Volume 4 — Minnesota Reports

The complaint states that the Defendant first made a general assignment of his property to the Defendant St. Oyr, who, for the purpose of having the trust duly administered, and to get rid of the trust, conveyed the property without consideration to the Defendants Olivier & Yervais.

This was an action to enforce a mechanics’ lien against certain property described in tbe complaint as follows : “ Block number eleven (11) in tbe Town of Cannon City, according to tbe recorded plat thereof,” without stating that said block did not exceed forty acres, or that it was a village lot not exceeding one acre. Tbe same description was given in the “Petition or claim for Lieu,” which was filed in pursuance of the act of 1855.

WRIT or ERROR TO THE DISTRICT COURT 03? DAKOTA COUNTY. Points and authorities of Plaintiff in Error. lsi. — A conveyance cannot be set aside in a collateral proceeding; and when a Defendant in ejectment does not deny the title of the Plaintiff, nor allege title in himself, nor any other party under whom he claims, the Plaintiff should recover judgment on the pleadings and proof. 2d. — The sale of the mortgaged premises and the foreclosure of the mortgage was regular, and…

Points and authorities on behalf of Appellant. Fvrst. — The complaint does not state facts sufficient to constitute a cause of action.

The action was brought by the holder of a note, against the makers and endorser thereof.

Points and authorities of Appellant. I. The Court below trespassed upon, the province of the jury in delivering its charge, in the language of the case, folio 62, and the jury would be likely to be misled thereby. The vendor continued in possession of the property sold, and used it as his own, and offered to trade and traffic with it, and thereby deceived and defrauded others.

WRIT OP ERROR TO THE DISTRICT COURT OP HENNEPIN COUNT'S?. Points and authorities of Plaintiff in Error. Fi/rst. — That tbe Court erred in giving judgment in favor of said Lennon and against tbe Plaintiff Culbertson. Because, 1 st._ — The answer of Defendant setting up a supposed counter claim, does not set np a cause of action in favor of Defendant and against tbe Plaintiff, and wholly fails to state facts sufficient to constitute a cause of action.

This action was founded upon the claim of Edward F. Parker vs. The Board of Supervisors of Dakota County, for his salary as District Attorney for the years 1859-60. The Board refused to allow the claim, and the Plaintiff appealed. The facts were agreed upon and submitted to the Judge of the District Court, who sustained the action of the Board and refused to allow the claim. The Plaintiff reviews here by writ of error. Points and authorities of the Plaintiff in Error.

APPEAL PROM THE DISTRICT COURT OP RAMSEY COUNTY Points and authorities of Appellant. I. A vendor of real estate, or of any interest therein, has a lien thereon for the purchase money. Willard’s Eq. Ju., ch. 7, p. 443, and authorities there cited; Kent’s Com., vol. 4,p. 155; marginal p. 152, and authorities there cited; Adams’ Eq., p. 284; marginal p. 128; Hallock et al. vs. Smith et al., 3 Barb. S. C. Rep., p. 267; Bradley vs. Bailey, 1 Barb. Ch. Rep., p. 152. II.

Points and. authorities of Appellant: First. — The complaint contains no cause of action. The action is brought to recover, as Plaintiff alleges in his complaint, surplus money, and the complaint does not show that there is any surplus money.

APPEAL PROM TUB DISTRICT COURT 01 IIENNEPIN COUNTY. Points and authorities of Appellants.

This was an application for a peremptory writ of mandamus, by the Treasurer of Ramsey County, against Charles A. Morgan, City Treasurer of the City of Saint Paul, requiring him to deliver up the sale books and records of tax sales for lands sold for taxes in said city, for delinquent taxes, for the years 3852 to 1860, inclusive. The District Court granted the writ, and the Defendant appealed.

Points and authorities of Plaintiff in Error. First. — The Court below erred in entertaining jurisdiction of the proceeding under objection as interposed by counsel of tbe Plaintiff in Error. Vide Chap. 6 Rev. Stat.; found in Comp. Stat. 150 and 151; also Compiled Stat. pp. 479, 480, Sec. 19.

Points and authorities for Plaintiffs in Error: First. — The motion to dismiss tbe writ of error must be denied. The fact that the judgment is satisfied of record affords no ground for a dismissal of the writ of error. The Statute provides for a complete restitution in this court of all rights lost by the erroneous judgment of the court below. R. S. p. 621, Sec. 8. The payment in the case was not voluntary, but by virtue of the judgment of a court.

This was an action for work and labor done, etc., under contract with a copartnership. The evidence disclosed that the Plaintiff was requested to do the work by one of the Defendants, “ and they would pay me what was right for picking up and rafting, and when Sam.

The cause of action is founded upon a promissory note, (copied in the opinion of the Court,) upon which the makers were sought to be held individually responsible. The record presents a mass of evidence tending to show the intention of the makers to contract in an official capacity, and to carry notice thereof to the Plaintiff. Yerdict for the Defendants, and motion for a new trial overruled. Plaintiff appealed. Points and authorities of Appellant.

It appears from tbe complaint that the Defendants Hoyt and Burns had agreed verbally, with one Thorp, to deed him a certain parcel of land, upon his improving the same to amount of $500.

This was an action in Replevin, to recover certain goods, etc., the Defendants below justifying the taking, under an execution against the property of one Frederick Luhrsen, and alleging that the property taken was his property. The Plaintiff’s Reply was simply a general denial of the allegations of the answer.

The complaint was upon a promissory note for $5,450. The Defendant demanded an assessment of damages, and after-wards demurred to the portion of the complaint quoted therefrom as follows : “ The Plaintiff further shows that the interest on the said sum loaned by him to the said Plaintiff, viz: the sum of five thousand dollars was computed in the same at the contract rate, and by mutual agreement of the said parties, of three per cent, per month for the said space of three…

Points and authorities of Plaintiffs in Error : First. — There is error in the rendition of judgment below? in that no proper service of the summons was had in said action, and no appearance of the said Defendants in said action. Revised Statutes of Minnesota, page 539, Sec. 54; 5 Howard P. R. 342.

<p>WRIT OF ERROR TO THE DISTRICT COURT OF RAMSEY COUNTY.</p>

<p>ERROR TO THE DISTRICT COURT OE RAMSEY COUNTY.</p>

<p>ERROR TO DISTRICT COURT OR RAMSEY COUNTY.</p>

<p>ERROR TO DISTRICT COURT OP RAMSEY COUNTY.</p>

Points and authorities for Plaintiffs in Error: Fi/rst. — The District Court erred in holding the said mortgage sale was regular and the notice thereof good.… Held: so annulled tbe first sale as to leave tbe party in tbe same condition as though no sale bad been made, its effect would be to destroy tbe whole, as it cannot be good in part and bad for tbe residue. Yet it stands good for that part sold. Third. — A sale under a power can only be made of tbe same parcel once. 1.

The Court Commissioner of the County of Hennepin, before whom the original disclosure of the garnishees was made, ordered them to hold in their hands all sums due from them to the Defendant'McNeil, until the further order of the Court. The District Attorney for the county afterwards moved to set aside the proceedings under the garnishee summons, which motion was granted. The Plaintiff appealed from the order granting the motion. Points and authorities of Appellant.

WRIT or ERROR TO THE DISTRICT COURT OE RAMSEY COUNTY. Points and authorities of Plaintiff in Error. The Court below erred in refusing the motion of the Defendant below to set aside the assessment of damages. See Marston vs. Talcott, Sup. Court Minn., Jan. T. 1860. Points and authorities of Defendant in Error.

WRIT or ERROR TO THE DISTRICT COURT OR NICOLLET COUNTY, SIXTH JUDICIAL DISTRICT. Points and authorities of Plaintiffs in Error : Ti/rst. — The Court erred in allowing a decree upon the pleadings, because : 1st. — -The Defendant John Johnston had a right to defend both because he was made a Defendant, and on account of his covenant of warrantee, and did answer.. 2d. — The answer of John Johnston makes an issue of fact.

The Respondent Davis, having the title in fee to certain lands, under Warranty Deeds, and which lands were subject to two outstanding mortgages given by the Respondent’s grantor, purchased, and took an assignment of the senior mortgage, “ with intent,” (as he alleges in the complaint for the foreclosure thereof,) “ to hold the same as the first lien and charge upon the land.” The answer, without denying this intent, admits the purchase, etc., but sets up certain facts…

Points and authorities of the Appellants : Fwst. — That the Judge did not err in permitting the Plaintiff to give in evidence on the trial in the court below, tbe declarations and admissions of Horace K. McKinstry, one of the Defendants, made some time after tbe execution and delivery of tbe assignment, as proof of the intent with which tbe assignment was made.

Points and authorities of the Appellant: First. — The value of the use of the barge was the proper measure of damages, and it was proper to ask the question, What was such use worth ? See 1 Cowen & Hill notes (2d Ed), 760, and eases cited, Sedgewick on Damages, 592; Joy vs. Hopkins, 5 Denio, 64; Bral vs. Slagler, 23 Wend. 354.

The Plaintiff having obtained judgment and caused execution to be issued, which was returned unsatisfied, obtained an order from Judge Palmer for the Defendant to appear and answer concerning his property. The Defendant appeared .and moved to dismiss or vacate the order, which motion was denied. Defendant then offered to read certain affidavits, the reading of which being objected to the objection was sustained. An order of reference was then made.

Complaint and answer, and judgment for Plaintiff on motion on the pleadings. The complaint alleges a partnership of Plaintiffs and also of Defendants, in June, 1856 ; a sale and delivery of goods by Plaintiffs to Defendants at that time; a part payment; and neglect and failure to pay the balance.

APPEAL PROM THE DISTRICT COURT OP ÍTLLM0RE COUNTY. Action for libel. Verdict for Plaintiff. Motion by Defendant in arrest of judgment, and for new trial, on the ground that tbe complaint does not contain facts sufficient to constitute a cause of action. Motion granted and appeal from that order.

The following ground of Error in the Points of the Appellants’ Counsel, was the only one passed upon in the Opinion - of the Court. The Rules expressly intend that more than one person may be named as commissioners, and require tire fact to be certified if all of the commissioners do not attend, &c. Vide Rules 12 and 13, District Court.

APPEAL PROM THE DISTRICT COURT OP HENNEPIN COUNTY.' Points and antliorities of Appellants : Fi/rst. — Until the Plaintiff proved some title other than naked possession of the property, the attachment in Yandenhurg & Co. vs. Sholl & Atwood justified the Sheriff and Deputy in attaching the property on April 27th, 1858, without any proof that Yanderhnrgh &Co., were creditors of Sholl & Atwood; and the levy vested a title in the officer against every person not showing title. 6…

Points and authorities of the Appellant: - JEvrst. — 1. Depositions taken on stipulation of Counsel are only admissible when taken pursuant to such stipulation. Stat. Min. Sec. 27, p. 678. 2. The authority to take depositions of witnesses whether conferred by statute or by stipulation of Counsel, being in derogation of the Common Law, must be strictly pursued. 1 Peters 355, 5 Conn. 324, 5 Mass. 220, 4 Phillips on Ev. Part 2, 672, and cases cited, 23 Wend. 41. 3.

This was an application to set aside a sale made by the Sheriff of Bamsey county, under a power of sale contained in a mortgage. Default having been made in the conditions of the mortgage, the same was foreclosed by advertisement under the Statute.

The Defendant in error sues the Plaintiff in error to recover the possession of certain personal property.

Points and authorities of the Respondent: First. — The burden of proof is always upon tbe Plaintiff to show that he has a legal claim against the Defendant. Such claim is not shown by Plaintiff showing that he has sold and delivered to the Defendant spirituous liquors of certain value, where the sale of such liquors is prohibited by law, except under a license.

Points and authorities of Appellant: First. — 1. The Judge errediu his conclusion of law from the-facts found by him, that the Plaintiff was not entitled to a decree of strict foreclosure against the Defendant Charles Brown, for the reasons stated by him in the Second of his conclusions of law, to wit: “ That the Defendant, Charles Brown, is a bona fide purchaser of said premises for a valuable consideration, and without notice of the existence of said unrecorded deed; and…

<p>Courts ought not to interfere by injunction, except in cases where irreparable injury would otherwise be done to the parties, or they show themselves entitled to more immediate relief than can be obtained by the ordinary course of proceedings. *</p> <p>Upon the sale of real estate under execution, pendente lite, the purchase is voluntary, and the purchaser takes his title subject to the Us pendens.</p>

Points and authorities of Appellant: First. — The complaint does not state facts sufficient to constitute a cause of action. Stat. Minn. p. 649, Sec. 2. Second. — The complaint does not state facts sufficient to give jurisdiction to a Justice of the Peace. Stat. Minn. p. 651, Sec. 12; 12 U. S. Dig. p. 356, Sec. 14 and 15; People vs. Rickert, 6 Cow. 226; 2 U. S. Dig. p. 432, Sec. 75, 119, 157, 177; 18 Alabama, 600.

Points in support of application: First. — Satisfactory evidence having been furnished to tbe Governor, as is admitted, he had no discretion not to issue the bonds. Vide Con. Amend. to Sec. 10, Art. 9. Second. — The petition shows a tender of an amount of first mortgage bonds on the roads, franchises and lands of the Company corz-esponding in amount to the State Bonds demanded.

Points and authorities of Appellant. The court erred in denying the application of William L. Banning to be made a party defendant in this action : First- — Because it appeared that said Banning held one of the first mortgage bonds secured by said trust deeds referred to in the complaint, and the Plaintiff sought to set aside the supplemental trust deed and enjoin its execution.

<p>Upon the affirmance of a judgment of the District Court, the original amount, with the accumulated interest, remained a lien by virtue of the original docketing in the District Court; but if the successful party desires to make that portion of his judgment which is for damages and costs recovered in this Court, a lien upon the debtor’s lands, he must docket the judgment in the District Court, and it will Recome a lien for that amount, from the time of such docketing only.</p>

<p>An order, “upon a summary application in an action after judgment,” to fall within the sense o! Subdivision Six, of Section Twelve, page 621-2 Stat. 'of Minn., must be one which is made in some proceeding which recognizes the judgment, and is predicated upon its existence, and not an order in a proceeding which is aimed to set it aside.</p>

Points and authorities of Prosecution: The jury found the Defendant guilty of an assault only, for which he was sentenced. The only question raised is one of jurisdiction. The conviction is had under Sec. 44, page 776, Com.

Points and authorities of the Plaintiff in Error : First. — The question concerning the marriage of the Defendant subsequent to the seduction was properly put to the witness Anna Eouria— 1. To show that it was beyond'the power of the Defendant to fulfill his promise of marriage with the witness. 2. As showing the relation of the parties to each other. 3. To show the intent of the Defendant.

This case was certified to the Court, by the Judge of the District Court of Hennepin County, as presenting questions of so important and doubtful a character as to require the decision of the Supreme Court.

Points and authorities on behalf of the State: First. — Section 13, Chapter 104 of the Compiled Statutes is merely declaratory of the Common Law, confers no new right, and entitles Defendant to no privileges which he would not have enjoyed at common law.

<p>UPON MOTION TO DISMISS AN ACTION BROUGHT TO THE COURT BY STIPULATION OP PARTIES, WITHOUT AN APPEAR OR WRIT OP ERROR.</p>

<p>To authorize the issuing of a writ of prohibition by this Court, it should clearly appear that tho inferior court is about to proceed in some matter over which it possesses no jurisdiction, and this may bo made to appear by setting out the acts or declarations of the Court or officer, which indicate liis intention to pursue such a course. But tho mero fact that a motion is noticed to be made before a Court Commissioner, (over which he would have no jurisdiction,) will not authorize the writ, as this Court will not presume that a Commissioner would hear the motion under objection.</p> <p>This Court cannot issue a writ of prohibition in such form as will entitle the parties to join issue upon the return, and have it tried by a jury, but will issue it in the first instance as an order, to show cause, to which a return may be made, which may be controverted by affidavits, as in other motions.</p>

The Defendant was indicted, in the Second Judicial District Court, held in and for the county of Ramsey, for the murder of Hannah Laliyer, his wife, and was tried at the September term of that Court in 1859, and convicted. A case being made that Court overruled a motion for a new trial, and the case now comes to this Court on the exceptions appearing in the case. Points of Prosecution.

In this case the record of the trial had been duly settled by tbe Judge of tbe court below, but be afterwards, upon a reexamination thereof, amended it so as to make it conform with tbe truth, without bearing tbe arguments of tbe counsel interested, and tbe record, so amended, was certified to this court. This motion is to strike out such amendments.

Points and authorities for tbe Respondent: First. — 1. Tbe court below erred in allowing tbe motion for trial by jury, in mating tbe order allowing tbe same, and admitting evidence other than tbe disclosure of tbe Garnishee, and in not. rendering judgment upon tbe disclosu/re alone. Comp.

Points and authorities of Plaintiffs in Error. First. — Under the old system of pleadings the answer would have been clearly bad as argumentative. Browne on Statute of Frauds, 491; Leaf vs. Tuton, 10 Mees. & Wells, 393; Reade vs. Lamb, 10 Wells, Hurl & Gord. 130; Minor vs. Terry, 6 How. 208; 1 Chitty's Pleadings, 479, 527; 1 Tidd’s Practice, 652; Rule 2d of Stephen's Pleadings, 418; Kennedy vs. Strong, 10 Johns. R. 289.

Points and authorities of the Appellants : Upon the trial of the case, the Defendants offered (and the court allowed under Plaintiff’s objection,) evidence tending to show that the property in question was actually intended to be conveyed to Mrs. Burkleo in 1849, although conveyed by mistake to her husband; and that in all subsequent transactions relating thereto, it was considered as her property.

Points and authorities of Plaintiff in Error: ' First. — The answer of the Defendant below stated facts sufficient to constitute a good defence to the action; and therefore the rendition of judgment upon the pleadings, was erroneous.

Points and authorities of Appellant: Burst. — The Court erred in sustaining the demurrer. 1st. The power and reciprocal duty of a guardian and ward are the sameyro tempore as that of a father and child. 1 Blackstone’s Com. 382; 2 Kent’s Com. 9 Ed. 236. Eull faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.

Points and authorities of the Plaintiff in Error: First. — That the Defendant below, W. O. Morrison, against whom the judgment in this ease was rendered, was at the time of the execution of the mortgage to the Defendant in Error on the 12th of June, 1858, and ever since that time, the owner and in the actual possession of the buildings and improvements upon lots eight and nine, in block twelve, in the city of Saint Paul proper, and in the complaint described, and that the…

Points and authorities of Plaintiffs in Error: First.- — The statute requires a notice containing certain matters to be published six weeks. Compiled Statutes, page 644. The complaint alleges that such a notice was published. The answer admits that a proper notice was published, but says it was for the 23d instead of the 25th, and was not published six weeks.

The Defendant, Charles Dumphy, at a prior term of the District Court of Anoka County, was indicted jointly witb Sandford Tripp for the murder of Michael Dugan. Defendants were arraigned and plead not guilty, and the case was continued to the next term of the Court in August 1860. The case being then moved, Defendant moved to quash the indictment on the ground of uncertainty, it not specifying of what degree of murder the Defendants were charged.

The Plaintiff brings this action to set aside a certain judgment obtained by the Defendant, Henry N. Hart, on the 17th day of September, A. D. 1850, in the District Court of the then first District of the late Territory of Minnesota, against one ¥m. H. Randall. The judgment was obtained in Term time on bond and warrant of Attorney, and entered upon a declaration and a plea of confession.

Points and authorities of Appellant: First. — ’Appellant is entitled (respondent having answered) to a decree of lien and sale of lands described in the complaint, as such relief is embraced in and consistent with the case made by the complaint, and no demand for relief was required to be made in the complaint. If the Defendant answer, the demand for relief becomes immaterial. Marqual vs. Marqual, 2 Kernan 341; Van Sanvoord's Pl. 362; N. Y. Am.

Points and authorities of Plaintiff in Error:, Birst.' — 'It is not necessary that “the full name of ¿he respective parties ” to an action should be set forth in the complaint. It is always enough to give the initials of the Christian names of the parties ; especially is it enough to sue the Defendants by the names by which they have signed the instrument on which the action is brought, as is the. case in this action. Nor if this were error, would it be ground for demurrer.

This was an action brought by D. O. Pullerton against Leonard W. Kipp, to recover the value of goods alleged to have been unlawfully taken by the Defendant from the possession of the Plaintiff and converted to Defendant’s use.

This action was brought by tbe Defendant in error to recover tbe possession of certain real estate in tbe County of Ramsey, under See. 12, et seq., Chap. 71, ¶. 649, Slat, of Minn., before E. E. Strother, Escp, a Justice of the Peace for Ramsey County.

Points and authorities o’f Respondent: First. — In order to render a sale under a statute foreclosure valid, it is indispensably requisite that the notice of sale should specify the time, as well as the place of sale. See Section 5, Chap. 75 of the Compiled Statutes; page 644. Second. — The notice of sale in this case, stated that the sale would take place on Monday the 26th day of February, 1860. Now, the 26th day of February, 1860, was Sunday.

Tbe issues in this case were made up by stipulation, and referred by tbe parties to John M. Gilman, Esq., as special referee, to hear and determine, &c. One of the separate defences of the Defendants were, that they were a corporation duly incorporated under a general incorporation law of the State of Illinois. The referee found this allegation in favor oí the Defendants, an'd reported in their favor, upon which report a judgment was entered.

Points and authorities of Appellant: The court below erred in refusing to grant a new trial foi the following reasons: First. — 'Because the verdict of the jury in said cause was irregular and should have been set aside on that ground. Second. — The Judge erred in admitting secondary evidence of the contents of the several instruments referred to in the pleadings in said action, and in the bill of exceptions mentioned.

This case involved a re-argument of the main point decided in'the case of Bidwell vs. Whitney, decided at the July Term, 1860, ante p. 16. Points and authorities of the Plaintiff in Error : Fvrst. — It is only by virtue of the power of sale contained in the mortgage, that the mortgagee has the right to foreclose under the Statute, Comp. Stat. p. 643, Sec. 1.

The Defendants, Luke Marvin and wife, executed two mortgages upon the same property, one to the Plaintiff. William E. Potter, which was dated November 3, 1857, and recorded December 29, 1857, the other to the Defendant David Lowitz, dated and recorded November 4, 1857.

— Interest is recoverable and should be allowed on an account for goods sold and delivered after tbe same has become payable according to agreement. Moore vs. Patten, 2 Porter, 451; Dodge vs. Perkins, 9 Pick. 112; State Bank vs. Clarke, 4 Pike, 210; Waning vs. Henry, 30 Alabama, 721; Shields vs. Henry, 31 Alabma, 53. Second. — Interest is always allowed by way of damages, on all claims for money due after demand made, and refusal to pay.

Points and authorities of Plaintiffs in Error: First. — The mortgage was given to secure notes overdue at the date of the mortgage. It was hence absolute from its date. The execution and delivery of the mortgage being at the time a secret transaction, and remaining so until the mortgagor was sued by the Plaintiffs in Error.

Points and authorities of the Plaintiff in Error : First. — The said notice of mortgage sale was irregular and void, and that the claim of said Annan, that the sum of $1,606.60, was, on the fourth day of October, 1858, when in fact, only the sum of $964.62 was due, is, and was a fraud in law upon the Plaintiff in error, and it is wholly immaterial whether Defendant intended the consequences of said claim as an inj ury or not.

From the facts found by the referee, it appears that between the first of May and 18th of August, 1857, at divers times, the Plaintiff, at the request of the Defendant Bailey, '■'■from üme to time as the bmldmg progressed,” performed labor and furnished materials in and about the erection of a house on lot 5, block 64, Dayton & Irvine’s addition to St. Paul, to the amount of $987, said lot then being owned by said Bailey.

<p>Upon a taxation of costs in this court, the Clerk should allow the reasonable disbursements for printing papers required by law and the rules, to wit: the paper books, and points and authorities. Counsol will not be confined to a mere statement of their points, and the authorities by which they are supported, but may present them clearly and fully, with extracts from text books and reports, and brief reasons to give force to their points. But duplicate arguments by different counsel in support of the same point, do not fall within the meaning of the words, “papers on appeal.”</p>

<p>Where costs in this Court are discretionary, they are not recoverable unless specially awarded: but the objection to their allowance should be made at the time of their taxation under the notice; and if a party fails to attend and make his objections before the Clerk, he cannot object by appeal.</p>