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robbed of all its force. In view of what has | tion. Mr. Hoffman: The defendant to the been said in the preceding division of this cross-petition now disclaims any intention or opinion, we have no occasion for further dis any idea of introducing that part of the reccussion of the subject.

ord the court has referred to as part of his 4. On the trial of the main issue between | testimony. Mr. Salinger: Upon this concesCulbertson and McAlister, the latter was a sion and disclaimer, I move that the testiwitness on his own behalf. To make out his inony just referred to be stricken from the case in chief, cross-petitioner brought in the | record." This motion was sustained. transcript of the testimony of McAlister, I Respecting the matters thus detailed it is and portions thereof were read by him in insisted by defendant, to begin with, that the evidence. In the case of each of several court should not have permitted the reading interrogatories appearing, petitioner an in evidence of portions of the answers given nounced that he would read only a por- | by McAlister, and should have sustained the tion of the answer. To this the defendant , motion to require the answers to be read as objected as being incompetent and improper, a whole. We are not disposed to concur in and insisted that the whole of the answer this view. Most certainly, it was permissible sbould be read. The portion of the answer to show as against defendant-whose rights was received subject to the objection. And are no more than the rights of which McAlisin connection therewith counsel for cross-pe ter died seised—that in his lifetime, and titioner stated that the evidence was offered while under oath, said McAlister made adon the theory that the portions of the answers missions respecting the subject-matter in conread constituted admissions made by McAlis troversy against his interest, and at variter against his interest. After cross-petition ance with the contentions now presented by er had finished reading from the transcript, defendant standing in the relation of legal defendant objected to the evidence on the representative. Had a person who was standground that the deposition containing the | ing by when the deposition was taken been same was taken in the main case, and not produced by cross-petitioner as a witness, it under the cross-petition. Defendant also would have been proper to have confined the mored the court to require cross-petitioner to examination of such witness to the matter introduce the omitted portions of the several of supposed admissions. Under no rule answers. To this cross-petitioner objected, would the questioner be bound to go farther on the ground that such portions should be and ascertain whether or not an admission offered by defendant on his own behalf if he testified to was accompanied by any qualifydesired the same in the record. And the ob- ing or explanatory statements. It would be jection was sustained. Thereupon the court the prerogative of the cross-examiner to do addressed counsel, saying that defendant that. We see no reason why the practice would be permitted, "in order to complete his should be different when, as in this case, an record, to read such parts of the deposition admission is sought to be proven by having as are germane to the facts in this case into recourse to the deposition itself, rather than the record, not compelling the other party to the recollection of a person present during to do it, subject to the objections that may the taking thereof. And as the defendant be made by the other party." Counsel for might cross-examine a witness called to testidefendant then offered to read, and the ob fy to an admission, so he could read from jection was made that the omitted portions the deposition such parts as had direct bear." sbould not be put into the record in any way ing to explain or qualify the admissions "except by an order as part of the testimony sought to be established. It follows from on the part of defendant.” Here the court what has been said that the reading of a porremarked: "My idea in permitting this at tion only of the answers was not open to this time was to allow the testimony to be re criticism. Considering the objections made ceived as if on cross-examination of the wit by cross-petitioner to the omitted portions of ness, and in order that the record may pre the answers we are of the opinion that the sent the testimony as given by a single wit same are without merit. It is sufficient to ness on direct and cross-examination.” The say-without setting forth the answers and several omitted portions were then read and the questions to which they were responsive received, subject to the objection interposed —that in the case of each the several portions to each that the same was "improper cross of the answers were more or less in direct to examination, incompetent, irrelevant, and im- | | relation, and it is fair to both parties that material, not germane to what is joined by the answers should be given consideration in context, a self-serving declaration and a their entirety. Coming to the objection by deconclusion.” Later in the course of the fendant that the matter contained in the deptrial-while yet evidence for the cross-peti osition was incompetent as a whole, because tioner was being introduced and without such deposition was taken under the issues any apparent exciting cause, the court an in the main case, we are agreed that such obnounced that the portions of the answers gir jection should be disregarded. If there were en by McAlister which were read by defend. | no other reason, the objection came after ant, were read and introduced, “as the court the evidence was in the record, and thereunderstood and intended, and now intends, as fore too late. Parker v. City of Ottumwa, evidence on behalf of defendant to cross-peti- | 113 Iowa, 649, SJ .V. W. 805. There is no

theory on wbich the striking out of the careful reading of the evidence in the record, portions of the answers read into the record is in accord with this contention. Within by defendant can be justified. The evidence reasonable limits we cannot set forth the evwent in as in the nature of cross-examination idence in detail, but we shall call attention under the express sanction of the court pre thereto sufficient to make clear the grounds viously expressed. And defendant was bound of our conclusion. Back in the year, 1884, by such evidence only as he might have been Salinger and Brigham each resided at Manhad the witness been personally in court and ning, Carroll county-the one a lawyer, cross-examined.

the other a physician. Brigham was a son5. Cross-petitioner, Salinger, was a witness in-law of Dr. H. C. McAlister, the latter reon his own behalf. He was interrogated with

siding at Muscatine, and reputed to be reference to the partnership relation formerly

wealthy. On February 8, 1884, Salinger and existing between himself and L P. Brigham,

Brigham entered into an agreement of partand as to the manner of conduct of some of

nership for the carrying on under the firm the business of that partnership. The wit

name of Salinger & Brigham "of the insurness was allowed to testify over the objection

ance, loan, and collection business. Both by defendant that he (Salinger) was not a

partners to give their entire time, efforts, competent witness under the statute, Brigham

skill, and influence to said business. Profits, being at the time of the trial deceased. The

losses, and expenses to be shared in and evidence was also objected to as incompetent

borne equally by both parties.” Speaking of and immaterial, and, where the questions

the partnership arrangement, Salinger, as a called for conversations, on the further

witness, says: “At the time I was engaged ground that such were not had in the pres

| in the law business quite heavily, and in the ence of McAlister. We think the objection

insurance, collection, and farm loan business. to the witness as incompetent was not well

* * They were getting high rates out taken. The prohibition of the statute (Code,

there for chattel loans, * * * and I sug$ 4604) extends no farther than to forbid the

gested that the firm make an attempt to get examination of a pary or person interested

him (McAlister) to send the money to us to as a witness respecting transactions or communications between such witness and a per

loan; that if he (Brigham) would bring that

about to any considerable extent, he would son since deceased as against a person bearing to such deceased some one of the rela

not have to practice medicine; • * tiopships specified in the statute. The rela

that he might have an interest in the whole tionship existing between Brigham and either

business including the law business." FolMcAlister or his heirs or legal representa

lowing this suggestion, Salinger and Brigham tives was not one falling within the specified

went together to Muscatine to see Mr. Mc classes. Nor should the objection to the evi.

Alister. Respecting what occurred there, Saldence be sustained. As will become mani.

inger says: “I overheard the following confest later, it was material to show what were

versation in substance between Dr. McAlister the relations between Salinger and Brigham,

and Brigham: Brigham told McAlister what and the evidence as addressed to that sub

he and I desired to do. McAlister declined ject was fairly competent. The conversations

to do that, saying I was a stranger to him, objected to were brought in, as we under

while Brigham was his daughter's husband, stand it, for no other purpose than as explan

and he was willing to help him; that if he atory of the partnership relation. And in

could get any good out of loaning money he that view they were receivable. Continuing

had confidence in him, but did not want to as a witness, Salinger was asked if follow

put his money into anybody's partnershiping a talk with Brigham he was present at

| didn't want it to be handled by anybody he a meeting when Brigham and McAlister talk did not know; that he was getting to be an ed with reference to loaning bis (McAlister's) old man, and if there was complication bemoney. And he answered that he was pres

tween the partners it would complicate him. ent when Brigham and McAlister had a talk Finally, he said he would let Brigham have on that subject. He was then asked to "go money from time to time and that he could ahead and give the conversation you over loan it for him; that if he made any profit heard.” To this, the objection of the statute out of it, he could do what he liked with it; was interposed, and, subject thereto, the wit that it ought to help him just as much if it ness proceeded to detail the overheard con gave him a profit as though I was going to versation. Under our repeated holdings, the let him have the money ; that if he was going prohibition of the statute does not extend to to let him have a full partnership for the conversations simply overheard by the wit one, I would be just as apt to do it for the ness whose competency is questioned. Al other. * * * McAlister insisted that Brigbright v. Hannah, 103 Iowa, 98, 72 N. W. ham should deposit the money as he got it 421; Wright v. Reed, 118 Iowa, 333, 92 N. W. | from Muscatine and as it came back from 61; Powers v. Crandall (Iowa) 111 N. W. borrowers in his (McAlister's) name in Man1010.

ning, and drew checks against it. * * * 6. Finally, counsel for appellant contend Brigham took me to one side and wanted to that the decree is not warranted by the evi- know if I would do that, and I said, 'Yes.'" dence. And our conclusion, reached after a On cross-examination Salinger said: "I re

member no one present at the conversation | made from time to time, by the firm to Mcbut the three. I was present all the time Alister; thus, on July 1, 1887, a statement this conversation occurred. * * * There was rendered showing a balance due McAlisare parts of the conversation where I did ter from the firm in the sum of $9,288, and chip in and say something." Following this, at the foot of such statement, this—in the money was sent out from time to time by handwriting of Salinger-appears: “The McAlister; the drafts, as it appears, being above is a correct statement of accounts to made payable to Brigham, and the same were date. [Signed] Salinger & Brigham.” Later deposited in bank at Manning to the credit on, notes were given by the firm to represent of McAlister. Further, in April, 1885, Brig- balances in favor of McAlister. Thus matters ham was, by writing executed by McAlis continued until in November, 1891, when Dr. ter, appointed “my true and lawful attorney | McAlister went to Manning, and, judging * * * to carry on the business of loaning from appearances, for the purpose of effectmoney, collecting the same when due, and re- ing a settlement. There was then due him leasing any mortgages," etc. It is clear that the sum of $7,200, and it would seem that the the loaning of the money was carried along firm did not have the money to satisfy the by Salinger & Brigham as partnership busi indebtedness. Thereupon there was drawn ness, and reports were made to and corre up and signed the writing, a copy of which spondence had with McAlister, respecting was attached to the petition of Culbertson the status of the business in the firm name. in this action, and the substance of which has Generally the reports and correspondence been set forth by us on a preceding page of was attended to by Brigham, but in some | this opinion. Respecting this writing, it is instances they appear to be in the handwrit the testimony of McAlister (introduced by ing of Salinger, and some of the letters were cross-petitioner from the deposition taken on signed by him personally. The evidence of | trial of the main case) that the agreement McAlister-taken on the trial of the main and policies were to be taken home by him, case, and here introduced-as far as connect- and submitted to his family for their consent. ed with the subject immediately in hand, is It seems that the family did not consent, and as follows: "Q. Is it not true that what he says: “I returned the agreement and erer became due you at any time from Sal- | policies to Salinger & Brigham. The agreeinger & Brigham, or either member of said / ment was not carried out.” And on the subfirm, accrued from and arose out of the loan ject, Salinger testifies that the notes referred business initiated by making Brigham your to in the writing were wholly based upon agent to loan money? A. Yes. Q. Did the "an alleged shortage arising out of the loan firm or either member thereof ever owe you/ business, and upon an assuming by Salinger any money, except as the indebtedness may & Brigham of that shortage without receivhare grown out of said loan business? If so, ing anything for assuming it, and making it what for, and when? A. The indebtedness of their debt.” And the transaction is explainSalinger & Brigham to me grew out of the ed by him thus: “Brigham wanted me to business so started. The accounts were kept assume with him an amount that he (Brigand the business done by the firm. Q. Did ham) said McAlister claimed he (Brigham) you not initiate all the business at loaning owed him, and pointed out to me that it money by making Brigham your agent by would all come out right if we done it and means of a written power of attorney? A. no fuss was made; that his family had large Yes; but the business was all done by the expectations on the death of Dr. McAlister and firm, and their statements and accounting to did not want that interfered with. * * * me were done in the firm name. Q. Did you As a result of this solicitation on the part of erer send or give Salinger any money to loan Brigham, with whom my relations were very for you? A. I think not; the money was intimate, I agreed with him that the amount sent to Brigham, but the business was done claimed by McAlister should thereafter be by the firm of Salinger & Brigham. Q. Was treated as a debt due from Salinger & Brignot all the money originally transmitted to ham instead of L. P. Brigham." Some time Brigham in the form of bank drafts to his in the year 1892, Brigham died, intestate, and, order? A. Probably that is true. Q. Did as it would seem, insolvent. In July, 1893, Fou ever loan Salinger any money or let him as we have seen, the notes sought by this achave any property? A. Not individually, tion to have canceled, were given. Respectthat I now remember. All my business trans- | ing the same, it is the testimony of Dr. Mcactions, aside from the power of attorney, Alister (read from the deposition by crossHere with Salinger & Brigham.”

petitioner) that "after Brigham's death I told The further proof makes it appear that the Salinger I would release Brigham's portion money was actually handled by the firm of of the firm of Salinger & Brigham's indebtSalinger & Brigham, and principally employ edness to me, if he would give me his personal ed in making cbattel loans. That whatever notes for $4,100, to be secured by a policy of profit or benefit arose therefrom inured to life insurance on Salinger's life, he to keep and was taken over by the firm is not ques the policy paid up. He gave the notes and tioned in evidence or argument. For a time | kept the insurance policy paid up." And on matters were carried along in the shape of an the subject Salinger says no more than that open account, concerning which reports were the notes “are the outgrowth and rest upon no other thing that I ever received or tbat the | ters stood when the so-called shortage came firm ever received excepting the thus as to the surface. It was then too late to deny suming (under the agreement with Brigham the responsibility of the firm, and as the firm as testified to by him) of this obligation of L. was responsible so were the individual memP. Brigham.”

bers thereof. From this it follows the debt It does not appear what became of the notes for which the notes in controversy were given which were given to McAlister prior to the was in reality the debt of Salinger. And attempted settlement in November, 1891. We there was the added consideration of the set forth below the substance of all that ap agreement by McAlister for the release of pears in the record on the subject. On cross the estate of Brigham.. examination Salinger testified that he was a On the case as a whole, we conclude that witness and testified in his own behalf on the decree was wrong, and it is reversed. the trial of the main case in the year 1900. He was then asked: "Q. In that case you were asked this question, were you not, and made the answer that I read: "Q. When were the

DITTMER v. MIERANDORF et al. first notes given for the McAlister claim? (Supreme Court of Iowa. July 9, 1908.) A. I think some time in the late eighties,

BOUNDARIES – LOCATION OF CORNERS—Evisome time between '87 and '89.' Did you so DENCE-WEIGHT. testify? A. Iso testified at that time. I Findings of commissioners in an action to don't believe I have to answer whether that

determine the location of a section corner held was true, but I undoubtedly thought it was

against the weight of the evidence. true when I so testified. Q. And this further

Appeal from District Court, Sioux Coun-question and answer: 'Q. And those notes had ty; Wm. Hutchinson, Judge. been renewed from time to time either by The opinion states the case. Reversed. Salinger & Brigham, or one of them, until it G. T. Hatley, for appellant. was finally merged after Brigham's death into these notes for which you executed your notes WEAVER, J. The subject of controversy of July 11, 1893? A. They had been renew-l in this case is the location of the common cored from time to time by notes signed either by ner of sections 2 and 3, in township 94, range us two as individuals or by notes bearing 46, and sections 34 and 35, in township 95, the signature of Salinger & Brigham, or by range 46, in Sioux county, Iowa The plainnotes bearing my own signature alone.' Did tiff, who is the owner of a tract of land affectyou so testify? A. I did. I must have ed by such location, brought this action under thought it was a fact when I so testified.” the statute, claiming that the true location In response to further questions the witness thereof as fixed by the original government answered that he had no present recollection survey had been lost, and asked the appointof what became of any of the notes so given. ment of a commissioner to make the necessary Such is the case the record presents for our survey, and report the result thereof to the consideration. We shall not prolong this court. Acting upon this petition, the court opinion by any attempt at analysis-the ne appointed two surveyors, and commissioned cessities of the case make no such require them to make the survey, and to take testiment of us. The inquiry involved is simple, mony bearing on the location of said corner. and it is this: Are the notes here sought to Having qualified under said appointment, the have canceled based upon any consideration commissioners proceeded to take the testisufficient to support them? On their face, mony of the parties and their witnesses conthe notes import a consideration. This is cerning the location of the corner in question Dornbook law. And the burden is on tbe and the existence of alleged marks and monucross-petitioner to show that in fact no con ments relating thereto. The evidence so. sideration ever passed to him for their execu taken was reduced to writing, and returned tion. This he must do by evidence which into court with their report. In their report makes plain, clear, and satisfactory the con the commissioners practically reject all the clusion for which he contends.

testimony of the witnesses produced before We unite in the view that the burden has them as being immaterial or inconclusive, and not been sustained. To our minds, the evi- | proceed to state what they find and determine dence established affirmatively that there was to be the true location as indicated by their a consideration for the notes. Whatever the own survey. This survey they state was preliminary arrangement between McAlister made by going to certain other corners deand Brigham, the undisputed fact remains scribed as being "definitely located and unthat the money of the former went into the disputed," and measuring therefrom to other business of the firm of Salinger & Brigham, corners, which they also describe as being and that firm employed the same for its own “definitely located and undisputed," and from profit. The firm evidenced its intention to be these measurements they deduce the location bound for a return of the money, and Dr. | of the corner in dispute. The commissioners McAlister not only adjusted himself to the did not testify as witnesses upon the hearing situation but reciprocated by accepting the in court, and nothing appears in their report notes of the firm covering the balances sup or elsewhere in the record to indicate by what posed to be in its hands. And thus mat- | means they ascertained or knew or determin. ed that the fixed points from which they, by the road officers, but this claim was still found the location of tbe lost corner were in further strengthened by the testimony ot fact government corners, or that they had witnesses as to marks and monuments, corbeen or were definitely located and undisput roborating the theory that this was in fact ed. They concede that their measurements do the common corner of the four sections above not tally with the minutes of the original described as fixed by the original survey. On government survey, but conclude, after a com the other hand, the commissioners, who wholparison with other measurements in the same ly disregarded the testimony of the witnesses neighborhood, that all actual measurements produced before them, and proceeded to make of lines in that vicinity overrun the measure a survey of their own, were not produced as ment recorded by the government surveyors, witnesses on the trial, and the court was left and that the discrepancy in the present in to rely solely upon their missworn written stance is only such as could reasonably be ex- report. In this report we have, as already pected under these circumstances. To this noted, simply their ex parte statement that report the defendant objected on the ground they began and measured from certain "recthat the findings of the commissioners were ognized or established" corners. Upon what Dot justified by the evidence, and upon the this conclusion was based the record affords further grounds that the evidence clearly and no light. The appellee has not seen fit to asaffirmatively established the fact that said sist this court by appearing to the appeal or common corner was at a point which had filing a brief in support of the judgment bebeen fixed and settled by a former survey and low, and, after giving the case a careful exestablished by the judgment of the district amination, and after according to the judgcourt theretofore rendered under date of Jan- ment below all the presumptions which the uary 16, 1891. For these reasons the defend law raises in its support, we are still of the ant moved the court that the findings of the opinion that the clear, if not conclusive, commissioners be set aside, and that the cor weight of the testimony is against the finding ner be adjudged to be confirmed and estab of the commissioners, and that the objections lished in accordance with the prior judgment thereto by the appellant should have been referred to. The district court overruled the sustained. It follows that the judgment apobjections to the report, and confirmed the pealed from must be reversed and cause refindings of the commissioners, and ordered manded for further proceedings in harmony the establishment of the corner in accordance with this opinion. therewith.

Reversed. To a full understanding of the merits of this appeal, it should further be said that the litigation over this corner had its inception

STATE ex rel. PRITCHARD V. GREFE et al. in the year 1893, when a proceeding was begun in the district court for its establishment.

(Supreme Court of Iowa. July 7, 1908.) In that proceeding all of the alleged owners

1. SCHOOLS AND SCHOOL DISTRICTS-CONSOLIof land affected thereby were named as part

DATION.

Under Acts 32d Gen. Assem. (Laws 1907, ies plaintiff or defendant, and judgment was p. 153) c. 155, $ 2, providing that on a petition entered as above suggested under date of for the establishment of a consolidated indeJanuary 16, 1894, establishing said corner i

pendent school district, with limits coextensive

with those of a city, being filed with the board at the point which is now contended for by

of the school corporation therein having the the appellant herein. It subsequently appear-| largest number of voters, it shall be the board's ed that a mistake had been made with refer- duty to call an election, it is not required that ence to the ownership of one tract of the

the "corporation therein having the largest num

ber of voters" shall be entirely within the city land, and that the real owner thereof had not

limits, but the sole test is the number of voters been served with notice or brought into court. within the several districts, whether entirely As to this party, the judgment of January within the city limits or partly within and part16, 1904, has since been held not to be of any

ly without. force or effect. See Dittmer v. Mierandorf,

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 43, Schools and School Districts, $ 55.] 129 Iowa, 644, 106 N. W. 158. The corner as pow fixed upon by the commissioners' re

2. SAME.

The census of the state taken under Acts port is some 33 feet north and 29 feet east

30th Gen. Assem. (Laws 1904, p. 7) c. 8, which of the point fixed by the prior judgment. required the census to be published, and declarThe public highway has been laid out and

ed that such census should be evidence of all

matters therein contained, was competent eviworked for many years, and adjoining lands

dence in determining the particular school dishave been used and occupied with reference trict of a city having the largest number of to the corner as recognized by the prior judg voters within Acts 320 Gen. Assem. (Laws 1907, ment. An examination of the entire record

p. 153) c. 155, $ 2, notwithstanding such census

had been taken two years previous, in the ableads us to the conclusion that the trial court

sence of any showing of a change, for conditions was in error in overruling the objections to once established are presumed to continue for a the commissioners' survey. The testimony of reasonable time at least. the witnesses is substantially undisputed to

3. SAME. the effect, not only that this latter corner

To determine the particular school district

of a city having the largest number of voters was the one commonly observed and recog

within Acts 32d Gen. Assem. (Laws 1907, p. nized by the adjoining property holders and 153) c. 155, $ 2, it was competent to receive

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