Volume 11 — Minnesota Reports

This action was commenced in May, 1864, iii the Hennepin County District Court, by Francis M. Thornton, plaintiff, against Eliza Smith, William R. Smith, Emily Webb and Edward Webb, defendants.

This action was commenced in tbe District Court for Le Sueur county. The allegations of the complaint are substantially as follows: That on tbe 5th day of August, 1858, tbe defendant then being seized in fee simple and possessed of certain lands, (described in tbe complaint) executed a full warranty deed conveying such lands in fee simple to one Robert Bunker, in consideration of the sum of $1000, wbicb deed was duly recorded tbe same day.

■ Tbis action was brought in the District Court for Ramsey County, to recover the amount of certain interest warrants -or coupons, which were attached to certain bonds issued by the Board of County Commissioners of said county to Jay Briggs & Co., for grading and constructing a certain public street or road, as an extension of Port Street, in the city of Saint Paul, in said county, and assigned and transferred to plaintiff before maturity.

The corporate authorities of Le Sueur City, in accordance with Chap. 33 of the Public Statutes, and the act of Congress relating thereto, entered and purchased the lands embraced in the site of said town, in trust for the occupants thereof.

A writ of attachment in this action was issued out of the Dakota County District Court.

Judgment by default in this action was entered up in favor of tbe plaintiff, March 9, 1865, in tbe Eamsey County District Court.

I. The appellant was entitled to written notice of all proceedings in the action: Sec. 21, Pub. Stat. p. 627; Sec. 26, Pub. Stat. p. 628. II. Eespondent should have paid the judgment against him before he moved in the action. 6 Minn. 53. III. The ground on which the motion to dismiss was granted, does not authorize it. 1. The statute does not require the justice’s docket to show that any affidavit was made. Sec. 7, Subdv. 9, Pub. Stat. p. 498, 499. 2.

A motion was made by the defendant, before the judge of the fourth judicial district, to vacate the order made by the judge of the fifth district dismissing the appeal from the judgment of the justice of the peace in this cause, (the residence of the judge of the fourth district being nearest the county seat of Scott county,) which was denied, and the defendant appeals from the order denying the same to this court. (For further statement see preceding case.)

This action was brought in the Bamsey county District Court by the plaintiff, who claimed to be the owner and in possession of certain real estate, to determine the adverse -claim of the defendant.

Tbe parties to this action, on, the 28th day of February, 1865, entered into a written agreement to submit certain controversies to the decision of arbitrators, pursuant to Chap. 85, Pub. Stat., the award to be reported within fifteen days to the District Court for the County of Rice. The time for filing the award was afterwards extended to the 23d day of March, 1865, by stipulation. The award was transmitted to the clerk, under seal, March 20, 1865.

This action was brought in the District Court for Scott county, by Joseph Ferguson, against Joseph Kumler and wife, and Michael Kumler, to set aside certain alleged fraudulent conveyances made by the said Joseph Kumler and wife to Michael Kumler.

This is an appeal, by the defendant, from an order of the District Court for Eamsey county, overruling a demurrer to the reply. A sufficient statement of the case -will be found in the opinion of the court.

This action was brought in the District Court for Winona county, to recover possession of block number 104, in the City of Winona, claimed by plaintiff as a public square. Issue was joined in the action, and the cause tried before a referee. Sundry exceptions were taken to the rulings of the referee upon the trial, in regard to testimony admitted or offered, which with the testimony objected to, so far as material, appear in the opinion of the court.

Tbis action was brought in tbe District Court for Ramsey county, to recover a balance alleged to be due upon an accounting between tbe plaintiffs and defendants. Issue was joined therein, tbe defendant, Heylin, only appearing in tbe action.

This action, was brought in the District Court for Scott county, under Sec. 35, Ch. 72, Comp.

An indictment was presented by tbe grand jury of Sibley county to tbe District Court of said county, against tbe defendant, under Cbap. 41 laws of 1864, for an assault with intent to do great bodily barm, being armed with a dangerous weapon. TJpon tbe trial tbe defendant was found guilty, and sentenced by tbe court to one year’s bard labor in tbe State’s prison. Tbe defendant removes tbe case to this court by writ of error.

Rbnnfc brought an action against Hellmiller before a justice of the peace in Goodhue county, for damages done to the growing crops of the plaintiff by the cattle of the defendant, etc., and claimed judgment for the sum of $35, the value of the crops, and the further sum of $10 for the trouble and expense plaintiff incurred in driving away defendant’s horses and colts, and in repairing the fences, and for injury to the same, amounting in all to the sum of $45 00.

This action was brought in the District Court for Rice county, and was .tried by the court without a jury. In the decision of the court below, the facts are found substantially as follows: Prior to and on the 4th Sept., 1858, the plaintiff, Misener, and the defendant, Van Brunt, were engaged in business as co-partners, under the firm name of Van Brunt & Misener, and owned and occupied lot 1, block 45, in Faribault, on which was a store, as tenants in common.

This is an action founded upon an alleged contract between tbe plaintiff and tbe Street Commissioners of tbe Second Ward of the City of St. Paul, for the grading of Bench street.

This action was commenced in the District Court for Winona county.

■ This is an appeal from an order of the District Court for Bamsey county, denying a motion to set aside the judgment, process, &c., in this action. The summons was served by publication and a writ oí attachment had issued; judgment was entered by default, and an execution issued, under which the properly attached was seized and sold.

This action was brought in the District Court for Ramsey County. The complaint sets out a cause of action upon a promissory note executed by the defendants to Dodge, Stevenson & Co., and by them assigned, as is alleged, for a valuable consideration, before maturity, to the plaintiff.

This action was commenced in the District Court for Brown county. Trial was had before the court without a jury. The court filed its decision or finding, which, after reciting the facts found, concluded as follows: “ Ordered, that the plaintiff herein have judgment as prayed for in his complaint.” No judgment was entered. The defendant appeals to this Court, and a motion is made to dismiss the appeal.

This action was brought in the District Court for Bamsey county. The allegations of the complaint are substantially, that on the 14th day of April, 1865, the defendant had and received of plaintiff (a minor) to his use the sum of $410, and executed to the plaintiff his receipt therefor in writing, that before the commencement of this action, plaintiff presented said receipt and demanded said money, which was .refused.

This action was brought in the District Court for Hennepin county, to recover of the defendant the amount bid by him upon a sale of land on execution.

This action was brought to recover of the defendants the sum of $1,000 and interest.

■ This action was commenced against the defendant, who was a non-resident, by the publication of the summons August 9, 1864. The plaintiff in his complaint, alleges, in substance, that in May, 1864, the defendant made a contract with him, swhereby the plaintiff was to make sale of certain lands of defendant in Olmsted county, and was to receive for his services in making such sale the excess above $1,650, and was to have one year in which to make the sale.

This action was for tbe conversion of certain property, consisting of silver watches and silver watcb cases, and one gold watcb case, belonging to tbe plaintiff. Tbe answer denied tbe allegations of tbe complaint, and set np two counter claims arising upon contract; to wbicb tbe plaintiff replied, denying tbe same. Tbe cause was brought to trial, before a jury, at a general term of the Pamsey County District Court.

This action was brought in the Scott County District Court, for the taking and. conversion of certain personal property. The answer attempted to set up two defenses ; to the second the plaintiff demurred, and the demurrer was overruled; from the order overruling the same, the plaintiff appeals to this Court. A sufficient statement of the case appears in the opinion of the Court.

This action was brought in the District court for Winona county, to recover the sum of $1,193 75, found due the plaintiff from “ The Transit Railroad Company,” upon an accounting had with said Company December 27, 1858, for money loaned and labor performed, the plaintiff claiming that the said “ Transit Pailroad Company” and tbe defendant are one and the same corporation.

The plaintiffs presented to the judge of the District Court for the county of Scott, a petition for the appointment of commissioners, under Chap. 129, Pub. Stat., to make assessment of the damages resulting from the erection of a mill dam on certain lands owned by them, and its maintainance forever, by overflowing or otherwise, to real estate not owned by them or damaged by consent. The petition specified the defendants as the owners of such lands.

This action was brought in the District Court for Olmstead County, to recover certain promissory notes, demands and obligations alleged to have… Held: (page 379,) notwithstanding the compounding of the felony, that duress of imprisonment, or threats of imprisonment, would avoid any deed, or other instrument, extorted by such means; and ordered a new trial on that ground. A new trial was had, and the duress established, and the case came again before that court in 13 Mass.

This action was commenced in the District Court for Kamsey county. The defendant, appearing specially by attorney, made a motion to set aside the summons, &c. The plaintiff afterwards amended the summons and had it reserved.

Tbe defendants in tbis action were common carriers of passengers. In March, 1862, one Mathew McLean took passage on defendants’ stages from La Crosse to St. Paul, paying the nsnal fare.

This action was brought in the District Court for Scott county.

This action was brought in the District Court for Winona county, to recover damages for injuries sustained by the plaintiff, Caroline Johnson, while a passenger on the cars of the defendant. These injuries, it was alleged by the plaintiff, were occasioned by the negligence and carelessness of the servants and employees of defendant.

This is an appeal from an order of the District Court for Bamsey county, overruling a demurrer interposed to the complaint. The opinion of tbe Court contains a sufficient statement of tbe case.

This action was brought to remove a cloud upon plaintiff’s title to certain lots in the city of St. Paul, occasioned by certain certificates issued by the Street Commissioners of the Third Ward of said city, in payment for building a sidewalk along the front of said lots, and the sale made to collect the same. The cause was tried before a referee, who reported in favor of the plaintiff, and judgment was entered pursuant thereto.

This action was commenced in Scott county, lor tbe recovery of a balance due upon a promissory note.

Action brought in the District Court for Hennepin County, to remove a cloud from plaintiff’s title. Cause tried before the court, without a jury. After the plaintiff had introduced testimony and rested, the defendant moved for a dismissal of the action, on the ground of failure of evidence to sustain the action; which motion was granted, and a judgment of dismissal entered. A bill of exceptions was filed ; the plaintiff removes the cause to this court by writ of error.

This action was brought in the District Court for Washingington county by the plaintiff, to collect of the defendant the value of the rents of certain real estate of the plaintiff, for the renting of which he claims the defendant to have been his agent, and to have neglected and refused to rent the same, though he had many opportunities. The case was tried before a referee, who reported in favor of the plaintiff, and a judgment was entered.

In the title of this cause the plaintiffs are mentioned as “ partners, doing business under the firm name and style of Beatty & Stedman,” and the defendants as “late partners, under the firm name and style of Ambs & Wittman.” There are no allegations of partnership, either of the plaintiffs or the defendants. The complaint sets out a cause of action for goods, etc., sold and delivered by the plaintiffs to the defendants, to the amount of' $315 55.

This action was brought in the District Court for Scott county, in October, 1865.

The plaintiff brought this action in the District Court for Eamsey County, against the defendant, as one of several persons associated and transacting business under the common name of “The Proprietors of Superior,” upon a joint liability of such association, under Sec. 38, p. 536, Comp.

This suit was brought in the District Court for Olmsted county, by Delana Babcock, and Olive Crabbs and Francis D. Babcock, by their guardian ad Tótem, against.Ephraim. D. Cobb, to recover possession of one hundred and sixty acres of land in said county, and to remove an alleged cloud upon their title. The cause was tried by a referee.

This action was brought in the Eamsey County District Court, and the issues joined therein were tried before a referee, who found for the plaintiff, and judgment was entered up in its favor; from this judgment an appeal is taken by the defendants to this Court. A sufficient statement of the case appears in the opinion of the Court.

This action was commenced in the District Court tor Good-hue county. An appeal is taken to this Court, from an order of the Judge, at chambers, granting a preliminary injunction upon an ex parte application of plaintiff’s, upon their duly verified complaint. Is this an appealable order ? Appellant affirms that it is, for the following reasons : 1. Such is the literal reading and rendering of the words of the statute.

The plaintiff brought this action -to recover compensation for keeping reception books, as required by Sec. 22, pages 156-7, and Sec. 35, page 159, Pub. Stat., while register of deeds of Olmsted county. Issue was joined, and the cause was tried by the court without a jury.

Tbis is an appeal from an order of tbe District Court for Hennepin county, overruling a demurrer to tbe complaint.

This is an appeal taken by the defendant from an order giving the plaintiff leave to issue execution on a judgment, after the lapse of five years from its entry, on which, no execution had issued. A sufficient statement of the case appears in the opinion of the court.

This action was brought in the District Court for Groodhue county, to recover the possession of certain real estate in that county. The complaint alleges title in plaintiff; that the defendants are in possession, claiming title, and that they wrongfully withhold possession from the plaintiff.

This action was brought in the District Court for Winona county, upon an undertaking for an attachment executed by the defendants pursuant to the provisions of Chap. 60, Pub. Stat.

Action brought in the District Court for Hennepin county, upon a promissory note. The pleadings are the complaint, and answer of the defendant, Kimball, and are sufficiently stated in the opinion of the court.

The plaintiffs sought in this action to recover the amount of a judgment of the District Court for said county, in their favor, against The Minneapolis and Cedar Talley Railroad Company: They alleged in their complaint, in substance, among other things, that the defendant was a corporation originally created and organized under the name of The Minneapolis and Cedar Talley Railroad Company; that said corporation was revived and continued under the corporate name of The…

This action was brought in the District Court for Hennepin County. The complaint sets out four distinct causes of action.

On tbe third day of December, 1857, one F. W: H. Pogers and one Edward Worthington, being the owners of certain real estates in Winona county, executed a mortgage upon the same to the defendant, to secure among other demands, the payment of a promissory note of said Pogers and Edward Worthington, to said defendant, dated May 6, 1857, also a promissory note, executed by said Pogers and Edward Worthington, to one Amos Worthington, and endorsed by defendant, dated Nov. 12, 1857.

This is an appeal from an order of the District Court for Goodhue County, overruling a general demurrer interposed to the complaint. The allegations of the complaint are sufficiently stated in the opinion of the court.

On the 20th day of June, 1865, the plaintiff filed his complaint in the office of the clerk of the District Court for Olmsted County, and on the same day, summons was served on… Held: and justly so, that the mortgage could be so foreclosed. But as no such distinction is made in our statute, the reasoning in those cases is of no consequence in this case, and is mentioned only to ex-explain certain reported cases which might otherwise mislead; e. g. Cush. R. 559; 19 Pick. 535.

This action was commenced in the District Court for Good-hue county. All of the defendants appeared, two of them answered separately; to certain portions of these answers the plaintiffs demurred. The court below overruled the demurrers, and from the order overruling the same, the plaintiffs appeal to this court. A sufficient statement of the case will be found in the opinion of the court.

The plaintiffs brought this action in the district court for Bamsey county, Sept. 2,1864, to eject the defendant from certain lands in said county. The defense set up was a tax title under a tax sale made Feb. 12, 1863, under the act relating to such sales of the 11th of March, 1862. The tax deed was made and recorded, May 28, 1863. Trial was had, and the jury found a verdict for the defendant, upon which judgment was perfected.

These were proceedings under the statute for the collection of taxes on personal property.

The district court for Olmstead county, upon the petition of the Winona & St. Peter E. E. Co., appointed commissioners to assess the damages for right of way, &c. The commissioners determined and reported the compensation to be paid by tbe company to tbe defendants, Waldron and wife. Tbe defendants appealed from tbe report and'award of tbe commisioners to said district court.

This action was commenced in the District Court for Bamsey county. The plaintiff sued out a writ of attachment, on the ground that the plaintiffs were in danger of losing their debt unless an attachment should issue. The defendant made a motion to dissolve the' attachment, based upon the affidavit upon which the writ was granted, the writ of attachment, and counter affidavits.