into consideration the disposition of the effects of the society. There has never been a meeting of the society since that time; no officers have been elected, and the only member who is not estopped by the transfer of his membership from questioning the ratification of the purchase of the property of the defendants is Jessie Stine. This being the situation of the parties, it may well be inquired who authorized the commencement of this suit. That it was authorized by any act of the society, as such, is not claimed. The defendants, by their purchase of the membership tickets, represent 19-20ths of the society, so to speak, and Stine 1-20th. So long as those who assigned their membership tickets take no action to repudiate the settlement made by them, upon the ground of fraud or otherwise, no other person can make complaint for them, nor institute suits in their behalf in the name of the society.

It must be conceded that all of the life members but one, with a full knowledge of all the facts, took their $25 as their share of the proceeds of the sale of the property, and are content, and that as members and officers of the society they understood and intended that the ratification of the sale thus made was an end of the society as an organized body That Stine, who was a life member, and was not present at the meeting, and has not entered into the arrangement for the disposition of the effects of the society, was not bound by the action of the other members, may be conceded. Whether he could have maintained an action in his own name against the defendants for his share of the property of the society need not be determined in this action; and whether the society was dissolved and at end for all purposes when the sale of the property to the defendants was ratified, and the membership tickets were assigned to defendants, we need not determine. It is enough that we find, as we do, that the society did not authorize this suit to be brought.

Having determined the case upon the single ground that there was no authority to institute the action, it is unnecessary to determine whether the defendants fraudulently combined to purchase the property. Indeed, if we were required to determine that question, it would seem to be quite immaterial what their previous conduct had been, when it appears that they made a true statement of their purchase to the meeting of the society, and offered to convey the land to the society upon payment of the mortgage and their expenses. Affirmed.

CHARLES SCHERMER, Appellee, rs, JULIUS GENDT, Appellant. Filed December 8, 1879.

Verdict in this case held not to be so unsupported by the evidence as to justify a reversal.—[Ep.

Appeal from Muscatine circuit court.

This is an action to recover damages for a personal injury. It is averred in the petition that the defendant is the owner of a meat market and butcher shop, and that he employed the plaintiff to repair an ice-box situated in said shop, and that in the course of his employment, and while attempting to get upon the said ice-box for the purpose of repairing the same, plaintiff slipped and fell, without any negligence upon his part, and in falling struck upon the knives of a large sausage cutter, weighing several hundred pounds, which, through the carelessness and negligence of the defendant, was left lying near said ice-box with the knives exposed; that plaintiff's arm and wrist were so severely cut by the knives of said sausage cutter as to disable him for life. There was an answer in general denial, and also alleging that there was contributory negligence upon the part of the plaintiff. Upon a trial by jury a verdict was found for the plaintiff. A motion for new trial was overruled, and judgment was rendered upon the verdict. Defendant appeals.

Cloud & Cloud, for appellant.

Hoffman, Pickler & Brown, for appellee.

ROTHROCK, J. It is doubtful whether the errors are assigned with the required exactness; but as there is but one question presented, and that is whether the verdict finds sufficient support in the evidence, we will pass the question made as to the assignment of errors by counsel for appellee, and dispose of the case upon its merits. It must not be forgotten that this court is not a tribunal for the trial of law actions de novo. It is therefore useless to argue that a verdict is not supported by a preponderance of evidence. We cannot disturb the verdict unless it is so barren of support in the evidence as to warrant the finding that it was the result of passion or prejudice.

In the light of this rule, which has been so often announced, we cannot say as matter of law that the plaintiff was not entitled to recover. There was evidence tending to show that he was engaged in repairing the ice-box one day and part of another day. Upon the first day he observed the sausage

cutter with its knives turned upwards close by the ice-box where he was at work, and something being said about it to the defendant, plaintiff moved it into such a position that the knives were down. On the next day, when about finishing the work, he went near to the cutter and stood upon a bench, and while engaged in planing he fell upon the cutter, which had been turned with the knives up, and thus received his injury. He supposed the knives were turned downward, as he had left them the day before, and, therefore, did not look to assure himself that there was no danger. Plaintiff testified that "it was tolerably dark in the room." We do not say that this is the substance of the evidence, without conflict, but that there was evidence from which the jury may have found the foregoing facts. Counsel for appellant insists that there was the same necessity for plaintiff to have been on the alert for danger as applies to one crossing a railroad track. But the circumstances are different. A person about to cross a railroad track must be required to apprehend the danger consequent upon an approaching train. In this case there was nothing to excite apprehension of danger. The knives were turned downward the day before, because they were thought to be dangerous, and this the defendant knew. The plaintiff, therefore. was not put upon his guard to look for danger which he had no reason to suppose existed. The judgment must be affirmed. Plaintiff presents a certified copy ef the supersedeas bond, and moves for a judgment thereon in this court. Judgment will be entered in accord with the motion. Affirmed.

CATHARINE SCHMELTZ, Appellee, rs. MATHIAS SCHMELTZ,

Appellant.

Filed December 8, 1879.

On appeal in an action for divorce where all the evidence is not returned it can only be considered on errors assigned and excepted to in the court below. The manner of trial in an action commenced prior to enactment of chapter 145, Acts Seventeenth General Assembly, is not affected by such act. No error being excepted to in this case, decision of court below is affirmed.—[ED.

Appeal from Muscatine district court.

Action in chancery for a divorce and alimony. There was a decree granting the relief prayed for, and certain lands owned by defendant were set apart for the alimony of plaintiff. Defendant appeals.

G. G. Carstens, for appellant.

J. Carskaddan, for appellee.

BECK, C. J. 1. Upon motion of plaintiff the defendant. was required by a proper order of the court to pay $20 per month for the support of plaintiff, and $50 to enable her to prosecute this action. With this order defendant failed to comply. Thereupon the answer of defendant was, on motion of plaintiff, stricken from the files, because of his default and contempt in disobeying the order of the court and failing to render any excuse therefor. Thereupon the cause was submitted to the court upon the petition of plaintiff and the testimony of witnesses examined in court. A decree was rendered granting the relief prayed for by plaintiff. Certain lands were set apart to her as alimony. There were no exceptions taken to the rulings and decree of the court, and the record before us contains no part of the testimony upon which the case was tried. The plaintiff assigns errors assailing the ruling of the court striking defendant's answer and the decree.

2. The cause cannot be tried here de noro, for the reason that the evidence is not found in the record; but it may be tried upon errors assigned as a case at law. Jordon v. Wimer et al. 45 Iowa, 65. Being so tried it is subject to the rules governing the trial of cases at law, which are submitted on errors assigned upon the records. Snowden v. Snowden, 23 Iowa, 437; Jones v. Clark, 37 Iowa, 587; Lynch v. Lynch, 28 Iowa, 326; Mollory v. Liscomb et al. 31 Iowa, 269. In such cases we will consider no ruling which was not the subject of proper exception in the court below. This is a familiar rule and of constant application. It is recognized by many decisions of this court. See Withrow & Stiles' Digest, p. 957, § 509, where many of the decisions are collected. The reasons upon which this rule is based require its application to equity cases tried upon errors in this court. In all cases so tried this court reviews the decisions of the court below. It is the duty of the parties to direct the attention of the court below to objections to decisions, if they exist, to the end that they may be considered and determined. This is necessary for the fair and correct administration of justice in the trial of a chancery action, as well as actions at law.

3. We have considered this case under the law as it existed prior to the repeal of the Code, § 2742, and the substitution therefor of chapter 145, Acts Seventeenth General Assembly. Whether, under the change in the statute wrought

by the last-named act, chancery cases may be tried in this court upon errors, we need not determine. If it shall be found that they may not be so tried this would not dispose of the case, for we are of the opinion that it is not affected by the last-named statute, having been commenced prior to its enactment. The change relates to the manner of trial. The right to a trial in a manner secured by statute is not taken away by the repeal thereof. Code, § 45, p. 1. Brotherton v. Brotherton, 41 Iowa, 112; Wadworth v. Wadworth, 40 Iowa, 448. We think, under the statutes and decisions of this court applicable to the case, it is triable in this court upon errors assigned upon the record in the same manner as an action at at law. But as no exceptions were taken to the rulings and decision of the court below, they cannot be reviewed upon this appeal. The decree of the district court, therefore, must be affirmed.

J. C. COOPER, Appellant vs. H. G. FRENCH, Administrator,

Appellee.

Filed December 8, 1879.

In an action to vacate a sheriff's certificate the petition averred in a separate paragraph "that there was no valid sale of the property as the law provides, and that there was no compliance with the law after the property was offered for sale." Held, properly stricken out. Failure of the sheriff to file his return of the sale of lands on execution within the year of redemption will not invalidate the sale. A fraudulent agreement that such retura should not be made until after the year, will at most only affect the right of redemption. If the debtor is credited with the amount of the bid at foreclosure sale, he cannot complain if no money was actually paid.—[En.

Appeal from Montgomery district court.

Action in equity to set aside a sheriff's deed. The plaintiff was the owner of the premises in question, and had executed a mortgage thereon to the defendant's intestate. The defendant foreclosed the mortgage, and caused an execution to be issued and placed in the hands of the sheriff, who advertised the property and made a return of sale, and at the expiration of one year from the time of sale, as stated in the return, executed a deed to the defendant as purchaser. The questions in the case arise upon sustaining the defendant's motion to strike out a portion of the petition, and upon sustaining the defendant's demurrer to the remainder of the petition. Judgment being rendered for the defendant, the plaintiff appeals.