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of that proposition and the questions related statute as in the preceding case. The decito it. This railroad corporation was created sion in that case (117 N. W. 661) is controlsubject to all the provisions of the law then ling in this upon all the questions therein in force. In Railroad Commissioner v. Grand passed upon. The cases were heard and subRapids & Indiana Ry. Co., 130 Mich. 248, 89 mitted together, and are designated in the N. W. 967, Mr. Justice Montgomery, speak- records as the "Overcharge Case" and the ing for this court said:

It can- "Penalty Case." Our disposition of the Overnot admit of doubt that corporations formed charge Case leaves but one question to be under an existing law will not be heard to considered in this, the Penalty Case. question the rates fixed by the statute. They Section 6235, Comp. Laws, provides that cannot avail themselves of the provisions of every such railroad corporation shall, on the the law which give them the right to do busi- due payment of freight legally authorized, ness, and disregard those provisions which transport property to and from regular stopare onerous. This was the view taken by ping places established therefor, “under penthis court in Jackson & Suburban Traction alty, for each violation of this provision, of Co. v. Commissioner of Railroads, 128 Mich. one hundred dollars, to be recovered by the 164, 87 N. W. 133, and has the support | party aggrieved, in an action of debt against of authority in other jurisdictions. See 4 such corporation." The contention is that Thomp., Corp. § 5257, and cases cited.” the defendant receiver is not liable for the Grand Rapids & Indiana Ry. Co. v. Osborn, penalty imposed by the statute upon railroad 193 U. S. 17, 24 Sup. Ct. 310, 48 L. Ed. 598. corporations, and that the trial court was

This disposes of all questions raised by the in error in directing a verdict for plaintiff assignments of error necessary to be passed and refusing to direct a verdict for defendupon in the disposition of this case.

ant. The federal statutes provide that a re. The judgment of the circuit court is af- ceiver in possession shall manage and operfirmed.

ate the property in charge “according to the requirements of the valid laws of the state where situated, in the same manner that the

owner or possessor would be bound to do if ROBINSON V. HARMON.

in possession"; also “that every receiver (Supreme Court of Michigan. Sept. 15, 1908.)

may be sued in respect of any act or 1. RECEIVERS-ACTION AGAINST TO ENFORCE

transaction of his in carrying out the busiPENAL STATUTES. Comp. Laws, 8 6235, provides that every

ness connected with such property without railroad shall, on due payment of freight legal- the previous leave of the court in which such ly authorized, transport property to and from receiver

was appointed.” It is not regular stopping places, under penalty of $100 disputed but that under this federal statute for each violation, to be recovered by the party aggrieved. The federal statutes provide that a

civil suits for damages may be maintained receiver shall operate the property according to against receivers arising from the managethe requirements of the laws of the state where

ment or operation of the road in charge, in situated, in the same manner that the owner would be bound to do if in possession, and that

violation of the state laws. The contention is every receiver may be sued in connection with that "a receiver appointed by a court of chanthe property held by him, without previous cery and operating a railroad under an order leave of the court appointing such receiver. Held, that section 6235, not being penal, is en

of the court is not liable for a penalty imposforceable against the receiver of a railroad. ed by a statute upon railroad companies and 2. STATUTES-PENAL STATUTES.

corporations." Comp. Laws, § 6235, providing that every Defendant relies upon the case of United railroad shall, on due payment of freight legal

States v. Harris, 177 U. S. 305, 20 Sup. Ct. ly authorized, transport property to and froin regulation stopping places, under penalty of

609, 44 L. Ed. 780. This was an action $100 for each violation, to be recovered by the brought against the receiver of a railroad party aggrieved, is not a penal statute, strictly

company to recover a penalty for confining speaking, but is remedial in its effect.

certain animals without food and water, conError to Circuit Court, Berrien County; trary to the provisions of a federal statute. Orville W. Coolidge, Judge.

The penal provision is as follows: "Sec. Action by John Robinson against Judson 4388. Any company, owner or custodian of Harmon, receiver. Judgment for plaintiff on such animals, who knowingly and willfully a directed verdict, and defendant brings er- fails to comply with the provisions of the two ror. Allirmed.

preceding sections shall, for every such fail. Argued before MONTGOMERY, P. J., and ure, be liable for and forfeit and pay a penOSTRANDER, HOOKER, MOORE, and Mc- alty of not less than one hundred nor more ALVAY, JJ.

than five hundred dollars.

U. S. Stevens, McPherson & Bills (Victor M.

Comp. St. 1901, p. 2990. The section followGore, of counsel), for appellant. G. M. Val- ing provides that such penalty shall be recorentine and E. B. Valentine, for appellee. ered by civil action in the name of the UnitJohn E. Bird, Atty. Gen., and George S. Law, ed States. This was purely a penal action. Asst. Atty. Gen., for the State.

The penalty was solely for purposes of pun.

ishment. The case was disposed of upon the MCALVAY, J. This case involves the same strict construction of this penal statute, the transactions and the construction of the same court holding that the words of the statute,

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statute under consideration, and we hold that the case at bar is not within the rule laid down in the Harris Case, supra. It follows, therefore, that the circuit court was not in error in instructing a verdict for plaintiff.

The judgment is affirmed.

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"any company, owner or custodian of such animals,” in the section quoted, did not include receivers. The court said: "It is claimed that the effect of such legislation [referring to the statutes requiring receivers to manage and operate railroads in their charge according to the valid laws of the state where situated] is to place receivers upon the same plane with railway companies as respects their liability to be sued for acts done while operating a railroad.

It may be conceded that it was the intention of Congress to subject receivers of railroad companies appointed such by courts of the United States to the valid laws and regulations of the states and of the United States, whose object is to promote the safety, comfort, and convenience of the traveling public. But we are not now concerned with the general intention of Congress, but with its special intention, manifested in the enactments under which this suit was brought.

Can we fairly bring receivers within the penal clause by reasoning from a supposed or an apparent motive in Congress in passing the act?

It is not permitted to courts in this class of cases to attribute inadvertence or oversight to the Legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words and phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."

We think that the case at bar is distinguishable from United States v. Harris, supra, in that it is not a penal statute, strictly speaking, but is remedial in its effect. An examination of the original record and briefs in the Harris Case shows that the distinction between the two classes of cases was recognized. The right of action in the case at bar is limited to the person injured. The act complained of is not made a crime, and the statute is no more penal in its nature than those which provide for the doubling of damages in case of stock injured by railroad corporations which have neglected to properly fence their rights of way. Such statutes have been enforced against receivers. Central Trust Co. v. Wabash, etc., Ry. Co. (C. C.) 26 Fed. 12. The following is taken from the brief for the receivers in the Harris Case: “It is an old and unshaken rule in the construction of statutes that the intention of a remediaļ statute will always prevail over the literal sense of its terms, and therefore when the expression is special or particular, but the reason is general, the expression shall be deemed general.” And again: "It may be stated in general terms that any statute which gives a remedy or means of redress where none existed before, or which creates a right of action in an individual, or a particular class of individuals, is remedial within the meaning of this rule. Black on Interpretation of Statutes, 307, 308.”

This is the view taken by this court of this

WEBSTER v. SHRINE TEMPLE CO. et al.

(Supreme Court of Iowa. Sept. 22, 1908.) 1. ADVERSE POSSESSION-HOSTILE CHARACTER OF POSSESSION.

Possession held by a lot owner to a fence or building built by the owner of adjoining property, without any intention to assert title beyond the true boundary, is not adverse as to any part which may lie beyond such boundary, and without more, never ripens into title.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, $ 378.). 2. BOUNDARIES-ACTION TO DETERMINE-BURDEN OF PROOF.

While the acquiescence of both the owners of adjoining property for 10 years in a certain line as the boundary between them will estabJish such boundary, the burden rests upon the one claiming such line, where it differs from the true boundary, to prove that it was recognized by both parties as the true boundary.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action to determine a disputed boundary line and quiet title. Decree for defendants, and plaintiff appeals. Affirmed.

Sullivan & Sullivan and Dunshee & Dorn, for appellant. Read & Read and C. L. Nourse, for appellees.

WEAVER, J. The plaintiff is the owner of the south half of lot 1 in block 4 in Holcomb's addition to Des Moines. The defendant Shrine Temple Company is in possession of the north half of said lot under a contract of purchase from the First Methodist Episcopal Church of Des Moines, which for many years prior to April, 1905, had occupied and used it as a site for its church building and parsonage. The lot as platted has a frontage of 66 feet and depth of 132 feet, but the evidence tends to show that in actual measurement it is somewhat in excess of the width named. The deeds in the line of the plaintiff's title describe her property as the south half of the lot, and in the line of the defendants' title as the north half thereof, and in neither case is the width of the property conveyed expressly mentioned. Plaintiff and her grantors have for many years occupied the south half of the lot as residence property. The parsonage building on the north half stands at or near the south line of the church property, and for some years a fence has extended from the east front of the lot to a point near the southeast corner of the parsonage building, and from at or near the southwest corner of said building to the west end of the lot. It is claimed by the plaintiff that these fences and the eaves line of the parsonage mark the division between the two tracts, and this division or lot appear to have used and claimed the right to use the disputed strip, or parts thereof, and have exercised that right. I. N. Webster, who at one time held the title to the south half and is the principal witness for plaintiff, being asked whether persons representing the church during the last 20 or 25 years came over on the south side of the fence to paint and make repairs, replied: “Yes, sir; they used it just as though it was theirs. I have been furnishing a lot there for the last 25 years." Other indications are not wanting that the fence was mutually regarded as a merely tentative line; the location of the actual line having never been definitely ascertained. The burden was upon the plaintiff to show the necessary acquiescence, and we are satisfied that in this she has failed.

The surveys made and shown in evidence indicate that the true line is at the point fixed by the trial court, and the decree appealed from is affirmed.

boundary she claims has been established and determined by adverse possession and by the acquiescence of all parties in interest for more than 10 years. The trial court found against plaintiff on both propositions, and she appeals.

1. Cases of this general character have been so frequently before the courts, and the law governing them is so well settled, that we do not deem it proper to consume the time or space to review them. The only debatable propositions presented by the appeal are those of fact, and nothing is to be gained by an extended statement of the testimony. We have first to inquire whether there is any showing of facts on which the court can uphold the claim of adverse possession. An examination of the record leads us to agree with the trial court that this inquiry must be answered in the negative. The plaintiff, testifying as a witness, expressly admits that she never at any time intended to make any claim to the property other than such as belonged to her, and that she claimed up to the alleged boundary because she believed and supposed it to be the correct line. Under the rule established in this state, possession thus taken and held by mistake, and without intention to assert title beyond the true boundary, is not adverse, and, without more, never ripens into title. See Miller v. Mills County, 111 Iowa, 654, 82 V. W. 1038, and cases there cited. Moreover, the conduct of the plaintiff on the one hand and the church authorities on the other, as developed in the testimony, tends strongly to rebut the theory that plaintiff and her grantors made any claim of right or title to the property, except so much thereof as was included within the true boundaries of the tract described in their deeds.

2. The only other question to be considered is whether the plaintiff has shown such acquiescence in the line marked by the fences and the eaves line of the parsonage as will entitle her to a decree under our statute. For the purposes of this case it may be admitted that, if the plaintiff has succeeded in showing that the owners of the property on both sides have recognized and acquiesced in the line to which she now claims for a period of 10 years or more, she is entitled to the relief demanded. But in our opinion the evidence does not bear out her contention. The fences to the east and to the west of the parsonage were not constructed to coincide with the extension of the eaves line which plaintiff claims marks the boundary. At the southeast corner of the parsonage there was an open passageway, and at the southwest corner a gateway, giving the occupant of the north half of the lot entrance to the strip now in dispute. The parsonage, which was originally built further to the north, was later moved to the south and so located as to project southward beyond the line of the fence. During the years since the fence was built the occupants of the north half of the

EDWARD HINES LUMBER CO. et al. v.

MARQUARDT et al. (Supreme Court of Iowa. Sept. 25, 1908.) CORPORATIONS — DIRECTORS - LIABILITY FOR DEBTS.

Code, $ 1622, declaring that, if the indebtedness of any corporation shall exceed the amount permitted by law, the directors "knowingly consenting thereto shall be personally" liable to the creditors of the corporation, does not permit recovery for mere inattention or negligence of the directors, but only where consent is given to indebtedness with actual knowledge that the limit has been reached or is thereby exceeded.

Appeal from District Court, Polk County ; W. H. McHenry, Judge.

"Not to be officially reported."
The opinion states the case. Affirmed.

Parker, Hewitt & Wright, Dunshee & Dorn, N. T. Guernsey, Charles S. Maxwell, Grace Ballantyne, and Dale & Harvison, for appellants. Read & Read, J. B. Weaver, Jr., and C. L. Nourse, for appellees.

PER CURIAM. The defendants Marquardt and Pearsall were directors and officers of the McCormick Manufacturing Company, a corporation doing business in the city of Des Moines. By its articles of incorporation the amount of the permissible indebtedness of the corporation at any one time was limited to 50 per cent. of its capital stock. The investment proving unprofitable, the corporation was placed in the hands of a receiver, who wound up its business. The indebtedness outstanding at the time the receivership proceedings were begun largely exceeded the limit above-mentioned. Indeed, it exceeded the full amount of the authorized capital stock. The plaintiffs herein bring this action in equity under Code, $ 1622, seeking to hold the defendants personally liable for their claims on the theory that said de

fendants knowingly consented to this exces- LADD, C. J. The defendant, a physician, sive indebtedness. The district court found attended the plaintiff in confinement Novemplaintiffs had failed to prove such knowl- ber 27, 1904. She was then 37 years of age, edge and consent on part of the defendants, of delicate physique, with undersized pelvis, and dismissed the bill. Plaintiffs appeal. and the child her first-born. Instruments

The question presented is one of fact. Did were necessarily employed in effecting dedefendants know and consent to the acts of livery, in the course of which the symphysis the corporation, or of its managing officers, pubes were ruptured and separated. This, in contracting indebtedness beyond the au- though inusual, was not due to any fault of thorized limit? It is obvious, we think, the physician, and the only complaint is that that this statute does not provide for a re- he was negligent in the treatment of the covery on account of mere inattention or injury. Appellant contends that the evidence negligence on part of the officers and direct- was such that this issue ought not to have ors sought to be charged, but that personal been submitted to the jury. An examination liability can be enforced only where consent of the record has convinced us to the conis given to the making of the indebtedness trary, and, without reviewing the evidence with actual knowledge that the limit has al- in detail, the reasons for this conclusion may ready been reached, or is by such act being be stated. On the third day after confineexceeded. Constructive knowledge, or knowl- ment, defendant, by digital examination, asedge which might have been obtained had the certained that the pubes had been separated. defendants not been negligent, is not enough. According to his testimony he immediately Patterson v. Manufacturing Co., 41 Minn. 84, undertook treatment by bandaging the pa42 N. W. 926, 4 L. R. A. 745, 16 Am. St. tient about the hips; but, owing to pain, the Rep. 671; Lewis v. Montgomery, 145 Ill. 30, patient declined to wear the bandages, and 33 N. E. 880. We have examined the record after four applications in as many succeswith care, and, while the evidence is abun- sive mornings be concluded to give her no dant on which to sustain a recovery should treatment, save requiring her to lie quietly defendants be held liable in this action for on her back, and when on the side to be negligence and want of attention to their du- propped up carefully. This testimony was ties as officers and directors, there seems to corroborated by that of the nurse. The pabe none to sustain a finding that they con- tient, however, was certain that no bandages sented even tacitly to the contracting of in- were placed on her, save by the nurse to prodebtedness which they knew to be in excess tect her form, and those without inconvenof the authorized limit.

ience during the first week, and that deThe decree of the district court is af- fendant did not apply those tightly about the firmed.

hips until the third week, and that owing to excessive pain she was unable to endure these. She was corroborated by several wit

nesses. No precaution was taken to exclude REYNOLDS v. MCMANUS.

the soft parts, as the bladder and urethra, (Supreme Court of Iowa. Sept. 22, 1908.)

from between the bones. Had the separa

tion been no greater than defendant testified 1. PHYSICIANS AND SURGEONS-ACTION FOR MALPRACTICE-SUFFICIENCY OF EVIDENCE.

-less than a quarter of an inch-probably The question whether a physician exercised nature would have remedied the difficulty proper care and skill in treating a patient in- without the aid of bandages. But the doctor jured in confinement held one for the jury un

was discharged December 24, 1904, and ander the evidence in an action to recover damages for malpractice.

other physician employed, who testified that [Ed. Note.-For cases in point, see Cent. Dig.

upon a digital examination he found a sepavol. 39, Physicians and Surgeons, § 44.)

ration of about two inches, and that this, up

This 2. TRIAL-CONDUCT.

on using a speculum, was confirmed. It is the duty of a trial court to rule in ac

physician placed a sound through the urethra cordance with its best judgment on every ques

into the bladder to drag the soft parts away tion raised which is pertinent to the issues. from the pubes, and then brought them to3. PHYSICIANS AND SURGEONS-ACTION FOR gether and held them by the use of adhesive MALPRACTICE-EXCESSIVE DAMAGES.

strips and linen bandages. That this was A verdict for $5,000 damages for malpractice held under the evidence so excessive as to

proper treatment is not questioned, though indicate passion or prejudice on the part of the

other devices, such as wedging the bones in jury.

position with pads, pillows, or sand bags, or (Ed. Note.-For cases in point, see Cent. Dig. by lying the patient in a swinging hammock, vol. 39, Physicians and Surgeons, $ 46.)

seem to have been approved in usage. If Appeal from District Court, Blackhawk

the separation was as great as this physician County; Franklin C. Platt, Judge.

testified, and the jury might so have found, Action for damages in consequence of alleged

then there was an abundance of expert tesmalpractice resulted in a verdict and judgment

timony that the bones should have been of $5,000. The defendant appeals. Reversed.

brought together promptly, and that in do

ing so precaution should have been taken to Courtwright & Arbuckle, for appellant. exclude the soft parts. So that whether the Mullan & Pickett, for appellee.

symphysis pubes were so wide apart as to

trial court. The litigant, as well as this court, is entitled, under the law, to its best judgment upon every question pertinent to the issues which may be raised, and only on such ruling can error be assigned. If we should accept the finding of its opinion that the verdict was "grossly excessive,” it necessarily follows that the court erred in overruling the motion for new trial. Notwithstanding the difficulties experienced in measuring damages in such a case, it is apparent that the verdict is several times what it should have been under the evidence adduced. Neither party has suggested a remittitur, and we are inclined to regard the amount allowed so excessive as to leave no inference open sare that the finding was the result of passion and prejudice,

Because of the error in not awarding a new trial, the judgment is reversed.

require artificial means in holding them together, whether defendant applied the bandages during the first week, or not until the third week, and whether he exercised proper care to exclude the soft parts from between the bones when drawn together, and whether the bandages could have been worn had he done so, were all issues of fact raised by the evidence, and necessarily presented the sole inquiry as to whether defendant had exercised the degree of care and skill exacted by law in the treatment of the injury. The issue was for the jury.

2. That plaintiff had not fully recovered at the time of the trial, which occurred a little more than a year subsequent to her confinement, is certain; but, aside from a bitch in her walk, none of her difficulties are traced by the record to any neglect on the part of defendant. If she suffered from incontinency of urine, this was not shown to have resulted from his treatment. If she could not lift things, or walk far, or tired quickly, her weakness was not proven to have been caused by anything the defendant did. According to the physician who successfully treated her the union of the pubic bones was strong, but not perfect. The disk at the joint had thickened, which caused a kind of side movement, a kind of little hitch, and had no other effect on the health or bodily strength. No one ventured an opinion that this would be permanent. She was required to continue on her back with the bandages on about a month, but was not shown to have suffered, save from the weariness of her position. The jury might have found that she was confined to her bed this much longer than she would have been had bandages been properly applied, and that she may not have gotten about as soon after being able to sit up, and possibly the jury also might have allowed for the pain endured when the bandages were unsuccessfully applied for less than an hour each time, though this is doubtful. These matters furnish the only basis for the verdict and judgment of $5,000 against this defendant. The amount allowed was challenged in the motion for new trial as excessive, but this was denied by the court in overruling the motion. True, the judge declared, in an opinion delivered at the time, that the verdict was "grossly excessive," and seems to have thought that, as the case would come to this court, it was not incumbent on the trial court to pass' on the point thus raised, but that it could as well leave the matter for this court to settle. Of course, the ruling on the motion as entered of record is decisive of what was done. Indeed, but for that ruling, the charge that the verdict was excessive could not be made the subject of review; for in actions at law our jurisdiction is limited to the correction of errors. We know of no avenue in the administration of "justice according to law" by which a ruling which is to be reviewed in this court may be successfully evaded by the

INDEPENDENT SCHOOL DIST. OF FAIR

VIEW v. INDEPENDENT SCHOOL

DIST. OF BURLINGTON et al. (Supreme Court of Iowa. Sept. 22, 1908.) 1. SCHOOLS AND SCHOOL DISTRICTS-STATUTES.

Acts 19th Gen. Assem. p. 111, c. 118, declaring that all the territory of an incorporated city, whether included within the original incorporation or afterwards attached, shall be a part of the independent school district of said city, is not given retroactive force, when applied to such part of the territory of a school district, originally wholly outside a city, as was brought within the city limits prior to enactment of the statute; the enlargement of the city school district being operative only from the date of the statute. 2. SAME CONSTITUTIONAL LAW VESTED RIGHTS.

Acts 19th Gen. Assem. p. 111, c. 118, declaring that all the territory of an incorporated city shall be a part of the independent school district of said city, is not unconstitutional as affecting vested rights of another school district, part of the territory of which had been brought within the limits of the city; school districts, like other municipal corporations, being creatures of the legislative will.

Appeal from District Court, Des Moines County ; James D. Smyth, Judge.

Action in equity for an accounting and other relief. Demurrer to the petition being sustained, the plaintiff appeals. Affirmed.

Seerley & Clark, for appellant. A. M. Antrobus, for appellees.

WEAVER, J. The plaintiff and the principal defendant are independent school districts, and were both organized prior to the year 1881. The defendant district, as originally organized, comprised the territory within the city of Burlington, while the plaintiff district was organized of four sections of land lying immediately outside of said city. In 1891 the city by appropriate proceedings extended its boundaries in such manner as to include a part of the independent district of Fairview. On March 16, 1882, the Legislature of the state adopted a statute providing

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