Volume 56 — Minnesota Reports

Appeal by plaintiff, Andrew J. Wampler, from an order of the District Court of Ramsey County, William Louis Kelly, J., made March 20, 1893, denying his motion for a new trial. On November 5,1885,plaintiff leased to defendant, Bernhard Weinman the store and basement No. 324 on Wabasha Street, St. PauR for a beer saloon for the term of seven years and two months from, and after August 1, 1885.

Appeal by defendant, Charles L. Pratt, from a judgment of the District Court of Hennepin County, Frederick Hooker, J., entered February 24, 1893, against him for $457.76. The plaintiff, George W. Bunce, brought this action against Charles L. Pratt, George R. Newell, and John Doe whose true name plaintiff alleged was unknown to him, but that all the defendants were co-partners in the business of selling groceries and cigars.

Appeal by plaintiff, Laura E. Thompson, from an order of the District Court of Hennepin County, Frederick Hooker, J., made April 6, 1893, granting a new trial. On March 16,1892, plaintiff, a married woman forty five years old, was injured in the ground floor of the Guaranty Loan Building in Minneapolis.

Appeal by plaintiff, Charles Gr. Johnson, from an order of the District Court of Ramsey County, Charles E. Otis, J., made July 12, 1893, refusing to confirm a sale in partition and ordering a resale. Action under 1878 Gr. S. ch. 74, for the partition of a lot in St. Paul, fifty feet front by one hundred feet deep, on Robert Street between Eleventh and Twelfth Streets.

Appeal by defendant, the B. B. Bichards Lumber Company, a corporation, from an order of the District Court of St. Louis County, D. B. Senrle, J., made July 21, 1893, denying its motion for a new trial after verdict for plaintiff for $2,072.83.

Appeal by plaintiff, K. G-. Staples, from a judgment of tbe District Court of Eamsey County, Charles E. Otis, J., entered March 8, 1893. Plaintiff owned a sawmill at South Range ten miles from West Superior, Wis. On December 6, 1887, he entered into a written contract with defendant, the Edwards & McCulloch Lumber Company, a corporation, whereby it agreed to buy logs for stocking his mill during that winter and he was to saw them into lumber.

Appeal by defendant, Theodore Wetmore, from an order of the District Court of Hennepin County, Seagrave Smith, J., made July 6, 1898, denying his motion for a new trial. The plaintiff, Alfred D. Aldrich, for a first cause of action stated that he had for three years carried on the business of a barber on the ground floor at No. 105 Second Street South in Minneapolis, and lived with his family in the second story.

Appeal by defendant, William Deering & Co., a corporation, from a judgment of the District Court of Hennepin County, Thomas Canty, 3., entered September 19, 1893. The revised list of delinquent taxes assessed and levied upon personal property in Hennepin County for 1891 was filed in the office of the Clerk of the District Court July 20, 1892, whereby it appeared that $388.88 was due from defendant.

Appeal by defendant, the Chicago, St. Paul, Minneapolis & Omaha Kailroad Company, from an order of the Municipal Court of the City of Duluth, Eric L. Winje, J., made April 5, 1893, denying its motion for a new trial. The plaintiffs, Philip Westaway, Andrew E. Porter and John D. Porter were partners in business and owned a team of horses.

Appeal by contestants, Lydia Borden and Mary A. Holt, from a judgment of the District Court of Dakota County, F, M. Crosby, J., entered June 15,1893, affirming the judgment of the Probate Court. On March 24,1892, Julia C. Holt, a widow seventy years old, made her will at the house of her daughter, Georgiana Needham, in Farmington. She gave the most of her small estate to Mrs. Need-ham, to the exclusion of her other children.

'Appeal by defendant, the Hekla Fire Insurance Company of St. Paul, from an order of the District Court of Ramsey County, John W. Willis, J., made May 15,1893, sustaining a demurrer to its second and third answers in the action.

Appeal by defendant, Theodore Hansen, from a judgment of the District Court of Swift County, Gorham Powers, J., entered May 16, 1893, against him for $60.95 damages and costs. This action was commenced September 2,1892, in a Justice’s Court by plaintiff, Manford Horn, upon the wheat ticket copied in the opinion.

Appeal by defendant, Daniel M. Eobbins, from an order of the District Court of Eamsey County, William Louis Kelly, J., made June 18,1893, overruling his demurrer to the complaint. The plaintiff, the Walter A. Wood Harvester Company was organized January 21,1892, as a manufacturing corporation under Laws 1873, ch. 11 (1878 G-. S. ch. 34, §§ 120 to 143, inclusive). Its capital stock was $2,500,000, divided into shares of $100 each.

Appeal by Mablon D. Miller, one of the defendants, from an order of the District Court of Ramsey County, James J.Egan, J., made June 21,1893, denying his motion for a new trial. The plaintiff, Mary A. Cremer, was doing business in St. Paul as a real estate broker under the name of Cremer & Co. Her husband, W. J. Cremer, as agent for her, managed the business.

Certiorari issued on the relation of Nellie M. Weide to the District Court of Bamsey County, Charles E. Otis, J., to certify and return to this Court the record and proceedings in the matter of assessment of benefits from opening a street. In the year 1886 the City of St. Paul laid out a street two hundred feet wide on the left bank of the Mississippi river from Chestnut Street to the outlet of Fountain Cave.

Appeal by Andrew J. Finnegan, one of the defendants, from a judgment of the District Court of Meeker County, Gorham Poiuers, J., entered July 29,1893, quieting and confirming the title of plaintiff, William P. Todd, to eighty acres of land in that 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 defendant, tbe American Steel Barge Company, from a judgment of tbe District Court of Ramsey County, Chas. D. Kerr, J., entered July 7,1893, against it for $3,667.85. Tbe plaintiff, James Sims, on June 1, 1892, was employed by defendant in tbe work of fitting inside steel plates to tbe frame of a steel barge it was then building at West Superior, Wis.

Appeal by plaintiff, Peter Larson, from an order of the Municipal Court of the City of Duluth, Eric Winje, J., made May 25, 1893, granting the defendant’s motion for a new trial. The Municipal Court of the City of Duluth is a court of record and the time within which motions for new trials and appeals may be made or taken is governed by the statute relating to the practice in the District Courts of this State. Sp. Laws 1891, ch. 53, §§ 19, 46.

Appeal by plaintiff, William B. Murray, from an order of the Municipal Court of the City of Minneapolis, Charles B. Elliott, J., made May 20,1892, sustaining a demurrer to the complaint. The defendant, W. H. Mills, was a Justice of the Peace in the City of Minneapolis. On October 1, 1892, one Joseph Smith commenced an action before him against Murray to recover pay for labor he claimed to have done for him.

Appeal by defendant, Annie M. Smith, from an order of the District Court of Eamsey County, Rascal R. Brill, J., made July 3, 1893, denying her motion to set aside the verdict, judgment and sentence, and grant her a new trial. On the morning of July 4, 1892, Edward Hoppe went from St. Paul with two other men by wagon to Big Bass Lake, fishing. They took with them a bottle of whiskey and a case of pint bottles of beer from ■which they drank more or less on the way.

Appeal by plaintiff, Eugene F. Lane, from an order of the District Court of Ramsey County, John W. Willis, J., made April 8, 1893, granting defendant's motion for a new trial. The plaintiff is an attorney and counsellor at law doing business at St. Paul and was employed as such in 1888 by the defendant, Lyman C. Dayton, and subsequently, to advise him in the management of his business and to conduct for him several litigations in which he was involved.

Appeal by defendant, Frank Thayer, from an order of the District Court of Blue Earth County, M. J. Severance, J., made April 13, 1893, denying his motion for a new trial. On December 1, 1890, the plaintiff, Daniel S. Stern, leased to defendant, an architect, two rooms on the second floor of his building in Mankato for three years for $20 a month, the rent payable monthly in advance.

Appeal by plaintiffs, Ernst Albrecht and two hundred and fifteen others, from a judgment of the District Court of Bamsey County, Chas. E. Otis, J., entered October 19, 1892, that they take nothing by their action.

Appeal by plaintiff, Henry Rippe, from an order of the District Court of Ramsey County, John W. Willis, J., made September 25, 1893, sustaining a demurrer to his complaint.

Appeal by George H. Fletcher, assignee of the State Bank of Minneapolis, from an order of the District Court of Hennepin County, Seagrave Smith, J., made July lé, 1893, directing him to deliver to Osborne & Clark two drafts in his possession as such assignee. Charles F. Osborne and David F. Clark were partners in business, dealing in lumber at Minneapolis and kept a bank account with the State Bank of that city.

Appeal by plaintiff, Charles E. Brame, from a judgment of the District Court of Hennepin County, Henry O. Hicks, J., entered January 5, 1893, on the pleadings that he take nothing by his action.

Charles A. Hawks and William B. Evans were indicted October 19,1893, by the Grand Jury of Eamsey County for the crime of grand , larceny in the first degree. They were officers of the Seven Corners Bank of St. Paul and were accused of feloniously converting and embezzling $60,000 of its money.

Appeal by defendant, the St. Paul, Minneapolis and Manitoba Kailway Company, from an order of the District Court of Hennepin County, Henry Q. Hicks, J., made July 3, 1893, denying its motion for a new trial. The plaintiff, Jennie M. Evarts, brought this action as administratrix of the estate of her deceased husband, James Evarts, under 1878 G. S. ch. 77, § 2, to recover of defendant $5,000 for wrongfully causing his death on November 11,1891, in its yards in Minneapolis.

Appeal by defendant, the City of St. Paul, from an order of the District Court of Ramsey County, William Louis Kelly, J., made July 1, 1893, denying its motion for a new trial. On June 22, 1891, Frank P. McCann’s bid of $2,933.33, for grading Park Avenue from Sherburne Avenue to Arch Street in St. Paul had been accepted and the work awarded to him by the Board of Public Works. The contract was being prepared and he was about to commence the work.

Appeal by plaintiffs, Louis H. Grieser and Emil Hartman, from an order of the District Court of St. Louis County, L. L. Baxter, J., made July 21, 1893, denying tbeir motion for a new trial. On March 3, 1892, at Duluth, the plaintiff, Louis H. Grieser, borrowed of Alice King $1,300 for ninety days and he, and Emil Hartman as his surety, gave her their note for the amount, bearing interest at the rate of ten per cent, a year.

Appeal by relator, James N. Marr, from an order of the District Court of Aitkin County, G. W. Holland, J., made August 16, 1893, denying his application for a peremptory writ of mandamus. Relator was on June 15, 1893, and long had been a citizen freeholder and tax payer in Aitkin County.

Appeal by defendant the Lombard Investment Company, from an order of the District Court of Hennepin County,' Thomas Canty, J., made June 27, 1893, refusing its application for a new trial. 'The plaintiff, John Ferman, owned the brick building, No. 320 Cedar Avenue, Minneapolis, and carried on a bakery there. It was twenty two feet wide by seventy five feet deep and three stories high.

Appeal by claimant, Thomas K. Gray, from a judgment of the District Court of Hennepin County, Frederick Hooker, J., entered July 29, 1893, disallowing his claim. On May 6, 1885, Gray became a member of the Educational Endowment Association of Minneapolis.

Appeal by defendant, Mary A. Thwing, from an order of the District Court of Hennepin County, Seagrave Smith, J., made August 5, 1893, denying her motion for a new trial. On November 1, 1888, tbe plaintiff, Timothy A. Bowen, loaned to Joseph E. Thwing $1,080.50 and took bis promissory note therefor due in one year and bearing interest at tbe rate of eight per centum per annum.

Appeal by E. J. Mendenhall and A. C. Paul, stockholders in the People’s Live Stock Insurance Company, from an order of the District Court of Hennepin County, Charles M. Pond, J., made June 26, 1893, in the proceedings to wind up its affairs, denying their motion for a new trial of the question of their liability. The People’s Live Stock Insurance Company was organized at Minneapolis June 2, 1890, as a corporation under 1878 G-.

. Appeal by defendant, John J. Moran, from an order of the District Court of Eamsey County, Charles E. Otis, J., made December 6, 1892, granting a preliminary writ of injunction. Moran recovered a judgment for $14,077.86 in the District Court of St. Louis County January 30, 1892, against the Eastern Railway Company of Minnesota, for personal injuries. A motion for a new trial had been denied and the denial affirmed in this Court. Moran v. Eastern Iiij. Co., 48 Minn. 46.

Appeal by defendants, Minneapolis & St. Louis Railway Company and W. H. Truesdale, receiver, from an order of the District Court of Hennepin County, William Lochren, L, made January 31, 1893, denying their motion for a new trial. The plaintiff, the C. C, Washburn Flouring Mills Company, is a corporation and owns three flouring mills and a grain elevator all situated upon blocks 100 and 101 in the original plat of Minneapolis.

Appeal by plaintiffs, J. Magill Smith and Herbert B. Farwell, from a judgment of the District. Court of Ramsey County, John W. Willis, J., entered July 7, 1893, that they take nothing by their action. The defendant, the St. Paul German Insurance Company, is a corporation created under the laws of this State.

Appeal by plaintiff, the Chicago & Alton Railroad Company, from a judgment of the District Court of Ramsey County, Eascal R. Brill, J., entered June 9, 1893, that it take nothing by this action. The plaintiff is a corporation organized under the laws of Illinois and owns and operates a railway. The defendant, the St. Paul German Insurance Company, is a corporation created under the laws of this State.

Appeal by Christ Oleson, Christ Johnson and Hans E. Paulson, supervisors of the Town of Prairieville, from a judgment of the District Court of Brown County, B. F. Webber, J., entered December 10, 1892, reversing,' on certiorari, their order laying out a highway.

Appeal by defendant, Isaac R Snow1', from a judgment of the Municipal Court of the City of Minneapolis, C. B. Elliott, J., entered against him June 29, 1893, for $84.20 and costs. The Court erred in receiving evidence as to the cost of the buggy. The proper measure of damages is the difference in the value of the buggy before and after the accident. Gumb v. Twenty Third Street Ry. Co., 114 N. Y. 411.

Appeal by plaintiff, William J. Youn, from an order of the District Court of Le Sueur County, Francis Cadwell, J., made July 24, 1893, denying Ms motion for a new trial. Ejectment for eigMy acres of land in the possession of defendant, William H. Lamont. It was admitted that in 1888, John Lamont owned the land. He deeded it to Herbert Lamont on April 7, 1891, and Herbert deeded it to plaintiff on February 27, 1892.

<p>Appeal by plaintiff, Owen Fargusson, from a judgment of the District Court of St. Louis County, :Frederick Hooker, J., entered January 9,1893, that he take nothing by his action.</p>

Appeal by defendant, Thomas J. Pearce, from an order of the District Court of Ramsey County, William Louis Kelly, J., made March 31, 1893, denying his motion for a new trial. The Court erred in holding that the dying declaration of the woman was a sufficient corroboration of the testimony of her husband to warrant a conviction of the doctor.

<p>Ultra vires insurance by a corporation formed under Laws 1875, eh. 83.</p> <p>A mutual insurance company organized under 1878 G. S. ch. 34, §§ 338, 347, and the various amendments thereto, has no power or authority to insure the standing or growing grain oí one of its members against loss by hail, and such insurance is ultra vires.</p>

<p>Appeal by plaintiff, the Delaware Farmers’ Mutual Fire Insurance Company, from a judgment of the District Court of Stevens County, Calvin L. Brown, J., entered July 25, 1S93, in favor of the defendant, Henry Knuppel.</p>

Appeal by defendants, Ed. S. Bean, Sheriff, H. K. Halverson, C. H. Richards and William Lundeen, partners, from an order of the District Court of Ramsey County, Okas. D. Kerr, J., made August 10, 1893, denying their motion for a new trial. Defendants, Halverson, Richards and Lundeen, had a contract to grade a section of the Great Northern Railway in Montana, and in June, 1891, they sublet a part of the work to John Bjork.

Appeal by defendants, William R. Marshall and Edward R. Gil-man, from an order of the District Court of Ramsey County, James J. Egan, J., made August 14, 1893, overruling their demurrer to the complaint. On November 26, 1888, Henry W. Frost and wife mortgaged to the plaintiff, the Washington Life Insurance Company, a lot on Fifth Avenue in the city of New York to secure the payment of his bond to it for $15,000 and interest due December 1,1889.

Appeal by claimant, Anna Maria Schmidt, from an order of the District Court of Dakota County, F. M. Crosby, J., made September 2} 1893, denying her motion for a new trial. Gottfried Schmidt died testate March 26,1890. His will was contested, — Schmidt v. Schmidt, 47 Minn. 451, — but was sustained, and his estate was administered in the Probate Court of Dakota County. His widow, Anna Maria Schmidt, presented in that court her claim against the estate for $2,820.

Appeal by defendant, Highland Improvement Company, from an order of the District Court of St. Louis County, J. D. Ensign, 3., made August 12, 1893, denying its motion for a new trial. The plaintiff, Samuel L. Eice, a land surveyor, was employed in May, 1891, by Highland Improvement Company, to survey and plat into lots, blocks and streets two hundred acres of land in section twenty (20) T. 50, E. 14, in the City of Duluth.

Appeal by plaintiff, Emma H. Marks, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made October 14, 1893, denying her motion for a new trial of her suit for divorce a vinculo for cruel and inhuman treatment.

Appeal by defendant, Timothy A. Sullivan, from an order of the District Court of St. Louis County, Chas. L. Lewis, J., entered August 31, 1893, overruling his demurrer to the complaint. On March 19,1891, the plaintiffs, Alexander J. McRae and Michael Murphy, sold and conveyed to Edward Kennedy, John F. Gleason and John P. Thayer lot eighteen (18) in block forty six (16) in West Superior, Wisconsin, for $17,000.

Appeal by Charles H. Browne, County Auditor of Washington County, from an order of the District Court of said County, W. C. Williston, J., made July 28, 1893, directing that a peremptory writ of mandamus issue.

Appeal by defendant, William H. Truesdale, as Receiver of the Minneapolis and St. Louis Railway Company, from an order of the District Court of Hennepin County, Iiolert I). Russell, J., made September 23, 1893, denying his motion for a new trial. On June 28, 1888, the defendant, William H. Truesdale, was by said District Court appointed receiver of the property of the Minneapolis and St. Louis railway.

Appeal by defendant, L. B. McEwen, from an order' of the District Court of Crow Wing County, D. B. Searle, J., made August 15, 1893, denying his motion for a new trial. The Northern Mill Company, a corporation engaged in lumber business, had its principal place of business at Minneapolis, but-owned pine lands and had sawmills in the counties of Cass and Crow Wing. The defendant L. B. McEwen was its agent and had charge of its business in these two counties.

Appeal by Charles L. Haas, one of the defendants, from an order of the District Court of Ramsey County, William Louis Kelly, J. made June 24, 1893, denying his motion for a new trial. Appeal also by the plaintiff, National Investment Company, from an order of said court made in the same action at the same time denying its motion for a new trial.

Statement certified, under 1878 GL S. ch. 11, § 80, from the District Cóurt of Pine County, F. M. Crosby, J., and made September 5, 1893, in a proceeding to enforce payment of delinquent taxes of 1887, levied upon the right and interest of David Tozer in the standing pine timber on certain lands in Pine County.

<p>Appeal by defendants, Nelson Cobb, Albert YY. Sexton, Deming YY. Sexton, Robert A. Beckwith and Albert B. Clampet, from a judgment of the District Court of Hennepin County, Thomas Canty, J., entered February 15, 1893.</p> <p>The plaintiff, John J. Tilley, brought this action October 2, 1891, under 1878 Gf. S. ch. 75, § 2, to determine the adverse claims of the five defendants above named and of twenty five others named and of all other persons unknown, to block nine (9) in Oakland Addition to Minneapolis. All the defendants disclaimed except the five above named. They made and filed a petition and bond for the removal of the cause to the Federal Circuit Court for the District of Minnesota, Fourth Division, on the ground that they were not residents of this state, that Cobb resided in Missouri, Clampet in Illinois and the two Sextons and Beckwith in Connecticut, and that the plaintiff was a subject of the Queen of Great Britain and a resident of Ontario in the Dominion of Canada. They stated that they were owners in severalty of portions of the block and claimed adversely to the plaintiff and that the value of Clampet’s interest exceeded $3,000 and the value of the interest of all the petitioning defendants exceeded $6,000, that all the other defendants named had disclaimed and the controversy was wholly between the plaintiff and the petitioners, that twenty days had not expired since the service of the summons on them. The District Court thereupon made an order November 25, 1891, that the action be removed to the Federal Court as prayed and that a certified copy of the' record and files therein be transmitted to that court. This was done and the five defendants filed in that court their joint answer denying plaintiff’s title and asserting title to various lots in the block to be in themselves. The facts stated in the answer were those recited in Bailsman v. Fane, 45- Minn. 412. Defendants claimed, under the foreclosure of the mortgage to French, while the plaintiff claimed under Galushe’s foreclosure of the mortgage to Hall and the estoppel by subsequent conduct. On plaintiff’s motion, the Circuit Court on October 10, 1892, remanded the action to the state court, saying:</p> <p>Although there is a separate controversy between the alien and the petitioning defendants, the right of removal cannot be claimed under the 3rd clause of § 2, 25 U. S. Stat, cli. 866, p. 434, for the reason that a removal on the ground of a separable controversy only applies to controversies wholly between citizens of different states. One of the parties here is an alien. Neither does the right exist under the 2nd clause, because all of the defendants are.not non-residents, and the petition is signed by five defendants only. The fact that when the petition for removal was presented to the state court, the time for some of the defendants to answer had not expired, is immaterial, and so of the fact that one of the defendants is a minor. The alien plaintiff had the choice of tribunals to enforce his alleged light against the defendants, and as lie commenced in the state court, the suit must remain there for determination, unless the right of the defendants to remove is given by the statute. It may be conceded that the jurisdiction of this court is doubtful; if so, the doubt should not be resolved in favor of the jurisdiction. The state court undoubtedly has jurisdiction, and the rule is well settled in this circuit, that the safer course is to remand. Fitzgerald v. Missouri Pac. By. Go., 45 Fed. E. 812.</p> <p>The issues were tried in the District Court of Hennepin County, January 23, 1893. Findings were made that the five answering-defendants were estopped from asserting any claim or title to the land, that plaintiff is the OAvner thereof, and ordering judgment to be entered quieting- his title. Such judgment was entered and the defendants aftenvards made a bill of exceptions and it was settled, signed, filed and attached to the Judgment Roll. It showed that on the trial these defendants objected to the trial in that court upon the ground that the cause had been lawfully removed to the Federal Circuit Court and was thereafter unlawfully remanded, and that the Circuit Court alone had jurisdiction of the action. It further shoAved that the objection was overruled and that the five defendants excepted to the ruling.</p> <p>The grounds for removal were that these five defendants were citizens and residents respectively of the States of Missouri, Connecticut and Illinois, and that the plaintiff was an alien and a citizen and resident of Canada. That none of the other defendants had or claimed any interest in or lien upon the land, and that all of them had actually disclaimed. The right of removal of these five defendants was given to them by virtue of the second subdivision of section two (2) of the removal act of Congress of March 3, 1887, 25 U. S. Stat. ch. 866, p. 434, there being sufficient Aralue alleged in the petition to bring it within the jurisdictional requisites of the removal act.</p> <p>This is a federal question Avhich it is proper that this court should decide without regard to what may have been the decision of the United States Circuit Court in remanding the cause. Whatever decision may be rendered upon this question by this court a writ of error will lie from the Supreme Court of the United States under U. S. R. S. § 709. Stone v. South Carolina, 117 U. S. 430; Kanouse v. Martin, 14 How. 23; Id., 15 How. 198; Gordon v. Longest, 16 Pet. 97; Chesapeake & O. R. Co. v. White, 111 U. S. 134; Insurance Co. v. Dunn, 19 Wall. 221; Railroad Co. v. Koontz, 104 U. S. 5.</p> <p>G-aluslia, who took the false foreclosure proceeding, never had any right, real or apparent, to do anything with reference to the mortgage. In a case analogous to that of Merchant v. Woods, 27 Minn. 396, the doctrine of estoppel would have to be invoked as of the time when any innocent person purchased at the foreclosure sale, which, if applied in this case, would be equivalent to deciding that there was an apparent right in Galusha to foreclose this mortgage, and also that if the purchaser at the foreclosure sale had not been innocent, the foreclosure would be void, but that if innocent, the foreclosure would be good. Plaintiif seeks to invoke the doctrine of estoppel as a sword to deprive the defendants of their title. He ought not to be permitted to do it under the facts in this case, which bear a strong analogy to the case of Welsh v. Cooley, 44 Minn. 446.</p> <p>This is one of the series of cases commencing with Bausman v. Kelley, 38 Minn. 197, which have occupied the attention of this court more or less for the past five years, involving the title to Oakland Addition and Silver Lake Addition in the City of Minneapolis. The evidence is not brought up for review, and the bill of exceptions presents no question but that of the jurisdiction of the trial court. The general merits of the controversy are not open for discussion in this court. That dispute has been ended by the decisions in Bausman v. Faue, 45 Minn. 412, and Bausman v. Eads, 46 Minn. 148. The jurisdiction of the District Court to hear and determine this cause is beyond dispute. It is conferred in express terms by 1878 G. S. ch. 64, §§ 1, 2; ch. 75, § 2; Laws 1885, ch. 169, and was necessarily conceded by the defendants when they took their proceeding for a transfer of the case to the Federal Court. Fidelity Trust Co. v. Gill Car Co., 25 Fed. R. 737; Goldstein v. New Orleans, 38 Fed. R 626.</p> <p>The jurisdiction was concurrent with that of the Federal Court and when the case was remanded, the State Court had jurisdiction. That jurisdiction was only suspended while the case was actually in the Federal Court. Young v. Parker’s Administrator, 132 U. S. 267, Roberts v. Chicago, St. P., M. & O. Ry. Co., 48 Minn. 521.</p>

Appeal by defendants, August Cirkel and J. W. Cirkel, from an order of the Municipal Court of the city of Minneapolis, Stephen Ma-honey, J., made July 8, 1893, denying their motion for a new trial. The plaintiffs, James Iverson and Fred Iverson, were manufacturers of wagons and carts at Minneapolis. On March 20, 1893,. defendants orally ordered plaintiffs to make for them two dump-•carts with heavy steel axle and four inch tire and promised to pay $70 for each of them.

<p>Appeal by defendant, Walter X. Morgan, from a judgment of the District Court of Hennepin County, Charles M. Pond, J., entered August 21,1893, against him for $454.76.</p>

Appeal by defendant, the Duluth Transfer Railway Company, from an order of the District Court of St. Louis County, Charles L. Lewis, J., made August 3,1893, denying its motion for a new trial. Between August 9, and September 24, 1892, D. Ballard furnished teams and teamsters to a subcontractor, Anthony Murphy, to do grading on the line of the Duluth Transfer Railway which runs from West Duluth southwesterly up the St. Louis river in the direction of Ironton.

Appeal by defendant, Andrew G. Lindgren, from an order of the District Court of Hennepin County, Henry Q. Hicks, J., made August 18, 1893, denying his motion for a new trial. In that court Anna Lindgren obtained a divorce a menso et thoro, December 10,1891, from her husband, the defendant Swante A. Lindgren and was given the custody of their two children. By the judgment she was awarded from his estate $15 a month thereafter for the support of herself and children.

'Appeal by plaintiff, Levi Longfellow, from a judgment of the District Court of Hennepin County, Thomas Canty, J., entered September 20,1893, that he take nothing by this action and pay defendants $12.73 costs.

Appeal by defendant, John Ludlum, from an order of tlie District Court of Hennepin County, Robert.D. Russell, J., made July 22, 1893, denying his motion for a new trial. The plaintiff, the Irish American Bank, brought this, action March 1, 1890, upon two promissory notes. One was for $150 and interest at ten per cent, a year, dated November 1, 1889, signed New York Pie Company, E. J. White, Mgr., and payable ninety days thereafter to the order of Allen P. Thompson.

Appeal by plaintiff, Hattie L. Knoblauch, from an order of the District Court of Hennepin County, Seagrave Smith, J., made September 2, 1893, dissolving a temporary injunction. Plaintiff owned a lot in block fifty seven (57) in the original plat of Minneapolis fronting west onto Third Street. The city took measures to widen the alley in the rear of the lot to afford access to the railroad freight depot adjoining on the north.

Appeal by defendant, the Western Land Association, a corporation, from an order of the District Court of St. Louis County, J. D. Ensign, J., made September 9, 1893, overruling its demurrer to the complaint. The plaintiff, Stephen L. Merchant, as administrator with the will annexed of the estate of Frederick H. Wolcott, deceased, and as trustee under the will, brought this action pursuant to the provisions of Sp. Laws 1871, ch. 140.

Appeal by plaintiff, Edward M. Johnson, from an order of the District Court of Hennepin County, Seagrave Smith, J., made February 4, 1893, denying his motion for a new trial. The Flour City Sash and Door Company, a corporation of Minneapolis, being insolvent, on July 21, 1891, made an assignment under Laws 1881, ch. 148, of its property to the defendant, Charles G. Laybourn in trust for the benefit of its creditors.

■ Appeal by plaintiff, Charles Gustafson, from a judgment of the District Court of Eamsey County, HascalR. Brill, J., entered August 10, 1893. The defendant, Theodore Hamm, in August, 1892, built a switch track from the Chicago, St. P., M. & 0. railway tracks southwest about twenty rods to his brewery and mill in the eastern part of St. Paul. Fauquier street is sixty feet wide and runs east and west midway between the railroad and the brewery.

Appeal by defendant, the Chicago, Milwaukee and St. Paul Railway Company, from an order of the District Court of Ramsey County, John W. Willis, J., made August 22, 1893, denying its motion for a new trial.

Appeal by plaintiffs, John H. Allen and Daniel H. Moon, from an order of the District Court of Eamsey County, James J. Egan, J., made September 18, 1893, setting aside a judgment entered December 1, 1891, against the defendant Charles W. McIntyre for $863.12.

Appeal by defendant, tlie St. Paul Permanent Loan Company, a. corporation, from a judgment of tbe District Court of Ramsey County, John W. Willis, J., entered August 9,1893, against it for '$545.06* On August 1, 1891, defendant loaned to Peter La Croix $2,000 and', took from Mm and wife a bond and mortgage securing repayment.. It retained $500 of tbe money and gave La Croix the instrument: set out in the opinion.

Appeal by plaintiff, Walter S. Cox, from a judgment of tbe District Court of Clay County, Frank Ives, J., entered September 1, 1893, that he had no right, title or interest in the real estate in controversy. This action was brought in August, 1889, to determine adverse claims to lots three (3) and four (4) of section thirty (30), T. 137, R. 45, at Barnesville.

<p>^Replevin, Value not proved.</p> <p>Evidence held to justify the verdict of the jury, except as to value.</p>

Appeal by the defendant, the Northwestern Mutual Life Insurance Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made August 16, 1893, overruling its demurrer to the complaint. On October 25, 1888, the defendant insured the life of the plaintiff, Martin C. Johnson, then of Stoughton, Wis., in the sum of $1,000.

Appeal by defendants, Frank Lovejoy, Lorin K. Lovejoy, Arthur Lovejoy and Mary E. Winston, from a judgment of the District Court of Crow Wing County, G. W. Holland, J., entered September 9, 1893. On January 29, 188G, Jeremiah J. Howe and the firm of Farnham & Lovejoy were partners at Brainard in lumber business under the firm name of J. J. Howe & Co. Howe owned one fourth and the firm of Farnham & Lovejoy owned three fourths interest in its assets.

Appeal by plaintiff, Sarah Taylor, from a judgment of the District Court of Hennepin County, Charles M. Pond, J., entered September 25,1893, dismissing the action on the merits. On June 11, 1856, William Taylor owned block ten (10) and other adjacent blocks in Taylor & Co.’s Addition to Winona.

Appeal by Jasper W. Earl, one of the defendants, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered August 17, 1893, against him for $1,504.17. On March 12, 1883, the plaintiff, the Sandwich Manufacturing Company, recovered a judgment in the United States Circuit Court for the District of Minnesota, against the defendants, Jasper W. Earl and Lewis Hanson of Fergus Falls for $869.40. This judgment remained unpaid.

Appeal by George E. Burt, insolvent, from an order and judgment of the District Court of Hennepin County, Frederick Hooker, J., made February 27, 1893, adjudging Mm in contempt for not paying to Ms assignee $3,000 found by the court to be in Ms hands and ordering Mm imprisoned therefor, until he should pay over the same, not exceeding six months.

Appeal by plaintiff, Charles M. Wilkinson, from an order of the District Court of Hennepin County, Robert D. Russell, J., made September 16,1893, denying his motion for judgment on the referee’s report, and also from an order made the same day denying his motion for a new trial.

Appeal by defendant, the Chicago, Milwaukee and St. Paul Railway Company, from an order of the District Court of Ramsey County, Hascal R. Brill, J., made August 23,1893, denying its motion for a new trial. On October 29, 1891, at four o’clock in the morning, a collision occurred at the grade crossing in Taopi, Mower County, between the north bound passenger train of the Chicago, St. Paul and Kansas City Railway Company and the west bound freight train of the defendant.

<p>Appeal by defendant, Conrad W. Miller, from a judgment of tbe District Court of Bamsey County, Charles E. Otis, J., entered August 29, 1893, against him on the verdict of a jury for $2,848.61.</p>

Appeal by defendant, the Northwestern Mutual Accident Association, a corporation, from an order of the District Court of Hennepin County, William Lochren, J., made April 1, 1893, denying its motion for a new trial. Defendant was incorporated under Laws 1885, ch. 184 to do casualty insurance business at Minneapolis on tbe co-operative or assessment plan, and on December 1G, 1891, insured John (3-.

Appeal by the National German-American Bank of St. Paul, from an order of the District Court of Otter Tail County, L. L. Baxter J., made August 12, 1893, sustaining the demurrer of the administrators of the estate of George B. Martin, deceased, to its claim against the estate. George B. Martin of Otter Tail County died intestate November 1, 1890, leaving property and estate there.

Appeal by defendant, the Hennepin County Catholic Building and Loan Association, from a judgment of the District Court of Hennepin County, Henry G. Hicks, J., entered May 31, 1893. This action was brought by Maurice Fitzgerald, plaintiff, under 1878 G. S. ch. 75, § 2, to determine the adverse claim of defendant to a lien upon lot five (5) in block (4) in Wolford, Sidle & Eeid’s Addition to St. Anthony.

Appeal by plaintiff, Hezekiah Hall, from a judgment of the District Court of Eamsey County, William Louis Kelly, J., entered September 20, 1893, that he take nothing by this action. Plaintiff brought this action to establish his title to, and to obtain possession of, the southerly part of lots six (6) and seven (7) in block thirteen (13) of Ewing & Chute’s Addition to St. Paul, occupied by defendant, the City of St. Paul, as a part of Central Avenue.

Appeal by defendant, the Board of County Commissioners of the County of Sibley, from an order of the District Court of that county, Francis Cadwell, J., entered September 18, 1893, overruling its demurrer to the complaint. The plaintiff, Dennis Curran, brought this action to enjoin the defendant from collecting $168.30 assessed against his land, under Laws 1893, ch. 152, for a ditch dug through it in 1889, in attempted compliance with Laws 1887, ch. 97.

Appeal by defendants, E. Fox & Co., H. C. Lloyd and others, from an order of the District Court of Eamsey County, Charles D. Kerr, J., made August 17, 1893, denying a motion to vacate a judgment entered on failure to answer. On May 19, 1893, at St. Paul, the sheriff of Eamsey County served the summons in this action upon defendants by delivering a copy to James M. Poland who was managing their business in this state.

Appeal by defendant, David Tozer, from an order of the District Court of Washington County, W. O. Williston, J., made September 5,. 1893, denying his motion for a new trial. Appeal also by the plaintiff, Musser-Sauntry Land, Logging and Manufacturing Company, a corporation, from an order of said court made in the same case on the same day denying its motion for a new trial.

Appeal by defendant, James McQuaid, from an order of the District Court of Swift County, Gorham Powers, J., made September 7, 1893, denying his motion for a new trial. On June 7, 1884, John Tracy purchased of the State the southwest quarter of the northeast quarter of section sixteen (16) T. 121, R. 88, and took a certificate of purchase. On September 29, 1884, he assigned this certificate to the plaintiff, Dennis Kennedy.

Appeal by defendant, C. Aultman & Co., a corporation, from an order of the District Court of Blue Earth County, M. J. Severance, J., made August 14,1893, denying its motion for a new trial. Equity will not afford relief to plaintiff on the ground that she has lost her remedy at law through mere ignorance of the judgment, the knowledge of which might have been obtained by due diligence and inquiry.

Appeal by plaintiff, Juliette A. Emery, Administratrix of the estate of Walter R. Morton, deceased, from an order of the District Court of Hennepin County, William Lochren, J., made February 16, 1893, denying her motion for a new trial.

Appeal by defendant, William McKinley, from an order of the District Court of St, Louis County, Charles L. Lewis, J., made August 8, 1893, denying Ms motion for a new trial. On February 24, 1892, the plaintiff, Arthur L. Parsons purchased of defendant at Duluth two hundred shares of stock in the Charleston Iron Company, a mining corporation organized under the laws of this state and owning mining land on the Mesaba range in St. Louis County.

Appeal by plaintiff, the Minneapolis Stock Yards and Packing Company, a corporation, from a judgment of the District Court of St. Louis County, J. D. Ensign, J., entered August 22, 1893, dismissing its action and for $18.80 costs.

Appeal by plaintiff, A. Q, Atkinson, from an order of the District Court of Hennepin County, Robert D. Rvssell, J., made September 19, 1893, granting the motion of the defendant M. W. Nash for a new trial. In 1890, the defendant, M. W. Nash employed plaintiff to sell at $600 per front foot, a lot of forty feet front being a part of lot 5 in block 24 in the original town of Minneapolis.

Appeal by defendants, William C. Eesser and Margaret L. Berry-bill, from an order of the District Court of Eamsey County, Hascal R. Brill, J., made June 2,1893, refusing their application to vacate a judgment and allow them to answer.

Appeal by plaintiff, the Winnebago Paper Mills, a corporation, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made August 19, 1893, denying its motion for a new trial. The letter of January 23, 1888, became an executed contract as between the guarantor and the principal at the time of its execution and delivery and no notice of acceptance was required to be given the guarantor.

Appeal by plaintiff, the Minneapolis Mill Company, a corporation, from an order of the District Court of Hennepin County, Thomas Canty, J., made July 22, 1893, denying its motion for a new trial. Plaintiff owned the right bank of the Mississippi River at the Falls of St. Anthony and built a wing dam into the river a few rods above the Falls and utilized the water power created thereby.

Appeal by claimant, Charles E. Magraw, from an order of the Municipal Court of the city of St. Paul, H. W. Cory, J., made September 26,1893, denying his motion for a new trial. The plaintiff, the Second National Bank of Winona, brought this action in the Municipal Court of the City of St. Paul against Alexander Donald to recover a debt he owed it. At the same time its attorney made and filed an affidavit that C. Gf. Edwards had money in his hands belonging to Donald.

Appeal by defendant, the City of Duluth, from an order of the District Court of St. Louis County, J. D. Ensign, J., made September 23, 1893, denying its motion for a new trial.

Appeal by defendants, Morris L. Hallowell, Jr. and Samuel P. Snider, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered August 7, 1893, against them for $17,844.75. On July 31, 1891, the defendants were merchants doing business at Minneapolis under the firm name of M. L. Hallowell Jr. & Co. and were indebted to various parties on notes falling due in a few days thereafter. The plaintiffs, Edwin Wallace and Ebenezer G-.

Appeal by plaintiffs, Jasper B. Tarbox and Charles H. Schliek, from an order of the District Court of Goodhue County, W. C. Williston, J., made June 12, 1893, denying their motion for judgment against the garnishee, James F. Jordan. On April 13, 1893, the plaintiffs recovered judgment in the District Court of Goodhue County against the defendants, Charles H. Stevenson and John B. Trumbull for $627.80. Their complaint had been on file more than twenty days.

Certiorari issued August 3, 1893, by this court, on the relation of Herbert M. Carpenter, Reuben C. Benton and the Minneapolis Trust Company, to tbe District Court of Hennepin County, Frederick Hooker, J., to certify and return to this court the files, record and judgment in tbe matter of tbe proceedings of tbe Board of County Commissioners of the County of Hennepin to establish and maintain a uniform stage of water in Lake Minnetonka, under Sp. Laws 1891, ch. 381.

Appeal by defendants, Fredolin Blumer, Sebastian Blumer and Matilda Blumer, from a judgment of the District Court of Washington County, W. G. Williston, J., entered February 13, 1893, in favor of plaintiff, Joachim Spalti, for the recovery of the possession of the south west quarter of section thirty two (32) T. 30, B. 20, in that county and for $200 damages for its detention and for costs. By consent the action was tried before the court without a jury.

Appeal by defendant, the City of St. Paul, from an order of the District Court of Eamsey County, Chas. D. Kerr, J., made September 23,1893, denying its motion for a new trial. The plaintiff, William E. Tate, owned the lot and building Nos. 890 and 892 East Seventh Street in St. Paul and carried on a restaurant in the basement.

Appeal by plaintiff, Aultman & Taylor Co., a corporation, from a judgment of the District Court of Becker County, D. B. Searle, J., entered September 20,1893. Samuel H. Dalen owned the northeast quarter of Section fourteen (14) T. 140, R. 42, in Becker County. The 'east half was his homestead on which he resided with his family.

Appeal by defendants, John H. Shearer and Alvena E. Shearer his wife, from an order of the District Court of St. Louis County, J. D. Ensign, J., made September 16, 1893, denying their motion for a new trial.

Appeal by Clayton R Cooley, County Auditor of Hennepin County, from a judgment of the District Court of that County, Robert D. Russell, J., entered June 20, 1893, directing a peremptory writ of mandamus to issue commanding Mm to countersign court house and city hall bonds under Laws 1893, ch. 243. The Board of Court House and City Hall Commissioners was created by Sp. Laws 1887, ch. 395. The act was amended by Sp. Laws 1889, ch. 62, Sp. Laws 1891, ch. 132.

Appeal by plaintiff, Matthias Theisen, as administrator of the estate of John Lohr, deceased, from an order of the District Court of Hennepin County, Seagrave Smith, J., made September 19, 1893, denying his motion for a new trial. The defendants, William F. Porter and George C. Andrews, were partners in the business of steam fitters and contractors.