one, but it was of the second grade; and it is urged that the plaintiff acted in bad faith in making her contract. The contract on its face only requires that the plaintiff should be "a legally qualified teacher," and for that purpose a secondgrade certificate would be good; but of course defendant had a right to provide by contract for a higher grade, and, as to what the understanding was at the time of the employment as to the grade of certificate, the testimony is conflicting, and we must assume the finding favorable to the judgment below. But a conclusive answer is that the grade of the certificate goes only to the evidence and fact of her competency, and at most it could only be a ground for her discharge; and the law. prescribes how the discharge for such cause must be effected, (Code, § 1734,) and a discharge for such a reason, without observng the course prescribed, would be wrong. ful. Defendant sought to show by evidence the conduct of the plaintiff in attempting, after commencing her school, to obtain a first-grade certificate, which the court refused, and complaint is made of the ruling. This point is controlled by the same considerations. The testimony could avail nothing. It could not show that there was no contract, which is the only practical question in the case. Plaintiff's cause of action depends, as we have said, upon two facts,-a contract and a wrongful discharge. The question of whether or not there were grounds for a discharge is not in the case, and it is a misapprehension of this point that has led to much of the discussion. The judgment below is affirmed. BECK, J., (dissenting.) The president of defendant was authorized by its board of directors to employ a teacher having a first-grade certificate. Plaintiff did not hold such a certificate when she was employed by the president, or afterwards. He therefore had no authority to employ her, and the contract he entered into with her was therefore void. Plaintiff and the president of the school-district cannot, by bold disregard of the will of the district, as expressed by the board of directors, defeat the just and lawful requirement of the board that the teacher for the district shall hold a first-class certificate. On these grounds I dissent to the foregoing opinion. (81 Iowa, 482) CASS COUNTY BANK V. CONRAD et al. 1. Code Iowa, 969 et seq., require township trustees to levy a road tax annually, and set apart a portion for a general township fund, to be expended as they shall direct. Section 981 makes it the duty of the road supervisor to expend all taxes collected by him, except that portion set aside for a general township fund, for the purposes specified by law, and section 982 provides that the tax on property in each roaddistrict shall be expended for highway purposes in that district only in which it was collected. Held, that township orders, issued by township trustees, for moneys advanced to be used in improving highways in a part only of the road-districts in the township, were void. ing such orders does not estop them to deny liability on the orders. 3. An abstract on appeal purporting to set out evidence submitted to the trial court will be stricken from the files on motion, where it appears that such evidence was not made of record. Appeal from district court, Cass county; GEORGE CARSON, Judge. Action of mandamus to compel the payment of certain orders issued by township trustees. There was a trial by jury, and judgment for defendants. The plaintiff appeals. C. F. Loofbourow, for appellant. H. G. Curtis and H. A. Disbrow, for appellees, the trustees and clerk of Grove township. John W. Scott, for appellees the trustees and clerk of Atlantic township. ROBINSON, J. During the year 1881, and for many years prior to January, 1886, the territory included within congressional township 76 N. of range 36 W. constituted the civil township of Atlantic, which included the city of Atlantic. In the year 1885, the township was subdivided, and two civil townships created, one of which, known as the "Township of Atlantic" included the territory within the corporate limits of the city; and the other, known as the "Township of Grove," included all the territory of the old township outside the city limits. The organization of the new townships was perfected in January, 1886. In the years 1881 and 1882, the trustees of the township of Atlantic, as it was then constituted, issued orders on the township clerk, to the amount of $860.55, on account of money advanced by plaintiff, to be used in paying for work and improvements on the highways of the township outside the city of Atlantic. Of the money so advanced the sum of $675.55 is unpaid, and is represented by the orders in suit. No fund was provided for the payment of the orders before they were issued. In April, 1885, the township trustees levied a tax to provide a fund for the payment of the orders. The proceeds of that tax were paid to the clerk of the new township of Grove, and, in March, 1886, he had on hand $243.63; but it has since been paid out, and it does not appear that he now has any money which was paid on account of the tax in question. The assessments of property outside the limits of the city of Atlantic for the year 1871, and all subsequent years to and in cluding the year 1885, were made and kept. separate from the assessments of property within the city, and all road taxes were collected from property outside the city. The plaintiff demands that the road taxes collected for the year 1885 be applied in paying its orders, and that the trustees of Grove and Atlantic townships be required to levy and collect a sufficient tax to pay the amount due upon the orders, with interest and costs. The district court denied plaintiff all relief, and rendered judgment in favor of defendant for costs. 1. Appellees have filed an additional ab. stract, which purports to set out evidence submitted on the trial in the district court. 2. The fact that the township officers after- It is made to appear that none of the eviwards collect a tax levied for the purposes of pay-dence submitted was made of record as · required by law, and a motion of appel- I not authorized by law. They were not lant to strike the additional abstract from the files will be sustained. The case must be disposed of here on the facts admitted by the pleadings, and shown by the special findings of the jury. 2. The trustees of each township are required to meet on the first Monday in April of each year, or as soon thereafter as the assessment book is received by the township clerk, and levy the tax needed for road purposes. Code, §969. They are required to set apart such portions of the tax, so levied, as they may deem necessary for the purpose of purchasing tools and machinery, and paying for guide-boards authorized by law, and the portion of the tax so set aside shall constitute a general township fund. Section 970. The fund so created shall be expended as the trustees shall direct. Section 971. The money tax levied upon the property in each road-district, except that portion set apart as a general township fund, whether collected by the road supervisor or county treasurer, shall be expended for highway purposes in the district from which it was collected, and no part of it shall be used for the benefit of any other district. Section 982. It is the duty of the road supervisor to cause all taxes collected by him, excepting the portion set apart for the general township fund, to be expended for the purposes specified by law. Section 981. He is entitled to receive, and is required to expend, in the same manner, the taxes collected of the county treasurer from property in his district, and paid to the township clerk. Henderson v. Simpson, 45 Iowa, 519. Prior to the enactment of chapter 200 of the Acts of the 20th General Assembly, no authority was rested in the township trustees to expend any of the road tax, excepting that part which constituted the general township fund. The authority conferred by section 996, to order the distribution of the fund in the hands of the township clerk, relates to the general township fund. Henderson v. Simpson, supra. The orders in suit were issued to pay for improving highways in two of the nine districts into which the township of Atlantic was divided. The transaction was, in effect, a loan of money by plaintiff to enable the township trustees to improve highways within their township, and was not authorized by law. It was not the duty of the trustees to improve the highways in the manner attempted, and they had no authority to borrow money or incur debtsfor that purpose. When extraordinary expenditures are required, and the road supervisor has not funds in hand sufficient for the purpose, certificates may be issued, receivable In payment of road taxes. Code, §§991, 992. The fact that the township used the highways improved with the money advanced by plaintiff, and received and enjoyed the benefits which the use of the money conferred, does not alter the case. The plain tiff and the trustees knew all material facts, and are presumed to have known the law when the agreement was made, and the money advanced. They knew therefore that the agreement, by virtue of which it was procured and used, was misled in any manner, and it was not the duty of the road supervisors, or other officials, to stop the making of the improvements. It is not uncommon nor improper for improvements in highways to be made by private persons, where the public funds available are insufficient, and, while such improvements may be prevented, yet, if they are made, no liability against the property of the township or road-district is thereby created. A further objection to the action of the trustees in this case is that it sought to use the road fund of nine districts for the benefit of but two. The statute would not permit that to be done. 3. In February, 1886, the trustees of the new townships met, and agreed that the clerk of the township of Grove should receive all money in the hands of the county treasurer, and all money which he should thereafter collect on account of taxes levfed on property within the territory of the township of Grove, and that said township should pay all legal debts which had been contracted on account of the township of Atlantic prior to the completion of the division. Under that arrangement, the taxes of the year 1885, collected by the county treasurer, were paid to the clerk of Grove township. Plaintiff contends that the officers of that township are estopped from denying liability for the money so received. The agreement did not require the payment of illegal debts. The money paid over under it was collected from property within the limits of the new township of Grove for road purposes. Although it was levied for the purpose of paying the orders in suit, yet it could not have been used for that purpose, for reasons already stated. As no part of it constituted a general township fund, it could only be expended by the supervisors of the roaddistricts from which it was collected. In our opinion, the judgment of the district court is correct. It is therefore affirmed. (81 Iowa, 535) SMITH et ux. v. DE KOCK. (Supreme Court of Iowa. Oct. 29, 1890.) SETTING ASIDE SALE ON EXECUTION-HOMESTEAD -PAROL EVIDENCE. 1. Where an execution debtor's wife notifies the sheriff that she claims 40 acres of a 55-acre tract as homestead, and the 15 acres are first offered for sale, after which the whole tract is sold, the sheriff's failure to plat the debtor's homestead is not error for which his deed will be set aside when the judgment under which the execution was levied was obtained before the purchase of the land. where the sheriff's return shows that he offered the land for sale in separate parcels, but not the order thereof, he may testify as to which parcel 2. In an action to set aside a sheriff's deed, he offered first. to satisfy the execution, which was for $429, and the sale of the homestead would have followed as a necessary consequence. The decree of the district court must be affirmed. DODD V. SCOTT. (81 Iowa, 319) (Supreme Court of Iowa. Oct. 24, 1890.) RES ADJUDICATA-FORCIBLE ENTRY AND DE TAINER. In an action of forcible entry and detainer, it appeared that the plaintiff's title was derived through a foreclosure suit against defendant. The land was defendant's homestead, and his wife was not a party to either suit. Held, that dofendant could not set up as a personal defense his wife's homestead interest in the land, since he might have pleaded that defense in the foreclosure suit. 40-acre tract of land upon which the | the 15 acres would have been insufficient dwelling of the family was situated. They also owned 15 acres adjoining, the entire 55 acres being used and occupied together as the homestead of the family. At the time of the sheriff's sale, John Smith was insane, and detained in the hospital at Mt. Pleasant. The defendant had execution upon a judgment against John Smith, rendered upon an indebtedness which antedated the occupancy of the land as a homestead, which execution was levied upon the 55 acres. Mrs. Smith caused notice to be served upon the sheriff, claiming the 40-acre tract as the homestead of the family. The sheriff's return shows that he proceeded to sell said real estate "by offering the same in separate parcels, receiving no bid for either the forty-acre tract or the fifteen-acre tract; and thereafter John De Kock then and there bid for the above-mentioned real estate as follows, to-wit, the sum of $429," etc. This being the highest and best bid, the entire 55 acres were returned as sold to appellee, and upon this sale the deed in question is based. The grounds of objection to the deed are that the sale was made without platting the homestead, and without first offering the 15 acres. Plaintiffs were entitled to have their homestead designated, and to have the other lands first offered for sale. A platting of the homestead would simply have been a platting of the 40-acre tract. By the notice from Mrs. Smith, the selection was, under the law, as definite as a platting would have made it. The law does not require useless things, and certainly the deed will not be set aside for an omission to do this useless thing, if the sale was otherwise regular. 2. It will be observed that the sheriff's return shows that the land was offered in separate parcels, but does not show which parcel was offered first. On the trial the sheriff was asked which tract he first offered, and the answer taken subject to plaintiffs' objection. The answer was not to vary or contradict the return, but to show a fact that did not appear therein, and was therefore competent. The sheriff answered that, to the best of his knowledge, the 15-acre tract was offered first. In this he is corroborated by the presumption that he did his duty, and it was clearly his duty to first offer the land other than the homestead. He is further corroborated by the testimony of Mr. Bosquet, who was present at the sale, and testifies that the 15 acres were first offered. The defendant's judgment being a lien upon all the lands for a debt incurred prior to the occupancy of the land as a homestead, the defendant had a right to subject the entire 55 acres to sale, if necessary, to satisfy his judgment. Plaintiffs had the right to designate their homestead, or have the same designated, and to have the lands other than the homestead first offered for sale. In the sale the law was observed in all these respects, except that the designation of the homestead was not done by platting the same. The omission, if it may be called such under the circumstances, was without prejudice to the rights of the plaintiffs. Aside from the consideration already mentioned, it is evident that v.46N.w.no.18-67 Appeal from district court, Jackson county; C. M. WATERMAN, Judge. Action for forcible entry and detention of real property. The plaintiff sold to the defendant the premises in controversy by contract, the deed to be executed when certain payments were made. Default was made in the payments, the contract foreclosed by action against the defendant, and the premises sold on foreclosure judgment to the plaintiff, and, at the close of the period of redemption, he received his deed, after which he instituted this proceeding before a justice of the peace to obtain possession. In the foreclosure suit, the wife of the defendant was not made a party, nor is she a party in this proceeding. Before the justice, the defendant answered, presenting as defensive matter that before the commencement of the foreclosure proceeding he was the head of a family, and that Sarah A. Scott was his wife; that since November, 1886, he and his wife had occupied the premises in question as a homestead; and that his wife was not made a party to the foreclosure proceeding, nor her homestead interest therein foreclosed. To the answer the plaintiff demurred, whereupon the justice certified the case to the district court as involving title to real estate, under the provisions of Code, § 3535. In the district court the plaintiff moved to remand the cause to the justice for trial, for the reason that the district court had no jurisdiction, and that it was erroneously transferred to the justice. Pending the motion, however, the defendant amended his answer by alleging "that the right and possession he now has in and to said real estate were acquired by and through the said homestead right of the said Sarah A. Scott, his wife." To the answer, as amended, there was a demurrer, which the court overruled, and the plaintiff, electing to stand thereon, appealed to this court. Hayes & Schuyler and B. F. Thomas, for appellant. GRANGER, J. The case must be reversed, and, as we are unaided by brief from appellee, we limit our consideration to a single question. See McKern v. Albia, 69 Iowa, 447, 29 N. W. Rep. 421; Deeds v. Railroad Co., 69 Iowa, 164, 28 N. W. Rep. 488; Gilfeather v. Council Bluffs, 69 Iowa, 310, that is, no sale of it was lost; and under the instruction of the court it must be re 28 N. W. Rep. 610. A point urged in arguA point urged in argu- | ly because of a failure to have it on hand,ment by appellant is that the husband, who was a party to the foreclosure proceeding, cannot, in this case, set up the homestead right of the wife as a defense, and it seems difficult to gainsay the proposition. With the amendment, the plea appears to be one personal to the defendant; that is, he does not seek to defend for his wife, but for himself, because of a "right and possession" acquired "through the homestead right of the wife." Being a party to the foreclosure suit, if he had a homestead right available to him as a defense therein, he must interpose it, or the right is lost. Now the wife was not a party to that proceeding, and any rights he had available to him because of the wife's homestead right (if there could be any) was just as available for defense in that suit as in this, and just as available then as any other right he had. We must assume, then, that all rights personal to the defendant have been adjudicated or waived, and that under the claim of the demurrer, because of the wife not being a party to this suit, no claims based on her homestead rights are available as a defense. With this holding, no question of title is involved in the issues, and the cause should be remanded to the justice for trial. Reversed. (81 Iowa, 549) FULLERTON LUMBER Co. v. SPENCER. (Supreme Court of Iowa. Oct. 29, 1890.) WRONGFUL ATTACHMENT-MEASURE OF DAMAGES. On a counter-claim for wrongful attachment of lumber, kept uy defendant for sale, where it appears that the lumber was not damaged by the taking, and it is not shown that any sale of it was lost thereby, it is error to charge that, if the property was for use for purposes of sale only, the value of its use is 6 per cent. per annum on the value of the lumber for the time it was withheld. Appeal from district court, Woodbury County; GEOrge W. WakEFIELD, Judge. Action on account for lumber, aided by attachment. Defendant admits the indebtedness as claimed, but, by way of cross-action, alleges that the attachment was wrongfully sued out, and the issues arise on defendant's counter-claim. jury found specially that the writ was wrongfully sued out, and, by its general verdict, found for defendant in the sum of $41.49, for which judgment was entered, and the plaintiff appeals. Stone & Owen, for appellant. The garded as not damaged. If the lumber had not been taken, defendant could not, in the nature of things, have kept the lumber on hand and received what the rule of the court gave him. If by the taking defendant was deprived of any use of the lumber, the value of such use is his damage. It is not of a class of property that the law presumes will be used in the sense of the use being of value to the owner barring that of its sale, and no claim is made of damage because of a loss of sale, and for such damage a different rule would apply. The general rule is where personal property is wrongfully taken and detained for a time from the owner, the value of its use during such time. If it has no such value, the damage must be said to be nominal, and a rule of general damages that would give interest on the value in such a case is erroneous. The case must be reversed for the error indicated, and as there is no appearance for appellee to aid us by a brief and argument, we do not consider other questions. See McKern v. Albia, 69 Iowa, 447, 29 N. W. Rep. 421; Deeds v. Railroad Co., 69 Iowa, 161, 28 N. W. Rep. 488; Gilfeather v. Council Bluffs, 69 Iowa, 310, 28 N. W. Rep. 610; and Dodd v. Scott, ante, 1057, (decided at this term.) The judgment below is reversed. (81 Iowa, 527) GOETZMAN v. WHITAKER et al. (Supreme Court of Iowa. Oct. 29, 1890.) COUNTY ATTORNEY-SALARY-CERTIORARI-INTER VENTION. 1. Under Acts 21st Gen. Assem. Iowa, c. 73, 11, which provides that county attorneys "shall be allowed an annual salary to be fixed by the board of supervisors at their June meeting of each even-numbered year," the supervisors cannot increase, during his term of office, the salary of their county attorney as fixed by them at such such salary was so fixed under a mistaken belief June meeting, previous to his election, though that he was also entitled to fees in criminal cases. 2. Where an order increasing such salary has been adopted, any resident and tax-payer of the county may maintain an action by certiorari to reverse such order. 3. The county attorney, being a necessary party to the final determination of such action, may intervene therein even after the cause has been submitted, and the findings of the court announced. Appeal from district court, Boone county; S. M. WEAVER, Judge. Proceeding by certiorari to test the va visors of Boone county. The facts are stated in the opinion. E. L. Green and J. R. Whitaker, for appellant. Crooks & Jordan, for appellee Charles Goetzman. O. M. Brockett, Co. Atty., for appellee Boone county. GRANGER, J. The plaintiff, by virtue of the attachment, seized a quantity of lum-lidity of certain acts of the board of superber which was kept for sale in a lumberyard, and the court instructed the jury that there was no depreciation in the val ue of the property taken, and that nothing could be allowed therefor. The court then said to the jury: "If you find that the property was for use only for the purposes of sale in a lumber-yard, then the value of the use would be interest at six per cent. per annum on the value of such lumber so taken for the time the same was withheld from defendant." Complaint is made of the rule given, and we think justly. There is no showing of any loss to defendant by the taking of the lumber mere ROBINSON, J. Plaintiff is a resident and tax-payer of Boone county. The defendants in the proceeding as it was commenced are Boone county, the auditor, and the members of the board of supervisors of Boone county. The appellant Whitaker was permitted to intervene as a party defendant before final judgment was rendered. The petition alleges that the board of supervisors of Boone county, at the June session of 1886, adopted the following: "Resolved, by the board of supervisors of Boone county, Iowa, that the salary of the county attorney hereafter to be elected as provided by the act of the 21st general assembly be and the same is hereby fixed at four hundred dollars per annum;" that J. R. Whitaker was duly elected county attorney of Boone county at the general election of the year 1886, and qualified and entered upon the discharge of the duties of the office on the 4th day of January, 1887; that on the 11th day of April, 1887, the board of supervisors adopted the following: "It being manifest to the board that a mistake was made at its June session, 1886, in naming the county attorney's salary, said board being at that session wrongly informed that said officer would receive fees in criminal cases, and it being undisputed that the salary was named on that basis, it is therefore ordered that the further sum of four hundred dollars per annum be added to the amount named at said June session, for the purpose of rectifying the mistake then made;" and that defendants have issued warrants to Whitaker under the resolution last quoted for his salary at the rate of $800 per annum. The petition further alleges that the action of April 11th was illegal, and asks that defendants be required to certify to the clerk of the court a correct transcript of the orders and resolutions of the board of supervisors in relation to fixing the salary in question; that the county auditor be required to show the amount of warrants issued to Whitaker on account of his official salary since January 1, 1887; that the action taken April 11th be reviewed and set aside; and that such further order be made as is right and proper. A writ was issued as prayed, and a return made thereto by the county auditor. The return shows that the action of the board at their meetings in June, 1886, and April, 1887, was as stated in the petition, and that Whitaker was paid $1,000 on account of his salary for the first five quarters of his official term. The fourth paragraph of the return is as follows: "(4) It is further certified and returned as a fact that the salary of the county attorney was at said June session, 1886, intended to be fixed, and intended to be recorded, at eight hundred dollars; but, by mistake, four hundred dollars was deducted from said amount, and the salary was made at four hundred dollars, and the record of said April session was made and entered relative to and in correction of such record of said board at its June session, 1886." The plaintiff moved for judgment on the return; and on the 23d day of November, 1888, the motion was taken under advisement to be determined in vacation. On the 11th day of January, 1889, in vacation, the judge of the court filed his findings to the effect that there should be a judgment of the court declaring the action of the board taken April 11, 1887, to be null and void, and for costs, and giving counsel permission to prepare a form of judgment entry in accordance with the findings. Four days after the findings were filed, and before judgment was rendered, Whitaker filed his application to be made a party defendant, supported by an affidavit showing that he was entitled to the salary allowed the county attorney, and that he was therefore interested in the order of the board, which plaintiff was seeking to have set aside. On the 28th day of January, 1889, Whitaker filed a motion to set aside the submission made at the preceding November term for the purpose of allowing him to be made a party defendant. party defendant. At the January term, 1889,-to-wit, on the 15th day of February, -the court set aside the submission, and granted the application of Whitaker. Thereafter, and on the same day, it having been ordered that the defense of the other defendants stand as the defense of Whitaker, the cause was again submitted on the motion of plaintiff, and judgment was rendered setting aside the order of April 11, 1887, as illegal and void. The plaintiff and Whitaker appeal, the appeal of the latter being first perfected. 1. Before the application of Whitaker to be made a party defendant was granted, objections thereto were made on the ground that the applicant was not a necessary nor a proper party; that his interest in the matter in controversy did not entitle him to be made a party; and that his application was not made in time. The appellant is interested in the order which plaintiff asks to have set aside to the amount of $800. There can be no complete and final adjudication of the matter until appellant has had his day in court. It was said in Brown v. Bryan, 31 Iowa, 556, that a railroad company, for whose benefit a tax had been voted, was entitled to intervene in an action brought by taxpayers to enjoin the collection of the tax; and that it was not only a proper but a necessary party to a final and binding determination of the questions involved in the action; and that was true, even though the right to the tax had not matured. We think Whitaker was entitled to intervene at a proper time. Code, § 2683. But it is claimed that his application was not filed in time. It was said in Henry v. Elevator Co., 42 Iowa, 35, that the intervention must be made before the trial commences, and that it cannot be allowed after that time, nor after a settlement has been effected by the parties to the action. That rule was approved in Bank v. Gill, 50 Iowa, 427. See, also, Teachout v. Railway Co., 75 Iowa, 728, 38 N. W. Rep. 145. We do not think the rule should be rigidly applied where the parties necessary to a determination of the cause are not before the court. In such a case, where the court might order interested persons to be made parties when their interest becomes known, we think the court may properly sustain an application by such persons to intervene. In this case, the judgment to be rendered had been determined by the judge before the application to intervene was made, and we do not say that it might not have been properly denied on that ground; but it does not appear that the granting of the application caused any delay in the final decision of the cause. On the contrary, it is shown that Whitaker |