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& F., 149; Shay V. Water Co., 6 Cal. 286; | injure them in their trade or business. Since Steketee V. Kimm, 48 Mich. 322, 12 N. W. Achorn's Case was decided, there has been a 177. We are constrained to hold that this in remarkable change not only in public opinion, struction, in view of the circumstances dis- but in the law as well, regarding pools, comclosed by the record, should not have been binations, and trusts calculated to stifie comgiven. Appellee says, however, that the jury petition, control prices, or regulate the output did not follow the instruction, in that it of goods, and the law of libel must of necesawarded compensatory damages in the sum sity keep pace with public opinion as reflected of $1. It will hardly do to say that a verdict in the public prints as well as in legislation. for $1 is compensatory; but, if it be, this Conceding arguendo that the law is uncondoes not cure the error in the instruction. stitutional, and that defendant may attack The award may have been made in order it collaterally, it does not follow that it may that there might be no question as to who not be considered in determining the libelous should pay the costs without any reference character of the publication. to compensation to the plaintiff; but, if this For the errors pointed out, the judgment be not true, the vice of the instruction with must be, and it is, reversed. reference to mitigation of damages becomes apparent. That is to say, the jury may have concluded that the mitigating facts pleaded should be considered in reduction of actual
LEIFHEIT v. NEYLON. damages suffered. Upon no ground can the (Supreme Court of Iowa. July 7, 1908.) instruction quoted be sustained.
1. BOUNDARIES - ADJOINING PROPERTY Although we do not regard the proposition AGREED LINE- ACQUIESCENCE. involved in the case, it may be well to speak
M., owner of a city lot, in 1893 contracted
to sell plaintiff the west part of the lot, and in of defendant's claim that the article is not
1904 made her a deed for all the lot except the libelous per se. Plaintiffs were charged, or east 36 feet. In 1894 M. contracted to sell all at least the jury was authorized to so find,
the lot except the west 30 feet to S., describing
the property as being 34 feet wide at one end with entering into a pool to control the prices
and 42.6 feet at the other. Plaintiff went into in the hog market at Neola. The trial court
possession under her contract in 1893, and S. instructed that this charged them with a took possession of his part in 1894. Plaintiff's crime. Defendant contends that this is not
husband helped S. measure off the property
claimed by each, and together they constructed so, and cites in support of his contention
a fence on the line found by them between the Achorn v. Piper, 66 Iowa, 694, 24 N. W. 513. two parcels, after which s. erected a barn, to It is true that that case seems to so hold,
which the fence was joined, and both barn and
fence thereafter remained as originally placed. although not as broadly as defendant con
S. having defaulted and surrendered his contends. But sections 5000, 5061, and 5062 of tract, M. in 1899 contracted to sell defendant the Code, in force when the publication was the east 36 feet of the lot, and thereafter made
her a deed therefor, informing her that it was made, made pools and combinations to regu
36 feet in front and 42.6 feet in the rear; late or fix the price of any commodity a defendant understanding that she was to have crime. These statutes did not exist when the
| all up to the fence and the west side of the Achorn Case was decided. But counsel in
barn. Held, that the line of the fence and
barn so agreed on and acquiesced in, having resist that these statutes were and are uncon
mained for more than 10 years, constituted an stitutional and void, and that the law is in agreed division line. fact the same as when Achorn's Case was [Ed. Note. For cases in point, see Cent. Dig. decided. This contention overlooks the prop
vol. 8, Boundaries, $8 232-242.] er definition of libel, and, were we to concede
Plaintiff, having agreed on the line, and for the purposes of the case that the statutes
seen the barn erected with referonce thereto, are unconstitutional, it does not follow that and made no protest, nor claimed any more of plaintiff was not slandered and defamed not the property than was on her side of the fence, only in their business or trade, but in the
until the commencement of the suit to determine the boundary, was estopped to cla
sed to claim that eyes of the people. The Legislature in de
the fence did not mark the true boundary. claring the public policy of the state had spoken in an authoritative way, and although
Appeal from District Court, Polk County; the statutes may have been void because not
James A. Howe, Judge. uniform in their operation, or because of the
This is an action to determine the boundary
line between two parcels of land in the city Tarying degrees of punishment, the acts with
of Des Moines. The trial court established which plaintiffs were charged were none the less contrary to the public policy of the state
the line claimed by plaintiff, and defendant as declared by proper legislative authority,
appeals. Reversed and remanded. and the publication thereof would of necessi Sullivan & Sullivan, for appellant. George ty tend to expose plaintiffs to public hatred Harnagel and Clinton L. Nourse, for appellee. or contempt, and to deprive them of the benefits of public confidence or social intercourse. DEEMER, J. Appellee is the owner of a This latter is the definition of libel for civil | certain lot in the city of Des Moines, except as well as criminal cases. Morse v. Printing the east 36 feet thereof, and appellant is the Co., 124 Iowa, 713, 100 N. W. 867; Stewart owner of the east 36 feet of said lot. Each y. Pierce, 93 Iowa, 136, 61 N. W. 388. Mani- acquired ownership of their property by conTestly the words written of plaintiffs would | veyance from one L. M. Mann, who at one time owned the entire lot. The controversy , improvements made with reference to the Is over the boundary or division line between line as established by the barn and fence. these two parcels of land. There is a barn These facts clearly bring the case within the upon defendant's property, and a fence be rule announced in Miller v. Mills Co., 111 tween that owned by the respective parties Iowa, 654, 82 N. W. 1038, Kulas v. McHugh, to this action, which, if found to be on the 114 Iowa, 188, 86 N. W. 288, Laughlin V. true line, gives defendant a strip 36.33 feet Francis, 129 Iowa, 62, 103 N. W. 360, O'Calat one end and 42 feet at the other, leaving laghan v. Whisenand, 119 Iowa, 566, 93 N. plaintiff with a strip of 27.67 feet in width W. 579, Kitchen v. Chantland, 130 Iowa, 618, at one end and a little less than 30 feet at 105 N. W. 367, Younker v. White (Iowa) 111 the other. The conveyance, under which N. W. 824, Quade v. Pillard (Iowa) 112 N. W. plaintiff claims was made pursuant to a con 646, and other like cases, unless it be that, tract to convey the west 30 feet of the lot, as contended by appellee, neither Mann nor although the deed conveys all of the lot save any one for him ever recognized the barn and the east 36 feet. There is no doubt that the fence as being on the true line. barn and fence to which we have referred, if Stivers surrendered his contract with Mand treated as upon the line between these two after living upon the property for three or parcels of land, give to defendant more than four years, and Mann sold to defendant in the east 36 feet of the lot; but she claims November of the year 1899, reserving possesthat she is entitled to it, because, at the sion until February 1, 1900. When defendtime she purchased, this barn and fence were ant purchased from Mann, she was informed pointed out to her as being upon the true line that the lot was “36 feet in front and 42.6 between the two parcels of ground, and for the in the rear.” Defendant then asked if this further reason that the line so fixed had been would ever make any trouble, and was told recognized and acquiesced in by the respective that it would not. Although her deed and owners for more than 10 years before this contract conveyed but the east 36 feet, decontroversy arose.
fendant understood that she was to have all L. M. Mann was at one time the owner of of the property up to the fence and the west the entire lot. In the year 1893 Mann con side of the barn. It is argued for appellee tracted to sell the west part of the lot to that as Mann at all times owned the property, plaintiff and her husband, and in the year subject to the outstanding contracts, the 1904 he made a deed to plaintiff of all of doctrine of acquiescence does not obtain, for the lot, except the east 36 feet. In 1899 Mann the reason that he could not agree with him. made a contract with defendant to sell her self as to the boundary line. In some respects the east 36 feet of the lot, and thereafter this is true; but he could as owner lay off made her a deed of the property. It also ap bis ground into two tracts, and sell with pears that in the year 1894 Mann made a reference to his subdivision thereof. Viewcontract to sell all of the lot, except the west ing the case from one aspect, this is what he 3.) feet thereof, to one Stivers, and in that did. But we need not determine the case up contract he described the property as being on that theory. Mann sold to plaintiff and 34 feet in width at one end and 42.6 feet at her husband, and gave them possession in the other, although he was told that the prop the year 1893. He sold to Stivers, and gave erty was 36.2 feet wide in front and 42 and him possession in the year 1894. With the some tenths in the rear. Plaintiff went into presumed acquiescence of Mann, these parties possession under her contract with Mann in established the division line between their the year 1893, and Stivers went into posses pieces of property. Although he did not aesion of the property he had purchased in the quiesce, plaintiff, through her husband, and year 1891. Plaintiff's husband, who was one Stivers agreed upon a line, built a fence, and of the purchasers under the contract from erected a barn with reference thereto, and Mann, and who was in possession of the prem so far as plaintiff is concerned this line was ises contracted for by them, helped Stivers acquiesced in by her for more than 10 years measure off the property claimed by each, and as being the true one between the two pieces together they bought the material for the of property. Stivers regarded it as the true fence and erected it upon the line found by line so long as he lived upon the east part of them between the two parcels of ground. the lot, and when he surrendered the conStirers also erected the barn, to which the tract it is evident that Mann regarded it as fence was joined at the rear end of the lot, the true line, and pointed it out to defendant and Leifheit knew that Stivers was placing as such when he conveyed to her, although it opon what was thought to be the line be her deed did not call for more than 36 feet tween the two parcels of ground. This barn of the lot east and west. It was definitely and fence were erected in the year 1891, and stated to defendant that, although her deed hare since remained where they were original called for but 36 feet, she would have no ly placed. Defendant claims that she purchas- | trouble about the excess, for the manifest ed with reference to this line, and that the reason, no doubt, that down to that time lipe so established has been acquiesced in by plaintiff was not claiming that the fence was plaintiff, and also by Mann and Stivers, for | over the line and upon her ground. more than 10 years. After the erection of | If it satisfactorily appeared that after the the barn water mains were laid and other making of the contract with plaintiff, and after Stivers surrendered his contract, Mann , in explaining or qualifying the admissions sought intended to make another division of the lot, 1 to be established. we would have a very different question. But
[Ed. Note. For cases in point, see Cent. Dig. it does not appear that plaintiff, in taking her
1. vol. 16, Depositions, 88 276, 277.] deed, was getting anything more than her
P5. SAME-RIGHTS OF ADVERSE PARTY.
Where a party reads portions of the ancontract called for, nor does it appear that | swers to interrogatories contained in a deposidefendant was told she was to get but the tion to prove admissions by deponent, the adeast 36 feet. On the contrary, nothing seems
verse party may read the omitted portions of
the answers, the several portions of such anto have been said to plaintiff about the mat swers being more or less in direct relation. ter, and defendant was assured that she was (Ed. Note. For cases in point, see Cent. Dig. getting property to the line marked by the vol. 16, Depositions, $ 277.) baru and fence. Plaintiff is also estopped | 6. SAME-PARTIES ENTITLED TO USE DEPOSIfrom claiming the property in dispute, for the
A deposition taken under the issues in the reason that through her agent she agreed up
main case may be read in evidence by a crosson the line, saw the barn erected with ref petitioner for the purpose of proving admiserence thereto, and made no protest, and at
sions made by one of the deponents therein
who, prior to his death, was a party defendant no time, until the commencement of this suit,
to the action. did she claim any more property than was on [Ed. Note. For cases in point, see Cent. Dig. her side of the fence. When Mann took the vol. 16, Depositions, $8 237–241.) property back from Stivers, he accepted it 7. TRIAL – RECEPTION OF EVIDENCE-OBJECin the condition it was then in, and sold to TIONS-TIME TO OBJECT.
After evidence has been received and indefendant with reference to the boundaries
corporated into the record, it is too late to obmarked by the barn and fence. At no time ject thereto on the ground of incompentency. did he evince a purpose to make another sub [Ed. Note. For cases in point, see Cent. Dig.
n of the lot. Under the doctrine of vol. 46, Trial, 88 183-190.] estoppel, as well as by reason of recognition
8. SAME-STRIKING OUT EVIDENCE ADMITTED. and acquiescence, the boundary as fixed and
Where a cross-petitioner was permitted to
read portions of answers in the deposition of determined between plaintiff and Stivers
a deceased party to prove admissions by such should be regarded as the true one.
decedent, and defendant was then permitted to The decree should have been for the de
| read the omitted portions of the answers as
cross-examination, it was erroneous for the fendant, and the case must be remanded, in
court to thereafter declare that the portions of order that such a one, not inconsistent with the deposition read by defendant must be conthe issues tendered, may be rendered.
sidered as evidence in chief, and, on his denial
that the same was evidence in chief, to sustain Reversed and remanded.
a motion by cross-petitioner to strike from the
WITII PERSONS SINCE DECEASED.
In an action on partnership notes, in which et al.
M., who had assumed payment of and become
surety on the notes, was joined as a defendant, (Supreme Court of Iowa. July 9, 1908.)
the testimony of the surviving partner with ref1. APPEAL AND ERROR – RECORD-PRINTED erence to the partnership relation, and as to ABSTRACT-SERVICE
the manner of conduct of some of the business The matter of service of the printed ab- |
of the partnership was not, so far as M. or his stract on appeal is governed by rule 29 of the
representatives were concerned, within the proSupreme Court, providing that “at least 30
hibition of Code 1897, § 4604, providing that days before the day assigned for the hearing of
no party to any action or proceeding, nor any the cause, the appellant shall serve upon each
person interested in the event thereof, nor any appellee, or his attorney, a printed abstract,"
person from, through, or under whom any such and not by Rule 37, which goes no farther
party or interested person derives any interest or than to provide what shall be the result of a
title by assignment or otherwise, shall be exfailure to file the abstract with the clerk with
amined as a witness in regard to any personal in 30 days before the beginning of the second
transaction or communication between such witterm after the appeal is taken.
ness and a person who is deceased, against the 2. SAME-ADDITIONAL ABSTRACT BY APPEL
executor, administrator, heir at law, next of kin, LEE-TIME FOR FILING.
assignee, legatee, devisee, or survivor of such
deceased person. The rule of the Supreme Court governing the time of filing abstracts or amendments to
[Ed. Note.-For cases in point, see Cent. Dig. abstracts is not a hard and fast rule which will
vol. 50, Witnesses, $8 658, 659.] be enforced in all cases regardless of the cir 10. PARTNERSHIP – RIGHTS AND LIABILITIES cumstances.
OF THIRD PERSONS-ACTIONS-EVIDENCE. 3. COURTS – JURISDICTION – VARIANCE BE In an action on partnership notes, in which TWEEN PLEADINGS AND PROOF.
M., who had assumed payment of and become Where the allegations of a cross-petition are surety on the notes, was made a defendant, and sufficient to show that the subject-matter of the in which a surviving partner filed a cross-peticross-petition is germane to the main case, the tion seeking to cancel notes exccuted by him court does not lose jurisdiction by the fact that to M., evidence offered by the cross-petitioner as the proof fails to show a cause of action rele to the existence of the partnership and as to vant to the case.
the manner of conduct of some of the partner4. DEPOSITIONS-INTRODUCTION IN EVIDENCE ship business, was admissible as against M. -PART OF DEPOSITION.
11. WITNESSES - COMPETENCY – CONVERSAA party introducing a deposition to prove TIONS WITH PERSONS SINCE DECEASED. admissions made therein by a witness since de
In an action on partnership notes, in which ceased need not read the entire answers, but M., who had assumed payment of and become may read such portions as have a direct bearing | surety on the notes, was made defendant, and
in which a surviving partner interposed a cross- | ister; that "these notes are given in full of petition seeking the cancellation of notes ex
account between said parties to date, in full ecuted by him to M., testimony of such crosspetitioner as to conversations had between him
settlement of all former notes given, and all self and his former partner tending to show the matters growing out of the loaning and han. partnership relation and the mode of conduct dling of McAlister's money and said other of some of the partnership business was admis
parties." sible as against M., though M. was not present
After making reference to some at such conversations.
matters of collateral security, the writing [Ed. Note.-For cases in point, see Cent. Dig.
preceeds, "This agreement shall not become vol. 50, Witnesses, 88 658, 659.)
operative until the said McAlister shall sign 12. SAME
certain notes heretofore agreed upon, as sureCode 1897, § 4604, providing that no party ty for said Salinger & Brigham, and the same to any action or proceeding, nor any person in
when so signed accepted by W. L. Culbertterested in the event thereof, nor any person from, through, or under whom any such party
son in full settlement of all matters between or interested person derives any interest or ti Culbertson and Salinger & Brigham." The tle by assignment or otherwise, shall be ex individual signatures of Salinger, Brigham, amined as a witness in regard to any personal
and McAlister are attached. Across the face transaction or communication between such witness and a person deceased at the commence
of the instrument this is written: "This ment of such examination, against the represen agreement canceled by mutual consent, Jantative or assignee of such deceased person, has
uary 4, 1892. H. C. McAlister.” McAlister no application to conversations overheard by the witness whose competency is questioned.
alone appeared to the petition and filed an[Ed. Note.-For cases in point, see Cent. Dig.
swer-in effect a general denial. It may be vol. 50, Witnesses, $8 696, 697.)
said in passing that the issue thus joined 13. BILLS AND NOTES-WANT OF CONSIDERA
was finally disposed of in favor of said deTION-CANCELLATION-EVIDENCE.
fendant. See 111 Iowa, 447, 82 N. W. 925, One seeking the cancellation of notes on and 131 Iowa, 307, 108 N. W. 454. Pending the ground that they were executed without consideration has the burden of proving the
the issue between plaintiff and McAlister, want of such consideration.
and in January, 1897, B. I. Salinger appeared [Ed. Note.-For cases in point, see Cent. Dig. in the action, and filed a cross-petition in vol. 7, Bills and Notes, $ 654.)
equity as against McAlister. In such plead14. PARTNERSHIP_LIABILITIES AS TO THIRD | ing it is alleged that he (Salinger) was a PERSONS-ACTIONS-EVIDENCE.
member of the sometime firm of Salinger & In an action on partnership notes, in which
Brigham, since dissolved; that certain busiM., who had assumed payment of the notes and become surety for their payment, was made
ness transactions were had between himself defendant, and in which a surviving partner and McAlister, in the course of which the interposed a cross-petition seeking cancellation
latter "executed a writing dealing with a of notes executed by him to M. in satisfaction of a partnership debt, evidence considered, and
debt from Salinger & Brigham to W. L. Culheld insufficient to support a finding that the bertson, upon which Culbertson has declared notes executed by such surviving partner were in this action; that as a final outcome of not supported by a consideration.
these negotiations and of the transactions Appeal from District Court, Carroll Coun of which they dealt this cross-petitioner exty; B. H. Miller, Judge.
ecuted to McAlister his promissory notes (deAction originally commenced at law, by scribing them as one for $300 and six for plaintiff, to recover upon four promissory $500 each, all dated July 11, 1893, and paynotes. Two of the notes bear date of Janu able, one each year, beginning with July 11, ary, 1987, and were executed by Salinger & 1894, with interest at 8 per cent.), securing Brigham (composed of B. I. Salinger and L. the same with a life insurance policy deposP. Brigham) and L. P. Brigham to plaintiff. ited with said McAlister." It is then alleged The other two notes bear date in September, that said notes were wholly without consid1888, and May, 1889, respectively, and were eration, and given for the debt of L. P. Brigexecuted by Salinger & Brigham to plaintiff. ham after the creation of said debt. The H. C. McAlister was also made a party de- prayer is for cancellation of said notes, and fendant, and as against him it was asserted a return of the insurance policy. It does not that he had in writing assumed or agreed to | appear that any notice of the cross-petition pay the indebtedness evidenced by the notes was given McAlister, and he did not appear sued upon. And it was said that the moneys thereto. In November, 1900, Salinger amendloaned Salinger & Brigham, evidenced by the ed his cross-petition, alleging the death of four notes sued upon, was used to purchase | McAlister, testate; that all his property, ina certain tract of land, in which said firm cluding the notes involved in this cross-petiand said McAlister were interested; that tion, was bequeathed to his wife, Martha MC"the agreement by McAlister was an under Alister; that Martha has since died, intestaking to become surety for Salinger & Brig- tate, claiming to be the owner of said notes, ham on two notes, to be executed to Culbert- and that Lucius McAlister has been appointson in lieu of others made by Salinger & ed administrator of her estate. And the Brigham to plaintiff.” A copy of the writing | prayer is that said administrator be substiis attached. It bears date November 16, tuted as defendant. It does not appear how 1891, and in substance details the execution the administrator was brought in, but in on that day by B. I. Salinger and L. P. Brig- | March, 1902, he appeared and answered, "in ham of three notes for $2,400 each to McAl- compliance with an order of this court heretofore made." The answer, in addition to a , to provide what shall be the result of a failgeneral denial, denies the right of the cross- ure to file in the office of the clerk an abpetitioner to assert his cause of action in stract within 30 days before the beginning this action, and denies the jurisdiction of the of the second term after the appeal is taken. court to hear the same, because the matters Next in order, we have a motion by appelalleged are in no wise related to the cause of lant to strike an additional abstract filed by action declared upon by plaintiff nor to the appellee, because not filed within the time subject-matter thereof. For a further de fixed by the rules. We have repeatedly said fense it is pleaded that McAlister was at all that the rule governing the time of filing adtimes a resident of Muscatine county, where ditional, or amendments to, abstracts is not his will was probated after his death; that a hard and fast one, and, under the circumMartha McAlister was at all times a resident stances, we think it should not be enforced of said county, as is also the pleading de in this case. fendant; that the notes sought to be can Appellant also moves to strike the reply celed are payable by their terms in that coun argument of appellee for various reasons. ty. And it is then said that long before said Without discussing these, we think the reaLucius McAlister, as administrator, was sons are insufficient, and the motion is overmade a party defendant to the cross-petition, ruled. and on August 23, 1900, he had commenced 2. Taking up the matters relied upon for a an action on the notes in question in the dis reversal of the decree, we may first dispose trict court of Muscatine county against said of the contention that the court was without Salinger, which suit is still pending and un jurisdiction to entertain the cross-petition, disposed of. Accordingly, it is asserted "that for the reason that the cause of action stated this court has no jurisdiction over the sub therein had no relation to the subject-matter ject-matter of this action or over the defend involved in the main action. And reliance ant." The prayer is that the cross-petition is placed on Code, $ 3574, which provides be dismissed. Trial was had on the issue that, “When a defendant has a cause of acthus joined, resulting in a decree in favor of tion affecting the subject-matter of the acthe cross-petitioner The defendant admin tion against the codefendant, * * * he istrator appeals. Reversed.
may, in the same action, file a cross-petition Jayne & Hoffman and George W. Bowen,
against the codefendant," etc. The sufficienfor appellant. B. I. Salinger, pro se.
cy of the pleading here assailed, as stating
matter proper to be brought forward in the BISHOP, J. 1. Several motions have been
cross-petition, was one of the questions insubmitted with the case, and we shall first
volved on the appeal last before us in the make disposition of these. To begin with,
main case. 131 Iowa, 307. And we there exwe have a motion by appellee to strike ap
pressed the opinion that the pleading was pellant's abstract from the files, for the rea
not open to the objection that it did not preson that no proper and timely service there
sent matter proper to a cross-petition. Restof had ever been made upon him, said appel
ing content with that opinion, we have on lee. On going to the record, we find that the
this appeal the further question of jurisdicabstract was filed in the office of the clerk
tion, based upon the contention of appellant on August 16, 1907, and that this was 30 days
that the proof adduced on the trial estabbefore the beginning of the second term aft
lished the transactions as wholly distinct and er the appeal was taken is not disputed.
independent of each other. We think that, Under order of this court, the case was put
under the circumstances of the case, appelon the term submission docket for the Janu
lant has no grounds for complaint. As the ary, 1908, term, and was by the clerk assign cause of action stated in the cross-petition ed and set for hearing at the third period of was germane, the court did have jurisdiction the term, beginning March 10, 1908. The mo
of the subject-matter brought forward by the tion to strike was filed on January 13, 1908, pleading, and it had jurisdiction of the parand was predicated upon the precise ground
ties. And it is to be observed that the questhat no personal service of the abstract had | tion made by the answer was carried along ever been made upon appellee. Pending the without objection, and submitted with the motion, and on January 18, 1908, service of case. Conceding the state of the proof at the the abstract was made by appellant. Fol. | close of the trial to be as appellant contends, lowing this, appellee filed a supplement to his we think the court properly put aside the motion, demanding that the abstract be technical question, and proceeded to an instricken because the service was not within vestigation of the merits of the issue. As the time prescribed by the rules. We think sustaining this view, see Novak V. Novak, the service was timely, and that the motion (Iowa) 115 N. W. 1. to strike should be overruled. The matter of 3. In setting forth the errors relied upon service is governed by rule 29 which provides for a reversal, it is said that the court had that, “at least thirty days before the day as no jurisdiction to try the case because of the signed for the hearing of the cause, the ar action pending in Muscatine county. It is pellant shall serve upon each appellee, or his conceded in argument, however, that, if held attorney, a printed abstract," etc. Rule 37, that the cross-petition was properly in the relied upon by appellee, goes no farther than | case, this contention must be regarded as