Volume 27 — Minnesota Reports

<p>Eminent Domain — Appeal.—Sp. Laws 1878, a. 150, being “An. act to authorize tlie location, of an avenue around Lake Plialen,” gives an appeal from tlie district to the supreme court.</p> <p>Evidence held sufficient to justify the verdict.</p>

The chairman of the board of supervisors of the town of' Brownsville, in Houston county, made complaint against defendant before a justice of the peace of the county, for-obstructing a highway in that town. A warrant issued, and the defendant was arrested and brought before the justice. He pleaded not guilty, waived a jury, was tried and convicted, and fined $10, with costs.

Action of ejectment, tried in tbe district court for Ramsey county before Brill, J., a jury being waived. Judgment was ordered for the defendant, a new trial was denied, and plaintiff appealed.

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

Appeal by defendant from a judgment of tbe district court-for Kandiyohi county, Brown, J., presiding, affirming a judgment of a justice of the peace from which the defendant, had appealed on questions of law alone.

Plaintiff brought this action in a justice’s court, to recover-possession of a colt, stated in the affidavit and complaint .to be of the value of $70, and for $30 damages for its detention, and for costs. The property was taken from defendant under the writ, and delivered to the plaintiff, who -afterwards had judgment that he retain possession of the property, and-for $20 damages, and his costs taxed at $15,91.

<p>Appeal by defendant from an order of the district court for Eamsey county, Wilkin, J., presiding, refusing a new trial.</p>

Appeal-by defendant from an order of tbe district court for Bice county, Mitchell, J., presiding, (acting for the judge of the 5th district,) refusing a new trial. The case is stated in the opinion..

This action was brought in the district court for Waseca county, and was tried before Lord, J., and a jury, who found for the plaintiff. A motion for a new trial was denied by Buckkam, J., and the defendant appealed. The exceptions taken at the trial are stated in the opinion. The deed from Clapp to defendant therein mentioned bears date November 15. 1878, and was duly signed, sealed, attested, acknowledged and recorded.

Quo warranto, the respondents being the directors of the “Moorhead'Independent School-District,” composed of townships 137,138, 139,140 and 141, of range 48, and fractional townships 137, 138, 139, 140 and 141, of range 49, all in Clay county; and the purpose of this proceeding being to try the validity of the proceedings by which these ten townships were formed into a single independent school-district, and organized as such. The case is stated in the opinion.

Plaintiffs brought this action in the district court for Mower county, against the defendant as maker of the following instrument, not set forth in the complaint, but described therein as a promissory note, and alleged to have been “duly transferred to plaintiffs, who are now the owners and holders thereof:” “$400. Lyle, Minn., April 1, 1878. “On or before the 1st day of April, 1879, for value received, I promise to pay to Th.

Appeal by defendant Condit from a judgment of the municipal court of St. Paul, in an action brought against him and one Radcliff.

Appeal by defendant from a judgment of the district court for Bock and Pipestone counties, and from an order refusing a new trial, the action having been tried before Dickinson, J., without a jury.

<p>The finding of the trial court in this case is supported by the evidence.</p>

Appeal by defendant from a judgment of the district court for Freeborn county, and from an order refusing a new trial, the action having been tried before Page, J., and a jury. .

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

Action against the defendants W. F. Yon Deyn, Thomas L. Wann and John Wann, as partners in the firm of Yon Deyn & Co., for goods sold and delivered to the firm. John Wann alone defended, denying that he was a member of the firm. At the trial in the district court for Ramsey county, before Brill, J., the.plaintiffs dismissed the action as against Thomas L. Wann; and on motion of John Wann, the court dismissed the action as to him.

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

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

Appeal by defendant Henry Wise from an order of the district court for Wabasha county, Mitchell, J., presiding, refusing a new trial after verdict against him of $1,800. Appellant was sued jointly with Elizabeth Wise and Gustave Wise, and the action was dismissed at the trial as to the last named defendants.

Plaintiffs, as administrators, with the will annexed, of Levi Butler, brought this action in the district court for Bamsey county, against Slater as principal and the other defendants as sureties on Slater’s bond as administrator of one Heylin, to recover the amount of a claim of $365.15, which had been duly presented by Butler to the commissioners on Heylin’s estate, and allowed by them on December 30, 1868, when they filed their report.

The defendant having been indicted in the district court for Faribault county, under Gen. St. 1878, c. 16, for selling-spirituous and intoxicating liquor without license, demurred to the indictment. The demurrer was overruled by Die kin-son, J., who, at defendant’s request, certified the case to this court.

Certain lots belonging to the defendants were -assessed for the construction of a sewer on Summit avenue, in St. Paul. The assessments not being paid, the city applied for judgi ment against the lots. The application was opposed, on the ground that the contract for doing the work did not conform to the requirements of the charter.

Appeal by defendants from an order of tbe district court for Waseca county, Cox, J., presiding, (acting for the judge of tbe fifth district,) refusing a new trial. A former appeal is reported, 25 Minn. 163.

Action for the value of services, the defence being that plantiff agreed to work for his board. Trial in the district court for St. Louis county, before Stearns, L, resulting in a verdict for plaintiff for $100. A new trial was refused, and the defendant appealed.

Appeal by plaintiff from an order of the1 municipal court of Minneapolis, denying a motion for judgment against the Minneapolis & St. Louis Railway Co., garnishee of C. B. Russell, and ordering the discharge of the garnishee, on the ground that, prior to the service of the garnishee summons, the debt garnished had been assigned to Pomeroy, the claimant.

Appeal by defendant from an order of the district court for Olmsted county, refusing a new trial after trial by Mitchell, J., a jury being waived.

<p>State Road — Failure of Commissioners to take Requisite Oath — Mandamus.— Sp. Laws 1879, c. 248, appointed commissioners to survey, locate and establish a state road in the counties of Wright, McLeod and Sibley. • They were required, within a specified time, to meet and make oath11 that they will faithfully and impartially discharge their duties as provided' by this act, and fairly and impartially assess the damage, if any, they find to be sustained by owners of land through which said road may run,, and then proceed to discharge their duties.” They were directed,, among other things, to apportion the expenses among the several counties, and file a statement thereof in each county, and the county commissioners of each county were directed to issue the county orders for the expenses apportioned to it, and for the damages assessed to land lying within the county. The oath the commissioners took was that “we will faithfully proceed to locate and establish said state road according to the provisions of said act, and according to the best of our' abilities.” Relcl, that the commissioners had no authority to act until they took the oath; that the oath taken was not such as the act required, and the action of the commissioners was void; that mandamus will not lie to compel payment of the expenses and compensation of the commissioners until they are allowed by the county commissioners, or fixed by judgment.</p>

Appeal by plaintiff from an order of the district court for Olmsted county refusing a new trial, the action having been tried before Mitchell, J., without a jury.

The plaintiff, an insane person, residing in Massachusetts, brought this action, by her duly appointed guardian, in the district court' for Bice county, to redeem a tract of land in that county, which the defendant had purchased at tax sales, and of which the plaintiff claimed to own, in fee simple, an undivided one-seventh.

Plaintiff brought this action in the district court for Ramsey county, against the defendants Norman W. Kittson, James J. Hill, and the St. Paul, Minneapolis & Manitoba Railway Company, to obtain a transfer to himself of one-fifth of the capital stock of the defendant railway company, and one-fifth of all-other securities and property acquired by defendants Kittson and Hill as a result of the transactions stated in the complaint.

Appeal by plaintiff from an order of the district court for Brown county, Cox, J., presiding, refusing a new trial. The action was begun in a justice’s court.

Appeal by plaintiff from an order of the .district court for Chisago county, Crosby, J., presiding, opening certain tax judgments, and giving defendant leave to answer.

<p>Appeal by plaintiff from an order of the district court for Eamsey county, Wilkin, J., presiding, refusing a new trial-</p>

Appeal by defendants from a judgment of tbe district court for Hennepin county, where the action was tried before Vanderburgh, J., without a jury.

Complaint was made against the defendant, before a justice of the peace, for obstructing a public highway, known as the St. Paul and Hastings river road. The defendant, having been arrested and brought before the justice, pleaded not guilty, waived a jury trial, and was tried, convicted and sentenced.

Plaintiff brought this action in tbe district court for Watonwan county, to restrain tbe defendant railroad company from applying for or receiving from the governor of the state any deed or conveyance of certain lands described in the complaint, the plaintiff also demanding to be adjudged tbe owner of. the lands. - The plaintiff, as successor to the rights of the Transit Railroad Company, claims the lands under the act of congress, approved March 3, 1857, entitled “An act…

Plaintiff brought this action in the district court for Nobles county, to recover possession of personal property mortgaged by him to defendant, and taken by the latter from plaintiff’s possession, under a power given by the mortgage..

<p>Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial.</p>

Appeal by plaintiff from a judgment of the district court for Winona county, where the action was tried before Mitchell, J., and a jury.

Appeal by plaintiff from an order of the district court for Ramsey county, refusing a new trial, after a trial before Brill, J., without a jury.

James W. Simpson, of the city of St. Paul, died on May 31, 1870, seized of certain real estate in block 16, and certain other real estate on the levee, in that city. By his last will he named the plaintiff as his executor, and made the following dispositions affecting his real property: “Fourth.

The defendant was tried, and convicted in the district •court for Martin county, Dickinson, J., presiding, on an indictment charging that “the said J. N. Hyde, on the 16th ■day of December A. D. 1878, at the village of Fairmont, Martin county, Minnesota, did sell and dispose of unto Jay B. Colton, then and there a minor person, intoxicating liquors in a certain quantity, the exact quantity being to this grand jury unknown, contrary to the statute,” etc. A motion for a new…

This action was commenced before a justice of the peace, under Gen. St. c. 84, § 11, to dispossess defendant of certain land, which had been sold on execution against him to plaintiff, and the time for redemption from the sale having expired. The title to real estate becoming involved, the action was certified to the district court for McLeod county.

<p>Master and Servant — Negligence of Pellow-Servant. — A master is not liable to one servant for injuries caused by tbe negligence of a co-servant in the same common employment. That tlie negligent servant is superior in authority, or an overseer of the one injured, does not take the case out of this rule.</p>

Action to recover the value of certain horses of plaintiff, which were struck and killed by a freight train on a trestle-work on the river division of the plaintiff’s railway, a few miles south of St. Paul. The train was going north. It was claimed by the plaintiff that the horses went upon the track at a point 1,920 feet south of the trestle, where there was a private crossing and gate.

Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial.

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

One Hunter, as assignee of the defendant under a general assignment for the benefit of his creditors, moved in the district court for Clay county, to set aside a judgment by confession in that court. The motion was granted by Stearns, J., and the plaintiff appealed.

Appeal by defendant from an order of the district court foi Bamsey county, Wilkin, J., presiding, refusing a new trial after a verdict of $975 for plaintiff. At the trial the defendant offered to prove a statement of plaintiff’s husband, (who. was travelling with her,) as to the cause of the accident to plaintiff, the statement having been made in answer to a question put to him by the witness — a hotel-keeper.

Plaintiff brought this action in the district court for Nobles county, praying that a sheriff’s certificate of sale, executed and delivered to defendant Lytle, of certain real estate in that county, and also a deed of the same real estate from Lytle to the other defendant, Thompson, be adjudged void and cancelled.

Appeal by the intervenor, Louisa Stanchfield, from an order of the district court for Hennepin county, Young, J., presiding, sustaining the plaintiffs’ demurrer to her complaint.

The plaintiffs, resident tax-payers and freeholders in the village of Caledonia, in Houston county, brought this action in the district court for that county to restrain the defendant Buell from delivering to the defendant railway company, and the railway company from receiving from him, certain bonds of the village, amounting to $20,000, voted in aid of the railway, and executed by the town officers, and by them placed in escrow in the hands of defendant Buell.

<p>Conversion — Answer—Denial—Evidence.—The complaint alleges that in the-year 1872 the defendants “ wrongfully took, carried away, and converted to their own use, a large number of railroad cross-ties, to wit, 26,000 and more ties, the property of plaintiff, and which were lying and being near the line of the Northern Pacific railroad,” etc. The answer denied “ that in 1872, or at any other time, said firm (the defendants) wrongfully or otherwise took, or carried away, or converted to their own use, a large number of cross-ties, to wit, 26,000, or any other number, the property of said plaintiff, as alleged in the complaint or otherwise.” Held, this is to be taken as a denial of each of the facts alleged, which is thus mentioned in the answer, including the plaintiff’s ownership. Under this denial it was competent for defendants to prove that the ties referred to were got out and delivered on the railroad by plaintiff for them.</p> <p>'Same — Contract to furnish Ties — Confusion of Goods. — Plaintiff and defendants had five contracts for the delivery, by the former to the latter, of different quantities of ties, the aggregate number to be delivered, under all the contracts, being 224,240 ties — some to be delivered on the line of the Northern Pacific railroad, some on the line of the St. Paul & Pacific, and others on the line of either road. The plaintiff delivered on both lines considerably more than all the contracts called for, and as they were from time to time delivered and inspected, and included in the estimates by the railroad companies to defendants, they credited plaintiff with the ties delivered, without reference to any particular contract, except that, the price under one contract being 30 cents per tie, and under all the others 28 cents per tie, the number at each price was specified in the accounts. From time to time defendants made payments to plaintiff, generally on account of ties delivered, without reference to any particular contract. As to the places of delivery the contracts do not appear to have been strictly regarded. There were delivered on the line of the St. Paul & Pacific road about 25,000 less than the contracts required to be delivered there, and on the line of the other road a great many more than the contracts required or permitted to be delivered there. After the delivery of the ties the parties had a settlement, upon which it was found that plaintiff had delivered on both lines 20,359 ties more than all the contracts called for. The defendant then paid him the balance unpaid for 224,210 ties, and gave him an order on their agent, as follows: “April 22, 1872. Mr. G. N. Pierson — Dear Sir : There were inspected and accepted 20,359 ties in excess o’f Mr. Chandler’s contracts. You will, therefore, deliver that number to him, and take such means as may be necessary to reinvest said ties in him. Yours, etc., De Graff & Co.” It does not appear that the 20,359 ties last delivered, or any of them, could be distinguished from the others. Soon after, defendants carried away, according to plaintiff’s evidence, all, and, according to their evidence, part, of the ties on the line of the Northern Pacific road, but it does not appear that they carried away any of those on the other line, of which there were about 50,000. Held, that it was proper for defendants, upon showing that they left tics on the Northern Pacific line, to show how many, and what became of' them — as that they were burned; also that the railroad company had paid defendants’ estimates, including all the ties delivered, is immaterial ; also that after the settlement, and until the 20,359 ties called for by the order given to plaintiff should be separated from the others, he-had not the title to any specific ties; also that the defendants hada right to take out of all those delivered 224,240 as their portion of the-ties, if they left for plaintiff enough to meet the order given him ; also-that they were not bound to leave for him that number of ties of those on the line of the Northern Pacific road; and it not appearing that they carried away any of those on the line of the St. Paul & Pacific, (of which there were many more than enough to satisfy the order given to the plaintiff,) it does not appear that they have done what they had not a right to do.</p>

<p>Life Insurance — By-law as to Proofs of Death, — This is an action upon a life-insurance certificate, issued by the defendant society. One of defendant’s by-laws provided that “ proof of death shall be made on blanks furnished by the society, with the seal of the lodge to which the member belongs, or of the nearest lodge to the deceased.” Held, that upon defendant’s refusal (on proper application) to furnish the blanks mentioned, proper proof of death might be made without such blanks, and in such case the proofs need not bear the lodge seal spoken of. Evidence held sufBcient to sustain the findings of the jury.</p>

Plaintiff brought this action in the district court for Meeker county to compel the defendant company to convey to him a-quarter-section of land described in the complaint, on his paying therefor the sum of $100. The action was tried by Brown, J., who ordered judgment for defendants. A new trial was. refused, and the plaintiff appealed.

Tbe plaintiff, a resident and tax-payer in the town of Plain-view, in Wabasha county, brought this action in the district court for that county to restrain the town officers from issuing the bonds of the town to the Plainview Railroad Company,' to aid in the construction of its railway. Tbe action was tried by Mitchell, J., and judgment was ordered and entered for the defendants, and the plaintiff appealed.

Action to determine defendant’s claim of a lien on certain real estate in Ereeborn county.

Proceeding before a justice of tbe peace in the town of Rose, in Ramsey county, under Gen. St. 1878, c. 8é, to dispossess the defendant of certain premises in the city of St. Paul, in that county, into which the defendant had entered under a lease from plaintiff, and which he refused to surrender on the expiration of the lease.

<p>Appeal by plaintiff from a judgment of the municipal court of St. Paul.</p>

Appeal by defendant from an order of the district court for Blue Earth county, Dickinson, J., presiding, refusing a new trial.

<p>Riparian Owner — Right to set hack the Water upon an upper Proprietor. — A riparian owner has no right to maintain a dam at such height as to raise and set the water back upon an upper proprietor at the ordinary stage of water in the stream — construing the term ordinary stage to include its stage in such rises, or high water, as are usual, ordinary, and reasonably to be anticipated, hut not to include its stage in such extraordinary freshets as cannot reasonably be anticipated at particular periods of the year.</p> <p>Same — Judgment directing cutting down of Dam. — In an action by an upper proprietor on a stream to abate the dam of a lower proprietor, claimed to be so high as to set the water back on the upper proprietor, the court may direct in its judgment that the dam be cut down a specified amount, being the amount required to relieve plaintiff’s land, from its height at the time of the trial, though the judgment does not specify that height. Where, in such action, the judgment directs the dam to be cut down, it may direct the sheriff to do it.</p> <p>Charge — Expression of Opinion on Facts. — It is not error for a trial court, in its charge to the jury, to express its opinion on a question of fact. If a party fears undue influence on the jury of the court’s opinion, lie may request it to charge that the jury is exclusive judge of the fact.</p>

Appeal by plaintiff from an order of the district court for Scott county. The defendant having built a bridge across the Minnesota-river, and laid out a highway from the terminus of the bridge* across the northwest quarter and lot 2 of section 1, town 115, raDge 23, within the corporate limits of defendant, commissioners were duly appointed to appraise the damages for land taken or injured by the proposed road.

Schuster appealed to the district court for Steele county from an order of the supervisors of the town of Lemond in that county, vacating a certain highway.

Plaintiff as assignee of the firm of Fairbanks & Yandervelde, (and duly appointed successor of John J. Penner, the original assignee,) brought this action in the district court for Anoka county to recover the value of certain personal property taken and sold by the defendant, as sheriff of that county, by virtue of an execution against the firm. At the trial, before Young, J., the plaintiff had a verdict; a new trial was refused, and the defendant appealed.

- Plaintiff. brought this action in 1876 in the district court ■for Scott county, alleging that he was the owner in fee and in possession of a certain described quarter-section of land in that county, that the defendant claimed some interest therein adverse to the plaintiff, and that such claim was unfounded, And praying judgment that defendant’s claim be determined to be unfounded, and that the defendant be barred of and enjoined from setting up any claim thereto, and that…

Action on a written contract whereby the plaintiff agreed with.the defendant to build a party-wall along the line between them in the city of Red Wing, one half of the thickness of the wall to be on the premises of each; the basement or cellar part of the wall to be of stone and of prescribed dimensions, and the part above the cellar to be of brick, 28 feet high, 70 feet long, and one foot in thickness; and the defendant agreed to pay the plaintiff $264 “for doing said work,…

Ejectment for certain property in Winona county. Both parties claimed-title through Andrew Morey, deceased, who died on June 18, 1876, seized of the premises described in the complaint as his homestead. The marriage of plaintiff with Andrew Morey, the death of Andrew Morey seized of the-premises as a homestead, and the possession of defendant adverse to the plaintiff, were admitted in the pleadings.

In an action brought by the state against the Pine City Lumber Company, a writ of attachment was issued and delivered to one J. C. Becht, who was then sheriff of Bamsey county, who, by virtue thereof, on January 17, 1877, levied, upon and took into his possession a quantity of lumber and other personal property belonging to the company.

Ejectment for a lot of ground in the village of Alden in Freeborn county, the complaint alleging generally title in fee and right of possession in plaintiff, and a wrongful detention by defendant.

• Appeal by the proponents of the will (the executors named therein) from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.-

Appeal by Stinson from an order of the district court for Ramsey county, Wilkin, J., presiding, denying his motion for a new trial after a verdict awarding him $8,312.25 — the-same amount awarded him by the commissioners.

Appeal by defendant from an order of the municipal court of Stillwater, vacating and setting aside the decision and order for judgment and the judgment in his favor thereon, mentioned in the opinion.

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

Appeal by plaintiff from a judgment of the district court for Ramsey county, Brill, J., presiding, affirming a judgment of the probate court.

Appeal by plaintiff from a judgment of the district court for Eedwood county, Cox, J., presiding. The defendant did not answer the complaint, nor make any appearance in the district court or in this court.

Appeal by defendant from an order of the district court-for Goodhue county, Crosby, J., presiding, refusing a new trial..

Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. The action was brought to recover damages for the killing of two mares of plaintiff by a train on defendant’s railway, and the only question submitted by the court to the jury was whether the defendant’s servants in charge of the train, after they discovered the peril of the mares, used reasonable care to avoid injuring them.

Appeal by plaintiff from an order of the district court for Nedwood county, Cox, J., presiding, overruling a demurrer to the answer.

Appeal by defendant .from an order of the municipal court of Stillwater, refusing a new trial. The action was for damages for converting certain wheat, the property of plaintiff.

Appeal by defendant from ap order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The action was for damages for an aggravated assault and battery.

The defendant was tried and convicted in the district court for Scott county, Macdonald, J., presiding, on the following indictment: “Albert B. Buhnke is accused by the grand jury of the county of Scott and state of Minnesota, by this indictment, of the crime of having fraudulently sold and transferred mortgaged personal property with intent to defraud, committed as follows, to wit: That on the 31st day of October, A. D. 1879, the above-named Albert B. Buhnke did, in the…

Appeal by plaintiffs from a judgment of the district.court for Bice county, Buckham, J., presiding, and from an order refusing a new trial.

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

Defendant was tried and convicted in the district court for Hennepin county, before Young, J., on an indictment charging him with selling liquor without a license, at the town of Minneapolis in that county. A motion for a new trial was denied, sentence was passed, and the defendant appealed.

Plaintiffs, as creditors of T. G. Fladeland, brought this-action in the district court for Fillmore county, against T. G. Fladeland, John G. Fladeland and John A. Mathews, to set aside, as fraudulent as against the plaintiffs, a conveyance from T. G. to John G. Fladeland, to have a certain mortgage of the same land by John G. Fladeland to Mathews declared to have the force and effect of a mortgage from T. G. Fladeland to Mathews, and not otherwise; to have Mathews,, as…

■ ' Appeal by defendant from an order of the municipal court of Stillwater, overruling his demurrer to the complaint, which alleges that on or about July 3,1878, defendant agreed to sell and convey to plaintiff eighty acres of land in Washington county, and to execute and deliver a warranty deed thereof to jilaintiff, when requested; that thereupon and relying on vsuch agreement, the plaintiff paid to defendant the sum of, $50, as part of the purchase-money of such land; but…

Appeal by plaintiff from a judgment of the district court for Bice county, Buckkam, J., presiding. The action was brought under Gen. St. 1878, c. 69, § 5, to debar defendant from any right of dower in the lands of plaintiff, (her husband,) and to obtain for plaintiff full control over such lands, and power to convey the same without the signature of defendant, etc.

Appeal by defendant from an order of the district court for Stevens, Big Stone and Traverse counties, Brown, J., presiding, dismissing an appeal.

This action was originally brought in the district court forWinona county, to recover, at the contract price, for lumber-delivered by the plaintiff to the defendant, under the contract hereinafter set forth.

Appeal by defendant Stewart from an order of the district court for Hennepin county, Vanderburgh, J., presiding, overruling his separate demurrer to the complaint.

Plaintiff brought this action in the district court for Wabasha county, to restrain the defendant Stahman from foreclosing by advertisement a mortgage upon several tracts of land belonging to defendant Wempner, on one of which the plaintiff held a second mortgage, the plaintiff alleging that sundry payments had been made by Wempner to Stahman, on the notes secured by the first mortgage, which payments had been indorsed on the notes, and that some of those notes had been paid…

By an order in supplementary proceedings in an action by one Umland against William W. Holcombe, the defendant in this action, John A. Johnson, was made receiver of the rents of part of a building belonging to Holcombe. On appeal to this court, that order was reversed on the ground that the property was Holcombe’s homestead. See Umland v. Holcombe, 26 Minn. 286.

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

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

Appeal by defendant Balph J. Wheeler from an order of the district court for Washington county, Crosby, J., presiding, discharging an order to show cause, the nature of which is stated in the opinion.

Appeal by defendant from a judgment of the district court for Scott county, Macdonald, J., presiding, refusing a new trial.

<p>Railroad Co. — Duty to adjacent Lau-1-Owner, where road is not fenced. — A railroad compare which has failed to fence its road, as required to do by statute, must run its trains upon the basis that cattle rightfully upon adjoining lands may stray upon the track, on account of the absence of a fence. The adjoining land-owner is not to be deprived of the use of his land by the failure of the company to fence, and in using the same he has a right to expect this course of conduct on the part of the company.</p> <p>Same — Contributory Negligence of Land-Owner. — Whether, in exercising his right to use his land, the land-owner has been guilty of negligence, contributing to an injury to his cattle, is ordinarily a question of fact for a jury, to be determined with reference to all the circumstances of the case, and the duty of the company as above indicated. Merely suffering his cattle to graze upon his land, or to go to a spring thereon, in broad daylight, is not such negligence on the part of the land-owner, in law, notwithstanding the company’s road is unfenced, and notwithstanding there is another railroad within a few hundred feet.</p>

Appeal by defendant from a judgment of the municipal court of Minneapolis. The action was replevin for one set of double harness, the defence was title and right of possession in defendant, and the trial was by the court, whose findings were, in substance, as follows.

<p>City Ordinance regulating Hacks at Railroad Stations. — The charter of tho city of St. Paul authorizes the common council, by ordinances, “ to regulate, and at a reasonable rate to license, hacks, carts, omnibuses, trucks, wagons, and other vehicles engaged in hauling or carrying for hire, and the charges of the drivers of such vehicles.” Held, that the following ordinances are authorized by this pi o vision of the charter, viz.: Ordinance 107, which provides “ that hackmen, * * * when at or -about any railroad depot or station, * * * shall obey the commands and directions of the police officer or officers who may be stationed or ■doing duty at or about such depot or station * * * for the preservation of order and enforcement of ordinances;” and ordinance No. 133, which provides that “ no owner or driver of any * * * hack * # # shall make any stand or stopping-place, with or without his vehicle, while waiting for employment at any place on any street or public ground adjacent to any railroad or railway depot, * * * except in the place or places designated by the police officer on duty, from time to time, at such railway depot or station.” Held, that these ■ordinances are regulations of hacks, and not unreasonable or oppressive ; also, that ordinance No. 133 authorizes the assigning of a particular place to each hackman; also, that the fact that the ground about the depots or stations where these ordinances are to bo enforced is not the property of the city, or public property of any kind, strictly speaking, is'not important. The fact that it is commonly used by hackmen for the purposes mentioned in the ordinances is sufficient.</p>

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

Replevin for two mares, taken from plaintiff’s possession by defendant as mortgagee in a chattel mortgage. A jury was waived, and the cause set for trial by Farmer, J., on June 4, 1880, the fourth day of the term of the district court for Fillmore county. On that day the cause was not reached, (the court being engaged in trying another action,) but was brought on for trial on the following day.

Plaintiff, surviving partner in the firm of Brandt & Co., composed of plaintiff and Charles Brandt, brought this action in the district court for Bice county against the defendant Mullin as administrator, and the other defendants, who are the widow and children, of Charles Brandt, alleging that during the lifetime of Charles Brandt, the business of the firm (which was the manufacture and sale of lager beer at Faribault, in Bice county) was managed by Brandt as the active…

Plaintiffs brought this action in the district court for Ramsey county to foreclose a real estate mortgage made by the defendant William F. Davidson, the defendant Allis being made a party as a subsequent purchaser from Davidson of an undivided moiety of the mortgaged property. The mortgage wis made June 23, 1868, to secure an indebtedness, bearing interest at seven per cent., and was assigned to plaintiffs on 'September 13, 1873.

<p>Appeal by plaintiffs from a judgment of the district court, for Freeborn county.</p>

Replevin for 400 bushels of wheat, taken by defendants from plaintiff’s possession on September 10, 1879. The wheat in question was raised in the year 1879, by one Wiliiam Kelly, on certain land in Wabasha county described in the complaint. The defendants claimed title by virtue of a chattel mortgage made to them by William Kelly on April 18, 1879, of all the crop then growing on the land in question.

Action to recover the price of goods sold and delivered by plaintiffs to defendant.

<p>Appeal by defendant from an order of the district court for "Wilkin county, Brown, J., presiding, refusing a new trial.</p>

Action to determine defendant’s adverse claim to a certain vacant lot in the city of Minneapolis.

Appeal by defendants from a judgment of the district court for Freeborn county.

Thomas J. Barney, of the one part, and M. T. G. Flower and H. P. Winder of the other, entered into an agreement to submit to three arbitrators therein named all matters of dispute between them growing out of a lease of certain real estate from the former to the latter, the submission providing that, the award being made and reported to the district court for Bamsey county, final judgment should be entered thereon in that court.

Plaintiff, being the owner of a certain lot in the city of St. Paul, brought this action in the district court for Eamsey county to restrain the defendant from selling the same under a certain judgment, and to have the said judgment declared to be no lien upon said lot.

Appeal by plaintiffs from a judgment of the district court for Eamsey county in an action to quiet title, tried before Simons, J., without a jury, adjudging that the plaintiffs had not any estate, title or interest in or to the real estate in controversy, but that the defendant was owner thereof in fee-simple.

This action was originally brought in August, 1874, against the Minnesota Railway Construction Company and Horace Thompson, to recover damages for the conversion, by the defendants, of certain negotiable bonds, with interest coupons attached, to the amount in the aggregate of $100,000, which had been executed by the plaintiff and deposited with the defendant Thompson, cashier of the First National Bank of St. Paul, to be held by him in escrow until the performance by the…

Appeal by defendants from an order of the district court for Brown county, Macdonald, J., presiding, (acting for the judge of the 9th district,) refusing a new trial.

On May 1, 1878, Jacob Olson made and delivered to the plaintiff a chattel mortgage upon all his stock in business. On May 4,1878, the defendant, as sheriff of Fillmore county, seized the stock of goods, which was still in the possession of Olson, under certain writs of attachment issued in favor of the creditors of Olson.

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

Plaintiff brought this action in the district court for McLeod county, to recover damages for ill-treatment by the defendants, with whom she had lived for several years. The case was tried before Macdonald, J., and a jury, who returned a verdict for plaintiff for $5,000. The defendants moved for a new trial, which was denied, and they appealed.

Appeal by defendant, Elling Nyhus, from a judgment of the district court for Fillmore county, Page, J., presiding, against himself and one Gunne Olson.

Paul. The common council of the city of St. Paul having ordered the board of public works to cause a certain portion of Mackubin street in that city to be graded, the board, haviog made estimates for the improvement, and having let the contract in accordance with the law, gave the notice required by the charter of the city (Sp.

Plaintiff brought this action in the district court for Eice county, to recover possession of 160 acres of land in that county, for the rents and profits of the same, and for damages done by defendant to the said property.

Defendant, as sheriff of Stevens county, by virtue of certain writs of attachment issued in actions brought against James McGowan by his creditors, took possession of a stock of goods as the property of said McGowan.

Appeal by defendant from an order of the district court for Freeborn county, refusing a new trial after a trial before Farmer, J., and a jury.

Plaintiff brought this action in’the district court for Ramsey county to recover for damages done to her lot by the •defendant in grading a street on which it fronted. On the trial, before Wilkin, J., and a jury, the plaintiff had a verdict; a new trial was refused, and the defendant appealed.

The warden and inspectors of the state prison, being empowered by Gen. St. 1878, c. 120, §§ 49, 50, to lease the . prison shops and grounds, and to let to. service the able-bodied convicts, for the highest and best attainable ' price, advertised for and received bids, on examination of which the bid made by relator was found to be the highest, but'the relator failed to receive a lease, by reason of the matters stated in the opinion.

Defendant, upon application being made to the district court for Hennepin county for judgment for taxes of 1878 against lots 8 and 9, described in the opinion, and of which it was the owner, appeared and filed its answer objecting to the same. The court, Young, J., presiding, having made findings of fact and law, ordered judgment for defendant. Thereupon, on motion of plaintiff, the proceedings were certified to this court under Gen’. St. 1878, c. 11, § 80.

Appeal by • defendant, the Minneapolis & St. Louis Railway Company, from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial.

Appeal by plaintiffs from a judgment rendered by the district court for Hennepin county, after a trial by Young, J., without a jury.

<p>Petition for a writ of quo warranto. ° The facts appearing in the petition and answer are stated in the opinion..</p>

Appeals by defendants from an order of the district court for Washington county, Crosby, J., presiding, on appeal from an order of the probate court of said county, and from an order of said district court overruling the demurrer of defendants to the complaint of plaintiff in an action therein pending. The facts are stated in the opinion.

Action by plaintiff, in tbe district court for Brown county, to have a judgment by confession, and a levy under execution thereon, in favor of defendant Gieseke against the defendant Albert Behnke and one Henry Behnke, as partners, set aside and declared void as against a subsequent attachment, judgment and levy under execution, in favor of plaintiff against said Albert Behnke, as surviving partner.

Plaintiff brought this action in the district court for Scott county, to recover possession of personal property consisting of lumber and stone, alleged to have been wrongfully taken from him by defendants.

Plaintiffs, as resident freeholders and tax-payers of the-town of Canton in Fillmore county, brought this action in the district court for that county, to restrain the town and the-defendant Braden from delivering, and the defendant, The-Caledonia, Mississippi & Western Railroad Company, from receiving, certain bonds voted and executed by the town in aid of the railroad, and placed in the hands of said Braden for delivery, and praying for a temporary writ of injunction.

Action in the district court for Scott county to recover the balance due on a promissory note.

' Plaintiff brought this action in a justice’s court in Cottonwood county, and had judgment after a trial.- Defendant ajppealed to the district court for that county, on questions of law alone. The appeal was taken February' 14, 1879, and on February 24, 1879, the plaintiff served notice of trial for the next general term of the district court to be held in Nobles county, in the same judicial district, on March 4,' 1879.

Case certified from the district court for Hennepin county, under Gen. St. 1878, c. 11, § 80, on application of the plaintiff. In proceedings to enforce payment of delinquent taxes on lots 1, 2, 3, é, 5, 6 and 7, in Bottineau’s addition to St. Anthony, in that county, Thomas L. Grace filed an answer, objecting that the property was exempt from taxation. .

Appeal by defendant from a judgment of the district court for Goodhue county, Crosby, J., presiding, on appeal from justice court, in an action by plaintiff to recover possession of a buggy, taken under execution by defendant as constable.

Plaintiff, being owner of lot 1, block 29, in Snyder & Co.’s-addition to Minneapolis, which had been assessed for widening and straightening Nicollet avenue in that city, brought this action in the district court for Hennepin county against the defendant Slocum, as county treasurer, and against the city, to have the assessment declared void, and to restrain the sale of the lot.

Appeal by defendants from a judgment of the district court for Washington county, where the action was tried by Crosby, J.

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

The defendant was indicted for, and convicted of the crime of larceny, in the district court for Nicollet county. A motion in arrest of judgment having been denied by Dickinson, J., (acting for the judge of the 9th district,) before whom the defendant was tried, the case was certified to this court under Gen. St. 1878, c. 117, § 11.

Appeal by plaintiff from a judgment of the district court for Dakota county, Crosby, j., presiding, and from an order refusing a new trial.

Plaintiff brought this action in the district court for Eice county, to recover damages for the conversion of 22 piles of cord-wood, which had been levied on by defendant, as sheriff of that county, under a writ of attachment against- one Tobias Oehler. The sheriff had made his levy by marking the piles and leaving them in custody of one Crandall; and filing, on the same day, a certified copy of his writ and return in the proper town-clerk’s office.