Volume 13 — Minnesota Reports

The plaintiff, claiming to be the “ owner in fee simple, and. in trust for the public, for their use, 'as a levee and public landing,” of certain premises, brought this action in the District Court for Blue Earth County, to cancel certain deeds alleged to be a cloud upon plaintiff’s title. The cause was tried before the Court without a jury. Both parties appeal from the judgment rendered. No exceptions were taken to the rulings of the Court upon the trial.

The plaintiff was an employee of the N. W. U. Packet Co. on the steamboat Mollie Mohler, which, boat was engaged in carrying passengers and freight on the Minnesota river from Belle Plaine, where it connected with defendant’s railroad, to Mankato and intermediate points.

This action was brought in the District Court for Goodhue County. Issue was joined, and the cause tried before a jury, who found a verdict for plaintiff for $500. The defendant made a motion for a new trial, which was denied, and from the order denying the same, defendant 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 Hennepin County to recover the balance, alleged to be due, upon a promissory note executed, by defendant on the 28th of February, 1869, for $674, payable in 15 months, with interest at the rate of 18 per cent, per annum. The defendant put in an answer containing two counts. The gist of the first defence was a denial of plaintiff’s title to the note.

This action was commenced in the District Court for Carver County, and is brought to this Court by appeal, taken by defendants, from an order of said District Court denying a motion for a new trial. A sufficient statement of the case will be found in the opinion of the Court.

This action was brought in the District Court for Ramsey County, upon' two accepted drafts or bills of exchange.

This action was brought in tbe District Court for Goodhue County. -The complaint is in the usual form upon a promissory note. The defendant appeared and filed his answer, to which the plaintiff interposed a demurrer. The Court below sustained the demurrer, and ordered judgment for the plaintiff. Judgment was entered, and the defendant appeals therefrom to this Court. The material portions of the answer, and the demurrer thereto, appear in the opinion of the Court.

An appeal is taken in this ease by tbe plaintiff from an order of tbe District Court for Scott County, granting leave to tbe defendant to file and, serve an answer. Tbe case is fully stated in tbe opinion of tbe Court.

This action was brought in the District Court for Winona County to recover possession of certain railroad ties, alleged by plaintiff to be his property, and unlawfully detained from him by' defendants. Issue was joined, and the cause tried before the Court without a jury. The Court found for the plaintiff, and judgment was entered’ up in his favor against defendants for the value of the ties; from this judgment the defendants appeal to this Court.

This is an appeal taken by the plaintiff from an order of the District Court for Hennepin County, denying a motion for a new trial after a verdict for defendants. A sufficient statement of the case will be found in the opinion of the Court.

This action was brought in the District Court for W ashington County, to recover damages for the alleged taking, and conversion by defendant to his own use, of certain wheat and oats, claimed by plaintiff to be his property.

This action was commenced in the District Court for Carver County, to recover.the value of a keg of brandy, alleged to have been delivered by plaintiff to defendant by mistake.

The plaintiff brought this action in the District Court for Fillmore .County, as endorsee, against the defendants as endorsers of the instrument set out in the syllabus, to recover the sum of money mentioned therein and interest. Issue was joined, and the cause tried before the Court without a jury.

The plaintiff and defendant entered1 into a contract in April, 1864, whereby defendant agreed to transport from Ottawa, Minn., 5,000… Held: to me, and guarantee the wheat represented by them •to be No. 1, and of the amount called for. I- would not deliver the wheat to Miles & Armour for him unless he gave me a written guaranty that he had the amount of. wheat at Ottawa, and as good as that I was to deliver him. at Milwaukee. * * * Our arrangement was to be in writing.

In this action an appeal to this Court is taken by the plaintiff from a judgment of the District Court of Olmsted county. The case is fully stated in the opinion of the Court.

This action was brought in the District Court for Dakota County.

This action was brought in the District Court for Goodhue County, for the recovery of certain liquors alleged in the complaint to be the personal property of the plaintiff, and unjustly taken from his possession by the defendant.

The defendant was indicted in the District Court for Olmsted County, was tried, convicted and sentenced ; he brings the cause to this Court by appeal. ' A full statement of the 'case will be found in the opinion. The indictment demurred to, charges two offenses. The forging of a note and the .uttering of a forged note are distinct offenses under the statute. General Statutes XCVI, Sections 1, 2.

This action was brought in the District Court for Wright County. The complaint avers that plaintiff, in September, 1864, enlisted in the military service of the United States to’ and for the credit of said town, and was mustered in in September. • That before enlisting the Supervisors of the town agreed with the plaintiff that if he would so enlist they would issue to him a bounty or war bond of the town for $300, payable in two years.

This action was brought before a Justice of the Peace in Nice County, to recover damages for a trespass upon real estate, and certified to the District Court, as involving the question of title. The defense was, that the loom m quo was a public highway, and that the defendant was overséer of highways, and in performing the acts complained of was acting in his official character and under proper authority.

<p>1. The defendant having been indicted for murder, was brought into Court and arraigned. Thereupon his counsel moved to quash the indictment on the ground that the defendant was confined in jail at the time the grand jury were impanneled, sworn, and engaged in finding the indiGtment, and had no opportunity to ahallenge the grand jury or any individual grand juror. Ho attempt was made to interposea challenge, though the prisoner’s counsel were in Court when the grand jury was impanneled and sworn, nor did it appear that any cause of challenge existed. Held: — That the motion was properly denied.</p> <p>S. The reception of evidence having no tendency to establish the charge contained in the indictment, and the natural effect of which is to prejudice the jury against the defendant, is ground for a new trial.</p> <p>3. Upon the trial of an indictment for homicide, proof of wounds not mentioned in the indictment may properly be received, if such proof agree in substance and generic character with the allegations of the indictment.</p> <p>4. To lay the proper foundation for previous statements of a witness contradictory to his testimony upon the stand, the general rule in regal'd to verbal statements is that such witness must first be asked as to the time, place and person involved in the supposed contradiction. The precise date need not be indicated. The object is, in justice to the witness and party calling him, to call the attention of the witness to the occasion referred to with reasonable certainty.</p> <p>5. The evidence 'in this case tending to show a killing with an axe, by inflicting therewith blows upon the head and neck of the deceased, which are claimed to have been inflicted in resistance of a civil trespass upon the lands or cattle or both of defendant,- and there being no pretense that the weapon was used without a design to' effect the death which followed its use. Hdd: — That to such a state of facts See. 13, page 598, Gen. Stat., has no application.</p> <p>6. It is the province of the Court to define what would constitute a provocation, by informing the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render/■ the average of men of fair average mind and disposition liable to act rashly, and without due deliberation or reflection, and from passion rather than judgment, and something which the jury are satisfied did so disturb and obscure the reason of the defendant in the case before them, so that the homicide was the result of the provocation. It is for the jury, under instruction of this general nature, to determine whether the provocation in thé particular case on trial is sufficient. The Court may properly elaborate and illustrate such general instruction, as circumstances may require, to bring the law clearly to the comprehension of the jury.</p> <p>7. In case of killing in heat of passion, upon sudden provocation, to determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration; for if it was effected with a deadly weapon, the provocation must be great indeed to lower the grade of the crime from murder.</p> <p>8. Where tlie intention to kill is formed and executed in the heat of passion, upon sudden provocation, or in sudden combat, the case falls within the meaning of Seo. 13, page 598, Gen. Stat., where it speaks of a killing “ intentionally but without premeditation.”</p> <p>If the intention to kill is formed before the heat of passion, upon sudden provocation, or in sudden combat, or though formed in the heat of passion is executed after sufficient cooling time, or after the heat of passion has subsided, the killing is with a premeditated design to effect death.</p> <p>9. Whore a homicide is committed in heat of passion, in sudden combat, the character of the weapon used is not to be taken into consideration in reference to a provocation, nor. in such case is it necessary that there should have been any legal provocation. But the character of the weapon may properly be considered in case of homicide in sudden combat, for the purpose of determining whether the party killing entered upon the combat with a premeditated design to kill, and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purposes of the combat, when his adversary was in possession of no deadly weapon, or other means of inflicting great bodily harm.</p>

This action has been before this Court twice by appeal, and. is again brought to its consideration by motion. The case is fully stated in the opinion of the Court, and in the previous volumes of Eeports referred to therein.

Tliis action was brought in the District Court for Olmsted County, and judgment was rendered therein for defendants. The plaintiffs appeal from such judgment to this Court. The case is fully stated, in the opinion of the Court.

The defendant in this case appeals from an order of the Court of Common Pleas of the County of Ramsey, striking out one of the defenses, set up in his answer. A sufficient statement of the case appears in the opinion of the Court.

This action was brought in the District Court for Ttamsey County to recover the value of certain property shipped on board the defendants’ steamboat, at St. Paul, consigned to plaintiff, and which, it is alleged, defendants failed to deliver. Issue was joined and the cause tried before a jury, who found a verdict for plaintiff, and judgment was entered in his favor; the defendants appeal therefrom to this Court. The case is sufficiently stated in the opinion of the Court.

This action was brought in the District Court for Ramsey County. The defendant answered and the plaintiffs made a motion to strike out the answer, and for judgment. The Court granted the motion, and judgment was entered. The defendant appeals. The complaint, answer, and motion appear at length in the dissenting opinion of Chief Justice Wilson.

The plaintiff in this action, which was brought in the District Court for Carver county, alleged the wrongful taking and detention by defendant, of 290 sheep, and 118 lambs, the property of the plaintiff, and demanded their return with damages.

The plaintiff in this case appeals to this Court from a judgment of the District Court for Nice county, dismissing the action. A sufficient statement of the case appears in the opinion of the Court. 1. We claim the right to recover in this action upon the principle reason, justice, “ christain morals and the common law,” as expounded in Northup vs. Graves, 19 Conn., 547, and sanctioned upon “ subsequent reflections” in Stedwell vs. Anderson, 21 Conn., 144.

This action was brought in the District Court for Bamsey County against' Bruno Beaupre, as the surviving partner of the firm of Temple & Beaupre, to recover damages for the breach of a contract, alleged in the complaint to have been made and entered into by and between the plaintiff and said firm. The answer was a general denial. The real defense was that the contract sued upon was not the contract of said firm, but of the steamer Mora or its owners.

This action was brought in the Court of Common Pleas of Bamsey county, to recover damages for the non-performance of a'contract for the sale and delivery of wheat. Issue was joined, and the cause tried before the Court, without a jury, who found for the plaintiff, and judgment was entered in his favor. Prom this judgment defendant appeals to this Court.

This action, was brought in the District Court for Le Sueur county, to vacate and set aside the foreclosure of a certain mortgage; the recovery of the mortgaged .property from the . purchaser under such foreclosure ; for an accounting for the use of the premises, &c. The cause was tried before a referee, who found, among other things, substantially the following facts : On the 18th day of July, 1857, the plaintiff executed to one Jeremiah Horno a mortgage covering 160 acres…

This cause is brought to this Court by appeal taken by the plaintiff from an order of the District Court for Bamsey county, setting aside the levy of an attachment issued therein. The case is fully stated in the opinion of the Court. I. —An execution or attachment against the property of a partner or tenant in common of property, may'be levied on his interest in the partnership or joint property.

This action was commenced in the District Court for Pamsey County by Franklin O. Day and William S. Stewart, as partners, as Derby & Day, to recover the amount alleged to be due said firm from defendant for goods, wares and merchandise sold and delivered by said firm to him. The answer for a defense to the action alleges that on the ' 8th day of July,x186Y, in an action then pending in said Court brought by one Lorenzo Allis against said Franklin 0.

The plaintiff in this action claimed to be the owner in fee simple under title by purchase upon foreclosure of a mortgage executed to hipa by one Folsom. Defendants also claimed title to the same premises, by purchase at the sale upon foreclosure of a prior mortgage, executed by said Folsom to their testator.

The plaintiff and defendant having a controversy which might be the subject of an action, agreed upon a case containing the facts upon which the controversy depended, and presented a submission of the same to the District Court for Chisago county.

This action was commenced in the District Court for Nice county, by Alexander Faribault against Isaac N. Sater and James H. Bangs.

The town site of Jifankato was purchased from the United States by the judge of the proper court, in trust for the use and benefit of the occupants, under the act of Congress commonly called “ The town site act.” The parties to this suit were contesting claimants for a certain portion of said town, (six blocks in fractional lot three, entered as part of the site,) seeking to obtain title thereto from the judge holding the same.

The defendant, who at the time these proceedings were instituted, was County Attorney for the county of Bamsey, upon the complaint -of certain persons insured in the Home Insurance Company of St. Paul, a company organized within this State, and situated in said county, applied to the president of said company to inspect the books, records and securities of said company, in order to examine into its financial condition, and ascertain whether it was complying with the law…

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

An appeal is taken in this action, by certain defendants who had demurred to the plaintiff’s complaint, from an order of the District Court for Blue Earth county, overruling their demurrer. The case is fully stated in the opinion of the Court.

This is an appeal taken by tbe defendants from an order of tbe District Court for Washington County, overruling a demurrer to tbe complaint. Tbe complaint and demurrer thereto appear in tbe opinion of tbe Court.

Tliis action was brought by the plaintiff for the seduction of his daughter, Catharine Fox. It was tried at the District Court in -Blue Earth Co., in May, 1867, when a verdict for §1,513 was rendered for the plaintiff. A motion for a new trial made upon a case was denied, and judgment entered upon the verdict. The defendant appeals to this Court.

This action was commenced in tbe Court of Common Pleas for the County of Ramsey, and comes to this Court by an appeal taken by the plaintiff, from an order granting a motion made to set aside the service of the summons. The case is fully stated in the opinion of the Court. I. —In a motion the moving party is confined to the grounds of motion stated by him, and no other can be considered. Buies of Court, 9; 6 Row. Pr., 296 ; 1 Code, 4-9.

The plaintiff claiming that the defendant had wrongfully taken and detained certain personal property belonging to the plaintiff, brought this action in the District Gourt for'Ramsey County, to recover possession of the same. The defendant justified the taking and detention, alleging that he was, at the time, sheriff of said county, and levied upon, and took said property under and by virtue of an execution duly-issued out of this court against the property of the plaintiff.

This action was commenced in tbe District Court for Nic- ‘ ollet County, and is brought here by appeal taken by the defendant from an order of that Court' granting a new trial. A question of practice only is involved in the decision, and the case is fully stated in the opinion of the Court. A further hearing upon the merits was had at the next term.

This is an appeal from the District Court of Dakota county. The appeal is taken by the defendant Davidson. The ease is fully stated in the opinion of the Court.

This action was brought to remove a cloud upon the title to certain real estate. The cloud alleged was a mortgage executed by the plaintiffs to the defendants to secure the payment of a debt for which the plaintiffs had also given their certain promissory notes which are mentioned in the mortgage.

This action was commenced before a Justice of the Peace in Dakota county ; was removed to the District Court for that county, where a trial was had, resulting in a verdict for the defendant; and it comes here by an appeal taken by the plaintiff from an order of that Court denying a motion for a new trial. The case is so fully stated in the opinion of the Court, that further statement is unnecessary.

This action was commenced in the District Court for Hennepin County.

The defendant removes this cause from the District Court of Iiennepin County to this Court, by an appeal taken from an order of that Court overruling a demurrer, which the defendant had interposed to the plaintiff’s complaint. The complaint, and the demurrer thereto, both sufficiently appear in the opinion of the Court.

The plaintiffs were the owners of a grist-mill and'dam erected by them in 186J on a stream of water flowing from Labe Washington, in Le Sueur county, and constituting its outlet. They brought this suit in the District Court for that county, alléging that in January,-1868, by the acts of the defendants, the water was dammed up and obstructed, at the outlet of said lake above plaintiff’s mill,, so as to stop its natural flow, and prevent the running of plaintiff’s mill.

This action was brought in the District Court for Steele county, and was tried before a jury. A number of exceptions were taken to the rulings of the Court below during the trial, before the charge to the jury, which with the issues joined in the action are fully stated in the opinion of the Court.

This action was brought in the District Court for Olmsted county, and comes here by an appeal taken by'the defendants from an order of that Court denying a motion for a new trial, made by them after a verdict for plaintiffs. A sufficient statement appears in the opinion of the Court.

The defendant in tbis case was indicted, tried and convicted ' of tbe crime of murder, and the sentence of the Court was pronounced. He brings the cause to this Court by appeal.

This cause comes to this Court by an appeal from an order of the District Court for Hennepin county, sustaining a demurrer to the reply. The case is fully stated in the opinion of the Court. . ■ ■

A motion is made in tbis.case to dismiss tbe appeal, which was attempted to be taken by the plaintiff from a judgment rendered against him in the District Court for Blue Earth county. The judgment was entered July 30, 1867, and the plaintiff attempted to appeal therefrom March 6,1868.

The defendant, wbo was indicted, tried, convicted and sentenced, in the District Court for the county of Steele, for the crime of murder, removes the cause to this Court by appeal. The case is fully stated in the opinion of the Court.

This suit was commenced in the District Court for Good-hue county, against Adelbert B. Clason and Charles L. Clason, partners as A. B. & C. L. Clason, and Michael B. Clason. The defendant- Michael B. Clason interposed a demurrer to the complaint, upon the ground that it appeared on the face of the complaint that two causes of action were improperly united, and that the complaint did not state facts sufficient to constitute a cause of action against him.

This action was commenced in the District Court forWashingtón county, against “Ruel Parker, Joseph Irish and Elias Scofield,, supervisors of the town of Newport,”, to recover damages occasioned, as alleged, by the acts of the defendants, under color of their office, and to restrain them from the commission of certain threatened acts in relation to the laying out and opening of a new road across the plaintiff’s premises and discontinuing an old one.

This action was tried in the District Court for Benton County before a jury, and the trial resulted'in a verdict for the plaintiff. The 'defendant made a motion for á new trial on the ground of misconduct of the officer having the jury in charge, and misconduct of the jury after they had retired to consider their verdict.

The plaintiffs in this case appeal from an order of the Court of Common Pleas, Ramsey county, sustaining a demurrer to the complaint.

This action was commenced in the District Court for Blue Earth county, and is brought here by the defendant Cullen, who appeals from the judgment, of that Court. A sufficient statement of the case will be found in the opinion of the Court.

The plaintiff, whose grantor was the purchaser of certain lands at a mortgage foreclosure sale, brought this suit in the District. Court for Ramsey county, in August, 1866, asking, for reasons set forth in his complaint, to be allowed to redeem said premises from a subsequent sale thereof under a prior mortgage. The cause was tried before the Court without a jury.

The plaintiff in this case appeals from the order of the District Court of Dakota county, denying a motion to strike out the answers of defendants as sham and irrelevant. The case is fully stated in the opinion of the Court.

This action was commenced in the District Court for Wa-' seca county on the IJth day of November, 1866, and on the same day garnishee summons was served on the garnishee. Judgment was entered against the defendants by defaiilt.

This action comes to this Court by an appeal taken by the defendants from an order- of the Court of Common Pleas, Ramsey County, overruling a demurrer, which they had interposed to the plaintiff’s complaint. The ground of de-. murrer was “ that the said- complaint does not state facts sufficient to constitute a cause of action.” The allegations of the complaint appear in the opinion of the Court.

Tlie plaintiff in this case appeals from an order of the District Court for Winona county, vacating a writ of attachment issued in the action, on the ground that the affidavit upon which it was granted and issued was insufficient. The material portion of the affidavit appears in the opinion of the Court.

This action was brought under the statute in relation to “forcible entries and unlawful detainers,” before a Justice of the Peace, to recover the possession of certain premises, which it was alleged the defendant held over after the expiration of a lease and notice to quit. The Justice certified the cause to the District Court for Kamsey county, as involving the title to real estate.

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

These actions were brought in the District Court for Nicollet county to recover the value of a stock of goods,-alleged to be the property of the plaintiff and wrongfully taken and detained by defendants.

This action was commenced before a Justice of the Peace in Waseca count)’'. On the trial the facts were admitted. It' appears that in and for the year 1861 and in and for the year 1865, a tax of-mills on the dollar was duly levied in the town of Ótisco in said county, for the purpose of paying the bounties offered by said town to volunteers in the IT.

The jury before whom this action was tried in the District Court for Ramsey county, found a verdict for the plaintiff for $500, and judgment was entered pursuant to the verdict. The defendant removes the cause to this Court by appeal. The cause is fully stated in the opinion of the Court.

This action • was commenced in the District Court for Nicollet county, against the defendant Davidson as surviving partner of Charles L. Ketchum, to recover a debt due from the firm of Davidson & Ketchum. Issue was joined by a general denial, and the cause tried before a jury. The defendant introduced no evidence; admitted on the trial that all the evidence introduced by plaintiff was true, and relied upon a failure of proof to establish the partnership.

This action was commenced in the Court of Common Pleas for Ramsey county, to set aside a tax deed, as a cloud upon plaintiff’s title to certain real estate, on the ground of certain alleged irregularities in the preliminary proceedings under which the deed was obtained. The case was tried before the ' Court without a jury, who found for the defendant, and ordered a judgment of dismissal to be entered. The plaintiff' appeals from such judgment to this Court.

The plaintiff, a freeholder and resident of the town of Bloomfield, in Fillmore county, filed his petition in this Court, setting out, among other things, substantially, that the commissioners of said county had granted the petition of certain parties praying that a certain road, which ran diagonally across certain sections in said town, be changed so that it would run upon the section lines; that the road thus to be changed was wholly within said town; that said road was of…

This suit was brought in the District Court for Ramsey county, against JMcCargar, the- original owner of certain premises, and other defendants, the mortgagees, and purchasers under mortgage foreclosure sale, to enforce a claim or lien in favor of the plaintiffs upon such premises and the buildings thereon as mechanics and material men under the statute. JfcOargar was not served with summons and did not appear in-the action.

■ This action was commenced in the District Court for Pill-more county. The defendant applied for its removal to the P. S. Circuit Court. The application was based upon the affidavit of the secretary of the company stating, that “ it, the defendant, believes,” &c., setting out the matters required in affidavits for such removals by the Act of Congress of March 2, 1867.

This action was commenced, in tbe District Court for Da: bota county, and was tried before a referee, wbo found: “ First, as matters of fact, that tbe. defendant Lasb being duly seized in fee of tbe premises in dispute, on or about tbe 16tb day of May, 1867, beld said premises for sale at a certain price and on certain terms, and tbe defendant Francis Newell was desirous of purchasing tbe same at tbe said price and on tbe terms aforesaid, but could not raise tbe money…

On the 21st day of July, 1865, Albert McOargar was the owner of certain real estate in the city of St. Paul, and being about to erect a building-thereon,1 contracted with the plaintiff for his services as architect in erecting the same.

The defendant in this action appeals from an order of the Court of Common Pleas, Ramsey, county, denying its motion for a new trial. A sufficient statement of the case appears in the opinion of the Court.

This action was commenced in the Court of Common Pleas of Bamsey county. The complaint alleges that the plaintiff at the special instance and request of the defendant performed work and. labor for the defendant in painting the Merchants’ Hotel in St. Paul, and that the value of such work and lab.or and materials furnished was $1259.50; that defendant has only paid $Y86.55, and asks judgment for the balance. • . The defendant answered as follows: First.

Maria B. Dayton, tbe sole legatee of Lyman Dayton, deceased, and Lyman C. Dayton, who claims to have been unlawfully removed from tbe office of administrator, with tbe will annexed of tbe estate of said Lyman Dayton, applied upon affidavit to this Court for a writ of prohibition to be issued, directed to Parker Paine, tbe administrator of said estate, appointed after tbe removal of said Lyman C. Dayton, and R. P. Crowell, Judge of Probate of Ramsey county.

A judgment in this action was rendered by the District Court for Hennepin county in favor- of the plaintiff, granting the .relief sought. The defendants appeal therefrom to this Court. A sufficient statement of the cáse appears in the opinion of the Court.

This is an action of <c claim and delivery,” and was commenced in the District Court for Washington County in July, 1865, against Patrick Fox and John O’Brian, partners as O’Brian & Fox, Elias W. Iiolman, and William H. C. Folsom.

The hearing in this case was upon an application of the Minnesota Central Railway Company, upon their petition and other papers, for a writ of certiorari. The case is fully stated in the opinion of the Court.

At a general election hold on the 5th day of November, 1867, the plaintiff and defendant were rival candidates for the office of Begister of Deeds of Wabashaw county. After the election the votes were canvassed by the county canvassing board and the defendant declared elected, and a certificate of election issued to him.

The defendants in this case appeal from the judgment of the District Court for Dakota county, rendered upon a retrial, upon an appeal from a judgment of a justice of the peace. The only error alleged and complained of is the denial of a motion, which is fully stated in the opinion of the Court.

This action was commenced in the District Court for Dakota county against William F. Davidson and John Rumsey. The summons was not served on the defendant Eumsey and he did not appear in the action. The defendant Davidson answered, and the issue joined was tried before a jury who found a verdict for the plaintiff for $5000. The defendant Davidson appeals from the judgment entered on this verdict. The case is sufficiently stated in the opinion of the Court.