Volume 18 — Minnesota Reports

This is an appeal taken by the defendants from the judgment of the district court for Hennepin county. The only questions decided on the appeal relate to the construction of a contract upon which the suit is brought, the material portions of which appear in the opinion of the court.

The plaintiff bought of Peter Brauch., one of the defendants, one hundred and sixty acres of land, received a deed therefor, and executed notes and a mortgage on the premises to secure the unpaid portion of the purchase money. Brauch transferred the notes and mortgages to the defendant Steichen, who commenced foreclosure proceedings by advertisement, thereon.

The state upon the relation of the attorney general, based upon the affidavit of Thomas McRoberts, applied to this court for a writ of mandamus to compel the defendant to construct its railroad to the town of La Orescent. An alternative writ was granted commanding the defendant to build such road, or show cause why it should not. The defendant appeared and showed cause by answer, and the case was submitted upon the affidavit, answer, and briefs of counsel.

The plaintiff, one of the commissioners appointed by chapter 110 of Special Laws of 1869, to locate, survey and establish a state road through certain counties, including Stearns, brings this suit in the district court for Stearns county, alleging, substantially, that he had performed the duties required} of him by said act, as amended by chapter 142, of Special Laws of 1870 ; that in performing the same he was actually and necessarily employed for fifteen days within the…

At the general election in 1870, the parties above named were rival candidates for the office of county attorney in McLeod county. The canvassing board of said county declared Child duly elected to said office. Edson appealed from the decision of said board to tbe district court for said county.

This action was brought in the district court for Hennepin county and was tried by the court without a jury. Judgment was ordered and entered in favor of defendants, from which the plaintiff appeals. The case is sufficiently stated in the opinion of the court.

A reference of this case was made by the court of common pleas for Ramsey county, and the cause tried before the referee, and a case settled before him. A motion was made by the plaintiff in the court below to amend the record. The court granted the motion on the ground that the case of record “ does not conform to the case as originally settled by the referee.” An appeal is taken from the order of the court granting such motion to this court..

This case was before this court upon an appeal by defendants from an order of the district court refusing a new trial, and was heard and determined at the January term, 1868, (13 Minn. 46,) the order of the district court being reversed. Upon another trial a verdict was rendered for plaintiffs, and the defendants bring this appeal from the order of the district court refusing a new trial. The case is sufficiently stated in the opinion.

Appeal by defendant from a judgment or decree of the district court for St. Louis county, in the seventh district, granting a divorce. The case is fully stated in the opinion.

Ejectment, in the district court for Ramsey county, for tbe northerly three feet of the southerly one-third of lqfs six and seven, block sixteen, St. Paul, fronting on Jackson street, as shown in the diagram below. The plat of St. Paul shows the front of these lots on Jackson street to be one hundred and fifty feet, while by an actual survey they have only one hundred forty-five and one-half feet front.

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

Thomas McRoberts, who sues for himself and his associates, who form an unincorporated association, commonly known as the La Crescent Company, claiming that he and his association own the exclusive right to run a ferry boat across the Mississippi River within certain boundaries, and that the defendant was infringing on such right, brought this action to restrain the defendant, &c. A trial was had before the court, resulting in a finding for the plaintiff.

Tbe plaintiff in this case appeals from an order of the district court for Scott county, denying his motion for judgment notwithstanding the verdict which had been' rendered in the action for tbe defendants. Tbe case is fully stated in the opinion of the court.

The facts in this case are substantially as follows: In September, 1867, defendant caused a description of certain of his lands, amounting to 880 acres, to be entered in the books of one G. B. Cooley, a real estate agent and broker, in the county where such lands were situated, for' the purpose of having' the same sold through said Cooley as defendant’s agent,'and directed one John Ellis, who resided near such lands, to send any person who might examine them, to Cooley, as…

This action was brought in the district court for Blue Earth county, to recover the value of certain goods, the property of the plaintiff, which were burned in the warehouse of the defendant. . The case was tried by a jury, and a verdict rendered for the plantiff, upon which judgment was entered. , The defendant appeals to this court.

This action was brought in the district court for Washington county, and the relief asked for in the complaint is, that an injunction issue against the said railroad company, and certain other defendants who are contractors, &ci, enjoining them from constructing the railroad of said company upon the land of the plaintiff. The injunction was granted by the district court, and from the order granting the same the defendant appeals to this court.

This action is similar to the one next preceding, being commenced in the same court for the same relief, and with the same result; and is brought to this court upon a like appeal. A point not made in the preceding case, but the one upon which this appeal is determined, is fully stated in the opinion;

Plaintiff brought this action in the district court for Ramsey county, alleging that the defendant “ has, and now is^pnlawfully maintaining a sewer unlawfully built and constructed by the said city, emptying upon the lots of plaintiff,” and asking for damages, and an injunction, &c. Issue was joined, and the cause referred to R. B. Galusha, Esq., who directed judgment to- be entered in favor of plaintiff for damages, and that injunction issue, &c. Judgment was accordingly…

Commissioners were duly appointed under defendant’s charter, to make an appraisal and award for the lands taken by defendant for the purposes of its road.' The defendant took an appeal from the award of such commissioners, in appraising the compensation due the plaintiff, to the district court for Goodhue county.

This case, and the one immediately preceding it, are of precisely the same nature; 7were tried in the same court, at the same term, 'and both come here on appeals taken by defendant from ■ the refusals of the court below to grant new trials.

Appeal by defendants from a judgment of tbe district court for Hennepin county, recovered upon the official bond of defendant Jones as treasurer of said county, the other defendants being his sureties. The case is fully stated in the opinion of the court.

The defendant was indicted in the distinct court for Fillmore county, for the crime of rape, committed upon the person of Mary Rexford, and was found guilty. He appeals from the judgment of that court. So far as the points discussed on the appeal are concerned, the case is fully stated in the opinion.

This is an .appeal taken by the defendant from a judgment of the district court for Wabasha county1. The case is fully stated in the opinion of the court.

The plaintiff, claiming to be the owner, and being in possession of certain lots in the city of Minneapolis, brought this action in the district court for Hennepin county, under section 1, chapter 75, General Statutes, to determine the adverse claim of the defendant.

The complaint in this action, which was brought in the district court for Winona county, alleged substantially that defendant being indebted to one G. Ensign,' executed his promissory note to him for $200; that Ensign sold, transferred and delivered the note, before maturity, to the firm of Grant & Lalor, for value, who also, for value, sold and transferred the note to plaintiff before maturity.

The plaintiff obtained a verdict against the defendant in the district court for Dakota county. ' The defendant moved for a new trial, which was granted, and from the order granting the same the plaintiff appeals to this court. The case is sufficiently stated in the opinion.

Appeal by the plaintiff from an order of the district court for Renville county, sustaining a demurrer to the complaint. The case is fully stated in the opinion.

Plaintiff brought this action in the court of common pleas, Ramsey county, to recover damages for an injury occasioned by the fall of his horse into a ditch or excavation on Third street in said city, on the night of the 20th of July, 1-870. Issue was found and the cause tried by the court without a jury.

' This is art appeal from an order of tbe district court for Goodhue county, denying defendants’ motion for a new trial. The suit was brought to recover damages for a breach of warranty, and fraud, in the sale of a horse. Two jury trials have been had in the case, each resulting in a verdict for the plaintiff. After the first verdict, an appeal was taken to this court by the defendants, and a new trial granted.

This action was commenced in the district court for Ramsey county, to recover for work alleged to have been performed by plaintiff for defendant, in constructing a railroad between White Bear Lake and Stillwater. The defence was that the work was not done for defendant, but for the Still-water and Saint Paul Railroad Company.

The parties entered into a contract for the sale and delivery of a quantity of flour by the defendant to the plaintiffs, the terms of which are set forth in the following copy of receipt • or memorandum, to-wit: “ Received, Benton, July 19th, 1870, of Knoblauch & Thompson the sum of one hundred dollars, being’ part payment on two hundred barrels of sound flour, bought this day, said flour to be delivered unto Knoblauch & Thompson, at Carver, free of charge upon further…

The defendant in this action was sheriff of Olmsted county, and as such sheriff, by virtue of a writ of attachment issued out of the district court for that county against the property of one Daniel W. Haynes, at the suit of C. H. Kellogg, T. B. Kellogg and P. Johnson, levied upon certain personal property. The plaintif claiming to have purchased the property levied upon from Haynes, and to be the owner thereof, brought this action in said court to recover back the same.

Appeal by defendant from a judgment of tbe district court for Steele county affirming tbe judgment of a justice of tbe peace. Tbe case is fully stated in tbe opinion of tbe court.

This action was brought in the district court for Dakota county. The defendant Horace Thompson answered as sole survivor of the firm of Thompson Bros. The cause was brought to trial, and after the plaintiff had rested his case defendant moved to dismiss the action, which motion was granted, and plaintiff excepted. Plaintiff moved for a new trial upon a case made and settled, which was denied, and he appeals to this court.

Appeal by defendants 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. cited the following authorities: Radcliff’s Exrs. vs. Mayor, &c., of Brooklyn, 4 N. Y. 195 ; Schell vs. Second Nat.

<p>The words “provided that there has been a substantial compliance with the provisions of this chapter,” (ch. 1, section 40, Gen. St.) which have been added to the statute since the decision in Taylor vs. Taylor, 10 Minn. 107, do not render the use of register poll lists essential to the validity of an election.</p> <p>This case was before this court and heard and determined at the Jidy term, 1871, and is reported ante p. 64. A motion is now made by the appellant for a re-argument of the case, and the ground upon which such motion is based is stated in the opinion. .</p>

Action of trespass brought in the district court for Brown county, to recover damages for the alleged unlawful entry upon, and eviction of the plaintiff from, and cutting and removing timber from certain lands of which it is alleged in the complaint, that plaintiff is seized in fee. Issue was joined, and the cause tried by the court without a jury, and judgment ordered for defendant. A motion for a new trial was made and denied, and plaintiff appeals to this court.

In “ proceedings supplementary to tbe execution,” upon tbe examination of tbe defendant, an order was made requiring bim to turn over to a receiver a certain silver watch and chain, his property, and in his possession, and all other property not exempt, the proceeds to be applied in payment of the judgment. Defendant moved in the district court for Olmsted county, for an order vacating so much of said order as required him to turn over said watch and chain.

Ejectment in tbe district ■ court for Eillmore county. The plaintiff' claimed title to the lands as purchaser under a statute foreclosure of a mortgage thereon. The mortgage was executed by one Jennetta Crees, the wife of J. W. Crees, on the 28th day of September., 1857, to the plaintiff, John J. Merrill, and appears to have been executed to secure the purchase money of lands conveyed to her on the' same day by said Merrill.

Action of replevin, brought in the district court for Dodge county, for the recovery of a certain horse, &c. The complaint alleges plaintiff’s ownership of the horse, a wrongful taking and detention by the defendant, the value of the horse, and claims damages, &c. The answer denies the allegations of the complaint, except as to the value of 'the horse.

<p>An order was made, under appellant’s charter, (Laws of 1857, extra session, rh. 1, sec.' 13). by one of the justices of tl^is court appointing commissioners to appraise, pursuant to said section, the value of land on a specified portion of appellant’s-line, which said company had entered upon, possessed, occupied or used, or should thereafter enter upon, possess, take, occupy or use for its purposes. The respondent appealed to the district court for Ramsey county from the commissioners’ appraisal and award, filed in the clerk’s office of said court, of the value of certain land belonging to him. Said appeal coming on for trial the district court, upon motion of the respondent, dismissed the case for want of jurisdiction, because there was nothing upon its record to show that the commissioners were ever duly appointed, or what they were appointed for. Eeld, that the order dismissing the case was appealable as a final order affecting a substantial right made in a special proceeding. That the district court had jurisdiction in the premises, although neither the order appointing the commissioners, nor a certified copy thereof, was on file in said court.</p> <p>An appeal from the award of the commissioners to the district court, under said charter, brings before the court only the question of the propriety of the amount awarded by the commissioners.</p> <p>The reservation in the notice of appeal, of objections to the validity of the proceedings under which the award was made, was ineffctual to give the district court power to entertain such objections. But it is not, therefore, necessary tliat the land owner should either abandon such objections, or his right to a jury, upon the question of the damages resulting to him from the taking of his land. Miller et al. vs. Troost, 14 Minn. 365, referred to as illustrating one mode of taking advantage of such objections without losing such right.</p> <p>It seems, also, that such objections might be taken advantage of upon an appeal from the judgment entered upon the verdict of the jury.</p> <p>Objections to the validity of this order appointing these commissioners might also be taken advantage of by motion in this court to vacate the order, notwithstanding the pendency of the appeal from the award.</p> <p>In the present case, therefore, to prevent future litigation, certain objections of that character, though not before the court upon this appeal, are passed Upon as follows, viz.: Held, that the territorial legislature had power to authorize the condemnation of land for railroad purposes.</p> <p>That the provision in this charter for the appointment of commissioners by the supreme court or a judge thereof, is not repugnant to the constitution. Art. 6, sec. 1.</p> <p>That it was discretionary with the legislature to decide whether or not it would itself exercise the right to determine what lands were necessary to be taken for the purposes of the road. '</p> <p>Although t^e order appointing commissioners might be nugatory as to sq much thereof as purports to authoriz i them to appraise the value of land which the company had theretofore entered upon, possessed, octíupied or used, at the time it was so entered upon and taken, such would not necessarily be the case as to so much of the order as authorized them to make a like appraisal of land thereafter to be taken.</p>

The relators were arrested and brought before the district court for Ramsey county under the provisions of an act entitled “An act to compel attendance of witnesses in certain cases,” (Laws 1868, ch. 71,) and were required to enter into recognizance, with sureties, for their appearance as witnesses in a certain criminal prosecution instituted against one Mary Monti, who had been arrested and examined before the city justice of St. Paul, and upon examination held for trial at…

The plaintiff, claiming that the defendant was the owner of certain real estate, and that after having- sold and conveyed the same to him, and knowing his deed was unrecorded, he sold and conveyed the same premises to other parties, who were purchasers in good faith, and whose deeds were recorded, brought this'action to recover damages therefor. ' At the trial, after the plaintiff had introduced his evidence and rested, the defendant moved for a dismissal of the action.

Plaintiff brought this action in the district court for Ramsey county, against Warren A. Wells, one Wing, and one Porter, as defendants, and ma.de application therein for an attachment against the property of Wells.

The defendant, William Brown, sheriff of Olmsted county, levied upon and took from the plaintiff a stock of goods, which he purchased from one William H. Mills, under certain writs of attachment, issued against the property of Mills, in favor of the other defendants. The plaintiff claiming that such taking was wrongful and unlawful, brought this action in the district court for said county, to recover damages therefor.

Plaintiff brought this action in the district court for Good-hue county, to recover the amount due upon a promissory note made by the defendant.

The defendant in running trains over the line of its road, through plaintiff’s pasture injured one of his cows. This action was brought before a justice of the peace, to recover damages -for such injury. On appeal, a trial was had in the district court for Blue Earth1 county, before a jury who found a verdict for plaintiff. The defendant made a motion for a new trial which was denied, and from the order denying the same appeals to this court.

On or about the 1st of September, 1870, plaintiff made an application to Ferdinand Willius, agent of the defendant, at St. Paul, for a policy of insurance upon the life of her husband, Freidolin Schwartz. The application was forwarded to the home office of defendant, at New York, and by due course of mail a policy was returned to Willius, the agent. The policy was dated September 5th, 1870, and payment of the premium was • by the terms of the policy required annually.

Action in the court of common pleas, for Ramsey county, to compel the specific performance of a contract for the purchase and sale of certain real estate. The cause was tried before tbe court without a jury, and a judgment or decree rendered therein, in favor of the plaintiff. The defendant appeals therefrom to this court. The case is sufficiently stated in the opinion.

This action was brought in the court of common pleas for Ramsey county against Franklin DeCou, the maker, and Jacob W. Bass, the indorser, of a promissory note. DeCou, only, answered, and a trial was had before a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals to this court. The case is fully stated in the opinion. -

The authorities of the city of St. Paul issued the bonds of the city to the Lake Superior and Mississippi Railroad Company, under the provisions of a special act of the legislature, (Sp. Laws 1868, ch. 20,) and a tax was levied upon the taxable property in the city for the purpose of paying the- annual interest on such bonds, and providing a sinking fund to meet the principal at maturity.

The defendant appeals from an order of the. district court, for Wabasha county, overruling his demurrer to the complaint.

This action was commenced in the district court' for Nicollet county, in 1861, to recover the amount claimed to be due on a promissory note executed by defendants to H. W. Lamberton, one of plaintiffs, on 4th day of September, 1857, for $370.70 and due in thirty days from date, and alleged .to be the property of the plaintiffs. The defendants as a first defence, deny any indebtedness to the plaintiffs.

The defendant and one John Scott were (in the words of the indictment) “ each accused by the grand jury of the county of Dodge; and State of Minnesota, of the crime of burglary, committed as… Held: can he, upon the said verdict be sentenced to imprisonment in the state prison, or will his punishment be limited to a fine or imprisonment in the county jail, or both 1 ” I. Respecting all the allegations in the indictment regarding burglary, sufficient remains to show a larceny.

Appeal by defendant from an order of tbe district court for Goodhue county, refusing a new trial. The case is sufficiently stated in the opinion of the court, except that the action was brought to recover for goods sold and delivered by the plaintiff, to one Little, upon the credit of defendant.

The plaintiff presented his claim before commissioners who were appointed by the probate court of Eamsey county to examine and adjust all claims against the estate of Oliver Ames, deceased. The defendant, the administrator of said estate, appealed from the report of said commissioners, allowing plaintiff’s claim, to the district court for said county. A jury trial was waived, and trial had before a referee, Avho found for the plaintiff.

This action was brought in the district court for Scott county, upon a judgment rendered in an action in-the supreme court of New York against the defendant, in favor of one Laura Spencer. The plaintiff sues as assignee of the judgment. The cause was tried by the court without a jury, and judgment rendered for the defendant. The plaintiff appeals from such judgment, to this court.

This action was brought in the district court for Olmsted county, upon contract for the recovery of money only. At the time of issuing the summons, plaintiff sued out a writ of attachment which was levied upon the - real estate of defendants. Plaintiff’s affidavit upon which the writ was. procured, stated, among other things, that defendants were about to assign and dispose of their property, Ayith intent to hinder, delay, and defraud their creditors.