each case. The defendants in each case appeal.

Theo. Hawley, for appellants. Albert E. Clarke, for appellee.

ROBINSON, J. The plaintiff claims title to the tracts of land involved in the three actions by virtue of the act of congress, approved September 28, 1850, and acts of the general assembly of the state of Iowa, relating to swamp land. Defendants claim title by virtue of the act of congress approved May 15, 1856, granting to the state of Iowa certain lands to aid in the construction of a railroad from Dubuque to a point on the Missouri river near Sioux City and other roads, and by virtue of acts of the general assembly of the state of Iowa. The district court found that plaintiff was the owner of the land involved in each action, and quieted his title thereto as against defendants.

1. All the legal questions discussed by appellants were involved in the cases of Connors v. Meservey, 76 Iowa, 691, 39 N. W. Rep. 388, and Snell v. Railroad Co., 42❘ N. W. Rep. 588, and were decided adversely to the claims now made by appellants. We will not, therefore, consider them fur

ther.

2. The evidence submitted shows that the tracts of land in question were of the character contemplated by the act of congress of September 28, 1850, referred to, and the swamp land acts of the general assembly of the state of Iowa, and that the title thereto passed by virtue of those acts, and that plaintiff is the owner thereof. The decree of the district court is in each case affirmed.

(80 Iowa, 216)

DE LONG V. WILSON.

(Supreme Court of Iowa. May 21, 1890.) OFFER TO CONFESS JUDGMENT-REFUSAL-COSTS. In an action for assault and battery, where defendant serves on plaintiff an offer in writing to allow judgment to be taken against him for $25, "to be a final settlement of the cause, " and plaintiff refuses to accept the offer, and after trial has verdiet for only $19, judgment should be against him for all costs accruing after the offer, as provided by Code Iowa, $ 2000. Quinton v. Van Tuyl, 30 lowa, 554, distinguished.

Appeal from district court, Mahaska county; W. R. LEWIS, Judge.

This is an appeal from an order made on a motion to retax costs. The facts appear in the opinion. The plaintiff appeals.

Bolton & McCoy and Blanchard & Preston, for appellant. W G. Jones and J. F. & W. R. Lacey, for appellee.

ROTHROCK, C. J. It appears from the record that the plaintiff brought an action against the defendant, claiming a large sum as damages for an alleged assault and battery committed by the defendant on the person of the plaintiff. In December, 1888, the defendant answered the petition by a general denial. On the 2d day of May, 1889, the defendant served a notice on the plaintiff, offering to allow Judgment to be entered against defendant. |

The following is a copy of the notice: "District court in and for Mahaska coun

ty, state of Iowa. E. F. De Long vs. E. M. Wilson. April term, 1889. To E. F. De Long, or Bolton & McCoy, his attorneys of record: The above-named defendant, E. M. Wilson, hereby offers to allow judg ment to be taken against him in the above-entitled cause for the sum of twenty-five dollars, with costs to date; said amount to be a full settlement of the above cause. This is an offer of compromise under sec. 2900 of the Code of Iowa. E. M. WILSON, J. F. & W. R. LACEY, and W. G. JONES, His Attorneys." The offer was not accepted. The cause was tried to a jury, and resulted in a verdict for the plaintiff for $19.50. The court entered a judgment against the defendant for the amount of the verdict, and a judgment against the plaintiff for the sum of $287.50, which included all of the costs which were made or accrued after the date of the service of the notice. The plaintiff excepted to the judgment against him for said costs, and excepted to the overruling of a motion to retax the same. Section 2900 of the Code, to which reference is made in the motion, so far as material to the rights of the parties in this case, is as follows: "The defendant in an action for the recovery of money only may at any time after service of notice, and before the trial, serve upon the plaintiff or his attorney an offer in writing to allow judgment to be taken against him for the sum of money or to the effect therein specified, with costs. ... If the plaintiff fails to obtain judgment for more than was offered by the defendant, he cannot recover costs, but shall pay the defendant's costs from the time of the offer." The plaintiff bases his objection to the taxation of the costs upon the ground that the offer was not an unconditional offer to confess judgment for $25. The contention is that the offer, in so far as it provides that it shall" be a full settlement of the above cause," is a condition to the judgment which the defendant offered to allow the plaintiff. We think this an erroneous construction of the language of the offer. If the plaintiff had accepted the offer, judgment would have been rendered against the defendant, and that judgment would have been a full and complete settlement of the suit, just as was stated in the offer. The question is quite different from that decided by this court in Quinton v. Van Tuyl, 30 Iowa, 554, on which plaintiff's counsel rely. In that case the defendant did not offer to confess judgment nor to allow judgment to be entered against him. He offered to pay the plaintiff $50 if the plaintiff would agree to dismiss the suit and not persecute further. It was neither an offer to allow judgment to be entered, nor a tender. It was a mere promise on defendant's part to pay $50 if the plaintiff would agree to dismiss the suit. We think the offer was plainly in accord with the statute, and that the court did not err in rendering a judgment against plaintiff for the costs in dispute. Affirmed.

(80 Iowa, 218)

TAUTLINGER V. SULLIVAN. (Supreme Court of Iowa. May 21, 1890.) TRESPASS-PASTURAGE BY CROPPER-INJUNCTIONAPPEAL.

1. Under Code Iowa, § 2015, one who cultivates land as a field tenant or cropper has no right to pasture the land before corn raised thereon is husked and removed, nor in any event after December 1st.

2. The owner of such land is entitled to an injunction against trespass by the cropper in pasturing the land, in order to avoid multiplicity of suits.

3. Where defendant appeals from an order perpetuating such injunction and files the first argument, unless good reason is shown for his doing so, appellee's final argument in reply will not be stricken out, it being the right of plaintiff, on appeal in an equity cause, to open and close.

Appeal from district court, Johnson county; S. H. FAIRALL, Judge.

The plaintiff is the owner of a farm, and the defendant cultivated part of the same in corn and oats in the year 1887, and agreed to deliver to the plaintiff two-fifths of the grain raised. In the month of November of that year the corn was not all gathered, and the defendant turned some cattle on the land, intending to allow them to run upon that part where the corn had been husked, but they escaped, and destroyed some of the crop. The plaintiff turned the cattle off the farm, and the defendant drove them back. This action was commenced to enjoin the defendant from breaking down fences and gates, and driving cattle upon the land to graze and pasture, and from removing corn from the Íand until the landlord's share was delivered, and from entering upon the land for any purpose after December 1, 1887. A temporary injunction was issued prayed, which, upon a final hearing, was made perpetual. Defendant appeals.

as

Rank & Wade, for appellant. Melton Remley, for appellee.

ROTHROCK, C. J. 1. The parties differ as to the terms of the contract upon which the land was farmed. The defendant claims that he had the right to pasture the land after the removal of the crops, and the plaintiff claims there was no such right. It appears to us that it is fully established by the evidence that the defendant occupied the part of the farm which he cultivated as a field tenant or cropper, and that under section 2015 of the Code he had no right to use the land as a pasture after the crop was removed, nor in any event after December 1st. See Kyte v. Keller, 76 Iowa, 34, 39 N. W. Rep. 928. And there was no right of pasturage before the crop was harvested.

2. This is about all that is necessary to be determined in the case. It is true the defendant makes the question that the plaintiff was not entitled to an injunction, because it is claimed that it is not shown that the threatened damage would be irreparable, nor that the defendant was insolyent. This was not necessary. The plaintiff was not required to bring an action at law every time his gates were opened or his fences torn down, and cattle turned into his fields. He had the right to an injunction to prevent a multiplicity of suits. Ladd v. Osborne, 44 N. W. Rep. 235.

3. Appellant filed a motion to strike the argument of appellee in reply. It will be overruled. This is an equity cause, and it was the right of the plaintiff to open and close the argument. It is true the appellant's argument was the first argument filed. There might be ground for the motion if the appellant for good reason filed the first argument. This, defendants, being appellants, in equity cases are sometimes compelled to do, to the end that a submission may be had. But it does not appear that such was the case in this instance. The decree of the district court will be affirmed.

A petition for a writ of mandamus to compel a school board to remove a privy situated across the street from petitioner's house, which is an injury to him, is demurrable, where it does not state the cause of the injury to petitioner, but only alleges that such privy has been declared by the board of health a nuisance, and dangerous to the public health.

Appeal from district court, Benton county; GEORGE M. GILCHRIST, Judge.

This is a proceeding for a mandamus. The petition was dismissed upon a judgment sustaining a demurrer thereto. Plaintiff appeals.

Tom H. Milner, for appellant. J. J. Mosnet, for appellee.

BECK, J. 1. The petition alleges that the defendants constitute the school board of the independent district of Belle Plaine,. which maintains a large privy for the use of the school on or near public streets of the city, and just across the street from plaintiff's residence, and in plain view thereof; that the city council, as a board of health, declared the privy to be a nuisance, and dangerous to the public health, and ordered its removal. Plaintiff alleges that the privy is "unsightly," and that he has sustained injury, resulting in damage, by reason of the refusal of defendants to remove it. He does not allege that it is a nuisance in fact, nor point out the cause or source of injury sustained by him on account of the failure of defendants to remove the privy.

2. Surely the order of the city council as the board of health, declaring the structure a nuisance and dangerous to public health, is not conclusive, as between plaintiff and defendant, and bestows upon him no rights which he may enforce by action against defendant, without establishing such right by proof showing the privy to be a nuisance, working injury to plaintiff or his property. It must be remembered that neither the city board of health nor the school-district is attempting to enforce the order of the board of health, based upon its adjudication that the structure is "dangerous to public health;" nor does plaintiff in this case for the public seek to enforce the order of the board of health, for the protection of the public health, but, as we understand the abstract, he seeks to enforce the order on the ground

that the objectionable structure is "unsightly," and situated "just across the street from his own residence. The The grounds upon which plaintiff seeks to enforce the order are not for the protection of the public, but for the protection of his personal rights, and the recovery of damages for their violation. The board of health was not created by statute to protect and enforce private rights, and to provide a remedy to recover damages for the deprivation of such rights. Their orders are to be made and enforced for the protection of the public health. Plaintiff mistakenly sought to enforce a remedy for an individual injury by this proceeding in mandamus to require obedience to the order of the hoard of health. The district court rightly sustained the demurrer to plaintiff's petition. Affirmed.

(80 Iowa, 253)

PEORIA STEAM Marble WORKS V. LINESENMEYER et al.

(Supreme Court of Iowa. May 23, 1890.) APPEAL SUFFICIENCY OF EVIDENCE-RECORD.

On an appeal from a judgment on the ground that there was not sufficient evidence to support ft, where the abstract contains the following language, "certificate of the judge and reporter that It was all the evidence introduced or offered at the trial," the supreme court cannot regard the abstract as setting out all the evidence, though counsel for appellee waive objection on that ground, and the appeal will be dismissed.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Action in chancery to recover judgment on notes and an account against one of the defendants, and for a decree to subject to the judgment certain notes given to the other defendant, the wife of the maker of the notes, and to enjoin him from transferring them. There was a judgment and a decree for plaintiff. The wife appeals. Sheerley & Clark, for appellant. Tracy & Mercer, for appellee.

BECK, J. 1. The maker of the note, against whom judgment was rendered, urges no objection thereto. His wife, who claims property in the notes sought to be subjected to the judgment, alone objects to the decision of the court below, on the ground that there was no proof of fraud, nor of the insolvency of debtor, and that the evidence on other points is insufficient. The case is not in a condition for decision by this court. The abstract fails to show that we have all the evidence before us. It contains this language, and nothing more, referring to this matter: "Certificate of judge and reporter that it was all the evidence introduced or offered on the trial." We presume it is intended to say that the judge and reporter certified that the evidence in the record was all the evidence introduced or offered on the trial; but it is not said, nor can we infer, that all the evidence in the record is set out in the abstract. We have repeatedly held that statements of the character above quoted are not sufficient to authorize us to regard the abstract as presenting all the evidence, and to decide the case accordingly.

2. Counsel for plaintiff briefly stated this

| objection in their printed argument, but erased it in the copy filed in this case. By this we understand that counsel waive the objection. But we cannot, even with counsels' consent, try cases de novo unless we have all the evidence before us. We have no jurisdiction, in cases of this character, except to try them de novo upon all the evidence submitted to the courts below. If counsel for plaintiff had filed in this case a stipulation stating that the abstract does contain all the evidence introduced or offered in evidence in the court below, the case would have been different, and we would have disposed of it on the merits. The judgment of the district court is affirmed.

(80 Iowa, 316)

CHAVANNES V. PRIESTLY. (Supreme Court of Iowa. May 28, 1890.) DUE PROCESS OF LAW-PERSON ADJUDGED INSANE WITHOUT NOTICE.

1. Code Iowa, § 1400, provides that if the commissioners of lunacy, after preliminary inquiries as to the condition of one sought to be adjudged insane, shall be of the opinion that his presence during the investigation would be injurious to him, or without advantage, they may dispense therewith. No provision is made for service of notice upon him in such case, but in all cases a practicing physician must make a personal examination, and certify his finding to the commissioners, and any person may appear and contest the question of sanity. Held, that one who is thus adfudged insane without notice, and committed to an asylum, is not deprived of his liberty without due process of law.

2. A person who is under guardianship in accordance with such adjudication, without notice, cannot maintain an action for slander in his own

name.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

The plaintiff is an attorney by profession, and the defendant is a physician. Both are residents of the city of Des Moines. In September, 1888, the plaintiff filed his petition, alleging that the defendant said of and concerning him: "Chavannes is insane; Chavannes is not in his right mind, [meaning that the plaintiff was crazy, and unfit to attend to his business as an attorney.]" The defendant's answer is in four divisions, averring, in substanceFirst, that the plaintiff had been by the commissioners of insanity of Polk county adjudged insane and ordered confined at the asylum at Mt. Pleasant, which judgment or order had never been set aside or canceled, nor the plaintiff released or discharged from such custody, and that at the commencement of this action he was in the custody of Mrs. Carrie Chavannes, as his guardian, by order of said commissioners, and that the action must be abated; second, a general denial; third, that at the time of speaking the words charged he was the medical adviser of the plaintiff, and that the words were spoken to persons in care of plaintiff, in the discharge of his duties, or by him as a witness under oath; fourth, that the statements were true. The plaintiff, for reply to the first division of the answer, denied the statements, and says that if true they are of no force or effect, for the reasons (1) that he had no notice of the pendency of the

proceeding before the commissioners, and was not present in person, or represented by an attorney; (2) that Mrs. Carrie Chavannes had never been duly appointed as his guardian; (3) that the act creating the board of commissioners of insanity is void, in this: that it provides for no notice of such actions, and that the effect is to restrain a person of his liberty without due process of law. By stipulation, the issues presented by the first division of the answer and the reply thereto were submitted to the court without a jury, and the record of the commissioners put in evidence, and upon its examination the district court sustained the plea in abatement, and dismissed the action; and from a judgment favorable to defendant the plaintiff appealed.

Appellant, pro se, and by Carpenter & Evans. Read & Read, for appellee.

GRANGER, J. The range of the arguments embraces many questions that do not arise upon the record before us. The district court held the plea in abatement good. If it erred, the cause must be remanded for further proceeding, and its judgment had on other questions presented in argument before we are to consider them. The commissioners' record before us unmistakably shows that inquiry was instituted upon a complaint duly made, and the plaintiff adjudged insane, and by the commissioners' order he was placed in the insane hospital for care and treatment; that the commissioners thereafter, upon application of his wife, ordered his removal from the hospital, and placed him in her custody. These proceedings were by the commissioners had in the absence of the plaintiff, and without notice to him. The district court held, and correctly, that no notice was required under the statute in such a proceeding, and hence we are brought directly to the important question in the case, if the statute, in so far as it authorizes such a proceeding in the absence of a party and without notice to him, is void.

Such a question could not well be considered, in the absence of the law showing the exact facts or conditions under which it authorizes jurisdiction. These proceedThese proceedings are provided for in a chapter of the Code on the subject "Of the Care of the Insane," which provides for the regulation and control of the several hospitals for that purpose, and of the manner of admitting subjects thereto, and determining their fitness therefor. In each county there is organized a board of commissioners of insanity of three members, viz., the clerk of the court, by virtue of his office, and a respectable practicing physician, and lawyer, whose duty it is to hear complaints and determine the questions presented, and upon whose order proper subjects may be admitted to the asylum. Applications for such admission are made in the form of informations under oath. The particular facts under which jurisdiction is taken, and determination had, are shown by Code, § 1400, as follows: "Sec. 1400. On the filing of such information, the commissioners may examine the informant under oath, and, if satisfied that there is reasonable

cause therefor, shall at once investigate the grounds thereof. For this purpose they may require that the person for whom such admission is sought be brought before them, and that the examination be had in his presence; and they may issue their warrant therefor, and provide for the suitable custody of such person until their investigation shall be concluded. Such warrant may be executed by the sheriff or any constable of the county; or, if they shall be of opinion from such preliminary inquiries as they may make,-and in making which they shall take the testimony of the informant, if they deem it necessary or desirable, and of other witnesses if offered,-that such courts would probably be injurious to such person, or attended with no advantage, they may dispense with such presence. In their examination they shall hear testimony for and against such application, if any is offered. Any citizen of the county, or any relative of the person alleged to be insane, may appear and resist the application, and the parties may appear by counsel, if they elect. The commissioners, whether they dispense with the presence before them of such person or not, shall appoint some regular practicing physician of the county to visit such person, and make a personal examination touching the truth of the information, and the actual condition of such person, and forthwith report to them thereon. Such physician may or may not be of their own number; and the physician so appointed and acting shall certify, under his hand, that he has, in pursuance of his appointment, made a careful personal examination, as required; and that on such examination he finds the person in question insane, if such is the fact; and, if otherwise, not insane; and, in connection with his examination, the said physician shall endeavor to obtain from the relatives of the person in question, or from others who know the facts, correct answers, so far as may be, to the interrogatories hereinafter required to be propounded in such cases, which interrogatories and answers shall be attached to his certificate.

99

Of course, if the commissioners' warrant should issue, and the party is brought before the board, there would be both notice and presence; and the law seems to contemplate such presence, except if the board at the preliminary inquiry, when the information is filed, shall be of opinion therefrom that such course would probably be injurious to such person, or attended with no advantage, it may be dispensed with. Now, it is easy to imagine a case in which such presence could not with safety to the person be had, nor could such a hearing with safety be had in his presence, and such persons are those most likely to need the beneficial provisions of the law, and they must be deprived of them if there is a constitutional barrier to these proceedings in their absence, and without notice. assume, of course, that no importance is attached to an idle form of notice in such a case; as where it would not be under stood because of the infirmity, or the notice for any reason be merely formal. The law sometimes provides for these forma!

We