J. H. Keatly, for appellant.

Miller & Bartholomew, for appellee.

ADAMS, J. 1. The plaintiff averred in the seventh paragraph of his petition that "there was no such sale of the property as the law provides, and that there was no compliance with the law after the property was offered for sale." The defendant moved to strike out the paragraph, on the ground that it averred only a conclusion of law. The motion was sustained and the plaintiff excepted. He insists that the paragraph should be taken with other paragraphs which he claims contain averments of facts showing in what the illegality of the sale consisted. Whatever is numbered as a distinct paragraph should contain something more than a mere conclusion of law based upon statements of facts contained in some other paragraph. We think the court did not err in sustaining the motion.

2. The plaintiff averred, in substance, in the twelfth paragraph of his petition, that no return of the sale was made by the sheriff until the expiration of the year of redemption. The defendant moved to strike out the paragraph on the ground that the same was immaterial. In support of this allegation and in resistence to the motion the plaintiff insists that he was entitled to know, from a return properly made out, not only the fact that a sale had been made, but the time when it was made. If the sale had been legally made it would not become illegal and void by the failure of the officor to make a return of the sale during the year of redemption. Such failure would indeed be an irregularity, and if the execution debtor were injured by it the officer might, perhaps, be liable to him in damages. The mere failure could not, we think, have any other effect. If the return were purposely withheld by collusion with the execution creditor, and with intent to keep the execution debtor from redeeming, it might have the effect to give him a right to redeem after the year had expired. Hammersham v. Farrall, 45 Iowa, 462. But this action is not brought to redeem. In our opinion the court did not err.

3. The petition avers, in substance, that nothing was paid by the defendant as purchaser at the execution sale, and that it was fraudulently agreed between him and the officer, at the time of the sale, that nothing should be paid, and that the return should be withheld until the time of redemption should expire, and that it was thus withheld. The defendant demurred upon the ground that the petition did not state

facts sufficient to entitle him to relief, The court sustained the demurrer, and the plaintiff excepted.

It is not claimed that the plaintiff has not been credited with the full amount of the sale, and as of the proper date. This is all that he is entitled to in that respect. As to the agreement alleged to have been made at the time of the sale that no return should be made until redemption should expire, we have to say that such agreement, pertaining merely to proceedings subsequent to the sale, could not affect the sale, but only, at most, plaintiff's right of redemption. The demurrer, we think, was properly sustained.

Some other errors are assigned, but they are covered, we think, by the views which we have expressed.

Affirmed.

T. C. PENN, Appellee, rs. WM. M. PELAN, Garnishee, etc.,

Appellant.

Filed, December 8, 1879.

A party has a right to have a garnished appear and submit to an examination; and where, upon service. a garnishee failed to appear, but in lieu thereof filed a sworn answer denying all indebtedness, or that he had any property under his control belonging to defendant, held, that the same was properly stricken out, and he not having appeared or offered to appear at any time for examination, plaintiff was entitled to judgment.-[ED.

Appeal from Harrison circuit court.

The garnishee filed an answer, duly sworn to, stating that he is not in any way indebted to the defendant P. D. Mickel, and does not owe him any money or property now due or to become due, and did not at the time of the service of the garnishee proceeding; that he has not, and at the time of the service of the garnishment had not, in his possession or under his control any property, rights or credits of said Mickel, and that he does not know of any debts owing to said Mickel, or any property, rights or credits belonging to him, and now in the possession or under the control of others. Afterwards he filed a motion to be discharged upon his answer.

The plaintiff then filed a motion to strike the garnishee's answer from the files, and for judgment, and as grounds of such motion he stated that the garnishee was duly served with written notice, and was paid his fee in advance, and by notice was required to appear in person, on the first day of the term, and to answer such questions as might be propounded to him; that he has failed to appear in person, as the statute required, and that he is in default by reason thereof.

The motion of the garnishee to be discharged, and the motion of the plaintiff to strike from the files the garnishee's answer, and for judgment, coming on to be heard, the court overruled the garnishee's motion, and sustained the motion of the plaintiff to strike the garnishee's answer from the files, and reserved the plaintiff's motion for judgment, and allowed the garnishee to make a showing in excuse for his failure to appear in person. For such excuse the garnishee showed

that before the commencement of the term he removed to Chicago, where he still resides; that before removing he took the advice of his attorney, who informed and advised him that he could file an answer in writing which would obviate the necessity of his personal attendance, and that he relied upon such information and advice. The court held the excuse to be insufficient, and rendered judgment against him for the full amount of the debt, to all which rulings the garnishee excepted, and he now appeals.

P. D. Mickel, for appellant.

McMillan, Cochran & Bailey, for appellee.

ADAMS, J. It is the right of the garnishing creditor to personally examine the garnishee. Whether, upon a proper notice and showing, he may cause his answer to be taken before a person authorized to take depositions, we need not determine, as such question does not arise. The garnishee's answer, we think, was properly stricken from the files. If, when that was done, the garnishee had appeared and offered to submit to an examination, although not upon the first day of the term, it would have been improper to render judgment against him as for default. But no such appearance appears to have been made at any time. The plaintiff, therefore, was entitled to judgment. Code, § 2979.

Affirmed.

CHISTOPHER WEYMIRE, Administrator, Appellant, cs. J. J. WOLFE, Appellee.

Filed December 8, 1879.

Where a complaint against a saloon keeper by an administrator charged defendants with selling liquors to the intestate until he was intoxicated and helpless, and then expelling him from his saloon while in such condition, by reason of which his death was caused from cold and exposure, held, that the defendant could not escape liability for his wrongful act in expelling such intestate while in such condition, however negligent such intestate may have been in becoming so intoxicated.-[ED.

Appeal from Fremont circuit court.

The plaintiff is administrator of the estate of Joseph Dunn, deceased, and brings this action to recover for injuries alleged to have been caused to said Dunn by the defendant, whereby Dunn lost his life. The averments of the petition are, in substance, that the defendant, at the time of the acts complained of, was the keeper of a saloon; that Dunn was an habitual frequenter of the saloon; that the defendant sold him intoxicating liquor. which caused him to be intoxicated; and that while Durn was in a state of helpless and unconscious intoxication, caused by the wrongs of the defendant, he, the defendant, wrongfully expelled Dunn from his saloon at a late hour of the night; and that Dunn, being thus intoxicated, died of cold and exposure. There was a trial by jury, and evidence was introduced by the plaintiff tending to support the allegations of the petition. Afterwards the court gave two instructions in these words:

"1. The plaintiff in this suit, as administrator of the estate of Joseph Dunn, seeks to recover damages which he alleges to have accrued to said estate by reason of the sale by the defendant to Dunn, in his life-time, of intoxicating liquors, contrary to law.

"2. The evidence shows, without dispute, that whatever purchases of liquor, if any, were made by Dunn were made by him voluntarily, and no recovery can be had on account thereof by his administrator, because of his contribution to the injury, if any followed, and the laws of this state furnish no right of recovery in such case. Your verdict will, therefore, be for the defendant."

Verdict having been rendered accordingly, and judgment thereon, the plaintiff appeals.

Stow & Hammond, for appellant.

Wynn & Wynn, for appellee.

ADAMS, J. Whether, if Dunn had died solely from the use of the liquor, he would be deemed as having so far contributed to his death by his voluntary acts as to preclude a recovery, we need not determine.

The petition states, and the evidence tended to show, that Dunn was expelled from the saloon at a late hour of the night, drunk and unconscious, and died by reason of exposure and cold. If it should be conceded that Dunn contributed to his death by drinking until he became drunk and unconscious, it would not follow that the plaintiff would not be entitled to If a person lies down upon a railroad track in a state of helpless intoxication, the company will not be justified

in running a train over him, if it can be avoided in the exereise of reasonable care, after the person is discovered in his exposed condition.

If after that the company should be guilty of negligence, whereby the exposed person should be injured, the negligence of the company would be deemed the proximate cause of the injury. Morris v. The C., B. & Q. R. Co. 45 Iowa, 29. So if the defendant negligently subjected Dunn to exposure to his injury, knowing that he was unconscious, or even helpless, the defendant cannot escape liability on account of Dunn's negligence prior to the wrongful acts whereby Dunn was subjected to exposure, however great Dunn's negligence may have been in allowing himself to become intoxicated. We think that the instructions should not have been given. Reversed.

A. H. MISCHKE, Appellee, vs. CHARLES BAUGHN, Appellant. Filed December 8, 1879.

In an action for a breach of warranty in a deed of an entire lot, brought hy a subsequent grantee of a portion only of such lot, held, that he was entitled to recover only such proportion of the consideration money and interest as his portion of the lot hore to the entire lot; that the burden of proof as to what that proportion was, was upon plaintiff, and there being no proof upon such point it was error to allow him to recover the consideration paid for the entire lot.-[ED.

Appeal from Pottawattamie district court.

This is an action for the recovery of damages for an alleged breach of warranty in the sale of a portion of lot 149, in the original plat of Council Bluffs, commencing at the north-east corner of said lot and running westerly on Broadway 19 feet and 5 inches, and extending back the same width 813 feet, or half the distance from Broadway to Pierce street. The cause was tried by the court, and a finding of facts was submitted as follows:

"1. That on the first of June, 1867, defendant conveyed the premises described in the petition to Henry Treadway for $900, by deed, with covenants against encumbrances and warranting the title.

"2. That on June 14, 1867, Henry Treadway conveyed the same premises to the plaintiff.

"3. That at the time of conveyance of the premises by defendant to Treadway the taxes thereon for 1866 remained due and unpaid.