Volume 17 — Minnesota Reports

• Appeal by defendant from an order of the district court for Goodhue county, refusing a new trial. The facts of the case, and the grounds upon which a new trial was sought, are stated in the .opinion.

Appeal by defendants from an order of the district court for Washington county, striking out as frivolous a demurrer to the complaint. The substance of the pleadings appears in the opinion.

Action by indorsee of a negotiable note against the maker. The complaint set out a note more than six years overdue, with indorsements of partial payments after maturity and before suit brought, and an indorsement to the plaintiff. The answer alleged matter in defense, but did not set up the statute of limitations. Upon the trial in the district court for Washington county no evidence was introduced except the note with its indorsements.

This action was brought in the district court for Steele county upon a promissory note for $250, dated July 27, 1867, payable to the order of the plaintiff, and signed by John Still-maker and John Schwiso, the defendants, the latter of whom alone defended the action.

After verdict for the defendant costs were taxed in his favor by the clerk under the written objection of the plaintiff, and judgment was entered for the defendant for the costs as taxed. Upon appeal to the court the item objected to by plaintiff was in part disallowed, and it was ordered that the sum so disallowed be deducted from the judgment. This was accordingly done, and from the judgment thus reduced the defendant appeals.

This action was brought in the district court for Dakota county and was tried by a referee, who reported as conclusions of fact: That during the year 1866, one William K. Rogers, from time to time between May 11, and September 17, made certain money deposits in the defendant bank, which were credited by the bank on deposit account to Samuel Rogers, a brother of William K.; that the bank supposed that the money so deposited was the property of Samuel, whereas it was in fact…

This action was removed from a justice court to the district court for Steele county, upon questions of both law and fact, and was dismissed by the district court on motion of the defendant (who appeared specially,) for want of jurisdiction. The plaintiff appeals from the order of dismissal. The case is fully stated in the opinion.

A second trial of this action in the district court for Olmsted county resulted in a verdict and judgment for the plaintiffs, from which judgment the defendant appeals. The opinion of the court contains a sufficient statement of the questions raised and decided on this appeal. The pleadings in the action and all other matters necessary to a full understanding of the case will be found reported in 15 Minn. 185.

After tbe decision of the former appeal in tbis action, (reported 12 Minn. 137,) the defendants answered the complaint.

The plaintiff contracted with defendant to do certain grading on the line of the Winona and St. Peter Railroad. Upon the completion of the work in the fall of 1867, an accounting and settlement was had between the parties, and a certain sum was paid the plaintiff as the balance due him on the contract, for which he executed his receipt to the defendant.

The plaintiff and defendant were partners, under the name of Bell & Wilson, in the business of buying and selling real estate. In the year 1859 the partnership was dissolved and Wilson was entrusted with all the property of the late firm and with the duty of settling its affairs.

Actions to determine adverse claims to certain unoccupied ■ real estate. In each case the plaintiff claimed title as grantee of the heirs of Wm. H. Randall who on the 29th September, 1857, was the owner in fee of the real estate in question, and who died seized thereof, and intestate, in the year 1861. The defendant Gaston claimed title under an execution sale.

An indictment was found against the defendant in the district court for Ramsey county, charging that on the 20th April, 1869, and at divers times between that day and the 16th December, 1869, the date of the indictment, he “unlawfully, wilfully and feloniously ” kept a common gaming house in the city of St. Paul, and suffered divers idle and evil disposed persons to frequent the same, and to play at certain enumerated unlawful games therein.

At a general term of tbe district court for Hennepin county, the defendant and one Jerry McCartey were jointly indicted for larceny, the indictment being entitled in the county of Hennepin, and charging that the defendant and Jerry at the city of Minneapolis “ did take, steal, and carry away ten barrels of flour, being then and there the property of, and in the possession of one William S. Judd and one George A. Brackett,” partners as Judd & Brackett.

Tbe plaintiff in bis amended complaint in tbis action, verified October 25, 1870, alleges tbat on tbe 7tb May, 1867, tbe defendant Hotchkiss, being tbe owner of certain lands in Sibley county in the complaint described, gave to the defendant Sarah Ann Shilling a bond for a deed of said lands upon payment by her of the sum of $1,300, two-thirds of this amount to be paid April 1, 1868, and the balance on the 1st April, 1889, with interest on each sum at the rate of ten per…

Appeal by tbe plaintiff from a judgment of tbe district court for Stearns county. Tbe case is fully stated in the opinion.

This action was brought in the district court for Rice county by the payees of a joint promissory note against the makers. The defendant Fischer in a separate answer alleged as a counterclaim, a separate demand of his own against the plaintiffs. The judge who tried the cause, (a jury being waived,) struck out the counter-claim upon plaintiffs’ motion made at the trial, and ordered judgment for the plaintiffs, from which the defendants appeal.

The defendant a company located at Freeport, Illinois, issued to the plaintiff in June, 1865, a policy of insurance against fire, for five years, “ On his dwelling house, “ “ household furniture therein, “ “ barn and shed adjoining, “ “ grain therein, “ On his hay and other fodder therein, “ “ live stock and farming utensils therein,” reference being made to the plaintiff’s application for a more particular description, and as forming part of the policy.

This is an appeal from the judgment of the district court for Mower county, and the case is fully stated in the opinion of the court.

One Samuel Stancbfield was insured by the defendant in the sum of f2,000, against the loss of a certain building by fire. The defendant afterwards, at the request of said Stanchfield, by its agent indorsed the policy of insurance as follows: “Payable in case of loss to George Newman to the extent of his claim.” A loss having occurred, the plaintiif brought this suit in the district court for Hennepin county, to recover of the defendant the amount of the insurance.

<p>The value of a promissory note being at issue in an action of replevin, testimony tending to show an admission of the defendant as to the value of the note four years prior to the action is not admissible to show its value at the time of the action.</p> <p>When a general offer of testimony is made by one party, and, a general objection made to its admissibility by the other party, if the testimony is admissible for any purpose it will not be error to receive it.</p> <p>If an instruction given by the court to the jury by a fair construction of it lays down a correct rule of law, although the language used may be liable to misconstruction, if it is not apparent that injury has been done, a new trial will not be granted.</p> <p>The rule, that a payment of a smaller sum of money is not a satisfaction of a larger debt, is applicable only to cases where the larger debt is fixed and liquidated, or is ascertainable by mere arithmetical calculation; it does not apply when the previous claim is unliquidated and uncertain, and an instruction given to the jury by which they are authorized to apply the rule stated to the case of the settlement of a claim for moneys and personal property as one transaction, and instructed that if they find from the evidence that there was no legal consideration for the settlement, in that case the alleged settlement is void, and they must find for the plaintiff, is erroneous.</p> <p>Where the validity of a settlement between the parties to an action is in issue, and it appears from the testimony that there is some evidence which might mislead the jury upon the question of fraud in the settlement, although the evidence is insufficient to authorize a verdict avoiding the settlement on the ground of fraud, the party relying upon the settlement has a right, out of abundant caution, to request the court to instruct the jury upon the question of fraud as affecting the case, and if he submits for instruction to the jury correct propositions of -law applicable thereto, the court should either give such instructions to the jury, or instruct the jury positively that there is no sufficient evidence of fraud to permit them to consider that question as an objection to the validity of the settlement.</p> <p>When such instructions are submitted and denied by the court, and portions only of the charge are set forth in the paper-book, the appellate court will presume that the court below did instruct the jury that there was no evidence of fraud in the case.</p>

Appeal by the plaintiff from an order of the court of common pleas for Ramsey county, denying a new trial. The case is fully stated in the opinion.

This action was brought in the court of common pleas for Ramsey county to recover damages for alleged trespasses of tbe defendant upon plaintiff’s land, in digging a trench across the same, in which to lay a pipe connected with tbe defendant’s water-works, and suffering the said trencb to remain open after tbe pipe bad been laid.

<p>When a motion for a new trial is made on account of the absence of a material witness, and an affidavit of the witness is presented on such motion stating that at the request of the party he intended to have been in attendance upon the court to testify for said party, but was disabled so that it was physically impossible for him to be in attendance at the trial; that the sole reason of his absence was the physical impossibility of being there at the time ; and showing that his testimony was material to the party; but it does not appear that any subpoena had been taken out by the party for the witness, or any steps taken which would enable the party to enforce the attendance of such witness at the trial, nor that the defendant was unaware of the facts to which the witness would testify; and the defendant went to trial without objection, or motion for continuance; such facts show no diligence of the party to procure the attendance of the witness, nor do they make a case of accident or surprise against which ordinary prudence could not have guarded, and are no ground for a new trial.</p> <p>When there is a conflict of testimony in a case from which different persons might reasonably draw opposite conclusions, this court will not disturb the verdict of the jury on the ground of insufficiency of the evidence.</p> <p>In an action of replevin for a mare, the plaintiff proved the sale of the mare claimed by him by A. to B., by B. to C., by G. to D , and by D. to plaintiff. The defendant made title to the mare from a different source and through a different channel. The case turned upon the question of the identity of the mare in controversy, with that claimed by the parties respectively. The mare sold by A. to B., and by B. to C., was described by certain witnesses. B. was shown to be the owner of the mare sold by A. to B., and by B. to C., on the 20th of January, 1866, the date of the sale by A. to B. did not appear except that it was prior to that date. The defendant introduced two witnesses to show that the mare sold by A. to B., and B. to C., was not the mare in controversy; these witnesses testified that B. owned a mare from Nov. 17, 1865, to Jan. 3d, 1866, and described the mare fully and minutely; the description of the mare given by them, corresponded with the description given by the other witnesses of the mare sold by A. to B., and by B. to C., and tended to show that it was not the mare in controversy. Held, upon this state of facts, that the testimony of the two witnesses introduced by the defendant, tended to prove that the mare owned by B. from Nov. 17, 1865, to 3d Jan., 1866, was the mare sold by A. to B. prior to the 20th of Jan., 1866, and the mare sold by B. to C., and it was error in the court to charge, that in order to attach any weight to the evidence of such witnesses as to the character and description of the mare owned by B. as above stated, the jury must first find from the evidence that such mare was the mare sold by B to C.</p> <p>It was error upon being requested by the defendant thereto, to refuse to charge the jury that, “ If they find there is any evidence in this case which tends to show that the mare testified to by the said two witnesses of the defendant as owned by B. from Nov. 17, 1865, to January 3d, 1866, was the same mare sold by B. to C., they should take into consideration such evidence, and give it such weight as, with all the evidence in the case, it is entitled to.”</p> <p>That the error was not cured by the court instructing the jury, that they should take all the evidence in the case into consideration in arriving at a conclusion as to whether the mare testified to by the two witnesses of the defendant above mentioned, was the same mare sold by B. to C. That this instruction must be construed in connection with the instruction given at the request of the plaintiff, and is either qualified by it, or contradictory to it, and in either case erroneous.</p>

This is an action for divorce, brought in the district court for St. Louis county. The defendant did not appear in the action, and a judgment for divorce was rendered. She after-wards applied to the court to have the judgment vacated, and that she be permitted to answer, and the case stand for trial as if no judgment had been entered. This application was denied, and from the order denying the same, the defendant appeals to this court.

This cause was before this court at the January term, 1870, (15 Minn. 230,) and a new trial was then granted. The second trial resulted in a verdict for the defendant. The plaintiff made a motion for a new trial, which was denied, and it appeals from the order denying the same to this court.

After a trial by jury and verdict for tbe plaintiff at a general term of tbe district court for Mille Lac county, the defendant Sturtevant moved for a new trial upon a bill of exceptions, and appeals to this court from the order denying such motion. Tbe case is fully stated in tbe opinion.

This action was brought in the district court for Hennepin county by tbe payee of a negotiable promissory note against tbe maker and tbe indorser. A jury trial was waived, and tbe action was tried by the court, tbe judge of the seventh judicial district acting for tbe judge of tbe fourth district. Judgment was ordered and ..entered in favor of tbe defendant Baldwin, and tbe plaintiff appeals. Tbe case is fully stated in tbe opinion.

<p>Where part of the property, in respect of which plaintiff claims relief by reason of defendant’s alleged unlawful acts thereon, is sold by plaintiff after suit commenced, the fact must be alleged by supplemental answer before defendant can avail himself thereof.</p> <p>Where defendant had constructed and was operating its road over plaintiff’s land without authority of law, it is no objection to plaintiff’s right of action, that the defendant had surveyed and staked out its road on the land before plaintiff’s purchase thereof.</p> <p>An insurance agent, called for plaintiff, was rightly allowed to testify, against defendant’s objection, that such location and operation of said road increased the hazard of fire to plaintiff’s buildings.</p> <p>Plaintiff was one of the occupants of lots, for whom the town site of Mankato was entered in trust under the town site act; and there was evidence from which a dedication of streets to public use by the occupants of said town she would be inferred. Held, that a deed of the trustee to the plaintiff, as such occupant of such lots, passed to plaintiff the fee to the center of the street adjoining said lots, subject to the easement of the public therein for a highway.</p> <p>As the rights of such occupants became fixed on March 21,1856, neither the act of congress of March 3, 1857, granting the right of way over the public lands to the railroad then contemplated, nor the territorial act of May 22,1857, disposing of the land grant, gave the defendant any right of way over said town site.</p> <p>Whether a statutory or common law dedication of the streets adjoining plaintiffs’ premises were shown, it is the doctrine of this court, that plaintiffs own the fee in such streets to the center thereof, subject to the public easement as aforesaid; that the legislature could not appropriate such street to any other use, or subject the land to any additional servitude, without compensation to the owner of the fee; and that the use thereof by defendant for a railroad would be such additional servitude.</p> <p>Defendant, olaiming tlie right so to do, but in fact without authority of law therefor, prior to the commencement of this action, entered upon said streets for the purpose of constructing its railroad thereon, and did so construct it along and upon the same in front of said lots, and have ever since operated the same, running daily trains thereon, having made no compensation to plaintiffs, nor taken steps to have commissioners appointed to appraise the plaintiffs’ damages; all which acts have been done without plaintiffs’ consent and against their will. The court below also found that such road and use are an obstruction to plaintiffs’ nse of their said premises, and comfortable enjoyment thereof, and will continue so to be, so long as it remains; that they render the street unsafe for travel, and access to plaintiffs’ premises insecure and dangerous: that they have greatly diminished the value of said property ; that they work an injury to plaintiffs in obstructing said streets and the free use of the same in connection with the said premises, distinct and different from the injury sustained hy the public generally. Held, that the defendant, in thus appropriating said streets to such use, is a trespasser in respect of plaintiffs, and that its acts constitute a private nuisance as against plaintiffs, entitling them to an injunction.</p> <p>Nor are plaintiffs precluded from such injunction hy the rule that equity does not interfere where there is an adequate specific remedy, for the defendant’s charter provides no mode whereby the land owner, at his own instance, can obtain compensation for his land thus taken, the defendant being alone authorized to apply for commissioners to appraise the compensation for such lands as it may designate in its application as proposed to be taken; nor will mandamus lie, at the suit of the plaintiffs, to compel defendant to make such application, and set such proceedings in motion.</p> <p>That plaintiffs did not commence suit till the road had been constructed and in operation for some months, is not a bar to their right to relief by injunction. As, however, defendant may still proceed, in the mode provided by its charter, t) obtain the right of way upon compensation therefor to plaintiffs, and as such injunction, might, in the meantime, occasion great inconvenience to the public as well as to defendant, by preventing the operating of the road, the judgment of the district court will be ordered to be so modified as that such injunction do not issue, if defendant forthwith institute such proceedings and properly prosecute the same; otherwise to be considered as granted, as of the date of the judgment.</p> <p>An allegation of damages is sufficient which states that plaintiff has been greatly damaged by said unlawful acts, and the unlawful withholding of the possession of the premises up to the commencement of this action, viz.: to the «mount of $1,000.</p> <p>Evidence which put the judge, by whom the case was tried without a jury, in possession of all the elements of such injury was sufficient, upon which he might arrive at a conclusion as to the amount of damages. None thereof being such as experts alone would be qualified to pass upon, the judge was competent to form his own opinion as to the specific sum in which plaintiffs were damaged.</p> <p>If the fee of the street was in plaintiffs, the city council could not, even though authorized by vote of the citizens, confer on defendant the right of way over it, without compensation to plaintiffs;</p> <p>If evidence, which has been admitted, was incompetent, it is no ground for disturbing the judgment, that the evidence offered to rebut it and admitted was also incompetent thereto.</p>

Appeal by tbe defendant from an order of tbe district court for Ramsey county, setting aside the report of a referee and granting a new trial. The case is sufficiently stated in tbe opinion.

Action on a promissory note, brought in the district court for Steele county, resulting in a verdict for the defendant. Plaintiff moved for a neAV trial,, which was denied, and he appeals to this court from the order denying such new trial. A single point only is discussed in the appeal, which is fully stated in the opinion.

The defendant was convicted of the crime of larceny in the district court for Waseca county. He removes the cause to this court by appeal. The case is fully stated in the opinion of the court.

Appeal by defendant from a judgment of the district court for Scott county. The case is fully stated in the opinion of the court.

Appeal by tbe plaintiff, the board of county commissioners for Hennepin county, from a judgment of the district court for said county. The case is fully stated in the opinion of the court.

Tbe plaintiff claims that a building, owned and occupied by defendant, stands on ground which has been dedicated to public use, as a public landing or levee, and brought this suit in the district court for Blue Earth county, to recover a penalty imposed by an ordinance of the village of Mankato, for neglecting to remove buildings from public grounds, after notice.

This action was brought in the district court for Winona county, to recover damages for an alleged conversion, by defendant, of certain wheat, the property of plaintiff. The action was tried before a jury, wbo found a verdict for plaintiff. Judgment was entered on tbe verdict, and the defendant appeals therefrom to this court. The case is fully stated in the opinion of the court.

This is an appeal taken by the defendant from an order of the court of common pleas, Ramsey county, denying his motion for a new trial. The case is fully stated in the opinion of the court.

This suit was brought in- the district court for Carver county, to determine the boundary line between two tracts of land, o :e of which was owned by each of the parties. The jury before whom the action was tried found a verdict for the plain-I tiff. The defendant made a motion for a new trial, which was ■ granted, and the plaintiff appeals from the order granting the same to this court.

The plaintiff brought this action in tjie district court for Hennepin county, to recover damages alleged to have been suffered by him in consequence of injuries to his wife, caused by falling from a bridge within the corporate limits of the city of Minneapolis, and which fall he alleges was in consequence of defects in such bridge, which the defendant had neglected to repair. A verdict was rendered for the plaintiff for four thousand dollars.

This action was brought in the district court for Blue Earth county. The complaint alleges, that defendants “ made, executed and delivered to said plaintiff J. L. Cabbott, and one Lester, a promissoi’y note,” &c. A copy of the note is set out in the complaint, in which “Cabbott & Lester” are named as payees.

The Lake Superior and Mississippi Railroad Company instituted proceedings under its charter to condemn certain lands for tbe use of -its road, among others, lands owned by Mary G-reve. She appealed from the award of the commissioners to the court of common pleas Ramsey county. Upon a trial before a jury they assessed her damages at a sum largely in excess of the previous award. The company appeals to this court from an order denying its motion for a new trial.

<p>Appeal from district for Blue Earth county. The case is fully stated in the opinion of the court.</p>

The relator applied to the court commissioner of Sibley county for a writ of habeas corpus, to be directed to the defendant, commanding- him to bring the body of Lula Belle Barnes before such commissioner, Sec. The commissioner issued the writ, under his own hand and seal, and the defendant not obeying the same, issued a writ of attachment against the defendant.

The plaintiffs, as partners, sold to defendant Little a steam engine, machinery and materials, and brought this action in the district court for Goodhue county, to recover from him the amount remaining due upon the sale, and also to establish and enforce a lien for such amount against the articles sold, and against a steam saw-mill, in which they had been placed and used by Little, and against the lot in which such mill was situated.

This is an appeal by the plaintiffs from an order of the district court for Hennepin county, refusing a new trial The case is fully stated in the opinion of the court.

This action was brought in the district court for Ramsey county by a stockholder in the Lake Superior and Mississippi Railroad Co., in his own behalf, against said company, and the Brie & Western Transportation Co., for the jiurpose of enjoining said companies from doing business under a certain contract entered into between said companies, and to have said contract adjudged void. The Erie & Western Transportation Co. alone answered.

<p>A motion to be relieved .from a judgment made under sec, 105, ck. 66, Gen. Stat., within one year from the entry of judgment, is addressed to the discretion of the court in which the motion is made ; and, where there is no abuse of such discretion, the order granting such motion will not be reversed.</p>

This is an appeal from a judgment of the district court for Ramsey county, entered upon the report of a referee. To the statement of the case contained in the opinion it needs only to be added that the note mentioned therein was made on the 13th of October, 1858, payable one year after date, with interest until paid at the rate of twenty per cent, per annum.

This action was brought in the district court for Blue Earth county against Nathan Myrick, and the sureties on his bond, as administrator of the estate of William Wood deceased.

This action was commenced in the district ccrar.t for Stearns county to recover the sum of $950.

The relator applied to the district court for the county of Steele for an alternative writ of mandamus, which was granted. The respondent appeared and moved to dismiss the writ. This motion was also granted, and the relator appeals from the order granting the same to this court. The only question considered in this court is as to the sufficiency of the affidavit upon which the writ was granted. The facts set forth in the affidavit appear in the opinion of the court.

Appeal by defendants from an order of tbe district court for Ramsey county overruling their demurrer to the complaint. The case is fully stated in the opinion.

This action was commenced in tbe district court for Hennepin county.

Appeal by defendants Brisbin and Roberts from an order of tbe district court for Ramsey county, overruling tbeir demurrer to the complaint. The case is fully stated in the opinion.

One John W. Griggs, plaintiff, and defendant, were partners in the business of manufacturing flour. Griggs kept the accounts of the firm. Griggs and the defendant were also engaged in the banking business and Griggs had personal charge of the bank. In this bank the surplus funds of the manufacturing company were deposited. One Ira Spear held a mortgage on certain real estate belonging to the plaintiff.

This cause came before this court at the July term, 1870, on an appeal taken by the plaintiff from the judgment of the court below, and is reported in volume XVI. The subsequent proceedings in the case are stated in the opinion.

This cause comes to this court by an appeal, taken by the defendant, from an order denying a motion to set aside the report of the referee before whom it was tried, and for a new trial. The case is fully stated in the opinion of the court.

<p>In an action to recover the possession of specific personal property, proceedings to obtain the immediate delivery thereof were taken under the Gen. Stat. ch. 66, sec. 112 to 117, in ignorance of the provisions of eh. 76 of Laws of 1868, repealing secs. 115, 116, and 117, and amending sec. 114, so as to restore the practice as it was before the General Statutes took efiect; and the property was taken upon the writ issued conformably to sec. 115. Held, that the said proceedings being unauthorized by law, the bond, which conformably to sec. 116, was executed and delivered as one step therein, had no force or validity whatever ; and the sureties therein, being excepted to by the defendant in said action, and upon justification, found insufficient, a bond given in substitution thereof under sec. 120, such proceedings being altogether coram non judice, was equally gratuitous ; and, therefore, if judgment were afterwards rendered in the action for defendant for a return of the property, and damages, and remained unsatisfied, no action lay for defendant in respect thereof on such substituted bond.</p> <p>Held, also, that it would not alter the case in this respect, that all parties treated the proceedings as regular, and that when the sureties in the original bond were upon justification found insufficient, as aforesaid, the Said substituted bond with one surety, only, having the requisite qualifications of such, was accepted by defendant as sufficient, who thereupon waived any further justification of sureties in said proceedings, and thereupon the property was delivered by the officer to the plaintiff pursuant to the bond; but that the officer notwithstanding continued to be liable as a trespasser in taking said property from the defendant.</p>

This action was brought in the district court for Ramsey county to correct the description of property contained in a mortgage executed by the defendant Fuller, and to foreclose the mortgage as reformed.

This action was commenced in the district court for Wabasha county on the 4th day of January, 1870, and was tried before a referee, who found for the plaintiff, and judgment was entered on his report. The defendant appeals to this court. The case is fully stated in the opinion of the court.

Appeal by defendant from an order of tbe district court for Hennepin county denying a motion for a new trial. The case is fully stated in the opinion.