Volume 58 — Minnesota Reports

Appeal by Samuel Mathews and Peter Jourdain relators, from an order of the District Court of Kanabec County, F. M. Crosby, J., made March 17, 1894, denying their application for an alternative writ of mandamus. Taxes were levied for 1879 and previous years upon the east half of the northeast quarter of section thirty-two (32) T. 42 R. 23 in Kanabec County.

Appeal by William P. Westfall, assignee of the Seven Corners Bank, from an order of the District Court of Bamsey County, John W. Willis, .J., made December 16, 1893, directing him to pay Mullen & O’Dowd $212.25. On July 31, 1893, Mullen & O’Dowd held a check drawn that day by Boston Hotel Co. on the Bank of Minnesota for $212.25.

Appeal by defendant, the Chicago, St. Paul, Minneapolis & Omaha Railway Company, from an order of the District Court of Ramsey County, Hascal R. Brill, J., made December 14,1893, granting plaintiffs motion for a new trial. On March 11,1892, John Jordan was a switchman at work for the Wisconsin Central Railroad Company.

Appeal by plaintiff, Veronica Nettersheim, from a judgment of the District Court of Bamsey County, John W. Willis, J., entered September 28, 1893, against her for $161.61. costs. After nightfall and in a storm of rain and sleet on December 31, 1890, Thomas Aschen was struck and killed by a west going, engine of the defendant, the Chicago, Milwaukee & St. Paul Bail-way Company, at the crossing of its railway over West Seventh Street in St. Paul.

Appeal by plaintiff, Nehemiah P. Clarke, from an order of the District Court of Stearns County, L. L. Baxter, J., made February 24, 1894, denying his motion for a new trial. On May 13, 1885, the Cold Spring Opera House Company was a corporation created under 1878 G. S. ch. 34, title 2, and having its placp of business at Cold Spring. Its capital stock was $2,000 divided into eighty shares of $25 each.

Appeal by plaintiff, John Fitzpatrick, from an order of the Municipal Court of the City of Duluth, Eric L. Winje, J., made January 8, 1894, setting aside a judgment and allowing the defendant, Archibald Campbell, to answer.

Appeal by defendant, the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made December 30, 1893, denying its motion for a new trial.

Appeal by Dudley J. Scheffer, Charles F. Scheffer and Jennie G. Greene, legatees under the will of Charles Scheffer, deceased, from a judgment of the District Court of Eamsey County, John W. Willis, J., entered January 9, 1891, reversing a decree of the Probate Court of that county. August 8, 1875, Charles Scheffer of St. Paul died testate.

Appeal by defendant, Dow S. Smith, from a judgment of the Mumieipal Court of the City of Minneapolis, Stephen Mahoney, J., entered January 19, 1894, adjudging him guilty of an offense under Laws 1893, ch. 63, and fining him $75. There was also an appeal by defendant, Frank S. Hoskins, from .a judgment of the Municipal Court of the city of St. Paul convicting him'of a like offense.

Appeal by defendant, the Minneapolis & St. Louis Railway Company, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered June 29, 1893, decreeing foreclosure of the Improvement and Equipment mortgage upon its railway and directing a sale of the property mortgaged. 'This action was commenced June 28, 1888, in the District Court of Hennepin County by Henry Seibert, trustee.

Appeal by plaintiff, Henry Seibert, trustee, from an order of tlie District Court of Hennepin County, Seagrave Smith, J., made May 20, 1893, ordering William H. Truesdale, receiver, to pay the claim of the Northern Pacific Railroad Company for $41,891.60 and interest.

Appeal by Robert Benson and more than fifty others, defendants, from an order of the District Court of Hennepin County, Seagrave Smith, J., made August 29, 1893, denying their application for counsel fees, costs and disbursements.

' Appeal by defendant, tlie Minneapolis & St. Louis Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made May 20,1893, directing William H. Trues-dale, receiver, to pay to John M. Shaw, attorney for plaintiff Henry Seibert, $45,000 on account of his services in this action.

Appeal by defendant', the Minneapolis and St. Louis Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made May 20, 1893, directing William H. Trues-dale, receiver, to pay to Hiram C. Truesdale, the attorney and counsel for the Farmers’ Loan and Trust Company, one of the defendants, $15,000 on account of his services in the action.

Appeal by defendant, the Minneapolis & St. Lonis Railway Company, from an order of the District Court of Hennepin County, Seagrave Smith, J., made December 8, 1893, denying its application for leave to propose and have settled a case after the time allowed for that purpose had expired.

Appeal by defendants, John O’Brien add Ann K. O’Brien Ms wife, from an order of the District Court of Big Stone County, C. L. Brown, J., made December 18, 1893, overruling their demurrer to the complaint.

Appeal by defendant, the City of Duluth, from an order of the District Court of St. Louis County, J. D. Ensign, J., made January 6, 1894, overruling its demurrer to the complaint. The plaintiffs, David Sang and Alexander Sang, made a contract August 15, 1892, with the Village of West Duluth to grade, curb and pave Sixth street south between Grand and Eighth Avenues in that village and complete the work by October 1, 1S92.

Appeal by plaintiff, Thorald 0. Hobe, from a judgment of the District Court of St. Louis County, Charles L. Lewis, J., entered December 16,1893, against Mm for costs. He owned lots four, five and six in block eleven in West Park Division of Duluth and on December 13, 1890, mortgaged them to> Charles A. Britts to secure the payment of $1,200 and interest at eight per cent a year.

Appeal by defendant, Dennis Ryan, from an order of the District Court of Ramsey County, J. J. Egan, J., made December 9, 1893, denying his motion for a new trial. On January 15, 1891, at Dubuque, Iowa, defendant made and delivered to plaintiff, Stephen Douglas Ryan, his promissory note for $36,177.24 due six months thereafter. The note was not paid and on February 4, 1892, this action was commenced to recover the sum due thereon.

Certiorari issued March 9, 1894, by this court on the relation of Quirin Fuchs, chairman of the board of supervisors of the Town of Zion in Steams County to Angus Haines, Justice of the Peace of said county, to certify and return to this court the record and files in his court in the matter of the appeal of Michael F. Schultz from an order of said board laying out a highway in said town and awarding to him damages.

Appeal by defendants, John Lemieu, Dosite Brouillette, and others, from a judgment of the District Court of St. Louis County, Charles L. Lewis, J., entered December 4, 1893, annulling certain conveyances of real estate as fraudulent as against plaintiff, Leroy Coons, a judgment creditor, and declaring his judgment a lien upon the property.

<p>Appeal by defendant, St. Paul, Minneapolis and Manitoba Railway Company, from a. j'udgment of the District Court of Mille Lacs County, L. L. Baxter, J., entered October 4,1893, on a verdict for $764.10.</p>

Appeal by defendant, the Library Board of the City of Minneapolis, from an order of the District Court of Hennepin County, Thomas Canty, J., made December 30, 1S93, denying its motion for a new trial. The plaintiff, Botilla E. Smith, owned a collection of rare coins and on April 6, 1890, delivered them in cases to* defendant at its request for exhibition in its library on the corner of Tenth Street and Hennepin Avenue.

Appeal by plaintiff, Henry Downs, from an order of tbe District Court of Hennepin County, Charles M. Pond, J., made November 29, 1893, setting aside a verdict in bis favor for $2,982.

Appeal by defendant, the Great Northern Railway Company, from a judgment of the District Court of Wright County, Robert D. Russell, J., entered February 5, 1894, against it for $4,794.64. At Smith Lake on October 2,1893, Frank Pettit, fifteen years old, son of plaintiff Jonas A. Pettit, was standing on a flat car of the defendant under the circumstances stated in the opinion.

Appeal by defendant, Edward H. Steele, from an order of tbe District Court of Hennepin County, Thom,as Canty, J., made December 2,1893, denying his motion for a new trial. On January 1, 1889, defendant made and delivered to the plaintiff, the First National Bank of Minneapolis, his promissory note for $20,009.44 due two years thereafter with interest annually at eight per centum per annum. This action was upon the note to recover judgment for the amount due upon it.

Appeal by defendants, the Minneapolis and St. Louis Railway Company, William H. Truesdale receiver, and the Railway Transfer Company, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered January 20, 189é, for the recovery of possession of a strip of land thirty three feet wide in lots 33 and 87 in Auditor^ Subdivision No. 39 and in lots 7, 8, 9 and 10, in block 102 in Minneapolis.

Appeal by plaintiff, John T. West, from a judgment of the District Court of Ramsey County, J. J. Egan, J., entered February 17, 1894, that he take nothing by this action. The action was commenced October 26, 1893, against Patrick M. Hennessey and his copartners in business.

Appeal by defendants, Cale Maudlin and E. Cooley, from an order of the Municipal Court of the City of Minneapolis, Andrew Holt, J., made February 10, 1894, denying their motion to set aside the findings and decision of C. B. Elliott, J., and grant a new trial.

Appeal by defendant, Northwestern Fuel Company, from an order of the District Court of Hennepin County, Robert D. Russell, J., made February 10, 1894, denying its motion for a new trial. Held: and ordered judgment for plaintiff. The Fuel Company moved for a new trial. Being denied it appeals.

Appeal by garnishees, Thomas F. Oakes, Henry C. Payne and Henry C. Rouse, from an order of the District Court of Ramsey County. J. J. Egan, J., made September 30,1893, denying their motion to be discharged without making disclosure. The plaintiff, Lewis Irwin, brought this action in the District Court of Ramsey County against A. McKechnie, defendant, upon a promissory note and claimed judgment for $145.60.

<p>Appeal by plaintiff, S. D. Wilson, from an order of the District Court of Itasca County, G. W. Holland, J., made January 15, 1894, denying his motion for a new trial.</p>

Certiorari issued out of this court on the relation of Frederick Scotten and twenty two others to Hascal R. Brill, one of the judges of the District Court of Ramsey County, requiring him to certify and return to this court the record, files and proceedings remaining in that court before him in the proceedings to establish Indian Mound Park in the City of St. Paúl and assess the benefits arising therefrom in part upon adjacent real estate.

Appeal by defendant, Lathrop Mussetter, from an order of the District Court of Ramsey County, John W. Willis, J., made January 18, 1891, striking out his answer as sham and frivolous. On January 16, 1893, defendant made and delivered his note to plaintiffs, Edward B. Smith, John J. Parker and Victor C. G-ilman, whereby he promised to pay them on September 1 then next $2,105 and interest at six per cent, a year.

Appeal by claimant, Proctor W. Screven, from an order of the District Court of Ramsey County, Hascal R. Brill, J., made January 29, 1894, overruling- Ms demurrer.

Appeal by Ozro B. G-ould, one of tlie defendants, from a judgment of the District Court of Winona County, Charles M. Start, J., entered January 23, 1894, against liim upon liis liability as a stockholder in the Winona Plow Company. Appeal also by Nicholas C. A. Munck, another stockholder from the same judgment.

Appeal by defendant, Hekla Fire Insurance Company, from an order of the District Court of Eamsey County, J. J. Egan, J., made January 9, 1894, denying its motion for a new trial. The plaintiffs, Solomon Bowman, Jr., and John Boyd, brought this action upon a judgment for $1,025.50 recovered by them December 10, 1892, against the defendant in the court of Common Pleas of Charleston County, South Carolina.

Appeal by plaintiff, John S. MacEwen, from a judgment of the Disbrict Court of Hennepin County, Robert D. Russell, J., entered January 31,1894, foreclosing a mortgage held by the Security Bank, one of the defendants. On September 13, 1884, defendant Henry B. Beard and wife mortgaged to Louis F. Menage one hundred and seven lots in the Second Subdivision of Remington Park in Minneapolis, to secure the payment of $82,000.

Appeal by defendant, the St. Paul German Insurance Company, from an order of the District Court of Ramsey County, J. J. Sgan, J., made January 13, 1S94, denying its motion for a new trial. The facts in this case are the same as in Bowman v. Hekla Fire Ins. Go., ante, p. 173. The judgment was recovered in the same court of Common Pleas in Charleston County, South Carolina, and was certified in the same way as in that action.

Appeal by defendant, the Minneapolis and Pacific Railway Company, from a judgment of the District Court of Stearns County, L. L. Baxter, J., entered January 8, 1894, cancelling its contract for right of way across forty acres of land. Plaintiff, Theresa Adolph, owned the southeast quarter of the southwest quarter of Section three (3) T. 121, R. 29, in Stearns County. She was the wife of John Adolph.

Appeal by plaintiff, Charles Ihk, from a judgment o-f the District Court of St. Louis County, Charles L. Lewis, J., entered January 25, 1894, that he take nothing by his action. On July 15, 1890, Forrestal Bros, contracted with the defendant the City of Duluth, to curb and pave Fourth Street in that city between Fifth Avenue west and Sixth Avenue east, and to’furnish and pay for all labor and material used in the work.

Appeal by defendants, James Billings and Page Morris, his assignee in insolvency, from an order of the District Court of St. Louis County, Charles L. Lewis, J., made December 29, 1893, overruling their demurrer to the complaint. On June 22, 1892, James Billings was entitled to one fifth of three hundred and twenty aorés of land in Section eight (8) and to one sixth of eighty acres in Section eighteen (18), T. 58, R. 16, on Mesaba Range in St. Louis County.

<p>Appeal by defendant, H. M. Wallis, from an order of the District Court of Anoka County, Seagrare Smith, J., made-February 8, 1894, overruling his demurrer to the complaint.</p>

Appeal by defendant, Thomas O’Connor, from an, order of the Municipal Court of the City of Minneapolis, Stephen Mahoney, J., made February 5, 1894, denying his motion for a new trial after liis conviction oí the offense oí keeping his liquor saloon open on Sunday. Appeal also by defendant, John Bauman, from a like order of- the same court made February 7, 1894, denying him a new trial after his conviction of a like offense.

Appeal by plaintiff, John J. Rhodes, from an order of the District Court of Ramsey County, Chas. E. Otis, J., made February 8, 1894, vacating and setting aside a judgment and allowing the defendants to answer.

Appeal by defendant, Bridget Tracy, from an order of the District Court of Ramsey County, John W. Willis, J., made February 5, 1894, overruling her demurrer to the complaint. • Plaintiff’s negligence excludes it from obtaining relief. It knew that Bridget Tracy had a mortgage upon this property at the time it made the loan, and the record was also constructive notice of all her rights and equities under it. Against negligence the courts afford no relief.

Appeal by Edward H. Turner, Garnishee, from an order of the District Court of Ramsey County, Chas. D. Kerr, J., made February 2, 1894, sustaining plaintiff’s demurrer to his answer. On July 25, 1893, the plaintiffs, Joseph McKibbin and partners, brought this action against Swen Ellingson of Reynolds, N. Dak. upon six promissory notes made by him, and on October 7, 1893, obtained judgment against him for $741.36.

Appeal by plaintiff, Mary I. Giertsen, from an order of the District Court of Hennepin County, Robert D. Russell, J., made February 3, 1894, denying her motion for a new trial. Plaintiff owned a lot in Baker’s Fourth Addition in Minneapolis, and her husband, Neis H. Giertsen, owmed a house and lot No. 113 First Street north in that city. On August 6,1891, she and her husband deeded both lots to his father, the defendant, Herman J. Giertsen.

Appeal by defendant, James McCabe, from a judgment of the District Court of Crow Wing County, G. W. Holland, J., entered January 31,1894, for $827.55. James McCabe kept a saloon at Brainerd for the sale of intoxicating liquors, and Patrick McCabe was his bartender. On July 6, 1893, the plaintiff, John M. Cofield, a farmer, was there noisy and disorderly. Patrick McCabe called him into a back room, assaulted him, and broke his leg. James McCabe was not present.

by leave of this court, presented an information stating that at a municipal election held in the City of St. Paul on May 1, 1894, under Sp. Laws 1891, ch. 6, for the election of nine assemblymen at large to the common council of the city, thirty six persons were candidates. That of these Wm. Banholzer received 11,199 votes, Oscar E. Holman 11,112, Timothy Rear-don 11,291, and O. H. Arosin 11,294, that seven others had more votes than any one of these four.

Appeal by Hank N. Anderson, one of the defendants, from a judgment of the District Court of Hennepin County, Robert D. Russell, J., entered February 19, 1894, against him upon his guaranty of payment of a note to plaintiff, Emily F. Leonard, for $1,000 and interest made by Peter Swanson, the other defendant.

Appeal by plaintiff, Andrew Tharalson, Assignee, from an order of the Municipal Court of the City of Minneapolis, Stephen Mahoney, J., made March 31,1894, denying his motion for a new trial. On January 11, 1893, A. F. Nordstrom was a trader at Litchfield and was indebted to defendants, Oliver C. Wyman, George H. Partridge and Samuel D. Coykendall, partners in trade at Minneapolis, $500, for which they held his notes past due.

Appeal by plaintiff, the Woodward-Holmes Co., a manufacturing corporation, from a judgment of the District Court of Hennepin County, Saagrave Smith, J., entered February 21, 1894. The defendant, William H. Nudd, and one Herbert A. Holmes were partners in business, and purchased lots three, five, six and seven in block forty three in Cummings & Broots Addition to St. Anthony Falls.

Appeal by defendants, Julius Johnson, Chris Goehrenger and Martin F. Collins, from an order of the Municipal Court of the City of Minneapolis, Stephen Mahoney, J., made February 3, 1894, denying their motion for a new trial of an action brought against them by Hans North. They also appeal from the judgment entered against them December 8,1893, in the same action for $130 and costs.

Appeal by plaintiff, John Day Smith, from an order of the District Court of Hennepin County, Robert Jamison, J., made March 7, 1894, denying his motion for a new trial. Held: that the complaint does not comprehend the cause of action, which plaintiff sought to establish on the trial. This, we think, is error.

Appeal by defendant, the Western Union Telegraph Company, from an order of the District Court 'of Bamsey. County, John W. Willis, J., made November 29, 1893, denying its motion for a new trial after verdict for plaintiff, O. S. Francis, for$760. The condition requiring the presentation of claim for damages within sixty days after filing the message for transmission is not unreasonable or void. Cole v. Western Union Tel. Co., 33 Minn. 227; Lewis v. Great Western Ft.

Appeal by John H. White, administrator, from an order of the District Court of Ramsey County, Chas. D. Kerr, J., made February 7, 1894, denying his motion for a new trial. . ' Frederick Terry died intestate February 27, 1892, at St. Paul. Letters of administration of his estate were granted to John W. White.

Petition to this court July 3, 1894, by George R. Whitcomb, relator, for a writ of Mandamus to Charles E. Otis, Judge of the District Court of Ramsey County, commanding him to entertain the application of the petitioner and others for a writ of Quo Warranto and to exercise his discretion on the merits of the application.

Appeal by plaintiff, Maria E. Thurston, from a judgment of the District Court of Ramsey County, Hascal 11. Brill, J., entered February 9, 1894, that she was not entitled to any of the relief demanded in her complaint. Plaintiff commenced this action to obtain a divorce from her husband, the defendant Charles E. Thurston, on the ground of his adultery and cruel and inhuman treatment.

<p>Evidence examined.</p> <p>The evidence considered, and held not sufficient to sustain a verdict for plaintiff.</p>

<p>Appeal by defendants, James H. Ege and Andrew J. Finnegan, from a judgment of the District Court of Hennepin County, Robert Jamison, J., entered March 1, 1894.</p> <p>Defendant, Andrew J. Finnegan, obtained judgment November 27, 1889, in the District Court of Hennepin County against William N. Read for $109.75. It was docketed, execution issued and a house and lot in Brown & Jackin’s Addition in Minneapolis owned by Read sold thereunder July 5, 1892, to Finnegan for $103.32 and he received the sheriff’s certificate. The plaintiff, William Ritchie, recovered judgment in the same court April 19, 1892, against Read for $9,409.77. It also was docketed, execution issued and the same lot sold thereunder October 3, 1892, to plaintiff for $8,000 and a- certificate of the sale issued to him by the sheriff. On July 5, 1893, plaintiff filed notice in the office of the clerk of that court that he intended to redeem the property from.the sale to Finnegan. It was the only notice so filed. Defendant, James H. Ege, was then sheriff of that county. On July 10, 1893, plaintiff tendered to James A. Kennedy, a deputy of defendant Ege in charge of his office, $170.75 current funds including bank notes and silver certificates and produced his certificate of sale and an affidavit of the amount due thereon and of filing his notice, and demanded a certificate of redemption from the sale to Finnegan. The deputy refused to receive the money and to give the certificate, but made no objection to the currency. Plaintiff filed his redemption papers with the Register of Deeds, kept his tender good, and brought this action to redeem.</p> <p>Darvini Yadnais and Peter G~. Williams recovered judgment December 10, 1889, against Read for $279.71. J. N. Bowen also recovered judgment January 9, 1890, against Read for $184.75. Both were duly docketed and assigned to Finnegan, and he filed notice in the Registry of Deeds under each, of his intention to redeem from himself. He did so redeem on July 8, 1893, and received from the Sheriff, defendant Ege, a certificate of such redemption. On these facts the trial court held Finnegan’s certificate of redemption invalid and that plaintiff’s attempted redemption was sufficient, and ordered judgment accordingly. It was so entered and defendants appeal.</p> <p>The plaintiff could not maintain this action without bringing' the money into court and depositing it with the clerk. In his complaint he professed to do so, but the evidence shows that he did not. Schroeder v. Lahrman, 28 Minn. 75. Neither Moore v. Norman, 48 Minn. 428, nor Abraham v. Holloioay, 41 Minn. 156, is in point. Werner v. Tach, 127 N. Y. 217.</p> <p>A tender in bank bills which are at par is good if the person to whom the tender is made does not object to the tender on that account. But when the party is not present and has no opportunity to urge the objection, he cannot be presumed to have waived it by his silence. Sloan v. Petrie, 16 111. 262; Bally. Stanley, 5 Yerg. 199; Ventres v. Cobb, 105 111. 33; Warren v. Mains, 7 Johns. 476; Wheeler v. Knaggs, 8 Ohio 169; Brown v. Simons, 44 N. H. 475; Gradle y. Warner, 140 111. 123; Walsh y. St. Louis E. é M. H. Ass’n, 101 Mo. 534.</p> <p>The sheriff is not the agent of the purchaser in this business. Tinkcom v. Lewis, 21 Minn. 132; Bank of Vergennes y. Warren, 7 Hill 91; Davis v. Seymour, 16 Minn. 210; Hortony. Maffitt, 14 Minn. 289; Bovey D. L. L. Co. y. Tucker, 48 Minn. 223; Ex parte Board, 4 Cow. 420; Ex parte Becker, 4 Hill 613; Boyd y. Olvey, 82 Ind. 294; Buford v. Henzier, 8 Biss. 177; Garter y. Lewis, 27 Mich. 241.</p> <p>The evidence required by the statute was not produced. The only evidence of a lien exhibited was the sheriff’s certificate of sale upon execution. Todd v. Johnson, 50 Minn. 310.</p> <p>The plaintiff could only redeem by paying the other judgments prior to his own held by defendant. The facts present the same question as the eases of Parke v. Hush, 29 Minn. 434, and Buchanan v. Reid, 43 Minn. 172. We ask a reconsideration of that question. The language of the statute is, that the judgment debtor may redeem by paying to the purchaser the amount of his bid with interest. The senior creditor may redeem by paying the amount aforesaid, and all liens prior to his own held by the party from whom such redemption is made. Warren v. Fish, 7 Minn. 432.</p> <p>It was not necessary for the respondent to bring the money tendered into court and deposit it with the clerk. His failure to do so in no way prejudiced his rights. He kept his tender good and that was sufficient. This is an equitable action and the law is well established by a long line of decisions that in equity the plaintiff is not obliged to pay the money into court where the payment of money is the foundation of his cause. He need only plead and prove his readiness to pay. Hayward v. Munger, 14 la. 516; Breitenhaeh v. Turner, 18 Wis. 140; Livingston Comity v. Henneberry, 41 111. 180; Webster v. French, 11 111. 254; Jones v. Hodsack, 42 la. 147; Taylor v. Onnsby, 66 la. 109; Bailey v. Metcalf, 6 N. H. 156; Abraham v. Holloway, 41 Minn. 156; Minneapolis, St. P. é S. Ste. M. Ry. Co. v. Chisholm, 55 Minn. 374.</p> <p>A tender in bank notes is good unless objected to on the ground that they are not legal tender. Fosdick v. Van Hus an, 21 Mich. 567; Koehler v. Buhl, 94 Mich. 496; Nop son v. Horton, 20 Minn. 268; Sardeson v. Menage, 41 Minn. 314.</p> <p>The plaintiff produced to the sheriff the sheriff's certificate of sale executed and delivered to him by the Sheriff of Hennepin County upon the sale under an execution issued upon his judgment. This certificate was prima facie evidence of the judgment and the execution under which the sale was made. Tinkcom v. Lewis, 21 Minn. 132.</p> <p>He was not required to pay other judgments held by Finnegan where no notice of intention to redeem under them was filed. Parke v. Hush, 29 Minn. 434; Pamperin v. Scanlan, 28 Minn. 345. These decisions have become a rule of real estate law in this state.</p>

Appeal by defendant, the Chicago, Milwaukee & St. Paul Railway Company, from an order of the District Court of Rice County, Thomas S. Buekkam, J., made February 19, 1S94, denying its motion for a new trial.

Appeal by defendants, John Ellenz, J. M. Sprague and others, from an order of the District Court of Houston County, Jno. Whytock, J., made January 19, 1894, denying their motion for a new trial. The north half of the northeast quarter of Section five, T. 102, R. 6, in Houston County, was with other lands on March 3, 1857, granted by the United States to Minnesota in aid of the construction of railroads.

Appeal by plaintiff, Isaac Pershing, from an order of the Municipal Court of the City of Duluth, Eric L. Winje, J., made March 9, 1894, sustaining the demurrer of defendant, Albert Swenson, to the complaint. Duluth City by its Board of Public Works duly made a contract October 31, 1892, with defendant, “Andrew G-.

Appeal by G-. Weaver Loper and sixteen others, creditors of Mast, Buford & Burwell Company, an insolvent corporation, from an order of the District Court of Bamsey County, Hascal R. Brill, J., made January 20, 1894, refusing to remove Victor Robinson from Ms trust as its assignee. On September 18, 1893, Mast, Buford & Burwell Company made an assignment of all its property under Laws 1881, ch. 148, as amend-, ed, to Victor Robinson in trust for its creditors.

Appeal by defendants, the City of Moorhead and John Lamb and P. H. Lamb, from a judgment of the District Court of Clay County, L. L. Baxter, J., entered February 8, 1894, enjoining the city and its contractors the other appellants from erecting the city prison upon the public park.

Appeal by defendant, Nettie E. Lazier, from an order of the District Court of St. Louis County, Samuel H. Moer, J., made February 7,1894, overruling her demurrer to the complaint. The plaintiff, Cynthia TL Fletcher, commenced this action December 5, 1S93, to obtain possession of the household furniture in the house No. 329 West Second street, Duluth, or $750 its value in case a delivery thereof could not be had and $500 damages for its detention.

Appeal by defendant, the Minneapolis Times Company, a corporation, from an order of the District Court of Hennepin County, Henry’ G. Hicks, J.t made February 26, 1894, overruling its demurrer to. the complaint.

On an information filed in this court December 15, 1893, by the Attorney General, a writ of Quo Warranto was on his motion-issued that day to the Park & Nelson Lumber Company, a corporation created under 1878 G. S. ch. 34, Title 2, commanding it to show cause before this court April 5, 1894, why it should not be dissolved and adjudged to have forfeited its franchise and why a receiver of its property should not be appointed.

Appeal by plaintiff, William Groff, from an order of the District •Court of St. Louis County, Charles L. Lewis, J., made July 26,1893, denying his motion for a new trial. On March 9,1891, the plaintiff was in the service of the defendant, the Duluth Imperial Mill Company, as oiler of its machinery and had been for four months.

Appeal by plaintiffs, A. B. Shute and A. A. Shute, from an order of the District Court of Mille Lacs County, L. L. Baxter, J., made March 3, 1894, denying their motion for a new trial. The supervisors of Princeton Township in Mille Lacs County made a contract August 27,1889, with August Pinz by which he agreed for $40 to burn the brush and grade about forty rods of a new highway adjoining the farm of the plaintiffs.

Appeal by plaintiff, Claus Heinbokel, from an order of the District Court of Ramsey County, William Louis Kelly, J., made March 10, 1894, denying his motion for a new trial. Plaintiff: on July 1, 1889, purchased twenty shares of the installment stock of the defendant, the National Savings Loan and Building Association of St. Paul, of the par value of $100 each, to be matured by monthly payments of sixty cents on each share.

Appeal by defendant, the Inter Ocean Building Association, from a judgment of the Municipal Court of the City of St. Paul, H. W. Cory, J., entered August 15, 1893, in favor of plaintiff, E. S. Hoyt, upon the pleadings for $105.82.

Appeal by plaintiff, tlie Mechanics’ Savings Bank of Providence, R.I., from a judgment of the District Court of Ramsey County, John W. Willis, J., entered March 15, 1894, that it recover of defendant, Houison Thompson, one dollar. On May 1, 1890, the Standard Investment Company of St'. Paul loaned to Hans K. Helbostad $3,500 to be repaid five years thereafter with interest semiannually.

The Mutual Investment Company and Alfred H. Hedderly presented an information in this court July 17, 1894, and obtained a writ of Certiorari to the District Court of Hennepin County, commanding that court to certify and return to this court on July 20 then next a transcript of all the records and proceedings had in that court in relation to the approval of an appeal bond and the justification of the sureties thereon, in an action wherein the Peoples Bank of Minneapolis was…

Appeal by defendant, John Pengilly, from an order of the District Court of St. Louis County, G. L.-Brown, J., made June 12, 1893, denying his motion for a new trial. The defendant and two associates contemplated laying out and platting a townsite on the southeast quarter of the southwest quarter of section ten (10), T. 02, R. 14, in St. Louis County midway between Tower and Ely.

Appeal by plaintiff, the Northwestern Land Company, a corporation, from a judgment of the District Court of Hennepin County, Charles M. Pond, J., entered January 25,1894, that it have no relief as against the defendant, Georgia A. Dewey. This action was brought October 28, 1892, under 1878 G. S. ch. 75, § 2, to determine the defendants’ adverse claims to, and liens upon, lot twenty (20) in block one (1) in Baker’s Second Addition to Minneapolis.

Appeal by plaintiff, William Thompson, from an order of the District Court of Ramsey County, William Louis Kelly, J., made February 23, 1894, striking out a portion of his reply. Plaintiff owned the south seventy five feet in length of lot four (4) in block thirty three (33) in the original plat of West St. Paul and brought this action under 1878 Gr. S. ch. 75, § 2, to determine the adverse claims and liens of the defendants, John Dale, Anthony Provost and Walter Ife.

Appeal by plaintiff, Robert L. Penney, as assignee of the American Exchange Bank, insolvent, from an order of the District Court of Hennepin County, Charles M. Poncl, J., made January 31,1894, denying his motion for a new trial in an action against William H. Lynn, as assignee of Gun Flint Lake Iron Company, insolvent. This lease of mining land for twenty years is a chattel real and hence subject to be pledged the same as any other personal property.

Appeal by defendants, William Cunningham and George W. Went-worth, from a judgment of the District Court of Ramsey County, John W. Willis, J., entered March 7, 1894, rescinding their sale of a lot to plaintiff, John J. Donnelly, and adjudging repayment to him of $3,257.84 the purchase price. cited Massey v. Davies, 2 Vesey 317. ' cited Bentley v. Graven, 18 Beav. 75; Tyrrell v. Bank of London, 10 H. L. Cas. 26; Davoue v. Fanning, 2 John. Ch. 252; Cumberland Coal á 1.

Appeal by defendants, Charles Bottcher and Wilhelmina Bottcher his wife, from an order of the District Court of Houston County, ■John Whytoch, J., made December 26, 1893, denying their motion for a new trial. Defendant Charles Bottcher, made his note November 15, 1877, to William Splitter of La Crosse, Wis., for $700 and interest due three years thereafter, and he and wife secured it by mortgage on his farm in Houston County.

. Appeal by plaintiff, Emily H. Babcock, from a judgment of the District Court of Ramsey County, John W. Willis, J., entered January 24, 1894. Richard Deming and Courtland Babcock were in 1887 partners in business at St. Paul under the firm name of Richard Deming & Co., as brokers making loans on pledges and chattel mortgage security. Plaintiff is the mother of Courtland Babcock, and in that year she placed $9,000 in their hands to be loaned.

C. W. Rodman was indicted January 9, 1894, by the Grand Jury of Ramsey County for the crime of wrongfully, unlawfully, and willfully having in his possession and under his control at No. 18 West Third street in St. Paul, on December 1, 1893, two prairie chickens, two whitebreasted grouse and parts of the flesh of sixteen deer, contrary to Laws 1891, ch. 9, as amended by Laws 1893, ch. 124.

The Northern Pacific Express Company, a Minnesota corporation, was indicted November 20, 1893, by the Grand Jury of Otter Tail County for the crime of wrongfully, unlawfully and wilfully having in its possession May 17, 1893, four hundred walleyed pike, three hundred pickerel, one hundred and ten sunfish, and sixty black bass caught and taken in the lakes in that county, otherwise than by angling with hook and line contrary to Laws 1893, ch. 124.

Appeal by plaintiff, Charles J. Mouso, from an order of the District Court of Hennepin County, Chas. B. Elliott, J., made February 21, 1894, denying his motion for a new trial.

Appeal by plaintiff, Matt Clark, from a judgment of the District Court of Hennepin County, Seagrave Smith, J., entered January 27, 1894, against him that he take nothing by this action. On July 26, 1890, the defendant, Mary JB. Lee, commenced, an action against Matt Clark and obtained judgment by default November 28, 1890, for $4,989.71. On August 6, 1892, he made a motion to set aside the judgment and be allowed to answer, but was denied. Lee v. Clark, 53 Minn. 315.

Appeal by plaintiffs, Edward F. Clarke, George H. Crosby and Charles J. Crosby, from an order of the District Court of St. Louis County, Charles L. Lems, J., made March 3,1894, denying their motion for a new trial.

Appeal by defendant, Minnesota Brush Electric Company, from an order of the District Court of Hennepin County, Seagrave Smith, Henry G. Hicks, and Charles B. Elliott, JJ., made March 8, 1894, overruling its demurrer to the complaint. The plaintiff, Joseph L. Kiichli by his complaint states that he is a resident freeholder and taxpayer of Minneapolis and brings the action in his own behalf as well as in behalf of all other taxpayers similarly situated.

. Appeal by defendant, Duluth City, from a judgment of the District Court of St. Louis County, Charles L. Lewis, J., entered February 6, 1894, decreeing that certain tax judgments obtained against the real estate of the plaintiff, St. George R. Fitzhugh, are void.

Application by A. Gr. Wedge and others, relators, to this court for a writ of prohibition to Eric Olson, a Justice of the Peace elected and holding his office in the town of New Canada in Ramsey County to restrain him from exercising jurisdiction over and trying certain persons charged before him with having committed an assault and battery within the city of St. Paul.

Appeal by plaintiff, Otto Waltlier, from an order of the District Court of Ramsey County, Wm. Louis Kelly, J., made March 2, 1894, denying his motion for the appointment of a receiver of the property and assets of the Seven Corners Bank. On August 1, 1893, the Seven Corners Bank of St. Paul being insolvent made an assignment under Laws. 1881, ch. 148, as amended, of all its property to W. P. Westfall in trust for its creditors.

Appeal by plaintiff, Mary Scranton, from an order of the District Court of Hennepin County, Robert D. Russell, J., made Feb. 17, 1.894, denying her motion for a new trial. Louis F. Menage owned Government Lot one (1) in section eight (8) T. 28, R. 24 on the west bank of lake Harriet in Minneapolis.

Appeal by Edward P. Alexander Jr., claimant, from an order of the District Court of St. Louis County, Chas. L. Lewis, J., made November 7, 1893, refusing a new trial. Matthew B. Harrison since deceased entered into a contract on February 8,1887, with certain Virginians to buy and sell real estate for them in and near Duluth.

Appeal by William B. Silvey, receiver of the property and estate of E. P. Emerson, insolvent, from an order of the District Court of St. Louis County, Samuel-H. Moer, J., made January 30, 1894, assigning to the insolvent four rooms in the Spalding House as his homestead.

Appeal by plaintiffs, Orrin D. Kinney and Joseph Sellwood, from an order of the District Court of St. Louis County, Samuel H. Moer, J., made February 23, 1894, sustaining demurrers to their complaint. The northwest quarter of the northeast quarter of section three (3) T. 58, R. 16, in St. Louis County was owned by the Biwabik Fee Iron Company and others.

Appeal by plaintiff, Jingie A. James, from a judgment of the District Court of Ramsey County, Chas. E. Otis, J., entered March 7, 1894, that she is not entitled to any relief in this action. On February 25, 1892, the defendant, the City of St. Paul, began proceedings to condemn lot thirteen (13) of the Rearrangement of Kenwood Terrace for a public street called Linwood Place. Such proceedings were completed August 18, 1892.

Appeal by defendant, Pan! Sharvey, sheriff of St. Louis County, from an order of the District Court of that county, J. D. Ensign, J., made February 24, 1894, denying his motion for a new trial.

Appeal by defendant, the St. Paul Title Insurance and Trust Company, from a judgment of the Municipal Court of the City of St. Paul, John Twohy, Jr., J., The Church Paint and Manufacturing Company, a corporation, being insolvent made an assignment November 16, 1893, of all its property to defendant under Laws 1881, ch. 148, in trust to pay its debts.

Appeal by plaintiff, Lizzie L. Hutchinson, from an order of the District Court of Hennepin County, Robert D. Russell, J., made January 20,1894, sustaining defendant’s demurrer to her amended complaint. January 21, 1891, plaintiff gave defendant, Edwin W. Herrick, her note for $6,500 secured by mortgage due five years thereafter bearing interest at the rate of seven per cent per annum payable semiannually, but she received only $6,012.50.

Appeal by defendant, the City of St. Paul, from a judgment of the District Court of Bamsey County, William Louis Kelly, J., entered February 20, 1894, against it and in favor of plaintiff, Louis J. Galvin, for $650.64. Appeal also by defendant, the City of St. Paul, from a judgment of the same court entered the same day against it and in favor of plaintiff John P. Walsh for a like amount.

Appeal by defendant, James O’Neil, from an order of the District Court of Sibley County, Francis Gadwell, J., denying his motion for a new trial. He was indicted for and convicted of the crime of murder in the first degree. The court certified of record its opinion that by reason of exceptional circumstances the case was not one in which the penalty of death should be imposed, and sentenced defendant to imprisonment for life.

Appeal by plaintiff, Edward B. Smith, from a judgment of the District Court of Bamsey County, J. J. Egan, J., entered February 5, 1894, that he is not entitled to .any relief in this action. Defendant, Rebecca E. Miller of Alleghany City, Pa., on January 22, 1893, owned the Albion apartment house on Selby avenue in St. Paul subject to a mortgage to the St. Paul Trust Company securing negotiable bonds to the amount of $150,000 bearing interest at six per cent a year.

Appeal by plaintiff, John Horkan, from an order of the Municipal Court of the City of Duluth, Roger S. Powell, J., made August 1,1894, denying his motion for a new trial. The defendants, George K. Nesbitt and Louise his wife of Duluth on April 24, 1893, gave plaintiff their note for $135 due one month thereafter bearing interest at ten per cent a year and secured its payment by a mortgage on a piano and two brussels carpets.

Appeal by defendant, .the American Central Insurance Company of St. Louis, Mo., from an order of the District Court of Ramsey County, J. J. Egan, J., made March 6, 1894, denying its motion for a new trial.

Appeal by plaintiff, Jonas F. Brown, from an order of the District Court of Hennepin County, Robert D. Russell, J., denying his motion for a new trial. The facts constituting the plaintiff’s cause of action are stated in the report of a former appeal from an order sustaining a demurrer to the complaint. 55 Minn. 27. That order was reversed and the action went down for further proceedings. The defendants answered and the issues were tried before the court without a jury.

Appeal by plaintiff, The Joseph M. Hayes Woolen Company, a corporation, from an order of the District Court of Hennepin County, Robert D. Russell, J., made March 24, 1894, denying its motion for a new trial. Julius H. Krueger was a merchant tailor carrying on business at Minneapolis. The plaintiff was doing business at St. Louis, Mo., and on September 1,1893, sold Krueger goods to the value of $1,058.

Appeal by defendant, William Degan, from an order of the Municipal Court of the City of St. Paul, John Twohy, Jr., J., made April 14, 1894, denying his motion for a new trial.

Appeal by defendants, Frederick Lau, and Augusta Lau Ms wife, from an order of the District Court of Hennepin County, Robert D. Russell, J., made January 20, 1894, denying their motion for a new trial, The provisions as to pleading in Laws 1889, ch. 200, § 10, apply only to parties having liens. They do not apply to the owner of the property. He has no lien on his own property.

Appeal by defendants, Lillian Barton, and Humphrey Barton, her husband, from an order of the District Court of Ramsey County, Haseal R. Brill, J., made January 18, 1894, overruling their demurrer to the complaint. The plaintiff, A. H. Paget, on May 21, 1892, made an agreement in writing with the defendant, Lillian Barton, to convey to her lot .thirteen (13) in block twenty (20) in MacKubin & Marshall’s Addition to St. Paul for $4,000.

Appeal by defendant, the Minneapolis & St. Louis Railway Company, from an order of the District Court of Hennepin County, Sea-grave Smith, J., made January 20, 1894, denying its motion for a new trial. The effect of the reversal of a case upon appeal is dependent upon the grounds upon which the reversal is based, as expressed in the opinion of the court. Jordan v. Humphrey, 32 Minn. 522; Roberts v. Corbin, 28 la. 355; Baird v. Chicago, R. I., Ac., Ry. Co., 61 la. 359.

Appeal by Clayton B. Cooley, county auditor of Hennepin County, from an order, of the District Court of that county, Robert D. Russell, J., made May 24, 1894, directing a peremptory mandamus to issue. On May 10, 1894, H. G-. Tracy presented his petition to the District Court stating that he is a resident freeholder and legal voter in the Independent School District of Minneapolis Park in that county.

Petition to this court by Moses Manston, A. A. Kremer, Eugene A. Arnold, W. C. Tyndall and F. Baker, presented October 10, 1894, under Laws 1893, ch. 4, § 43, stating that Angus McIntosh, county auditor of Itasca county, refuses to place the nominees of a delegate convention of the Republican party for county offices upon the ballots for the general election to be held November 6, 1894.

Certiorari issued April 14, 1894, by this court, on the relation of the City of Duluth, to the District Court of St. Louis County to certify and return to this court the record and proceedings in that court in the matter of the appeal of the executors of the will of George W. Norton, deceased, from the award of damages for opening a street.

Appeal by defendant, tbe Northwestern Elevator Company, a corporation, from an order of tbe District Court of Stevens County, Calvin L. Broivn, J., made February 10,1894, denying its motion for a new .trial.

Appeal by plaintiff, Charles N. Akers, as administrator of the estate of Frank A. Erling, deceased, from an order of the District Court of Eamsey County, J. J. Egan, J., made February 17, 1894, denying his motion for a new trial. Erling was killed November 10, 1890, between eight and nine o’clock in the evening in the railroad yard of the defendant,. the Chicago St. Paul Minneapolis & Omaha Railway Company in East St. Paul.

Appeal by defendant, Ella B. Lawton, from an order of the District Court of Ramsey County, William Louis Kelly, J., made April 4, .1894, denying her motion for a new trial. Edgar C. Varney and wife and William A. McManigal and wife on December 28, 1888, conveyed to defendant a lot on the northeast corner of South Robert and Annapolis streets in West St. Paul.

Appeal by defendants, William K. Twomey and wife and William H. Townsend, from a judgment of the District Court of St. Louis County, Charles L. Lewis, 3., entered March 14, 1894. Mary E. Moses was on May 19, 1879, the owner in fee of the east half of lot twenty eight (28) in block five (5) Central Division of Duluth. She resided at Skeneateles, N. Y., and was on March 23, 1876, the owner of fifteen shares of the capital stock of the First National Bank of Duluth.

<p>Appeal by plaintiff, N. A. Thompson, from a judgment of the District Court of Dakota County, F. M. Crosby, J., entered March 19, 1894.</p> <p>cited Holland v. Bartch, 120 Ind. 46; Siuift v. City of Topeka, 43 Kan. 671 ; State v. Collins, 16 E. I. 371; Taylor v. Goodwin, 33 Cent. L. J. 263.</p>

Appeal by defendant, Samuel M. Rich, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made March 19, 1894, denying his motion for a new trial. The defendant was in the cold-storage business at Minneapolis having his warehouse on Nicollet Island.

Appeal by defendant, J. A. Worman, from a judgment of tbe District Court of Hennepin County entered by the Clerk on default on August 17, 1893, for $3,446 damages and $9.37 costs. The plaintiffs, D. C. Campbell, J. A. Campbell and G-. P. Campbell, are partners doing banking business at Centerville, Iowa, under the name Campbell Banking Company. On March 15, 1893, the defendant ga ve them his note of which the following is a copy: $3,100. Centerville, Iowa, March 15, 1893.