M. P. R. Co. v. Twiss. Marston, 30 Neb., 241.) As between the carriers, however, each one is liable for the result of its own negligence, and although the first carrier may have assumed the responsibility for the transportation of property beyond its own line, and damages may be recovered against it for a failure in that regard, yet the carrier causing the injury will be liable to it for such damages; in other words, the party guilty of the wrong is ultimately liable therefor. This doctrine, in another form, has frequently been applied where a covenantee has been evicted from possession by paramount title. (Smith v. Compton, 3 B. & Ad. [Eng.], 407; Williamson v. Williamson, 71 Me., 442; Bever v. North, 107 Ind., 544; St. Louis v. Bissell, 46 Mo., 157; Wendel v. North, 24 Wis., 223; Mason v. Kellogg, 38 Mich., 132; 2 Black on Judgments, sec. 567.) In Bever v. North, supra, it was held that it was unnecessary to allege in the petition that the covenantor was required to defend. It was held that the covenantee need not appeal from the judgment of ouster, but might rely on his judgment. In this class of cases it is necessary to give notice to the covenantor in order that the judgment may be conclusive against him, and he should not only be notified of the action, and be requested to defend it, but if he desires should be allowed to do so to the utmost extent of the law. (Eaton v. Lyman, 26 Wis., 61.) The above rules have been applied to cases where persons are responsible over to another either by express contract or operation of law. Thus, where damages were recovered against a sheriff for the escape of a prisoner caused by its failure to provide a jail, and he in turn sued the county for its neglect in that regard, it was held that the record of the judgment against the sheriff might be received in evidence against the county to show the amount he was compelled to pay. (Coms. v. Butt, 2 O., 348.) So, where a judgment has been recovered against a municipal corporation for injuries caused by an obstruction or defect M. P. R. Co. v. Twiss. in the public road or street of which the wrong-doer has notice, is conclusive evidence of the obstruction or defect in the road or street, the injury to the individual, and the amount of damages. (Milford v. Holbrook, 9 Allen [Mass.], 17; Boston v. Worthington, 10 Gray [Mass.], 498; Davis v. Smith, 79 Me., 351; Littleton v. Richardson, 34 N. H., 187; Robbins v. Chicago, 4 Wall. [U. S.], 657.) Where the action is brought against a municipality for a wrong committed by a third person by reason of which the municipality is liable and judgment is recovered against it, it has been held in a number of cases that it was sufficient if the wrong-doer knew that the suit was pending for that cause and he could have made his defense if he so desired. It is said in one case: "The legal presumption is that he knew he was answerable over to the corporation, and if so, it must also be presumed that he knew he had a right to defend the suit." (Robbins v. Chicago, 4 Wall., 657; Chicago v. Robbins, 2 Black [U. S.], 418.) In other words, where the wrong for which the city was sued was committed by the defendant alone, and if a judgment is recovered against it, it will be because of such wrong. The knowledge of the wrong-doer that an action is pending to recover for the injury is sufficient notice to him to justify his action, and if possible prevent a recovery, and that if judgment. is recovered he will ultimately be liable. In the case at bar the defendant Twiss was called as a witness in both the county and district courts. He recognized his liability for the damages, both before and after suit was brought, by endeavoring to effect a settlement of the same. It is true the proof fails to show an actual request to defend the action, but as he and his partner had committed the injury, they must have known they were altimately liable for the same, and the plaintiff had an action over against them. Having this knowledge, it was their duty to defend the action if such defense they had. There is a material difference between a case like the one M. P. R. Co. v. Twiss. at bar and one where an action is brought by a covenantee against his covenantor. There the nature of the covenant claimed to have been broken, as well as the existence of the covenant itself, may be in issue, as well as the claim of the plaintiff. So if an action is brought against a municipality for an injury from a defective sidewalk which it was the duty of the lot-owner to maintain in good repair, notice may be required because the lot-owner may be presumed to have no knowledge of the injury, or that it occurred on his premises, or even that the sidewalk was defective. Where, however, the party knows that the injury was caused by himself and no one else, and that if a recovery is had it will be because of his neglect and wrong, it is sufficient that he has knowledge of the pendency of the suit and could defend if he so desired. (Chicago v. Robbins, 2 Black [U. S.], 418; Robbins v. Chicago, 4 Wall. [U. S.], 657, 672.) The case was tried upon the theory that the defendants were not bound by the amount of the judgment, and the instructions are based on that view of the law. The measure of damages which the plaintiff is entitled to recover is the amount of the judgment against it with interest and costs. (Ottumwa v. Parks, 43 Ia., 119.) The judgment of the district court is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. THE other judges concur. German Ins. Co. v. Penrod. GERMAN INSURANCE COMPANY OF FREEPORT, ILLI- [FILED SEPTEMBER 28, 1892.] 1. Continuance: ABSENT WITNESS: AFFIDAVIT. In an action upon a policy of insurance it appeared that the loss occurred December 24, 1889; that suit was begun May 9, 1890, and the issues made up June 30, 1890; that at the September term of the district court the case was passed till November 24th, when the trial was set for the 28th, on the morning of which day the defendants' attorneys filed certain affidavits, in which they stated, in substance, that the state agent was absent; that they did not know of his whereabouts; that he possessed important papers and that they could not safely proceed to trial without him, but failed to state what papers he possessed, or what they expected to prove by him, or any reason for the failure to take his deposition. Held, That the court did not err in overruling the motion for a continuance. 2. Fire Insurance: BUILDING IN COURSE OF ERECTION: Loss BEFORE OCCUPANCY. Where the testimony showed that the agent had power to and did issue the policy; that he filled out an application for insurance upon a building in process of construction, to be signed by the owner, and stated in the application that the building was being erected, although it was intended for the use of tenants and was stated in the policy to be so occupied, held, that, construing the several provisions of the application together, it did appear that the building was in course of construction, and being burned before it was completed, the fact that the building was vacant was no defense. 3. : AGENT'S AUTHORITY. As the agent had power to issue the policy, he had authority also to make any changes as to the person entitled to the benefit thereof which did not increase the risk; therefore, where the policy was for $1,000 and a mortgage named in the application for $700 was executed by the insured, an assignment of so much of the policy as would cover the mortgage was authorized by the agent. Held, Within his powers. 4. Evidence held to sustain the verdict, and there is no material error in the instructions. 5. Valued Policy Act. No particular objection has been pointed out in the statute of 1889, and it is sustained. 35 273 44 582 35 273 49 817 German Ins. Co. v. Penrod. ERROR to the district court for Gage county. Tried below before APPELGET, J. Rickards & Prout, for plaintiff in error. A. H. Babcock, and Geo. A. Murphy, contra. MAXWELL, CH. J. This is an action brought in the district court of Gage county to recover $1,000 on a policy of insurance on a dwelling house. On the trial of the cause the jury returned a verdict in favor of Penrod for $1,000, less $700 in favor of Parker as mortgagee, on which judgment was rendered, The loss occurred on the night of the 24th of December, 1889, and this action was brought May 9, 1890, and the issues were made up June 30 of that year. The case stood for trial at the September term of the district court of that county, but apparently by consent was passed until near the close of the term. On the 24th of November, 1890, the case was set down for trial on the 28th of that month. On the 28th the attorneys for the defendant below filed affidavits asking that the case be continued till the foot of the docket was reached, and, in effect, saying in their affidavits that they could not be ready for trial without the testimony of the general agent of the company, and that they had been unable to reach him by telegraph or otherwise. There is no statement of what facts it was expected this agent would testify to, nor are we informed of any reason why his deposition has not been taken. If the showing made for a continuance would be held sufficient it would be possible to continue any case. It appears that the trial took place on the 2d of December, 1889, and the jury was discharged on the next day. The defendants below do not seem to have been forced to trial with undue haste and have no just cause of complaint in that regard. The testimony shows that in the summer of 1889 Pen |