The property passes

der, these constitute one transaction. to the mortgagee and assignee in trust, to be disposed of as required by law and the conditions of the instruments he executes. The law, as announced by this court in Burrows et al v. Lehndorff, supra, and Cole v. Dealham, supra, regards the transaction as an assignment, and if a part of the creditors are preferred, it is void under the statute above quoted.

In our opinion the circuit court erred in sustaining the demurrer to plaintiff's petition. Its judgment is, therefore, reversed.

THE CITY OF OTTUMWA, Appellee, rs. LOUIS SCHAUB, Appellant. Filed December 8, 1879.

By overruling a motion for change of venue in the mayor's court, the court does not lose jurisdiction, and on appeal therefrom the appellate court acquires jurisdiction. An appeal in a criminal action from a mayor's to district court brings up the cause for trial anew. A city has authority to forfeit a license for the sale of liquors for a violation of the ordinance under which it is granted. The ordinance book of the city of Ottumwa was offered in evidence, and, on the evidence of a policeman familiar with the book to the effect that it was such book, and that the signature to the ordinance in question was that of the mayor, admitted." Held proper. Judgment held sustained by the evidence—| Èp.

Appeal from Jefferson district court.

An information was filed before the mayor of Ottumwa accusing the defendant of obstructing light in the widow of a beer saloon, in violation of the ordinance of the city. The defendant was arrested, and upon being arraigned filed his plea of not guilty, and filed his motion for a change of venue, on the ground of the prejudice of the court. The defendant was tried, convicted, and sentenced to pay a fine of ten dollars and costs, and his license to sell beer, wine, and other malt and vinous liquors was declared forfeited and void, as provided in the ordinance of said city. From this judgment the defendant appealed to the Wapello district court. In the district court the defendant filed a motion to dismiss the appeal for the reasons following:

"1. Because this court has no jurisdiction of this cause in this. That at the time of the appearance of the parties hereto before the mayor, from whom the appeal comes, and before the commencement of the trial thereof, the defendant herein filed his motion for a change of venue. Said motion was in due form of law, and filed in time, and was, by the court, overruled; that from the filing of said motion said v3—34 (no. v)

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court had no further jurisdiction of said cause, and could not try the same or enter any valid judgment.

"2. The court below having no jurisdiction after the filing of said motion, this court should have none further than to dismiss.

"3. If this court cannot dismiss, the defend ant moves said cause be remanded to said mayor, with orders to set aside judgment rendered, and to sustain the defendant's motion for a change of venue.

The court overruled this motion. The defendant filed a demurrer to the information. The venue in the cause was then, on defendant's application, changed to the Jefferson district court. The demurrur was overruled. The defendant was tried, found guilty, and fined $10 and the costs of prosecution. The defendant appeals.

W. W. Cory, O. W. Lyman and II. H. C. Jaques, for appellant.

Calvin Manning, for appellee.

DAY, J. 1. It was held by this court in Finch v. Marvin, 46 Iowa, 354, that upon proper application a change of venue should be granted from the court of a mayor to that of a justice of the peace. But upon the filing of a motion for a change of venue, the mayor does not lose his jurisdiction over the cause. If the motion is overruled the ruling is simply erroneous. The judgment subsequently rendered is not void for want of jurisdiction. It follows that upon the appeal of this cause to the district court that court acquired jurisdiction, and that the motion to dismiss the appeal was properly overruled.

2. The motion to remand the cause to the mayor, for an order setting aside the judgment and granting a change of venue, was properly overruled. This proceeding is in the nature of a criminal action. An appeal to the district court brings up the cause for trial anew. An appeal can not operate as a writ of error. Code, §§ 506 and 4702. ·

3. The demurrer assails the validity of the ordinance under which the defendant is prosecuted. The ordinance provides for licensing the sale of beer, wine or other liquors, the sale of which is not prohibited by statute, and that a person convicted of violating certain of its provisions shall be fined not les than five nor more than twenty dollars, or imprisoned not more than 30 days, and that his license shall be forfeited. It is insisted that the city has no authority to forfeit a license for the violation of the ordinance under which the license

was granted. This point was ruled adversely by the defendant in Hurber v. Baugh, 43 Ia. 514.

4. It is claimed that the court erred in admitting in evi

dence a book claimed to be the ordinance book of Ottumwa. When the book was offered the defendant objected that it had not been shown by proper testimony that it was the ordinance book of the city of Ottumwa. A policeman familiar with the book testified that it was the ordinance book, and that the signature to the ordinance in question was that of the mayor. There was no error in admitting the book.

5. It is insisted that the judgment of the court is contrary to the law and the evidence, in that the evidence utterly fails to show a criminal intent, or a substantial and wilful violation of the ordinance. In our opinion the evidence sustains the judgment of the court.

Affirmed.

UNION AGRICULTURAL SOCIETY, Appellant, rs. THOMAS G. GAMBLE and another, Appellees.

Filed December 8, 1879.

Facts in this case considered, and he'd that the action was commenced in the name of plaintiff without authority, and is wholly unauthorized.— ED.

Appeal from Clinton circuit court.

The Union Agricultural Society was the owner of a tract of land near Wheatland, Clinton county, Iowa. It executed a mortgage thereon to secure the payment of a certain sum of money. The mortgage was foreclosed, and the defendants became the purchasers of the land at the foreclosure sale for an amount largely in excess of what was necessary to pay off the mortgage, interest and costs. The sale was made without redemption. The defendant Gamble was at the time the treasurer of said society. This action was brought to set aside the conveyance made by the sheriff to the defendants upon the alleged ground that the same was fraudulent as against the society, and for a decree quieting the title in the plaintiff, and praying that an account be taken between the plaintiff and defendants, and that, upon such accounting, the defendants be required to pay to plaintiffs such balance as may be found to be due. There was an answer which fully controverted the allegations of the petition, and upon a trial the petition was dismissed. Plaintiff appeals.

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J. Stine and J. H. Flint, for appellants.

A. J. Leffingwell and A. R. Cotton, for appelles.

ROTHROCK, J. The first question to be determined, and, indeed, the question which it seems to us is decisive of this case, is, was this suit authorized to be brought by the plaintiffs? The point is fairly made in the pleadings and in the arguments of counsel. To determine it so that our conclusion may be fairly understood by the reader, it is necessary that we should give somewhat of a history of the organization and proceeding of the society. At the organization what was called a constitution was adopted. Section 1 provided that, "the society shall be composed of such citizens as shall signify their wish to become members thereof by recording their names and paying the sum of one dollar into the treasury, and one dollar annually thereafter.

Afterwards this section was amended by adding thereto these words: "And any person may become a life member by paying into the treasury the sum of $10."

On the fourteenth day of January, 1871, at an adjourned special meeting of the society, the following resolution was adopted:

"Resolved, That section 1 of the constitution be repealed, and there be enacted in lieu thereof the following:

"Section 1. This society shall consist of such persons as will pay the sum of $10 into the treasury, which shall constitute a life membership, which shall be negotiable by transfer upon the books of the secretary."

The sheriff's sale upon the mortgage foreclosure was had on the twenty-second day of July, 1871. The defendants were the purchasers at the sale. The amount for which the property was sold was $1,560. The amount necessary to discharge the mortgage was about $569, leaving a balance due the society of about $980. This amount was not paid, and the defendant Gamble executed a receipt therefor to the sheriff. The effect of this transaction was that the defendant Gamble was chargeable, as treasurer, for the amount of such balance.

On the eighteenth day of August, 1871, there was a meeting of the society. At that time there were in all twenty life members. Fourteen of these were present at the meeting. The record of the society shows that the following proceedings. were had:

"President then stated the object of the meeting-the grounds and property belonging to the society having been

sold without redemption on a mortgage held by Mr. Koch, of Davenport, and purchased by C. G. Rogers and Thomas Gamble, and they were having a deed for the same on record in the recorder's office of Clinton county-was to take into consideration the disposition to be made of the effects of the society. Thomas D. Gamble stated to the meeting that C. G. Rogers and himself had attended the sale of the property, and purchased the same for the sum of $1,560; that the amount of the mortgage, with interest and costs, amounted to $569.70. Messrs. Gamble and Rogers made the following proposition: First, that for the amount of $100, (amount of their expenses attending sale of property,) and amount paid by them for the property, they would deed back to the society the property which they had purchased; second, that they would give the sum of $25 for life membership tickets, the same to be transferred to them on the books of the secretary. Whereupon the following persons transferred their right and title to life membership tickets to C. G. Rogers and Thomas D. Gamble."

Here follows a list of thirteen life members, including the name of the president of the society. Afterwards all of the other life members, excepting J. Stine, assigned their membership tickets to Gamble and Rogers, each life member receiving from the defendant $25 for his membership ticket. There were some other debts of the society which Gamble and Rogers afterwards paid. Every life member who sold his membership must have understood that the transaction was a virtual abandonment of the organization and a distribution of its assets among the life members. It is contended by appellant that the amendment to the constitution excluding all but life members was not made at the annual meeting, as provided in the constitution. Admit this to be correct, and yet in cannot be denied that the life members were legitimate members of the society, as well as the annual or dollar members, and there is no evidence that there were any annual members at the time this action was had. One dollar entitled a person to membership for one year from the time he paid the same into the treasury, and the only evidence we have upon the subject shows that the last dollar memberships were sold in 1868.

It follows, then, that this county consisted of 20 life members, and 19 of that number, in 1871, transferred their membership tickets to the defendants, in pursuance of the action of a meeting of the society called for the purpose of taking