Volume 20 — Minnesota Reports

The plaintiff brought this action in the district court for Ramsey county, to recover damages for injuries sustained by him while employed in the service of the defendant.

Tbe plaintiffs brought this action, in form replevin, in the district court for Hennepin county, and took from tbe possession of defendant, from its warehouse, a quantity of wheat; claiming to own the same.

This is an appeal by the defendant, from an order of the district court for Washington county, denying a motion for a new trial; and this case, and the points presented by the appeal therein, are so similar to the case of Lehmiclce, adm’r, fyc.,vs. the same deft., (19 Minn. 464,) and so fully stated in the opin’on, that any further statement is unnecessary.

This is an appeal by the plaintiff, from an order of the district court for Ramsey county sustaining a general demurrer to tbe complaint, interposed by .the defendants Gronwolds.

In this case, which is an appeal by the defendant (the railroad company,) from an order of the district court for Goodhue county overruling its general demurrer to .the complaint, the opinion states the nature of the action, and the allegations of the complaint, or such portions as are material to an understanding of the points presented and discussed, and a further statement is unnecessary.

The plaintiff brought tbis action against the defendant as endorser upon a draft or bill of exchange. The complaint was in the usual form.

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

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

This is an appeal by defendant from an order, pro Jorma, of the district court for Ramsey county denying his motion for a new trial. The nature of the action, the defense therein, and the exceptions taken upon the trial, are sufficiently stated in the opinion.

This action was brought in the district court for Blue Barth county, to recover damages for a breach of warranty made by defendant upon the sale to plaintiff of a “ Clow Reaper.” Upon the trial the court instructed the jury to render a verdict of “ no cause of action,” which verdict was rendered, and judgment, was thereupon entered in accordance with such verdict, and the defendant appeals from such judgment to this court. The case is fully stated in the opinion.

This action was brought in the district court for Waseca county.

In this case judgment, by default, was regularly entered against the defendant in the district court for Washington county. Defendant made a motion to set aside the judgment] and for leave to answer, which, was based upon an answer] duly verified by him alleging a good defense, and his affidavit] excusing his default, which were served upon the plaintiff’s] attorney.

Plaintiff brought this action in a justice’s court in Olmsted county, to recover a balance alleged to be due him for services as a farm laborer. The defendant appeared in the action, and filed his answer admitting, substantially, the allegations of the complaint: but for a “ second answer” interposed a claim founded on the alleged promise of the plaintiff to pay for defendant’s horse, which he had wrongfully killed, such sum as the horse was reasonably worth.

This is an appeal by the plaintiff from an order of the district court for Wabasha county, sustaining a general demurrer interposed by defendant Hackett to his complaint.

Plaintiff brought this action in the district court for Ramsey county, to recover damages for injuries sustained by him while walking upon a sidewalk on Wabasha street in Saint Paul, caused, as he claimed, by defects in such sidewalk. Issue was joined, and upon the trial testimony was given on the part of the plaintiff, for the purpose of showing the nature, character and circumstances of the injury, and the defect in the sidewalk.

Tbe plaintiff brought this action to recover damages for personal injury sustained while traveling as a passenger upon defendant’s railroad, occasioned, as is alleged, by the negli- ■ gence of the defendant.

The defendants were indicted at the December term, 1871, of the district court for Goodhue county, under sec. 7, ch. 98, Gen. Stats., alleging the offense to have been committed June 17th, 1871, and the defendants were arraigned at the same term, and after pleading not guilty to the indictment, the case was continued. By sec. 1, ch. 54, Lavis of 1872, the above section under which the indictment was found was amended.

The defendant appeals from the judgment of the district court for Ramsey county in favor of the plaintiff.

This is an appeal by defendant from a judgment of the district court for Blue Eartb county, entered upon tbe report of a referee. Tbe case is fully stated in tbe opinion.

This action was brought in the district court for Blue Barth county, and was tried before a referee who reported in favor of plaintiffs, and directed judgment accordingly. Defendants. moved for a new trial which was denied, and they appeal to this court. The case is fully stated in the opinion.

' Action brought in the district court for Winona county. The defendant’s general attorney, John W. Cary, resides at Milwaukee, Wisconsin. After getting one extension of the time to answer while he was investigating the case, he retained, by telegraph, Wm.

This’ action was brought in the district court for Sherburne county, to recover damages for the flowing of plaintiff’s land, defendants’ dam, and to abate the dam as a nuisance.

George Hotchkiss, being the owner of certain lands in Sibley county, executed a bond to Sarah A. Shilling, wife of ohn Shilling, to convey the same to her, upon the payment of certain notes of hers, given for the purchase price.

Appeal taken by plaintiff from the judgment of the district court for Hennepin county. The case is fully stated in'the opinion of the court.

In 1860 suit was commenced in the district court for Ramsey county against Thomas O’Shaughnessy and Lucy his wife to foreclose a mortgage. The defendants appeared and answered.

This action was brought in the court of common pleas, Ramsey county, to enforce the specific performance of an alleged contract for the sale of real estate, which was entered into by means of letters passing between the parties, the material portions of which' are as follows: Letter of April 27,1872, from one of plaintiffs to defendant: “ I learn you are the owner of five acres of land in section 2, T. 28, R. 23. * * *' If you desire to sell, I would like to learn your…

<p>Appeal by defendant from an order of the district court for Houston county. The case is fully stated in'the opinion.</p>

This action was brought in the district court for Hennepin county. The complaint alleges, substantially, that the defendant, Simon P. Snyder, on the 5th day of December, 1857, was the owner in fee of certain premises, particularly described by metes and bounds. That Snyder and wife conveyed the “ aforesaid premises ” to McParlane, by deed dated December 5, 1S57. That McParlane conveyed “ said premises ” to McKinney, by deed dated June 25, 1858.

This action was brought in the district court for Hennepin county, to enjoin the sale of real estate on execution, upon the ground that it would cloud the plaintiff’s title thereto. The defendant demurred to the complaint. The demurrer was overruled by the court below, and the defendant appeals from the order overruling the same. The facts which are alleged in the complaint as a cause of action are stated in the opinion of the court.

Judgment was recovered in this action in the district court of Steele county, against the defendants, from which they appeal. To the statement of the case contained in the opinion, it is only necessary to add that, prior to the commencement of the replevin suit therein mentioned, the plaintiff had attached the ’goods of Blackman upon two writs of attachment issued in suits brought by Philip Wadsworth & Co. and by Rosenthal Brothers against Hempel.

Appeal by the defendants from a judgment of the district court for Ramsey county, in an action for the specific performance of a contract to convey lands. The case is fully stated in the opinion.

The plaintiff brought this action in the district court for Hennepin county to obtain the reformation of a deed. The judge, before whom the case,was tried without a jury, found the facts substantially as follows: On the 29th November, 1870, and long prior thereto, the defendants were husband and wife.

Appeal by the defendant Kidd from an order of the district court for Ramsey county refusing a new trial. The complaint alleges the conveyance by Charles P. Norris to the defendant, Elisha Seymour, on the 22nd March, 1869, of lots 27, 28 and 29, in block 69 in Dayton & Irvine’s addition to St. Paul, and the concurrent execution and delivery by Seymour to Norris of a mortgage on the premises so conveyed, to secure the payment of live promissory notes for the purchase money.

The testator, having duly executed his will, subsequently altered it by cancelling certain portions and substituting other provisions in lieu of those cancelled, in the manner described in the opinion.

Action upon a promissor}’ note by the payees against the makers. At the trial in the district court for Hennepin county, it appeared that the note was given for money loaned by the plaintiffs to the defendants Mitchell and Frank Gale, partners as Mitchell & Gale, and was signed by the defendant S. C. Gale, solely for their accommodation, he receiving no part of the consideration, and that his character of surety was known. to the plaintiffs at the time the note was given.

Action for the conversion of certain wheat, the property of the plaintiffs. At the trial in the district court for Blue Barth county, it appeared that the plaintiffs were the holders of certain instruments issued by the defendant, each purporting to be a receipt for the quantity of wheat specified therein, and each signed by the defendant’s inspector at the elevator at Mankato.

On the 27th August, 1855, Alexander Holton was the owner m fee of the w. J of the sw. £ and the s. £ of the nw. of section 10, and David Holton was the owner in fee of the n. £ of the se. ¿ and the e. of the ne. £ of section 9, all in township 102, range 11 west, in Fillmore county.

The plaintiff brought this action in the district court for Olmsted county, for the cancellation of a certificate issued to the defendant Horton, upon the redemption by him of certain mortgaged premises from a foreclosure sale to the plaintiff.

<p>Application of the rule that a judgment of the district court is presumably correct in the absence of an affirmative showing to the contrary.</p>

Appeal by plaintiff from an order of tbe district court for Hennepin county refusing a new trial. This was an action to recover damages for injury to certain lands and water power of tbe plaintiff through tbe alleged negligence of tbe defendants in tbe excavation of a tunnel at tbe Falls of St. Anthony, in the Mississippi River.

This is an action against the heirs of William B. Dodd, deceased, the defendant Livermore being the statutory guardian, and guardian ad litem, of the minor heirs. The complaint, (verified May 16th, 1870,) sets forth four several causes of action, arising on contract, which accrued to the .plaintiff against William B. Dodd in his lifetime.

Appeal by defendants from an order of the district court for Hennepin county, refusing a new trial. The action was upon a promissory note, made by the defendants in their firm name of Grant, McCaine & Co., to the firm of Stanchfield & Leighton, (of which the plaintiff was a member,) and by them assigned to the plaintiff.

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

<p>Under tke constitution of this state, the courts have no jurisdiction to control the officers of the executive department of the government in the performance of their official duties, and cannot acquire jurisdiction by consent of such officers.</p> <p>The duties imposed on the secretary of state by sec. 15 of chapter 46 of the Laws of 1868, are his official duties as an executive officer, notwithstanding that the legislature might have imposed them on some other person.</p> <p>In mandamus against the secretary of state, the court, having no jurisdiction of the proceeding, declines to comply with the joint request of the relator and the respondent for its opinion upon the true construction of an act of the legislature.</p> <p>In the matter-of the application of the Senate, (10 Minn. 78), and Biee vs. Austin, (19 Minn. 103,) followed.-</p>

The complaint sets forth a written agreement between the parties, in which is recited a contract of the defendant with the United States, • for the transportation of military supplies, and by which the plaintiff agrees to provide teams, wagons and teamsters for the transportation of such supplies and other freight for the defendant, and to transport said freight, &c.; and the defendant agrees, in consideration of the premises, “ to furnish and deliver to the party of the…

Louis county, overruling a demurrer to the complaint, which was upon a written contract, made between the plaintiff of the first part and defendant of the second part, and containing the following provisions: “ In consideration, &c., the party of the first part covenants and agrees to furnish to said party of the second part, one thousand or more cords of stone, as hereinafter specified, viz.: The quality of said rock or “ Quality.” stone shall be sucb as shall be accepted…

Appeal by plaintiff from an order of the district court for Steele county, dissolving an attachment. The case is stated in the opinion.

The defendant was tried in the district court for Blue Barth county upon an indictment for an assault with intent to commit a rape.

Appeal by defendant from an order of the district court for Stearns county, denying a motion for a new trial for alleged misconduct of the juiy. The case is stated in the opinion.

This action was brought in the district court for Stearns county, to recover the balance due upon two promissory notes, alleged in the complaint to have been executed and delivered by the defendant to tbe plaintiff, on the lOtb September, 1868, and bearing date on that day.

Appeal by the defendants from an order of the district court for Dodge county, overruling a demurrer to the complaint. The case is stated in the opinion.

Appeal by plaintiff from an order of the district court for Waseca county, dismissing an appeal. The case is stated in the opinion.

<p>The provision of art. 9, seo. 1, of tbe constitution, that “all taxes to be raised in this state shall be as nearly equal as may be,” does not require absolute and perfect equality, and docs not forbid taxation by the poll as it has been always practised in this state under general laws and municipal charters, although those laws and charters provide for the exemption of certain classes oí the population from payment of poll-taxes.</p> <p>The long continued acquiesence of the people in the laws, under which poll-taxes have been collected throughout the state, has established a leg7 islative and popular construction of the constitution in favor of the validity of these laws.</p> <p>A practical construction of the constitution, which has been adopted and followed in good faith by the legislature and people for many years, should have great weight with the courts.</p> <p>The charter of the city of Faribault authorized the levy of a poll-tax on all qualified voters, but exempted members of fire companies from liability to the tax; Held, that this provision of the charter is not repugnant to the constitutional provision before cited.</p> <p>Whether tax is a debt, and can in any case be collected by an action at law, in the absence of express statutory authority therefor, qutzre.</p> <p>Where a statute creates a right, and provides a method in which it may be enforced, the statutory remedy is exclusive; and this although such statutory remedy be impracticable or insufficient.</p>

Appeal by the defendant from an order of the district court for St. Louis county, overruling a demurrer to the complaint. The case is stated in the opinion. cited (in addition to the cases referred to in the opinion,) Kelley vs. Hooper, 3 Yerg. 395; Randall’s case, 2 Mod. 308 ; and Haydock. vs. Cobb, 5 Day, 529.

This action was brought April 4, 1871, in the district court for Dodge county, to recover for services rendered and money paid to defendant’s use. The defendant answered, denying the allegations of the complaint and alleging a counter olaim, to which the plaintiff replied, issue' being joined August 1, 1871.

<p>Appeal by defendant from a judgment of the district court for Ramsey county. The case is fully stated in the opinion.</p>

The complaint alleges that on the 18th August, 1873, at, &c., the defendant violently and maliciously * * * assaulted and beat the plaintiff about the face, head and neck, with his hands and fists, and also with a weapon, then and there in his hands, consisting of a stone or some heavy suhstance, to plaintiff unknown, concealed in a piece of cloth; and thereby the plaintiff was greatly wounded and bruised, and made ill and lame, and thereby was unable to attend to his…

Appeal by plaintiff from a judgment of the court of common pleas for Ramsey county; the action having been tried by the court without a jury. The case is stated in the opinion.

This action was brought in the' court of common pleas for Hennepin county.

This action, the nature of which is stated in the opinion, was brought in the district court for Meeker county and was tried by a referee, who ordered judgment for the defendant for the affirmative relief prayed for in the answer. Within six months from the entry of judgment on the referee’s report, the plaintiffs paid to the defendant’s attorney the costs of the first trial, at the same time demanding, in writing, a second trial.

Action to recover possession of certain personal property, being part of tbé furniture of a hotel in Faribault, mortgaged by one William Boot to the plaintiff, November 6, 1872, and on the same day taken from Root’s possession by the defendant.

<p>Appeal from an order of the district court for Ramsey county, dismissing an appeal taken by the plaintiff from the report of commissioners appointed by tbe probate court to examine claims, &c., against tbe estate of tbe defendant’s testator. Tbe case is stated in tbe opinion. ■</p>

This action was brought in the district court for Hennepin county, to determine the adverse claim of the defendants to certain unoccupied real estate, and, by consent, was tried by the court without a jury. At the trial, the plaintiffs proved title in fee in Joseph Menard, on the 30th January, 1858, from whom they derived title in fee by sundry conveyances, subsequent to that date.

Tbe plaintiff brought, this action in tbe court of common pleas for Ramsey county, to recover the sum of two hundred dollars, paid to the defendants upon a contract for the sale and purchase of real estate in Ramsey county, under an agreement that it should be refunded on demand, in case the title to the real estate was not good in the defendants, free and clear from all incumbrances.

<p>Certain mortgaged premises were accurately described in the mortgage, as Lots 26 and 27, in McCloud’s subdivision of block two, in Van-denburgh’s addition to Hoyt’s addition to St. Paul. By mistake of the register, the premises were described in the record of the mortgage, as Lots 26 and 27, in McCloud’s subdivision of block two, in Vandenburgh’s subdivision of block two, in Vandenburgh’s addition to Hoyt’s addition to St. Paul. There never was any subdivision of block two, except McCloud’s. Iield, that the description in the record is to be construed as the same description should be construed, if found in the mortgage; that the false and impossible particular, added by, mistake of the register, should bo rejected in construing the record description; that the record description, thus construed, coincides with the description in the mortgage, and the mortgage was therefore properly recorded.</p> <p>A notice of sale, upon foreclosure by advertisement, thus stated the time and place of sale: “At the front door of the court house, in the city of St. Paul, on Thursday, the 10th day of May, 1860.” It appearing that the sale took place on the day named, at the usual hour of making such sales, and was conducted fairly; that the property brought an adequate price; that in the omission to specify the hour of the day, there was no fraudulent intent, and that the mortgagor was in no wise injured thereby. Held, that the defect in the notice did not vitiate the foreclosure. (Following G-olaher vs. Brisbin, ante p. 453, and Menard vs. Crowe, antep. 448.)</p>

The plaintiff in its‘complaint alleges that it is a corporation, duly organized, &c., that the defendant, Palmer, is treasurer of Hennepin county, that the defendant, the City of Minneapolis, is a municipal corporation, &c., and that the plaintiff is the owner of certain lots in block 107, in that city, having a frontage of three hundred and thirty feet on Washington avenue, between Rice street, (or Ninth avenue south,) and Smith street, (or Tenth avenue south.) That the…

<p>Appeal from an order of the court of common pleas for Hennepin county, overruling a demurrer to the complaint, which was substantially the same as that and the next pre-, ceding case.</p>

Appeal by defendants from an order of the district court for Hennepin county, refusing a new trial. The action wag for the destruction of plaintiffs’ grist mill and other property, in consequence of the excavation, by the defendants, of the tunnel described in Cahill vs. Eastman, 18 Minn. 324, and in St. Anthony Falls W. P. Co. vs Eastman, (ante p. 277.) The facts of the case are stated in the opinion.

The plaintiff in bis complaint alleges that he suffered the injury, for which he seeks redress in this action, through the negligence of the defendant in leaving open and unguarded a sewer in one of its streets, on June 29, 1871. The defendant, the present city of Minneapolis, was incorporated February 28, 1872, and is composed of the old cities of Minneapolis and St. Anthony. The former constituting the west division, and the latter the east division of the present city.

<p>Upon an appeal, under sec. 7, sub-chap. 6, chap. 10, Sp. Laws J872, (defendant’s charter,) to the district court, from an assessment of damages for the appropriation of land for street purposes, the judgment of the district court is final, and no appeal lies therefrom to this court.</p>

Appeal by Stinson from an order of the district court for Ramsey county, denying his petition for removal of this proceeding to the United States circuit court. to the point, that a proceeding for condemation of lands for railroad purposes is an “ action,” or “ suit,” cited 13 Iiow. Pr. 400; Stephen PI. 427 -, Wharton’s Law Diet. p. 717, “ Suit” ; Bou-vier’s Law Diet. 558; 1 Chitty PI. 399; 1 Kant, 321; 9 Wheat. 738 ; McCool vs. Smith, 1 Black, 459 ; Weston vs. Com.

The defendants, wbo are architects and builders, having, at plaintiffs’ request, furnished them with plans and specifications for a building proposed to be erected by them on their own land, afterwards, and on the 18th August, 1868, the plaintiffs and defendants made and executed a contract under seal, in which they are all described as “ of the city of St. Paul,” &c. By the terms of the contract, the defendants “agree to and with the said John A. and Washington M. Stees, to…

The defendant having caused deep excavations to be made in Rondo and Mackubin streets, for the purpose of grading those streets, and having laid an assessment, for such grading, upon certain lots of the plaintiff in front of which the excavations had been made, the plaintiff, claiming that the defendant’s proceedings were in violation of law, brought this action to recover damages for injuries occasioned by the excavation to her said property, and to restrain the collection…

This action was brought in the district court for Chisago county. In his complaint the plaintiff alleges an agreement between himself and the defendants, whereby they agreed to furnish bim with supplies for tbe business of cutting railroad ties, in which he was engaged, and that they would charge and receive for such sux>plies what the same were reasonably worth.

Appeal by plaintiff from an order of the district court for • Dakota county, refusing a new trial. The case is stated in the opinion.

<p>Appeal from an order of the district court for Hennepin county, overruling a demurrer to the complaint. The case is stated in the opinion..</p>