Volume 14 — Minnesota Reports

In an action for tlie partition of real property under Chap. 74, Gen. Stat, the names of the defendants being first stated in the title of the case (in the summons), and it appearing’ from the' complaint that the defendants named are the only persons (except the plaintiffs) having or claiming any interest in the property, the summons addressed “ to the above named defendants ” is a compliance with the statute.

This cause was commenced before a Justice of the Peace in Carver County.

This is an appeal brought by George L. Prentiss, a minor, cfee., and by his guardian, .from á judgment rendered in the District Court of Hennepin County, for costs against said guardian, and reversing a judgment given by the Probate Court of Hennepin County, in favor of said minor, upon his petition asking for an assignment of certain real property belonging to George M. Prentiss, in Minnesota, at the time of his death. The ease is fully stated in the opinion and,.syllabus.

<p>■ One partner is presumed 'to know, as a matter of fact, who were his co-partners at a given date, and as to this fact it is competent for him to depose as a witness.</p> <p>When the declarations of a party who assumed to act as agent of another, are offeree! in evidence against the latter, it is for the Court to decide, as a preliminary question, whether there is any evidence of such agency. If there is not, the statements should he rejected — if there is, they may be received.</p> <p>' The determination of this preliminary question by the Court, does not relieve the party offering the evidence from the burden of proving to the jury the alleged agency.</p> <p>All the exceptions or modifications of a legal proposition need not necessarily be stated in the same connection. If the proper modifications and exceptions to the general rule are made, there is no ground for reversal, unless there is something in the charge so obscure, absurd, or contradictory, as to tend to mislead or confound the jury.</p>

Tbis action was commenced in the Court of Common Pleas, Ramsey county.

The defendant David Dee, appeals to this Court from a judgment oí the District .Court for Olmsted County. A sufficient statement of the case appears in the opinion of the Court.

The Second National Bank of St. Paul was the owner of a three story building situate on the corner of Franklin and. Third streets, .St. Paul. Joseph and Charles Dailey were the owners of á brick building adjoining on the east, the Bank and the Daileys being joint owners of the partition wall. Adjoining Daileys’ building on the east was a one story building occupied by the plaintiff, a physician, as his office.

Tlie defendant-in tbis cause appeals from an order of the Court of Common Pleas for Namsey County overruling its demurrer to the plaintiff’s complaint.

The plaintiff was an employee of the N. W. U. Packet Company, on the steamboat Mollie Mohler, which 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 by Parker Paine as administrator of the estate of Lyman Dayton, deceased.

This action was commenced in the District Court of Pam-sey county, to recover the value of certain services, alleged to have been rendered at the instance of the defendants.

This action was brought in the District Court for Nicollet County, to enforce specific performance of an alleged contract for the purchase and sale of certain described real estate- Issue was joined, and the cause tried by the Court, (without a jury) and upon the finding of the Court a judgment was entered,.directing, in substance, that the defendant should execute to the plaintiff a conveyance of the land, and in default of such conveyance within a certain specified time,…

This is an appeal taken by the defendants from a judgment of the District Court of Ramsey County, entered upon the report of a réferee before whom the cause was tried. A sufficient statement of the case appears in the opinion of the Court.

This action was commenced in the District Court for Nice County. Held: or in any manner secured or attended, in the principal street of Faribault; that said horses started and ran violently along said street against another team, consisting also of a span of horses and sleigh, standing securely fastened at the side of the street, frightening them, and causing them to break loose, and run across the…

This action was brought in the District Court for Eamsey County by the plaintiff, as holder of a second mortgage, to recover the surplus money paid over to the successor in interest of the mortgagor, upon the foreclosure of the prior mortgage, and to enforce his lien thereon. The cause was tried before a referee, who ordered judgment as demanded in the complaint.

This action was commenced in the District Court .for Dodge County, and a writ of attachment issued. 'The defendant made a motion to set aside the attachment on the ground, among others, of insufficiency of the affidavit. The motion was denied, and the defendant appeals from the order denying the same to this Court. In this Court the plaintiff urges as an objection to the consideration of the appeal, that no exception was taken to the order ,of the Court below appealed from.

This action was commenced in the Court of Common Pleas, Itamsey county.

, This action was commenced in • the Court of Common Pleas, Ramsey County, against Joseph L. Eorepaugh, and Charles Leonard, Monroe Shiere and Komaine Shiere, partners as Leonard & Sheire, and the City of St. Paul.

This is an appeal from an order of the District Court for Bamsey county, setting aside a sale made by the Sheriff of that county, under a decree entered in the action, upon the foreclosure of a mortgage and ordering a re-sale. The defendant Holyoke, appellant, was the holder of a lien subsequent to the mortgage foreclosed, and had appeared in the action.

The plaintiffs brought suit in the District Court for Kam-sey County, as mechanics and material men to enforce their lien under the statute, for work done and material furnished in building a house for defendant. Issue was joined and the cause tried before a referee, who found for the plaintiffs. The defendant made a motion to set aside the report of the referee, and for a new trial, which was denied, and judgment entered on the report.

This action was commenced before a Justice of the Peace in Goodhue county.

The plaintiff in this case, being the assignee of a material man, brings suit in the District Court for Olmsted County, against the persons to whom the materials were furnished, and other parties in interest, to enforce the lien, &c., under the statute, and he appeals from the judgment of that Court denying the relief sought. The case is fully stated in the opinion of the Court.

Tbe plaintiff commenced ber action in tbe District Court of Winona county, averring in ber complaint, that sbe was at tbe time tbe wrongs complained of were committed tbe owner and occupant of certain real estate in that county and tbe defendant was in tbe occupancy of certain adjacent lands; and that on the lltb of May, 1866, the defendant did “ wilfully, unlawfully, negligently and without giving any notice to plaintiff, set fire to tbe grass, straw and stubble on bis said…

Tliis action was brought in the District Court for Ramsey county, to recover'damages for the wrongful taking and conversion of forty-nine sheep and sixteen lambs alleged to be the property of the plaintiff. Issue was joined in the action, the defendants all appearing and answering by the same attorneys. The place of trial was changed to Carver county, and the action was tried before the Court — without a jury.

This action was brought in the Court of Common Pleas, Ramsey County, to recover the possession of certain leased premises in St. Paul for the non-payment of rent. It was undisputed that the plaintiff was the owner of the real estate leased, and executed a lease of the same to defendant J. W. McOlung, and one Wm.

This action was brought in the District Court for Henne-pin county, to recover damages for an alleged breach of a certain written contract, which is set out at length in the opinion of the Court. Issue was joined, and the cause tried before a referee. During the progress of the trial exceptions were taken to the rulings of the referee, in regard to the reception of' testimony, which appear in the opinion of the Court.

This action was removed to this Court from the District Court for Ramsey county. The jury, before whom the cause was tried, found a verdict for the plaintiff for $2,219.-25. A motion for a new trial, which was made by the defendant, was denied, and he appealed from the order denying the same to this Court. The case is so fully presented in the opinion, in connection with the points of counsel, that a further statement is unnecessary.

The plaintiffs, who are judgment creditors of the defendant August Matthaus, brought this action in the Court of Common Pleas, Pamsey County, to have their judgment declared a chai'ge upon certain indebtedness, which they allege the defendant August had transferred to his wife in fraud of their rights. The cause ivas tried before the Court without a jury.

This is an appeal, taken by the defendants, from a judgment of the District Court of Olmsted County. The case is sufficiently stated in the opinion of the Court.

This action was commenced in the District Court for Eamsey county. The facts, as alleged in the complaint, are substantially as follows : — In April, 1856, one D. A. Eob-ertson was the owner of certain real estate in the city of Saint Paul.

This action was brought in the District Court for Dakota county, and was tried, and a verdict rendered in favor of the plaintiff. A motion for a new trial was made upon a case as settled, and denied, and judgment entered upon the verdict. The defendant appeals from such judgment. The nature of the action, and the points presented, sufficiently appear in the opinion of'the Court.

This action was brought in the District Court for Washington county, to recover compensation for the labor and services of commissioners appointed “ to locate and open out a road,” under'a special act of the legislature {Special Laws 1858, jp. 135), and it comes to this Court, by appeal from an order overruling a demurrer to the complaint. The allegations of the complaint which are objected to as insufficient, appear in .the opinion of the Court.

Kelley and Wallace were contestants for the right to preempt a certain forty acre tract of land. The local land officers decided in favor of Wallace, and their decision was affirmed at Washington, both .by the Commissioner of- the General Land Office and the Secretary of the .Interior.

The plaintiffs entered into a certain written contract with T. S. Nickerson and TI. Holton, in relation to furnishing said Nickerson and Holton with a steam engine, and certain machinery. The contract contained a stipulation, that said Nickerson and Holton should deposit with the defendant a certain sum of money, and a certain promissory note, to be delivered by him to the plaintiffs, pursuant to certain conditions contained in the written contract.

<p>The allowance of a writ of certiorari by the Supreme Court to the supervisors of a town, is a matter of legal discretion.</p> <p>When the writ would arrest proceedings for the collection of the tax alleged to be illegal, and equally affect all the tax payers, and residents of the town, it should ordinarily be denied, if applied for by only a part of them.</p> <p>Whether it should be allowed if all the tax payers joined in the petition, quaere.</p> <p>This is an original proceeding, commenced in this Court, and is fully stated in the opinion of the Court, and of Mr. Justice McMillan.</p>

This action was brought in the District Court for Dakota county, and was tried therein by the Court, without a jury, and resulted in a judgment in favor of the defendant. The plaintiffs appeal to this Court. The case is fully stated in the opinion of the Court,

This action was commenced in the District Court for Carver county, and was tried before the court, without a jury. The Court found for the plaintiff, and judgment was entered in his favor. The defendant appeals to this Court. The findings of the Court below, so far as material, appear in the opinion of the Court.

On the 18th day of May, 1858, E. B. West made his note, payable ninety days after date, to the order of D, Morrison & Co., a firm composed of D. Morrison, C. 0. Washburn and E. B. Washburn. D. Morrison & Co. endorsed said note by their firm name and transferred it to the plaintiff.

This action was brought in the Court of Common Picas for Pamsey county. The complaint sets up two causes of action. The first is based upon an acceptance by the defendants dated July 22, 1867, for $1680.05 : and the second to recover the sum of $756.04, the agreed price for certain goods sol'd to defendants June 14,1867.

The plaintiff was the owner of a certain lot in St. Anthony. The defendant constructed its railroad along the street in front of plaintiff’s lot. Tie brought this suit in the District Court of Hennepin County to recover damages occasioned by the construction 'and maintenance of such railroad. A demurrer was interposed to the plaintiff’s complaint, which was overruled, and the defendant appeals to this Court.

This action was brought against the defendants (some thirteen in number) for the-wrongful taking and conversion of certain personal property of'the plaintiff. Issue was joined in the action, the defendants all appearing by the same attorneys, and uniting in one answer..

This action was commenced in the District Court for Olmsted county, and was tried by the Court without a jury, who found for the plaintiffs. The defendants made a motion for a new trial, which was denied, and they appeal from the order denying the same to this Court.

This action was brought in the District Court for Wright county, to enjoin the sale of certain lands of the plaintiff in said county, for the taxes levied thereon by the authorities of that county for the year 1867, and to procure the judgment of the court, decreeing and declaring such taxes illegal and void ; the plaintiff claiming that by virtue of the charter of the Minnesota and Pacific Railroad Company, passed by the legislative assembly of the Territory of Min nesota,…

This cause comes to this court by an appeal taken by the plaintiff from an order of the District Court for Goodhue county, setting aside a stipulation of attorneys dismissing the action. The stipulation was as follows : “ By consent of the parties, plaintiff and defendant in the above entitled cause, the same is hereby dismissed without costs to either party, said plaintiff to pay the fees of the clerk of the District Court.

This action was commenced in the District Court for Hamsey County, and was tried before the Court without a jury.

A judgment was rendered in this cause, by the District Court for Kamsey county, in favor of the plaintiff, after a trial before the Court, without a jury. The defendant removes the cause to this court by appeal. A sufficient statement of the caso will be found in the opinion of the Court.

The defendants in this case appeal from a judgment of the District Court for Scott county, affirming a judgment of a justice’s court of said county against them. The case is fully stated in the opinion of the court.

This action was commenced in the District Court for Steele County, to recover damages for personal injuries to the plaintiff, caused, as alleged in the complaint, by the negligence and carelessness of defendant’s servants, in so piling wood upon the tender attached to au engine, and in so running a train of cars on defendant’s road, that a stick of wood was thrown from the tender, striking plaintiff upon the head as he was standing within about twenty feet of the track,…

The defendants in this case appeal from a judgment of the District Court for 'Winona county, entered against them, upon the findings of the court, before whom the case was tried without a jury. A sufficient statement of the case will be found in the opinion of the court.

This action was commenced -in the District Court for Winona County, and was tried before the court without a jury. The facts found, and the conclusions of law arrived at bv tbe court below, appear in tbe opinion of tbe Court. Judgment was entered for tbe defendant, and tbe plaintiff appeals to tliis Court.

This action was commenced in the district court for Rice county, the plaintiff alleging, that on the 13th day of duly, 1867, the defendants (J. M. Toiler and David Barker) assaulted him, and imprisoned him in a hotel, occupied by one of the defendants, for the period of five days, and put him in irons, and kept him chained during said period, by means whereof the plaintiff was greatly injured, &c. The defendants answered, averring that they were respectively sheriff and…

. This action was brought in the district court for Washing ton county, was tried by a jury, and resulted in a verdict for the plaintiff. Held: in Mill vs. McCarthy, (3 Code Rep. 50,) to be to throw the trial of all questions of fact in the old common law actions upon the court and jury, and at the same time to throw the whole class of equity suits upon the court without a jury, unless, for some special reason, the court should order the issue to be tried by a jury.

This action was brought in the Court of Common Pleas for Ramsey county.

This action was commenced in the Court of Common Pleas for Ramsey county.

The plaintiff alleges, in his complaint, that he was elected assessor of the city of St. Paul for the year 1865, and performed ' the duties of his said office during said year ; that the common council of said city fixed his compensation, as such assessor at $1,000 ; that in addition to his official duties as assessor, and in accordance with the requirements of the law, he made and returned a true list of all persons in his district liable to perform military duty ; that…

This action was commenced in the district court for Hen-nepin county, and was tried before a referee whose findings of facts and decision thereon are as follows : 1. “ That on the 22d day of September, 1857, Samuel IT.

Upon the relation of the Town of Mantorville an alternative writ of mandamus was issued out of this conrt, and duly served upon Peter Mantor, assessor &c. The respondent appeared and by his answer admitted the facts set forth in the petition. The relator now moves for a peremptory writ. The case is sufficiently stated in the opinion of the court.

This cause was removed to this court from the district court for the county of Sherburne, by writ of error. A sufficient statement of the case appears in the opinion of the court. III. Defendant demanded a speedy and public trial by jury; objected to a jury of six men, and demanded a jury of twelve men. The defendant was entitled to a jury oí twelve men.

The defendant was indicted in the district court for Carver county for rape. A demurrer to the indictment was interposed, which was overruled, and defendant was tried and convicted; he removes the cause to this court by writ of error. The case is fully stated in the opinion of the court.

The defendant was indicted in the district court for Bine . Barth county, tried, found guilty, and sentenced to pay a fine of $100, and he removes the case to this court by appeal. Upon the arraignment of the defendant he demurred to the indictment, and his demurrer was overruled.

This action was commenced before a justice of the peace in Scott county, to replevy certain personal property, alleged to be in the possession of the defendant Thomas. It was alleged that James C. Kates, who was the husband of the plaintiff, claimed the property as belonging to him, and he was made defendant also. By virtue of the writ issued, the property was taken and delivered to the plaintiff.

This is an appeal from an order of the district court for Carver county, denying a motion of defendant to set aside the judgment, and execution issued in the action. The case is sufficiently stated in the opinion of the court.

An appeal is taken in this case, by defendant, from an order of the district court for Steele county, denying his motion for a new trial, after verdict for plaintiff. The case is fully stated in the opinion of the court. The note should have been admitted in evidence, as the tender of a creditor’s own. over-due notéis equivalent to a tender in money. 2 Parsons on Contracts, 154, note “ a, ” ; Folly vs. Mason, 6 Mcl., 37.

This action was commenced in the district court for Blue Earth county. The plaintiffs sought to have certain real estate declared by the judgment of the court to be subject to the lien of a certain judgment. The cause was tried before the court without a jury, who directed judgment as prayed for in the complaint which was entered. The defendants appeal therefrom to this court. A sufficient statement of the case will be found in the opinion of the court.

The plaintiff, claiming to be the owner in fee simple of certain real estate in Ramsey county, brought this action in the district court for that county, to recover possession thereof. The defendant answered, admitting his possession of the premises in question, and alleging that the plaintiff’s title is based upon' the pretended foreclosure of a certain mortgage on said premises, executed by the defendant to plaintiff.

The plaintiff on or abont, the 13th June, 1868, offered a certain reward ($600) “ to any person or persons who would or should within a reasonable time thereafter, arrest and deliver to the authorities of the county of Carver, in' this State, one Horatio Robinson, ” &c. Robinson was soon after arrested, and the reward was.claimed severally by the defendants.

The plaintiffs entered into a certain written contract with one T. S. Nickerson and H. ITolton, m relation to furnishing said Nickerson and ITolton a steam engine and certain machinery. The contract contained a stipulation that said Nickerson and Holton should deposit with the defendant a certain sum of money, and a certain promissory note, to be delivered by him to the plaintiffs, pursuant to certain conditions contained in the written contract.

The plaintiff being in possession of certain real estate in Ramsey county, brought this action in the district court for said county, to determine the adverse claim of the defendant, and quiet her title. Issue was joined in regard to the title to-the premises, and the cause tried before a jury, who found a verdict for the plaintiffs, and also returned a special verdict upon certain questions ot fact submitted to them in writing.

This is an appeal from an order of the district court for Olmsted county, and presents only a question of practice, which is stated in the syllabus and opinion of the court!

This case presents the same question of practice as that of Lamí) vs. MeGanna, immediately preceding. Issue was joined in the action, and a motion was made by defendant in the district court for Ramsey county, for judgment upon the pleadings, which was granted. The defendant appealed to this court from the order granting such motion ; and the plaintiff, in this court, moves that the appeal be dismissed.

The plaintiff brought suit in the district court for Famsey county to recover for professional services as attorney and disbursements, alleging in his complaint that the value of such services and such disbursements amounted to the sum of $725.42. The defendant answered admitting the performance of the services, but alleging, that the value of the same, and the amount of the disbursements did not exceed $500.

An application was made to a court commissioner for Dodge county, for a writ of attachment against the property of the defendant, which was granted, and the writ issued. A motion was made by the defendant, to the district court for said county, to vacate the attachment, which was granted; and from the order granting such motion, plaintiff appeals to this court. The onlj point raised is as to the sufficiency of the affidavit, and is fully stated in the opinion of the court.

Upon the relation of Charles Stewart an alternative writ of mandamus was issued out of this court directed to Thomas Kinsella, assessor of the town of High Forest, in the county of Olmsted, commanding him forthwith to make assessment of certain real and personal property, claimed to be liable to taxation in said town, or to appear before the court at a time therein stated, and show cause why he refused so to do. Kinsella appeared and answered.

This is an appeal by the defendants from a judgment of the district court for Scott county. A motion is made in this court by the respondents, to dismiss the appeal, pursuant to a stipulation signed by tlie attorneys for the respective parties, admitting the following facts : “The judgment appealed from was entered and perfected July 3d, 1868, and the appeal was taken and perfected July 3d, 1869. ”

This action was brought in the district court for Chisago county, was tried therein, and resulted in a verdict for the plaintiffs. The defendant made a motion for a new trial, which was denied, and he appeals to this court. The nature of the action, and the exceptions taken to the rulings of the court upon the trial, are sufficiently stated in the opinion of the court.

This action was commenced in the district court for Olmsted county to recover possession of certain real estate. The case is sufficiently stated in the opinion of the court.

This action was commenced in the district court for Wa-basha county. The complaint alleges title in fee, and right of possession in the plaintiffs, to certain real estate in said county; that the defendant is wrongfully in, and unlawfully withholds the possession, and demands judgment for possession, &c. The defendant answered admitting possession, denying all the other allegations of the complaint, and averring title in himself.

In the year 1865, the board of county commissioners of Meeker county levied on the taxable property of the county a tax of four mills on the dollar, for the purpose of paying the current expenses of the county. On the 1st day of July, 1867, a delinquent tax list was delivered by the auditor of said county to the defendant, who was then treasurer of the county, containing the delinquent taxes of those thus levied in 1865.

The defendant in this action appeals from an order of the .district court for Scott county confirming the taxation of costs by the clerk. The case, is sufficiently stated in the opinion of the court.

This action was commenced in the district court for Ramsey county, upon an undertaking executed by the defendants to the plaintiff in an action for the recovery oí certain personal property, commenced by the La Crosse and Minnesota Steam Packet Company against the plaintiff.