Volume 284 — Minnesota Reports

<bold>Divorce — property awarded to wife — propriety</bold>. <block_quote> In an action for divorce the trial court did not abuse its discretion in awarding to the plaintiff-wife one-third of the property acquired during coverture (Minn. St. <cross_reference>518.58</cross_reference>) under circumstances where the considerable property which the defendant-husband owned was acquired not only by his own hard work and business acumen but by the efforts and contributions of the wife as well.</block_quote>

<bold>Real property — right of access — action to require state to</bold> <bold>compensate for alleged denial — effect of prior condemnation</bold> <bold>proceeding</bold>. <block_quote> 1. The record in the action to require the state to commence eminent-domain proceedings to compensate for alleged denial of right of access supports the trial court's determination that plaintiff property owners bad been compensated for that damage in a prior condemnation proceeding.</block_quote> <bold>Mortgages — acquisition of interest in property subsequent to</bold> <bold>condemnation proceeding — effect of proceeding on rights of</bold> <bold>mortgagee</bold>. <block_quote> 2. The rights of a mortgagee who acquired interest in real estate after the filing of the state highway commissioner's petition for right of access to the property are subject to the rights of the state acquired by such prior condemnation proceeding.</block_quote>

<bold>Schools and school districts — application for consolidation</bold> <bold>of districts — right of commissioner of education to reject</bold> <bold>— duty to consider community demands and interests</bold>. <block_quote> 1. The right of the commissioner of education to reject an application for consolidation of school districts, Minn. St. <cross_reference>122.23</cross_reference>, does not include the right to arbitrarily ignore reasonable community demands and interests as they relate to a system of education which will best serve the interests of the community.</block_quote> <bold>Same — denial of application for consolidation —</bold> <bold>reconsideration by commissioner of education</bold>. <block_quote> 2. Where school districts are operating after denial of their petition for consolidation by the commissioner of education, and their entitlement to services and aids is in jeopardy, the commissioner of education has the responsibility of reconsidering the application in light of existing circumstances, with due regard to reasonable community demands.</block_quote>

<bold>Divorce — property division — failure to make division of</bold> <bold>jointly owned property — propriety</bold>. <block_quote> In an action for divorce where the issue of the division of the property acquired during coverture is presented, the court shall determine the issue with finality as contemplated by Minn. St. <cross_reference>518.64</cross_reference> unless the circumstances justify reserving the issue for future determination. <italic>Held</italic>, upon the record in this case, no justification for a failure to make a division of jointly owned property of the parties exists, and the case is therefore remanded for a reconsideration and redetermination of that issue, as well as the question of the alimony to be awarded to the plaintiff.</block_quote>

<bold>Municipal corporations — annexation of territory — preemption</bold> <bold>of subject by legislature</bold>. <block_quote> 1. Because annexation procedures by their very nature involve land outside of the territorial limits of the annexing city, such procedures cannot be spelled out in the city's home rule charter but must instead be established by the authority of the State of Minnesota, which is paramount to all political subdivisions within this state. The subject of annexation is one demanding regulation by state rather than municipal government, and the legislature of this state in adopting Minn. St. c. 414 preempted the field of annexation and left nothing for regulation by municipalities.</block_quote> <bold>Same — same — same — effect on home rule cities</bold>. <block_quote> 2. The legislature in preempting the field of annexation by the passage of Minn. St. c. 414 intended that c. 414 would apply to cities operating under home rule charters as well as to other municipalities.</block_quote> <bold>Same — same — same — same</bold>. <block_quote> 3. Under Minn. St. <cross_reference>414.03</cross_reference>, subd. 2, the city of Duluth was clearly authorized to annex by ordinance abutting land owned by it and located in an unincorporated area.</block_quote> <bold>School and school districts — district coextensive with city</bold> <bold>— annexation of territory by city — effect on district</bold>. <block_quote> 4. Upon annexation of territory by the city of Duluth, the boundaries of Special School District No. 3 were automatically changed to include the area annexed. Sp. L. 1891, c. 312. Minn. St. <cross_reference>122.21</cross_reference>, which provides for the attachment of land to a school district on petition of an adjoining landowner showing the consent of the district from which the land is to be removed, does not<page_number>Page 280</page_number> purport to limit the automatic extension of the boundaries of the Duluth school district provided for in Sp. L. 1891, c. 312. These are entirely separate and distinct statutes, and § <cross_reference>122.21</cross_reference> is irrelevant where the automatic extension of boundaries is involved.</block_quote> <bold>Statutes — special statute — when repealed by general act</bold>. <block_quote> 5. A special statute providing for a particular place, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the legislature to repeal or alter the special law is manifest, although the terms of the general act would, taken strictly and but for the special law, include the case or cases provided for by it.</block_quote> <bold>Same — repeals by implication</bold>. <block_quote> 6. Repeals by implication are not favored. They will not be inferred unless such was the manifest intention of the legislature — unless the later statute fully covers the subject of the prior one and is manifestly inconsistent therewith. L. 1961, c. 378, far from indicating a manifest intention to repeal Sp. L. 1891, c. 312, actually indicated an intention to preserve its boundary provisions.</block_quote>

<bold>Insurance — automobile liability policy — "household</bold> <bold>exclusion" — applicability where other driver obtains</bold> <bold>contribution from insured</bold>. <block_quote> Where his wife, killed by the negligence of the insured, is also a named insured in a liability policy, which indemnifies for the death of "other persons," and the policy in addition excludes coverage for the death of a member of the insured's family, the fact that the husband is found to be negligent in a contribution action brought by an unrelated joint tortfeasor does not prevent the "household-exclusion" provision of the policy from being applicable.</block_quote>

<bold>New trial — grounds — newly discovered evidence</bold>. <block_quote> Rule 59.01, Rules of Civil Procedure, provides in part that a new trial may be granted to all or any of the parties on all or part of the issues where there is "material evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial." <italic>Held</italic>, under the facts and circumstances presented, a new trial should be granted plaintiff.</block_quote>

<bold>Affidavit of prejudice — filing after participation in</bold> <bold>calendar call — effect</bold>. <block_quote> 1. The fact a party participates in pretrial motions at a calendar call on the morning to which a case has been continued on a "non-readiness" basis does not prevent his filing during the noon hour an affidavit of prejudice which is effective to disqualify the judge to whom the case has been assigned for trial that afternoon.</block_quote> <bold>Trial — failure of party to appear at calendar call — right</bold> <bold>to notice of time of trial</bold>. <block_quote> 2. The fact a party does not appear at a calendar call on the morning to which his case has been continued on a "non-readiness" basis does not foreclose his right to be notified that the case has been assigned for trial in the afternoon.</block_quote>

<bold>Principal and surety — agreement by surety to pay any judgment</bold> <bold>rendered against principal — effect of summary default</bold> <bold>judgment against principal</bold>. <block_quote> 1. Where a surety has expressly agreed by the terms of its bond, given to obtain the discharge of a mechanics lien pursuant to Minn. St. <cross_reference>514.10</cross_reference>, that it would pay any judgment rendered against its principal in an action to which it was not a party, upon the principal's failure to pay, a summary default judgment against its principal is conclusive against the surety of every fact necessary to obtain the judgment, absent any fraud or collusion on the part of the principal or the creditor, even though the surety was given no notice of the motion for summary judgment.</block_quote> <bold>Discovery — failure to answer interrogatories — dismissal of</bold> <bold>counterclaim — propriety</bold>. <block_quote> 2. It was error for the trial court to dismiss a counterclaim with prejudice under Rule 37.04, Rules of Civil Procedure, for failure to answer interrogatories, when such failure to answer was not willful.</block_quote> <bold>Costs — inclusion of cost of bond to discharge garnishment —</bold> <bold>propriety</bold>. <block_quote> 3. The cost to the plaintiff of a bond to discharge a garnishment of its funds, obtained in connection with a counterclaim<page_number>Page 490</page_number> brought by the defendant in a foreclosure action, is not recoverable as a cost to plaintiff in the foreclosure action when no decision on the counterclaim has properly been made.</block_quote>

<bold>Automobiles — negligence of driver — loss of control of car</bold> <bold>on freeway</bold>.

<bold>Criminal law — postconviction proceedings — propriety of</bold> <bold>guilty plea</bold>.