Volume 39 — Minnesota Reports

Appeal by defendants from an order of the district court for Ramsey county, Simons, J., presiding, overruling their demurrer to the complaint.

Plaintiff brought this action in the district court for Hennepin county, to recover damages for having been ejected from one of defendant’s passenger trains. At the trial, before Young, J., and a jury, the plaintiff having rested his case, the action was dismissed, on defendant’s motion. A new trial was refused, and the plaintiff appealed.

Appeal by defendant from an order of the district court for Scott county, Edson, J., presiding, refusing a new trial after a conviction of assault in the third degree.

<p>Eminent Domain — Evidence as to Values. — In condemnation proceedings for taking for a railroad a strip through a farm, it is proper to ask the witnesses what is the difference between the value of the farm without the railroad across it, and its value with the railroad across it.</p> <p>Same — Cross-Examination.—When the company’s witnesses had stated their opinion of sucli difference in values, it was proper, on cross-examination, in order to test the value of their opinions, to ask them if in tlieir ' judgments it would make any difference that the owner had no right to cross the right of way taken.</p> <p>Same — Damages—Temporary Crossings. — Certain crossings made by the company, at the owner’s request, in constructing the rOad, being apparently only temporary, it was right in the court to decline to charge that the amount of the verdict should be the difference in the values without the railroad, and with the railroad “ with the crossings over and under the track now there. ”</p>

Plaintiff brought this action in the municipal court of St. Paul to recover for the conversion by defendant of $100. At the trial there was evidence that plaintiff and one Natelson called together at the express office at Lake Crystal, and plaintiff delivered to the express agent $100, belonging to himself, which was enclosed in a. sealed package, directed to Nathan Benjamin, at Minneapolis, and with plaintiff’s name on it as consignor.

<p>Vendor and Purchaser — Lien—Payment.—Evidence in this case examined, and held to justify the findings of fact and conclusions of law as made in the court below.</p> <p>Appeal by defendants from an order of the district court for Hen-nepin county, refusing a new trial after trial by Hicks, J., without ^ jury.</p>

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

Appeal by defendants, the administrator and heirs of Calvin Bobo, deceased, and others, from a judgment of the district court for Hen-nepin county, where the action was tried by Hicks, J.

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

Plaintiff appealed to the district court for Bamsey county from an order of tbe probate court disallowing bis claim against the estate of W. A. Culbertson, deceased. At the trial, before Brill, J., the action was dismissed, on defendant’s motion, at the close of plaintiff’s case. Plaintiff appeals from the judgment.

<p>Deceit — Representation as to Land Title. — Evidence going to show false , representations by defendant, made as of his own knowledge, respecting k the title to real estate, to the plaintiff, who, being ignorant of the facts, purchased, relying upon the representations, held sufficient to justify a , recovery for fraud.</p>

•Appeal by defendant from an order of the district court for Aitkin county, Sleeper, J., presiding, overruling a demurrer to its answer in a proceeding to collect personal property taxes.

Appeal by plaintiffs from an order of the district court for Stearns •county, Collins, J., presiding, sustaining a demurrer to the complaint.

<p>Cross appeals from a decision of the district court for Otter Tail . county, where the action was tried by Baxter, J.</p>

Appeal by plaintiff from a judgment of the district court for Wa-■dena county, where the action was tried by Sleeper, J.

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

Actions to determine adverse claims to real property, brought in the district court for Hennepin county, and tried together by Young, J., who ordered judgment for plaintiff in each case. The defendant-in each case appeals from an order refusing a new trial.

Plaintiffs brought this action, on August 31, 1887, in the district court for Chisago county, against the defendant Elizabeth Benton, who is the widow, and the other defendants, who are the heirs-at-law, of Edwin K. Benton, deceased, to remove from plaintiffs’ title to the lands described in the complaint, the cloud created by defendants’ claim of title thereto, and to have it adjudged that the defendants have no title or interest in the land or any right of possession, etc.…

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

This action was brought in the district court for Ramsey county for alleged breach of a covenant of seizin in a deed from defendants to plaintiff, and was tried, without a jury, by Brill, J., who ordered judgment for defendants, from which judgment the plaintiff appeals.

Plaintiff brought this action in the district court for Hennepin county, praying that defendant’s purchase of the lands described in the complaint at execution sale on a judgment against one Menden-hall (from whom the plaintiff derived title) be adjudged void, and the certificate of sale cancelled, on the ground that the judgment had been satisfied by sales of other property before the sale to defendant.

<p>Carrier — Eject ion of Passenger — Assault—Pleading and Proof — Variance. — The complaint alleges that plaintiff was a passenger on defendant’s train, and that the agents of defendant in charge of the train wil-fully, maliciously, forcibly, and violently, and while the train was running at a rapid rate of speed, kicked and ejected him from the steps of the car onto the ground, and under the cars, whereby he sustained personal injuries, for which he seeks damages. Held, that the cause of action thus pleaded was one in tort; the gravamen of th^- complaint being an intentional and personal assault and battery. The fact that the evi-deuce showed that plaintiff was a trespasser and not a passenger on the train (the wrongful assault being proved as alleged) constituted neither a failure of proof nor a material variance between the complaint and the evidence.</p>

Appeal by defendant from a judgment on the pleadings, entered in the district court for Hennepin county, pursuant to order of Lochren, J.

Appeal by defendant, sheriff of Otter Tail county, from an order of the district court for that county, Baxter, J., presiding, requiring him to pay over certain money to the plaintiff.

Plaintiff brought this action in the district court for Carlton county, for the abatement, as a nuisance, of a dam of defendants across Moose river, near the outlet of Moose lake, and for damages.

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

Appeal by defendants, supervisors of the towns of White Bear and Mounds View, in Eamsey county, from an order of the district court for that county, Brill, J., presiding, refusing a new trial.

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

, presiding, setting aside a judgment as to the applicant Harriet T. Hawkins, and giving her leave to defend the action. Her application was opposed, and this appeal is taken, by Wm. F. Sei-ier and W. 0. Musser, who, on February o, 1887, more than one year after entry of the judgment, purchased from the plaintiff a portion of the lands in controversy in the action.

<p>Vendor and Purchaser — Construction of Contract — Time to Perfect Title. — In a contract for the sale of real estate was this clause, “a reasonable time to be allowed said owner to perfect the title, should defects be found by said purchaser.” Held, that this did not give the vendor a reasonable time in which to obtain a title if he had none.</p>

Appeal by defendant from an order .of the district court for Bam-sey county, Kelly, J., presiding, refusing a new trial after a verdict . of $5,000 for plaintiff.

Appeal by plaintiff from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial after verdict for defendant.

Appeal by plaintiffs from an order of the district court for Henne-pin county, Hicks, J., presiding, granting a new trial.

Appeal by plaintiffs from an order of the district court for Hen-nepin county, Lochren, J., presiding, sustaining a demurrer to the complaint.

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

Appeal by defendants from an order of tbe district court for Hen-nepin county, Young, J., presiding, refusing a new trial.

Appeal by defendant from a judgment of the district court for St. Louis county, where the action (brought under the statute, to determine the defendant’s adverse claim to real property) was tried by jStearns, J.

<p>Chattel Mortgage — Certificate of Acknowledgment without Seal — Filing held Ineffectual. — Where a chattel mortgage purports to have-been acknowledged before a notary public, but the certificate of acknowledgment is not authenticated by a notarial seal, the filing of the instrument is not, under Gen. St. 1878, c. 39, § 3, any notice to subsequent purchasers or mortgagees in good faith. (Following the doctrine of former decisions.)</p> <p>Replevin — Alternative Judgment — Waiver of Judgment for Value. —In replevin the right of a party to an alternative judgment for the value of the property, if a return of it cannot be obtained, is exclusively for his own benefit. He may waive it, and take judgment merely for the-return of the property.</p> <p>Same — Special Damages — Value of Use of Mortgaged Chattel. — The-value of the use of personal property, as special damages for its detention, can only be recovered by one who has a right to such use. A mortgagee, after default in the mortgage, has a right to the possession only for the purpose of foreclosure or sale i*tder the mortgage, in order to satisfy the> debt secured by it, and not for the purpose of using the property.</p>

Appeal by plaintiff from an order of the district court for Henne-pin county, Young, J., presiding, refusing a new trial, the action having been dismissed at the close of plaintiff’s case.

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

Appeal by defendant from an order of the district court for Da'kota county, Crosby, J., presiding, overruling a demurrer to the eom--plaint.

In proceedings for grading Dale street in St. Paul, an assessment of $243.52 for the cost of the improvement was laid upon a tract of about 27 acres belonging to defendant. The assessment not having been paid, and the city having applied for judgment against the land, the defendant appeared and objected that the land was within its charter exemption from taxes and assessments.

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

Plaintiff brought this action in the district court for Hennepin’ county, to recover $268 as money received for his use by defendant-The answer alleged that on March 15, 1887, the defendant contracted’ in writing to purchase from one Merwin certain described real estate, for $4,000, of which $800 was then paid and the balance was-payable at later dates named in the contract; that on March 16, 1887,. the defendant, in writing, assigned to plaintiff a one-third interest-in the…

Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, refusing a new trial after verdict for plaintiff.

Appeal by the intervenors from a judgment of the district court for Fillmore county, where the action was tried by Farmer, J., without a jury. The notes and mortgage involved were made June 22, 1875.

Appeal by defendants from a judgment of tbe district court for Pine ■ county, where the action was tried by Crosby, J., a jury being waived.

Appeal by defendant from an order of the district court for Wi-nona county, Start, J., presiding, refusing a new trial. cited Walsh v. Hartford Fire Ins..Co., 73 N. Y. 5 ; Marvin v. Universal Life Ins. Co., 85 N. Y. 278 ; Hank-ins v. Rockford Ins. Co.', 70 Wis. 1; Gladding v. California, etc.. Ins. Ass’n, 66 Cal. 6; Kyte v. Commercial Union Assurance Co., 144 Mass. 43; Merserau v. Phoenix Mut. Life Ins. Go., 66 N. Y. 274; McIntyre v. Mich. State Ins.

Appeal by plaintiff from an order of the district court for Cottonwood county, Perkins, J., presiding, granting a new trial.

Appeal by defendant from an order of the district court for Carver county, Eclson, J., presiding, refusing a new trial in condemnation proceedings.

Plaintiff brought this action in the district court for Ramsey county, in March, 1886, against the devisees of the late Horace Thompson, (who died January 28, 1880,) to have a certain deed bearing date November 15, 1876, from plaintiff to one William Fry adjudged to be a mortgage, and given as security for a debt then owing from plaintiff to Thompson, and for an accounting and redemption.

Plaintiffs, keepers of a general store at Madelia, in Watonwan county, brought this action in the district court for Blue Earth county on an account for goods sold and delivered between February 1,1884, and December 2,1885. The defendant pleaded, among other things, the defence of unsealed weights and measures stated in the opinion.

Appeal by plaintiffs from an order of the district court for Henne-pin county, Hicks, J., presiding, refusing a new trial, the action having been' dismissed at the trial, on defendant’s motion, at the close of plaintiffs’ evidence.

Appeal by defendant from an order of the district court for. McLeod county, Echón, J., presiding refusing a new trial after verdict for plaintiff. *

These two actions were brought in the district court for Hennepin county, and by stipulation were tried together as one action, before Rea, J., and a jury. A verdict was rendered for each plaintiff, and the defendant appeals from an order refusing a new trial.

The defendants Frank Shaw and Harry Brannigan, being indicted in the district court for Ramsey county, interposed a general demurrer, which was overruled by Kelly, J., and thereupon the case was certified to this court, under Gen. St. 1878, c. 117, § 11.

Appeal by plaintiffs from a judgment of the district court for Hen-mepin county, entered pursuant to an order at the trial, by Hicks, J. granting defendant’s motion for judgment on the pleadings.

Proceeding in the district court for Hennepin county, by the Minneapolis & St. Croix Ry. Co., to acquire the right to cross at grade the tracks of the St. Paul, Minneapolis & Manitoba Ry. Co. The last-named company appeals from an order by Lochren, J., granting the petition and appointing commissioners.

..Plaintiff brought this action in the district court for Nicollet county, (under Gen. St. 1878, c. 66, § 34,) to recoy.er_damages_for injuries, sustained by his minor child, Yerne Twist, while upon a turn-table of the defendant. The complaint charges defendant with negligence in not locking or guarding the turn-table. At the trial, before Webber, J., the jury found a general verdict of $5,000 for plaintiff, and made the special findings recited in the opinion.

<p>Appeal — Discharge of Attachment on Bond Given. — An order discharg--ing an attachment, upon a bond given as security in place of the attachment, is appealable.</p> <p>Attachment — Bond for Discharge — Acknowledgment of Sureties — Discretion of Court. — A judge of the district court may, in his discretion, excuse compliance with a rule of court requiring a bond to be acknowledged by the sureties.</p> <p>Same — Remedy for Want of Acknowledgment. — If a bond, defective in the above particular, has been approved without the defect having been noticed, application should be made in the district court to have the bond acknowledged.</p>

Habeas corpus, the petition setting forth the facts stated in the opinion, and the writ being directed to EL G. Stordock, warden of the state prison.

This action was brought in the district court for Washington county, ;and tried by Crosby, J., (a jury being waived,) who ordered judgment .of $4,000 for plaintiff. A new trial was refused, and the defendant appealed.

Appeal by plaintiff from an order of the district court for Bamsey county, Simons, J., presiding, setting aside the service of a summons issued after judgment.

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

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, refusing a new trial after a verdict of $2,764 for plaintiffs.

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

Appeal by defendant from an order of the district court for Stevens ■county, G. L. Brown, J., presiding, overruling a demurrer to the complaint.

Appeal by defendants D. G. Rhoades and wife from so much of a judgment of the district court for Wadena county, Sleeper, J., presiding, as adjudged a lien upon and directed a sale of a certain lot in the village of Verndale.

Appeal by defendant from an order of the district court for Le Sueur county, Edson, J., presiding, overruling a demurrer to th& complaint.

Plaintiff brought this action in the district court for Dodge county, to compel the defendant to convey to him a certain farm in that county in specific performance of the agreement stated in the opinion. The action was tried by Buckham, J., who ordered judgment for defendant. The plaintiff appeals from an order refusing a new trial.

<p>Will — Undue Influence. — The fact that a person who had made two wills, dividing his property between his wife and his sister, within a few days after making the second, and after several days of very severe illness of which he died in a few hours, made another will revoking those made before, and leaving all his property to his wife, (no reason being apparent for the change in the disposition of his property,) is not, in the absence of any other evidence of undue influence, sufficient to require the issue of undue influence on the part of the wife to be submitted to the jury.</p> <p>.'Same — Evidence—Expert.—The question whether a change in a testator’s life-long purpose to provide for a sister, occurring upon his death-bed, and without apparent motive or reason, and unexplained, indicates any change in his intellect, is not one for the opinions of experts.</p> <p>■Charge of Court — General Exception. — An exception to the charge of the trial court held too general. Divers unimportant exceptions disposed of.</p>

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., presiding, granting a new trial. The action ■was replevin for a colt, the defence title in defendant by purchase from one Wright, a purchaser from plaintiff.

Appeals by Eliza Fern, as executrix of John Fern, deceased, from two judgments of the district court for Dodge county, Buckham, J., presiding, affirming an order of the probate court of the same county vacating the decree of distribution of the estate of John Fern, and directing the executrix to pay certain judgments in favor of Jacob Leuthold and others, upon whose application the order was made, and who are respondents in this appeal.

Appeals by the Minneapolis & St. Louis Ey. Co., and the St. Paul, Minneapolis & Manitoba Ry. Co. from a judgment of the district court for Hennepin county in mandamus proceedings brought by the city of Minneapolis and tried by Lochren and Rea, JJ.

On July 7, 1887, the railroad and warehouse commission made an order reciting: “Whereas all railroad companies owning or operating terminal or switching facilities at or within the city of Minneapolis, with the exception of the Chicago, Mil. & St. Paul Ey.

Appeal by plaintiff from an order of the district court for Eamsey . county, Simons, J., presiding, refusing a new trial, the action having been tried by I. Y. D. Heard, Esq., as referee, and judgment ordered ,for defendant.

Appeal by defendants from a judgment of tbe district court for Fillmore county, where the action was tried by Farmer, J., without a jury. The defendant Bell was road overseer and the defendant Olson was employed by him.

<p>Appeal by defendant from a judgment of the district court for Ramsey county, where the action was tried by Simons, J.</p>

Plaintiff brought this action in the district court for Hennepin county, to restrain the defendant Robinson, a judgment creditor, and the other defendant, (the sheriff of the same county,) from selling on execution certain real estate in Minneapolis, alleged by plaintiff to be part of his homestead, and to set aside a levy already made. The action was tried bjilea, J., who ordered judgment for plaintiff, which was entered, and the defendant Robinson appealed.

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

Appeal by plaintiff from a judgment of the district court for Bam-sey county, where the action was tried by Brill, J. Besides a prayer for specific performance, the complaint asked “that in ease for any reason a conveyance cannot be made, the plaintiff have such indemnity by way of damages as the nature of the case may require, with' such other and further relief,” etc.

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

Appeals by Max Segelbaum, from the judgment in the first action, granting a divorce, and from the judgment in the second action refusing a divorce, the actions having been tried together before Rea, J.

Plaintiff brought this action in the district court for Brown county, to recover possession of a strip of land 100 feet in width across section 16, township 110„in that county, occupied and used by defendant for its railway, together with damages for the withholding of possession by defendant. The defendant, which has succeeded to the rights, etc., of the Transit Eailroad Co., pleaded the statutes mentioned in the opinion.

Action to recover possession of personal property, brought in the-district court for Freeborn county against the defendant Larson, sheriff of the county, with whom the other defendants, judgment creditors-of one Frederick Tunell, were impleaded.

Action to determine adverse claims, brought in the district court for Hennepin county. Counterclaim for specific performance of an alleged contract which is set forth in the opinion. Trial by Young, J., and judgment ordered for plaintiff, who appeals from an order granting a new trial.

Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., presiding, overruling his demurrer to the complaint.

The defendant was tried and convicted in the district court for Ramsey county, before Kelly, J., on an indictment for rape. A motion for a new trial was made and denied, and defendant was sentenced to 15 years’ imprisonment in the state prison, from which, judgment he appeals.

Appeal by defendant from an order of tbe district court for Winona • county, refusing a new trial after a trial by Start, J., a jury being •waived.

Plaintiff brought this action in the district court for Scott county to recover for injuries sustained by reason of his being violently thrown from one of defendant’s trains (on which he alleged he was a passenger) by one of defendant’s brakemen. At the trial, before Eclson, J., there was evidence tending to prove these facts: On the night of July 10, 1886, a freight train of defendant stopped at New Prague, going north to Minneapolis.

<p>Appeal by plaintiffs from an order of the district court for Chisago county, Crosby, J., presiding, sustaining a demurrer to the complaint. The action was brought to establish and enforce a lien for materials furnished for and used in the construction of a school-house.</p>

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

Plaintiff brought this action in the district court for Dakota county, upon a certificate of insurance on the life of one Nancy H. Boyer, payable to her daughter, the plaintiff. A demurrer to the complaint ■ was overruled, and plaintiff entered judgment.

<p>Summons — Impeachment of Officer's Return. — The return of an officer of the service of a summons is not conclusive upon the defendant, but may be impeached by affidavit, upon motion or other direct proceedings in the action to set aside the judgment on default.</p>

Appeal by defendants from a judgment of the district court for St.. Louis county, where the action was tried before Stearns, J., and a jury, a verdict rendered for plaintiff, and a motion for a new trial denied. Exhibit A, mentioned in the opinion, is as follows; March 15, 1887.

After the decision of a former appeal, (reported, 37 Minn. 364,)' sustaining the complaint as against the demurrers of the defendants,the cause was remitted to the district court for Ramsey county, on-November 4, 1887. On November 14, 1887, the defendants caused to be served upon-the attorneys for the plaintiff their answer to the complaint. This-answer the plaintiff refused to receive, upon the ground that the time to answer had expired and the defendants were in default.

Plaintiff brought this action in the district court for St. Louis county to determine the adverse claims of the defendants to the S. E. J of S. W. ¿ of section 6, town 50, range 13, in that county. At the trial, before Stearns, J., it was conceded that defendants were owners of the land unless their title had been divested by the tax-judgment sale of forfeited lands in 1881, under the act of that year, (Laws 1881, c. 135,) through which sale plaintiff claimed title.

Appeal by defendant from an order of the district court for Morrison county, Baxter, J., presiding, sustaining a demurrer to the answer in an action on promissory notes.

<p>Indecent Assault — Child under 10 Tears of Age — Consent.—Under section 245 of the Penal Code, the taking of indecent liberties with or on the person of a female child under the age of 10 years, without regard to whether she consents to the same or not, constitutes an assault.</p> <p>Same — Conviction for Less Offence Included in That Charged. — Under an indictment for an assault with intent to carnally know and abuse the child, the defendant may be convicted of taking indecent liberties with her person, if within the allegations of the indictment.</p> <p>Same — Verdict.—A verdict of “guilty of an indecent assault” sufficiently describes the offence.</p>

Plaintiff (a corporation) brought this action in the district court •for Polk county on defendant’s acceptances of two 'orders of $300 each, drawn on him by F. St. Germain, and directing payment “out •of such funds as you may collect from N. Brosseau,” each acceptance being as follows: “Accepted, payable by myself or assigns from the •proceeds of notes made by N. Brosseau to me, and due December 1883, 1884 and 1885, when collected, but am not responsible for the •collection…

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

Appeal by defendants from an order of the district court for Hen-nepin county, Start, 7., presiding, (before whom the ease was tried,, acting for a judge of the 4th district,) refusing a new trial on the condition, accepted by plaintiff, that the verdict be reduced from, $280.11 to $205.11.

Appeal by the Minneapolis & St. Louis By. Co., impleaded with the Northern Pacific B. Co., from an order of the district court for Bamsey county, Brill, J., presiding, overruling its separate demurrer to the complaint.

In this action, brought in the district court for Benton county, judgment for defendants on the pleadings was ordered by Baxter, J., from which judgment the plaintiff appeals.

Appeal by plaintiff, administrator of the estate of Antoine L’Heu--reux, deceased, from a judgment of the district court for Bice county, _Buckham, J., presiding, affirming an order of the probate court.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, denying his motion to set aside a judgment, (among other grounds for want of jurisdiction,) and for leave to answer.

Appeal by plaintiffs from a judgment of tbe district court for Douglas county, where the action was tried by Collins, J.

Appeal by plaintiff from a judgment of the municipal court of St. Paul, affirming that of a justice of the peace. The action was for goods sold, and one defence was payment.

Appeal by defendants from a judgment of the district court for Hennepin county, where the action was tried by Young, J. The plaintiffs sued to .establish and enforce against land owned by defendant Eyan a lien for materials furnished to one Putnam for a building which Putnam was erecting on the land under contract with Eyan.

Appeal by defendant from a judgment of the district court for Washington county, where the action was tried by McCluer, J., without a jury.

Appeal by defendant from a judgment of the municipal court of St. Paul. The action was brought by plaintiffs, real-estate agents, for $200 as commission on the sale mentioned in the opinion.

Appeal by defendant from an order of the district court for Hen-nepin county, refusing a new trial, after a trial before Young, 3., and a jury, and verdict directed for plaintiff.

Plaintiff, claiming under the mortgage from one Isaac Strolberg mentioned in the opinion, brought this action in the district court for Otter Tail county to recover the value of 275 bushels of'wheat talien by defendant, as sheriff of the county, on execution on a judgment against the mortgagor. At the trial before Baxter, J., the plaintiff had a verdict, and he appeals from an order granting a new trial.

Appeal by defendant from a judgment of the district court for Bam-sey county, where the action (brought to recover the premium for a policy of insurance against loss by explosion of a steam boiler) was tried before Brill, J., and a verdict directed for plaintiff.

Action to recover a balance of $166.15 and interest, on two promissory notes. The defendant pleaded as a counterclaim that the notes were given for the price of a harvester sold to him by plaintiff (a corporation) with a warranty, which defendant alleges was broken, to his damage in the sum of $765.

Appeal by defendant from the order of the district court for Sib-ley county Eclson, J., presiding, which is stated in the opinion.

Appeal by defendant from an order of the district court for Becker county, Sleeper, J., presiding, (before whom, acting for a judge of the 14th district, the trial was had,) refusing a new trial.

<p>Appeal by Ida C. Stowell from an order of the district court for ' Eamsey county, Brill, J., presiding, setting aside an award.</p>

Appeal by defendant from an order of the district court for' Hen-nepin county, Searle, J., presiding, (before whom, acting for a judge of the 4th district, the action was tried,) refusing a new trial after verdict for plaintiffs.

Appeal by defendant Bartleson, (impleaded with Henry C. Brack-ett,) from a judgment of the municipal court of Minneapolis, in an action on the note described in the opinion.

<p>Limitation of Actions — Acknowledgment — Indorsement on Note.— An indorsement made and signed by the debtor on a promissory note, after it lias become barred by the statute of limitations, in these words, “I hereby acknowledge the indebtedness of this note, ” takes the note out of the operation of the statute.</p> <p>Executor — Appointment by Clerk of Court (under Iowa Statute)— Presumption. — By the laws of Iowa, exclusive jurisdiction of wills, and of the appointment of executors, etc., was vested in the circuit courts, and the clerk was authorized in vacation to appoint executors. Held, not necessary to sustain an appointment by the clerk to show affirmatively that it was done in vacation.</p>

Appeal by defendant from an order of the district court for Freeborn county, Farmer, J., presiding, denying her motion to have the complaint made more definite and certain.

<p>Specific Performance — Indefinite Description. — A description of land, in an agreement to convey, as “ five acres, lot 3, sec. 23, ” etc., there being nothing to show what five acres is intended, is not a good description, and the defect cannot be supplied by parol. Sanborn v. Wookin, 20 Minn. 163, (178,) distinguished.</p>

Two proceedings in the district court for St. Louis county, in each of which John D. Gill applied for an order requiring the respondent to pay over to him- the moneys received by him, as sheriff, on executions issued on judgments recovered against one Haskins and assigned to Gill. In each case the application was denied by Stea/rns, J., and judgment for costs was ordered and entered in favor of the sheriff, from which order and judgment Gill appeals.

Appeal by defendant from an order of the district court for Eam-sey county, Brill, J., presiding, denying his motion to set aside the service of the summons. The ground of the motion was that the service was made by a person other than the sheriff or his deputy.

Appeal by defendant Johnson (impleaded with Seth Trowbridge and wife and others) from an order of the district court for Waton-wan county, Severance, J., presiding, overruling his separate demurrer to the complaint.

In the year 1886, certain lands of the defendant, which had not theretofore been assessed for taxation, were assessed for taxes for prior years, some for each year from 1869 to 1886, others from 1870, from 1881, and from 1878, respectively, to 1886, each parcel being assessed for each year subsequent to its conveyance by the state to the Winona & St. Peter E. Co. And in each case there were added to the taxes assessed interest and penalties at the statutory rate.

Ejectment for land in Faribault county, .brought in the district court for that county, and tried by Severance, J., (a jury being waived,) who ordered judgment for defendants upon findings of fact in substance as follows: One Archibald McDonald, the common source of title, owned the property on January 10, 1877, on which day one Thomas C. Smales recovered and docketed a judgment against him in Faribault county.

Appeal by defendant from a judgment of tbe municipal court of Minneapolis. Tbe clause of the lease on which tbe question of tbe erasure of the word “second” arises is as follows: “To have and to bold said premises for the full term of five years from and after the 1st day of August, 1882, with privilege of five years longer, after second five years tbe rooms every five years to pro rate higher or lower as per rooms on third floor Hennepin avenue front.”

<p>Certiorari, on the petition of Edward Lemont.</p>

Action brought in the district court for Sibley county, by plaintiff as administrator of Timothy Ryan, to recover for services rendered by plaintiffs intestate to the defendant corporation. The summons was served September 17, 1887, on one Thomas Bowser, the defendant’s treasurer, and on October 10, 1887, on proof of service and no answer, etc., judgment was entered for $1,653.52.

Plaintiffs, on September 29, 1885, contracted in writing with one Farter to erect for him, on certain premises in St. Paul, a brick store building at the price of $9,441. At the same time they executed to him a bond with sureties, in the sum of $10,000, for the use of all persons who might do work or furnish material pursuant to their contract, and conditioned for the payment of all claims for such work or materials as they should become due.

This action was brought in the district court for Hennepin county, and was tried by Collins, J., (acting for a judge of the 4th district.) Defendant appeals from an order refusing a new trial.

Appeal by defendant from an order of the district court for Rock county, Perkins, J., presiding, vacating a judgment, and directing “that this action be and the same is, pursuant to the stipulation of the parties, dismissed without costs to either party.” The stipulation is recited in the opinion.

Appeal by Leopold Lowenstein, a creditor, from an order of the district court for Washington county, McCluer, L, presiding, denying his application for a distribution of the insolvent’s estate among his creditors without the filing of releases, and ordering distribution upon the filing of the statutory releases.

Appeal by defendant Grant, impleaded as an alleged copartner of the defendant C. D. Vernon, from an order of the district court for Hennepin county, Hicks, J., presiding, refusing a new trial after verdict for plaintiff.

Plaintiff brought this action in the district court for Stearns county, to recover a balance due for timber cut under a stumpage contract made with the appellant Megins and the other defendants, S. F. Crockett and John J. Shotwell, on May 5,1881.

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

Appeal by defendant from an order of the district court for Mower county, Farmer, J., presiding, refusing a new trial. The action was for the destruction of hay and grass on plaintiff’s land by fire alleged to have been caused by a locomotive of defendant.

<p>National Banks — Attachment in State Court. — The.federal statutes (U. S. Bev. St. § 5242) prohibit the issuance of writs of attachment by the state courts before final judgment against national banking associations or their property.</p> <p>Same. — An attachment and seizure of property made by virtue of a writ so issued and served, is illegal and void, and no jurisdiction over theDersor. or property of such an association is obtained thereby.</p> <p>Same — Attachment in Another State — Injunction. — Conceding that, upon a proper showing, plaintiff, a national banking association organized and doing business in the state of Minnesota, is entitled to an injunction pendente lite, restraining defendant, also a resident of this state, from prosecuting an action against this plaintiff in one of the courts of the state of New York, the order appealed from, refusing a temporary injunction, was properly made, because plaintiff’s complaint herein expressly shows that the New York court has not and cannot obtain jurisdiction of plaintiff, either by personal service of a summons, or by attachment of its property.</p>

Appeal by defendant from an order of the district court for Hen-nepin county, Young, J., presiding, overruling a demurrer to the complaint.

Action for conversion of 16 cords of green maple wood of the value ■of $64. Appeal by defendant from an order of the district court for Le Sueur county, Echón, J., presiding, refusing a new trial.

Action to determine adverse claims to vacant land, brought in the district court for Hennepin county. The complaint alleges that ,on May 26, 1887, Harmon K. Pratt, Hugh H. Miller, and three other persons named, were the owners of the lots in question, and on or about that day conveyed them by warranty deed to the plaintiff, who has ever since been and now is owner in fee.

Action for injuries sustained by plaintiff by defendants’ negligence in operating a steam-threshing machine. At the trial in the district court for Sibley county, before Eclson, J., the defendants had a verdict, a new trial was refused, and plaintiff appealed.

Appeal by plaintiff from a judgment of the district court for Swift county, where the action was tried before John II. Broion, J., and a dismissal ordered. The action was to recover the value of a trunk and its contents.

Appeal by defendant in each cáse from a judgment of the district court for Murray county, Perkins, J., presiding, directing the issue of a peremptory writ of mandamus.

Appeal by plaintiffs from an order of the municipal court of Minneapolis, refusing a new trial, after trial by the court without a jury.

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

Appeal by defendant from an order of the district court for Sibley county, Edson, J., presiding, overruling its demurrer to the complaint.

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

Actions to enforce mechanics’ liens, brought in the district court for Ramsey county. In the first case, (Meyer v. Berlandi, begun in 1887,) the plaintiff alleged the performance of labor and furnishing of the materials by plaintiff, as subcontractor, in the construction of a building which Wegmann & Kleimannwere erecting under a contract with defendant William Berlandi, on land belonging to him in the city of St. Paul.

Plaintiff, alleging herself to be owner in fee of an undivided one-third of certain described lands in Ramsey county, as widow of James Roach, brought this action in the district court for that county, for partition and for an account of rents and profits. At the trial the action was dismissed by Brill, J., at the close of plaintiff’s case. She appeals from an order refusing a new trial.

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

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

Appeal by defendant from an order of the district court for Carver county, Edson, J., presiding, refusing a new trial after verdict for plaintiff.

Appeal by plaintiffs (assignees of J. F. Seiberling & Co.) from an order of the district court for McLeod county, Eclson, J., presiding, refusing a new trial after verdict for defendant.

Appeal by defendant, from an order of the district court- for ’Scott county, Eclson, J., presiding, refusing a new trial after a trial by the court.

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

Appeal by plaintiff from an order of the district court for Douglas county, Collins, J., presiding, refusing a new trial after verdict in its favor for $79.25.

<p>Taxes — Void Sale — Rights of Purchaser in Possession. — The holder of the state’s lien on real estate for taxes, acquired by purchase of the real estate at a void tax sale, cannot, independent of the “occupying claimants’ law,” defend his possession of the real estate upon the lien, even though he enter with the acquiescence of the owner. His rights are not like those of a mortgagee in possession.</p> <p>Same — Occupying Claimant — Interest.—Under the “occupying claimants’ law,” (Gen. St. 1878, c. 75, § 16.) the interest to be allowed for taxes so-satisfied is 7 per cent, per annum. The sum which the judgment in favor of the owner requires him to pay the occupant, under section 17, as a-condition to the issuing of execution, does not bear interest.</p>

Appeal by plaintiff from an order of the district court for McLeod county, Eclson, J., presiding, denying its motion for a new trial of the issues between it and the defendant David L. How.

Defendant was tried and convicted in the district court for Me-'Leod county, before Edson, J., on an indictment for assault in the .second degree, upon Veronica Henn, (who was his wife.) He appeals from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Henne-pin county, Rea, J., presiding, denying a motion that the answer be stricken out as sham, and for judgment.

Appeal by plaintiff from an order of the district court for Stearns county, Collins, J., presiding, refusing a new trial after a verdict for defendants directed by the court.

Appeal by defendants from an order of the district court for Sibley county, Edson, J., presiding, denying their motion to set aside a judgment of sale in a partition suit and all proceedings thereon.

Appeal by defendant from an order of the district court for Benton •county, Sejrle, J., presiding, refusing a new trial. One ground of the motion was that the verdict was contrary to the instructions, to which the court, in deciding the motion, answered that “a ‘ verdict contrary to law ’ does not mean contrary to the law as given by the court, but contrary to the law applicable to the facts of the case.

Plaintiff brought this action in the district court for Scott county to recover for the taking and conversion by defendants of a quantity of wheat and oats. The defence was that the grain taken belonged to defendant Theodore Heartz, the plaintiff’s husband, and that the other defendants acted under his directions. At the trial, before Eclson, J., the plaintiff had a verdict. The defendants appeal from an order refusing a new trial.

Plaintiffs brought this action in the district court for Hennepin county, to recover possession of household furniture mortgaged by defendant Charles Nord to Joseph Williams, who assigned the mortgage to plaintiffs. - At the trial, before Rea, J., a verdict was directed for plaintiffs. The defendants appeal from an order refusing a new trial.

Appeal by defendant Wm. F. Markoe from an order of the district .court for Ramsey county, Brill, J., presiding, overruling his demurrer to the complaint. The complaint alleged that on October 1, 1883, ■the defendant made and delivered to one Frederick W. Benson his . certain promissory note, set out as follows: “ $2,000.

Appeal by defendants, A. L. Sump and A. J. Mullen, from a judgment of the district court for Hennepin county, and from an order refusing a new trial, after a trial before Rea, J., and a jury.

Plaintiff brought this action in the district court for Le Sueur county, to recover damages for breach by defendant of an alleged written contract of employment of plaintiff as a teacher. The answer denied the mailing of any contract, and denied plaintiff’s legal qualification and license as a teacher. At the trial before Edson, J., the plaintiff had a verdict. Defendant appeals from an order refusing a new trial.

Appeal by defendants (impleaded with A. T. and L. S. Eand) from a judgment of the district court for Hennepin county, where the cause was tried by Young, J., without a jury.

Appeal by defendant from a judgment of the district court for Hen-nepin county, and from an order refusing a new trial, the action having been tried by Hicks, J., without a jury. A former appeal is reported, 36 Minn. 57.

Action in tbe municipal court of Minneapolis, to recover for services in procuring for defendant a loan on certain real property.

Plaintiffs brought this action in the district court for Ramsey ^county, to recover the sum of $250, paid by them upon the making of the contract set out in the following memorandum made part of the complaint: “St. Paul, Minn., March 9, 1886. “Received of C. H. Benedict $250 as earnest-money on account of purchase of the following described real estate, (describing certain land,) sold for the sum of $8,000, on the following terms of payment; all cash but mortgage of $2,725,…

Plaintiff brought this action, in October, 1887, in the municipal court of Winona, to recover for goods sold and delivered. The answer admitted plaintiff’s cause of action, and pleaded as a counterclaim a balance alleged to be due upon an account stated between plaintiff and defendant. To this counterclaim the plaintiff pleaded payment and the statute of limitations. The action was tried by the court, who allowed defendant’s counterclaim and directed judgment accordingly.

Henry P. Bird and Robert W. Bird, engaged in business as partners, made an assignment for the benefit of their creditors containing the provisions recited in the opinion. The assignee, D. J. Shaw, having qualified and engaged in the execution of the trust, made application to the district court for Waseca county for an order requiring all creditors who desire to participate in the distribution of the estate to file releases of their claims.

Appeal by defendant from an order of the district court for Dodge county, Buckham, J., presiding, refusing a new trial, after a verdict-of $1,750 for plaintiff.

The plaintiff, as receiver appointed in proceedings supplementary to an execution, brought this action in the district court for Henne-pin county, to set aside certain conveyances alleged to have been made by the judgment debtor to the defendant Byrnes to defraud creditors. Defendants appeal from an order by Lochren, ■!., overruling their demurrer to the complaint.

Plaintiff brought this action in the district court for Grant county, to recover for the alleged conversion of wheat by the defendant. After trial before C. L. Brown, J., and a jury, and verdict for plaintiff, the court, being of the opinion that the case is controlled by Kelly v. Seely, 27 Minn. 385, granted a new trial, from which order the plaintiff appeals.

Plaintiff brought this action in the municipal court of Minneapolis to recover commissions as defendant’s agent in the sale of certain real estate.

<p>Quo warranto — Right of Foreign Corporation to Carry on Business. Quo warranto helé to be a proper proceeding to try the right of a for-' eign corporation to carry on its corporate business in this state.</p> <p>Same — Review of Action of State Officers. — The legal propriety and effect, of the action of officers of the executive department of the state may be-determined by the courts when the same are brought in question in causea requiring judicial action.</p> <p>Same — Insurance Commissioner. — The insurance commissioner, in issuing certificates allowing foreign corporations to do business in this state, acts-in a ministerial capacity. His determination is not judicial and final.</p> <p>Foreign Corporations — Comity — Retaliatory Statute — Gen. St. 1878,. e. 34, § 269. — In accordance with the policy of our state, and of the interstate law of comity, foreign insurance corporations are allowed to carry . on business in this state. A foreign corporation, which has complied with our laws, should not, as a measure of retaliation, by force of our retaliatory statute, (Gen. St. 1878, c. 34, § 269,) be excluded from doing business-here, upon the ground that the laws of the state where such foreign corporation was created would exclude corporations of this state from doing business there, unless it is clearly apparent that such is the effect of the; foreign law. The proper effect of the statutes of New York in this particular being considered doubtful, and the manner of their practical administration being undisclosed, a judgment of ouster against the respondent, a New York corporation, refused.</p>

Appeal by plaintiff from a judgment of the municipal court of Minneapolis, where the action was tried by the court without a jury, and judgment directed and entered for defendant.

The plaintiffs, who are heirs of James C. Miller, deceased, brought this action in the district court for Hennepin county, to recover upon a policy of insurance issued by the defendant to the deceased, and payable to “his legal heirs.” Upon the trial before Hicks, J., and a jury, the action was dismissed on defendant’s motion. Plaintiffs appeal from an order refusing a new trial.