Volume 110 — Minnesota Reports

Action in the district court for Hennepin county to recover $225 for services and medical attendance. The facts are fully stated in the opinion. The case was tried before Simpson, J., and á jury which returned a verdict in favor of defendant for one dollar. Plaintiff’s motion for judgment in its favor for $50, notwithstanding the verdict, was granted.. Prom the judgment entered pursuant to the order, defendant appealed.

Action in'the 'district' court for Stearns county to determine adverse claims of tlm defendants to' real estate described-and to obtain possession thereof.

Defendant was accused in the municipal court of Minneapolis of the offense of keeping an unlicensed drinking place. The case was tried before Charles L. Smith, J., and a jury which found defendant guilty. From an order denying his motion for a new trial, defendant appealed.

Action in the district court for St. Louis county to recover $2,000' on defendant’s benefit certificate' upon the life of plaintiff’s husband. The defenses alleged in the answer are stated in the third paragraph of the opinion.' The case was tried before D’bell, J., and a jury which rendered a verdict in favor of the plaintiff. Erom an order- denying its motion for judgment notwithstanding the verdict or for a. new trial, defendant appealed.

[Action in the district court for Rock county under Laws 1907, chapter 23 (R. L. Supp. 1909, §§ 2023 — I to 2023 — 13) to recover ■one dollar for every day’s delay to furnish plaintiff with cars as •demanded for the shipment of grain from the village of Hardwick to Minneapolis, Chicago or Davenport, Iowa, during the months of September and October, 1907, and $50 :£or an' attorney’s fee for' bringing the action.

Action in the district court for Ramsey county to recover $25,500 for personal injuries sustained through defendant’s alleged negligence. Defendant’s answer was a general denial. The case was tried before Brill, J., who directed a verdict in favor of defendant. From an order denying plaintiff’s motion for a new trial, he appealed.

Action in the district court for Lake county to determine adverse claims to certain land based on a state assignment certificate to an undivided half thereof, and on an alleged notice of expiration of, time for redemption, a copy of which was attached to the complaint.

Action in the district court for Washington county to recover $1,632.68 which plaintiffs were compelled to pay to satisfy a mortgage on land conveyed by them to defendant. The facts are stated in the opinion.

Action in the district court for Martin county to quiet plaintiff’s title to certain land and to recover the possession thereof. The case was tried before Quinn, J., who directed a verdict in favor of plaintiff. From the judgment entered pursuant to the verdict, defendants James First and Lothar Harms appealed.

Action in the district court for St. Louis county to recover $25,600 for personal injuries and special damages. The case was tried before Hughes, J., and a jury which rendered a verdict in favor of plaintiff in the sum of $1,000. Erom an order denying- defendant’s motion for judgment notwithstanding the verdict or for a new trial, it appealed.

Action in justice court in the city of St. James, county of Watonwan, to recover $42 for the conversion of a bell and platform. Defendant admitted taking the property and alleged that it was the property of the village of Butterfield and that in taking it he acted for and in behalf of the village. From judgment for $15 and costs in favor of plaintiff, defendant appealed to the district court for that county.

Action in the district court for Washington county against Daniel J. McCuish, Patrick McAlpine and James Brennan to recover $144 for the conversion of certain logs bearing plaintiff’s recorded log mark. The answer was a general denial.

Action in the district court for St. Louis county against L. G. Bradley and O. H. Bradley to recover $2,850.72 upon a promissory note. The substance of the answer of defendant O. H. Bradley, Avho alone appeared, and of the reply to it are stated in the opinion. The case was tried before Dibell, L, and a jury which rendered a verdict in favor of plaintiffs for $2,873.87.

Action in tlie district court for Ramsey county by tlie administrator of the estate of Thomas Wickham, deceased, to recover $5,000 for the death of his intestate. The complaint, in addition to the averments mentioned in the second paragraph of the opinion, set out the sections of the Wisconsin statute relating to death by wrongful act and to action therefor.

Action in the district court for Ramsey county against Charles Clifford and his wife, the city of St. Paul, and all other persons-unknown claiming any right, title, interest, or lien in the real estate-described in the complaint, to determine adverse claims to a certain vacant city lot. Defendant Clifford in his answer admitted that the lot was vacant and unoccupied and alleged that he was the owner thereof in fee simple.

Action in the district court for Cass county to recover $225 on’ nine promissory notes. The substance of the pleadings is stated in the opinion. The case was tried before McClenahan, J., and a jury which rendered a verdict in favor of defendant. :Erom an order denying plaintiff’s motion for judgment notwithstanding the verdict or for a new trial, it appealed.

J. A. Baldwin appealed to tbe district court for Watonwan county from an order of the board of supervisors of the township of 'Rosendalé laying out ¿ certain road. Clinton Ellsworth, Jeremiah Crowley and Peter A. Axten weré permitted to intervene and contest the appeal, there being no appearance by the board of supervisors. The appeal was heard before Pfau, J., who made findings as Stated in the opinión, and vacated the Order of the supervisors.

Action in the district court for Hennepin county to recover $550 alleged to be due upon .an employer’s liability insurance policy. The case was tried before Holt, J., who made findings and as conclusion of law found that plaintiff was entitled to judgment in the sum of $353.57. From an order denying defendants’ motion for a new trial, they appealed.

Action in the district court for Ramsey county by the executrix of the estate of Mauritz Johnson, deceased, to recover $5,000 for the death of her intestate by reason of defendants’ negligence. The case was tried before Bunn, J., and a jury which returned a verdict in favor of plaintiff for the amount demanded. From an order denying defendants’ motion for judgment notwithstanding the verdict or for a new trial, they appealed.

Action in the district court for Hennepin county against the county auditor, county treasurer, and county commissioners of that county, and the First National Bank of Minneapolis to restrain the auditor from issuing and delivering certain bonds to the defendant bank; to restrain the county treasurer from accepting the proceeds and from expending the same; to restrain the defendant bank from accepting and paying for 'the bonds; and to declare Laws 1909, c. 405,…

Upon the petition of Hermánelos Gauthier a writ of habeas corpus directed to'-Adelbert Walter and his wife Emma was issued by the district court for Ramsey county, requiring them to show cause why they detained petitioner’s son, Archie Gauthier.

Defendant appealed from a judgment in justice court to the municipal court of St. Paul. The proceedings in the justice and municipal ■courts are stated in the opinion. The order for judgment of affirm.ance was granted by Ilanft, J. Defendant’s motion for an order vacating the order affirming the judgment was denied by Einehout, -J. From the judgment of affirmance, defendant appealed.

Hpon information of tbe attorney general the district court for Ramsey county issued a writ of quo warranto directed to Charles L. Haas, requiring him to show cause by what right he held the office of assessor for Eamsey county.

Action'in the district court for Hennepin county under Laws 1907, c.':23, to recover $64 for delay in furnishing cars-for the shipment' of freight and an attorney’s fee of $25 for each cadse af action' alleged. The complaint alleged that the delay was not caused on account of any strike, public calamity or accident, or by any cause not within the power of defendant to prevent. The substance of .the answer to the second cause of action is stated in the opinion.

Action in the district court for Goodhue county to recover $3,200 ■on a promissory note. In its answer defendant set up that its treasur■er received the note as security for plaintiff’s debt to it, as stated in the opinion, that the note was in defendant’s possession, and interposed a counterclaim for $12,000. The reply alleged that plaintiff having delivered his report to defendant, the note was returned to plaintiff.

Action in the municipal court of St. Paul to recover $236.60, balance alleged to be due upon the purchase price of three carloads of No. 1 white cedar shingles. The allegations of the answer and reply are stated in the opinion. The case was tried before Finehout, J., who made findings and as conclusion of law found in favor of defendant. From the judgment entered pursuant to the findings, plaintiff appealed.

Action in the district court for Ramsey county to recover $757.95, balance claimed to be due on account of coal sold and delivered by plaintiff to defendant during April, 1906. The defendant in its •answer alleged a sale under an express agreement at the price of $6 per ton and payment in full. The reply denied all other allegations of the answer, except the sum paid. The case was tried before Hal-lam, J., and a jury which returned a verdict in favor of defendant.

Paul. The proceedings in the municipal court are stated in the first paragraph of the-opinion. From the judgment of affirmance, entered pursuant to the order of Iíanft, J., defendants appealed.

Action in the district court for Scott county to recover $500 for breach of a contract to execute and deliver to plaintiff certain notes aggregating that sum. The case was tried before Morrison, J., and a jury which rendered a verdict in favor of plaintiff for $592. From an order granting defendant’s motion for a new trial, plaintiff appealed.

Action in tbe district court for Hennepin county to recover $25,000 damages for libel. The words published appear in the opinion. The substance of the answer is given in the opinion. Plaintiff’s motion to strike out portions of the answer and to make other portions more specific was decided by Frederick V..

Action in the district court for Ramsey county to secure a permanent injunction against defendants, their officers, agents and employees, to restrain them from enforcing a certain order of the state board of health filed May 3, 1909. Upon filing the complaint the court granted an order directing defendants to show cause why a temporary injunction should not issue and until the hearing thereof granted a temporary restraining order.

Aqtion in tbe district court for Ramsey county against Eoley Bros., a corporation, and one Larson whose first true name was unknown, doing business as Eoley Bros, and Larson Company,to recover $26,000 damages for personal injuries.

Action in the district court for Hennepin county against the Mission Furniture Company, a corporation, Samuel H. Davis as an individual and as trustee in bankruptcy of the corporation, to recover $15,000 damages for personal injuries received in using an unguarded and defective saw in the factory of defendant corporation. Samuel H. Davis, individually and as trustee, answered.

Action, in tbe district court for Ramsey county to recover $10,425' for injuries alleged to have been caused by defendant’s driver failing-to observe the law of the road and negligently driving his wagon into-plaintiff’s vehicle. The case was tried before Hallam, J., and a jury which rendered a verdict for defendant. From an order denying plaintiff’s motion for a new trial, he appealed.

Action in the municipal court of St. Paul to recover $98.25 claimed to have been converted by defendant to his own use while in the plaintiff’s employ as bookkeeper and cashier. The answer' was á ■general denial. The case was tried'before Hanft, J., who made findings and as conclusions of law ordered judgment in favor of plaintiff for the sum demanded. From an order denying defendant’s motion for a new trial, he appealed.

Action in the district court for Ramsey county by Edison Electric Light & Power Company and-St. PauLGaslight Company to restrain defendants from moving certain buildings on certain streets in the city of St. Paul, and pending the determination of the action for a temporary injunction. ’ ■ The complaint alleged that pursuant to certain ordinances of the common council of that city plaintiff companies, engaged in the manufacture and distribution of electric current to the city…

Action in the district court for Blue Earth county to recover on a demand promissory note for $2,000, dated December 21, 1904, and executed by defendant in favor of the Mankato Malting Company. The facts are stated in the opinion. The case was tried before Quinn, J., acting for the judge of the Sixth judicial district, who directed a verdict for $2,231 in favor of plaintiff. From an order denying defendant’s motion for a new trial, he appealed.

Action in the district court for Lyon county against the trustee in bankruptcy of the partners doing business under the name of the Tracy Furniture Company to recover a balance of $2,661.95 on three promissory notes dated May 8, 1907, which were secured by a chattel mortgage of the same date upon a stock of goods, and to have the mortgage, Exhibit B, declared a lien against the property therein described and against moneys received from the sale thereof.

. Action in the district court for Itasca county to recover $5,000 for the wrongful death of plaintiff’s intestate. The case was tried before McClenahan, L, and a jury which rendered a verdict in favor of plaintiff for the amount demanded. Defendant’s motion for judgment non obstante was denied and its motion for a new trial ,was granted. Erom that part of the order which- granted the motion for a new trial, plaintiff appealed.

Action in the district court for Stearns county to enjoin-.-defend.ants from filling up or interfering with a certain ditch,. or destroying plaintiff’s crops, or breaking down any of his fences, upon certain described premises.

Relator petitioned the district court for Ramsey county for an alternative writ of mandamus directed to defendant corporation, its president and treasurer, to permit relator, a stockholder, to examine its books and accounts. The writ was granted, defendants made return thereto, and the relator demurred to the return.

Action in the district court for Olay county to recover $5,000 for the breach of a promise to marry. The- answer was a general denial. The case was tried before Baxter, J., and a jury which returned, a verdict in favor of plaintiff for $1,500. From an order setting’ aside-the verdict and granting defendant’s motion for a new trial, unless; plaintiff would consent to a reduction of the verdict to $500, plaintiff appealed.

Action in the district court for Ramsey county to recover $282 under a lease. The answer alleged that the lease was void, an eviction, and set up a counterclaim for $1,300. The case was tried before Brill, J., who directed a verdict for plaintiff in the sum of $250. Prom an order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial, he.appealed.

Action in the district court for Ramsey county to recover $2,500 damages for personal injuries received while alighting from defendant’s street car. The case was tried before Hallam, J., and a jury which rendered a verdict in favor of plaintiff for $750. From an order denying defendant’s motion for a new trial, it appealed.

Maria Fallon presented a claim for $500, with interest for twenty-three years, against the estate of her brother William Fallon, deceased, which was in process of settlement in the probate court of Olmsted county. From an order of the probate court disallowing the claim, she appealed to. the district court for that county, where Snow, J., found in her favor. From an order denying the motion of William Fallon, the administrator of the estate, for a new trial, he appealed.

Action in the district court for Hubbard county by the administratrix of the estate of James M. Steele, deceased, against the Great Northern Railway Company and the Red River Lumber Company to recover $5,000 for the wrongful death of plaintiff’s intestate. The facts are stated in the opinion.

Action in tbe district court for Goodhue countj to recover possession of certain land and for $1,080 damages for withholding possession thereof.

After the decision of the former appeal, 104 Minn. 17, 115 N. W. 751, sustaining a demurrer to the complaint, plaintiff served an amended complaint against the Creamery Package Manufacturing Company, the Owatonna Manufacturing Company, the Disbrow Manufacturing Company, Darius W. Payne and Levi A. Disbrow.

Tbe defendant was convicted in tbe district court for Ramsey county upon an indictment under R. L. 1905, § 5118, charging bim with receiving a deposit in bis private bank, tbe Bank of Hamline, while he well knew that he was insolvent. His motion for a new trial was denied, Olin B. Lewis, J. He was then sentenced to two years’ imprisonment at hard labor. From the judgment entered thereon, he appealed.

Action in the district court for Hennepin county against Robert S. Leighton, ■ Wyvell-'Harrington Company, James Stanley, George T. Propper and Harry Seymour to recover $15,000 for conspiracy among defendants in deceiving plaintiffs in the exchange of the equity in their real estate in Hennepin county for money and land in Bed Lake county. Defendant Leighton’s separate answer was a general denial. The case was tried before Simpson,.

Action in the district court for Ramsey county by plaintiff, a stockholder in defendant corporation, Roberts Architectural & Ornamental Iron Works, against that corporation, Philip W. Herzog and Herzog Iron Works, praying that defendants Herzog and Herzog Iron'Works issue one-half of the capital stock of that corporation to plaintiff, and that the same defendants account for business done by him and Herzog Iron Works from the time, they took possession of the Roberts…

Action in the district court for Olay county to recover $1,200 alleged to have been paid by mistake upon a forged check. The facts are stated in the opinion.

Action in the district court for Big Stone'county to recover $596.07 (the amount of plaintiff’s unpaid judgment against Bichard IT. Chapman, senior, for material furnished the latter) for failure to require of Chapman a contractor’s bond under Laws 1901, c. 321,, he being insolvent.

Action in the district court for Ramsey county to determine adverse claims to a parcel of land. The answer alleged that Rufus 0. Jefferson and E. H. Hoard were the owners thereof in fee simple.

Action in tbe district court for Hennepin county to recover $5,000 upon an insurance policy against accident. Tbe answer admitted that defendant repudiated all liability upon tbe policy and declined to pay any part of tbe sum prayed for.. The case was tried before Brooks, J., who denied defendant’s motion for a directed verdict and submitted the case to the jury, which returned a verdict in favor of plaintiff in the sum of $5,161.56.

The .county commissioners of Renville county granted a petition for a change in the boundaries of a certain independent school district. Shortly thereafter Laws 1909, c. 13, granting an appeal to' the district court from such an order, was enacted, and the remonstrants against granting the petition appealed to the district court for Renville county. The appeal was dismissed, Powers, J. From the order of dismissal, the remonstrants appealed.

Action in tbe district court for Red Lake county to recover $10,000 for slander. [The complaint of plaintiff and respondent alleged: In the course of a contest for the removal of the county seat from the city of Red Lake Falls to the city of Thief River Falls', during which a spirit of bitter feeling and rivalry existed, it was incumbent upon the county auditor to perform certain duties by law prescribed, in the performance of which he could and did exercise certain…

Action, in the district court for Eamsey county under sections 1816, 4255 and 4256 of the statutes of Wisconsin by the special administratrix of the estate of William Bruckman, deceased, to recover $5,000 for the death of her intestate. The facts are stated in the opinion. The answer alleged that decedent’s death was caused by his own negligence and that the risks and hazards incident to his employment were assumed by him when he entered the service of defendant.

Action in the district court for Ramsey county to recover $104,000 upon certain bonds issued and sold by defendant society to the Building & Loan Association of Dakota, and alleged to have been sold to plaintiff. The defenses set up by defendant society are stated in the opinion. C. F. Easton, as receiver of the Dakota Building & Loan Association, served a complaint in intervention, the substance of which is given in the opinion.

Action in the district court for Stearns county by the administratrix of the estate of Leo Tomczek, deceased, to recover $5,000 for the death of her intestate.

Application to the district court for Bamsey county to register title to a certain vacant city lot. The examiner of titles made his. report, setting forth the outstanding assessment certificates of sale owned by the city of St. Paul and suggesting that the city be made one of the parties defendant. The city answered and set out the several judgments and sales which it claimed gave it liens upon the lot, and prayed that they be adjudged to be paramount liens.

Action in the district court for Freeborn county against defendant railway company and Martin Sander to recover $10,000 for personal injuries sustained while moving an engine in defendant’s round house.

Action in the district court for Hennepin county to recover $1,600 upon a promissory note. The defense made by the answer is stated in the opinion. The case was tried before Dickinson, I., who directed a verdict in. favor of plaintiff in the sum demanded. From an order denying defendant’s motion for a new trial, he appealed.

Action in the district court for Polk county to recover $25,000 for slander. Eroih an order, Watts, J., overruling the demurrer as to each of three causes of action, defendant appealed.

Action in the district court for Olay county to recover $100 upon a promissory note. In his answer defendant set up his discharge in bankruptcy on May 3, 1904, by the district court of the United States for 'the Sixth district of Minnesota, and that the cause of action set out in the complaint was a debt provable against his estate in bankruptcy and set out in his schedule of debts filed in that court. The facts are stated in the opinion.

Action in the district court for Norman county to recover $2,000 for personal injuries. The answer was a general denial. The case was tried before Grindeland, J., and a jury which returned a verdict in favor of plaintiff in the sum of $280. Defendant’s motion for judgment notwithstanding the verdict or for a new trial was denied. From the judgment entered pursuant to the verdict, defendant appealed.

Action in the municipal court of St. Paul against W. E. Barker and William Riebolt to recover $422.50 for breach of a warranty in the sale of two horses. The action was dismissed as to defendant Barker. The case was tried before Finehout, J., who found in favor of plaintiff for the sum of $200. From an order denying defendant Riebolt’s motion for a new trial, he appealed.

Action in the district court for Hennepin county to recover $48,500 on fourteen causes of action for delay of defendant, as a common carrier, in furnishing refrigerator cars during the months of October and November, 1907, for the transportation of apples from the state of Washington.

Action in the district court for Ramsey county to recover $25,000 damages for personal injuries sustained in March, 1901, by the collapse of a certain bridge while plaintiff was crossing it.

Petition to tbe supreme court for a writ of quo warranto directed 'to tbe Sperry & Hutchinson Company, a corporation, requiring it to show cause by what right it transacted business in the state of Minnesota.

Action by seven persons in the district court for Ramsey county tereco ver $3,500 for the conversion of four promissory notes which plaintiffs, with five other persons, had executed. The substance of the complaint is stated in the opinion. Defendants demurred to the-complaint on the ground that it appeared on its face there was a defect of parties plaintiff. Erom an order, Bunn, J., overruling the demurrer, defendants appealed.

Action in the district court for Ramsey county to recover $25;000 damages for personal injuries. Defendant in its answer alleged plaintiff’s injury was due to his failure to exercise proper care for his own safety. The ease was tried before Ilallam, L, and a jury which returned a verdict in favor of plaintiff for $8,500.

<p>In proceedings' in the district court for Meeker county to enforce certain delinquent taxes, defendants appeared specially for the purpose of objecting'to the jurisdiction of the court to enter judgment, and set up that the assessment for a certain county ditch was void; that no statement of lien had been filed with the register of deeds, and no notice or summons and list, as required by E. L. 1905, § 906, had been published. The case was tried before Qvale, J., who made findings as stated in the opinion, and ordered judgment that objectors were entitled to a judgment of dismissal on the claim for a ditch lien. The substance of the first judgment entered, and subsequently vacated on motion of defendants, is stated in the opinion. From the second judgment of dismissal entered pursuant to the findings, plaintiff appealed.</p>

<p>Evidence of Negligence — Judgment Notwithstanding Verdict.</p> <p>Evidence presented in the record examined, and held insufficient to sustain the charge of negligence made the basis of the action.</p>

<p>Flooding Hand — Question of Fact for Jury — Charge to Jury.</p> <p>Evidence considered, and held to present a 'question of fact, which was properly submitted to the jury.</p>

<p>Action in the district court for Itasca county to recover $300.. The ease was tried before Spooner, J., and a jury which returned a verdict in favor of plaintiff for $128.02. The court, on April 18, 1904, granted defendant’s motion for judgment in its favor notwithstanding the verdict. Judgment was entered on April 30,. 1904. Plaintiff on February 24, 1910, served notice of appeal from the order for judgment.</p>

<p>The county attorney for Steele county, at the request and direction of the attorney general of the state and by virtue of the law in such cases provided, began an action in the district court for Steele county against the Creamery Package Manufacturing Company and the Owatonna Manufacturing Company.</p> <p>Among other matters the complaint alleged that on March 1, 1898, defendants and many other corporations, firms and persons to the plaintiff unknown which were engaged in the same business as that of defendants, and among all of which there was then strong competition, entered into an agreement, trust and combination by which under various written and oral contracts between them the defendant creamery company purchased all the property of P. B. Pargo & Company and in payment therefor issued certain shares of its capital stock; that the creamery company likewise purchased all the property of many other corporations, firms and persons to the plaintiff unknown; that the defendant Owatonna company agreed no longer to sell in the open market any of the creamery supplies manufactured by it but to sell to said creamery company alone all such articles thereafter to be made by it, the creamery company agreeing to sell the .same at a greatly increased price to the persons purchasing the same, and to pay to the Owatonna company fifty per cent, of the price so obtained, the said creamery company to purchase of the Owatonna company about fifty-five per cent, of the chums and butter makers sold by it; that by these agreements the Owatonna company was to sell no churns or butter making machines to any other person than said creamery company, “and it was further understood and agreed between said defendants and all said other corporations, firms and persons unknown to plaintiff that there should never thereafter be any competition between them or any of them;” “that the purpose and object of said trust, combination and agreements was to regulate and fix the prices of said chums, butter making machines and creamery supplies within the state of Minnesota, and to limit the production thereof, in restraint of trade, and to prevent, limit and destroy all competition in the purchase and sale of such articles;” “that ever since said first day. of March, 1898, all the agreements hereinbefore mentioned have been continued, renewed and carried out by the defendants and said other corporations, firms and persons to the plaintiff unknown, and for the' same purpose on the part of the defendants and all others connected with them, to wit: To regulate and fix the prices of said churns, butter making machines and creamery supplies within the state of Minnesota, and to limit the production thereof, in restraint of trade, and to prevent, limit and destroy all competition in the purchase and sale of such churns, butter making machines and creamery supplies within said state;” that by virtue of said combination defendants and the other persons to plaintiff unknown have since March 1, 1898, regulated and fixed the prices of such articles within the state and have limited the production thereof, in restraint of trade, and have prevented and destroyed competition in the purchase and sale of such articles; that, immediately upon the formation of said combination, the selling prices throughout the state of Minnesota of said articles were arbitrarily advanced from ten to fifty, per cent, by defendants without any justification or cause therefor except the formation of said trust, which advance in selling prices has ever since been maintained by the trust; that by reason of the wrongful acts of defendants the creamery company has wrongfully secured and controls in the state of Minnesota more than three fourths of all the business of manufacturing and selling the articles specified, and ever since March 1, 1898, it has sold such articles at exceptionally high prices and with excessive profits to' itself, which prices would not and could not have been secured in open market with bona fide competition in the absence of any such combination, Irust and agreement as complained of. The complaint prayed for the decree of the court forfeiting the corporate franchises of the Owatonna company and prohibiting the creamery company from continuing its business within the state of Minnesota.</p> <p>The several demurrers of the defendants to the complaint on the ground that it did not state facts sufficient to constitute a cause of action were overruled.</p> <p>Defendant creamery company then answered separately, admitted the purchase of all the property of F. B. Fargo & Company and the issue of certain shares of its stock in payment therefor, and similar purchases by it of all the property of a number of other corporations, and alleged that it and the Owatonna company made eight agreements in writing, copies of which were attached to its answer; that each of said agreements had solely to do with the rights under certain letters patent of the United States, by which there was granted to the applicant, his heirs and assigns, the sole and exclusive right to make, use and vend throughout the United States for the term of seventeen years the invention described in the letters patent; that the term-had not expired at the date of said agreements; that of these patents all but one were then owned by the Owatonna company; that the agreements had solely to do with defendant’s interstate business; that on September 12, 1899, the answering defendant, an Illinois corporation, complied with the statute of Minnesota relating to foreign corporations doing business therein and received from the secretary of state of Minnesota, upon payment of the required fee, a certificate which entitled it to all the benefits of the laws of Minnesota for a period of thirty years from that date. The answer further alleged that if any part of any one of such agreements should be held to be opposed to any law of Minnesota, such law violates section 11 of article 1 of the state constitution and section 10 of article 1 of the federal constitution, in that such law impairs the obligation of contracts, and violates amendment 14 of the federal constitution in that it deprives defendant of property without due process of law and denies to the defendant the equal protection of the laws, and violates section 8 of article 1 of the federal constitution giving exclusive power to regulate commerce among the several states to the federal congress; that no state has any right to pass a law interferring with or in any way controlling or modifying the exclusive rights granted to inventors in their respective discoveries by acts of congress passed pursuant to section 8 of article 1 of the federal constitution; that if any law of Minnesota makes any one of the agreements invalid or void it violates section 8 of article 1 of the federal constitution, and violates the acts of congress passed pursuant thereto.</p> <p>For further and separate defenses the answer set up that the cause of action did not accrue either within six years or within two years before the commencement of the action.</p> <p>Save for certain specific facts admitted, the reply was substantially a general denial.</p> <p>The case was tried before Buckham, J., who made findings as stated in the opinion, and as conclusions of law ordered judgment as stated in the opinion and also ordered that the action be dismissed on the merits as to the Owatonna Manufacturing' Company. The Creamery Package Manufacturing Company appealed from ah order denying its motion for a new trial.</p> <p>The states are prohibited by the federal constitution from legislating as to property rights in patents, except in so far as may be necessary to protect their citizens against fraud. Tangible property, which comes into existence under a patent, is subject to the control of the state in the same manner as other property, but the intangible property right in the patent itself stands on a different plane. The states, as to this kind of property can make regulations only to protect their citizens from fraud in case congress has not acted on the same subject. Aside from this limited exception congress is the sole body having a right to control patent rights, and every state law or decision derogating in any degree from the rights granted by congress is beyond the authority of the state and void. Crittenden v. White, 23 Minn. 24; Ex parte Robinson, Eed. Cas. 11,932; Patterson v. Kentucky, 97 U. S. 501; Webber v. Virginia, 103 U. S. 344; Allen v. Riley, 203 U. S. 347; John Woods & Son v. Carl, 203 IT. S. 358; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251.</p> <p>The weight of authority is that the state anti-trust laws cannot, without violating the federal constitution, detract from or limit the monopoly granted to the patentee by áets of congress. (See cases cited in the opinion on pages 435, 436, infra). The vital respect in which anti-trust laws infringe the patentee’s exclusive rights is by limiting (and to that extent destroying) his power of assignment.</p> <p>The fact that a patentee by the use of his monopoly, either separately or in combination with other patent owners, obtains incidentally the control of an nnpatented article, does not subject the patent to state anti-trust laws. What the patent gives to the inventor, his heirs and assigns, is a right “to make, use and vend” the patented thing, and this right is exclusive, vendible, assignable and descendible. All these qualities inhere in the grant and pass both to the patentee and his representatives and assigns. The right to make, use and vend a thing must be construed as broadly as may be in order that the thing granted may rather live than perish. So construed, it must mean the making and using and -vending in every way, to the end that the patentee will, during the short term of his monopoly, receive the highest commercial advantage for his invention. It is an unlimited right, without qualification and without exception. Having, as we have seen, absolute dominion over the patented article during the period of the patent (Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 H. S. 405), he may use his invention or not at his pleasure, and may exact for the use of it by others any price, however exorbitant'or unreasonable. In such absolute dominion he may refuse to sell either his patent or his patented device, except on the condition that the purchaser shall buy from him unpatented commodities at prices higher than the market, or sell to him such commodities at prices lower than the market. Heaton-Peninsular Button Fastener Co. v. Eureka Specialty Co., 77 Fed. 288; Victor Talking Machine Co. v. The Fair, 123 Fed. 423; John D. Park & Sons Co. v. Hartman, 153 Fed. 24.</p> <p>The agreement of 1898 did not offend against the common law. Kronschnabel-Smith Co. v. Kronschnabel, 87 Minn. 230; State v. Duluth Board of Trade, 107 Minn. 506; National Benefit Co. v. Hnion Hospital Co., 45 Minn. 272. That agreement, when made, did not violate any law of this state. The 1891 law (c. 10, amended by Laws 1893, c. 125; see G. S. 1894, §§ 6955, 6956) is not infringed by the agreement of 1898, because that law has to do only with necessities of life. The law of 1899 (chapter 359) is by its terms prospective. It operates solely on forbidden combinations made “hereafter,” that is, after April 21, 1899. The law of 1901 has no bearing on this case. It has nothing to do with the forfeiture of charters or of corporate licenses, or with ouster or exclusion from the state. Sections 5168 and 5169, E. L. 1905, condemn only acts committed after March 1, 1906, when the revised laws went into effect.</p> <p>In view of the decision in Crittenden v. White, the anti-trust statutes should be construed so as to exclude combinations in patent rights. The purport of what was said by this court in that case is that the state legislature had no right to interfere with free commerce in patent rights. The presumption is violent that the legislature intended to follow that declaration, and thus exclude patent rights from the prohibitions of the anti-trust laws.</p> <p>This is a proceeding for a penalty or forfeiture to the state in which the statutory limitation is two years. E. L. 1905, § 4078; State v. Bonness, 99 Minn. 392. This action was begun on October 11, 1907.</p> <p>The- acquisition of other concerns was not in violation of any law of Minnesota. The purchase of a competing business is not forbidden in this state either by common law or by statute. National Benefit Co. v. Union Hospital Co., supra; Kronschnabel-Smith Co. v. Kronschnabel, supra; Espenson v. Koepke, 93 Minn. 278; State v. Duluth Board of Trade, 107 Minn. 506.</p> <p>Defendant did not violate any law by using names other than its own in its business. These names were part of the property bought and went with the good will of the business as a valuable property right. State v. Continental, 177 Mo. 1; Beebe v. Hatfield, 67 Mo. App. 609; Washburn v. National Wall Paper Co., 81 Fed. 17. A corporation may, of course, be known under different names; it is merely a question of identity. Morawetz, Priv. Corp. (2d Ed.). § 354, pp. 339, 340; Clark, Corp. § 34, note 134; Cook, Corp. (6th Ed.) § 15, p. 84.</p> <p>Defendant’s license to do business in the state is a contract protected by the state and federal constitutions.. It- is under the shield of both constitutions, so that it cannot be revoked — (a) arbitrarily, or (b) for cause insufficient to forfeit a domestic charter, or (c) for ex post facto reasons.</p> <p>A few general propositions are well established by the decisions, viz:</p> <p>1. The present Minnesota statute against combines is similar to the Sherman Anti-Trust Act. Judge Lochren says, at page 699 of 123 Fed. that its language is evidently taken from that act. State v. Duluth Board of Trade, 107 Minn. 506; State v. Northern Securities •Go., 123 Fed. 692.</p> <p>2. Contracts by which a person, or number of persons, agree to discontinue business and remain out of business for all time, or for a limited time in all territory, are illegal and void. Shawnee Compress Co. v. Anderson, 209 IT. S. 423; State v. Duluth Board of Trade, supra. ■ ■</p> <p>3. Every agreement or transaction whose direct effect is to destroy or prevent competition is in restraint of trade. Northern Securities Co. v. United States, 193 U. S. 197; United States v. American Tobacco Co., 164 Fed. 700; Shawnee Compress Co-, v. Anderson, supra; United States v. Trans-Missouri Freight Assn., 166 U. S.. 290; United States v. Joint Traffic Assn., 171 U. S. 505; State v. Duluth Board of Trade, supra; United States v. Standard Oil Co., 173 Fed. 177.</p> <p>4. Where the necessary and direct effect of the combination is to restrain trade or effectuate a monopoly, the intent is immaterial. Addystone Pipe & Steel Co. v. United States, 175 U.'S. 211. ■</p> <p>5. But where acts in themselves are not directly, but incidentally, in restraint of trade or do not directly tend towards a monopoly, or are only an attempt, the intent of the parties becomes material. Swift & Co. v. U. S., 196 U. S. 375, 395; Loewe v. Lawlor,20,8' U. S. 274; Pennsylvania Sugar Befining Co. v. American Sugar Befining Co., 166 Fed. 254; Bigelow v. Calumet & Hecla'Mining Co., 167 Fed.- 704,</p> <p>6. The turning over by competing corporations of "their proper^, ties to one concern, whether, done through the purchase- of the shares- of stock of the competing corporations or by purchase outright of their personal-'property; is prohibited.. ' In the'infetant case.-this is further emphasized by the requirement in the contract of February 24, 1898, that the. corporations-whose property was taken over go out of business and dissolve as corporations. Harding v. American, 182 111. 551; Richardson v. Buhl, 77 Mich. 632; Stewart v. Erie & W. Transp. Co., 17 Minn. 348 (372); Small v. Minneapolis Electro-Matrix Co., 45 Minn. 264; Lufkin v. Fringeli, 57 Oh. St. 596; McCutcheon v. Merz Capsule Co., 71 Eed. 787; McConnell v. Camors-McConnell Co., 152 Eed. 321; Continental Security Co. v. Interborough R. T. Co.,' 165 Eed. 945; Dunbar v. American, 224 111. 9; Northern Securities Co. v. 'United States, supra; United States v. American Tobacco Co., supra; Distilling & Cattle Deeding Co. v. People, 156 111. 448, 488; State v. Standard, 49 Oh. St. 137.</p> <p>7. A conveyance, or attempted conveyance, of property, which offends against the preceding proposition, is void. The transferee acquires no title to such property. McMullen v. Hoffman, 174 U. S. 639; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Continental-Wall Paper Co. v. Louis Yoight & Sons Co., 212 U. S. 227; Dunbar v. American, supra; Thomson v. Thomson, 7 Yes. 470; Levy v. Nansas City, 168 Eed. 524; McCutcheon v. Merz Capsule Co., supra; State v. Nebraska, 29 Neb. 700.</p> <p>8. A combination has obtained a monopoly when it has reached a position where it can control prices and suppress competition. United States v. American Tobacco Co., 164 Eed. 700.</p> <p>9. That the Creamery Package Manufacturing Company held assignments of the patents valid on their face will avail nothing; the court will look into the whole transaction. McMullen v. Hoffman, supra, and cases cited; McCutcheon v. Merz Capsule Co., supra.</p> <p>10. A combination between two or more independent and competing corporations, engaged in manufacturing and selling under letters patent, to eliminate- the competition between them and create a monopoly, is in violation of the statutes. Blount Mnfg. Co. v. Yale & Towne Mnfg. Co., 166 Fed. 555; National Harrow Co. v. Hench, 83 Fed. 36; National Harrow Co. v. Hench, 84 Fed. 226; BobbsMerrill Co. v. Straus, 139 Eed. 155; Strait v. National, 18 N. Y. Supp. 224; National v. Bement, 47 N. Y. Supp. 462; Mines v. Scribner, 147 Eed. 927; Bement v. National Harrow Co., 186 U. S. 70.</p> <p>11. This conspiracy was a continuing offense. Every overt act committed in furtherance thereof was a renewal of the same as to all of the parties. The statute of limitations does not begin to run until the commission of the last overt act. Neither can the parties claim a vested right to violate the law. Limitations of Actions, 19 Am. & Eng. Ene. (2d Ed.); Ochs v. People, 124 111. 399; Spies v. People, 122 "111. 1; 8 Cyc. 678; State v. Pippin, 88 N. 0. 646; United States v. Bradford, 148 Eed. 413; Com. v. Bartilson, 85 Pa. St. 482, 489; People v. Mather, 4 Wend. 229, 261; State v. Kemp, 87 N. 0. 538; American v. State, 75 Miss. 24; Lorenz v. United States, 24 App. Cas. (D. 0.) 337; People v. Willis, 23 Mise. 568, ■Raleigh v. Cook, 60 Tex. 438;- Com. v. Gillespie (7 Serg. & K. 469) 10 Am. Dec. 480; United States v. Standard Oil Co., supra; State v. Standard, supra; Travelers v. Fricke, 99 Wis. 367; United States v. Trans-Missouri Freight Assn., 166 U. S. 290; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28.</p> <p>The claim of appellant that its monopoly and its acts in restraint of trade wholly concern articles protected by letters patent (or rather the intangible rights of same) is wholly unwarranted by the facts in this case. The property affected is the creamery buildings themselves, the putting in of complete creamery outfits, the furnishing of butter making machines of all kinds, creamery supplies, in fact all machinery, including boilers, engines, shafting, pulleys, smoke stack, also consumable supplies such as butter tubs, salt, etc. The findings of the court lay particular stress on the monopoly of the defendant in “creamery supplies.” Further, the trial court has a finding (not challenged) that such control of the general creamery supply business was secured largely by the fact that by such combination the Oreamery Package Manufacturing Company became the owner of the patented articles required in such business. Therefore, the monopoly of appellant is one of tangible property, the lumber and other material going into the building, and all machinery, substances and articles used in the construction of complete outfits, and also all such installed in the building for the making and production of butter — a necessity; also the consumable supplies used in the production of butter.</p> <p>We therefore urge that the authorities cited by appellant’s counsel are rather against them than for them, especially the United States supreme court cases.</p> <p>But we contend that the different owners of different patents, who are manufacturing and selling articles in competition with each other, have no right to combine to eliminate competition and form a monopoly, no matter what form the combination takes; and that the contracts made pursuant to such a scheme are void; and that no corporation which attempts to acquire patents pursuant to and as n part of such a scheme, can acquire any title to such letters patent. .For the contract is void. This seems to us to be elementary.</p> <p>The testimony is conclusive that the assignments of patents, although by instruments separate and distinct from the February .24, 1898, contract are yet in fact simply a formal matter, and possibly to make a record at the patent office in Washington; the •contract of February 24, 1898, is what conveys the patents, if there was any conveyance of title. Those assignments of patents are within the rule stated in Walter A. Wood v. Greenwood, 7$ S. C. 318. A contract may be lawful in itself as an isolated matter, but yet be unlawful as a part of a scheme to create a virtual monopoly.</p> <p>Our contention is that (although the monopoly in question does not cover any of the special articles mentioned in the first part •of G. S. 1894, § 6955), it is within the meaning of the words “or any other commodity or article whatever” and is specifically ■covered and named by the words “any commodity or article to be manufactured, mined, produced or sold in this state.” See United 'States v. Bitty, 208 U. S. 393. "</p> <p>The statute of 1899 (chapter 359) is of the same purport, but using a little different language, and there is no repealing clause attached to this chapter. The statute of 1901 (chapter 194) has a ■clause (section 5), expressly stating that chapter does not repeal ■any former law on the subject of monopolies; and the present statute covers the same ground, and the effect of any change of language there may be in the present law is covered by section 5508, B. L. 1905, that “The provisions of the.Bevised Laws,'so far as they are •the same as those of existing statutes, shall be.construed asjcontinuations thereof, and not as new enactments.” This must mean similarity of substance, but not necessarily the same language.</p> <p>The defendant (appellant) is the one who alleges the two year statute of limitation, and the burden is on the appellant to make good the defense (not on the plaintiff to disprove it).</p>

Action in the district court for Ramsey county against Charles jVl- Cannon and E. E. Baleóme to recover $5,000 damages for personal injuries sustained from an electrical machine while being treated by defendant physicians. The substance of the complaint is stated in the opinion.

<p>Action in the district court for Redwood county to recover $3,161.45, which plaintiff had been compelled to pay upon a promissory note which he had signed as surety for defendant. The substance of the complaint and of the defense is given in the opinion. From an order, Olsen, J., sustaining plaintiff’s demurrer to the defense set up in the answer on the ground it did not state facts sufficient to constitute a defense, and sustaining plaintiff’s demurrer to the counterclaim on the ground it did not state facts sufficient to constitute a counterclaim, defendant appealed.</p>

<p>Writ of certiorari from this court upon the relation of Ernest S. Cary to review an order of the district court for Hennepin county. Holt, J., adjudging relator guilty of contempt and sentencing him to thirty days in the county jail.</p>

<p>Action of ejectment in the district court for Norman county and for $800 damages for the wrongful occupation of the land. The answer set up title by adverse possession. The case was tried before Grindeland, J., who ordered judgment in favor of plaintiff. From an order denying defendant’s motion for a new trial, he appealed.</p>

Action in tbe district court for Blue Earth county to recover $5,000 damages for personal injuries sustained by defendant driving his automobile upon plaintiff as the latter was alighting from a street car on a certain street crossing.

Action in the district court for Polk county to recover $1,250' for damage to plaintiff’s land caused by defendant’s negligence in constructing ditches on its right of way. The facts are stated in the opinion.

Alternative writ of mandamus from the district court for Hennepin county directing the auditor of that county to print the name of David… Held: delegates were elected, convention was held and the election of David Morgan, whose residence is in the city of St. Paul, Ramsey county, Minnesota; that a certificate of nomination was sworn to and presented to defendant with the' demand that it be filed and the name of the candidate printed on the blue ballots; and that sections…

Action in the district court for Hennepin county for specific performance of a written agreement for the exchange of land and to recover $1,000 damages. After the decision of the former appeal (see 107 Minn. 177, 119 N. W. 948) plaintiff moved the trial court for leave to file a supplemental complaint. From an order, Brooks, J., granting the motion, defendant Gustav Rieck appealed.

Upon the petition of Henry Hughes, the district court for Itasca county issued its writ of quo warranto commanding respondent to appear before the court and show by what warrant he exercised and claimed the right to exercise jurisdiction as chairman of a certain school board. The substance of thé return to the writ is stated in the opinion. Relator demurred to the return. From an order, McClenahan, J., sustaining the demurrer, respondent appealed.

Action in the district court for Martin county by a son of Joshua W. Hart, ■ deceased, against his brother and sister for an accounting and to compel defendant Marland Hart to pay the remaining heirs of their father their share of the property, money and effects received by him from the estate. Defendants answered separately.

Action in the district court for Steele county to recover $1,634.86 j that the same be declared a lien and mortgage upon the undivided interest of the defendant in certain lands described, and that the lands be ordered sold pursuant to the statute in such case made and provided, and from the proceeds that plaintiffs be paid the amounts that shall be found due them, and the rest and residue, if any there be, be paid to defendant. The facts are stated in the opinion.

Action in the district court for Lae qui Parle county to recover $10,000 for false representations as to the location and quality of land which plaintiff received in an exchange of property with defendant.

Action in the district court for Becker county to recover $2,879, for money had and received. The facts are stated in the opinion. Erom an order, Taylor, J., granting plaintiff’s motion to set aside and vacate the written dismissal of the action made by plaintiff, unless defendant Sanders released the mortgage and made the payment mentioned in the opinion, defendants appealed.

Action in the district court for Hennepin county to enforce the specific performance of an option contract to convey certain real property. From an order, Dickinson, J., sustaining a demurrer to the complaint, plaintiff appealed.

The last will and testament of Patrick Rogers was allowed by the probate court of Wright County, against the objections of Mary Grattan.

Action in the district court for Hennepin county to recover $25,000 for personal injuries. The answer admitted the injury but denied negligence on the part of defendant. The facts are stated in the opinion. The case was tried before Simpson, J., and a jury which returned a verdict in favor of plaintiff for $3,292.50. Erom the judgment entered pursuant to the verdict, defendant appealed.

Upon the petition of James Degnan, this court issued an order directed to Honorable A. R. Pfau, Judge of the district court for Blue Earth county, and the clerk of that court to show cause why the files and records in the action of'Antoinette Degnan v. James Degnan, commenced in the district court of that county, should not be immediately transferred to the county of Hennepin and the yenue legally changed from the district court of Blue Earth county to the district court of…

C. W. Wheeler and others petitioned the district court for Big Stone county for the establishment of Judicial Ditch No. 1, and other persons petitioned for certain lateral ditches thereon. The court ordered that the Township of Almond and other municipal corporations be made parties. The other proceedings are stated in the opinion.

[Action in tbe district court for Hennepin county against M. W. Savage, doing business as tbe International Securities Company, and Minneapolis, St. Paul, Eochester & Dubuque Electric Traction Company to recover $1,983.30. Tbe separate answer of defendant Savage alleged that plaintiff was employed under a certain written contract, a copy of wbicb was made a part of tbe answer, and alleged full payment by defendant.

Action in the district court, for Dakota county to recover possession of a certain strip of land and $1,600 for the use of the same. The facts are stated in the opinion. The case was tried before Crosby, J., and a jury which returned a verdict in favor of plaintiffs for $600. Erom an order denying defendant’s motion for a new trial, it appealed.

Action in the district court for Wright county to recover $180.65, amount alleged to be due upon a promissory note. The facts are stated in the opinion. The case was. tried before G-iddings, J., who granted plaintiff’s motion to exclude all evidence relating to the counterclaim referred to in the opinion, and directed a verdict in favor of plaintiff for the amount demanded. Erom the judgment entered pursuant to the verdict, defendant appealed.

<p>Highway — Case Followed.</p> <p>A. Jacobson appealed to the district court for Watonwan county from an order of the board of supervisors of the township of Rosendale laying out a certain road-Jeremiah Crowley, Peter A. Axen and Clinton Ellsworth were permitted to intervene and contest the appeal, there being no appearance for the board of supervisors. The appeal was heard before Pfau, J., who made findings and vacated the order of the supervisors. From an order overruling the motion of the interveners for a new trial, they appealed.</p>

<p>Reciprocal Demurrage Act— Case Followed.</p> <p>Action in the municipal court of St. Paul under Laws 1907, c. 23, to recover $6 damages, and $100 as attorney’s fee to be taxed as costs, for delay in the delivery of three carloads of freight. The amended answer alleged that the only trains operated by defendant through the towns of Belview and Hazel Run, whence the freight was shipped, were interstate trains between Watertown, South Dakota, and Minneapolis and St. Paul, Minnesota, picking up freight at intermediate stations; that to have stopped the trains at the above stations and taken on the cars within the times mentioned in the complaint would have seriously interfered with interstate commerce, and that Laws 1907, c. 23, was unconstitutional and void. A demurrer to the answer on the ground that it stated no defense was sustained, Finehout, J. The case was tried before the same judge, who ordered judgment in favor of plaintiff for $6 damages, and $50 attorney’s fee to be taxed as costs. From the judgment entered pursuant to the order, defendant appealed.</p>

Action in justice court to recover $14.74 for merchandise sold. From a .judgment of the justice in favor of plaintiff for $7.58, plaintiff appealed to the district court for Watonwan county where the judgment was reversed and judgment ordered, Pfau, J., in favor of plaintiff for $14.74. From the judgment entered pursuant to the order, defendants appealed.

Action in the district court for Pope county to recover $100, the value of plaintiff’s property in certain flax and oats converted by defendant. The substance of the answer is given in the opinion. The reply was a general denial. Plaintiff claimed as mortgagee under a chattel mortgage from Ed. Olson of one half of all crops growing or to be grown on certain land. When plaintiff rested, defendant moved that the action be dismissed.

Action in justice court to recover $31.79, balance, due for labor and material furnished. The answer alleged payment in full. The reply alleged that defendant agreed to pay double because the work was done on Sunday., Prom the judgment in favor of plaintiffs, defendant appealed to.the municipal court of St. Paul upon questions of law and fact. The case was heard before Hanft, J., who found in favor of plaintiffs.

Action in the district court for Ramsey county to recover $25,800 for personal injuries received by plaintiff while employed as a railway mail agent in the service of the federal government. The case was tried before Bunn, J., and a jury which returned a verdict in favor of plaintiff for $3,328.25. From an order denying defendant’s motion for a new trial, it appealed.

Action in the district court for Traverse county against A. W. Lindquist and L. H. Bentley to recover $750 upon a promissory note, and change of venue to Hennepin county at the demand of defendant Bentley. The latter alone answered. From an order, Brooks, J., granting plaintiff’s motion to strike out the answer of defendant Bentley as sham, false and frivolous, and ordering judgment for plaintiff, defendant appealed.