Volume 35 — Minnesota Reports

Appeal by plaintiff from an order of the district court for St. Louis county, Stearns, J., presiding, overruling a demurrer to the complaint, the allegations of which are in substance as follows: Prior to July 19, 1883, plaintiff was and still is the owner in fee of lot 49 on St. Louis avenue in Upper Duluth, which lot is and always has been vacant and unoccupied.

By deed, bearing date May 22, 1871, the plaintiff, owner of the water-power created by the flow of water in the east channel of the Mississippi river, at Minneapolis, and of a dam across that channel, conveyed in fee to the defendants’ grantors the right to erect a sawmill, and to draw from the east channel of the river “fifty cubic feet of water per second, under a head and fall of thirty-five feet, provided said head and fall can be obtained at a depth of eight feet below…

Certiorari, directed to a justice of the peace of Otter Tail county, to review proceedings taken on an attempted appeal from a determination by the board of supervisors of the town of Otto in discontinuing and laying out a highway.

Plaintiffs brought this action in the district court for Ramsey county, to recover damages for the failure of defendant to perform a contract for the sale of land alleged to have been made by his authorized agents. The action was tried by a referee, who directed judgment for the plaintiffs. A motion for a new trial was denied by Brill, J., and the defendant appeals from the judgment entered.

John B. Livingston, of Pittsburgh, Pa., by warranty deed absolute in form, and bearing date May 2, 1874, conveyed to his sister, Mrs. Ruth L. Swift, of St. Peter, Minn., certain real estate in Ramsey county. Livingston died, intestate, January 4, 1877, and Mrs. Swift died'in 1881, having devised the real estate to her daughters, who are defendants in this action.

Appeal by plaintiff from an order of the district court for Bamsey county, Wilkin, J., presiding, refusing a new trial after a trial by the court. The action was brought April 6, 1884, upon a note in the following words, viz.: “Newport, April 29th, 1867. For value received, we or either of us promise to pay to John Willoughby, or order, $400, six months after date, with use at twelve per cent, per an-num. E. -M-.

Plaintiff brought this action in the district court for Otter Tail county, to recover the value of goods alleged to have been sold and delivered to the defendant.

Plaintiff, a child eight years old, brought this action in the district court for Ramsey county, to recover damages for personal injuries.. Before the trial, the defendant applied to Brill, J., for a removal of the cause to the United States circuit court, under the local-prejudice act, on which application the proceedings recited in the opinion were had, and the application was denied.

<p>Hegligenee — Evidence held sufficient to go to the Jury. — -A servant of the defendant had been three or four days engaged as a brakeman and as one of a station yard crew, he being previously a stranger to the locality. While descending from a moving freight car by a side ladder, he was swept off by a trestle standing 14J- inches from the side of the ear, and killed. Case considered sufficient to go to the jury upon the questions (1) of defendant’s negligence; (2) as to whether the servant knew this danger, or was chargeable with want of ordinary prudence if he had failed to inform himself of it, so that he should be deemed to have assumed the risk; and (3) as to his contributory negligence.</p> <p>Action for Injuries Causing Death. — Measure of Damages. — In a statutory action to recover for death caused by negligence, when the next of kin, for whose benefit the action is prosecuted, were so related to the deceased as to be entitled to his services, or to support from him, (e. g., the father of a minor son,) the law presumes some loss. It appearing that the deceased was a man engaged in active employment, presumably remunerative, and that he was nine months less than twenty-one years of age, a recovery might be had, in behalf of the father, of more than merely nominal damages.</p>

Appeal by defendant (a corporation) from an order of the district court for Otter Tail county, Baxter, J., presiding, refusing a new trial after a verdict for plaintiffs. The warranty relied upon by plaintiffs was contained in the “order” referred to in the opinion, and was in the following words, viz.: “All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day.

Appeal by Eli T. Wilder, assignee in insolvency of the Minnesota Elevator Company, from an order of the district court for Goodhue county, Crosby, J., presiding, the terms of which are stated in the opinion.

The plaintiffs, who are holders of warehouse receipts for grain delivered by them to one John Young for storage, brought this action in the district court for Dodge county, against the First National Bank of Kasson, the administratrix of said John Young, deceased, the executrix of one John Fern, deceased, defendant Fairchild, personally, and as assignee for John Young, and various other persons who held other warehouse receipts issued by said John Young.

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

Appeal by plaintiff from an order of the district court for Washington county, Crosby, J., presiding, sustaining a demurrer to the complaint. The action was brought to recover the amount of taxes paid by the plaintiff as a mortgagee, which taxes are alleged in the complaint to have been adjudged void in his suit to foreclose the mortgage.

On the petition of the relator, an alternative writ of mandamus was-issued by the district court for Hennepin county, commanding the respondent to proceed to excavate and construct, under its tracks, a-viaduct, with proper sustaining walls and iron bridge, on Fifth street north, in the city of Minneapolis, in accordance with plans prepared by the city council. The relator appeals from an order by Young and Lochren, JJ., quashing the writ.

The plaintiff brought this action in the district court for Hennepin county, to restrain the defendant from opening a street across its tracks. The proceedings on the part of the defendant in laying out the street and condemning the land therefor are set out in detail in the complaint, where it is also alleged that the plaintiff, although in possession of the premises, never had any actual notice of those proceedings until the city removed its fences.

The St. Paul Harvester Works, (a corporation,) becoming insolvent,, made an assignment to Lyman D. Hodge. The plaintiff presented ' claims against the insolvent, amounting to $39,437, for royalty and the value of the use of two patented inventions and also for services rendered.

Plaintiff brought this action in the district court for St. Louis county, to recover possession of certain logs alleged to be wrongfully detained by the defendant. The answer admits the detention of the logs by the defendant, and justifies such detention under claim of a lien for boomage in accordance with the provisions of Sp. Laws 1872, c. 106. On plaintiff’s motion judgment on the pleadings was directed by Stearns, J., on the ground that Sp.

The plaintiff brought this action in the district court for Murray county to recover upon three orders issued by Harris Scovell, the clerk of the defendant, attested by Mons Larson, the director, and directed to the treasurer, who had refused payment.

Plaintiff brought this action in February, 1885, in the district court for Mower county against the principal and sureties on the official bond of the defendant McDonald as constable of the city of Austin. The complaint alleges that the wrong complained of as a breach of the condition of the bond was committed in November, 1878, and that this action is brought by leave granted by the district court on February 9, 1885.

Plaintiff brought this action in the district court for Mower county, to recover the value of a hay-press and tools, destroyed by fire alleged to have been caused by one of defendant’s engines. The action was tried before Farmer, J., and a jury, and plaintiff had a verdict. Defendant appeals from an order refusing a new trial.

Plaintiff brought this action before a justice of the peace of Hen-nepin county. The summons was served on the defendant in the city of Minneapolis in that county. On the return day the defendant appeared specially, and moved to dismiss, on the ground that the justice had no jurisdiction, because it appeared that the summons was served in the city of Minneapolis. This motion was denied and judgment rendered for the plaintiff.

Plaintiff brought this action in the municipal court of St. Paul, to recover the value of labor performed and materials furnished in the construction of a house for defendant.

The relator was duly elected, on the first Tuesday of January,. 1885, to the office of president of the village of Pine Island, for the term of one year, or until his successor should be elected and qualified. He qualified and entered upon the duties of his office, which he continued to discharge until January 8, 1886, when the respondent took possession of the office and assumed to discharge its duties.

^An action of unlawful detainer was brought by relator, under the provisions of Gen. St. 1878, c. 84, against George J. Exley, and others, in the municipal court of St. Paul. The defendants answered, denying plaintiff’s title, and alleging various other defences.

On March 31, 1860, the plaintiff conveyed, by warranty deed, to one Samuel S; Eichardson, certain lands lying in Hennepin county, and on the same day the plaintiff and Eichardson made an instrument in writing, in the nature of a defeasance; stating, certain terms and conditions upon which the lands were to be held and disposed of by Eichardson, who was to account for the proceeds to the-plaintiff.

Defendant was indicted for the crime of an assault with intent to commit rape,-and appeals from an order of the district court for Good-hue county, McCluer, J., presiding, overruling a demurrer to the indictment.

<p>negligence of Attorney — Proof of Damages. — Application to a case of alleged negligence, in respect to securing and foreclosing a material-man’s lien, of the rule that one who seeks to recover actual damages for the negligence of another must show affirmatively that the damages sought have resulted from the negligence complained of.</p>

<p>Appeal by plaintiff from an order of the district court for Hennepin Bounty, Koon, J., presiding, refusing a new trial, after a verdict for •defendants.</p>

Plaintiff brought this action in the district court for Eamsey county, to restrain the defendants from proceeding to foreclose by advertisement a certain mortgage, alleged by plaintiff to have been fully paid and satisfied by a prior .foreclosure by advertisement. The defendants answered, and the plaintiff moved for judgment on the pleadings. The motion was granted by Simons, J., and the defendants appeal from the judgment.

Appeal by plaintiff from an order of the district court for Scott county, Macdonald, J., presiding, substituting Mary J. Brown, ad-ministratrix of the estate of David A. Brown, deceased, as defendant in place of her intestate.

Appeal by plaintiff from an order of the district court for Clay county, Collins, J., presiding, sustaining a demurrer to the complaint. The action was brought to enforce a mechanic’s lien, and a copy of the affidavit and account for a lien were set out in the complaint.

<p>Probate Court — Order Appointing Administrator — Appeal. — One against whom an administrator brings, or is entitled to bring, suit, under Gen. St. 1878, c. 77, § 2, for the killing of an intestate, is not entitled, under Gen. St. 1878, c. 49, § 14, to appeal from the order of a probate court appointing such administrator.</p>

The plaintiff brought this action in the district court for Washington county, and duly recovered judgment against the defendants. After the commencement of the action, Austin T. Jenks was duly garnished, and upon his disclosure it appeared that he had in his hands a large amount of money which he had received and held as assignee under an assignment made by the defendants, who were partners as Walker, Judd & Veazie, of their partnership property only.

Plaintiffs brought this action in the municipal court of Minneapolis, to recover the sum of $200 alleged to have been earned by them as commissions in finding a purchaser for real estate. Defendant appeals from an order refusing a new trial.

Appeal by defendant from an order of the district court for St. Louis county, Stearns, J., presiding, refusing a new trial, after a verdict for plaintiff on a trial before Reynolds, J., and a jury.

The plaintiffs brought this action upon four notes made by the defendant, amounting in all to $7,505, with interest at the rate of ten per cent, per annum from January 1, 1878, and upon an open account amounting to $993, and dated August 2,1884.

<p>Appeal by plaintiff from an order of the district court for Becker county, Baxter, J., presiding, granting a new trial.</p>

Appeal by defendant from a judgment of the district court for Hennepin county, where the action was tried before Young, J., and a jury.

Plaintiff, as receiver of John H. Moork, an insolvent, brought this action in the district court for Hennepin county, to recover the value of goods alleged to have been the property of the insolvent and to have been converted by the defendant to his own use.

The first of these actions was brought in the district court for Hen-nepin county, in April, 1871, by Cornell & Bradley as attorneys for plaintiff, against Wm. Hanson and Bandall W. Hanson, to recover possession of lots 9 and 10, in block 129, in Minneapolis.

Appeal by plaintiffs from a judgment of the district court for Dodge county, where the action was tried by Buckham, J., without a jury.

In the course of the administration of the estate of Cyrus Jefferson, deceased, in the probate court for the county of Washington, the county auditor presented as a claim against the estate statements for personal taxes for the years 1882 and 1883, on credits secured by mortgages, amounting to about the sum of $122,000. These claims were entitled in the following manner, viz.: “Office of County Auditor of Washington County, Minn., March 26,1884.

Quo warranto. The writ required the respondent to show cause why its charter, liberties, privileges and franchises should not be adjudged and decreed forfeited to the state, and its existence as a corporation annulled.

The plaintiffs brought this action in the district court for Ramsey county, to obtain possession of a strip of land 150 feet wide, occupied and used by the defendant as right of way. The action was tried by Simons, J., without a jury.

Plaintiff (a corporation) brought this action in the district court for Hennepin county, upon written guaranties indorsed upon promissory notes. The action was tried before Young, J., without a jury, and judgment directed for plaintiff. Upon the trial it appeared that the defendants were engaged in business under the firm name of P. Thompson & Co., and that the guaranties were signed in the firm name by the defendant Crosby.

Judgment having been regularly entered in this action in the district court for Hennepin county in favor of plaintiff, and an execution thereon having been returned wholly unsatisfied, the examination and disclosure of the defendant Campbell were taken by a referee appointed by the court in supplementary proceedings.

Appeal by defendants from a judgment of the district court for Nobles county, where the action, which was brought to recover the price of certain rakes sold to defendants, was tried before Perkins, J., without a jury.

Appeal by defendants from a judgment of the district court for Hennepin county, where the action was tried by Lochren, J., without a jury. The validity of the mortgage foreclosure involved in this action was considered in Bottineau v. ¿Etna Life Ins. Go., 31 Minn. 125.

The plaintiff brought this action in the district court for Anoka county to recover for the conversion of personal property. The cause, being regularly on the calendar, was duly called for trial on the first day of the September term of court. The attorneys for the defendant not being in court, the attorney for the plaintiff requested that the case be set for trial on a subsequent day.

<p>Bastardy — Purpose of Statute — Allowance for Past Maintenance.— The proceedings under the bastardy act, (Gen. St. 1878, c. 17,) where the complaint is made by the mother, are intended, not merely to indemnify the public against expenses incurred in such cases, but also for-the protection and benefit of the mother; and where the defendant is found guilty, the court may make a reasonable allowance for the past as well as future support and maintenance of the child, including the lying-in expenses, to be paid the mother or for her use, (when not paid or incurred by the public.)</p>

Appeal by defendant from a judgment of the district court for Otter Tail county, where he was tried before Baxter, J., and a jury on a charge of bastardy.

.Plaintiff brought this action in the district court for Washington county, to recover damages for injuries to a horse and cutter alleged to have been caused by the negligence of the defendant in leaving a street in an obstructed and dangerous condition. At the trial before McOluer, J., the plain-tiff had a verdict, and defendant appeals from an order refusing a new trial.

Plaintiff brought this action in the district court for Wright county, to recover for wheat sold and money lent. At the trial before Loch-ren, J., the plaintiff had a verdict. A new trial was refused, and defendant appeals from the judgment.

The plaintiff brought this action in the district court for Stearns county, to recover the possession of two horses.

Appeal by defendant from an order of the district court for Hen-nepin county, refusing a new trial. The action was tried, without a jury, by Koon, J., who found the following as facts, viz.: On February 21, 1884, the defendant, Bray, as sheriff of Sibley county, by virtue of a writ of attachment issued in an action against one George L. Zimmerman, levied upon and took into his possession certain personal property belonging to Zimmerman.

Appeal by defendant from an order of the district court for Hen-nepin county, Lochren, J., presiding, refusing a new trial, upon the plaintiff’s consenting to reduce the verdict from $4,275 to $2,000. This was the fifth trial of the action. Decisions on former appeals will be found reported in 30 Minn. 41 and 32 Minn. 217, in the former of which will be found at length the alleged libel.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for injuries occasioned to his infant son while riding in an elevator in the defendants’ flouring-mill. The action was brought on for trial before Lochren, J., and a jury, and when plaintiff rested his case defendants moved for and obtained an order of dismissal. Plaintiff appeals from an order refusing a new trial.

The relator appeals from an order of the district court for St. Louis county, Stearns, J., presiding, quashing an alternative writ of mandamus.

Plaintiff brought this action in the district court for Hennepin 'County, in May, 1885, alleging itself to be a corporation formed in June, 1881, by the consolidation of a then-existing corporation, of the same name, with the Minneapolis & Duluth Ry. Co. and two* Iowa railway companies.

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., presiding, vacating and setting aside a judgment entered upon default. The decision on a former appeal in this action is reported in 34 Minn. 403.

The plaintiff brought this action in the district court for Lyon county, to restrain the defendants from foreclosing a mortgage by advertisement. The action was tried, without a jury, by Webber, J., who found the following to be the facts, viz.: Prior to the spring of 1881, one Mathews was the owner of an eighty-acre tract of land, to -which he had acquired title under the homestead law, and which he ‘Occupied with his wife as a homestead.

Habeas corpus. Appeal by the state from an order of the district court for Washington county, McCluer, J., presiding, discharging the defendant, who had been committed on a charge of embezzlement.

Plaintiff brought this action before a justice of the peace in Hen-nepin county, and the summons was served personally on the defendant in the city of Minneapolis. On the return-day the defendant appeared specially, filed an answer pleading want of jurisdiction of the justice, and moved to dismiss. The motion was denied and judgment entered for plaintiff, the defendant having offered no evidence.

The plaintiff brought this action in a justice’s court in Stearns ■county, to enforce a lien claimed to exist upon certain farm products. ■On appeal to the district court the action was tried by Collins, J., without a jury, and judgment for defendant, directed and entered, from which the plaintiff appeals.

The plaintiff, as receiver of the estate of C. E. Gill, an insolvent, brought this action in the district court for Pope county, to recover payments and set aside securities alleged to have been received by certain creditors of the insolvent by way of preference, and in fraud of the insolvent law.

The will of Henry Eausch, deceased, was duly proved in the probate court for Stearns county. This will in terms devised and bequeathed all his estate to his children. Maria Eausch, the testator’s widow, duly applied to the probate court to assign to her the homestead for life, and one-third of the other real estate of the decedent, and also certain portions of the personalty, with an allowance for support.

The plaintiff, having been duly appointed assignee of B. N. Johnson and Gustav 0. Dahl, insolvents, brought this action in the district court for Otter Tail county, to recover damages for the alleged conversion of certain property of the insolvents. The defendant justified his taking as sheriff under writs of attachment issued from a justice’s court on February 27,1885, under which he levied upon the property on the same day.

The plaintiffs, being about to enter judgment in this action in the district court for Hennepin county, served their statement of costs with notice for taxation by the clerk.

Appeal by plaintiff (a corporation) from an order of the district court for Polk county, Stearns, J., presiding, refusing a new trial. When the case was called for trial, plaintiff asked leave to dismiss, which was denied. Plaintiff then moved to strike out the counterclaim in the answer, which motion was denied. Defendant demanded a jury trial. A jury was called, and plaintiff, on demand, refused to pay the jury fee.

Appeal by plaintiff from an order of the district court for Washington county, McCluer, J., presiding, sustaining a demurrer to the complaint. cited Wait v. Day, 4 Denio, 439; A chit v. Butler, 87 N. T. 585; Wads-worth v. Williams, 100 Mass. 126; Botsford v. Beers, 11 Conn. 369, 375; Westerman Y.Westerman, 25 Ohio St. 500, 510; Cray v. Chase, 57 Me. 558, 562; Gormerly y. Chapman, 51 Geo. 421; Baker v. Lyman, 53 Geo. 339; Eigleberger v. Kibler, 1 Hill, Eq. 113, (26 Am.

The plaintiff, as receiver of the assets of a partnership, brought this action in the district court for Winona county, to recover for goods sold and delivered by the partnership. The action was tried without a jury, before Start, J., who ordered judgment for plaintiff, from which defendant appeals. cited Gen. St. 1878, c. 66, §§ 26, 28; Edwards on Eeceivers, 117; High on Eeceivers, §§ 209, 210; Green v. Winter, 1 John. Ch. 60; Ver-planck v. Mercantile Ins.

Plaintiff brought this action in the municipal court of Minneapolis, to recover the sum of $195, the agreed price of certain horses sold by him to the defendants. Plaintiff had a verdict for the full amount claimed, and defendants appeal from an order refusing a new trial.

, presiding, dismissing an appeal from an order of the probate court, determining that the instrument offered for probate is not the will of the deceased. The dismissal was made upon the ground that the district court had no jurisdiction, because an undertaking and not a recognizance was given on the appeal from the probate court.

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

Libel. Appeal by plaintiff from an order of the district court for Hennepin County, Lochren, J., presiding, refusing a new trial, after a verdict for plaintiff for one cent damages.

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

The plaintiff brought this action in the district court for Hennepin county, to determine the adverse claims of the defendants to a strip of land in the city of Minneapolis. The defendant the City of Minneapolis set up a dedication of the land in question as a public alley. The action was tried, without a jury, by Lochren, J., who directed judgment for the defendants.

<p>Appeal by plaintiff from a judgment of the district court for Morrison county, entered upon the report of a referee.</p>

Appeal by plaintiff from a judgment of the district court for Ramsey county, where the action was tried by Brill, J., without a jury.. The object of the action was to enjoin the defendant the St. Paul, Minneapolis & Manitoba Ry.

Cross appeals from an order of the district court for Stearns county, denying plaintiffs’ and defendant’s motions for a new trial, after a trial before Collins, J., a jury having been waived.

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

Plaintiff, as administrator of Diedrich Thole, who died October 2, 1882, brought this action in the district court for Le Sueur county, praying that a mortgage of certain described lands in that county, made by the defendant Frederick Dieling and his wife to the intestate May 5, 1881, and recorded December 21, 1881, be adjudged to be a lien on the mortgaged premises prior to the liens of certain mortgages of the same premises made by Dieling and wife to the defendants…

Ejectment in the district court for Hennepin county. The answer of defendant Mary A. Doyle was a general denial.

The plaintiff having been appointed assignee of James Elwin and William Hartley, copartners as Elwin & Hartley, in place of the defendant Henry Hartley, who was removed, brought this action in the district court for Hennepin county against his predecessor and the sureties on his bond, to recover the value of certain tobacco and tools which came into the hands of the defendant Hartley, as assignee, and which he converted to his own use.

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

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

The plaintiff, as receiver in insolvency of the estate of William S. Wells, brought this action in the district court for Goodhue county, to set aside transfers of real and personal property alleged to have been made by Wells to the defendant Palmer by way of preference. By consent of parties there was submitted to a jury the single question of fact, whether Palmer, when he received the transfers, had reasonable cause to believe that Wells was insolvent ?

The plaintiff, as receiver in insolvency of the estates of William S. Wells and William B. Dickey, brought this action in the district court, for Goodhue county, to set aside a transfer of stock of the Northwestern Land Company, made by the insolvents to the defendant the Bank of Zumbrota, as security for indebtedness due from Wells to-the bank, and for the purpose, as alleged by plaintiff, of giving the bank a preference over Wells’s other creditors.

Appeal by plaintiff from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. cited Adams v. Hastings & Dakota R. Co., 18 Minn. 236, (260;) Brown v. Cayuga, etc., R. Co., 12 N. Y. 486; Brakken v. Minn, é St. L. Ry. Co., 29 Minn. 41; s. c., 31 Minn. 45; Carli v. Union Depot Co'., 32 Minn. 101; Hartz v. St. Paul á S. C. R. Co., 21 Minn. 358; Carl v. Sheboygan, etc., R. Go., 46 Wis. 625; Blesch v. Chicago é N. W. Ry.

Action upon a promissory note, brought in tbe municipal court of Minneapolis by tbe payee aginst the maker. Defence that the note was given to the plaintiff solely for his accommodation and without any consideration. Defendant appeals from an order refusing a new trial. The settled case upon which the motion for a new trial was made does not purport to contain all the evidence.

Appeal by defendants from a judgment of the district court for Hennepin county, where the action was tried by Young, J., without a jury. The case is stated in the opinion. A deed or other conveyance of land to a partnership in its firm name vests the legal title to the property in the partners as tenants in common.

Plaintiff brought this action in the district court for Stevens county, to recover the value of wheat and oats alleged to have been destroyed by fire thrown from one of defendant’s engines by reason of negligence in operating it. The action was tried before Brown, J., and a jury, and defendant had a verdict. Plaintiff appeals from an order refusing a new trial.

Action by the payee against the makers to recover $185, the balance unpaid on two promissory notes, on which $150 had been paid.

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

Appeal by defendants from an order of the district court for Hen-nepin county, Lochren, J., presiding, refusing their demand for a second trial, in an action under the statute to determine adverse claims to real property.

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, denying his motion for a new trial. The action was for specific performance of an agreement of sale of land.

Action by plaintiff, in the municipal court of St. Paul, to recover the value of work done by him in excavating for the foundation of a building and carrying away earth and stone therefrom, under a contract which he alleges he was prevented by defendant from performing. Answer that plaintiff, without excuse, abandoned the work, with a counterclaim for the expense incurred by defendant in completing the work, in excess of the contract price.

Plaintiff, as administratrix of her deceased husband, brought this action of replevin for a horse in the municipal court of Mankato.

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

Appeal by defendant from an order of the district court for Hen-nepin county, refusing a new trial. The action was brought by plaintiffs, as grantees of one Bendeke, to cancel a contract for conveyance made between their grantor and defendant, and was tried by Young, J., without a jury.

<p>Appeal by plaintiffs from a judgment (in their favor) of the district court for Clay county, Stearns, J., presiding.</p>

Plaintiff recovered a verdict of $675, in the district court for Clay county, against Eliza Goebel, who appealed to this court from an order denying her motion for a new trial. A bond to stay proceedings, with the statutory condition, (recited in the opinion,) was executed by her and by the other defendants in this action as her sureties. The order was affirmed by this court, (33 Minn. 151,) and judgment for $792.86 was entered on the verdict.

<p>Application for writ of quo loarranto.</p>

Plaintiff brought this action in the district court for Douglas county, to recover damages for an alleged breach of warranty made by defendant (a corporation) on the sale of a harvester and binder. After the decision of a former appeal, (33 Minn. 492, where the contract is printed in full,) the action was again tried, before Baxter, J., with a jury.

Action to recover possession of 476 bushels of wheat and 120bush-els of oats, alleged to have been wrongfully taken from plaintiff’s possession on June 27, 1883, and to be still detained from him by defendants. The complaint states the value of the wheat to be $476 and of the oats $42.

Appeal by Michael Gates from a judgment of the district court for Le Sueur county, Macdonald, J., presiding, affirming certain orders of the probate court of the same county allowing the account of Eliza Shugrue as executrix of Michael Shugrue, and assigning to her, as sole devisee, the real estate described in his will.

Plaintiff brought this action in the municipal court of Duluth, to recover damages alleged to have been occasioned by defendant’s negligence as an attorney-at-law. The action was tried by the court, and judgment directed for the plaintiff, from which the defendant appeals.

Appeal by defendant from a judgment of the district court for Stevens county, Brozan, J., presiding, affirming a judgment of a justice’s court.

Ejectment. The land involved in this action is a part of the “strip thirty-three feet wide on the south side” of the tract of land described in the opinion. Defendants claim title under the warranty deed mentioned in the opinion, and plaintiff claims under a subsequent quitclaim deed of the premises in dispute, made by the grantor of the warranty deed. Plaintiff appeals from an order of the district court for Hennepin county, Lochren, J., presiding, refusing a new trial.

Plaintiff brought this action in the district court for Houston county, to recover the possession of certain wheat, which had been raised by one Donahoe, on his land, in the year 1884. The plaintiffs claim title under a chattel mortgage given by Donahoe to the plaintiffs, on October 2, 1884, and filed on the same day.

Plaintiff brought this action in the district court for Otter Tail county, to recover the value of wheat alleged to have been unlawfully taken and converted. The defendant justified his taking, as sheriff of the county, under a writ of attachment against Jacob Hom-berger. Upon the call of the calendar the defendant moved to strike the case from the calendar, because of want of notice of trial.

An award having been duly filed in the district court for Hennepin county, in proceedings instituted therein by the St. Paul & Northern Pacific Railway Company to acquire for its uses certain lands, an appeal was taken therefrom by Charles Witt as to the damages awarded for certain land of which he was the owner. The appeal was tried in the district court before a jury, who on October 29,1885, rendered a verdict increasing the award from $200 to $1,250.

Plaintiff brought this action in the district court for Douglas county, to determine defendant’s claim of title to certain land. The action was tried before Baxter, J., without a jury, and, upon the facts as found by the court, judgment was directed for defendant. The plaintiff claims title under the foreclosure by advertisement, in 1871, of a mortgage made by one Alpheus Chance, the then owner, to the plaintiff.

Appeal by defendant from a judgment of the district court for Becke| county, where the action was tried before Stearns, J., and a jury.

Appeal by defendants from a judgment of the district court for Inoka county, where the action was tried by Young, J., without a |ury.

Appeal by plaintiff from an order of the district court for Fillmore county, Farmer, J., presiding, sustaining a demurrer to the complaint. cited Town of Guilford v. Supervisors, 13 N Y. 143; Lycoming v. Union, 15 Pa. St. 166, (53 Am. Dec. 575;) Turnpike Co. v. Commonwealth, 2 Watts, 433; Blanding v. Burr, 13 Cal. 343; State v. Cronkhite, 28 Minn. 197; State v. Foley, 30 Minn. 350; Cooley on Taxation, 91.

The plaintiff brought this action in the district court for Ramsey county, to determine the defendant’s adverse claim of title to certain property in plaintiff’s possession, and described in the complaint as “lots 9 and 10, in block 51, of Dayton & Irvine’s and Riee& Irvine’s additions to the city of St. Paul, in the county and state aforesaid, according to the recorded plats thereof on file in the office of the register of deeds in and for said county and state.” The answer…

Appeal by defendants from an order of the district court for Benton county, Collins, J., presiding, overruling a demurrer to the complaint. cited Baxter v. Winooski Turnpike Co., 22 Yt. 114, (52 Am. Dec. 84;) Park v. C. & S. W. R. Co., 43 Iowa, 636; Ewell v. Greenwood, 26 Iowa, 377; Hughes v. Heiser, 1 Binney, 463, (2 Am. Dec. 459;) Pittsburgh v. Scott, 1 Pa. St. 309; Chichester y. Lethbidge, Willes, 71; Stetson v. Faxon, 19 Pick. 147, (31 Am.

The plaintiff brought this action in the district court for Hennepin county to determine the defendants’ adverse claims to certain land, and appeals from an order by Lochren, J., refusing a new trial. upon the admission in evidence of Exhibit Y to prove the handwriting of plaintiff, cited Hanley v. Gandy, 28 Texas, 211; Kernin v. Hill, 37 Ill. 209; West v. State, 22 N. J. Law, 212, 241; Philadelphia, etc.,R. Go. v. Hickman, 28 Pa.

Appeal by defendant from a judgment of the district court for Waseca county, Buckham, J., presiding, affirming a judgment of the municipal court of Waseca.

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

Appeal by defendant from a judgment of the district court for Hen-nepin county, where the action was tried by Young, J., without a jury.

The plaintiff brought this action in the district court for Olmsted county, to recover the unpaid balance due upon a promissory note. The complaint set out in substance the following facts: On October 1, 1878, one Harmon, being the owner of certain land, mortgaged it to one Stephenson to secure payment of $550. On December 19, 1878, he gave a second mortgage on the same land to one Charlesl Lahmers, to secure the payment of his note for $286.

The plaintiff, claiming to be the owner of an undivided one-third of a certain piece of land, brought this action in the district court for Hennepin county for partition. The defendant denied plaintiff’s title, and claimed to be the sole owner of the premises. The action was tried before Young, J., without a jury, and judgment directed and entered for defendant, from which plaintiff appeals.

Juliette Charles filed a claim against the estate of Henry G. Charles, deceased, which was duly allowed by order of the probate court of Bamsey county, on June 28, 1884. On December 9,1884, the executor of the decedent filed objections to the allowance of the account, and made application to set aside the order, which application was denied. On March 4, 1885, the executor appealed from both orders to the district court.

The St. Paul & Northern Pacific Bailway Company commenced proceedings in the district court for Hennepin county to condemn foi its uses lots one and two in block ten of Bottineau’s second addition to St. Anthony. For the taking of these lots the commissioners awarded, as damages, $1,000 to M. B. Wilcox, who was named as sole owner in the petition of the railway company.

After the decision of the former appeal in this action, (reported 34 Minn. 374,) the defendant amended his answer. This appeal was taken by defendant from an order of the district court for Dakota county, Crosby, J., presiding, sustaining a demurrer to the amended answer. The contract being executory, there was an implied warranty that the logs delivered should be merchantable.

Appeal by plaintiff from an order of the district court for Sibley county, Macdonald, J., presiding, refusing a new trial, after a trial by the court, without a jury.

Appeal by defendant from an order of the district court for Hen-nepin county, refusing a new trial, after a trial by Youny, J., who ordered judgment for plaintiff.

Appeal by plaintiffs from a judgment of the district court for Ramsey county, Simons, J., presiding, in an action to establish and enforce a mechanic’s lien.

Action of replevin for household furniture, brought in the municipal court of Minneapolis, by the mortgagee against the mortgagor, after default. Defence, that the mortgage was given to secure a usurious loan. The action was tried by the court, and judgment ordered and entered for plaintiff, from which the defendant appeals.

Appeal by defendant E. H. Moulton from an order of the district court for Blue Earth county, Severance, J., presiding, overruling his separate demurrer to the complaint.

<p>Railway Company — Condemnation of Crossing of Another Railway.— In proceedings for the appointment of commissioners under the provisions of Laws 1879, c. 85, § 3, (relating to railroad crossings,) the district court is not confined to the precise location mentioned in the petition, but may change or modify it; identity of the purpose of the crossing petitioned for and of that prescribed being sufficient.</p> <p>Same — Order Allowing Crossing, when not Stayed by Appeal. — Under Laws 1881, Ex. Sess., c. 10, § 1, (which is an amendment to Gen. St. 1878, c. 34, § 47,) at any time after the making of the order prescribing the location apd manner of a crossing, the petitioning corporation is entitled to proceed immediately to make and operate the same, upon filing the bond in said section one prescribed, notwithstanding the adverse party has theretofore, and before any meeting of the commissioners, duly taken and perfected an appeal from the order appointing them, by, among other things, executing and filing an undertaking for a stay of proceedings under Gen. St. 1878, c. 86, § 10, as modified by Laws 1868, o. 80.</p>

This action was brought in the district court for Hennepin county, .nd was tried before Koon, J., with a jury, and plaintiff had a verdict f $500. He moved for a new trial for errors at the trial, for inad-|quaey of the damages awarded him, and for newly-discovered evi-enee, and he appeals from an order denying his motion.

Appeal by defendant from an order of the district court for Stearns county, Collins, J., presiding, denying his motion to strike out the complaint, or to require it to be made more definite and certain.

Appeal by Schwede from an order of the district court for Brown county, Webber, J., presiding, dismissing his appeal from an order of the board of supervisors of the town of Burnstown, laying out a highway.

Appeal by defendant Einaldo E. Briggs from an order of the district court for Clay county, Baxter, J., presiding, striking out his verified answer as sham.

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

On November 15, 1884, the firm of Hussey & Oo. made an assignment in insolvency to defendant. Among the insolvent’s creditors was one Schaefer, whose claim, amounting to $65, was proved and allowed in full, $50 thereof being allowed as a preferred claim. After-wards, and on January 7, 1885, Schaefer assigned the claim to plaintiff, and on the same day notice of the assignment was given to and accepted by defendant.

Plaintiff brought this action in the district court for Douglas an At the trial before Collins, J., the plaintiff had a verdict. A new ¡rial was refused, and the defendant Beynolds appealed. Exhibit ], mentioned in the opinion, is a bill of a third person against plain-,iff, which was paid by defendant.

<p>Prohibition. — State v. Ueland, 30 Minn. 29, (14 M. W. Rep. 58,) followed.</p>

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, setting aside a verdict of $2,500 in Ms favor, and granting a new trial.

<p>Appeal by defendants from an order of the district court for Hen-nepin county, Koon, J., presiding, refusing a new trial.</p>

In each case the defendant Allardt appeals from an order of the municipal court of Minneapolis, refusing to open a judgment entered on default.

Upon the trial of this action in the district court for Hennepin county, before Young, J., and a jury, the plaintiff having rested her case, a motion for a dismissal was made and granted. Plaintiff appeals from the judgment.

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

The plaintiff brought this action in the district court for Wadena county, to recover the value of wheat alleged to have been unlawfully converted by the defendant. The action was tried before Baxter, J., without a jury, and judgment ordered and entered for plaintiff, from which the defendant appeals.

On August 1, 1883, Seth Abbott, the plaintiff, being the owner thereof, duly mortgaged to the defendant Dennis L. Peek a certain tract of land, to secure the payment of $36,000. Afterwards Abbott and Peck caused the land to be surveyed and platted into 8 blocks,which were divided into lots. All the blocks, except block 1, were divided into two parts by alleys. Peek joined in the dedication on the plat, and released the lien of his mortgage from the streets and alleys.

The plaintiff brought this action in the district court for Freeborn county, to recover damages resulting to him by reason of the failure of the defendant to fence its railroad. His allegations of injury and damage were substantially as follows: The plaintiff is and has been for many years the owner of a farm, through which defendant’s railroad runs on right of way conveyed to it by the plaintiff on October 16, 1879.

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

The plaintiff, being in possession of certain real estate in Minneapolis, brought this action in the district court for Hennepin county, o determine the adverse claims of the defendants. In their answer he defendants allege title in themselves to an undivided one-half of he property.

The plaintiff brought this action in the district court for Hennepin county, to recover the value of four shares of the stock of the defendant, alleged to have been unlawfully appropriated by the defendant. The action was tried by Lochren, J., who found the facts to be as follows: On May 25, 1883, one Beach, being the owner of the shares in question, assigned them to the plaintiff as security for a debt.

Appeal by defendant from a judgment of the district court for Ramsey county, where the action was determined by Brill, J., without a jury, upon stipulated facts. cited Laws 1879, c. 66; Payne v. Newcomb, 100 Ill. 611; Philo v. Butterfield, 3 Neb. 256 ; Cheney v. White, 5 Neb. 261; Cheney v. Woodruff, 6 Neb, 151; Olmsted v. Neto England Mtge. Security Co., 11 Neb. 487; Borcheling v. Trefz, 40 N. J. Eq. 502, (2 Atl. Rep. 369;) Boyd v. Engelbrecht, 36 N. J. Eq. 612; 17 Cent.

<p>Appeal by defendants from a judgment of the district court tor Waseca county, where the action was tried by Buckham, J.</p>

Plaintiff brought this action in the district court for Hennepin county, to determine the adverse claims of the defendants to certain land. The defendants Howe, Rust, and Gale answered, alleging the execution and delivery of the Howe mortgage mentioned in the opinion, and the payment thereof by Rust and Gale, and asked that that mortgage be decreed to be a valid and subsisting lien upon the land in question.

Appeal by plaintiff from an order of the district court for Blue Earth county, Start, J., presiding, (acting for the judge of the Sixth district,) refusing a new trial. cited Prideaux v. City of Mineral Point, 43 Wis. 513; Houfe v. Town of Fulton, 29 Wis. 296; Otis v. Town of Janesville, 47 Wis. 422, (2 N. W. Bep. 783;) Lake Shore, etc., B. Co. v. Miller, 25 Mich. 274; Stillson v. Hannibal, etc., B. Co., 67 Mo. 671; Holly v. Boston Gas Light Co., 8 Gray, 123,132, (69 Am.

<p>Chattel Mortgage — Description of Property — Identification — -Evidence. — A chattel mortgage of “all that certain stock of one-inch seasoned lumber,'being one car-load of about 12,000 feet,” and further describing the property as being at a particular place in the city of M., may, as between the parties, or as to a subsequent purchaser with notice, or a stranger, be shown by evidence to be applicable to a car-load of such lumber standing at a different place in the city from that named in the mortgage.</p> <p>Same — Evidence of Understanding of Parties. — Evidence showing that the parties understood that the property was to be removed to the place designated in the mortgage would be admissible to apply the mortgage to property otherwise correctly described.</p> <p>Same — Conversion by Stranger — Action by Mortgagee — Damages.— A mortgagee, having the right of possession, may recover the full value of the property, even in excess of his debt, in an action against a stranger who shows no right to the property.</p>

Appeal by J. B. Gazett, an insolvent debtor, from an order of the district court for Benton county, Collins, J., presiding, ordering a distribution of the insolvent’s property among his creditors without the filing of releases. The complaint on which the order was made was filed by Henry Benedict & Co. and Sophia Hageman.

Appeal by plaintiffs (late partners as Dyer & Howard) from an order of the district court for Douglas county, Baxter, J., presiding, refusing a new trial after verdict for defendant. The case is stated in the opinion. The statute avoiding such contracts unless filed is identical in terms with the statutes of Michigan, Ohio, New Jersey, and New York, and substantially the same with those of Arkansas and Nebraska.

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial after verdict for defendants.

Appeal by defendant from a judgment of the district court for Hen-nepin county, where the action was tried by Young, J., without a jury.

On May 25, 1883, the defendant corporation, to secure an issue of bonds to the amount of $50,000, executed and delivered to plaintiff, as trustee, a mortgage upon lands in Minneapolis therein described, and also upon “all and singular the manufactories, machine-shops, foundry-works, smith-shops, and all buildings, machinery, erections, structures, fixtures, engines, tools, manufactured and unmanufactured materials, and all supplies of every kind belonging or appertaining or…

This action being at issue and called for trial in the district court for Otter Tail county, before Collins, J., the defendant moved for judgment on the pleadings. It was admitted, for the purpose of the motion, that defendant is a town organized under Gen. St. 1878, c. 10, with no other or greater powers than those conferred by the general laws of the state upon towns organized under that chapter. Thereupon the motion was granted.