any sum greater than $44 and costs. The termine its condition at the time of the accirelease determined and limited the amount dent. recoverable upon the pleadings, for no sum greater than the amount specified in the release could be recovered upon the pleadings in this action. The amount which defendant claims to recover is the amount in controversy in the action. Mohme v. Livingston, 54 Iowa, 458, 6 N. W. Rep. 717; Davis v. Upright, 54 Iowa, 752, 6 N. W. Rep. 266. The amount in controversy being less than $100, and the questions of law for our determination not being certified as required by Code, § 3173, we have no jurisdiction to determine the case. The appeal is therefore dismissed. HOYT v. CITY OF DES MOINES. (Supreme Court of Iowa. Dec. 22, 1888.) DEFECTIVE SIDEWALKS-EVIDENCE. 1. In an action against a city for injuries received from a defective sidewalk, testimony of the condition of the walk after the accident is inadmissible, in the absence of evidence that its condition was the same at the time of the accident. 2. Evidence that after the accident the sidewalk commissioner stated that he had given notice to repair the walk is inadmissible, where it does not appear whether the notice was given before or after the accident, or where the officer is not shown to have been acting in the discharge of his official duty when making the statement. 2. A witness was permitted to testify to a conversation he had with the sidewalk com. missioner after the accident, in which that officer stated that he had notified the owners of the property to repair the sidewalk. We think the evidence improper for two reasons: (1) It was not shown whether the notice was given before or after the accident. If the notice had been given after, it would not raise an inference that the commissioner knew of the injury before the accident. (2) It is not shown that the commissioner, when he had the conversation, was acting in his official capacity, or in the discharge of his official duty. The loose conversations of the city officials, when not acting officially, or while in the discharge of official duty, ought not to be received to bind the city. Verry v. Railway Co., 47 Iowa, 549. 3. A witness testified that he had fallen upon the same sidewalk from a defect therein, but was unable to state the exact place of the defect. The court directed the evidence to be excluded, except so far as it related to the point at which the accident occurred. We think the whole evidence should have been excluded. The jury could not determine what part of the evidence applied to the place of the accident, for the witness did not know where that point was. The defendant doubtless was prejudiced, for the jury was, in effect, informed that some of the evidence related to the place of the accident; they would so apply it. But in truth the witness did not attempt to testify thereto. did not know the place of the accident, and Hence none of his evidence was applicable to the Action by Harriet A. Hoyt against the city of Des Moines, for injuries sustained by plain-ered, as the rulings upon which they are based Other objections need not be considtiff from a fall while she was walking upon may not again occur on another trial. For a sidewalk of the city. There was a judgthe errors pointed out the judgment of the ment upon a verdict for plaintiff. Defenddistrict court is reversed. ant appeals. 3. Testimony to a fall upon the same walk from a defect in it, by one who is unable to state the exact place of the defect, is altogether inadmissible, and it is error to admit it, so far as it relates to the point at which the accident complained of occurred.1 Appeal from district court, Polk county; MARCUS KAVANAGH, JR., Judge. case. Detrick & McMartin and Hugh Brennan, for appellant. Baker & Haskins and C. A. SOUTHERN WHITE-LEAD Co. et al. v. HAAS Bishop, for appellee. et al. (Supreme Court of Iowa. Dec. 22, 1888.) INTEREST. subject to the payment of their debts funds in the In an action by creditors of an insolvent firm to hands of a mortgagee, being the proceeds of sales under the mortgages, it appeared that when suit was commenced there was enough to pay the plaintiffs' claims. Held, that though the mortga claims secured by the mortgages in full, and all gee had been garnished, and the opinion of the court provided that the moneys should first be applied "to the satisfaction of the notes," the mortgagee was not entitled to interest on the notes pending the litigation, as against plaintiffs, whose demands were postponed to his. BECK, J. 1. The plaintiff, while walking upon one of the sidewalks in the city of Des Moines, fell. She seeks to recover in this action the damages she sustained from the fall. A witness who testifies that he had no knowledge of the condition of the sidewalk at the time of the accident was permitted to testify as to its condition afterwards. In the absence of any evidence tending to show that the condition of the walk was the same at the time of the accident as it was when the witness examined it, this evidence ought not to have been admitted. It is obvious that Appeal from district court, Dubuque the observations of the witness as to the con-county; C. F. COUCH, Judge. dition of the sidewalk after the accident, without more, would not aid the jury to de This is an appeal by defendants from a decree entered in the district court, in pursuance of decisions of this court to be found in 1See, as to the admissibility of evidence of for- 33 N. W. Rep. 657, and on rehearing in 35 mer accidents at same place in actions for negli-N. W. Rep. 494. gent personal injuries, City of Topeka v. Sherwood, (Kan.) 18 Pac. Rep. 933, and note. Fouke & Lyon, for appellants. Utt Bros., Powers & Lacy, Graham & Cady, J. C. Longueville, and Henderson, Hurd, Daniels & Kiesel, for appellees. tion of the notes." It is claimed this would FRETLAND v. MACK. (Supreme Court of Iowa. Dec. 22, 1888.) LIENS-ASSUMPTION. ROTHROCK, J. 1. It is not necessary to recite the facts of the case. They are fully set forth in the first opinion above cited. The defendants were successful in the action in the court below. Upon an appeal, the decree was modified to the extent of declaring the mortgage void as to part of the claims secured thereby, and valid as to the remainder. It was held that "the money in the hands of Keine and his agent should first be In an action to have a note and mortgage canapplied to the satisfaction of the notes men- celed on the ground that they had been given for tioned in the mortgages which bear date after a debt which had already been paid, the evidence the 20th of October, 1882, * * *"" showed that plaintiff was jointly liable on a note and with one H., on which judgment was obtained, that "the residue of the money, or so much which became a lien on the land of H.; that H. of it as necessary, will be applied to the sat- afterwards sold his land to defendant, who paid the isfaction of the plaintiffs' judgments in the judgment, and took an assignment thereof, which he was threatening to enforce against plaintiff, order of the garnishments." No decree was when plaintiff gave the notes and mortgage in entered in this court. When the cause was controversy for the amount of the judgment. remanded, plaintiffs prepared a decree sup- Plaintiff's evidence showed that H. sold his land posed to be in accord with the opinion of to defendant with the understanding that defendant should pay all liens thereon, including said this court. The defendants prepared a de- judgment, as part of the purchase price. H. tescree by which they claimed interest upon the tified that the payment of said judgment was a amount found to be in the hands of Keine part of the consideration, and he was corroborated pending the litigation. They also filed an conversation with defendant in regard to the transby the judgment creditor's attorney, who had a amended claim or supplemental answer of action, and from which he had the understanding Peter Keine for allowance for services and that defendant had agreed to pay the judgment. expenses of attorney's fees in defending the Defendant admitted that he was to pay the other liens, but claimed to have no knowledge of the suit by which the validity of the mortgages existence of the judgment. He paid only $100 to was tested. These items amount to about H., the consideration being stated in the deed to $3,700. The court refused to entertain the be $1,800, the estimated value of the land. Held, supplemental pleading, and approved the de- the judgment was to be paid by defendant, and that the preponderance of evidence showed that cree of the plaintiffs, which did not allow inter- therefore the notes and mortgage were without est on the amount in the hands of Keine consideration, having been given for a debt which pending the litigation. We think the decree had been paid. is correct. A review of the whole record in the case satisfies us that there is no equity in the claim of the defendant Keine for attor- Action by Knud J. Fretland against Abijah ney's fees and expenses and for services. Mack, to cancel certain notes and a mortgage He was allowed the sum of $6,120.96 for ex-securing the payment, on the ground that the penses, and we think it is sufficient. Appeal from district court, Mitchell county; G. W. RUDDICK, Judge. debt for which the securities were given had been paid. Upon a trial on the merits the district court dismissed plaintiff's petition, and entered a decree upon defendant's crosspetition, foreclosing the mortgage. Plaintiff appeals. J. H. Sweney, for appellant. J. F. Clyde and W. L. Eaton, for appellee. BECK, J. 1. The plaintiff alleges in his petition, among other things, that in 1877 he became surety upon a promissory note executed by Haugen to Hays for money borrowed. In the same year a judgment was entered upon the note against Haugen and 2. Interest was not allowed upon the amount which it was found Keine was entitled to hold as against the plaintiffs. We think this was correct. As the cause was finally determined, it was found that there was sufficient in Keine's hands at the commencement of the suit to pay Keine his legal claim in full, and to pay all of the claims of the plaintiffs. He took his chances in the litigation, just as any other party to a suit. If, at the commencement of the action, he had paid the plaintiffs' claims, that would have been an end of the litigation. He elected to defend and claim the money under the mortgages. He ought not to be allowed to aug-plaintiff, which became a lien upon land ment his claim pending the litigation. It is owned by Haugen. In 1878 Haugen contrue he was a garnishee, but the facts in veyed the land, in consideration of $1,800, to the case, in connection with his actual inter- defendant, which was paid by defendant asest in the subject-matter of the litigation, suming and agreeing to pay certain liens on satisfies us that there is no merit in the claim the land, and, among them, the judgment for interest upon the fund which was in his against plaintiff and Haugen, above referred hands, and which it was found he was equi- to, and the satisfaction of a note and morttably entitled to. It is to be observed that gage, held by defendant against Haugen. In the opinion in this court provides that the addition to the discharge of these liens, demoney shall first be applied "to the satisfac-fendant agreed to pay the sum of $100 cash. In the same year Haugen left the state. The | ceived in cash $100 only. The farm was esnext year defendant paid the judgment to timated to be worth $1,800. That was the Hays, and caused it to be assigned to him- consideration to be paid by defendant, as self. In 1885 defendant caused execution to stated in the deed. Defendant does not exbe issued on the judgment, and was threaten-plain why the judgment against plaintiff was ing and proceeding to enforce the same not to be satisfied further than by the stateagainst plaintiff's property. Plaintiff, hav- ment that he had no knowledge of its existing no knowledge or information of the facts ence, which we cannot credit. His statejust stated, in order to save his property from ments are to the effect that he paid about execution executed a note and chattel mort- $100 more for the land than the consideragage to defendant for the amount of the judg- tion expressed in the deed. This at least ment. Plaintiff, alleging that it is inequi- shows his want of accuracy in his evidence. table for defendant to enforce the note and We reach the conclusion that the preponderchattel mortgage, prays that a decree may be ance of the evidence supports plaintiff's alleentered, canceling them, as well as enjoining gation to the effect that the Hays judgment defendant from attempting to transfer or en- was to be paid by defendant. As between force them. Defendant denies the allegation the parties, the note and chattel mortgage are of the petition. Other matters pleaded by without consideration, for the reason that both parties need not be recited. they were given for a debt which had been paid. Under the facts of the case the plaintiff may show and rely upon the failure of consideration to defeat the note and chattel mortgage. The judgment of the district court is reversed, and a decree will be entered, at plaintiff's option, in this court,. granting him the relief prayed for in his petition. If plaintiff elects to have the cause remanded for judgment in the court below, it will be so ordered. Reversed. DOUD v. MASON CITY & F. D. R. Co. (Supreme Court of Iowa. Dec. 22, 1888.) EMINENT DOMAIN-DAMAGES. 1. Evidence that the land across which a right of way is located contains beds of coal, is admissible to show the market value of the land as an entirety, and for purposes for which it might be available in the future, though the ownership of the coal is not appropriated, the jury being instructed to that effect, so that if there is no evidence that the building of the road will affect the coal defendant cannot be prejudiced. 2. The owner cannot recover for detriment to his land outside of the right of way, caused by the railroad taking soil therefrom, this being a mere trespass for which an action lies. 2. The facts pertaining to the recovery of the original judgment, its assignment to defendant, his attempt to enforce it, and the execution of the note and chattel mortgage to defendant, are not disputed. Defendant's counsel insist that there is no legal evidence showing that plaintiff was a surety on the note given by Haugen and plaintiff to Hays. We need not, in the view we take of the case, determine this question of fact. It is not denied that plaintiff was a party to the note with Haugen, and they were at least jointly and severally liable thereon. It cannot be doubted that, if so liable, the judgment on the note could not have been enforced against plaintiff, if it had been paid by Haugen, as claimed by them. If defendant agreed to pay the judgment as a part consideration for the land, plaintiff ought not in equity to be required to again pay the debt, and defendant's efforts to compel him to pay are fraudulent, and he will be enjoined from attempting to collect the note and chattel mortgage, and they will be canceled. The case turns upon the decision of the question of fact suggested by this statement. Haugen testifies positively that the payment of this Hays judgment part upland, and different parts might be most ad3. Though part of the land is river bottom and was to be a part of the consideration for the vantageously used for different purposes, yet, if land, and that defendant agreed to pay it. the owner has treated the land as an entirety, and This evidence is direct, and intelligently it is not error to refuse to charge that when, of dif does not seem to have contemplated any division, given. Defendant, with equal positiveness, ferent parts of a tract adapted to different purcontradicts Haugen; but we think that Hau- poses, only one is covered by the right of way, gen is corroborated to some extent by the at- ages to the others cannot be considered. torney of Hays, who testifies to conversa- Appeal from district court, Webster county; tions had with defendant in regard to the J. L. STEVENS, Judge. transaction. From these conversations the Plaintiff, W. V. Doud, appealed from the witness had the understanding that defend-report of commissioners appointed to appraise ant had agreed to pay the judgment. In- the damages caused by the appropriation of deed, the inference is authorized to be drawn from this testimony that defendant had agreed to pay this judgment. He admits that he agreed to pay other liens; but as to this gives the poor excuse that he had no knowledge of the existence of the judgment, when in fact it had been rendered for some months. He knew of the other liens, and it is strange indeed if he had no actual notice of the Hays judgment. He does not explain why he agreed to pay other liens, and did not undertake to pay all liens on the land. Haugen rev.41N.w.no.1-5 dam land by defendant for right of way purposes. A jury trial was had in the district court, which resulted in a verdict and judgment in favor of plaintiff for the sum of $1,000. The defendant appeals. A. N. Botsford, for appellant. Theo. Hawley, for appellee. 1 Respecting the elements of damage which may be considered in awarding compensation in conFed. Rep. 376, and note: Blakely v. Railroad Co., demnation proceedings, see In re Rugheimer, 36 (Neb.) 40 N. W. Rep. 956. ROBINSON, J. Plaintiff is the owner of a tract of land containing about 41 acres, which is situated near the town of Lehigh. Defendant has located and constructed a railway across a portion of this tract, and for that purpose appropriated nearly five acres for its right of way. The question involved in the case is the amount of damages to which plaintiff is entitled by reason of such appropriation. think this was erroneous. The proceedings It is claimed that the error in question was cured by the instructions, but we do not find this to be the case. It is true, the jury were told that it was the intention of the law to give the land-owner the value of the land actually taken, and in addition thereto the depreciation in value of his adjoining land by reason of the right of way, irrespective of benefits. Also that the railroad company acquired by proceedings of this nature the right to a strip of land 100 feet in width to locate, build, and operate therein its road, and that "such right extends no further than the right of location, construction, and convenient use of its railway, and to take and remove and 1. Plaintiff was permitted to introduce evidence which tended to show that the land in question contains beds of coal. This was objected to by defendant, and its admission is assigned as error. It is insisted by appellant that it acquired but an easement in the land, without any right to coal which might lie below its surface; that plaintiff's right to mine and remove the coal was not in any manner affected by the easement, and therefore that the evidence in question introduced an element of value which should not have been considered by the jury. We do not think this position is well taken. The evidence was introduced to show the true character of the land, and had direct relation to its value as an entirety. No attempt was made to show the separate value of the coal which underlaid the right of way. The jury were instructed that the mineral beneath the surface belonged to the owner of the land, and that it could be considered by them only so far as it affected the market value of the land. We understand the well-established rule in proceedings of this character to be that the re-use any earth, stone, timber, etc., on or from covery of the property owner is not limited the land so taken, which may be necessary to the damages which he would sustain if the for the purpose. But the evident intent of property were to be used only for the pur- the paragraph in which the portion of the poses to which it is devoted, when such pro- charge just quoted appears was to explain the ceedings are had, but that the value of the nature of the right acquired by the defendproperty for any purpose for which it is avail-ant; and the fact that it was a surface right able may be considered. Boom Co. v. Pat- only, and that it did not extend to mineral terson, 98 U. S. 403; In re Furman St., 17 deposits below the surface was made espeWend. 669; Goodin v. Canal Co., 18 Ohio cially prominent. The jury were also charged St. 169; Young v. Harrison, 17 Ga. 30; Stin- that it was their sole duty "to ascertain and son v. Railway Co., 6 N. W. Rep. 786; Rail- assess the damages sustained by the plaintiff way Co. v. Warren, 12 Pac. Rep. 642; Rail- by reason of the location and construction way v. Woodruff, 5 S. W. Rep. 792; State v. of" the railway of defendant across the land Moore, 12 Cal. 71. If the property in ques-in controversy. Also that in determining tion had value as coal land, it was proper to these damages they should first ascertain the show that fact. But it is said that there was fair market value of the premises before the no evidence that the coal would be affected location and construction of the road, and the by the building of the road. If that be true, like value after its location and construction, then, under the charge of the court no prej-disregarding benefits. The evidence as to the udice could have resulted to defendant from the evidence in controversy. amount of damages fixed it as the difference between the value of the land before the 2. The right of way appropriated by de- building of the road and after it was built. fendant was 100 feet in width. Plaintiff That difference necessarily included the damwas permitted to show that his land out-age caused by the removal of the soil from side the right of way was entered upon by that portion of the land outside the right of defendant, and soil removed in connection way. The jury were not, in terms, told to with the construction of the railway. In one place the soil was removed outside the right of way to a depth of 4 feet, and for a width, including the right of way, of 221 feet. In ruling upon this evidence the court remarked that it "must be taken into consideration in estimating the difference in value before and after the building of the road." We disregard the damage last named, while some portions of the charge require them to allow for it. The theory of the court below seemed to be that plaintiff was entitled to recover in this proceeding all damages which resulted from the building of the road, whether the operations of defendant were confined to the right of way or not. As already stated, we PEAVEY V. PEAVEY. (Supreme Court of Iowa. Dec. 22, 1888.) DIVORCE-ADULTERY-CRUELTY-ALIMONY. tained. do not understand this to be the rule. It is usual for railway companies to secure their right of way in advance of the building of their road, and the law contemplates that this shall be done. The law fixes the amount of fendant's brother-in-law, who was sick, and re1. The parties went to help in taking care of deland which may be appropriated without the mained all night. Defendant was to watch the consent of the owner, and the railway com- first and plaintiff the second part of the night. pany cannot rightfully use more. There Plaintiff, not being called, got up, and found defendant partially undressed, and, as he alleged, in would be no authority for assessing damages bed with her brother-in-law. Defendant insisted for an anticipated trespass before the con- that she was not in the bed, but partially on it, with struction of the road, and the damages conher feet on a chair, and that her sister was in the templated by the law are the same whether as would naturally preclude sexual intercourse, room. The brother-in-law's condition being such assessed before or after the road is built, ex-held, that the charge of adultery was not suscepting that in the latter case interest may be allowed. Daniels v. Railroad Co., 41 Iowa, made frequent visits to her brother-in-law's house, 2. While the parties were cohabiting, defendant 52. The rule for estimating the damages and sometimes walked and rode with him, and, adopted by this court is "to ascertain the fair after leaving plaintiff, she made her home with merchantable value of the premises over him. Held that, though in her intercourse with which the road passes, and the like value of the priety, yet, in view of their relationship, somehim she may have overstepped the bounds of prosame premises in their condition after the right thing more was needed to establish adultery. of way is taken, leaving out of view all the 3. Proof that defendant at different times aptime any benefits resulting from the improve-plied opprobrious epithets to plaintiff, and once threw a frying pan and dish-cloth at him, he havment." Fleming v. Railroad Co., 34 Iowa, ing called her offensive names; that she put bluing 357. Or, as stated in Henry v. Railroad Co., and saltpetre in his food, in an attempt, as he in2 Iowa, 309, it is "to determine the fair mar-sisted, to poison him, but, as was probable, by acketable value of the premises, before the right does not convict defendant of cruel and inhuman cident, though it shows reprehensible conduct, is set apart, and then again after, and the treatment. difference will be the true measure of damages," to which must be added the modification that benefits must be disregarded, required by the constitution of 1857. The safer and better rule is to confine the damages recoverable in proceedings of this kind to those which naturally result from the taking and rightful use of the right of way, and the proper construction of the road, and to permit the land-owner to recover other damages to which he is entitled in an action brought therefor. It is in harmony with the law, as heretofore construed by this court, and will secure greater simplicity and certainty in proceedings of this character. 4. An allowance to the wife to perfect her appeal will be set aside, where it does not appear that she ever served the clerk of court with notice, as required by Code Iowa, § 3178; service on plaintiff's attorney alone not being sufficient, and her failure to appear in the supreme court for any purpose leading to the conclusion that her appeal is abandoned. Appeal from circuit and district courts, Mitchell county; JOHN B. CLELAND, Judge. Plaintiff, H. M. Peavey, seeks a divorce from defendant, Jane Peavey, on the grounds of adultery and cruel and inhuman treatment. Defendant denied the grounds alleged, and asked a divorce from plaintiff on the ground of cruel and inhuman treatment. The cir cuit court found that neither party was entitled to the relief demanded, and rendered a notice of appeal to be served on one of the attorneys for plaintiff on the 30th day of December, 1886, but it is not shown to have been served on the clerk. On the same day defendant filed a motion for an allowance to enable her to perfect her appeal. This was sustained on the 24th day of January, 1887, by the district court, and the plaintiff was ordered to pay to defendant the sum of $100 within 30 days, for the purpose of perfecting her appeal. Plaintiff appeals from the order and judgment. 3. It appears that a portion of the tract in question is bottom-land, near the river, and that a portion is high upland. The court re-judgment accordingly. The defendant caused fused to give an instruction asked by defendant, as follows: "You are instructed that if one portion of this land in question was adapted to one use, and another portion of the same to a different use, and only one of such portions is covered by the right of way of defendant, the portion not so crossed cannot be taken into consideration in determining the damages done to the land." We think this instruction was rightly refused. It does not appear that any division of the land has been contemplated by plaintiff, nor that such a division is necessary. The land has been treated as an entirety, and, while different portions might be devoted with greatest advantage to different purposes, yet that has not been done, and plaintiff was entitled to have the entire tract considered in the assessment of damages. The facts in this case are materially different from those involved in the case of Haines v. Railway Co., 65 Iowa, 216, 21 N. W. Rep. 573. For the error specified the judgment of the district court is reversed. J. M. Moody and M. M. Browne, for appellant. ROBINSON, J., (after stating the facts as above.) Plaintiff and defendant were married on the 24th day of January, 1884, after a brief acquaintance. Each had been married before. Plaintiff was over 50 years of age, and had several children, four of whom made their home with him. Defendant was over 30 years of age, and had children, but none of them lived with her. The parties |