Volume 45 — Minnesota Reports

Action brought in the district court for Swift county, to recover possession of a horse and two cows, of the value of $140, with $300 damages for their detention. Trial before John H. Brown, J., and verdict directed for defendant, who appeals from an order by Powers, J., granting a new trial.

Appeal by defendant from a judgment (of $307.72) of the district court for St. Louis county, where the action was tried by Stearns, J.

Appeal by defendant from a judgment of the municipal court of Duluth, entered on a verdict of $132.80 for plaintiff and after the denial of a motion for new trial.

Appeal by defendant Woodruff from a judgment of the district court for St. Louis county, where the action was tried by Stearns, J.

Appeal by defendant fro, - an order of the district court tor Eamsey county, refusing a new trial after a trial before Brill, J., and judgment ordered for plaintiffs, enforcing a lien of $1,424.30 upon one of defendant’s lines of street railway.

Appeal by defendant from an order of the district court for Mower-county, Farmer, J., presiding, refusing a new trial after verdict of $926.9S for plaintiff.

Action brought in the municipal court of Minneapolis, against defendant Boutell and F. A. Cotharin, on the following promissory note: “Minneapolis, Oct. 6, 1888. “Five months after date we promise to pay to the order of Brunswick-Balke Collender Co. fifty-five dollars, with interest at the rate of seven per cent, per annum from date and attorney fees. “W. T. Boutell, Pres. “F. A.- Cotharin, Secty.

Plaintiff brought this action in the district court for Bamsey county, praying among other things that the defendant Hilgedick, the defendant Ide, his assignee, and the defendant Bean, sheriff of the county, be enjoined from the enforcement of a judgment of $345.96 recovered against him in the same court by the defendant Hilgedick, upon which execution had been issued.

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

The city of Duluth having advertised for proposals for publication, in a daily newspaper, of the ordinances, council proceedings, etc., of the city, the plaintiff was an unsuccessful bidder, the contract being awarded to the defendant the Duluth News Company. The plaintiff thereupon brought this action in the district court for St. Louis county, to enjoin the execution of the contract between the city and the News Company.

Appeal by Bloor, a resident of McLeod county, in this state, from an order of the district court for Benville county, Webber, J., presiding, affirming an order of the probate court, denying his petition that the will of Mary Thompson, of Southport, England, which had been duly proved in that country, be admitted to probate in Benville county, where real estate of the testatrix was situated, and that letters testamentary issue to him as one of the executors named in the will.

Plaintiffs brought this action in the municipal court of St. Paul against the defendant Vanderhoof and the North American Telegraph Co. as garnishee.

Appeal by defendant from an order of the district court.for Hem nepin county, Iiooker, J., presiding, denying his motion to set aside, for want of jurisdiction, a judgment of $4,128.79, recovered against him on his failure to answer.

Appeal by petitioner from an order of the district court for Hennepin county, Rea, J., presiding, refusing to appoint a receiver in insolvency proceedings.

Appeal by defendant from an order of the district court for Wright county, Smith, J., presiding, refusing a new trial after verdict of $175 for plaintiff.

Eeplevin, brought in the district court for Swift county, for a horse of the value of $100, plaintiff claiming under a senior, and defendant under a junior, mortgage from one Holzheimer. At the trial, before Powers, J., the plaintiff had a verdict. The defendant appeals from an order refusing a new trial.

The' defendant was tried and convicted in the district court for Otter Tail county, before Baxter, J., on an indictment charging him with selling “intoxicating liquor, to wit,, beer, in greater quantities than five gallons — to wit,.one keg of beer, containing eight gallons— to one B. L. Bies, without first having obtained a license,’’.etc. The defendant moved in arrest of judgment.

Appeal by defendants from a judgment of $254 for plaintiff, in an action brought in the district court for Olmsted county, and tried by Start, J., a jury being waived. The only defence pleaded was the discharge considered in the opinion.

<p>Will — Construction—Clause Saving Eights of Wife. — A will devising and bequeathing, in terms, all the testator’s real and personal property, contained this clause: “This disposition of my property is subject to, and not intended to.interfere with, the right of dower or other legal right of my wife, Olive Bedford, in and to my said property or any of the same. ” Held, that the clause qualifies' the bequest so as to exclude from it that part of the personal property which, in the absence of a testamentary disposition, the statute gives to the widow.</p>

Appeal by defendants from an order of the district court for Stearns county, Searle, J., presiding, overruling their demurrer to the complaint in an action to recover $5,000 for foroibly entering plaintiff’s house, assaulting her, and removing therefrom articles belonging to her. '

Action brought in justice’s court, where plaintiff had judgment for $86.50. On May 15, 1890, the defendant appealed to the municipal court of St. Paul, and paid the justice his fees, and the appeal was allowed. On June 2d the justice certified to the return, and on June 5, 1890, filed it with the clerk of the municipal court.

•Appeal by defendant from an order of the district court for Crow Wing county, Searle, J., presiding, (acting for the judge of the 15th district,) refusing a new trial after a trial before Holland, J., and verdict of $300 for plaintiff.

Defendant was tried and convicted in the municipal court of Minneapolis on a complaint for publishing a libel, and appeals from the judgment.

Appeal' by defendants from an order of the district court for Hennepin county, Smith, J., presiding, granting a temporary injunction against a foreclosure by advertisement.

Appeal by defendant Allan Black from an order of the district court for Bamsey county, Otis, J., presiding, denying his motion for a new trial. The action was brought by plaintiff against defendant Miller, the owner of the premises, and August Benson the principal contractor, to enforce a mechanic’s lien, Allan Black and others being made defendants as also claiming liens.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial after a verdict of $267.28 for plaintiff. ”

Appeal by defendant from an order of the district court for Blue Earth county, refusing a new trial after a trial before Severance, J., (a jury being waived,) and judgment ordered for plaintiff.

Appeal by defendant from an order of the district court for Blue Earth county, Severance, J., presiding, refusing a new trial after verdict of $216 for plaintiff.

Action brought in the district court for Bamsey county, to recover $3,680 and interest, as commissions for services in negotiating a sale to one J. Frank Collom, of 46 acres of land belonging to defendant, ■ of the value of $184,000. Defence, a general denial.

Appeal by defendant from an order of the district court for Jackson county, Perkins, J., presiding, refusing a new trial after a verdict of $236.15 for plaintiff.

Plaintiff brought this action in the district court for Brown county, to enjoin the removal of a school-house. The director of defendant, assuming to act for the defendant as well as for himself as such director, stipulated with plaintiff that the allegations in the complaint were true, and on this stipulation judgment was ordered and entered for plaintiff.

Action brought in the district court for St. Louis county, to recover $501.74, the amount of taxes, and also the amount of $72.83, the amount of a local assessment, paid by the plaintiffs, and for which it was claimed the defendant, as assignee of the lease mentioned in the opinion, was bound to reimburse them. A jury was waived and the action tried by Stearns, J., who ordered judgment for defendant. The plaintiffs appeal from an order refusing a new trial.

Action of ejectment, brought in the district court for Douglas county, and tried before Baxter, J., who directed a verdict for plaintiff. The defendant appeals from an order refusing a new trial.

Action on a promissory note of $500, brought by plaintiff, a nonresident of this state, in the district court for Clay county. On November 16, 1889, the plaintiff obtained an order allowing him to file security for costs nunc pro tunc, and for judgment against defendant unless the latter should serve an answer within 10 days after service of a copy of the order. The order was served November 19, 1889.

Action on a promissory note, brought in the district court for Namsey county by indorsee against maker. In his answer the defendant pleaded that he made the note under the circumstances ■stated in the opinion, and merely as agent for one Abbott and for his accommodation, as plaintiff, when receiving the note, well knew.

Replevin for two horses, brought in the district court for Hennepin county. At the trial before Rea, J., the jury found for plaintiff, and assessed the value of the property at $175. The defendants jointly appeal from an order denying their joint motion for a new trial.

Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial after a verdict of $318.39 for plaintiff. The former action, mentioned in the opinion, was .brought in the district court for Hennepin county.

Separate appeals by the plaintiff and the defendant from a judgment of the district court for St. Louis county, where the action was tried by Stearns and Ensign, JJ.

Appeals by defendants, heirs-at-law of Levi Gragg, deceased, from two judgments of the district court for Eamsey county, Otis, L, presiding, reversing orders of the probate court of Dakota county, and allowing the claims mentioned in the opinion (for $2,479.47 and $142.30, respectively,) in favor of plaintiff as assignee of the original claimants.

Appeal by plaintiff from a judgment of the district court for Blue Earth county, where the action was tried by Severance, J.

Ejectment for land in Scott county, brought in the district court for that county, and tried before Francis Cadwell, Esq., as referee, who ordered judgment for defendant, which was entered and from which the plaintiff appeals. The facts found were as follows: In 1856, Franklin Chase, being owner in fee, conveyed to Mary A. Clarke. On January 22, 1857, the latter mortgaged to Edward A. Judson. On February 28, 1857, Mary A. Clarke and Benj.

Action brought in the district court for Swift county for possession of certain bridge timber and piles of the value of $250. Defendant appeals from the judgment entered on the report of S. H. Hudson, Esq., referee.

Defendant was tried and convicted in the district court for Todd county, before Searle, J., on an indictment charging that “the said George Masteller, on the 3d day of April, A. D. 1886, at the town of Reynolds, in said county of Todd and state of Minnesota, unlaw'fully and carnally knew and abused” (a person named) “then and there a female child under the age of ten years; contrary to the form of the statute,” etc. He appeals from a judgment that he be imprisoned at hard…

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

<p>Justice of Peace — Jurisdiction — "Warrant Returnable in Adjoining Ward. — A justice of the peace has jurisdiction to make a warrant in a criminal proceeding returnable in a city ward adjoining that for which he was elected, and to there proceed to judgment;</p> <p>Same — Judgment.—Such a judgment, even though erroneous, will sustain a plea of former conviction.</p>

Appeal by plaintiff from an order of the district court for McLeod county, Edson, J., presiding, refusing a new trial after verdict for defendant in an action for the possession of a bull and two heifers, of the alleged value of $600, and for $500 damages for detention of them.

Appeals by plaintiffs from an order of the district court for Scott county, Edson, J., presiding, refusing a new trial after verdict for defendants, in an action to recover $287.81, on the cause of action considered in the opinion.

Action brought in the district court for Stearns county, to recover $96 and interest, alleged to be unpaid on a note of $500. Trial before E. G. Mills, Esq., as referee, who ordered judgment for defendants. A motion for a new trial was denied by Searle, J., and the plaintiffs appealed.

<p>Building Society — Taxation of Mortgages. — Mortgages held by mutual building associations, incorporated under our general statutes, held subject to taxation, the stock of the association not having been taxed.</p> <p>Same — Withdrawal of Funds by Members. — The right of members of such an association under the by-laws, upon one month’s notice, to withdraw from it the contributions they have made to its funds, is not applicable to funds loaned by the association. Only the funds in the hands of the association can be thus withdrawn.</p>

<p>Appeal from an order of the district court for Sherburne county, Baxter, J., presiding, refusing to set aside a judgment on default and allow an answer to be served.</p>

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

Action brought in the district court for Ramsey county, to recover $500 and interest on the contract considered in the opinion. The plaintiff appeals from an order by Kelly, J., refusing a new trial after verdict directed for defendant.

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

Plaintiffs brought this action in the district court for Hennepin county, against A. F. Howard, sheriff of Mille Lacs county, and a resident of that county, and Geo. J. Backus, a resident of Hennepin county, and assignee in insolvency of the firm of Frank W.V/oodcock and Jesse R. Nunn, partners as Woodcock & Nunn, to recover possession of 800 cords of mixed cord wood, piled at a place named in Mille Lacs county.

Action brought in the district court for Benton county, to compel the defendant, as county auditor, to draw his warrant on the treasurer for the purchase-money, with interest, paid on a void tax-sale, and the amount of subsequent taxes paid, with interest. Trial before Baxter, J., and judgment ordered-and entered for plaintiff, requiring defendant to draw his warrant for $1,430.90, from which the defendant appeals.

Appeal by defendant from a judgment of the district court for Blue Barth county, after a trial before Severance, J., and verdict of guilty of murder in the first degree, and a motion for a new trial denied.

Action brought in a justice’s court of Eamsey county, to recover $89 for services. Among other defences the defendants pleaded the pendency, in another justice’s court, in the same county, of an action by Menk Brothers against this plaintiff as defendant and these defendants as garnishees. There was no reply.

Appeal by defendant Bowen, impleaded with Michaél Mullen and Alfred J. Lamberton, from judgment (of $553) of the district court for Nicollet county, and from an order by Webber, J., refusing to hear a motion for a new trial after judgment.

Action brought in the municipal court of Minneapolis, to recover $218.25, for two barrels of whiskey sold and delivered. Appeal by plaintiffs from an order refusing a new trial after trial by the court and judgment ordered for defendants.

Appeal by defendant from an order of the district court for Ramsey county, Otis, J., presiding, refusing a new trial after verdict of $971.09 for plaintiffs.

Appeal by defendant from an order of the district court for Bamsey county, Kelly, J., presiding, refusing a new trial after verdict of $251.54 directed for plaintiff.

Action brought in the municipal court of Minneapolis, to recover possession of one horse and one set of single harness, of the value of $150. Both parties claimed under one Hildreth, plaintiff under a chattel mortgage for $800 on this and other property, the defendant as a subsequent purchaser, and the issue at the trial was whether the mortgage debt had been paid. The plaintiff had a verdict, and the defendant appeals from an order refusing a new trial.

Appeal by the St. Paul Trust Company, executor of the last will of Norman W. Kittson, (who died May 10,1888,) from an order of the district court for Kamsey county, Brill, J., presiding, affirming an order of the probate court denying the petition of the executor for a decree of distribution.

<p>Vendor and Purchaser — Effect of Purchaser’s Deed. — The estate or interest of a vendee in a contract to sell real estate will pass by his deed purporting to convey the land.’</p> <p>Same — Deed by One of Two Purchasers — Rights of Grantee — Tenants in Common. — Where there are two vendees named in such a contract to sell, they are tenants in common of the equitable title, and one of them may pass his interest in it by his deed purporting to convey the land, so that his grantee may perform the conditions of the contract and be entitled to a conveyance of the undivided interest in the land of such vendee.</p> <p>Same — Deed and Agreement to Reeonvey — Consideration.—Where, as one transaction, A. executes a deed conveying real estate to B., and the latter executes an agreement to reconvey, the execution of each is a sufficient consideration to support the other.</p> <p>Same — Stipulation for Damages — Option to Rescind. — In a contract to sell real estate, a clause by which the vendor promises to pay, in ease he refuse to sell, a specified sum, is by way of penalty or stipulated damages, and does not give the vendor an option to refuse to sell.</p> <p>Pleading — Relief on Counterclaim. — When in an answer matter is pleaded as a counterclaim, the defendant must have such relief, though not specifically demanded in the answer, as the facts proved within its allegations show him entitled to.</p>

Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., presiding, refusing a new trial after a verdict of $500 for plaintiff. The action was for a breach of contract to safely carry plaintiff as a passenger in one of defendant’s trains.

Action brought in the district court for Hennepin county, to determine the defendants’ adverse claims to unoccupied land in that county.

Appeal by defendant from a judgment of the district court for St. Louis county, entered on the pleadings pursuant to order of Stearns, J.

Plaintiff brought this action in the district court for Ramsey county against Geo.

Action brought in the district court for Ramsey county to recover damages for the conversion of household furniture and effects, stored by plaintiff with defendant Kent and by him sold, the defendant Jaques being the purchaser. At the trial, before Otis, J., the plaintiff had a verdict of $513 against both defendants,* who appeal from an order refusing a new trial. ^

Appeal by plaintiff from an order of the district court for Bamsey county, Otis, J., presiding, refusing a new trial after verdict directed for defendant in an action to recover $800 damages resulting from excavation along a street in front of plaintiff’s lot.

Case certified from the district court for Ramsey county, after trial before Brill, J., and judgment ordered for plaintiff, in proceedings to enforce payment of taxes against land of defendant occupied and used as stated in the opinion.

Ejectment for land in St. Louis county, brought in the district court for that county, and tried by Ensign, J., (a jury being waived,) who ordered judgment for defendant. The plaintiff appeals from an order refusing a new trial.

After the decision of a former appeal, (42 Minn. 520,) in which the complaint was sustained as against a demurrer, this action was tried in the district court for Polk county, before Mills, J., and plaintiff had a verdict of $2,100. The defendant appeals from an order refusing a new trial.

Appeal by defendants Hechtman and Josephine Bowers from a judgment of the district court for Bamsey county, Kelly, J., presiding, setting aside a mortgage foreclosure by advertisement and allowing plaintiff to redeem.

Appeal by the petitioner from an order of the district court for Hennepin county, refusing a new trial of his appeal (on questions of law only) from an order of the probate court refusing to admit to probate the will of Charles A. Washburn, deceased, the cause having been tried by Young, J., and judgment ordered affirming the order appealed from.

Action brought in the district court for Bamsey county, to recover $1,375 for breach of covenants in a deed from defendants to plaintiff Fannie Sábledowsky, who with her husband procured an order, pending this suit, changing their name to Sable. The plaintiffs appeal from an order refusing a new trial after a trial before Brill, J., and judgment of $1 damages ordered in their favor.

Action brought in the municipal court of St. Paul, to recover $120 as the reasonable value of defendant’s use and occupation, for three months, of certain premises of plaintiff in that city. Appeal by plaintiffs from a judgment for defendant.

Appeal by defendant from an order of the district court for Meeker county, Powers, J., presiding, refusing a new trial after a verdict of $4,070.50 directed for plaintiff.

Appeal by defendant from an order of the district court for Hennepin county, Hooker, J., presiding, refusing to set aside a judgment and allow defendant to answer.

Appeal by defendant from an order of the district court for Hennepin county, refusing a new trial after a trial before Bea, J., and judgment ordered for plaintiff establishing a lien for $900.37 on real estate of defendant.

Action brought in the district court for Ramsey county on a certificate for $2,000, issued by defendant to August Scheufler, and payable, upon his death, to the plaintiff, who is his widow. A jury was waived, and the action tried by Kelly, J., who ordered judgment for plaintiff. The defendant appeals from the judgment and from an order refusing a new trial.

Appeal by defendants from an order of the district court for Hennepin county, Lochren and Smith, JJ., presiding, refusing to dissolve an injunction.

Appeal by defendant from an order of the district court for Wright county, refusing a new trial after a verdict of $627 for plaintiff in an action .for personal injuries.

Appeal by plaintiff from an order of tbe district court for Hennepin county, Hicks, J., presiding, sustaining a demurrer to the complaint in an action on a promissory note for.$1,025.99.

Action brought in the district court for Hennepin county, to recover $2,992.75, being part of the money agreed to be paid to plaintiff by defendant by the contract considered in the opinion. A demurrer to the complaint was overruled by Young, J., and the defendant.appealed.

Action brought in the district court for Hennepin county, to determine the adverse claim of the defendants to vacant land in that county. Trial before Smith, J., whose findings are in substance as follows: On June 27, 1863, and for some time prior thereto, one James Dumbrach was the owner in fee of the land in controversy and'continued to be such owner until April 19, 1888, on which day he and his wife conveyed to plaintiff by quitclaim deed.

Appeal by defendant from an order of the district court for Fillmore county, refusing a new trial.after a trial by Farmer, J., and judgment of $3.31 and costs ordered for plaintiff. The action was an appeal from the disallowance, by the county board, of an item of $3.15 for fees of plaintiff, as constable, for serving a subpoena on a witness for defendant in a criminal case before a justice of the peace, in which a trial by jury resulted in an acquittal.

Appeal by defendant from a judgment (of $233.65) of the district court for Wadena county, where the action was tried before Holland, J., a verdict of $142.29 rendered for plaintiff, and a motion for a new trial denied.

<p>Mortgage with Power of Sale — Subsequent Law • Regulating Sale— Foreclosure Sale Pursuant to Such Law. — A mortgage executed in April, 1877, contained a power of sale authorizing the mortgagee, in case of default in the conditions of the mortgage, to sell the mortgaged premises at public auction, and convey the same to the purchaser, agreeably to the statute in such case made and provided. Held, that this was a complete and valid common-law power, capable of being executed, even in tlie absence of any statute regulating the manner of its exercise. Also that there is nothing in the retrospective application of Laws 1878, c. 53, (Gen. St. 1878, a. 81, tit. 1,) to the mode of executing this power, which conflicts with the terms of the mortgage, or impairs its obligation as a contract. Hence that a sale under the power, made in 1879, in accordance with this statute, was valid.</p>

Appeal by defendant from an order of the municipal court of Minneapolis, refusing a new trial after a trial by the court and judgment of $360 ordered for plaintiff.

Appeal by defendant from an order of the district court for Big Stone county, Powers, J., presiding, dismissing its appeal from a judgment of $37.57, recovered against it by plaintiff in a justice’s court.

Plaintiff, having recovered judgment of $7,428.55 against the defendant James M. Williams, on which execution had been returned wholly unsatisfied, brought this action in the district court for Olmsted county to set aside as fraudulent certain conveyances by which the title to real property had been transferred from the judgment debtor to his wife and codefendant.

These were four actions of ejectment for lots in St. Paul Park in Bamsey county, brought in the district court for that county by Alpheus B. Wood, Charles A. Miner, Alexander E. Herpin, and Harry P. Weis, (as administrator, with the will annexed, of the estate of Adam C. Deutz, deceased,) respectively, and tried together before Kelly, J., and a jury, who found for the defendants.' The plaintiffs respectively appeal from an order refusing a new trial.

Appeal by plaintiff from an order of the district court for Hennepin county, Hooker, J., presiding, sustaining a demurrer to the complaint in an action to recover $25,000 damages for an alleged libel published in defendant’s newspaper, of which amount the sum of $5,000 was claimed (under proper averments) as special damages for injury to plaintiff’s business.

Appeal by defendants from an order of the district court for Ramsey county, Kerr, J., presiding, refusing a new trial after a verdict of $2,643.57 directed for plaintiff.

Plaintiff brought this action in the district court for Bamsey county, to recover for the conversion of a retail stock of goods, claimed by him under a mortgage from Stahl &• Martin, the owners, and taken by defendant, as sheriff of the county, from the plaintiff’s possession, by virtue of an execution on a judgment against the mortgagors. At the trial, before Kelly, J., the plaintiff had a verdict of $800.75. The •defendant appeals from an order refusing a new trial.

<p>Application for a writ of quo warranto. Motion by respondent to dismiss.</p>

<p>Applications for leave to file informations in quo warranto.</p>

Appeal by defendant (formerly called the Minnesota Mutual Farmers’ Fire Insurance Association) from an order of the district court for Kittson county, Mills, J., presiding, refusing a new trial after verdict of $1,225 for plaintiffs.

Appeal by plaintiff from a judgment of the district court for Ramsey county, Brill, J., presiding, reversing an order of the probate court.

Appeal by defendants from an order of the district court for Ramsey county, refusing a new trial after trial before Otis, J., and judgment ordered for plaintiff fixing a lien for $623.13 and interest on the premises described in the complaint and directing a sale, etc.

Action brought in the district court for Hennepin county, to recover $3,400 damages for injuries to plaintiff’s wife. The plaintiff appeals from an order by Lochren, J., refusing a new trial after a dismissal ordered at the trial.

Appeal by plaintiff from a judgment of the district court for St. Louis county, where the action was tried by Stearns, J.

Plaintiff brought this action in the district court for. .Chippewa county, to enjoin a mortgage foreclosure and to have the mortgage and the record thereof cancelled, the complaint alleging tender of the mortgage debt and interest. The action was tried by C. L. Brown, J., (acting for the judge of the 12th district,) 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 Winona county, Start, J., presiding, refusing a new trial after a verdict of $2,000 for plaintiff.

These were two actions brought in the district court for Hennepin county, — the former by attaching and the latter by judgment creditors of Maria B. Nell, — the relief sought in each action being a decree that on the payment into court by plaintiff of the money theretofore tendered to the sheriff for redemption of certain lands sold under foreclosure of a mortgage made by Nell, a proper certificate of redemption should be issued, and, in default of such certificate, that the…

Action brought in the district court for Bamsey county on the bond considered in the opinion. Trial before Kerr, J., (a jury being waived) and judgment of $381.35 ordered and entered for plaintiff, from which the defendant Kelly, one of the sureties, appeals.

Appeal by plaintiff from an order of the district court for Mower county, Farmer, J., presiding, refusing a new trial after verdict directed for defendant, in an action to recover $2,000 for personal injuries.

Action to determine adverse claims to real property in Minneapolis, brought in the district court for Hennepin county against Ervin D. Townsend and Mary, his wife, and “also all other persons or parties unknown claiming any right, title, estate, .lien, or interest in the real estate described in the complaint herein.” An answer to the complaint was interposed by Emilia A. Townsend and others, alleging title in themselves as heirs-at-law- of Ervin D., who died intestate and…

Appeals by the executor and legatees named in the instrument propounded as the last will of Josephine O. Frisbie from an order of the district court for Blue Earth county, Backham, J., presiding, (acting for the judge of the 6th district,) granting a new.trial.

■ Ejectment brought in the district court for Bock county, for a strip of land forming part of the roadway occupied by defendants’ railway. The defendants claimed to have succeeded to the rights given by the contract considered in the opinion. A jury was waived, and the action tried by Perkins, J., who ordered judgment for plaintiff John F. for possession of the land unless defendants should pay him the sum of $1,344.80 g,s compensation for the taking and perpetual use of it.

Appeal by plaintiff from an order of the district court for Stearns county, Searle, J., presiding, refusing a new trial after a dismissal ordered at the trial, in an action to-recover $2,000 for personal injuries.

Appeal by plaintiff from an order of the district court for Ramsey county, Otis, J., presiding, refusing a new trial after verdict for defendant, in an action to recover $10,150 for personal injuries.

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

Appeal by defendants from a judgment of the district court for St. Louis county, where the action was tried by Mills, J., (acting for a judge of the 11th district.)

Appeal by plaintiff, assignee in insolvency of the Empire Coffee & Spice Company, from a judgment of the district court for Hennepin county, eñtered pursuant to tbe decision of Hicks, J., before whom the action (brought to recover $4,110.50) was tried without a jury.

Appeal by plaintiff from an order of the district court for Eamsey county, refusing a new trial after a trial before Wilkin and Brill, JJ., a jury being waived.

Action brought in the district court for Hennepin county, to enjoin the opening of certain streets across plaintiff’s yard. Defence, that the streets were platted and dedicated in July, 1857. Replication, adverse possession by plaintiff for more than 30 years. Trial before Hicks, J., who ordered judgment for defendant. The plaintiff appeals from an order refusing a new trial.

Appeal by plaintiff from a judgment of the district court for Ramsey county, where the action was tried by Otis, 3., (a jury being waived.)

Action for personal injuries, brought in the district court for Ram- ■ sey county. Plaintiff, a market-gardener, having a stall- outside the market-house in St. Paul, was standing at his wagon near his stall, when a wagon of one Wagner was struck by one of defendant’s streetcars, (drawn by horses,) and was thrown against plaintiff’s wagon, whereby plaintiff was thrown down and injured.

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

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

Action to recover a balance of $2,091.45 for work and labor, brought in the district court for Eamsey county, and removed for trial to Stearns county, and there tried before Searle, J., who directed a verdict for defendants. The plaintiff appeals from the judgment.

Actions brought in the district court for Eamsey county, to enforce mechanics’ liens.

Certiorari, to review an order of the probate court of Eamsey county, overruling and striking from the files the objections interposed by the relator, Charles W. Youngman, to the allowance of an instrument offered for probate as the last will of Edward Langevin.

<p>Mortgage —Foreclosure by Action — Right of Redemption in Party as to whom the Action is Dismissed — Estoppel.—Action of ejectment. Defendant claims title under a sale pursuant to judgment in an action to foreclose a mortgage given to H. in 1853, the judgment and sale having been in 1859. The mortgagor conveyed the land to B. after the giving of the mortgage. A judgment was recovered against B., which became a lien upon the land junior to the mortgage. B. then conveyed an undivided half of the land to 1ST., with covenants. The land was sold on execution to satisfy this judgment, July 16, 1857. W. became the purchaser. In an action to foreclose the mortgage all necessary parties were joined, including W. Four days before the expiration of the time to redeem from the execution sale, B. conveyed his other undivided half of the land to A. Within the succeeding eight days, but whether before or after the expiration of the time for redemption is not found, A. procured an assignment from W. of his sheriff’s certificate of sale, and afterwards received the sheriff’s deed. The plaintiff, through conveyance from A., claims title under the execution sale. It having been afterwards stipulated that the foreclosure action be discontinued as to W., judgment of foreclosure and sale was rendered as to the other defendants, but not as to W., as was decided on a former appeal. 41 Minn. 477. Held: 1. That the sale of the land, pursuant to the judgment in the foreclosure action, was subject to any right of redemption which W. may have had, and that he and those succeeding to his interest were not. es-topped by the sale from asserting such right.</p> <p>Same — Effect of Assignment of Certificate of Execution Sale to one Tenant in Common. — From the facts stated it does not necessarily follow, as a legal conclusion, that the transaction involving the assignment from W. to A. should be construed as in legal effect a redemption from the execution sale, the facts not being found as to whether this was before or after the time for redemption had expired, nor whether the parties at that time intended such a result. The mere relation of tenancy in common between A. and IsT. would not enable strangers to them, those . claiming under the prior mortgage, to insist that a peculiar legal effect shall be given to the transaction, contrary to the intention of the parties.</p> <p>Same — Entry by Mortgagee after Expiration of Right to Foreclose.</p> <p>After the expiration of the time within which a mortgage may be enforced by foreclosure, the mere entering into possession by tbe mortgagee, without objection on the part of the mortgagor, does not restore the mortgage to efficacy, or entitle the mortgagee to the rights of a mortgagee in possession.</p>

. Appeal by defendant from an order of the municipal court of, Minneapolis, refusing a new trial after a ‘trial by the court and judgment of $65.66 ordered for plaintiff. '

Appeal by defendant Berkey, one of the sureties in the bond considered in the opinion, from an order of the district court for Ramsey county, refusing a new trial after a trial by Brill, J., (a jury being waived,) and judgment of $1,681.51 ordered for plaintiff.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., presiding, refusing a new trial after judgment of $1,500 ordered by the court on the special findings of a jury, there being no general verdict.

Action brought in the district court for Hennepin county, to recover certain furnaces, of the value of $900, being a portion of those described in the order recited in the opinion. A jury was waived, and the action tried by Young, -J., who ordered judgment for plaintiffs. The defendant appeals from an order refusing a new trial.

Appeal by plaintiff from an order of the municipal court of Minneapolis, refusing a new trial after verdict for defendant in an action of replevin for household goods of the value of $300.

Action brought in the district court for Hennepin county, to restrain the defendants, the Board of Park Commissioners of Minneapolis, from taking lands of the plaintiff for the Minnehaha State Park, under the provisions of Laws 1885, c. 129. Trial before Lochren, J., who ordered judgment for defendant, which was entered, and the plaintiff appealed.

Action brought in the district court for Ramsey county, to recover $375 and interest on the instrument considered in the opinion. Trial before Searle, J., (acting for a judge of the 2nd district,) and verdict directed for defendant. The plaintiff appeals from an order refusing a new trial.

Appeal by defendant from an order of the district court for Blue Barth county, Severance, J., presiding, granting a new trial after verdict directed for defendant, in an action to recover $1,107.55 for injuries to plaintiff’s premises caused by diversion of surface water.

Ejectment for a lot in Minneapolis, brought in the district court for Hennepin county, and tried by Rea, J., (a jury being waived,) who ordered judgment for plaintiff. The defendant appeals from an order refusing a new trial.

Action on a promissory note for $500, brought in the district court for Le Sueur county. Trial before Edson, j., and verdict for defendants, who appeal from an order granting a new trial.

In proceedings to condemn land for railway purposes, tbe landowners severally appealed to the district court for Bamsey county, where the appeals were tried together before Kelly, J., and separate verdicts, aggregating $9,000, were rendered. The railway company appeals from an order refusing a new trial.

Action brought in the district court for Ramsey county, to recover $10,000 damages for the kidnapping of the plaintiff and abducting her from Goodhue to Steele county. The action was removed for trial to Goodhue county, and the defendants (county officers of that county) answered, alleging the matters stated in the opinion. A demurrer to the answer of defendant Seeback was overruled by Mc-Cluer, J., and the plaintiff appealed.

Actions brought in the district court for Crow Wing county and tried before Mills, J., (acting for the judge of the loth district.) In the first case plaintiff had a verdict of $3,000, and, in the second, of $7,000. In each ease the defendant appeals from the judgment.

Actions brought in the district court for Stearns county, and tried together before Baxter, J. The defendants appeal from an order in each case refusing a new trial after verdict for plaintiff of $57.83 in the first case, and $716.87 in the second.

Appeal by defendant from an order of the district court for Sherburne county, Searle, J., presiding, refusing a new trial after verdict of $1,238.96 for plaintiff.

<p>Partnership — Mortgage on Firm Property by Survivor and Executors of Deceased Partner, to Correct Former Mortgage. — A clause in the will of a deceased partner construed as authorizing his executors to join with the surviving partner in the execution of a mortgage upon real property of the firm, and also to join with him in a mortgage to correct a mistake of description in a like instrument executed by the testator and his partner in his lifetime, upon firm property.</p> <p>Same — To what Extent Such Mortgage Relates to Date of Original.</p> <p>Such corrective mortgage, (which fully stated its purpose,) as between the parties thereto and all persons who had dealt with the property with knowledge of the mistake of description in the original, or who dealt with it after record of the corrective mortgage, related back and constituted a lien as of the date of the original.</p> <p>Same — Real Property- — Parol Evidence to Show Partnership Interest. — Whether real property is partnership assets depends upon the intention and agreement, express or implied, of the partners. This is a matter of inference and evidence, and may be proved by parol testimony, such as the manner in which the members of the firm treated and used the property.</p> <p>Evidence — Conversation with Deceased Person — Waiver of Objection. — When it appears, upon the examination of a party to an action as a witness, that his testimony relative to conversations with another is incompetent because such person is deceased, the opposite party waives his right to have the evidence struck out by proceeding, without objection or motion, to cross-examine the witness as to such conversations.</p>

Plaintiffs presented a claim of $44,374.02, with interest, against E. Allen & Co., insolvents, to the defendant, which was receiver of the insolvent firm, which claim was wholly disallowed by it. Plaintiffs thereupon appealed to the district court for Eamsey county, where the'action was tried before Kelly, J., who ordered judgment allowing the claim to the amount of $31,444.49. Plaintiffs appeal from the judgment.

Appeal by defendant from an order of the district court for Ramsey county, refusing a new trial after a trial before Otis, J., and judgment ordered for plaintiff.

Action brought in the district court for Hennepin county against defendant as indorser of a promissory note of $1,000. Trial before Hooker, J., (a jury being waived,) .and judgment ordered for plaintiff. The defendant appeals from an order refusing a new trial. The instrument sued on is set forth in the opinion.

Proceeding in the district court for St. Louis county, to enforce payment of delinquent real-estate taxes against the property described in the opinion. The railroad company answered, and, on a stipulation of facts, the cause was heard by Stearns, J.,. who, ordered judgment against the property, and thereupon certified the case to this court.

Action by landlord against tenant, brought in a justice’s court in Hennepin county, for restitution of demised premises after termination of tenancy. The plaintiff had judgment, and the defendant appealed, on questions of law and fact, to the district court for Hennepin county, where the action was tried before Rea, J., and judgment ordered ■ and entered for defendant, from which the plaintiff appealed.

Certiorari, to review the order of the district court for Hennepin county, Smith, J., presiding, to review the order respecting'costs which is considered in the opinion.

Appeal.by defendant from an order of the district court for Hennepin county, refusing a new trial after a trial before Hooker, J., and judgment ordered for plaintiffs for $2,875 and interest from May 26, 1886. A former appeal is reported, 40 Minn. 30.

Defendant was tried in the district court for Olmsted county, before Start, J., and a jury, on an indictment for grand larceny in the first degree, and was convicted of grand larceny in the second degree. He appeals from the judgment entered after the denial of his motion for a new trial; ■

Appeal by the petitioners from .an order of the district court for Eamsey county, Otis, J., presiding, refusing a new trial of an appeal, on questions of law and fact, from an order of the probate court of the same county.

Action to determine defendant’s adverse claim to land in Anoka county, brought in the district court for that county, and tried by Smith, J., whose… Held: That the foreclosure was ineffectual for failure to serve on plaintiff, who resided on the premises at the time of the attempted foreclosure, the notice required by Gen. St. 1878, c. 81, § 5. (2) That plaintiff is entitled to judgment adjudging the sale ineffectual as to him, and that his rights were not affected thereby.

Appeal by defendant from an order of the district court for Hennepin county, refusing a new trial after a trial by Young, J., (a jury being waived,) and judgment of $375.90 ordered in favor of plaintiff, (a corporation.)

Plaintiff brought this action in October, 1888, in the district court for Washington county, praying that a conveyance, absolute in form, be declared a mortgage, and for leave to redeem.

Appeal by defendant from an order of the district court for Washington county, McCluer, J., presiding, refusing a new trial after a verdict of §10,000 for plaintiff.

Appeal by defendant Michael Bradley from an order of the district court for Sibley county, Eel-son, J., presiding, refusing a new trial after a trial by the court and judgment ordered for plaintiff.

Appeal by defendant from a judgment of the district court for Watonwan county, where the action was tried by Severance, J.

Action brought in the district court for Hennepin county, to determine the adverse claims of defendants to land in that county, alleged in the complaint to be vacant and unoccupied. The defendants answered alleging title in fee and possession in defendant Butler (the other defendants being his mortgagees) and asking judgment confirming his title as against the claims of plaintiff. The action was tried by Young, J., who ordered judgment for defendants.

Action brought in the district court for Stearns county, to recover $2,007.50, being the price ($2,500) paid by plaintiff for the town bonds mentioned in the opinion, less certain payments. Plaintiff appeals from an order by Searle, J., denying his motion for a new trial as to the defendant Heisler. The other defendants appeal from an order granting a new trial as to them.