Volume 262 — Minnesota Reports

<bold>Courts — district court — appeal from probate decree</bold> <bold>overruling written objections of claimed pretermitted child</bold> <bold>— jurisdiction of district court</bold>. <block_quote> Upon appeal from a probate court's decree of distribution overruling written objections filed by appellant based on her claim that she was a pretermitted child by virtue of a contract for adoption, the district court has jurisdiction to hear and determine the issues raised by the appeal notwithstanding the claimant's failure to present evidence or otherwise take part in the probate court's proceedings.</block_quote>

<bold>Rescission — waiver of right to rescind</bold>. <block_quote> 1. This court upon review must consider the evidence in the light most favorable to the findings of the trial court. <italic>Held</italic>, the vendee in a contract to purchase a business who continued to exercise ownership of the business after he had learned of the vendor's inability to perform a provision of the contract may be held to have waived his right to rescind the contract.</block_quote> <bold>Specific performance — right of vendor to remedy —</bold> <bold>enforcibility of contract — certainty required</bold>. <block_quote> 2. The vendor in a contract for the sale of land has a right to specific performance of the contract. Mutuality requires that the vendor have the same right as has the vendee to compel performance. Before specific performance can be granted to either party, the contract must be certain and complete. However, it is not necessary that every possible question be answered in advance by the parties before a contract can be specifically enforced; it is only necessary that the intent of the parties as to fundamental terms be ascertainable with reasonable certainty. <italic>Held</italic>, the present contract is not so vague as to be fatal to plaintiffs' right to specific enforcement.</block_quote> <bold>Fraud — proof of fraud inducing purchase of business</bold>. <block_quote> 3. The trial court was justified in finding that no fraud was perpetrated upon a vendee purchasing a business where the evidence<page_number>Page 156</page_number> showed that the vendee had spent several months inspecting the business before entering into the purchase agreement.</block_quote>

<bold>Criminal law — trial — denial of criminal propensity —</bold> <bold>propriety of cross-examination as to unrelated crimes</bold>. <block_quote> Defendant in a prosecution for assault does not put his character in issue by a sweeping denial, on direct examination, of his propensity to fight. Under such circumstances it is improper and prejudicial for the prosecuting attorney to cross-examine defendant with respect to other unrelated assaults even though defendant denies them.</block_quote>

<bold>Divorce — decree against nonresident spouse — when entitled</bold> <bold>to full faith and credit</bold>. <block_quote> 1. A divorce decree against a nonresident spouse granted by the courts of a state in which the plaintiff has a bona fide domicile is entitled to full faith and credit where the form and nature of constructive service meet the requirements of due process.</block_quote> <bold>Husband and wife — definitions — spouse — surviving spouse</bold>. <block_quote> 2. A spouse is one's husband or wife. A surviving spouse is one of a married pair who outlives the other.</block_quote> <bold>Same — same — same — same — former spouse</bold>. <block_quote> 3. A divorced husband or wife is a former spouse and cannot be a surviving spouse.</block_quote> <bold>Trusts — expectancy of beneficiary's spouse — effect of</bold> <bold>divorce from beneficiary</bold>. <block_quote> 4. Where an inter vivos trust provides an expectancy to a surviving spouse, a divorce severing the marital relationship ends such expectancy and the former spouse no longer has any interest in such trust.</block_quote>

<bold>Criminal law — trial — evidence of defendant's character —</bold> <bold>admissibility</bold>. <block_quote> 1. The character of a defendant in a criminal case cannot be attacked until he or she puts it in issue by offering evidence of his or her good character.</block_quote> <bold>Same — criminal statute — certainty required — prohibiting</bold> <bold>form of misconduct</bold>. <block_quote> 2. A criminal statute must be definite enough to give notice of the conduct required to anyone who desires to avoid its penalties; it must be sufficiently definite to guide the judge in its application and the attorney in defending a person charged with its violation. Absolute certainty is not required; it is not necessary that there be mathematical precision in the statement of the conduct demanded or disapproved.</block_quote> <block_quote> It is the duty of courts to sustain legislative enactments as reasonably certain when possible, and they will resort to all acceptable rules of construction to discover a competent and efficient expression of the legislative will.</block_quote> <block_quote> In construing the constitutionality of a legislative act, the intent of the legislature must be ascertained from the language of the entire act read in the light of the object evidently in view. Every presumption is in favor of the constitutionality of the act, and the court should not declare it unconstitutional unless it is satisfied, after careful consideration, that it conflicts with some provision of the state or Federal constitutions. If the act is reasonably susceptible of two different constructions, one of which will render it constitutional and the other unconstitutional, the former construction must be adopted.</block_quote> <block_quote> When a legislative act has as its purpose the prohibition of an undesirable form of conduct rather than a specific act, the definition by its very nature must be broad. Therefore, if it can be determined with reasonable certainty what conduct is disapproved, the statute is not unconstitutional on that ground.</block_quote>

<bold>Towns — payment of improperly itemized claims — treasurers'</bold> <bold>liability — amendment of claims during suit</bold>. <block_quote> 1. Town treasurers have no authority to pay claims on order of town officials under Minn. St. <cross_reference>367.16</cross_reference>(1) if such claims on their face are not properly itemized as required by §§ <cross_reference>366.20</cross_reference> and <cross_reference>471.38</cross_reference>, and treasurers are liable to the town for any amounts so disbursed by them.</block_quote> <block_quote> Under the circumstances it was an abuse of discretion to deny the motion of defendants for leave to amend the claims in order to permit compliance with the statutes requiring that they be itemized.</block_quote> <bold>Actions — action on behalf of town — standing of plaintiff</bold>. <block_quote> 2. It was not error for the court on its own motion to reopen the trial in order to establish plaintiff's status as a taxpayer. The evidence supports a finding that plaintiff had sufficient standing to prosecute the action on behalf of the town.</block_quote><page_number>Page 462</page_number> <bold>Towns — payment of improperly itemized claims — treasurers'</bold> <bold>liability</bold>. <block_quote> 3. Reliance on advice of counsel in paying claims which are improperly itemized is not a defense available to town officials when the applicable law is clear, unambiguous, and free from doubt.</block_quote> <bold>Laches — action on behalf of town — claim not barred</bold>. <block_quote> 4. The record discloses no error in the trial court's failure to find plaintiff's claim barred by laches.</block_quote> <bold>Towns — purchasing of equipment — failure to accept low bids</bold> <bold>— discretion of town officials</bold>. <block_quote> 5. Failure of town officials to accept low bids in purchasing town equipment <italic>held</italic> a valid exercise of discretion and not in violation of § <cross_reference>365.37</cross_reference> under the unusual circumstances which existed at the time of acquisition.</block_quote>

<bold>Workmen's compensation — civil defense volunteer from one</bold> <bold>municipality injured in training exercise in another —</bold> <bold>municipality responsible for compensation</bold>. <block_quote> The sheriff of Ramsey County in his capacity as county director of civil defense, pursuant to authority contained in Minn. St. <cross_reference>12.25</cross_reference>, subd. 2, requested that members of civil defense groups throughout the county take part in the policing of a parade in the city of St. Paul as a training exercise. During the parade a member of the Arden Hills Civil Defense unit was injured. <italic>Held</italic>, under the facts stipulated and established, that the injured employee was entitled to workmen's compensation from the municipality to which he was attached pursuant to § <cross_reference>176.011</cross_reference>, subd. 9, and that the fact that the accident occurred in a different municipal area did not alter the character of his employment or effect a change in his status as an employee of the village of Arden Hills.</block_quote>

<bold>Apportionment — constitutional requirements — failure to</bold> <bold>redistrict — validity of subsequent legislation</bold>. <block_quote> 1. Under Minn. Const. art. <cross_reference>4</cross_reference>, §§ <cross_reference>2</cross_reference>, <cross_reference>23</cross_reference>, <cross_reference>24</cross_reference>, which require periodic redistricting by state legislature to meet population changes as basis for equal apportionment for legislative representation, <italic>held</italic> where legislature has exercised its judgment and discretion in enacting apportionment law, subsequent population changes resulting in inequality of representation between legislative districts will not render enactments of subsequent legislatures invalid because of the failure to redistrict pursuant to constitutional requirements.</block_quote> <block_quote> Minn. St. <cross_reference>168.49</cross_reference>, enacted subsequent to apportionment of legislative districts by legislature in 1913, <italic>held</italic> valid even though state legislative districts have not been reapportioned since 1913.</block_quote> <bold>Same — same — same — same — effect of United States Supreme</bold> <bold>Court decision</bold>. <block_quote> 2. Baker v. Carr, <cross_reference>369 U.S. 186</cross_reference>, <cross_reference>82 S.Ct. 691</cross_reference>, <cross_reference>7 L. ed. 2d 663</cross_reference>, would not by its holding limit or restrict determination made herewith.</block_quote><page_number>Page 553</page_number> <bold>Criminal law — increased penalty based on prior convictions —</bold> <bold>validity</bold>. <block_quote> 3. Increased penalty imposed upon relator pursuant to Minn. St. 610.29, upon conviction of felony here and upon his plea of guilty to three prior felony convictions, held valid where record fails to disclose violation of any of relator's constitutional rights.</block_quote>

<bold>Coram nobis — purpose of writ</bold>. <block_quote> 1. Coram nobis is an extraordinary common-law writ used for the purpose of correcting a judgment in the court in which it was rendered for errors of fact not appearing of record.</block_quote> <bold>Criminal law — double jeopardy — when question of law</bold>. <block_quote> 2. Where the record discloses on its face whether the offense charged in the second action is identical with the offense for which the defendant was acquitted or convicted in a prior action, the issue of former jeopardy is one of law for the court and not one of fact for the jury. There is nothing in the record to sustain defendant's claim that he has twice been placed in jeopardy by this court through remanding the cause for further sentencing.</block_quote> <bold>Coram nobis — purpose of writ</bold>. <block_quote> 3. Where defendant's assignments of error are frivolous and without merit, order of trial court denying writ of error coram nobis should be affirmed.</block_quote>