Volume 54 — Minnesota Reports

Appeal by defendant, Mitchell W. McDonald, from an order of the District Court of Carlton County, O. P. Stearns, J., made November 7,1892, overruling his demurrer to the complaint.

Appeal by plaintiffs, J. E. Cushing and Gr. W. Cushing, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made September 21, 1892, denying their motion for a new trial. After the decision in this case granting a new trial, (48 Minn. 3,) the pleadings were amended by consent, and the issues thus formed were tried June 3, 1892, before the court without a jury.

Appeal by plaintiff, Ann'ie E. Scofield, from a judgment of tbe District Court of Hennepin County, William Lochren, J.„ entered October 1, 1892. This action was to determine the adverse claims of defendants,. Jennie E. Quinn and Margaret L. Quinn, to an undivided half of a farm in said county, lying about four miles southwest of Fort Snell-ing.

Appeal by plaintiff, Frank A. Way, from an order of the District Coart of Traverse County, p. L. Broten, J., made September 28,1892, denying his motion for a new trial. Wilson E. Thing recovered judgment August 22, 1887, against the defendant, Charles H. Colyer, in the. Circuit Court of Pierce County, Wisconsin, for $1,325.74. On October 18, 1887, Thing assigned' this judgment to Benjamin F. Way, and he on January 5, 1891, assigned it to Frank H. Way, the plaintiff.

Appeal by plaintiffs, James H. Baker, Fannie A. Griffin and Nellie V. Griffin, from an order of the District Court of St. Louis County, J. D. Ensign, J., made July 13, 1892, sustaining a demurrer to… Held: that the right of the first applicant was subject to be defeated, if at any time before the Commissioner should act upon it, another application for the same land should be filed. We respectfully ask the court to reconsider this decision.

Appeal by defendant, Peter P. Swenson, from a judgment of the Municipal Court of the City of Minneapolis, Stephen Mahoney, J., •entered July 26, 1892. He also appeals from an order made September 16,1892, denying his motion for a new trial.

Certiorari issued February 13, 1393, on the information of Walter Ayers, attorney for the Duluth Belt Line Railway Company. The writ was .directed to'the District Court of the Eleventh Judicial District sitting in and for St. Louis County, J. D. Ensign, J. The purpose was to review a final judgment rendered against that company February 7, 1893, for $348.95, taxes for the year 1891, upon its personal property.

Appeal by defendant, Northwestern Telephone Exchange Company, from an order of the District Court of Hennepin County, Charles M. Pond, J., made September 27, 1892, denying its-motion for a new trial. Held: the evidence, as then presented in the record, was sufficient to have warranted the jury in finding the defendant negligent, and this negligence to have been a proximate cause of the injury.

Appeal by claimants, Retta Barclay and Fred L. Barclay, from an order of the District Court of Otter Tail County, L. L. Baxter? J., made January 3, 1893, denying their motion for a new trial. Lafayette H. Smith and Henry H. Rice recovered a judgment October 5,1876, against William H. Barclay in Cook County Circuit Court, Illinois. It was revived by scire facias in that court on November 6,1885. Rice soon after sold and duly assigned to Smith his interest in the judgment.

Appeal by plaintiff, the Mercantile National Bank of Cleveland, Ohio, from an order of the District Court of Hennepin County, Chas. M. Pond, J., made February 10, 1893, denying its motion for a new trial. On October 20, 1890, and between that date and January 17,1891, the plaintiff loaned to the defendant the Lake Erie Tobacco Company, $17,500, and took its six notes therefor, indorsed by the defendant J. Burton Parsons.

Appeal by plaintiff, Frank Soukup, from a judgment of the District Court of Scott County, P. E. Brown, J., entered November 1, 1892, awarding to defendant,. Thomas Topka, the real estate in dispute. Wenzel Drazda owned a saloon and dancing hall forty feet wide by one hundred and one feet’ deep, fronting south onto Main Street in New Prague, Scott County.

Appeal by defendant, James Taylor, from an order of the District Court of Otter Tail County, D. B. Searle, J., made August 26, 1892, denying his motion for a new trial. On April 23, 1886, Mortimer Taylor, defendant’s son, sold to Phin-eas Dibbs, a mare then with foal, reserving the foal, and allowing Dibbs twenty-five dollars to raise it. The colt was born two or three weeks later, and was raised by Dibbs.

Appeal by plaintiff, Lydia A. Tilleny, from a judgment of the District Court of Hennepin County, IV m. Lorhren, J., entered November 3, 1892, that she take nothing by this action.

Appeal by defendant, Asahel D. Southworth, from a judgment of the District Court of Wabasha County, Chas. M. Start, J., entered February 10, 1893, for $1,432.91. Prior to 1873, Dr. Remondino built the old Exchange Bank building fronting north onto Main Street in the City of Wabasha, and put a wooden trap-door in the plank sidewalk in front, for access to the cellar. He put it in, as was usual, without applying for, or obtaining, license from the city.

Appeal by defendant, Peter A. Carlson, from an order of tbe District Court of Chisago County, F. M. (Jvusby, J., made December 30, 1892, denying a new trial. On March 17, 1892, the plaintiff, Anders Nelson, owned out-lot No. two in Franconia, in that county, containing seventeen acres, and worth $1,000, but subject to a mortgage for $335. He was sixty-nine years old, feeble, weak-minded and unable to read or understand English.

Appeal by defendant, the City of St. Cloud, from a judgment of the District Court of Stearns County, D. B. Searle, J., entered February 8, 1893, for $700 and costs. On Sunday morning, February 21, 1892, the plaintiff, Mary A. Wright, went with her husband to the Congregational Church on Fifth Avenue South.

Appeal by plaintiff, Lizzie Bowers, from a judgment of the District Court of St. Louis County, J. 1). Ensign, L, entered March 15, 1893. The plaintiff, Lizzie Bowers, claimed to own one undivided twelfth of the northerly seventy-five feet in width, of lots one, two, three, four and five, in block forty-four, in the Portland Division of Duluth, worth $9,000.

Appeal by Harry Tisdale from an order of the District Court of Goodhue County, W. C. Williston, J., made March 8, 1893, denying his motion for a new trial. Harry Tisdale was indicted for selling to Bernard Parsons on August 11, 1892, at Goodhue, in that county, intoxicating liquor, without license, in a less quantity than five gallons. He was tried November 15, 1892, and found guilty.

Appeal by plaintiff, James Pye, from an order of the District Court of Grant County, C. L. Brown, J., made January 26, 1893, denying Ms motion for a new trial. Plaintiff made an oral contract with defendants, Ole A. Bakke and John A. Bakke, to furnish materials and macMnery and construct for them a flour mill at Elbow Lake, and complete the same by December 1, 1890, and they agreed to pay him therefor $8,000.

Appeal by plaintiff, William H. Grant, Jr., from a judgment of the District Court of Pine County, F. M. Crosby, J., entered August 22, 1892. ■ On February 14, 1891, the defendants, Adolph Munch and Anna Munch, his wife, sold and agreed to convey to plaintiff the northwest quarter of the northwest quarter of section ten, (10,) T. 42, R. 20, in Pine County, for $200, payable $50 on that day, and the residue in six months, with interest, for which plaintiff gave his note…

Appeal by plaintiff;, J. H. Kedzie, from an order of the District Court of Jackson County, P. E. Brown, J., made January 23, 1893, sustaining a demurrer to Ms complaint. The complaint stated that the defendant the Town of Ewing-ton in that county on July 13, 1888, executed and delivered its two bonds for $500 each, payable to bearer, due in ten years, bearing interest at the rate of seven per cent, a year, payable annually, pursuant to Sp.

<p>Appeal by plaintiffs, John Farson, Arthur B. Leach and Duke M. Farson, copartners, from an order of the District Court of Cottonwood County, P. E. Brown, J., made July 26, 1892, sustaining a demurrer to their complaint.</p>

Appeal by defendant, Frank S. Chesrown, from a judgment of the District Court of Hennepin County, Chas. M. Pond, J., rendered October 22, 1893. In January, 1892, defendant sent his servant to deliver some coal at No. 3942 Bloomington Avenue, Minneapolis. The driver backed the coal wagon into an alley seven feet wide between that house and the adjacent one owned by plaintiff, Arnt B. Moe. In doing so the wagon struck plaintiff’s house and injured the siding.

Appeal by plaintiffs, W. M. Tompkins and George F. Merrill, from an order of the District Court of St. Louis County, O. P. Stearns, J., made July 16, 1892, denying their motion for a new trial. On May 12, 1890, William Forrestal and James Forrestal, two of the defendants, entered into a contract with the City of Duluth to pave Bench Street from Eighth Avenue East to Montata Avenue.

Appeal by defendants, the St. Paul City Bailway Company and the Minneapolis Street Bailway Company from an order of the District Court of Bamsey County, Chas. E. Otis, J., made January 81, 1893, granting a new trial. The plaintiff, Paul Boyer, a boatman living, at Ashland, Wis., came to St. Paul Saturday, and on next Sunday evening, June 12, 1892, took an electric street car for Minneapolis.

Appeal by defendant, Michael Granowski, from an order of the District Court of McLeod County, Francis Cadwell, J., made July 25, 1892, denying a new trial. Defendant orally agreed with Stephen Pawlak, the plaintiff, on October 15, 1886, to convey to him lots two (2) and three (3) in block one (1) in Silver Lake for $185. Plaintiff on that day paid $60 thereof, and soon after the residue. He had a deed drawn for Granowski and wife to execute, but it was never signed.

Appeal by Sanford Kinmore and Ida Kinmore Ms wife, from a decision of the District Court of Lyon County, B. F. Webber, J., given and entered June 21, 1892, discharging the child Jessie Eea from their custody. On February 26, 1892, two of the county commissioners of Lyon County presented a petition to the Probate Court of that county asking that Jessie Eea, a female child, be sent to the State Public School at Owatonna.

Appeal by Michael A. Harmon, one of the defendants, from a judgment of the District Court of Hennepin County, Chas. M. Pond, J., entered February 18, 1893, granting to plaintiffs the relief they ■asked. Frederick G. Mayo mortgaged to Eras tus W. Cutter, June 1, 1874, a large number of vacant town lots in Cutter’s Addition to Minneapolis to secure payment of $3,000, part of the purchase price. He had that day bought the lots of Cutter.

Appeal by plaintiffs, Samuel H. Davis and others, from, an order of the District Court of Hennepin County, Seagrave Smith, J., made December 10, 1892, denying their motion for a new trial. On May 15, 1890, the plaintiffs Samuel H. Davis and the other joint owners leased to the defendant, Fanny G. Jacoby, lots five (5) and six (6) in block three (3) in Excelsior Addition to Minneapolis for two years from and after July 1, 1891, for a coal and wood yard.

Appeal by defendant, the Chicago Guaranty Fund Life Society, from an order of the District Court of Washington County, W. C. Williston, J., made March 1, 1893, denying its motion for a new trial. The Northwestern Guaranty Life Insurance Company of St. Paul on July 27, 1888, issued its certificate to George M. Seymour of Stillwater, by which it agreed to pay his wife, the plaintiff Hannali D. Seymour, on his death $5,000, subject to certain rebate for a reserve fund.

Appeal by defendant, the St. Paul City Bailway Company, from an order of the District Court of Barnsey County, J. J. Egan, J., made February 7, 1893, granting plaintiff’s motion for a new trial.

Appeal by plaintiff, Engene S. Shepard, from a judgment of the District Court of Hennepin County, William Loehren and Frederick Hooker, JJ., entered January 24, 1893, that he take- nothing by his action.

Appeal by defendant, the Chicago, Milwaukee & St. Paul Railway Company from an order of the District Court of Faribault County, M. J. Severance, J., made March 13, 1893, striking from the files its demand for a second trial. The plaintiff, Peter Kremer, brought this action to recover possession of a strip of land one hundred feet wide running across his farm and Qccupied by defendant for its line of railway from Wells to Mankato.

Appeal by. defendant, the Sun Fire Office Insurance Company of London, England, from a judgment of the District Court of Ramsey County, W. D. Cornish, J., rendered November 19, 1892, against it for $5,191.15. The plaintiff, the Church of St. George at Glencoe, a religious corporation, on August 17, 1891, obtained of defendant a policy, whereby it insured plaintiff for one year in the sum of $5,000 against loss by ñre on its church building at that place.

<p>Passenger Wrongfully Ejected from Street Car.</p> <p>Tbe plaintiff, a passenger on defendant’s street-car line, paid bis fare, and received a transfer obeck wbicb entitled bim to continue bis journey by tbe “next” connecting car on another line of tbe same company. He took tbe next car on tbe connecting line, and tbe conductor took up bis transfer check. Without notice to the, plaintiff, this car was taken off, after going a short distance. Tbe conductor having disappeared, tbe plaintiff was informed by tbe driver of that car that be should take tbe next passing car. He did so, but was put off by tbe conductor of that ear because be bad no transfer check, and refused to pay fare again. Held, that plaintiff showed, prima faeie, a right to recover for the conduct of tbe defendant’s agents, leading to and including tbe expulsion.</p> <p>(Opinion published 53 N. W. Rep. 1119.)</p>

Appeal by defendant, John Watson, from an order of the District 'Court of Hennepin County, Seagrnve Smith, J., made March 1, 1893, •denying his motion for a new trial. On October 20, 1885, James Hill made his promissory note whereby he promised to pay to the order of Washington Yale, plaintiff, seven thousand dollars, one year thereafter with interest. Before •delivery John Watson, (defendant,) by writing on its back, guarantied payment of this note.

<p>A Power of Attorney Construed.</p> <p>Each of several tenants in common of real estate executed a several and separate power of attorney authorizing the agent to sell the land and execute warranty deeds of his interest in the property, and “to sell and indorse any promissory notes that may be taken and secured by mortgage” on the property. Held, that the power did not authorize the agent to bind his principal as indorser, jointly with the other cotenants, of a note taken payable jointly to them all.</p> <p>(Opinion published 55 N. W. Rep. 970.)</p>

Appeal by plaintiff, Henry E. Hastings, irom an order of the District Court of Dakota County, F. M. Crosby, J., made October 20, 1892, overruling his demurrer to the answer.

Appeal by defendants, Mary McCarthy, Mary Bell, James H. Bell, and John 0. McCarthy, from an order of the District Court of Ramsey County, Chas. D. Kerr, J., made March 1, 1893, denying their motion for a new trial. On April 21, 1884, Jeremiah 0. McCarthy owned lots four (4), five (5), six (6), and seven (7), in block one hundred and eighty pne (181), in Robertson’s Addition to West St. Paul.

Appeal by defendant, James P. Ahem, from an order of the District Court of Goodhue County, W. C. WilHston, J., made February 20, 1893, denying his motion to set aside a verdict of guilty and grant him a new trial. He was indicted for selling intoxicating liquof on August 9, 1892, at the Town of Goodhue in that county, without license, to Otto Carlson, in quantity less than five gallons. He pleaded not guilty.

<p>Evidence held to justify the findings.</p> <p>(Opinion published 55 N. W. Rep. 959.)</p>

Appeal by William H. Weibeler, one of the defendants, from a judgment of the District Court of Scott County, Francis Cachoell, J., entered March 9,1893. Frederick Diers on September 1, 1877, held a certificate from the State for tbe purchase of the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of section sixteen (16), T. 113, R 24, in Scott County, containing eighty acres.

Appeal by the defendant, the S. H. Wood Produce Company, from an order of the District Court of Hennepin County, 'Thomas 'Canty, J., made December 30, 1892, directing it to file a more specific bill of particulars.

Appeal by plaintiff, the Phoenix Publishing Company, from a judgment of the Municipal Court of the City of Minneapolis, C. B. Elliott, J., entered March 21, 1893, that it take nothing by this action. The defendant, the Riverside Clothing Company, gave plaintiff an order of which the following is a copy: “$>10.

Appeal by plaintiffs, Peter J. Schaps and Theresia, his wife, from three several judgments of the District Court of Stearns County, D. B. Searle, J., entered August 18, 1892. In the spring of 1888 the plaintiff, Peter J. Schaps, owned an old flouring mill at Albany in Stearns County. He was insane, and at the Hospital in St. Peter.

Information filed by the Attorney General, asking that a writ of Quo Warranto issue to School District No. 152 in Blue Earth County, to show by what warrant it exercised cqrporate rights as a school district.

Appeal by plaintiff, D. Lee Mason, from an order of the District Court of Hennepin County, Sea-grave Smith, J., made February 18, 1893, denying his motion for a new trial.' Plaintiff brought this action in behalf of.his minor son, Fred L. Mason (1878 GL S. ch. 66, § 34). The boy was bom November 15, 1886. He was injured August 28, 1891. When plaintiff’s evidence was all in, the court on motion of defendant, the Minneapolis Street Eailway Company, dismissed the action.

Appeal by plaintiff, David J. Hennessy, from an order of the District Court of Eamsey County, Jno. W. Willis, J., made March. 25, 1893, denying his motion for a new trial. The plaintiff owned lot twelve (12) in block twelve (12) in St. Paul proper. The city laid out and opened an alley ten feet wide-through the block from Fifth to Sixth Street. The Board of Public Works made, and on December 11, 1885, confirmed, an assessment against lot twelve of $2,600 for benefits.

Appeal by defendants, W. G-. Hollis and the Northwestern Lumbermen’s Association, from an order of the District Court of Ramsey County, W. D. Cornish, J., made December 27, 1892, refusing to dissolve an injunction. In the year 1890 a large number, about one-half, of the retail dealers in lumber in Iowa, Minnesota, Nebraska and the Dakotas associated together under the name Northwestern Lumbermen’s Association and adopted a constitution and by-laws.

Appeal by plaintiff, Albert G. Whitney, from an order of the District Court of Stearns' County, D. B. Searle, J., made March 22,1893, denying his motion for a new trial. The action was to determine the adverse claim of the defendant, Frank Wegler, to lot five (5) in block eighty-one (81) of.Lowry’s Addition to St. Cloud. The plaintiff derived title from the patentee of the land.

Appeal by plaintiff, William W. Parker, from an order of the District Court of Hennepin County, William Lochren, J., made March. 6, 1893, refusing him a new trial. The Minneapolis & St. Louis Raffway was in the hands of the defendant, William H. Truesdale, Receiver, appointed June 28, 1888, by the District Court of Hennepin County. By its charter, Sp.

Appeal by plaintiff, George 0. Armstrong, from an order of the District Court of Eamsey County, William Louis Kelly, J., made March 22,… Held: for the benefit of my wife, Jane Armstrong, during her lifetime, and after her death for the benefit of my children (or their survivors) in the proportion that each would be entitled to under law, that is share and share alike, had this will not been executed, until my said children shall become of lawful age, and I hereby fully…

Appeal by defendant, Andrew J. Finnegan, from an order of the-District Court of Hennepin County, William Lochren, J., made March 28, 1892, overruling his demurrer to the complaint.

Appeal by defendant, the Loan & Guaranty Company of Connecticut, from an order of the District Court of Meeker County, Gorham Powers, J., made August 31, 1892, denying its motion for a new trial. On May 1,1890, the plaintiff, Ada A. Payne, wife of Robert Payne, agreed with defendant to borrow of it $1,400 for five years and pay interest at the rate of seven per cent, a year.

Appeal by defendant, David Swank, from a judgment of the District Court of Wadena County, G. W. Holland, J., entered against him February 20, 1893, for $2,372.58.

Appeal by defendants, Christiana M. Benton and others, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made August 15, 1892, granting plaintiff’s motion for a new trial. The plaintiff, Elizabeth B. Croswell, brought this action to recover possession of lot ten (10) in block twenty-two (22) in St. Anthony. She alleged that in 1852 William A. Cheever owned the lot in fee simple, and that she had by sundry mesne conveyances, acquired his title.

Appeal by defendant, the New Hampshire Fire Insurance Company, from an order of the District Court of Hennepin County, William Lochren, J,., made November 19, 1892, overruling its demurrer to the complaint. Thomas J. Thompson owned a five-story brick building- on First Street North in Minneapolis, used for a feed-mill and for storing-grain. On February 4, 1889, Thompson mortgaged the property to Charles H. Maxcy and George Cook to secure payment to them of $9,000.

Appeal by plaintiff, L. L. Marble, from an order of the District Court of St. Louis County, J. D. Ensign, J., made October 29,1892, denying his motion for a new trial.

Appeal by defendant, the City of St. Paul, from an order of the District Court of Eamsey County, J. J. Egan, J., made September 12, 1892, overruling its demurrer to the complaint. Plaintiff alleged that in August, 1888, he had a contract with the St. Paul City Railway Company to do the excavating and build the foundation walls for the power house on East Seventh Street in St. Paul.

Appeal by plaintiff, James W. Norton, from an order of the District Court of St. Louis County, J. D. Ensign, J., made June 3, 1893, denying his application for a temporary injunction. “The Commonwealth” has not been published for a year. It is a different paper from the “Short Line.” Unless it has been published for one year it is not qualified to do the city printing. A newspaper is of itself a public print and imports publicity.

Appeal by defendant Jennie C. Snell from an order of the District Court of Eamsey County, J-ohn W. Willis, J., made March 27, 1893, denying her motion for a new trial. On April 7, 1884, the plaintiff, Helen M. Snell, requested her son, the defendant George E. Snell, to purchase for her, lot seven (7) in block four (4) in Woodland Park Addition to St. Paul, and furnished the money, $2,000, and intrusted the entire business to him as her agent.

Appeal by the defendant, the St. Paul, Minneapolis & Manitoba Railway Company from an order of the District Court of Ramsey County, Rascal R. Brill, J., made March 27, 1893, denying its motion for a new trial.

Appeal by plaintiff, Margaret J. Mitchell, from an order of the •District Court of Stearns County, D. B. Searle, J., made February 4, 1893, denying her motion for a new trial. Plaintiff's husband died at St. Cloud in June, 1888, and was buried on the 23d day of that month. The next day at sunset the defendants, William B. Mitchell and Charles S. Mitchell, brothers of the deceased, came to the house of plaintiff and demanded the books and china of deceased.

<p>One Extradited is not Exempt from Service of Civil Process.</p> <p>One wbo by interstate rendition proceedings is brought to this state from another state or territory as a fugitive from justice is not exempt from civil prosecution while detained here under such proceedings.</p> <p>(Opinion published 56 N. W. Rep. 35.)</p>

Appeal by plaintiff, Charles A. Sprandel, from an order of the District Court of Morrison County, L. L. Baxter, J., made March 20, 1S93, denying his motion for a new trial. William T. Lambert owned the north half of lot four (4) in block thirty-one (31) in Little Falls, from September 14, 1878, until August 25, 1887, when he and wife conveyed it to Kate Boyce and she to plaintiff.

Appeal by defendant, Jacob Barge, from an order of the District Court of Hennepin County, Seagrave Smith, J., made February 21, 1893, denying Ms motion for a new trial. On October 5, 1888, Herman Westphal borrowed of Jonas F. Brown $4,000 and gave Ms note therefor due in six months. Jacob Barge and John B. Mueller indorsed the note as sureties. This note was renewed for five months, more, and then, on September 5, 1889, each, of the sureties paid a hálf of it.

Appeal by plaintiff, James W. Johnson, from an order of the District Court of Ramsey County, Chas. E. Oils, J., made February 11, 1893, denying his motion for a new trial. The defendants, J. McGill Smith and Herbert B. Farwell, were partners in repairing and storing furniture. On April 2,1892, plaintiff delivered to them household goods of the value of $550 to be repaired. On April 25, 1892, while in their possession, the goods were destroyed by fire.

Appeal by defendant, John Graham, from a judgment of the District Court of Ramsey County, J. J. Egan, J., entered December 21,1892, in favor of plaintiff for $79410. On October 20, 1890, defendant made and delivered to L. H. Maxfield Ms negotiable promissory note for $625 with interest, due ninety days thereafter.

Appeal by plaintiff, David M. Finlayson, from a judgment of the District Court of Ramsey County, Tlascal R. Brill, J., entered September 21, 1892, denying the relief he asked. The defendant, John D. Vaughn, was County Treasurer of Pine County in 1892. The Kettle River Railroad Company made a definite proposition in writing to the Town of Hinckley in that county for aid in building its road.

<p>Secondary Evidence of the Contents of a Writing.</p> <p>Upon tbe trial of an action to recover for a loss by fire under an insurance policy, notice at tbe trial to tbe defendant’s attorneys to produce proofs of loss, sent by plaintiff to the company in a distant state, it not appearing that they were within reach of its attorneys at that time, is insufficient to lay the foundation for secondary evidence.</p> <p>Mailing, as Proof of Delivery.</p> <p>Where proofs of loss are shown to have been properly mailed to the company at their place of business or the home office, it will be presumed that they were received in due course of mail till the contrary is made to appear.</p> <p>Evidence Examined. ■</p> <p>Evidence held insufficient to prove a waiver of the service upon the company of the proofs of loss required by the policy.</p> <p>(Opinion published 56 N. W. Rep. 48.)</p>

Appeal by defendant, Olof P. Victorin, from a judgment of the District Court of Hennepin County, Thomas Canty, J., entered October 18, 1892, against Mm for $37.58. The plaintiff, George H. Smith, rented to defendant, house No. 1,421 Washington Avenue South, Minneapolis. A month’s rent being due, and unpaid, “M. P. Cannon, agent of Geo.

Appeal by plaintiff, Edmund G-. Walton, from an order of the District Court of Hennepin County, Frederick Hooker, J., made January 26, 1893, denying Ms motion for a new trial.

Appeal bj plaintiffs, Peter J. Lofgren and Frank A. Lofgren, from an order of the District Court of Hennepin County, William Loch-ren, J., made November 2, 1892, denying their motion for a new trial.

Appeal by plaintiff, Robert Blackwood, from an order of the Municipal Court of the City of Minneapolis, G. B. Elliot, J., made March 3, 1893, denying his motion for a new trial. On May 27, 1889, tlie defendants, William A. Tanner and Ms partners leased of plaintiff tbe saloon at No. 308 Nicollet Avenue in Minneapolis for three years from June 1st then next at $250 a month, rent payable in advance.

Appeal by plaintiff,'Mina L. Holmes, from a judgment of tbe District Court of Steele County, Thomas S. Buckham, J., entered February 13, 1893, granting ber a divorce, but refusing to assign dower to ber in tbe same action. .1878 G-. S. cb. 62, § 24, provides that when a divorce is ordered for tbe cause of adultery committed by tbe busband, the wife shall be entitled to ber dower in bis lands, in tbe same manner as if he were dead.

Appeal by plaintiff, the American Building and Loan Association, from an order of the District Court of Hennepin County, William Lochren, J., made December 10, 1892, denying its motion for a new trial. The defendant, Ole Dahl, borrowed of plaintiff $10,000, and to secure payment, mortgaged to it a lot on Twenty-Fourth Street on which he had just built a house.

Upon the trial of C. L. Comings in the District Court of Polk County, Ira B. Mills, J., he was convicted December 17, 1892, of grand larceny in the first degree, and questions of law arose which, in the opinion of the Judge, were so important and doubtful as to require the decision of this court. The defendant consenting, the Judge reported the case so far as was necessary to present the questions, and certified the report here.

Appeal by defendant, the Germania Life Insurance Company of New York, from a judgment of the Municipal Court of the City of St. Paul, H. W. Gory, J., entered October 8, 1892. Moritz Seligman recovered judgment July 5, 1887, against Peter Berns in the District Court of Bamsey County for $88. Execution was issued thereon July 29, 1892, and delivered to Ed. S. Bean, Sheriff, for service.

Appeal by plaintiffs, William L. Perkins and William L. Perkins, Jr., from an order of the Municipal Court of the City of St. Paul, John Twohy, Jr., J., made December 17, 1892 denying their ■.motion for a new trial. Action to recover of defendant, August Schneider, $88.88, the agreed price of a barrel of whiskey sold him by plaintiffs on September 14, 1891.

On February 16, 1893, Miron Bunnell filed in this court Ms relation, stating that on August 1, 1892, the Board of Public Works of the City of Duluth made an assessment of $55,184.66 upon adjacent property, to pay the expense of budding a bridge on Lake Avenue over the tracks of the St. Paul & Duluth Railroad Company.

Appeal by defendant, the St. Paul City Railway Company, from an order of the District Court of Ramsey County, J. J. Egan, J., made February 3, 1893, denying its motion for a new trial. On October 6,1891, the plaintiff, Henry C. Cooper, was a passenger from Merriam Park east to Marion Street in St. Paul upon the Interurban Electric Line along University Avenue. While he was alighting at Marion Street the car was started, and he fell and was .injured.

Appeal by defendant, the Board of Education of Independent School District No. 47, Dassel, in Meeker County, from an order of the District Court of that County, Gorham Powers, J., made February 14,1893, denying its motion for a new trial. The plaintiff, Austin H. Young, was on January 26, 1891, appointed by the District Court of said County, receiver of the property of Stevens & Co., insolvent bankers of Litchfield in that County.

Appeal by plaintiff, Minnie M. Van Norman, from an order of the District Court of Hennepin County, Thomas Canty, J., made February 14, 1893, denying her motion for a new trial. Luther C. Farmer obtained Letters Patent No. 399,860 in 1890 for improvements in weighing-scales. He sold a fourth interest to the plaintiff and another fourth to J. H. White.

Appeal by defendant, Ramsey County Land and Loan Company, from an order of the District Court of Ramsey County, Chas. E. Otis, J., made December 17, 1892, denying its motion for a new trial.

Appeal by plaintiff, Winnie Maloy, from an order of the District Court of Ramsey County, W. D. Cornish, J., made December 22, 1892, setting aside a verdict in her favor and ordering a new trial. On January 18, 1892, the plaintiff resided at No. 616 East Fourth Street in St. Paul. Between five and six o’clock in the evening, she started to go to the corner grocery to get milk. The sidewalk was made of plank laid lengthwise at this point to make a crossing for teams.

Appeal by defendant, the American Building and Loan Association, from a judgment of the District Court of Hennepin County, Wm. Lochren, J, entered January 5, 1893, against it for $4,623.47. The .plaintiffs, Charles W. Carpenter and William G-. Bissell, commenced this action June 22, 1892, against the Association, James H. Bishop and Thomas E. Bishop, defendants, to recover damages for the conversion by them of 2,550 shares of stock in the Association.

Appeal by defendant, the St. Paul Union Depot Company, from a judgment of the District Court of Eamsey County, John W. Willis, J., entered February 15, 1893. The St. Paul Union Depot Company is a corporation created' under tlie laws of this state, and subject to the provisions of Sp.. Laws 1879, ch. 318.

Appeal by plaintiffs, James A. Smith and R. C. Libbey, from an order of the District Court of Ramsey County, Chas. E. Otis, J., made March 18,1893, denying their application for a retrial. On a former appeal in this action, reported Smith v. Glover, 50 Minn. 58, this court determined the legal rules controlling it, and their application to the established facts. For a statement of those facts reference is made to that report.

Appeal by defendants, the City of St. Paul, William B. Hale and twenty others, from a judgment of the District Court of Ramsey County, Hascal R. Brill, J., entered September 16, 1892. Henry Hale, late of St. Paul, died testate December 7, 1890, leaving a widow, brothers, sisters, nephews and nieces, but no children. His will was proved and allowed'in the Probate Court of Ramsey County, and the plaintiffs received letters testamentary.

Appeal by defendant, John W. Bryant, from an order of the District Court of Hennepin County, G. B. Elliott, J., made March 1, 1893, denying his motion for a new trial. The plaintiffs, George H. Selover and Charles D. Gould, were attorneys at law practicing at Minneapolis. Between July 15, and September 23, 1892, they rendered professional services for Lucia A. Bryant.

Appeal by plaintiff, Peter Wolford, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made March 22, 1893, denying his motion for a new trial. Held: and ordered judgment for defendant. Plaintiff moved for a new trial. Being denied, he appeals. 1878 Q-. S. ch. 34, title 5, § 242, provides that these associations shall have the legal powers and privileges, and be subject to the liabilities and restrictions respecting corporations.

Appeal by plaintiff, Hiram Berkey, from a judgment of tbe District Court of Washington County, F. M. Crosby, J., entered September 8, 1892, that be take nothing by this action. In 1858 George B. Judd, Orange Walker, Albert H. Judd, Asa H. Parker and tbe plaintiff, Hiram Berkey, were partners in logging .and lumber business under tbe name of Judd, Walker & Co., at Marine on tbe St. Croix. G-eorge B. Judd lived at St. Louis, Mo.

Appeal by plaintiff, James K. Van Doren, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made March 16, 1893, granting defendant’s motion for a new trial unless plaintiff stipulate to reduce the verdict to $25 and interest from June 20, 1884. The defendant, J. A. Wright, owned a farm near Herman. In 1884, his brother, S. H. Wright, had charge of it for him.

Appeal by defendant, W. D. Armstrong, from an order of the-Distriet Court of Waseca County, Thomas S. Buckham, J., made November 10, 1892, denying his motion for a new trial. On May 18, 1890, a petition was presented to the Common Council of Waseca asking that a sidewalk be constructed along the north side of defendant’s lots.

Appeal by defendant, fbe City of Winona, from an order of tbe District Court of Winona County, Start, J., made January 9, 1893, denying its motion for a new trial. On July 20, 1892, .the plaintiff, Amanda L. Stellwagen, a girl twenty years of age, stepped through a defective iron grating over a coal hole in the 'stone sidewalk on Centre Street in Winona. She gave the notice required by the City Charter, and brought this action August 17, 1892.

Appeal by defendant, the St. Paul National Bank, from an order of the District Court of Bamsey County, J. J. Egan, J., made March 25, 1893, denying its motion for a new trial. The plaintiff, Sarah E. West, owned a note for $1,150 made by Herman Onken and indorsed by Robert McMenemy and secured by a mortgage on a lot in St. Paul. Two years before the maturity of the note she left it with the defendant, she says, for safe-keeping and collection.

Appeal by defendants, John A. Stees, Charles J: Stees and Sarah Kirk Stees, executors of the will of Washington M. Stees, deceased, from an order of the District Court of Eamsey County, John W. Willis, J., made March 4, 1893, denying their motion for a new trial. On January 11, 1886, Washington Stees and wife made a contract under seal with James 0.

<p>The Facts Stated.</p> <p>Action to foreclose mechanics’ liens. The several liens are represented as follows: (1) A senior mortgage for $2,000, given for the purchase price of the land in May, but not recorded until November, and not yet mature. (2) Various subcontractors’ mechanics’ liens for construction of a house, and barn appurtenant thereto, under two separate contracts with the owner, — one for the construction of the house, and the other for the construction of the barn. Such contracts, and all that was done thereunder, were subsequent to the giving of the senior mortgage. (3) A second mortgage for $1,500, given after the visible commencement of the construction of the house, and after the delivery of some of the materials for the construction of the barn. This mortgage was recorded before the recording of the senior mortgage. Held:</p> <p>Order of Incumbrances — Senior Mortgage.</p> <p>The senior mortgage is the superior lien, except in so far as it has lost its priority by neglect to record the same.</p> <p>Same — Junior Mortgage.</p> <p>By force of the registry law, the junior mortgage acquired precedence over the senior.</p> <p>Same — Mechanics’ Liens.</p> <p>The registry law is inapplicable to affect the priority of mechanics’ liens. Hence, as between the senior mortgage, although unrecorded, and the mechanics’ liens, the former is the prior and superior lien.</p> <p>Liens Superior to the Second Mortgage.</p> <p>But, as between the mechanics’ liens and the second mortgage, the former constitute the superior liens. Gardner v. Leek, 52 Minn. 522, and Glass v. Freeberg, 50 Minn. 386, followed.</p> <p>All Mechanics’ Liens Co-ordinate.</p> <p>All the mechanics’ liens are co-ordinate and without priority among themselves, although they accrued in the performance of separate contracts; the whole improvement being, in its nature, an entirety.</p> <p>Buie of Distribution Stated.</p> <p>Following Makngren v. PJiinney, 50 Minn. 457, the rule of distribution of the proceeds on a sale of the property is as follows: First Take out the amount of the senior mortgage, and from that amount pay thei junior mortgage, and then apply the remainder of that amount to satisfy, pro tanto, the senior mortgage. Second. The remainder of the proceeds are to be applied, as far as they will go, to satisfy the several classes of liens in the following order: (1) The several mechanics’ liens, pro rata; and (2) the remainder of the senior mortgage. Whatever may remain will be paid to the owner.</p> <p>Sale although the Prior Mortgage not Due.</p> <p>The senior mortgagee having neglected to record her mortgage, and the complication of rights above stated having resulted, so that the property cannot be sold subject to the senior mortgage without interfering with the rights of others, the holder of the senior mortgage is precluded from resisting a foreclosure sale of the entire property to satisfy all the liens in their proper order, although her mortgage is not yet mature.</p> <p>(Opinion published 56 N. W. Rep. 131.)</p>

Appeal by defendant, Mary C. Morris, from a judgment of the District Court of Hennepin County, Frederick Hooker, J.,' entered March 9, 1893. Franklin Steele owned a lot one hundred and thirty-two (132) feet front on Washington Street by one hundred and sixty-two (162) feet deep, situated on the southeast corner formed by the intersection of that street and Second Avenue North, in Minneapolis.

Appeal by D. M. Finlayson, Edgar C. Long and Daniel H. Moon, copartners, from so much of a judgment of the District Court of Ramsey County, Chas. E. Otis, J., entered March 23, 1893, as decreed their lien for lumber, to be subject to the lien, right and title of the defendant, Mary F. Marvin. The defendant, John A. Gunderson, owned lot eight (8) in block three (3) in Edwin Dean’s 2nd Addition to St. Paul.

Appeal by defendant, the Minneapolis Street Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made February 15, 1893, denying its motion for a new trial. The plaintiff, Jennie Beardsley, brought this action as the ad-ministratrix of the estate of her deceased husband, Charles 0. Beardsley, to recover damages for the benefit of his next of kin, (1878 G-.

Appeal by plaintiffs, .Julius Freiberg et al, from an order of the District Court of Hennepin County, Frederick Hooker, J., made March 7, 1893, denying their motion for a new trial. • The defendant Nicholas Steenbock and his partner Jacob Boehm yvere engaged in wholesale trade in wines and spirits at Denver, Colorado, under the firm name of Boehm & Co. They owned warehouse receipts for two hundred and sixty barrels of whiskey in various bonded warehouses in Ohio and Kentucky.

Appeal by plaintiffs, Frank Burke, Jr., Rufus P. Edson, and Wallace Warner, from an order of the District Court of St. Louis County, Chas. L. Lewis, J., made March 23, 1893, allowing defendants to amend their answer and granting a new trial. Sextus Hoffman owned the northeast quarter of section seventeen (17) and the southwest quarter of section nine, (9,) T. 50, R. 14, lying in the northwest part of the city of Duluth, three miles back from the lake.

Appeal by plaintiffs, John W. Day, ei al., from an order of the District Court of Hennepin County, William Lochren, J., made February 9, 1893, denying their motion for a new trial. The plaintiffs, John W. Day and partners as J. W. Day & Co., operated a steam sawmill on the right bank of the Mississippi River in North Minneapolis, and had in connection therewith a large yard, seventeen acres, in which they piled their lumber.

Appeal by defendant, the St. Paul Trust Company, as executor of the will of Norman W. Batson, deceased, from an order of the District Court of Ramsey County, W. D. Cornish, J., denying its mo* tion for a new trial. Tbe plaintiff, Ida Korte, was injured by falling into a coal hole in tbe sidewalk in front of a budding owned by tbe St. Paul Trust Company, in trust for Kitson’s estate.

Appeal by plaintiff, James T. Wyman, Receiver, &c., from a judgment of the District Court of Wabasha County, Chas. M. Start, J., rendered March 2, 1893, dismissing his action on the merits with costs. The Minneapolis Mutual Fire Insurance Company was incorporated in 1885 under Laws 1881, ch. 91, authorizing the formation of millers and manufacturers mutual insurance companies.

<p>Appeal by plaintiff, Frederick C. Penney, from a judgment of the District Court of Hennepin County, Frederick Hooker, J., entered March 9, 1898.</p>

Appeal by plaintiff, the Wisconsin Eed Pressed Brick Company, a corporation, from an order of the District Court of St. Louis County, J. D. Ensign, J., made February 1,1893, denying its motion for a new trial.

Appeal by the defendant, the City of St. Paul, from an order of the District Court of Ramsey County, William Louis Kelly, J., made March 14, 1893, denying its motion for a new trial. The plaintiff, Catherine Stoehr on August 3, 1892, owned and occupied a house and lot No. 383 Prescott Street near Concord in West St. Paul.

Appeal by plaintiff, Paul van Vlissingen, from an order of the District Court of Clay County, Ira B. Mills, J., made December 26, 1892, denying bis motion for a new trial. H. A. Bruns and Thomas C. Kurtz were partners at Moorhead, doing business as bankers under the name Merchants Bank of Moor-head. They gave bond and received on deposit the money of Olay County. Kurtz was chairman of the Board of County Commissioners.