Volume 50 — Minnesota Reports

Appeal by plaintiff, People’s Ice Company, from an order of the Municipal Court of the City of St. Paul, Tivohy, J., made September 30, 1891, vacating a judgment, and allowing defendant to answer. The summons in this action was served September 2, 1891, upon the defendant, Amelia Sehlenker, requiring her to answer in ten days, or judgment would be entered. The action was to recover $124.08 for ice sold and delivered.

Appeal by defendants Nils P. Liljengren and Augusta J., his wife, from orders of the Municipal Court of the City of Minneapolis, Ma-honey, J., made -July 23, 1891, refusing their separate motions for a new trial. Action by Mons Anderson, plaintiff, to recover of defendants $365 rent due under an oral lease of a part of the Sea Block, No. 913 Nicollet Ave., Minneapolis. The wife denied that she was a party to the contract of leasing.

Appeal by defendant Knut Aslesen from an order of the Municipal Court of the City of Minneapolis, Mahoney, J., made February 4, 1892, refusing him a new trial. Appeal, also, of defendant Charles M. ’ Bassett from an order of the same court, made February 24, 1892, denying a new trial in his case. Complaint was made in the Municipal Court of the City of Minneapolis against each defendant under Laws 1891, ch. 12.

Appeal by defendants, Michael Schwartz and Matthias Meclitel, from an order of the District Court of Scott county, Cadwell,.J., made December 29, 1891, granting a new trial. This action was commenced by Lewis H. Maxfield and Channing Seabury, plaintiffs, to recover of the defendants $287.81, balance of account for goods sold and delivered by plaintiffs to Berens & Nachts-heim prior to July 19, 1889.

The return showed that proceedings were begun in the City Council of. Minneapolis to widen Hennepin Avenue eleven fe.et on each side from Tenth street to Lyndale Avenue, making it eighty-eight feet wide. Commissioners were appointed and appraised damages. Belators owned a lot and a half on the northwest corner of Hennepin Avenue and Twelfth street, and had a large brick building on it. They were awarded $3,000.

Appeal by defendant, Julius F. Young, from an order of the District Court of Steele county, Buchham, J., made September 19, 1891, The plaintiffs, Barbara Wiesner and her husband, John M. Wies-ner, commenced this action in the Municipal Court of the City of Owatonna against defendant to recover $28,-which the wife paid him for a gold watch. She bargained for it in July, but did not pay for it or take it away until December, 1890.

Appeal by plaintiff, Alexander Corneilson, from an order of the District Court of Pine county, Crosbi/, J., made July 26, 1890, refusing his application for a new trial. On November 1,6, 1889; the plaintiff, by the casualty described in the opinion, lost his eyesight. He soon after commenced this action against the Eastern Eailway Company of Minnesota, claiming $20,200 damages. The trial was had in April, 1890.

Appeal by defendants, August Píete and Elsas Piete, his wife, from an order of the District Court of St. Louis county, Stearns, J.? made September 21, 1891, refusing a new trial.

Appeal by defendant, Melville C. Keith, from an order of the District Court of Hennepin county, Hooker, J., made August 31, 1891, granting a new trial. Action upon a promissory note for $480 dated January 31, 1890, due in six months, which plaintiff, Charles S. Cairns, alleges defendant made and delivered to one Thomas Stenson. Plaintiff bought the note of Stenson before its maturity. The defendant denied that he made the note. The issues were tried October 15, 1890.

Appeals by defendants Edwin A. Lamb, John H. Hill, Michael K. Morrison and Henry A. Johnson, from judgments of the District Court of St. Louis county, Stearns, J., entered May 21, 1891. There were four actions, one by each plaintiff. The complaint in each case alleged that the plaintiff therein owned a certain part of the southwest quarter of section twenty-one, T. 50, E. 14, in St. Louis county, and that defendants claimed an adverse estate and interest in it.

Appeal by plaintiffs Martin Lund and Frederick Neuman from a judgment of the District Court of Traverse county, G. L.- Brown, J., entered February 6, 1892, in favor of the Grant County Bank, inter-vener. Prior'to June 13, 1890, one James Howell owned forty shares of the capital stock of the Wheaton Roller Mill Co., and held certificates therefor.

Appeal by plaintiff, Charles F. Houghton, from a judgment of the District Court of St. Louis county, Start, J., entered March 10,1891. The defendants, Luther Mendenhall and Charles A. Duncan, were on July 26, 1890, in possession of lot thirty-one (31) and the adjoining westerly two and one-fifth feet in width of lot twenty-nine (29) in Duluth Proper, fronting on West Superior street.

Appeal by John 0. Beck, Treasurer of the Village of Gibbon, from an order of the District Court of Sibley County, Cadwell, J., made August 10, 1891, directing that a writ of mandamus issue requiring him to' render to the Trustees of School District No. 64 in said county, an account of all moneys paid to him for liquor licenses, prior to October 1st during the year 1890.

Appeal by plaintiff Henry R. King from a judgment of the District Court of St. Louis county, Stearns, J., entered October 12, 1891, decreeing that plaintiff had no title to or interest in the west half of the southwest quarter of section fourteen (14) and the southeast quarter of the southeast quarter of section fifteen, (15,) T. 63, R. 11, in Lake county, Minnesota. The United States granted this land to William Jones by patent dated September 6, 1890.

Appeal by defendant Herman Oltman from an order of the District Court of Benton County, Baxter, J., made August 20, 1891, refusing his application for a new trial. The plaintiff, J. Lonsdale, brought this action upon an open account for his services as a physician and surgeon, and for drugs and medicines furnished for defendant at divers times in March and April, 1889, of the value of $75. The Summons and Complaint were served on April 25, 1890.

Appeal by plaintiff, the Merchants’ Insurance Company of Newark, N. J., from an order of the Municipal Court of the City of St. Paul, Twóhy, J., made August 6, 1891, denying its motion for a new trial. The defendants, John S. Prince and John C. Shandrew, were local agents at St. Paul for the plaintiff, and were engaged in soliciting and writing fire insurance for it. On April 8, 1890, plaintiff canceled their agency.

Appeal by defendant, John E. Glover, from an order of the District Court of Ramsey county, Kelly, J., made December 10, 1891, denying bis motion for a new trial. The plaintiffs, James A. Sppdth and R. C. Libbey, commenced this action August 29, 1889. A demurrer to the complaint was overruled, (44 Minn: 260,) and defendant answered and plaintiffs replied. The issues were tried April 9, 1891, before the Court without a jury.

<p>Appeal by plaintiff, Alfred F. Webster, from a judgment of the District Court of St. Louis county, Ensign, J., entered October 17, 1891.</p> <p>Defendants Milo J. Luther and Louis Eouchleau claimed to own lots one (1) and two (2) in section eighteen, (18,) T. 62, R. 14, containing ninety-two and a half acres in St. Louis county. They de-, rived title as follows: Mary A. Robertson, of Benton county, Missouri, widow of James A. Robertson, deceased, was entitled under U. S. Rev. Stat. § 2306, to one hundred and twenty acres of the public land, additional to her original homestead entry of forty acres in said Benton county. On April 28, 1880, she gave to James A. Boggs a power, to act as her attorney to sell and convey the land she might obtain under her said right, and receive pay for it; and in the same instrument she assigned and released to Boggs, the proceeds of any such sale. On April 7, 1887, her application was filed in the local land office at Duluth, to enter the land above described, and on that day the receiver’s final receipt was issued to her. On the same day Boggs, as her attorney, conveyed an undivided half of the land in her name, to each of the defendants. The power of attorney and deeds were duly recorded April 15, 1887. The patent for the land was issued to her September 21, 1888.</p> <p>Plaintiff claimed title to the land under a quit claim deed to' him from Mrs. Robertson, executed in Benton county, Missouri, October 17, 1890. The land was vacant and unoccupied. The action was under 1878 Gf. S. ch. 75, § 2, as amended, and was tried by the Court July 6, 1891. Findings were filed October 7, 1891, and judgment was entered for defendants that they had the title.</p> <p>Whatever act Mr. Boggs does under the so-called power of attorney, he does, not for the benefit of the donor, but for himself. Nothing was to accrue to her; no further act was to be done that would benefit her, and whatever induced the execution of the contract, she was never to receive anything further. Thereafter the fruits and benefits of the gift of the government, were to go to Boggs. It states no consideration, but is sealed. It evidenced either a gift or a sale, it matters little which. The instrument is utterly null and void, as being in contravention of the homestead laws of the United States, and against public policy. Alien v. Merrill, 8 Land Dec. 207, 223; Allen v. Merrill, 12 Land Dec. 138; Cook v. Lindsay, 57 Texas, 67; Brown v. Simpson's Heirs, 67 Texas, 225.</p> <p>An attempt has been made to separate U. S. Rev. Stat. § 2306, from the remaining sections of the homestead laws. The Department of the Interior is given jurisdiction of the disposition of the public lands, and is charged with the duty of establishing a procedure in harmony with the spirit of the law, to give the same force and effect, and such procedure becomes eventually a part of the land laws. U. S. Rev. Stat. §§ 449, 453; Vantongeren v. Heffernan, 5 Dak. T. 180; Poppe v. Athearn, 42 Cal. 607.</p> <p>The contemporaneous and uniform construction of a law by executive officers charged with its execution, is entitled to great weight; and while Courts are not to be bound by such a construction, they have generally given the construction placed upon such a law by such officers great consideration. Courts will not overrule such construction without cogent reason. The uniform construction for twenty years placed upon these laws by those charged with their execution has a controlling force. Hastings, etc., R. R. Co. s. Whitney, 34 Minn. 538, 132 U. S. 357; United States s. Hill, 120 U. S. 169, 183; United States s. Philbrick, 120 U. S. 52; Brown s. United States, 113 D. S. 568; Edwards s. Darby, 12 Wheat. 206; United States s. Moore, 95 U. S. 760; United States v. Burlington, etc., R. Go., 98 U. S. 334; State s. Batchelder, 5 Minn. 223, (Gil. 178.)</p> <p>Therefore the construction placed upon these laws, and particularly those with reference to additional homesteads, by the Land Department of the United States, is entitled to the weight of judicial decision, in the examination of this case. Circulars of June 13, 1872; August 5, 1874; May 17, 1876; May 22, 1876; July 10,1876; February 17, 1877; March 10, 1877; September 1, 1879, and February 13, 1883. It is seen from these circulars that in official instructions and in the administration of these laws, the department has universally adhered to the personal character and nonassign-ability of these rights. The construction placed upon these laws by the department is further and unequivocally set forth in sundry important decisions. In re Wm. French, 2 Land Dec. 235-237; In re Roland's Children, 2 Land Dec. 241; In re Lars Winqvist, 4 Land Dec. 323; Smith Hatfield et al., 6 Land Dec. 557; J. B. Haggin, 7 Land Dec. 287; Hoffman v. Barnes, 8 Land Dec. 608; J. W. Jones, 9 Land Dec. 195; John M. Walker et al., 7 Land Dec. 565, and 17 C. L. 0.14.</p> <p>The decisions of the Courts show that they have taken the same view of these rights as the department. The right is a personal one, cannot be transferred or assigned to another, nor be the subject of traffic. Prior to entry and final proofs and full compliance with the law there can be no alienation, and all attempts to transfer the right, or render it effectual for another’s benefit, are void, and no right can be acquired thereby. Nichols v. Council,.51 Ark. 26; Mack-intoshs. Renton, 2 Wash. T. 121; Mackintosh v. Renton, 3 Wash. T. 431; Anderson v. Carkins, 135 U. S. 483; Marshall v. Cowles, 48 Ark. 362; Shorman v. Eakin, 47 Ark. 351; Warrens. Van Brunt, 19 Wall. 641; Cox s. Donnelly, 34 Ark. 762; Weeks s. White, 41 Kan. 569; Browns. Kennedy, 12 Colo. 235; Huston s. Walker, 47 Cal. 484; Damrellv. Meyer, 40 Cal. 166; Bass v. Baker, 6 Mont. 446;. Brewster v. Madden, 15 Kan. 249.</p> <p>The only eases really holding any doctrine contrary to that asserted by the plaintiff upon this branch of the ease are Mullen v. Wine, 26 Fed. Kep. 206, and Bose v. Nevada, etc., Wood á Lumber Co., 73 Cal. 885. The law enacted April 4, 1872, 17 U. S. Stat. p. 49, was amended June 8, 1872, 17 U. S. Stat. p. 333, so as to confine the right to additional tracts, to land contiguous to the original homestead. But as it was found that most of those who were entitled to the benefits of the act would be deprived thereof by reason of the contiguous lands being already taken up, this restriction was removed March 3, 1873, 17 U. S. Stat. p. 605. The section became part of the homestead laws. By the enacting clause of the law of' 1872, it became ingrafted upon and into the homestead law of 1862.</p> <p>• Mary A. Robertson, in executing a power of attorney, authorizing a conveyance of land to be acquired thereafter by her, did nothing in itself wrong or in contravention of the laws of the United States or against public policy. The law does not favor restraints upon alienation, and nothing short of a positive provision to that effect will justify the court in holding that a statute imposes such restraints. Townsend v. Fenton, 30 Minn. 528; Knight v. Leary, 54 Wis. 459.</p> <p>The fact is that the land in question was not entered under the United States Homestead Act of May 20, 1862, 12 U. S. Stat. p. 392; and none of the restrictions of that act have been violated by the execution of the instrument. The land in question was entered under 17 U. S. Stat. pp. 49, 333, and 605. This act is no part of the homestead act of 1862, and a person seeking the benefit of tlm act is not required to comply with the provisions of that act, nor is. he required to make either of the affidavits required by the Act of 1862, and the reason for the rule that a homesteader cannot alienate his homestead before final certificate issues, does not exist as to-an entry of land under the Act of April 4, 1872, as amended. If' these affidavits were not required by the law, the fact that the department attempted to construe or legislate the requirement of af~ fidavits into the law, will not make the requirement part of the law. Mary A. Robertson could contract to sell the land before entry, and could execute a power of attorney before entry, authorizing the attorney to convey the land after entry. Dole v. Wilson, 20 Minn. 356, (Gil. 308;) Doe v. Wilson, 23 How. 457.</p> <p>The question before the Court is merely a question of statutory construction, and the statute in question is in itself sufficient, to show that the instrument in question is free from any taint of illegality, and that the decision must be in favor of the defendants upon this question without regard to authorities. The following sustain the construction for which we contend: Mullen v. Wine, 26 Fed. Rep. 206; Rose v. Nevada, etc., Wood é Lumber Co., 73 Cal. 385; Knight v. Leary, 54 Wis. 459.</p> <p>An inspection of the cases cited by plaintiff shows that only two directly sustain the appellant’s theory of this ease, viz.: Nichols v. Council, 51 Ark. 26; Macintosh v. Renton, 2 Wash. T. 121, and 3 Wash. T. 436.</p>

Appeal by defendant, Thomas J. Thorson, from an order of the District Court of Hennepin county, Smith, J., made July 18,1891, denying his motion for a new trial. The plaintiff, George H. Perkins, for a cause of action, stated that H. K. Pratt, Hugh H. Miller, T. B. Holcomb, Chas.

Appeal by plaintiff, Walter S. Cox, from an order of the District Court of Clay county, Mills, J., made September 21, 1891, denying his motion for a new trial. This was an action under 1878 G. S. ch. 75, § 2, to determine adverse claims to lands in the Village of Barnesville, Minn. The plaintiff is the only child and heir of Henry S. Cox, deceased. The father was a private soldier in Illinois Volunteers in the war of the Rebellion.

Appeal by defendants, William Y. Lathrop and Charles P. Ireland, from an order of the District Court of Swift county, Powers, J., made October 9, 1891, denying their motion for a new trial. Joseph Miller, the husband of plaintiff, on January 8, 1890, executed and delivered to defendants a. mortgage, upon four horses, three cows, and some farm machinery, to secure the payment to them of $206.86 one year thereafter, with interest at ten per cent, a year.

Appeal by defendant, the Wampach Manufacturing Company, from a judgment of the District Court of Scott county, Gadwell, J., entered June 27, 1891. The defendant was a corporation organized under Laws 1873, ch. 11, and was engaged in the manufacture of wagons and other vehicles at Shakopee, Minn. On June 23, 1887,'it insured its property to the extent of f 2,500 for five years, against loss by fire, in the North Star Mutual Insurance Company.

Appeal by defendants, Maurice Durnam, Louisa M. Durnam, and Abisha B. Durnam, from a judgment of the District Court of Hen-nepin county, Hooker, J., entered September 10, 1891. The plaintiff, Emma Schmidt, brought an action against Maurice Durnam, for a breach of his promise to marry her; and on October 28, 1890, obtained a verdict against him for $2,750. Schmidt v. Durnham, 46 Minn. 227. Judgment was entered in that action in her favor, on December 30th, following.

Appeal by defendants, Amasa Bust and George L. Burrows) from' an order of the District Court of St. Louis county, Ensign, J., made-August 22, 1891, denying their motion for a new trial. Gibbs and Mallet owned a quantity of land in Lake county, Minnesota, on which was a mortgage to Albert Weiland and associates.

■ Appeal by defendant, Fanny Davenport, from an order of the District Court of Hennepin county, Hicks, J., made September 19, 1891, granting plaintiff’s motion for a new trial. The plaintiff Arthur A. Lotto brought this action to recover damages on account of the libel set out in the opinion in Williams v. Davenport, 42 Minn. 393, as follows: 22nd April.

Appeal by plaintiff Archibald D. McLeod from an order of the District Court of Ramsey county, Kelly, J., made September 18, 1891, granting defendant a new trial unless plaintiff consent to reduce his recovery to $675. John B. Baker owned certain furniture, bedding, crockery, and other property in use in the Clifton Hotel, St. Paul, and on October 23, 1889, made an assignment of all his unexempt property to plaintiff in trust for the benefit of his creditors.

Appeal by defendant, Allen J. Miller, from a judgment of the District Court of St. Louis county, Severance, J., entered March 22, 1892, decreeing plaintiff, N. Frederick Hugo, to be the owner in fee of seven-ninths of lot thirty-two (32) on east Second street in Duluth Proper, 1st Division. Henry E. Scott died intestate August 23, 1876, seized in fee of this lot, leaving him surviving a wife and three sons, his only heirs.

Appeal by defendant, Northern Pacific Bailroad Company, from an order of the District Court of Anoka county, Lochren, J.,made October 31, 1891, denying its motion for a new trial. A railroad crossing is in itself a warning of danger, and a person is bound to look and listen before going upon or attempting to cross the track.

Appeal by defendant, Thomas Moore, from an order of the Municipal Court of the City of Minneapolis, Elliott, J., made May 27, 1891, denying his motion for a new trial. On August 27, 1889, defendant rented of plaintiff, Eliza G. Finch, a dwelling house and premises in Minneapolis from month to month, agreeing with her to pay forty dollars a month rent in advance on the twenty-seventh day of each month.

<p>Statements of a Partner, when Evidence against the Other Partners.</p> <p>Admissions and declarations of one member of a firm, to be admissible in evidence as against and to bind his associates, must be made while he is engaged in transacting legitimate partnership business, or made in relation to matters within the scope of the partnership. By such declarations and admissions a transaction cannot be brought within the scope of the partnership business, when in fact it has no connection with it.</p> <p>(Opinion published 5.2 N. W. Rep. 386.)</p>

Appeal by defendant, William Daniel Grimes, from a judgment of the District Court of Cottonwood County, P. E. Brown, J., entered July 1, 1891, adjudging him guilty of arson in the second degree, and that he be imprisoned therefor ten years at Stillwater at hard labor.

Appeal by defendant, Martinus Jevne, from an order of the Municipal Court of the city of Minneapolis, Elliott, J., made October 1, 1891, denying his motion for a new trial. Complaint was made in that court that on August 16, 1891, defendant, being the proprietor of a saloon where intoxicating liquors' were sold by the glass, did fail and omit to close his said saloon and¡ to keep it closed during that day, which was Sunday; contrary to' an ordinance of that city.

Appeal by defendant, Achille Michaud, from a judgment of the Municipal Court of the City of St. Paul, Twohy, J., entered August 27, 1891, against him for $214.61. The plaintiffs, James Grace and Ellen Butler, owned the house No. 272 West Seventh Street in St. Paul, andón May 1, 1890, defendant rented it of them, agreeing verbally to pay $50 a month rent, payable in advance, on the first day in each month.

Appeal by Walter W. I. Bock, one of the defendants, from a judgment of the District Court of Eamsey County, Kerr, J., entered April ■25, 1891, in favor of plaintiff, Harry Lockwood, for $588.23. Edwin C. Putnam, one of the defendants, on February 12, 1887, made his four promissory notes for $110 each, and interest, payable two years thereafter, to defendant Bock or order, and delivered them to him. He soon after sold, indorsed, and delivered the notes to plaintiff.

Appeal by defendant, the St. Paul City Railway Company, from an order of the District Court of Ramsey County, Egan, J., made February 20, 1892, denying its motion to set aside the verdict and grant a new trial. The plaintiff, Oran S. Pine, was on November 10, 1891, ejected from a street car on Wabasha street in St. Paul, for nonpayment of fare.

Appeal by defendant, St. Paul City Railway Company, from an order of the District Court of Ramsey County, Brill, J., made September 8, 1891, denying its motion for a new trial. Plaintiff, Frederick W. Steeg, was on November 24-, 1890, an electrical engineer in the employ of the Thomson-Houston Electric Supply Company. He and two men under him had been out doing work, and returning with their tools, took the east bound Selby Avenue cable car at Virginia Avenue.

Appeal by defendant, Robert L. Wilkins, from a judgment of the District Court of St. Louis County, Stearns, J., entered June 3, 1891, against him for $7,684.78.

Appeal by defendant, Jennie E. Pugsley by W. E. Gaston, her guardian ad litem, from a judgment of the District Court of St. Louis County, Ensign, J., entered June 23, 1891. George C. Howe and Philip M. Graff, plaintiffs, brought this action against Jennie E. Pugsley, Nehemiah Hulett, William W. Spalding and others, defendants, for the partition between them of the northeast quarter and the southwest quarter of section eight, (8,) T. 51, E. 12, in St. Louis county.

Appeal by plaintiff, Charles N. Ling, from an order of the District Court of Clay County, Searle, J., made December 8,1891, denying his motion for a new trial. The issues in this action were brought to trial on June 16, 1891. At a former trial had in June, 1890, plaintiff had a verdict for $12,-000. The defendant moved for a new trial, which was refused on the condition that plaintiff stipulate to reduce the verdict to $4,000.

Appeal by Edwin Cooley, one of the defendants, from an order of the District Court of Hennepin County, Hicks, J., made September 25, 1891, denying his application to be allowed to answer after default. It was shown to the Court below that appellant submitted his case to his attorney, and was told that the principal debtors having answered, his rights would be protected, and he need not answer. Eelying on this he neglected to answer.

Appeal by defendants, Jacob Levine and Abram Levine, from a judgment of the Municipal Court of the City of Tower, in St. Louis County, Scott, J., entered November 3, 1891. The plaintiff, Dominico Bretto, brought this action May 5, 1891, to recover possession of the personal property mentioned in the opinion. He claimed that he had bought it of defendants, and paid them for it at the same time that he bought and paid for the lot and store building thereon.

Appeal by George W. Stevens, one of the defendants, from an order of the District Court of St. Louis County, Stearns, J., made October 12, 1891, overruling his demurrer to the complaint.

Appeal by plaintiffs John Panton and Joseph Watson, from an ■order of the Municipal Court of the City of Duluth, Hanks, J., made •July 8, 1891, granting defendant a new trial. The defendant, the Duluth Gas and Water Company, on October 24, 1890, demanded of plaintiffs $171.63, claiming that amount to he due it for water supplied to plaintiffs during ten months.

Appeal by plaintiffs Herman Felsenthal, Jacob Gross, and Adam Miller from an order of the District Court of Ramsey County, Brill, J., made September 11, 1891, denying their motion for a new trial. Plaintiffs were partners in banking at Chicago, Ill.

Appeal by plaintiff, Almeric PL Paget, from an order of the District Court of Bamsey County, Kerr, J., made August 25, 1891, denying his motion for a new trial. The contention in this court was mainly upon the evidence, whether it sustained the findings of fact made by the trial court. These findings are in substance stated in the opinion.

Appeal by plaintiff, August Eosquist, from an order of the District Court of Hennepin County, Hooker, J., made July 27, 1891, refusing his application for a new trial. The defendant, the D. M. Gilmore Manufacturing Company, was a corporation engaged in manufacturing furniture at its shops in Minneapolis.

Appeal by plaintiff, Thomas A. Buckley, from an order of the District Court of Ramsey county, Egan, J., made October 23, 1891, denying his motion for a new trial. The defendants Emma E. Humason, Idora Montgomery, and Alice Eraneisco sold to Augustus K. Barnum certain leasehold property and buildings thereon, called Ogden Flats, in Chicago, Ill., in exchange for Midway property in St. Paul, valued at $175,000.

Appeal by intervener, Amos C. Sardeson, from a judgment of the District Court of Hennepin County, Hooker, J., entered September 18, 1891, in favor of plaintiff, Nicholas J. Reilly, and against defendant, Robert E. Bader, for $792.74 and costs. The intervener also by the same notice appealed from an order made in the action September 16, 1891, denying his motion to set aside the verdict and to be allowed to file and serve a supplemental complaint in intervention.

Statement made to this court by the District Court of Scott County, Cachuell, J., under 1878 G. S. ch. 11, § 80, upon the application of Henry Hinds. On January 13, 1892, the District Court decided • against Mr. Hinds, the points raised by his answer, as to the legality of certain general taxes and sidewalk assessments for 1889, upon town lots owned by him in the city of Shakopee in Scott county.

Appeal by defendant Austin Corbin, from an order of the District Court of Becker County, Mills, J., made November 9, 1891, denying, his motion for a new trial. The plaintiff, Elon G. Holmes, commenced this action in December, 1890, under the statute to determine the adverse claim of defendant to eighty acres of vacant and unoccupied land near Detroit,, in Becker county. Issue was joined therein, and the action was on the calendar for trial at the January Term, 1891.

Appeal by defendants, Ara D. Sprague, Edward Thompson, and Orinda Thompson, his wife, from an order of the District Court of Houston County, Farmer, J., made November 28, 1S91, overruling their demurrer to the complaint.

Appeal by plaintiff, Charles Church, from an order of the District. Court of Eamsey County, Cornish, J., made February 6, 1892, denying his motion for a new trial. When plaintiff’s evidence was in, the defendant moved to dismiss the action, and the motion was-granted. Plaintiff moved for a new trial.

Appeal by defendants, Mary McCarthy, John C. McCarthy, Richard W. Bell, Mary Bell, and James Bell, from an order of the District Court of Ramsey County, Kerr, J., made November 21, 1891, denying their motion for a new trial. On April 21, 1884, one Jeremiah C. McCarthy was the owner of lots four, (4,) five, (5,) six, (6,) and seven, (7,) in Block one hundred and eighty-one, (181,) in Robertson’s Addition to West St. Paul.

Appeal by defendant, St. Paul Fire & Marine Insurance Company, from an order of the District Court of Hennepin County, Pond, J., made December 7, 1891, overruling its demurrer to the reply. One Joe Ghinsburg, owned on December 29, 1890, a stock of merchandise at Atwater in Kandiyohi county, of the value of $3,200, on which the defendant issued to him its policy of insurance against loss by fire to the amount of $1,500 for six months.

Appeal by plaintiff, W. H. Dean, from a judgment of the District Court of Renville County, Webber, J., entered January 8, 1892, for defendant. Plaintiff was a constable, and served a warrant, a subpoena, and a venire in a criminal action. The writs were issued by a justice of the peace of Renville county. He presented to the defendant the Board of County Commissioners of that county a bill for his fees.

Appeal by the defendant, the State Bank of Minneapolis, from a judgment of the District Court of Hennepin County, Hooker, J., entered November 5, 1891. Held: and the bank appealed. If it be true that Benjamin B. Groff had a right to have the west half of the property reconveyed to himself, he had an equitable interest in it. The whole title as between him and Wm. H. Groff was hot in Wm.

Information filed in this court April 16, 1892, by Moses E. Clapp, Attorney General, praying that its writ issue to Hans 0. Held: used, and usurped the office without right or warrant, and contrary to law. The respondent appeared and demurred to the information, that it did not state facts sufficient to constitute a cause of action; that Laws 1881, ch. 108, contravenes the Constitution, and that the suspension was not made within this state.

Appeal by plaintiffs, F. C. Maltby, James A. Smith, and D. L. Thompson, from an order of tbe District Court of Dakota County, Crosby, J., made November 6, 1891, sustaining a demurrer to their complaint. Plaintiffs, on October 9, 1891, brought this action, as taxpayers, against defendant, M. C. Tautges, as County Auditor of Dakota County, to enjoin him from including in the tax rolls of that year a tax to pay a third of the $7,000 bonds issued by Dakota County under Sp.

Appeal by plaintiff, Dennis Boyle, from a judgment of the District Court of Hennepin County, Hooker, J., entered July 25, 1891, in favor of defendant Noah Adams, upon his demurrer to the complaint. A case cannot be dismissed upon the motion of the court where the plaintiff fails to appear. The record does not show that the defendant’s attorney asked for a dismissal of the action, and it could only be done upon his request.

Appeal by defendants, Peter Jordain, Samuel Mathews, and David C. Gaslin, from a judgment of the District Court of Washington County, Williston, J., entered January 5, 1892, against them for $4-,023.83 and costs. Plaintiff, Alpheus B. Stickney, on October 7, 1887, sold and conveyed to defendant Gaslin four hundred and forty acres of pine timber land on the Upper Tamarack in Douglas County, Wisconsin, for $6,000, and took his note for the full amount.

Appeal by defendant, D. M. Osborne & Co., a corporation, from an order of the District Court of Murray County, P.E. Brown, J., made October 1, 1891, denying its motion for a new trial. In July, 1885, defendant delivered to plaintiff James Fitzpatrick a. binder on trial. After testing it, plaintiff claimed it did not work properly.

Appeal by plaintiff, Mary M. Gowan, from a judgment of the District Court of Chippewa County, Powers, J., entered December 31, 1891. On- November 4, 1881, plaintiff recovered judgment in the District Court of Swift County against Hannah J. Bensel, for $1,014.49. This’judgment was docketed in Chippewa County on’December 2, 1889.

Appeal by defendants Henry L. Shepard and Bertha L. Shepard, his wife, from an order of the District Court of Hennepin County, Hooker, J., made November 3, 1891, denying their motion for a new trial. Action to foreclose a lien for a furnace and materials, sold by' plaintiffs William Miller and David Allen, copartners, to James L. Stoddard.

Appeal by defendants Henry M. Little and Esther B. Little, from an order of the District Court of Plennepin County, Hooker, J., made November 3, 1891, denying their motion for a new trial. Esther B. Little owned the west sixty-five (65) feet in width of lots thirteen (13) and fourteen (14) in block two (2) in Nicollet Avenue Addition to Minneapolis, and on May 13, 1890, she sold the property to her son Henry M. Little for $2,000.

Appeal by defendants, Ina M. Gutterson and others, from an order of the District Court of Steele County, Buckham, J., made January 14, 1892, overruling their demurrer to the complaint. . The plaintiff, Mrs. Jessie E. Gutterson, brought this action August 6,1891, against the Minnesota Masonic Belief Association to recover $2,000. This corporation before answering deposited the money in court, and filed an affidavit that Ina M. Gutterson and others also claimed the money.

Appeal by defendant, L. L. May, from an order of the District Court of Eamsey County, Kelly, J., made January 2, 1892, refusing a new trial. The plaintiff, Or. W. Anderson, was in the business of raising and selling seeds at Eed Wing, Minnesota. On March 7, 1890, May, a seedsman at St. Paul, ordered 591 bushels of beans of different varieties, to be raised by Anderson and delivered to May at St. Paul by November 15, 1890.

Appeal by defendant, William J. Valentine, from an order of the District Court of Eamsey County, Egan, J„ made October 20, 1891, ■striking from the files and vacating his demand for a second trial under 1878 G. S. ch. 75, § 11. After the decision of this case, 45 Minn. 502, a remittitur was issued, and plaintiff, William J. Godfrey, had judgment entered in the trial court May 2, 1891.

Appeal by defendant, Wilson J. Van Dyke, from an order of the District Court of Washington County, Wiiliston, J., made December JO, 1891, denying his motion for a new trial. Action by plaintiffs, Andrew J. Short, and Elizabeth Cover, commenced October 26, 1886, for an accounting, and for specific performance of a contract, made by defendant Wilson J. Van Dyke, January 23, 1874, with said Short.

Appeal by defendant, the Standard Oil Company, from a judgment •of the District Court of Ramsey County, Otis, J., entered against it Áíarch 18, 1892, for $3,151.68 fees for inspection of oils. The plaintiff, H. B. Willis, was the State Inspector of illuminating oils.

Appeal by the Winona & Southwestern Eailway Company from the decision of the District Court of Mower County, Farmer, J., made May 16, 1891, prescribing the conditions on which it was permitted to construct its track at grade, across the track of the Chicago, Milwaukee & St. Paul Eailway, at Le Eoy in that county.

Appeal by plaintiff, Archibald Johnson, from an order of the District Court of Itasca County, Holland, J., made February 25, 1892, sustaining defendant’s demurrer to the complaint. Under Laws 1889, ch. 22, the commissioner of the state land office issued to Leonidas Merritt, March 29, 1890, a mineral lease for one year, of the southeast quarter of section thirty-six, T. 57, R. 23, in said county. He assigned the lease to defendant D. H. Merritt.

Appeal by defendant George 0. Nettleton, from an order of- the District Court of St. Louis County, Stearns, J., made October 17, 1891, refusing his motion for a new trial. Action brought by plaintiff, A. E. Walker, upon a promissory note for $5,000, made by defendant March 12, 1889, payable to the order of E. C. Howard, two years thereafter, with interest. Howard indorsed and transferred the note to M. 0. Hall.

Appeal by Andrew J. Finnegan, one of the defendants, from a judgment of the District Court of Kandiyohi County, Powers, J., entered October 28, 1891, quieting and confirming the title of plaintiff, William P. Todd, to eighty acres of land in Meeker County. Ole Eidem owned the land and on April 15, 1876, mortgaged it to George F. Snow with power of sale in case of default in payment of the debt secured.

Appeal by the plaintiff, the Pioneer Savings and Loan Company, from an order of the District Court of Hennepin County, Canty, J., made December 5, 1891, sustaining a demurrer to the complaint. On July 1, 1890, the defendant Stephen S. Farnham owned two adjacent lots in Minneapolis with a block of buildings thereon, and on that day mortgaged them to plaintiff to secure the payment by him of $6,500 and interest.

Appeal by plaintiff, John Kerwin, from an order of the District Court of Washington County, Williston, J., made January 13, 1892, denying his motion for a new trial. June 20, 1882, plaintiff owned a certificate for one hundred shares, $50 each, of preferred capital stock of the Northwestern Manufacturing and Car Company, and deposited it with the company as collateral security for the payment of his note to the company for $4,000 and interest.

Appeal by plaintiff, Edwin Y. Holcombe, from an order of the District Court of Eamsey County, Kelly, J., made January 5,1892, sustaining a demurrer to the amended complaint.

Appeal by defendants, Charles F. Arrol and James H. Farrell, from an order of the District Court of Ramsey County, Kelly, J., made September 11, 1891, denying their motion for a new trial. The plaintiff, Aman Cornfeldt, was a tailor carrying on his trade at St. Paul, and owned and used in his business two sewing machines. Farrell was on April 2, 1891, a constable.

Appeal by defendants, John Ahrens and others, from an order of the District Court of Crow Wing County, Holland, J., made September 25, 1891. On the trial of the issues plaintiff moved for judgment on the pleadings. The court granted the motion. On motion of defendants, the court stayed proceedings by plaintiff for forty days. Before this stay expired, and before entry of judgment, and without making any motion for a new trial, defendants appealed to this court.

Appeal by defendant, Harry F. Legg, from a judgment of the Municipal Court of the City of Minneapolis, Elliot, J., entered against him January 30, 1892, for $150.17. On April 20, 1888, defendant and others subscribed for and severally agreed with the plaintiff, the Minnehaha Driving Park Association of Minneapolis, to take the number of shares of its stock set opposite their names respectively, and to pay for them in installments as called for by the board of directors.

Appeal by plaintiff, the National Investment Company, and cross appeal of defendants Charles Nordin and wife, from a judgment of the District Court of Eamsey County, Kelly, J., entered March 29, 1892. Action upon a promissory note for $500 and interest, made by defendants Charles Nordin and Mary E. Nordin, his wife, October 1, 1889, payable to the order of plaintiff two years thereafter. The note was secured by their first mortgage upon a lot in St. Paul, owned by the wife.

Appeal by defendant, the German-American Insurance Company of New York, from a judgment of the District Court of Bamsey County, Egan, J., entered November 2, 1891, against it for $1,226.52. By the terms of the policy, when a disagreement as to the amount of loss arose, an award of appraisers became a condition precedent to the right of action. Gasser v. Sun Fire Office, 42 Minn. 315; Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116; Hamilton v. Liverpool, etc., Ins.

Appeal by plaintiff, Nancy A. Groff, from an order of the District Court of Hennepin County, Lochren, J., made December 5, 1891, denying her motion for a new trial. Plaintiff and her husband on December 1, 1886, mortgaged her homestead in Minneapolis to the Home Insurance Company to secure the payment of $10,000 and interest.

Appeal by relator, Carrie Olson, from an order of the District Court of Goodhue County, Williston, J., made April 5, 1892, remanding her minor son Osear E. Olson to the custody of J. W. Brown, Superintendent of the State Beform School at Bed Wing.

Appeal by defendant, R. Miller, from a judgment of the District Court of Cottonwood County, P. E. Brown, J., entered against him September 7, 1891, for $63.80. The plaintiff, R. H. Rucker, commenced this action in the court of a justice of the peace to recover upon an account stated for making cheese. Defendant claimed to offset damages he sustained because the cheese was not well made. Plaintiff had a verdict Saturday evening, March 28, 1891, for $30.

Appeal by defendant, Burt Lockerby-, from an order of the District Court of Goodhue County, Williston, J., entered November 20, 1890, refusing him a new trial after verdict of guilty. He was indicted for the seduction of Bertha Quamme under promise of marriage.

Appeal by defendant, William E. Haskell, from an order of the District Court of Hennepin County, Canty, J., made December 28, 1891, overruling his demurrer to the complaint. William Farnsworth and Jacob Eauen were doing a banking business under the name of Bank of North Minneapolis. They became insolvent and made an assignment of their property to pay their creditors.

<p>Appeal by plaintiff, Walter E. Myers, from an order of tbe District Court of Faribault County, Severance, J., made February 2, 1892, sustaining a demurrer to bis complaint.</p> <p>cited State v. Missouri Pac. R. Co., 29 Neb. 550; Evershed v. London é N. W. Ry. Co., 2 Q. B. Div. 254; 3 Q. B. Div. 134; 3 App. Cas. 1029; West v. London & N. W. Ry. Co., L. E. 5 C. P. 622; Wells v. Oregon dc Cal. Ry. Co., 18 Fed. Eep. 667; 19 Fed. Eep. 20; Texas Express Co. v. Texas é Pac. Ry. Co., 4 Woods, 370; Southern Express Co. v. Memphis, etc., R. Co., 2 McCrary, 570; Houston d Texas C. R. Co. v. Rust, 58 Texas, 98; Hays v. Pennsylvania Go., 12 Ifed. Eep. 309; Goodridge v. Union Pac. Ry. Co., 35 Fed. Eep. 35; Samuels v. Louisville d N. R. Co., 31 Fed. Eep. 57; Chicago d Alton R. Co. v. People, 67 El. 11; Rhodes v. Northern Pac. R. Co., 34 Minn. 87.</p>

Appeal by defendant, Ezra P. Lambert, from a judgment of the District Court of Kanabec County, Crosby, J., entered February 25, 1892. Held: and properly we think, that these tax deeds did not give to the grantees in them any title to this land.' They did not show that the treasurer had any authority to make the sales.

Appeal by defendant, Dowagiac Manufacturing Company, from a judgment of the District Court of Clay County, Searle, J!, entered July 23, 1891, against it for $93.05 and costs. This action was begun by plaintiff, B. F. Baumgardner, in the court of a justice of the peace. Defendant was a nonresident corporation, and in March, 1890, sold plaintiff a grain drill, and warranted the machine to do good work.

Appeal by plaintiff, Jacob H. Lowenstein, from a judgment of the District Court of Ramsey County, Cornish, J., entered June 11, 1891. Action under 1878 G. S. ch. 75, § 2, to determine the adverse claims of defendants Marie Greve, Sarah W. Kalman, Doretta Du-puy and others, to a lot in St. Paul. The defendants set forth their claims to the lot and asked judgment quieting their title.

Appeal by defendants, Charles K. Fulton, D. L. Libbey, and others, lien claimants, from the judgment of the District Court of Hen-nepin County, Pond, J., in the above-entitled action entered October 26, 1891. ' ■ The defendant Olaf A. Freeburg was on May 17, 1890, the owner of a lot in Highland Park Addition in the city of Minneapolis, and ■on that day entered into an oral contract with Neis A. Freeburg to build thereon for him a block of brick flats and other improvements.

Appeal by plaintiffs, Alonzo T. Band, Bufus B. Band, Kate Ogle and Leavitt S. Band, from a judgment of the District Court of Hen-nepin County, Canty, J., entered March 12, 1892. Action against the defendant, the Board of County Commissioners of Hennepin County, to recover $1,000 paid December 3, 1885, by the administrators of the estate of Alonzo C. Band, deceased, into the county treasury of that county under Laws 1885, ch. 103, since held unconstitutional.

Appeal by defendant, the St. Paul City Eailway Company, from an order of the District Court of Eamsey County, Brill, J., made September 10, 1891, denying its motion for a new trial. The plaintiff, John C. Shea, a liveryman, was on January 26,1891, at ten o’clock in the forenoon, driving his team and hack east along Eighth Street in St. Paul.

Appeal by plaintiff, George S. Gifford, from a judgment of the District Court of Kandiyohi County, Powers, J., entered January 18, 1892, against him upon the pleadings. The defendant, John H. Wiggins, made complaint December 9, 1890, before George Miller, a justice of the peace, that Gifford had violated an ordinance of the Village of Wilmar, prohibiting persons without a license, from peddling from house to house, goods not manufactured or grown in Kandiyohi county.

Appeal by defendant, the Great Northern Eailway Company, from a judgment of the Municipal Court of the City of Minneapolis, Elliott, J., entered March 4, 1892. The defendant was on November 23, 1891, indebted to one A. Zel-lar, a freight train conductor on its railroad in Montana, $95.25 for services. Zellar was at the same time indebted to John S. Truscott of Montana, in the sum of $79.50.

Appeal by defendant, the Manufacturers’ and Builders’ Fire Insurance Company of New York, from an order of the District Court of Hennepin County, Smith, J., made March 2, 1892, denying a new trial. On June 6, 1889, defendant issued to plaintiff, Sol Smith Bussell,, its policy of insurance for three years in the sum of $2,500 against loss by fire on his five story brick and stone building situate on Fifth Street, Minneapolis.

Appeal by M. Nyberg, claimant, from an order of the Municipal ■Court of the City of St. Paul, Cory, J;, denying his motion for a new trial. Charles McMillan, plaintiff, commenced this action April 29, 1891, in a justice court in St. Paul against Peter Edfast, defendant, to recover $28.49, and he at the same time filed his affidavit that the Northern Pacific Railroad Company, garnishee, was indebted to Ed-fast in a sum exceeding $25 for services in April, 1891.

Appeal by defendant, Octave Goodnature, from an order of the District Court of Freeborn County, Farmer, J., made October 6, 1891, refusing him a new trial. Action brought by plaintiff, William Bell, for trespass and cutting trees upon his land by the defendant, who owned adjacent land on the west. The dispute between them was as to the true location of the dividing line.

Appeal by plaintiff, Lydia A. Tilleny, from an order of the District Court of Hennepin County, Lochren, J., made February 27, 1892, denying her motion for a new trial.

Appeal by plaintiff, W. H. Magie, from a judgment of the Municipal-Court of the City of Duluth, Hanks, J., entered March 15,1892, in favor of defendants. Plaintiff is a physician, and surgeon, and as such rendered services of the value of $214 for Ed Marsh and Peter Manville, two laborers who were injured in the sawmill of the defendants Gustavus Herman, Christian Becklinger and Julius Herman.

Appeal by plaintiff, Edmund S. Durment, from a judgment of the District Court of Eamsey County, Otis, J., entered March 5, 1892. On January 8, 1885, Augustus K. Barnum and wife, for the consideration of $525, sold and conveyed with full covenants to David Pierre, thirty-five acres of land in the southeast quarter of section twenty-two, (22), T. 30, B. 22 in Ramsey County.

Appeal by plaintiff, Louis T. Stensgaard, from a judgment of tbe District Court of Eamsey County, Kelly, J., rendered May 6, 1891, against him for $5,097.79 on a counterclaim.

Appeal by both plaintiff and defendant from a judgment of the District Court of Hennepin Count}7, Canty, J., entered January 7, 1892. After tbe reversal in this court of the order denying plaintiff’s motion for a new trial, 46 Minn. 605, the action was again tried before the court without a jury. On January 4, 1892, the court made and filed its findings and ordered judgment for plaintiff. It was entered and both parties appealed.

Appeal by plaintiff, John Steinmetz, and by certain lien claimants, from a judgment of the District Court of Ramsey County, Otis, J., entered March 14, 1892, dismissing the action for want of prosecution. The plaintiff built the foundation for a frame dwelling house for Oscar Carlson upon a lot in St. Paul, for which Carlson agreed to pay him $150. He commenced the work November 1, 1889, and finished it April 6, 1890, and on June 2, 1890, filed his sworn statement for a lien.

Appeal by defendant, William Gillen, from an order of the District Court of Hennepin County, Canty, J., made December 4, 1891, denying him a new trial. John A. Lingren and others begun this action to foreclose their lien on a brick house and the lot on which it stood, viz., lot three (3) in block ten (10). in South Side Addition to Minneapolis. They made the owner, Nils G. Nilson, defendant, and joined with him all the other lien claimants.

Appeal by plaintiff, Leon Ratte, administrator of the estate of Eva Ratte, deceased, from an order of the District Court of Ramsey county, Brill, J., made September 7, 1891, denying a new trial of the action. The administrator brings this action to recover for the death on September 14, 1890, of his intestate, an infant girl two years and ten months old, killed upon defendant’s lot in the city of St. Paul, near the corner of Rice and Winter streets.

Appeal by defendant, the St. Paul and Northern Pacific Eailway Company, from a judgment of the District Court of Hennepin County, Smith, J., entered February 23, 1892. June 3, 1858, John L. Eogers, recovered a judgment in the District Court of Hennepin County against John Orth for $216.47, and it was docketed.

<p>Mechanics’ Liens — Action.</p> <p>Steinmetz v. St. Paul Trust Co., 50 Minn. 445, followed as to the time and manner of commencing actions to enforce mechanics’ liens.</p> <p>Same — Service by Publication.</p> <p>The service of a summons by publication is valid, although one of the publications is made on May 30th, (Memorial day.)</p> <p>Vendor and Vendee.</p> <p>The vendor and vendee in an executory contract for the sale of real estate cannot, by any stipulation between themselves, deprive third persons (not parties to the contract) of their statutory rights to liens for material or labor subsequently furnished to the vendee for the construction of buildings on the premises.</p> <p>Mortgagees — Priorities.</p> <p>B. contracted to sell P. .certain real estate for a consideration to be partly paid in cash on delivery of the deed, and the balance to be secured by mortgage on the premises. The contract provided that P. might execute a mortgage to a third person, which should be superior to the purchase-money mortgage to be executed to B. P. went into possession, and commenced the erection of a building on the premises, and for labor and material furnished therefor mechanics’ liens attached to his interest in the property. Subsequently, in pursuance of their contract, B. conveyed to P., who thereupon executed a first mortgage to H., and a second mortgage for purchase money to B. Held that, in an action to enforce the mechanics’ liens, upon a sale of the property there should be paid out of the proceeds (1) H.’s mortgage to the extent of the amount due on B.’s mortgage; (2) the mechanics’ liens; (3) the balance of H.’s mortgage; and (4) B.’s mortgage. Reilly v. Williams, 47 Minn. 590, (50' 1ST. W. Rep. 826,) modified.</p> <p>(Opinion published 53 N. W. Rep. 915.)</p>

Appeal by plaintiffs George H. Hoit, George H. Hoit, Jr., and Fred 0. Hoit, partners as George H. Hoit & Co., from an order of the District Court, Hennepin County, Pond, J., made March 19, 1892, denying their motion for a new trial.

Appeal by plaintiff, Gustave Lundell, from an order of the District Court of Hennepin County, Hooker, J., made'March 16, 1892, refusing a new trial. Gustave Lundell and Peter Osander, in January, 1876, formed a partnership for the purpose of conducting a general plumbing business in Minneapolis. They did business as such partners under the name of Peter Osander & Co. until June, 1889, when Osander died.

Appeal by plaintiff, Fannie Sabledowsky, and defendant Edwin S. Chittenden, from a judgment of the District Court, Eamsey County, Otis, J., entered February 23, 1892. This action was commenced in April, 1889, under the statute, to quiet title to lots two (2) and three, (3,) in block fifty-three, (53,) of West St. Paul Proper; the plaintiff claiming to be the owner in fee thereof.

Appeal by defendant, the Chicago, St. Paul, Minneapolis and Omaha Railway Company, from an order of the District Court, Blue Earth County, Severance, J., made March 10, 1892, refusing a new trial. The plaintiff, Fred McLean, residing at Lake Crystal, Minn., on the line of defendant’s road, applied to the ticket agent there for a ticket to Madelia on said line, and for a permit to make the trip on one of defendant’s freight trains.

Appeal by defendant George J. Yiehman from an order of the District Court of McLeod County, Caclwcll, J., made January 30, 1892, refusing a new trial. The plaintiff, John E. Lawson, and the defendant, George J. Yieh-man, during the months of April and May, 1890, were partners as general merchants at Hutchinson, McLeod County, Minnesota.

Appeal by Charles S. Bruce, as County Auditor of the county of Bock, State of Minnesota, from an order of the District Court of Bock County, Gadwell, J., made October 28, 1891, denying his motion to quash the alternative writ of mandamus. The relator, O. P. Miller, on September 20, 1880, purchased certain school lands at a sale of the same for delinquent taxes.

Appeal by plaintiff, the Stillwater Water Company, from a judgment of the District Court of Washington County, Williston, J., entered March 18, 1892. On April 5, 1880, the City Council of the City of Stillwater passed an ordinance granting to plaintiff, the Stillwater Water Company, a corporation, the right to lay its water pipes in and through the streets of the city. Section 4 of this ordinance is set out in full in the opinion.

Appeal by plaintiffs, Charles A. Smith and John S. Pillsbury, partners as C. A. Smith & Co., from an order of the District Court of Hennepin County, Pond, J., made March 25,1892, denying their motion for a new trial.

Appeal by defendant, John M. Akers, from a judgment of the District Court of Hennepin County, Lochren, J., entered February 12, 1892. On August 12, 1876, Fredrick G-. Mayo was the owner of the Southeast quarter of Section twenty five, (25,) Township 30, Range 24, in Anoka County. On that day he made a mortgage thereon to the Windham County Savings Bank to secure the payment of the sum of $1,500. This mortgage was recorded, and afterwards assigned to Thomas Lowry.

Appeals by defendant, the Northern Pacific Railroad Company, from judgments of the District Court of Stevens County, G. L. Brown, J., entered January 6,1892. These two actions were tried together in the court below.

Appeal by the plaintiff, Edward Yanish, from an order of the District Court of Ramsey County, Brill, J., made January 25, 1892, sustaining a demurrer to his complaint. The plaintiff, Edward Yanish, is the owner of eight lots situated on the north side of Curtice street, between Woodbury street and Brown avenue in West St. Paul. Curtice street is a public highway sixty feet in width, and runs in an easterly and westerly direction.

Appeal by defendant, Samuel N. Arbuckle, from an order of the District Court of Le Sueur County, Severance, J., made August 18, 1891, refusing a new trial, and from a judgment entered August 24, 1891. This action was brought by the plaintiff, Calvin Wilcox, against-*he defendant, Samuel N. Arbuckle, to recover damages for the burning of a vacant house owned by Wilcox which he alleged Arbuckle set on fire.

Appeal by Christian B. Nilson, one of the defendants, from an order of the District Court of Hennepin County, Pond, J., made July 10, 1891, refusing a new trial. On August 29, 1889, the appellant owned lot eight, (8,) block five, (5,) Monroe Street Addition to Minneapolis. On that date he entered into a contract for the sale of the lot to Swan Berg for the sum of $1,575, to be paid within ninety days, with eight per cent, interest, giving Berg meanwhile the possession.

Appeal by defendant, the West Side Bank, from an order of the District Court of Ramsey County, Kelly, J., made February 4, 1892, refusing a new trial. On February 7, 1891, Edward F. Mues, of St. Paul, an insolvent debtor, made an assignment of bis property to Alexander M. Cleri-hew for the benefit of his creditors. On February 4, 1891, Mues owed the West Side Bank $5,500, evidenced by promissory notes w'hieh the bank had discounted for him.

<p>Stipulation for Judgment — Court no Power to Reform on Motion.</p> <p>The parties to a pending action having, for- the purpose of compromising the same, entered into an agreement under seal, embracing mutual releases, and a stipulation (which was carried into effect) for the entry of a judgment for a merely nominal sum, they being then ignorant of a material fact, the court had not the power, after the discovery of such fact, to reform the agreement on motion, relieving one of the parties (in part) from the release- which he had made, but leaving the other party bound by the corresponding release on his part.</p> <p>(Opinion published 52 N. W. Rep. 930.)</p>

Appeal by defendant, John H. Harling, from a judgment of the District Court of Wright County, Canty, J., entered January 11, 1892. This action was brought by the Village of Buffalo against Harling, claiming that a certain strip of land in the village, lying between Lake street and Buffalo Lake, had been dedicated to the public as a promenade, or park, and accepted, and that defendant was about to erect a blacksmith shop upon it.

Appeal by plaintiffs, Edward Dupee, Cale Jaaska, and Burt Harrington, from an order of the District Court of Otter Tail County, Seasie, J., made February 27, 1892, setting aside verdicts in favor of each of said plaintiffs, and granting new trials.

Appeal by defendants, the Town of Minnesota Lake, and Albert Troska, from a judgment of the District Court of Faribault County, Severance, L, entered December 24, 1891. The plaintiff was the owner of the northwest quarter, and the northeast quarter of the southwest quarter, of section 16, T. 104, E. 25, in Faribault County. On May 9, 1885, the defendant, the Town of Minnesota Lake, attempted to lay out a highway across this land and other land in the town.

Appeal by plaintiff, The Midland Company, from an order of the District Court of Hennepin County, Canty, J., made January 30, 1892, overruling a demurrer to the second defense and counterclaim in defendant’s answer.

Appeal by plaintiff, Almeda Manning, from a judgment of the District Court of Ramsey County, Egan, J., entered March 17,1892. On January 3, 1890, one Bellows was the owner of lots three (3) and four (4) in Kribs and Gill’s Subdivision of block eighty-eight (88) of Banning and Olivier’s Addition to West St. Paul.

Appeal by Alfred Terry, from an order of the District Court of Hennepin County, Canty, J., made February 27, 1892, denying his motion for a new trial.