Volume 40 — Minnesota Reports

Plaintiff brought this action in the district court for McLeod county, to recover damages for the alleged failure of the defendant to perform an executory contract which included the sale to plaintiff of a steam threshing-machine, and also included other matters as stated in the opinion.

Habeas Corpus and Certiorari, the writs issuing from this court January 2, 1889, returnable January 4th, and the facts being as follows: The petitioner, E. F. Fanning, sued his wife in the district court for Hennepin county, for divorce for cruelty. In her answer she sought a divorce on the same ground. In October, 1887, the petitioner was ordered to pay his wife alimony pendente lite, at a specified rate per week.

The city treasurer of St. Paul having applied to the district court for Bamsey county, in compliance with the city charter, for judgment against certain real estate for the amount of an assessment for street grading, the relator, the owner of the land in question, appeared and objected to judgment being entered, upon the ground that the city authorities never obtained jurisdiction to do the grading.

The plaintiff, as guardian of Robert Chambers, a lunatic, brought this action in the district court for Hennepin county against the defendants, who are the sureties upon the bond given by a former guardian, to recover moneys of the ward collected by the former guardian and not accounted for. The action was tried by Yowig, J., without a jury, and judgment ordered for plaintiff. Defendants appeal from an order refusing a new trial.

Action in the district court for Hennepin county, against the defendants as partners doing business under the name of “Pence Opera House Company,” for breach of the following written contract, being Exhibit A to the complaint: “This agreement, made this 14th day of August, 1886, between W. E. Sterling, party of the first part, and Pence Opera House Co., party of the second part, witnesseth: That said party of the first part, in consideration of the promises and agreements…

Plaintiff brought this action in the district court for Winona county, to recover possession of a school-house and site. The action was submitted, upon stipulated facts, before Start, J., without a jury, and judgment ordered for defendant. From this judgment the plaintiff appeals.

Certiorari, directed to the district court for St. Louis county, 'to review an order by Stearns, -J., confirming an assessment made by the city of Duluth.

Defendant Lemke appeals from the judgment in each of the above actions, which were tried together, without a jury, in the municipal court of St. Paul. One Bruecker, having made a contract with Gardner S. Moore to erect a building, made and filed a bond, executed by himself as principal, and by the defendants Lemke and Sauerwein as sureties, conditioned as required by Gen. St. 1878, c. 90, § 3.

Plaintiffs brought this action in the district court for Hennepin county, to recover commissions claimed to have been earned by the sale of certain real estate for the defendant.

Plaintiff brought this action in the district court for Hennepin county, to obtain specific performance of a contract made by her with defendant Hitchings for the sale of land. The action was tried by Young, J., who ordered judgment for defendants. Additional findings of fact were requested by plaintiff, and, with one exception, refused. Plaintiff appeals from an order refusing a new trial.

Plaintiff brought this action in the district court for St. Louis county, to obtain specific performance of an alleged verbal agreement for the sale of a house and lot, alleged to have been partially performed by taking possession and making improvements.

Plaintiff brought this action in the district court for Ramsey county to recover damages for alleged fraudulent representations, alleged to have been made by defendants, inducing the plaintiff to subscribe and pay for certain mining stock. The answer denied that defendants made any of the alleged representations, or that the same were false, or that plaintiff relied upon them, and denied that plaintiff had been damaged in any sum.

Appeal by the Mille Lacs Lumber Company and Peter P. Swensen, as sheriff, from an order of the district court for Hennepin county, Young, J., presiding, made in the above-entitled matter, setting aside a levy, etc.

Appeal by defendant from a judgment of the municipal court of Minneapolis, after a conviction under the ordinance recited in the opinion.

Plaintiff brought this action in April, 1888, in the district court for McLeod county, to recover money paid by it to defendant.

Appeal by plaintiff from an order of the district court for Lyon county, Webber, J., presiding, granting the defendant Gregg’s motion to open the judgment, and allow him to defend.

The plaintiff brought this action in the district court for Bamsey county, to determine the adverse claims of the defendants to certain vacant lands of which the plaintiff claims to be the owner.

Plaintiff brought this action before a justice of the peace. The constable’s return upon the summons showed personal service upon defendant on February 21, 1887.

Appeal by plaintiffs from an order of the district court for Hennepin county, Hicks, J., presiding, overruling their demurrer to the separate answer of Benjamin H. Billings and others, the indorsers of the note described in the opinion.

The defendants were tried and convicted in the- district court for Hennepin county, before Hicks, J., and a jury,upon the indictment recited in the opinion. They appeal from an order refusing a new trial.

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

This action was certified to this court from the district court for Fillmore county, by Farmer, J., after a denial of defendant’s motion to dismiss upon the ground that the city justice had no jurisdiction to determine the action.’

The defendant was indicted with his brother Peter Barrett in the district court for Hennepin county for the murder of Thomas Tollefson on July 27,1887, in the city of Minneapolis. Defendant, having demanded it, was allowed a separate trial, was tried before Lochren, J., and a jury, was convicted of the crime of murder in the first degree, and was sentenced to be hanged. Defendant appeals from the judgment and from an order refusing a new trial.

The defendant was' indicted with his brother Timothy in the district court for Hennepin county, for the murder of Thomas Tollefson. Upon the trial before Lochren, J., and a jury, defendant was convicted of murder in the first degree, and sentenced to be hanged. He appeals from the judgment and from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Otter Tail county, Baxter, J., presiding, vacating an attachment. The affidavits showed that by written agreement the defendant was to serve plaintiff as clerk in his store for a certain time at a salary of $60 per month and one-half the net profits of the business; but defendant’s share of the profits was not to be payable until the profits should be ascertained by an accounting, which was never had.

Appeal by plaintiff from an order of the district cburt for Hennepin county, Young, J., presiding, refusing a new trial, the action having been dismissed when plaintiff rested his case.

Appeal by plaintiff from an order of the municipal court of Minneapolis, setting aside a judgment entered upon default, upon the ground that the judgment was unauthorized, the time for answering not having expired.

Appeal by defendant from a judgment of the district court for Bamsey county, entered upon an order by Simons, J., striking out the answer as sham.

Plaintiff brought this action in the district court for Hennepin county, to enforce a mechanic’s lien for material furnished a contractor. The action was tried before Young, J., without a jury, and judgment ordered for plaintiff. The court found the value of the materials furnished to be |3,699.54. Defendants appeal from an order refusing a new trial.

<p>Railway — “Wagon-Crossings”— Cattle-Guards. — The term “wagon-crossings,” as used in Gen. St. 1878, e. 34, § 54, requiring railroad companies to build and maintain “ cattle-guards, ” refers to wagon roads used for public travel crossing railroads, and not to private ways or farm-crossings.</p> <p>Same — Farm-Crossings—Locks to Gates. — The provision in Laws 1877, c. 98, § 4, that railroad companies may furnish land-owners with locks for gates at farm-crossings, is permissive, and not mandatory; and in ease no such locks are furnished, the question of the negligence .of the corporation in any particular case, as respects the opening or closing of such gates, or their being securely fastened, is open for investigation, and is not affected by the statutory provision referred to.</p> <p>Same — Negligence—Evidence.—Evidence considered, and held insufficient to establish negligence on the part of the defendant in this case.</p> <p>Plaintiff brought this action before a justice of the peace, to recover the value of a colt alleged to have been killed through the negligence of defendant. After judgment for plaintiff, the defendant appealed to the district court for Carver county, upon questions of law alone, where the judgment was affirmed by Edson, J., and the defendant again appealed.</p>

Appeal by defendants from an order of the district court for Hennepin county, refusing a new trial after a trial by Lochren, J., a jury being waived.

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial in an action to determine adverse claims.

Appeal by plaintiff, an attorney and counsellor at law, from an order of the district court for Hennepin county, Lochren, J., presiding, sustaining a demurrer to the complaint. The action was for libel, the words complained of being part of an article published in the newspaper of the defendant corporation, edited by the other defendants, and being as follows, (omitting the innuendoes:) “Elder Stewart has moved his office up to his house to save expense.”

Appeal by defendant from a judgment of the district court for Bamsey county, where the action was tried before Kelly, J., and a jury, and a verdict rendered for plaintiff.

Plaintiff brought this action against defendant, (a corporation,) in the district court for Eamsey county, to recover rent reserved in a lease. The defendant, in its answer, claimed an abatement from the rent for a period during which, as it alleged, the premises were rendered partially untenantable from the causes stated in the opinion. A jury was waived and the action tried by Wilkin, J., who ordered judgment for plaintiff, which was entered, and the defendant appealed.

Plaintiff brought this action in the district court for Hennepin county, for instalments alleged to be due from defendant as a subscriber to its capital stock. A jury was waived, and the action tried by Lochren, J., who held that the defendant never became a subscriber, and ordered judgment in his favor. A new trial was refused, and the plaintiff appealed.

Action for libel, brought in the district court for Hennepin county. The publication complained of was a newspaper report, (alleged to be wholly false) with conspicuous head-lines, of a public altercation between plaintiff and. his wdfe at a theatre in Minneapolis, at 10.80 o’clock in the evening, at the close of a performance, the altercation being occasioned (as stated in the article) by plaintiff discovering his wife’s presence at the theatre in company with another man.

Appeal by defendant from an order of the district court for Hennepin county, refusing a new trial after trial before Rea, J., and verdict of $5,550 for plaintiff.

Appeal by plaintiffs from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial after verdict directed for defendant.

Cases certified from the district court for Martin county, Severance, J., presiding, and from the district court for Murray county, Perkins, J., presiding, in proceedings to enforce real-estate taxes. In the former case the court held the land taxable, and in the latter not taxable.

<p>Sale — Statute of Frauds — Denial of Contract. — A defendant, denying in! his answer the making of the contract upon which the action is brought, may avail himself of the defence that the agreement was void under the statute of frauds.</p> <p>Same — Requisites of Acceptance — Delivery to Carrier. — An acceptance, to be effectual to avoid the effect of the statute of frauds, as to oral agreements for the sale of personal property, must be more than the mere receipt of the goods delivered. Even though the buyer (not yet having accepted the goods) designates a common carrier to whom the seller is to deliver the goods for transportation, aDd although the goods are so delivered and transported to the buyer, that alone is insufficient to constitute acceptance.</p>

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

Appeal by plaintiff from an order of the district court for St. Louis county, Stearns, J., presiding, sustaining a demurrer to the complaint, interposed by the defendants James D. Ray apd John R. Carey, the sureties in the bond sued on.

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

Appeal by defendant from a judgment of the district-court for Hennepin county, where the action was tried by Lochren, J.

Appeal by plaintiffs from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial.

Mandamus. The information was filed, and the alternative writ issued thereon, January 8, 1889, returnable January 15, 1889.

Appeal by plaintiffs from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial after a trial by the-court.- The valuation made by the appraisers was $30,000. The court found the property to have been worth $50,000 at the date of the valuation.

Plaintiff, for 19 years owner of lot 3, in block 16, in Brunson’s addition to St. Paul, and of .two tenement houses thereon, brought this action to recover damages for the injury to the rental value of the property caused by the operation of defendant’s railway over the adjoining lot 2 (owned by defendant) in the same addition, and over a public alley adjacent to plaintiff’s premises.

Appeal by plaintiffs from an order of the municipal court of Minneapolis, granting a new trial, after trial by the court. The action was for the value of goods, the alleged property of plaintiffs, attached by the defendant, sheriff of Hennepin county, as the property of one Hass, from whom plaintiffs claimed to have purchased them prior to the attachment.

In the settlement of the final accounts of Florence A. Baillif, as administratrix of the estate of her deceased husband, the probate court of Hennepin county, on objection by the heirs-at-law, disallowed her claim to certain premise's as the homestead,, and charged her with the rents received for them, and in the final decree of distribution the same court held that the premises in question did not constitute a. homestead.

Mandamus, brought in the district court for Ramsey county, to compel the issuance of a logging permit. The case made by the petition and alternative writ was as follows: The respondent, as state auditor and ex officio state land-commissioner, after proper notice, duly offered for sale at auction the standing pine timber on a designated school section. The relator was the highest bidder, and the'timber was struck off to him.

Action to foreclose a mortgage, brought in the district court for Hennepin county, and tried by Searle, J., (acting for a judge of the 4th district,) who ordered judgment for plaintiff. A motion for a new trial was denied by Lochren, J., and the defendants appealed.

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

Plaintiffs (vendors) brought this action in the district court for Bamsey county for specific performance of a written contract of sale of “the west 50 feet of lots 9 and 10, of block numbered 12, Marshall’s addition to St. Paul, according to the recorded plat thereof on file in the office of the register of deeds in and for said county of Bamsey.” The defendant demurred to the complaint as failing to state a cause of action, making the point, among others, “that there is no…

Appeal by the defendant bank, impleaded with Moses P. Hayes, assignee in insolvency of W. F. Meader & Co., from an order of the district court for Hennepin county, Hicks, J., presiding, refusing a new trial. The action was brought to establish the right of plaintiffs to the proceeds of the car-load of wheat, mentioned in the opinion, which had come into the assignee’s hands.

Action for specific performance of a contract to convey pine lands, brought by the vendors in the district court for Hennepin county, and tried by Hicks, J., who refused the relief prayed, and ordered judgment for a cancellation of the contract, as prayed by defendants in tbeir answer, and because of the mistake therein alleged, and found by the court to have existed, and which is stated in the opinion. Plaintiffs appeal from the judgment.

Action to determine adverse claims to land in Eamsey county, brought in the district court for that county, in October, 1887, and tried by Kelly, J., who ordered judgment for plaintiffs. Defendants appeal from an order refusing a new trial. It was agreed that the plaintiffs were owners of the land unless their title had been divested by the tax sale mentioned in the opinion, under which the defendant Hortense, as assignee of the right acquired by the state, claimed title.

Ejectment. Appeal by defendant from a judgment of the district court for Hennepin county, entered after a statutory second trial of the action before Young, J., and a jury.

Plaintiff, a judgment creditor of the defendant John B. Kelly, brought this action in the district court for Olmsted county, to avoid as fraudulent a voluntary conveyance of the N. J of the S. E. £ of section 9, town 105, range 14, in that county, made by the judgment debtor and his wife to their son, the defendant Joseph Kelly.

Plaintiff brought this action in the district court for St. Louis county, to recover the sum of $500, mentioned in the agreement of April 12, 1887, set put in the opinion. The action was tried by Stearns, J., who ordered judgment for defendant, which was entered, and the plaintiff appealed.'

Action in the district court for Mower county to enjoin the foreclosure of a mortgage and compel a- satisfaction of record, because of usury and also full payment of the actual debt. Plaintiff appeals from an order of Farmer, J., refusing a new trial after a decision for defendant.

Plaintiff, the widow of William Bentz, brought this action in the district court for Hennepin county, on a certificate issued to him by defendant for her benefit. At the trial before Rea, J., and a jury, plaintiff had a verdict. The defendant appeals from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Wilkin county, C. L. Brown, J., presiding, refusing a new trial after verdict for defendants.

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

Appeal by plaintiff from a judgment of the district court for Traverse county, and from an order by G. L. Brown, J., denying his motion to modify the judgment.

<p> Quo warranto. </p>

Appeal by Charles H. Robinson and Sylvester M. Cary from an order of.the district court for Ramsey county, Simons, J., presiding, dismissing their appeal from an assessment by the board of public ■works of St. Paul.

Mandamus. Appeal by defendant from an order of the district court for Ramsey county, Simons and Kelly, JJ., presiding, directing the issuance of the peremptory writ.

Appeal by plaintiff from a judgment of the district court for Hennepin county, Baxter, J., presiding, (acting for a judge of the 4th district,) dismissing his petition for specific performance, (theretofore presented to the probate court of that county,) and adjudging the judgment of the probate court (from which the defendants, heirs-at-law of Charles Mousseau, deceased, had appealed on questions of both law and fact) to be null and void.

Appeal by defendants from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint. The grounds of demurrer were (1) failure to state a cause of action; (2) plaintiff’s want of legal capacity to sue, and (3) defect of parties plaintiff.

Action brought in the district court for Ramsey county, to recover damages for the death of plaintiff’s intestate, caused, as alleged, by defendant’s negligence. At the trial, before Brill, J., and a jury, it appeared that on June 27,1887, the decedent, who was employed as a boiler-maker’s helper in defendant’s shops at St. Paul, was directed by the boiler-maker to pick up some rubbish lying near a “dead” locomotive then standing on a track which ran into the boiler-shop.

Action of unlawful detainer, brought in the municipal court of Minneapolis, and removed to the district court for Hennepin county, and there tried (as an action of ejectment) before Hides, J., and a jury, on the issue of title made by the pleadings. A verdict was directed for plaintiff, a new trial was refused, and the defendant appealed-.

Appeal by defendant Gieseke (impleaded with Albert Behnke as surviving partner of H. Behnke & Co.) from a judgment of the district court for Eamsey county, where the action was tried by Brill, J.

<p>Railroad Commission — Interstate Commerce between Points in Same State. —The railroad and warehouse commission of this state has no authority to prescribe rates for transportation by common carriers in another state. It cannot fix the rates for carriage between two points within this state, over a route extending across a neighboring state. Such power is vested exclusively in congress.</p>

Appeal by defendant from an order of the district court for Carver county, refusing a new trial after a trial before Edson, J., and verdict of $2,000 for plaintiff.

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

Plaintiff, in June, 1887, brought this action in the district court for Ramsey county, to determine the adverse claim of defendant to a block of ground within plaintiff’s corporate limits, alleged by plaintiff to have been dedicated to public use as a park by Dr. Jacob H. Stewart, deceased, in July, 1871.

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

• Appeal by defendants (the Dispatch Printing Co., and Geo. Thompson, and Carroll S. Bartram, two of its officers, the former being also manager of the company, and the latter one of the editors and managers of the St. Paul Dispatch, a daily newspaper published by it) from an order of the district court for Ramsey county, Simons, J., presiding, overruling their joint demurrer to the complaint, the grounds of demurrer being defect of parties defendant and failure to state a…

On March 7,1882, the relator, Charles F. Dana, filed a petition in the probate court of Ramsey county, praying for the removal of the administrators (appointed February 8,1862) of the estate of Michael E. Ames, who died intestate in that county January é, 1862, and for the appointment of an administrator de bonis non.

Appeal by defendants from a judgment of the district court for St. Louis county, where the action was tried by Stearns, J., without a jury-

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

This action coming on for trial in the district court for Hennepin county, before Loohren, J., the defendants moved for judgment on the pleadings. The motion was granted, and the plaintiff appealed.

Appeal by defendant from an order of the district court for Hennepin county refusing a new trial after a trial by Lochren, J., and judgment ordered for plaintiffs.

Appeal by plaintiff from an order of the district court for Sibley county, Edson, J. presiding, refusing a new trial after verdict in favor of the answering defendants, August Poehler, Henry Poehler, and Thomas Welch.

Appeal by defendants from an order of the district court for Hennepin county, Lochren, 3., presiding, refusing a new trial after verdict for plaintiff:

Plaintiffs, as assignees of one Wilson Godfrey, by assignment made February 25,18S2, brought this action in the district court for Bamsey county against James and John .E. McIntire, to recover an unpaid balance of an indebtedness of $10,474, for lumber sold and delivered in September and October, 1877, by Godfrey to. the defendants.

This action (on appeal to the district court for Hennepin county from the disallowance of plaintiff’s claim by the board of county com.missioners,) was tried without a jury by Lochren, J., who filed a decision and order for judgment in favor of defendant. From this order the plaintiff appeals.

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

Appeal by plaintiffs and by intervening creditors of the defendant corporation from a judgment of the district court for Wabasha county, and from an order by Start, J., (before whom the action was tried, without a jury,) refusing a new trial.

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

Appeal by the above named defendant and the Minneapolis & Pacific Ry. Co., from a judgment of the district court for Grant county, C. L. Brown, J., presiding, in a proceeding by mandamus, instituted by the relator as county attorney of that county, to compel the defendants to “provide ample facilities for transferring ears from their respective tracks,one to the other,” at a crossing of the tracks of the two companies at Elbow Lake in the same county.

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

Certiorari, to review the action of a jury summoned by the respondent, a justice of the peace, reversing an order of the relators, supervisors of the town of Sumner, in Fillmore county, discontinuing a highway, the appeal from such order having been taken by John D. Gregory.

From a judgment of the probate court of Hennepin county, ad. mitting an instrument to probate as the last will of Martin Layman, deceased, the contestant, Lizzie Haley, a grand-daughter of the testator, appealed, on questions of law and fact, to the district court for the same county, where issues were framed and were tried before Young, J., and a jury. The verdict was in favor of the will, a new trial was refused, and the contestant appealed.

Appeal by defendants from an order of the district court for Anoka county, Hicks, J., presiding, refusing to set aside the verdict of the jury on special questions submitted to them (there being no general verdict.)

<p>Appeal by Garnish.ee. — A separate appeal to the municipal court of theeity of St. Paul may be taken by a garnishee from, a judgment against him rendered by one of the city justices, and such right of appeal is not dependent upon the removal by appeal of the judgment in the principal action.</p>

Appeal by defendants from an order of the district court for Ramsey county, Kelly, J., presiding, refusing a new trial after trial by the court and judgment for $8,321.50 ordered for plaintiff.

<p>Res Judicata — Recitals in Foreclosure Decree — Second Mortgagee not a Farty. — T. and M., trustees, were named as mortgagees in two sev- . eral mortgages executed by the same party. A suit brought in the name of third parties, plaintiffs, against the mortgagor as sole defendant, to foreclose the first mortgage, proceeded to judgment. There was no evidence in this case that the plaintiffs in that action had succeeded to the rights of the mortgagees, except a recital in such judgment. Held, that the mortgagees, being strangers to the record, are not bound by such recital or foreclosure; and the second mortgage, not appearing to be barred by the statute, is still in force, and a cloud upon the plaintiff’s title to the mortgaged premises, and equity will not, therefore, enforce a contract for the sale thereof in 1ns favor, against unwilling purchasers.</p>

Replevin, brought in a justice’s court, for 200 bushels of barley, of the value of $75. In his answer the defendant pleaded (among other things:) “Defendant denies that plaintiff is or was entitled to any portion of the 200 bushels of barley at any time, and denies the allegation that he had taken and did unjustly detain the same from plaintiff at any time.” On plaintiff’s motion the answer was stricken out, and judgment rendered for plaintiff.

Action brought in the district court for Kanabec county, to determine defendant’s adverse claim to vacant lands in that county. The defendant answered, alleging title in himself under the tax sale of forfeited lands in 1881, pursuant to Laws 1881, c. 135.

This action coming on for trial in the district court for Clay county, before Mills, J., on defendant’s appeal, on law and facts, from a judgment of a justice of the peace, the plaintiff was allowed, against defendant’s objection and exception, to amend the complaint so as to change his demand from $99 to $160. Defendant declined to answer, and the court on plaintiff’s motion ordered judgment for $160 against defendant, for his failure to answer.

This action and four others, (in which Celia E. V. Brown, Shubart E. White, Martha A. Triggs, and Charles H. Eldridge were severally plaintiffs) against the same defendant, were tried together in the district court for St. Louis county, before Stearns, J., and a jury, and a separate verdict returned in each for the plaintiff. In each case the defendant appeals from an order refusing a new trial.

Action on a promissory note for $4,000, signed by defendants, payable to the order of Clarence M. McLain, and by him indorsed. Defence that the defendants were mere accommodation makers, and the fraudulent representations of plaintiff’s vice-president stated in the opinion. Trial in the district court for Bamsey county, before Baxter, J., (acting for a judge of the 2d district,) who directed a verdict for plaintiff. The defendants appeal from an order refusing a new trial.

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

Appeal by plaintiff from an order of the district court for Dakota county, Crosby, J., presiding, refusing a new trial. The action was brought to cancel the mortgage mentioned in the opinion.

<p>Insufficient Special Verdict. — Where a special verdict fails to coverall the issues, the plaintiff is not entitled to judgment thereon.</p> <p>Action for Use and Occupation — Licensee.—An action for use and occupation will not lie against a party in possession of real estate by the license of the owner.</p> <p>Issue with no Conflict of Evidence. — It is error to submit au issue to the jury for their determination upon which there is no coniliet of evidence.</p>

Appeal by defendant from a judgment of the district court for Goodhue county, where the action was tried by O. M. Hall, Esq., as referee.

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

Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial after verdict for plaintiffs directed by the court.

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

Action brought in the district court for Clay county on a supersedeas bond given by defendant Goebel on an appeal to this court from an order refusing a new trial in the suit of Beitan v. Goebel, the other defendants being the sureties. A former appeal is reported, 35 Minn. 384. Upon the trial, before Baxter, J., plaintiff had a verdict. . Defendants appeal from an order refusing a new trial.

Appeal by defendant Devine from a judgment of the district court for Scott county, entered against defendant and the sureties on his appeal from a judgment of a justice of the peace, before whom the action was first -brought.

Appeal by defendant from a judgment of the district court for McLeod county, where the action was tried before Edson, J.

Appeal by defendants from an order of the district court for Wilkin county, C. L. Brown, J., presiding, refusing a ■ new trial after verdict of $600 for plaintiff.

Appeal by defendant from a judgment of the municipal court of St. Paul in favor of the plaintiff James M. Hutchinson. The complaint alleges a written contract between the plaintiff Dunn and the defendant, by which the former agreed to do certain cement-work and plastering for the latter, at the agreed price of $125 for the cement-work and specified rates per yard for the plastering.

<p>Cancellation of Deed — Abuse of Confidence — Pleading.—The complaint and answer in this action, which is brought to cancel and set aside a deed of real estate executed and delivered by plaintiff to her son, the defendant, examined and considered. Held, first, that the complaint states facts sufficient to constitute a cause of action; and, second, that a reply to the answer was unnecessary.</p>

Action by a subcontractor against principal and sureties in a bond against liens, given by a contractor (Wegmann) for erecting a building.. The sureties (Wm. Thompson and Herman L. Meyer) appeal from an order of the district court for Ramsey county, Simons, J. presiding, overruling their demurrer to the complaint.

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

Appeal by plaintiffs, (N. E. Spurr and the First National Bank of Morris,) from a judgment of the district court for Eamsey county, where the action was tried by Simons,- J.

<p>Attachment — Who is a “ Non-Resident Debtor.” — A debtor may reside or remain out of the state so long and under such circumstances as to be a non-resident, within the meaning of the statute relating to attachments, although by reason of his intention to return his political domicile continues to be in the state. It is a question of actual residence, and not of domicile merely; and this is a question of fact to be determined by the ordinary and obvious indicia of residence. But a mere casual or temporary absence of a debtor from the state on business or pleasure will mot render him a non-resident, even although he may not have a house of usual abode here, at which a summons against him might be served during such absence.</p>

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

Ejectment. Appeal by plaintiff from an order of the district court for Hennepin county, refusing a new trial after a trial by Young, J., without a jury.

Appeal by plaintiff from an order df the district court for Hennepin county, Iiea, J., presiding, sustaining a demurrer to the complaint, in an action against the city, its mayor, clerk, comptroller and treasurer.

<p>Adverse Claims to Real Property — Judgment Warranted by Findings. —In an action to determine adverse claims, the plaintiff by bis complaint demanded, as the owner in fee-simple, all of the relief permitted by the statute, (Gen. St. 1878, c. 75, § 2.) The answer disclosed the entire right, title, and interest defendant had or pretended to have, and the court made findings of fact which would have justified an order for judgment for the full relief asked. The order — the conclusion of law — was • that plaintiff “is entitled to judgment quieting title to all of said land in himself, and adjudging that the said defendant has no estate therein,” upon which judgment was entered, decreeing, among other things, that defendant had no lien upon the lands in dispute. Held, that said judgment was warranted by the conclusion of law, and that an order modifying it was erroneous.</p>

Appeal by defendants Emily L. and A. R. Gill from a judgment of the district court for Hennepin county, where the action was tried by Lochren, J.

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

Appeal by plaintiff from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial, after a dismissal ordered at the trial at the close of plaintiff’s case.

Appeal by defendant Isaacson from an order of tbe district court for Houston county, Farmer, J., presiding, sustaining a demurrer to the second defence pleaded in his answer.

Appeal by plaintiff from an order of the district court for Brown county, Webber, J., presiding, overruling its demurrer to the second defence pleaded in the answer.

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

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

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

Plaintiff brought this action in the district court for Hennepin county, to enforce a lien for lumber furnished to defendant Gunn for use and used in erecting a house in Minneapolis, under contract with one Tice, the owner. Blakeman and three others were made defendants as having or claiming “some estate, interest, or lien in or on the premises aforesaid,” which lien, if any exist, the complaint alleges to be subordinate to that of plaintiff.

This action was brought in the district court for Crow Wing county, and tried before Sleeper, J., who directed a verdict for defendant. The plaintiff appeals from the judgment.

After the decision on a former appeal, sustaining the complaint as against a demurrer, (see 37 Minn. 469, where the substance of the complaint is stated,) the defendant answered, alleging (among other things) claims in his favor against plaintiff to the amount of $470, and a settlement and accounting between the parties prior to the bringing of the action, at which a sum was found due from plaintiff, which he afterwards paid.

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

Appeal by plaintiff from orders of the district court for St. Louis county, Stearns, J., presiding, (l)/efusing a new trial, and (2) dissolving an attachment.

Appeal by defendant from an order of the district court for Olmsted county, Start, J., presiding, refusing a new trial after a verdict of $260 for plaintiff.

Appeal by defendant from an order of the district court for Wright county, Hicks, J., presiding, overruling its demurrer to the complaint. The case made by the complaint was'this: In March, 1886, the defendant proposed to build a line of railway .from Minneapolis through Hennepin and Wright counties and beyond in a northwesterly direction, and had employed one Wendell as agent to procure the right of way.

Appeal by plaintiff from a judgment of the district court for Hennepin county, where the action (brought to determine defendant’s adverse claim to land in Minneapolis) was tried by Hicks, J. The court found the first attempted foreclosure was void because of the defect mentioned in the opinion, and because the notice of sale was published only 41 days.

Appeal by defendant from a judgment of the district court for Hennepin county, where the cause was tried by Lochren, J., and a peremptory writ of mandamus allowed and issued.

Appeal by defendant from a judgment of the district court for Hennepin county, Baxter, J., presiding, (acting for a judge of the fourth district.)

Appeals by plaintiffs from two judgments of the district court for Anoka county, where the actions were tried, by Young, J. Each suit was brought to cancel a deed, and in each case the defendant Annie E. Byerly alleged the deed to be a mortgage and asked for a foreclosure.

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

This action was brought in the district court for Kandiyohi county and tried without a jury by C. L. Brown, J., (acting for the judge of the 12th district.) Plaintiff appeals from an order refusing a new trial.

. Plaintiff brought this action in the district court for Hennepin county, to recover for the sawing of logs for defendant. In his answer’ the defendant pleaded a counterclaim for damages for breach by plaintiff of the contract stated in the opinion. At the trial before Rea, J.,. a verdict was directed for plaintiff. The defendant appeals from the-judgment.

In this action, brought in the district court for Grant county, defendant’s demurrer was, by order of C. L. Brown, J., stricken out as frivolous, and judgment for failure to answer was entered for plaintiff. The defendant moved that the judgment be vacated and for leave to serve a proposed answer, which motion was denied, the court holding that it had no power to grant it. Defendant appeals from the judgment.

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

Action to set aside a mortgage foreclosure, brought in the district court for Hennepin county, and tried by Lochren, J., who ordered judgment for defendant. The plaintiff appeals from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Hubbard county, Sleeper, J., presiding, granting a new trial unless plaintiff should consent that the verdict in his favor be reduced from $1,116.88 to $384.32. The action was brought to recover $1,265.37, alleged to have been paid to defendant by plaintiff as usurious interest.

Appeal by plaintiffs from an order of the district court for St. Louis county, Stearns, J., presiding, sustaining demurrers to the complaint for failure to state a cause of action.

Appeal by defendants from an order of tbe district court for Becker county refusing a new trial after trial by Mills, J., without a jury.

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

In the year 1886, certain lands in Eedwood county, then owned by the defendant, and which had not theretofore been assessed for taxation, were assessed by the county auditor for taxes for prior years — some for each year following 1869, others for each year following 1870, and others for each year following 1871, each parcel of land being assessed for each year subsequent to its conveyance by the state to the Winona & St. Peter Eailroad Co., and subsequent to the execution…

Action by purchaser for specific performance, brought in the district court for Ramsey county, and tried by Simons, J., who ordered judgment for defendant for a cancellation of the contract, from which the plaintiff appeals.

This action was brought in the district court for Crow Wing county, and was tried by Slee-per, J.; certain issues as to the fact, time, etc., of the alteration of the note mentioned in the opinion being submitted to a jury. Plaintiff appeals from an order by Holland, J., refusing a new trial.

Action to determine adverse claims to unoccupied land in Wright county. Defence title in defendants under tax judgment, sele to the state, and assignment to defendants’ grantor.

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

Appeal by plaintiff from an order of the district court for Stearns county, Searle, J., presiding, refusing a new trial. The reply admitted the making of the release pleaded in the answer, and alleged, in avoidance, that it was obtained by defendant’s agent by false representations.

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