Volume 26 — Minnesota Reports

The state of Wisconsin brought this action, in the district; court for Washington county, as endorsee of a promissory-note made by defendants to the order of one Harriman.

<p>Justice of Peace — Erroneously Entitling Criminal Case. — In a criminal prosecution for violating a provision in the charter of the city of Nortlifiold against selling spirituous liquors in said city, the justice, in entering the action in his docket, erroneously entitled it in favor of the city, instead of the state, as plaintiff. Held, the error was an irregularity that did not affect the jurisdiction of the justice, nor prejudice the defendant, as the proceedings themselves, as entered, fully disclosed the real parties and the nature of the action.</p> <p>Same — Jurisdiction—Complaint by Person Ignorant of the Facts. — Jurisdiction to issue a warrant, acquired by a duly verified complaint in writing, charging an offence in direct an,d positive terms, is not lost by proof upon the trial that the complainant had no knowledge of the commission of the offence, except upon information and belief.</p> <p>Bame — Review of Evidence. — No point made upon the evidence can be considered, when the whole of the evidence bearing upon the point does not appear to be returned.</p>

Appeal by defendant from an order of the district court for : Sibley county, Macdonald, J., presiding. Judgment of di-vorce between the parties and for permanent alimony to the plaintiff had been rendered, and the permanent alimony paid, and the judgment therefor satisfied, before the order ■ appealed from was applied for.

Plaintiffs brought this action in the district court .for Ramsey county to restrain the defendants from erecting or maintaining any scaffolding or flume upon a certain out-lot 14, or the streets adjacent thereto, or from conducting the waters of a stream called Trout Brook across the same by means of, an existing channel or raceway. The action was tried before Wilkin, J., who ordered judgment for the plaintiffs. A new trial was refused, and the defendants appealed.

Appeal by defendants from an order of the district court for B-amsey county, refusing a new trial, after trial before Brill, J., without a jury.

<p>Jttisconduct of Attorney — Suspension.—A., an attorney and counsellor-at-law, admitted to practice in all the courts of this state, was employed and acting in his professional capacity, in conducting a criminal prosecution before a justice of the peace. The case prosecuted was, upon an affidavit of bias, transferred, on August 11th, to one Iverson, who had been elected justice of an adjoining town, but who had never qualified. A. • persuaded Iverson to take the case and try it, and, for the purpose of qualifying him to do so, A., as notary public, on August 11th, administered to him the official oath of a justice of the peace, took the acknowledgment of him and his sureties of his official bond, and administered .the oath of justification to such sureties. A. dated the jurats and acknowledgment as of August 4th. Thereupon, when-tlie constable arrived at Iverson’s, with the prisoner and papers, on August 11th, Iverson took cognizance of the case, and on that and the following day proceeded with the trial thereof, (A. conducting the prosecution,) and the prisoner having been found guilty, sentenced him to pay a fine of twenty-five dollars. On August 17th, A. filed the oath and bond (the latter having been approved by the chairman of the town board) with ' the clerk of the district court. No justification, excuse or explanation of the false dating is offered or attempted. Meld, that upon the foregoing state of facts, A., in affixing the false dates, was guilty of “wilful misconduct in his profession,” for which he may be suspended from practice, under Gen. St. c. 88, § 18.</p>

The defendant’s intestate, Mark Hendricks, died on May-23, 1876. A claim of plaintiff against his estate for money had and received by him in 1865 was disallowed in the probate court, and the plaintiff appealed to the district court for Ramsey county, where the defendant pleaded the statute of' limitations, and had a verdict, on a trial before Brill, J., and a jury. A new trial was denied, and the plaintiff appealed.

Appeal by plaintiff from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The action was ejectment, and the case is stated in the opinion.

Action to recover the value of the use of two mill-powers of water. Trial in the district court for Hennepin county, before Vanderburgh, J., upon whose findings a judgment was entered for the plaintiff, from which the defendants appealed.

Appeal by defendants from a judgment of the district court for Ramsey county, where the action was tried before Brill, J., and a jury.

The plaintiffs Baldwin and the State National Bank of Minneapolis brought this action in the district court for Hennepin county against the defendants Thomas H. Canfield, William S. King, and the Minneapolis Agricultural and Mechanical Association praying that a certain deed from King to Canfield, and a certain instrument purporting to be a deed from the Agricultural and Mechanical Association to Can-field, (each of which purported to convey certain real estate of the…

<p>Order discharging order to show cause, and a restraining order, held, upon • the facts presented, to have been properly made.</p> <p>Appealability of the same doubted.</p>

<p>Estates of Decedents — Proof of Debt by Agent in bis own Name — Remedy of Principal. — S. placed in tlie hands of B., as his agent, for collection only, a claim against the estate of a deceased person. B. presented it to the commissioners to audit claims against, the estate, as a claim due to himself, and it was so allowed. G., in an action against B., instituted garnishee proceedings against the administrators of the estate, to reach this-claim. S. came in, and was joined in those proceedings as claimant of the debt against the estate. Held, that S. may prove that the claim belonged1 to him, and that he had placed it in the hands of B., only as his agent, for collection, and that fact being proved, the garnishee proceeding was properly discharged.</p>

The defendant having instituted proceedings to condemn certain land of the plaintiff Mary Greve, over which it had long before constructed and operated its railroad, she and her husband appealed to the district court for Bamsey county, where the case was tried before Wilkin, J., and a jury.

<p>Appeal by plaintiff from a judgment of the district court for Chippewa county, Brown, J., presiding.</p>

Appeal by plaintiff from an order of tbe district court for Hennepin county, Vanderburgh, J., presiding, refusing a new 'trial.

Appeal by defendant from, an order of the district court for Hennepin county, Vanderburgh, J., presiding, overruling a demurrer to the complaint in an action of ejectment, which alleges “that the plaintiffs are the owners in fee simple of all that portion of lot 3, in section 34, in town 118 north, of range 23 west, in Hennepin county, Minnesota, that lie's within 100 feet on either side of the centre of a track laid by” the defendant, “as said track crosses said lot 3, and…

Appeal by defendants from an order of the district court for Bamsey county, Simons, I., presiding, setting aside and declaring null and void the written demand of the defendants for'a second trial, filed with the clerk of the court, and directing that the same be stricken from the files in the action.

Appeal by plaintiff from a judgment of the district court for Scott county, where the action was tried before Dickinson, J., acting for the judge of the eighth district.

Action for damages for maliciously and without probable-cause procuring the plaintiff’s property to be seized on a writ of attachment in an action brought against her in the same-court by the defendants, the writ having been issued on the affidavit of defendant Beed, which stated that she was about to dispose of her property with intent to defraud her creditors, which statement is charged in the complaint to have been false, and made without probable cause and maliciously.

Appeal by defendant from an order of the district court for Stearns county, McKelvy, J., presiding, overruling a demurrer to the complaint for misjoinder of causes of action.

Appeal by defendants from a judgment of tbe district court for Meeker county, Brown, J., presiding, affirming the judgment of a justice’s court, from which the defendants had appealed on questions of law alone.

Appeal by plaintiff from an order of the district court for McLeod county, Macdonald, J., presiding, refusing a new trial.

Appeal by plaintiff from a judgment of the district court for Scott county, where the action was tried before Macdonald, J., a jury being waived.

The defendant’s demurrer to the indictment was overruled by the district court for Meeker county, Brown, J., presiding, who, at defendant’s request, certified the case to this court.

Appeal by defendant from an order of the district court for Bamsey county, Simons, J., presiding, overruling a demurrer to the complaint.

Plaintiff brought this action in the district court for McLeod county, praying that certain land, the legal title to which was in the defendant Ernestina Eeich, might be sold to satisfy a judgment of the plaintiff against the defendant. Charles Eeich, husband of Ernestina. The action was tried before Macdonald, J., who ordered judgment for the defendants. A new trial was denied, and the plaintiff appealed.

<p>landlord and Tenant — Summary Dispossession. — In an action under the Forcible Entry and Unlawful Detainer Act, (Gen. Sc. a. 84,) commenced February 10,1879, a finding that on January 7, 1879, the plaintiff was, ever since has been, and now is, owner in fee of certain described premises; that defendant wrongfully and unlawfully detains the same from plaintiff, who is entitled to the immediate possession thereof, in that, on or about the seventh day of January, 1879, plaintiff leased said premises to defendant for the term of one month, from said seventh day o£ January, the defendant agreeing to pay as rent for said term twelve dollars in •advance, that is, on said seventh day of January; that the defendant entered into possession under said lease, but has paid no part of the rent: entitles the plaintiff to restitution of said premises, under section 11 of said act.</p>

Appeal by plaintiffs from an order of the district court for Mower county, Page, J., piesiding, sustaining a demurrer to “the complaint.

<p>Appeal from a judgment of the municipal court of the city of Stillwater, in favor of the defendant, on a counterclaim pleaded to a suit brought by plaintiffs.</p>

Appeal by plaintiff from an order of the district court for Eamsey County, Brill, J.,.presiding, granting a new trial, with ten dollars costs.

Appeal by plaintiff from an order of the district court for Chippewa and Lac qui Parle counties, Brown, J., presiding, .refusing a new trial.

The plaintiff, a qualified voter in the city of St. Paul, and duly registered as such, desiring to vote at the proper polling place at the general city election on May 7, 1878, offered to the judges of election a printed ballot, such as the law in such case requires, having thereon the names of city officers and candidates therefor.

Appeal by plaintiffs from a judgment of the district court for Ramsey county, and from an order refusing a new trial, the action having been tried before Brill, J., who directed a verdict for defendant.

Plaintiff brought this action in the district court for Good-hue county, to recover the amount of a subscription made by-defendants to its capital stock. The complaint alleges that-at the several times therein mentioned, the plaintiff was and now is “a corporation duly organized and created under the-laws of the state of Minnesota,” but does not state the object or any of the powers of such corporation.

Appeal by defendant from a judgment of the municipal court of the city of Minneapolis, in an action brought on the contract stated in the opinion. cited Hackett v. Huson, 3 Wend. 249; Connelly v. Pierce, 7 Wend. 129; Fuller v. Hubbard, 6 Cowen, 1; Camp v. Moore, 5 Denio, 161; Wells v. Smith, 2 Edw. Ch. 77; Dye v. Montague, 10 Wis. 15; Dodge v. Hopkins, 14 Wis. 631. cited Bloody.

Appeal by defendant from an order of the district court for IHennepin county refusing a new trial, after a trial before Young, J., without a jury.

Appeal by plaintiff from an order of the district court for Mower county, Page, J., presiding, granting a new trial. The action was against B. A. O’Neill and L. E. Pearce, and the latter was alone served with process and defended the action. The case is stated in the opinion. The plaintiff having pleaded an actual conversion by defendants, cannot rely on the facts creating the alleged estoppel, which he has not pleaded.

By indenture of lease the plaintiff demised to the defendants a store in the city of Minneapolis, for a term of one year, expiring October 1, 1875, and for a second term of one year, expiring October 1, 1876, at the yearly rent of $525, payable in monthly instalments in advance. The defendants, after the expiration of the second term, continued to •occupy the premises, paying rent therefor as before, until April 1,1877. On April 6,1877, they vacated the premises.

This action was brought in the district court.for Hennepin county to set aside a judgment of the same court in favor of defendant, in a former suit between the same parties, because obtained by the defendant’s fraud and perjury. A demurrer to the complaint was sustained by Young, J., and judgment thereon entered for the defendant, from which the plaintiff appealed.

In each of these cases, the plaintiff, as assignee of Shepard & Cummings, under a general assignment in trust for the benefit of creditors, sued the defendant, in a justice’s court, to recover the value of goods sold and delivered to him by plaintiff’s assignors.

Mandamus, to compel the auditor of Hennepin county to-issue to the relator, in accordance with a demand made therefor on March 28, 1879, a statement showing how much was. then required to be paid to effect a redemption of certain land belonging to the estate of relator’s intestate from a tax sal© made December 1, 1875, in pursuance of a tax judgment entered in the district court for that county, on July 28, 1875, in proceedings under Laws 1875, c. 7, to enforce payment of…

■ Defendant, having been indicted in the district court for Benton county, for selling spirituous and intoxicating liquor without a license, interposed a demurrer to the indictment, which was overruled by McKelvy, J., and he was tried, convicted and sentenced, and appeals from the judgment.

<p>Charge — Expression of Opinion on Facts. — In a criminal case it is error for tlie court in its charge to indicate to the jury its opinion of the facts, unless it inform, them that they are the exclusive judges of all questions of fact.</p>

Action under Gen. St. c. 90, to enforce a mechanic’s lien against a steamboat, for labor performed thereon by the plaintiff in the lifetime of defendant’s testator, under a contract with him.

Plaintiff, as chairman of the board of. supervisors of the-town of St. Augusta, in Stearns county, brought this action in a justice’s court, under Laws 1873, c. 20, § 1. After judgment against him, the defendant appealed to the district court, for the county, on questions of law and fact. A jury was. waived, and the action tried before McKelvy, J., and judgment rendered for plaintiff, from which, the defendant appeals.

Appeal by defendant Lowry from an order of the district court for Bamsey county, Wilkin, J., presiding, refusing a new trial. A former appeal is reported in 25 Minn. 114.

<p>.Prohibition, — In an action, proceeding in the ordinary way, the cause of action being within the jurisdiction oí the court, if, in the course of the action, any matter arises or is presented to the court requiring it to decide upon its jurisdiction, an error in such decision must be corrected upon appeal, writ of error, or certiora/ri, if such mode of review is open to the party. In such case, the writ of prohibition is not the proper .remedy.</p>

<p>'Promissory Note — Partial Failure of Consideration. — Where the maker of a promissory note, as a defence to the same, relies upon a partial failure of its consideration, the burden is upon him to show to what extent, i. e. to what value, consideration has failed.</p> <p>Same — Proof of Failure held Insufficient. — In this casé, the court assumes, for the benefit of the defendant, that the consideration of the note upon which this action is brought is npportionable, and that a partial failure of the consideration of a promissory note is available as a defence in this state. Upon this assumption, it is held, upon consideration of the case, that the defendants have failed to make it appear to what extent the consideration of the note in suit has failed, in proportion to the . whole consideration ; and the finding of the referee that the plaintiff is entitled to recover the full face of the note is accordingly sustained.</p>

<p>■ Appeal by defendant from a judgment of the district court for Fillmore county, Page, J., presiding.</p> <p>cited State v. Schmail, 25 Minn. 370, and State v. Hanley, 25 Minn. 429.</p>

Case certified from the district court for Faribault county, Dickinson, J., presiding, the defendant having been tried and convicted on an indictment for selling intoxicating liquor without a license.

The plaintiff brought this action in the district court for Watonwan county against the defendant railway company •and certain persons described as mortgagees or trustees of its real property, praying that the plaintiff be adjudged the owner of each of the tracts described in the complaint— several hundred in number, and lying in five different counties — and that the defendants be adjudged to have no interest therein or lien thereop, and that the defendant railway company…

The defendant, as late county treasurer of McLeod county, was tried and convicted in the district court for that county, before Macdonald, L, on an indictment for embezzlement of state funds. John Thom and C. Johnson, when called as jurors, were severally objected to for general disqualification.

Appeal by defendant from an order of the district court for McLeod county, Macdonald, J., presiding, overruling his demurrer to an indictment accusing him “of the crime of •embezzlement of money entrusted to him, ” and charging “that .at Glencoe in the county of McLeod, state of Minnesota, on fhe 18th day of July, A. D. 1877, the said Charles E. Mims was by one Martin Eenz entrusted with and had in his possession, custody and control, a large sum of money, to wit, the sum of…

Appeal by the defendant James McNaughton, from a judgment of the district court for Eice county, Lord, J., presiding, in an action brought against the appellant and James Curren. The case is stated in the opinion. The assignment of the certificate was a “conveyance,'” and McNaughton a purchaser, within the meaning of Gen. St. c. 40, §§ 25, 2G, whether the instrument be considered as a mere ■assignment of the mortgage or a deed of the land.

The plaintiffs Tristram W. Tidd, Ezra B. Eales and Clara Gr. West brought this action in the district court for Mill©Lacs county, to set aside certain tax judgments, sales, certificates and assignments, under which the defendants claimed title to the N. W. ¿ of the S. E. £, and the S. W. ¿ of section 3, and the S. E. J and the E. of the S. W. J of section 4, all in township 38, range 26, and of which they alleged themselves to be owners in fee.

Plaintiffs brought this action in the district court for'Millo Lacs county to recover damages for alleged trespasses by defendants on certain described pine lands stated to be owned in fee by plaintiffs, and for an injunction to restrain defendants from continuing such trespasses. The defendants justified under a contract with one D. D. Moore, whom they alleged to be owner in fee of the lands in question.

<p>Refusal to certify to Case on which a Motion for a New Trial has been heard. After a verdict, the parties stipulated to a statement of the case. A motion was made upon it for a new trial, and at the same time the case was presented to the judge to he approved and certified. The motion was heard on the case as stipulated, and decided; but the judge declined to certify the case as stipulated. Held, that hearing the motion for a new trial on the stipulated case ivas an approval of it, and the judge ought to have then certified to it, and a mandamus will issue requiring-him to certify to it as of the date when so presented to him.</p>

Ejectment for certain land in Meeker county. A jury was waived, and the action tried before Brown, J., who ordered judgment for the defendant, which was entered, and the plaintiff appealed.

Plaintiffs brought this action in the district court for Washington county, to restrain the defendant from opening and working a certain highway over their land. A demurrer to the complaint was sustained by Crosby, J., and the plaintiffs appealed.

Appeal by defendant from a judgment of the district court for Hennepin connty, Vanderburgh, J., presiding. The ease was argued at the October term, 1878, and a reargument was ordered, which was had at the April term, 1879.

<p>Eight to use of Water-power is taxable as real ani not as personal property.— Defendant is a corporation, organized and acting under a charter found in Laws 1856, c. 145. The company is the owner in fee of land upon, the westerly bank of the Mississippi river, at the Pails of Saint Anthony, opposite which land it has built and maintains a dam extending -from, such bank into the rive]-. The company has leased to different parties four mill-sites upon the dam, together with the right to use, upon and at said respective sites, the quantity of water in the leases specified — in all amounting to thirteen water-powers, (so called;) “the said water and water-powers being taken and used thereat directly from the main body of the said river, running through said dam, and regulated by means of gates therein.” Morrill v. St. Anthony Falls Water-Power Co., ' ante, p. 222, followed as to the general rule that a riparian owner may use the waters of a navigable river (like the Mississippi) adjoining his land, for any purpose, for his own advantage, so long as he does not impede navigation, and in the absence of any counter claim by the state or the United States. The right to this use rests upon the fact of riparían ownership; that is to sa3r, the riparian proprietor possesses this, right because he owns the land upon the bank ; or, in other words, the right is attached as an incident to the riparian land, and belongs and appertains to the same. It follows that the defendant’s right to the use of the water is, for all purposes of taxation, real property, and not persona], since our tax law provides that real property, for the purposes of taxation, shall be construed to include the land itself, and all rights and1 privileges belonging, or anywise appertaining, thereto.</p>

James Mclntire and others, partners in business in the •state of Wisconsin, filed their complaint in the district court for Eamsey county against the Eau Claire Dells Improvement ■Company, a Wisconsin corporation, having no agent or place ■of business in this state. The action was upon contracts made and to be executed in Wisconsin.

Appeal by defendant .from an order of the district éourt for Hennepin county, Young, J., presiding, refusing a new trial.

Appeal by tbe state from a judgment of tbe district court for Bamsey county, where tbe action was tried before Brill, J., without a jury.

<p>Liability of Railway Co. for Injury to Cars belonging to Connecting Railway Co. — Under an agreement between plaintiff and defendant companies, between whose lines of road there was a rail connection at Merriam Junction, the defendant received from plaintiff, at said junction, eight of its cars, loaded with wheat, for transportation and delivery to consignees at Minneapolis, a point on defendant’s road. By the terms of said agreement, defendant was required to haul the cars over its road, having exclusive charge and control thereof, make delivery of the wheat, and then return the same, either loaded or empty, to the plaintiff, at said junction, in as good condition as when received, ordinary wear and tear by use excepted. Both parties were to share intheprofits of the transportation of the wheat and other freight so -carried, and plaintiff was to receive from defendant, in addition to its share of such profits, a stipulated compensation for such use of its said cars. While being so used by defendant, the cars were wholly destroyed by fire at Minneapolis, without any fault or negligence on its part amounting to want of ordinary care. Held, that defendant was not liable to plaintiff for such loss, either as a common carrier, bailee for hire, or otherwise.</p>

Plaintiff having brought this action in the municipal court of St. Paul, the defendant appeared specially and moved to dismiss the action, on the ground that no duly verified complaint had been filed with the clerk before the issuing of the summons, and that the court had no jurisdiction to issue a summons in the action.

Appeal by defendant from an order of the district court for Nobles county, Dickinson, J., presiding, refusing a new trial. The action was for the wrongful taking and strfcrSSlfuent conversion, by the defendant, of one pony and one yoke of oxen, the property of plaintiff.

Action to recover tbe rent of a building on Third street in St. Paul.

Appeal by plaintiff from an order of the district court for Bamsey county, Brill, J., presiding, sustaining a demurrer to the complaint.

The defendant was tried before a city justice of the city of Northfield, on two separate complaints, one for selling spirituous liquor and the other for selling fermented liquor. At the trial on the first complaint, the only testimony as to the fact of the sale was that of one Tallman, a private-detective.

Mandamus to compel the respondent Hanft, a justice of •the peace in St. Paul, to make return to the municipal court •of that city, pursuant to an appeal taken to that court by xelator from a judgment rendered against him by such justice.

Appeal by defendant from an order of the district court for Stevens, Big Stone and Traverse counties, Brown, J., presiding, refusing a new trial after verdict of $175 for plaintiff.

Plaintiff brought this action in the district court for Cottonwood and Murray counties, to recover damages for a cow run over and killed by a train on defendant’s railway. At the trial, before Dickinson, J., it appeared that the cow had strayed from plaintiff’s land upon a section of land belonging to the defendant, and thence upon the track, which was not fenced.

Appeal by plaintiff from an order of the district court for Eamsey county, Brill, J., presiding, sustaining a demurrer to the complaint.

Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. The execution mentioned in the opinion was issued on a judgment entered June 5,1877, in an action commenced in November, 1876, on a note made on February 25, 1876, and due October 28, 3876.

Appeal by defendant, a corporation, from a judgment of the district court for Washington county, entered on the report of a referee.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The facts of the case are stated in the opinion. At the trial the plaintiff, testifying in his own behalf, stated that he was a married man, with five children, all girls. The defendant objected to this evidence and moved that it be stricken out as immaterial, and excepted to the overruling of the objection.

Appeals by the defendants from an order of the district court for Washington county, Crosby, J., presiding, appointing a receiver.

Appeal by plaintiffs from an order of the district court for Houston county, Page, J., presiding, denying their motion for a new trial, after a trial before Brill, J., (acting for the judge of the 10th district,) and a jury.

Proceeding in the municipal court of Minneapolis, under Gen. St. c. 84, § 11, to recover possession of certain premises-in that city. The complaint (which was filed May 17, 1879,} alleges that on April 1, 1874, by indenture of lease, which was duly recorded, one Holmes demised the premises described therein to one Hanscom, for the term of 15 years, at the yearly rent of $3,000, payable quarterly in advance.

Proceeding in the district court for Nobles county, for the collection of taxes for the year 1876, assessed on certain lands of defendant in that county. The defendant interposed an answer, alleging that the lands were not subject to taxation.

Appeal by defendants from a judgment of the district court for Hennepin county, where the action was tried before Young, J., a-jury being waived. cited zorley v. Naylor, 6 Minn. 123 (192;) Atkinson v. Duffy, 16 Minn. 45; Pratt v. Tinckom, 21 Minn. 142; Dayton v. Mintzer, 22 Minn. 393; Parsons v. Lanning, 27 N. J. Eq. 70; Olcott v. Robinson, 21 N. Y. 150.

Certiorari, to review a judgment of one of the justices of the peace of the village of Jordan, in Scott county, (who was also one of the justices of the peace of the county,) before whom the defendants had been convicted on a complaint charging an assault and battery “at the village of Jordan, in said county,” without more particular description of the place of commission of the offence, “against the peace and dignity of the state of Minnesota, and contrary to the form of…

Appeal by plaintiff from a judgment of the district court for Stearns county, McKelvy, J., presiding. cited, upon the point that the letters of administration were not prima facie evidence of death, Moons v. De Barnalles, 1 Russell, 272; Clayton v. Graham, 10 Ves. 288; Leach v. Leach, 8 Jurist, 211; Carroll v. Carroll, 60 N. Y. 121; Thompson v. Donaldson, 3 Espinasse, 63; 2 Phillips Ev. 93; 2 Wharton Ev. 812, 1278; that the recitals in the letters were not evidence for any…

<p>Motion by respondent to dismiss appeal.</p> <p>cited Von Glahn v. Sommer, 11 Minn. 132 (203;) Lamb v. McCanna, 14 Minn. 513; Washburn v. Shaffer, 15 Minn. 63; Rabitte v. Nathan, 22 Minn. 266.</p>

<p>Summons duly served, without Service or Filing of Complaint. — Where a. sum- ■ mons is regular on its face, and is served in the manner provided by statute, the court thereby acquires jurisdiction of the cause. That the complaint is not filed, or a copy served with the summons as stated in the summons, is only an irregularity, which the defendant waives unless he moves to set aside the service. Overruling Tuller v. Oaldwell, 3 Minn. 67, (1X7.)</p> <p>Complaint — Statute of Limitations. — A complaint which shows the cause of action to be barred by the statute of limitations, does not state facts sufficient to constitute a cause of action.</p>

' Appeal by plaintiff from an order of the district court for Bamsey county, Brill, J., presiding, dismissing the action for insufficiency of the complaint.

Appeal by plaintiff from a judgment of the district court for Winona county, where the action was tried before Mitchell, J. The case is stated in the opinion. argued that under Gen. St. c. 81, § 3, the mortgage made by Moon was to be regarded as a separate mortgage for each instalment.

<p>Town Board of Appointment — Meetings—Notice,—The justices of the peace and supervisors of a town constitute, under Gen. St. 1878, e. 10. §§ 48, 49, a board to fill vacancies occurring in any town offices, and they can act as such only when met together as a board. Every member has a right to notice of a meeting of the board ; and if such notice be omitted, although a majority meet and concur in appointing to fill the vacancy, their action is illegal.</p>

Appeal by plaintiff from a judgment of the municipal court of St. Paul, where the action was tried by a jury, and plaintiff had a verdict for “$21.07, being for one month’s rent of the house.” -At the trial the plaintiff excepted to the refusal ■of the court to direct a verdict in his favor for the amount demanded in the complaint, and to the following instruction given to the jury: “When the rent is payable monthly, the presumption is that the tenancy is from month to…

Defendant’s motion in arrest of judgment having been denied by the district court for Swift county, Brown, J., presiding, the judge, at defendant’s request, reported the case to this court.

<p>Appeal — Garnishment.—An order of a district court for judgment against a garnishee is not appealable.</p>

Appeal by defendants from a judgment of tbe district court for Stearns county, where the action was tried before McKelvy, J., a jury being waived.

Delator made complaint against one William Hamilton, before Jacob Story, a justice of the peace in and for the city of Winona in AVinona county, charging him with assault and battery. A warrant issued, and Wm.

Appeal by defendants from an order of the district court for Washington county, Crosby, J., presiding, overruling a demurrer to the complaint.

Appeal by defendant from a judgment of the district court for Kandiyohi county, Brown, J., presiding. The action was begun in a justice’s court.

In each of these actions, the defendant St. Olaf’s School -(which was impleaded with one Charles P. Anderson) separately demurred to the complaint. In the first case the •demurrer was sustained, and, in the second, overruled. In the first ease the plaintiff, and in the second the defendant, -appealed.

- Quo warranto, to try the title of the respondent to the office of county treasurer of Kandiyohi county, claimed by the relator. The respondent answered, and testimony was taken before a referee appointed by the court, the facts proved being stated in the opinion.

Appeal by plaintiff from a judgment of the district court for Ramsey county, the action having been tried before Wilkin, J., and dismissed on the defendant’s motion.

<p>Appeal by plaintiff from a judgment of the district court for Washington county, Grosby, J., presiding.</p>

Appeal by defendant from an order of the district court for Le Sueur county, Macdonald, J., presiding, refusing a new trial, after a trial -by the court, without a jury.

Appeal by plaintiff from an order of the district court for Scott county, entered by direction of Gox, J., acting for the .judge of the 8th district.

Appeal by plaintiff from an order- of the district court for Washington county, Crosby, J., presiding, sustaining a demurrer to the complaint.

Appeal by plaintiff from an order of the district court for Washington county, Crosby, J., presiding, determining the interests of the parties in the real estate which was the subject of the action, and directing that partition be made accordingly. argued that the judgment mentioned in the opinion did not bind th.e heir of Samuel Connolly, because it was rendered in a suit brought by the administrator of the latter, between whom and the heir there is no privity; and that the…

The defendant, on July 1, 1868, executed and delivered to plaintiffs, as trustees for bondholders, a mortgage on its line of railroad from St. Anthony to Breekenridge, with its appurtenances and land-grant, to secure bonds to the amount of $6,000,000.

Appeal by plaintiff from an order of the district court for Washington county, Crosby, J., presiding, refusing a new-trial. '•

Appeal by plaintiff from a judgment of the district court for Hennepin county, where the action was tried before Vanderburgh, J., a jury being waived.

Action brought in the district court for Washington county,, for a dissolution of a partnership alleged to consist of plaintiffs and defendant, and for an accounting by defendant.. The defendant denied the partnership.

Plaintiffs brought this action in the district court for Ramsey county, on September 20, 1875, praying that a certain conveyance made by them to the defendant on January 15, 1J62, might be decreed to be a mortgage, that defendant account for the rents and profits of the premises so conveyed which the defendant had received while in possession, and for all moneys received from sales made by him, and that the defendant pay to the plaintiffs the balance of such moneys after…

Appeal by defendant from an order of the district court for ’Brown county, Cox, J., presiding, - overruling a demurrer to “the complaint.

Action against defendants, as partners, engaged in the business of furnishing abstracts of title to real estate, for alleged breach of a contract to furnish plaintiff with a correct abstract of title to certain land in Minneapolis. A demurrer to the complaint was sustained by the district court for Hennepin county, Young, J., presiding, and the plaintiff appealed.

The demurrer of the state to the defendant’s plea of a former conviction of the same offence charged in the indictment was sustained, and the plea overruled, by the district court for Freeborn county, Page, J., presiding, who, at defendant’s request, reported the case to this court, pursuant to Gen. St. 1878, cl 117, § 11.

Plaintiffs presented to the proper commissioners a claim for a balance alleged to be due them from the defendants’ intestate, Levi Butler, under an alleged wood contract. The-claim was disallowed, and the plaintiffs thereupon appealed to the district court for Hennepin county, where a jury was waived, and the action tried before Young, J., who, at the close of plaintiffs’ evidence, granted defendants’ motion for a dismissal for failure of proof.

Action to recover possession of two horses, alleged in the complaint to belong to plaintiff, and to have been taken from his possession by defendant. In his answer the defendant denied plaintiff’s title, alleged title in one H. W. Tapper, plaintiff’s father, and justified the taking, as sheriff, under an execution against D. W. Tupper.

<p>Appeal by defendant from a judgment of the municipal .court of Minneapolis.</p>

<p>Contract of Infant falsely Stating Mmself to be of 3?ull Age. — In an action in tlie nature of assumpsit, to recover the value of goods (not necessaries) sold and delivered to an infant, he is not estopped to set up his infancy as a defence, by the fact that, at the time of the sale of the goods, he held himself out to be of age, and that upon the faith of such holding out the goods were sold and delivered.</p>

Gilbert Dutcher, lessee and sole ostensible proprietor of the Metropolitan Hotel, in St. Paul, died on October 1, 1873. Soon after his death, one of his sons-in law, Edwin E. George, asserted a claim that he and the deceased had been equal copartners in the business of keeping the hotel, and equal owners of the lease, furniture and other property employed in the business.

<p>Appeal by defendants from a judgment of tbe municipal court of St. Paul.</p>

Action on a sealed contract, executed by plaintiff and one Donald Stevenson, whereby the former agreed to deliver to the latter 250 (with the privilege of delivering 300) tons of hay, and the latter agreed to pay therefor at the rate of $20 per ton. The breach alleged is a failure to pay a balance due on account of hay delivered, and a refusal to accept other hay tendered under the contract.

Plaintiff brought this action in the district court for McLeod county, to set aside a levy, sale and certificate of sale on execution, of certain real estate in that county, alleged to be his homestead. ■ The action was tried by Macdonald, J., whose findings of fact were, in substance, as follows: On February 19, 1877, the defendants recovered a judgment against the plaintiff, which was duly docketed ,on that day in McLeod county.

Appeal by plaintiff from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.

Appeal by plaintiffs from an order of the district court for Kandiyohi county, Brown, J., presiding, denying their motion to revive and continue the action against the executrix of George G. Maynard, (the person originally named as defendant,) and that she be made a party defendant.

On January 6, 1S79, the defendant, as sheriff of Hennepin county, by virtue of executions -issued on several judgments entered on that day, in the district court for that county, against one Eichelzer, a manufacturer and dealer in furs in the city of Minneapolis, levied pn and took possession of the Stock in trade, fixtures, etc., of the judgment debtor, and afterwards sold the same to satisfy the executions.

Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. There was evidence at the trial tending to prove the following facts: The plaintiff was employed to carry a load of goods from the warehouse of one Dodge, on Plum street, a much frequented street in Red Wing. On reaching the warehouse, in company with Dodge, he found that access to it was obstructed by freight cars on the track of defendant’s railroad.

The plaintiff brought this action in the district court for McLeod county, alleging himself to be the owner of certain described land in that county, and that on March 13, 1872, and thereafter until May 17, 1878, one Henrietta Hemorick was the owner and seized in fee of such land, and that on the day last named, the said Henrietta, being then the owner and seized in fee thereof, duly sold the same to the plaintiff for a valuable consideration to her paid by the plaintiff,…

Plaintiff, administrator, with the will annexed, de bonis non of the estate of Samuel Gr. P. Craig, presented to the probate court for Ramsey county, for allowance against the estate of Nathaniel McLean, a claim for $4,510.90, being the amount theretofore found due to the estate of Craig from a former administrator thereon, one Parker Paine, (on whose bond as administrator McLean was a surety,) and which had never been paid over.

Plaintiff brought this action in the district court for Stearns-, county, alleging that between April 1, and November 1,1875, he was the owner of and had in his possession a large lot of' cedar logs, a part of which were marked O 0, and the rest XIX, which marks belonged to him as owner and were-of record in the proper surveyor general’s office; that during; such time the said logs were being driven by him in the Missisippi river, from a point above Stearns county to the…

On March 15, 1879, pursuant to due notice, a petition was presented to the respondent, as judge of the 8th district, praying that a legal highway might be laid out, located and opened through Carver and Scott counties, in that district, and extending into the county of Hennepin, in the 4th judicial district.

The plaintiff, as assignee of a part interest under a certain contract between the Minnesota Railway Construction Company and Henry M. Rice, (by which contract a share of the profits that might be realized by the construction company in the construction of the St. Paul & Chicago railway, under a contract with the railway company, was made over to Mr. Rice,) brought this action in the district court for Ramsey county against the construction company and the assignees of the…

Appeal by defendants from an order of the district court for Eamsey county, Simons, J., presiding, refusing to dissolve an injunction.

Appeal by defendant from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial. A former appeal is reported, 24 Minn. 394.

Appeal by plaintiffs from a judgment of the district court for Bamsey county, where the action (which was brought to set aside the guardian’s sale, and the other conveyances mentioned in the opinion) was tried before Brill, J.

<p>Writ of Error — What Errors Reviewable. — Where, in a criminal case, there has been heard in this court, on the merits, an appeal from an order denying a new trial, upon a subsequent writ of error upon the judgment no error prior to the order denying a new trial can be considered.</p> <p>Same — Modification of Sentence. — Upon writ of error ox appeal from a judgment in a criminal case, this court may, instead of reversing or affirming, modify the judgment so as to correct any errors of the court below in ordering or entering it.</p> <p>Embezzlement of Public Moneys — Eine — Imprisonment.— Upon a conviction under Gen. St. 1878, c. 95, U 36, 37, for embezzling public moneys, the amount embezzled being $14,614.03, a fine of $29,228.06 is not excessive. Upon conviction under those sections, the court has no power to sentence the defendant to stand committed in prison until the fine imposed is paid'.</p> <p>Term of Imprisonment — Expiration in Winter. — Gen. St. 1878, e. 118, $ 5,.in. regard to punishing by imprisonment, providing “ that whenever practicable, the term of imprisonment shall be so fixed that it will expire between the first day of April and the first day of November,” is only directory.</p>

<p>Writ of error to the district court for McLeod county.</p>

Action under Gen. St. 1878, c. 77, § 2, by the plaintiff as-executrix of her deceased husband, John Green, to recover damages for injuries inflicted on him, causing his death.

This cause having been duly placed on the calendar for trial, at a general term of the district court for Kandiyohi county, Brown, J., presiding, and having been reached on the preliminary call of the calendar, the plaintiff's counsel moved that another district judge be requested to attend at a special or adjourned term of the court, and try the cause, in the place of the then presiding judge, and for the continuance of the cause to such special or adjourned term, for the…

Plaintiff brought this action in the district court for Olm.sted county, to recover $6éé as the value of services alleged to have been rendered to the defendants. The jury found a verdict for plaintiff for $280.16. The defendants then moved for a new trials for alleged misconduct of the jury. In support of their motion, they read the affidavits of Rommel, of the sheriff, and of one of the jurors.

The defendant, being arraigned in the district court for Ramsey county, Wilkin, J., presiding, upon an indictment for keeping a house of ill-fame in the city of St. Raul, in that county, pleaded (1) Not guilty; (2) an ordinance of the city of St. Paul, which, it was contended, superseded Gen. St. c, 100, § 9, within the limits of the city; and (3) a prior conviction and sentence in the municipal court of St. Paul, on a prosecution under the ordinance, for the identical act…

Appeal by the register of deeds from an order of the district court for Bamsey county, Wilkin, J., presiding, directing the issuance of a peremptory writ of mandamus. The acts of the legislature in question are unconstitutional, ■as they conflict with Const, art. 1, § 2. The lands being allodial (Const, art. 1, § 15,) the right to transfer them is a .right of the owner and her grantee.

<p>Intoxicating Liquor — Indictment —An indictment entitled “ The district court for the counties of Lyon and Lincoln, and slate of Minnesota,” and charging that the defendant “ on or about the 15th day of .November, A. D. 1879, at ” a town named, “ in said county of Lincoln, did sell and dispose of,” to a person named, “ one pint of brandy, of the value of 10 cents,” sufficiently alleges a sale and disposal of a quantity of spirituous liquor, less than five gallons, in the county of Lincoln, in the state of Minnesota, and the time of such sale and disposal.</p>

At the general election, on November 4,1879, Newton and Newell were opposing candidates for the office of sheriff of Dakota county. The county board of canvassers found and declared that Newton had 1,466 votes, and that Newell had 1,473 votes, and was elected, and he thereupon received a certificate of election.

Certain real estate of plaintiff in the city of St. Paul was sold, on May 20, 1876, under a judgment of the late court of common pleas of Ramsey county, for the amount of a reassessment against it for a local improvement, and a certificate of sale was issued to the purchaser.

<p>Appeal by plaintiff from an order of the district court for Steele county, Lord, J., presiding, overruling a demurrer to the complaint, the substance of which is stated in the opinion.</p> <p>The statutory foreclosure by advertisement is a substitute for a judicial sale under a decree, and is equivalent to a foreclosure *and sale under a decree in chancery. Jackson v. Henry, 10 John. 195; Wilson v. Troup, 2 Cow. 195, 230; Warner v. Blakeman, 36 Barb. 501; Bidwell v. Whitney, 4 Minn. 45 (76;) Culbertson v. Lennon, Id. 26 (51;) Banker v. Brent, Id. 408 (521;) Herman Chat. Mtges. § 211.</p> <p>The defendant did not elect to consider the instalment of interest due a separate mortgage, under Gen. St. c. 81, § 3, and foreclose it as such, but foreclosed it for the entire sum secured by the mortgage, whereby the entire mortgage was foreclosed. It is true that the notice of sale claimed only the unpaid residue of interest due, and it was impossible to claim more. But default in payment of part of the interest due entitled the defendant to foreclose the mortgage, not a part of it. The notice of sale was notice to plaintiff that the mortgage would be foreclosed for the entire amount mentioned in the note; for if the $50.84 mentioned in the notice was due at all, it was because the entire amount mentioned in the note was the basis of the foreclosure; and the premises being but a single tract, the statute (Gen. St. c. 81, § 4,) provides that all shall be sold; and the default, being for interest on the entire amount mentioned in the note, related to the entire mortgage, and not to a separate and independent mortgage ; and “the notice given by advertisement is intended for the party as well as the world.” Jackson v. Henry, 10 John. 195, per Kent, C. J.</p> <p>The act decisive in Watkins v. Hackett, 20 Minn. 106, was not done in this case. There the mortgagee availed himself of the privilege given by statute for his, and not for the mortgagof’s benefit, and foreclosed, for his two instalments only, selling the premises in separate parcels, for an amount sufficient to satisfy those instalments, and no more; while in this case the premises were one tract, which had to be, and which was, sold together, and the entire mortgage satisfied.</p> <p>The plaintiff had contracted to pay all that the mortgagee bid on the land. True, he had a right of defence to this contract as to the excessive interest. But a party may waive the defence of usury, and allow the claim to go into judgment, o? pay it; and when paid our statute gave no right to recover back. In this case the plaintiff, standing by, with full knowledge, and allowing the mortgage — not an instalment thereof —to be foreclosed, waived his right as clearly, in this case of foreclosure by advertisement, as he would have done by like inaction had the sale been under a decree. And such waiver, under the notice of foreclosure in this case, is a concession that the amount secured by the mortgage is the entire sum mentioned in the note. Bidwell v. Whitney, 4 Minn. 45 (76 ;) Culbertson v. Lennon, Id. 26 (51;) Banker v. Brent, Id. 408 521. Had he desired not to make such waiver, he had a full and complete remedy by using ordinary diligence, and enjoining the foreclosure. Jackson v. Henry, 10 John. 196.</p>