shall be paid as in ordinary criminal prosecutions when the prosecution fails." By another section it is provided that “a constable or other peace-officer, who serves any warrant for the seizure of intoxicating liquors, shall be allowed for such service one dollar. ***" Code, § 3807. The question certified is dependent on the effect to be given to these provisions. By searching the described place, even though such search is fruitless, the officer serves the writ, for that is one of the acts which by the mandate of the warrant he is commanded to perform, and he is as certainly required to make a return of his doings in that case as he is when a seizure is effected. For doing that, then, he is entitled, under section 3807, to be allowed one dollar. But that section contains no provision making any person liable for the fees which are allowed under it. And upon a casual reading of the provision quoted from section 1546 it would appear that the intention was to make the costs of the proceeding payable as in ordinary criminal prosecutions when the prosecution fails (that is by the county) only in cases where no defendants appeared, and judgment of condemnation was entered, or the judgment was in favor of the defendant. The provision clearly covers both

those classes of cases, but the construction of the language which would confine its operation to them would be narrow, and such construction would defeat the manifest intention of the general assembly, as expressed in section 3807. The provisions are in pari materia, and must be construed together, and, when thus considered, it is clear, we think, that the intention was that the fees allowed the constable by section 3807 for serving the warrant should be paid by the county in all cases in which for any reason the prosecution fails. Any other construction would lead to the absurd result that the legislature had provided that the officer shall render the services, and has fixed the amount of his compensation therefor, but has made no provision that any person shall pay the same, for, if the county is not liable, no one is. There is nothing either in the nature of the case or the language of the provision which requires us to adopt that conclusion. The question certified should therefore be answered in the affirmative. After the appeal was perfected plaintiff accepted the amount awarded him by the judgment, and appellee moved to dismiss the appeal for that reason. That motion will be overruled. The controversy between the parties was as to the items of the claim, which the court disallowed, and the question on which the opinion of this court was requested related solely to them. The certificate of the trial judge is the basis of the appeal, and jurisdiction of the case was acquired by this court through it. As the items which were allowed were in no manner involved in the appeal, the acceptance of the amount was not a waiver of the appeal. The judgment will be reversed.

SCHOOLEY et al. v. GLOBE INS. Co. et al.

(Supreme Court of lowa. October 27, 1888.)

APPEAL-RECORD-ABSTRACT.

Where a case is submitted to the supreme court on an abstract of the record, and the abstract fails to show that an appeal has been taken, the case will be dismissed. Appeal from district court, Monroe county; DELL STUART, Judge. This action was brought on a policy of insurance to recover for a loss sustained by the burning of the property alleged to have been insured. There was a trial to the court and a judgment in favor of plaintiffs.

Cole, McVey & Clark, for appellant. T. B. Perry, for appellees.

ROBINSON, J. The abstract fails to show that an appeal has been taken. No reference to an appeal is made therein. This is a fatal defect. Plummer v. Bank, 33 N. W. Rep. 150; Phillips v. Follet, 69 Iowa, 39, 28 N. W. Rep. 425. The case is therefore dismissed.

LOCKHART et al. v. MONTGOMERY COUNTY.

(Supreme Court of Iowa. October 27, 1888.)

CRIMINAL LAW-CHANGE OF VENUE-COSTS OF TRIAL-PRIMARY LIABILITY.

Code Iowa, § 4381, provides that, in changes of venue in criminal cases, the expenses shall be paid by the county from which the change was taken; but provision is made in sections 3781-3790, and 3811 for the payment of jurors, and in certain cases of the clerk and sheriff, out of the county treasury where the case is tried; and section 3841 gives an action to such county against the one from which the change was taken to recover such expenses. Held, that the county in which the trial was had is primarily liable for the expenses incurred.

Appeal from district court, Montgomery county; H. E. DEEMER, Judge. An indictment was returned by a grand jury of Pottawattamie county against E. D. Cross, accusing him of a public offense. The venue of the cause was subsequently changed to Montgomery county, where it was tried. The district court ordered that the jury be kept together during the trial, and in

pursuance of that order the jurors and the bailiff in charge of them were furnished meals during the trial by plaintiffs, Lockhart and Harvey. On the trial Cross was acquitted. Subsequently plaintiffs filed a motion asking the court to audit their account for said services as costs in the case. The motion was served on the county attorney of Montgomery county, and he appeared for the county, and made resistance. The district court sustained the motion, and entered an order requiring Montgomery county to pay the amount of the account, and it appealed.

R. W. Beeson, for appellant. Smith & McPherson, for appellee.

REED, J., (after stating the facts as above.) Section 4381 of the Code is as follows: "In all changes of venue under the provisions of this chapter, the county from which the change of venue was taken shall pay the expenses and charges of removing, delivering, and keeping the defendant, and all other expenses necessary and consequent upon such change of venue, and the trial of such defendant, which shall be audited and allowed by the court trying such case." It is entirely clear that under this provision Pottawattamie county is liable ultimately for all proper costs and charges in the case, which accrued after the change of venue was taken. But the question in the case is whether the county in which the cause was tried is liable primarily for the costs and charges, or whether the liability of the county in which the cause arose is directly to the officers or persons in whose favor they accrued. We are of the opinion that the former is the correct view. It may be admitted that there is no express provision of statute to that effect; but, when all of the provisions with reference to costs and expenses in criminal cases are considered, we think that is the only reasonable conclusion that can be gathered from them. It is provided by section 3811 that the compensation of jurors shall be paid out of the county treasury. Also by sections 3781-3790 that the fees of the clerk and sheriff in criminal cases in which the state fails shall be paid in the same way. Each of these provisions is general, applying to all cases, and each requires the payment to be made by the county in which the cause, in which the costs or charges accrued, was tried. And section 3841 provides that, “where costs are paid by a county other than the one in which the offense was committed, the amount of such costs shall be deemed a charge in favor of such .county, and against the one in which the offense was committed, and may be recovered by action in any court having jurisdiction." This section affords the county in which the case was tried a remedy for the costs and expenses incurred by it in connection with the trial. It cannot be presumed that the legislature intended by it merely to afford the county relief for such payments as it might voluntarily make. But the reasonable presumption is that it was intended as a general rule upon the subject, affording a remedy to the county for all costs and expenses incurred in that class of cases. It is proper to say that no question has been made as to the character of the services; that is, it has not been contended that plaintiffs' claim is not properly chargeable as costs in the case, and we do not consider that question. Affirmed.

WELLES et al. v. NEWSOM.

(Supreme Court of Iowa. October 27, 1888.)

1. EJECTMENT-MESNE PROFITS AND IMPROVEMENTS-OCCUPYING CLAIMANT. Under Code Iowa, § 1976, allowing compensation for improvements made in good faith by an occupying claimant in possession of land under color of title, and section 1983, providing that one has color of title who has occupied the land by him self or those under whom he claims for five years, it is error to submit to the jury the question as to the value of improvements where there is no evidence that the defendant, or those under whom he claims, ever had any paper title, or occupied the land for five years prior to the commencement of the suit.

2. SAME-IMPROVEMENT AFTER COMMENCEMENT OF EJECTMENT.

Evidence of the value of improvements made after service of the notice of the commencement of the action to recover the land is inadmissible.

3. SAME-VALUE OF IMPROVEMENTS-EVIDENCE.

Evidence as to the cost of breaking done on the land 14 years before the petition for allowance for improvements is not admissible, the only question being as to the worth of such breaking as an improvement.

4. SAME-COUNTER-CLAIM OF USE AND OCCUPATION.

On a petition by an occupying claimant for allowance for improvements after judgment for plaintiff in an action to recover the land, the plaintiff is entitled to a counter-claim for the use and occupation prior to his judgment.

5. SAME-JUDGMENT-RES ADJUDICATA.

A judgment in an action to recover land, reciting that "the plaintiffs in open court, before the trial and judgment, withdrew all claim against the defendants for use and occupation of said premises," shows that the right to damages for use and occupation was not adjudicated in that action.

Appeal from district court, Webster county; J. L. STEVENS, Judge.

Petition by Benson Newsom to recover for improvements made by occupying claimants on lands for which the plaintiffs, Woolsey Welles and others, recovered judgment in 1874. Plaintiffs appeal.

Theo. Hawley, for appellants. A. E. Clarke, for appellee.

SEEVERS, C. J. This action was brought to recover for improvements under the occupying claimant law. In 1868 an action was commenced by the grantor of the plaintiffs against Goodchilds to recover possession of certain real estate. The notice was served on him May 29, 1868, and the petition was filed September 29, 1868. Goodchilds answered the petition in July, 1871.. In September, 1874, an amended petition was filed, making Cornelius Murphy a defendant, because he was the grantee of Goodchilds. Murphy was served with notice that he had been made a defendant. On the 24th day of September, 1874, judgment was rendered in said action in favor of the plaintiffs' grantor, and it was adjudged that he was the absolute owner of the premises and entitled to the possession thereof. A few days thereafter Murphy filed a petition, in which he sought to recover for improvements on the land under the occupying claimant law. In October, 1885, the defendant filed a petition under such law to recover for improvements, and alleged that he was entitled to all the rights of Goodchilds and Murphy, and that they had entered into possession of the premises in 1854 under color of right and claim of title, and that they and the defendant had been in the continuous possession of said premises ever since under such color of title and claim of right, and had in good faith made valuable improvements thereon, and the relief asked was that the value of such improvements be ascertained, and also the value of the land. The plaintiffs admitted the recovery of the judgment for the possession of the land, and denied all the other allegations of the petition,. and pleaded as a counter-claim that they were entitled to recover rent for the use and occupation of the land by the defendant and those under whom he claims. There was a trial by jury, and verdict finding the value of the land,. improvements, and amount of rent due for the use and occupation. Judgment was rendered on the verdict, and the plaintiff appeals.

1. The first question we are required to determine is whether the defendant or those under whom he claims were in possession of the premises, as contemplated by the statute defining who are occupying claimants. No evidence was introduced tending to show that the defendant or those under whom he claims ever had a paper title of any kind or description. To recover for improvements, an occupying claimant must have been in possession of the land under color of title, and made such improvements in good faith, (Code, 1976,) and a person has color of title who has occupied a tract of land, either personally or under others, for a term of five years, and "such occupancy has continued up to the time at which suit is brought by which a

recovery of the land is obtained." Id. § 1983. The original action was commenced against Goodchilds in 1868. It may be assumed he was then in possession, but the evidence utterly fails to show that he had been in possession for five years preceding that time. There is no evidence tending to show that any one was in possession of the premises prior to 1867. It is true that the judgment in the original action, in which the plaintiffs' grantor was adjudged to be the owner of the premises, recites that Murphy was in possession thereof under Goodchilds, but this does not amount to a finding that the former had been in possession five years prior to the commencement of the action. It is also true that Murphy, a few days after the rendition of such judgment, filed a petition under the occupying claimant law; but it is not true that such petition was filed by leave of the court, as counsel contends, and it would have been immaterial if it had been, as there was no evidencetending to show Goodchilds had been in possession of the premises for five years prior to the commencement of the action; the court erred in submitting to the jury the question as to the value of the improvements made by him.

2. The plaintiffs objected to the introduction of any evidence tending to show the value of any improvements placed on the land since 1868, when the original petition was filed. This objection was overruled. It should have been sustained, for the reason that Goodchilds had been notified that an action would be commenced; and, as the petition was actually filed, improvements made after that time cannot be regarded as made in good faith under color of title based on possession only.

3. The court excluded evidence offered by the plaintiffs for the purpose of showing the value of the use and occupation of the premises prior to September, 1874, when the judgment in the original action was entered. In so holding the court erred, and it is expressly so ruled in Parsons v. Moses, 16 Iowa, 440. But counsel for the appellee say that this question was adjudicated in the original action. This is a mistake. We infer that such a claim was made in the original action, but the judgment thereon recites that "the plaintiff in open court, before the trial and judgment, withdrew all claim against the defendants for use and occupation of said premises, and for all other damages claimed in the petition herein." It is clear, therefore, such question was not determined in the action.

4. There was evidence tending to show that breaking was done on the premises 14 years prior to December, 1885; and a witness was asked by defendant's counsel, "What is it worth to do that breaking?" The witnessanswered, "It was worth five dollars at that time; cannot say what it isworth now." There was other evidence of a similar character. Counsel for the plaintiff moved the court to strike out the foregoing evidence, because it. was incompetent, and not responsive. The court overruled the motion. It should have been sustained. It makes no difference what the breaking cost,. but what is it, as an improvement on the land, worth; and this is what the witness was asked to state. What we have said disposes, we think, of all the: Reversed.

errors discussed by counsel.

STATE v. HALL.

(Supreme Court of Iowa. October 27, 1888.)

LARCENY OBTAINING POSSESSION BY FALSE PRETENSE.

Defendant ordered an overcoat and pantaloons of a tailor, and, when finished, tried on and approved the coat, but did not take them away, as he said he hadn't quite money enough to pay for them. Afterwards, in the absence of the owner, he applied to an employe for the garments, who got them while defendant counted out his money; but, as he did not have quite enough, he asked the employe to go with him to his room, and receive the pay. On their way he asked the employe to wait at the foot of a flight of stairs while he went up to get his key, and disappeared,