Volume 61 — Minnesota Reports

Action by Great Northern Railway Company and St. Paul, Minneapolis & Manitoba Railway Company in the district court for Ramsey county to enjoin defendant city and the other defendants, its contractors, from constructing a bridge in Broadway street in the city of St. Paul from Prince Street to and across the Mississippi River to West St. Paul. The case was tried without a jury before Brill, J., whose findings of fact, so far as material thereto, are referred to in the opinion.

Action in the district court for Morrison county against M. M. 'Williams and others to recover a balance due on a written instrument signed by defendants, by the terms of which, in consideration of the agreement of William Sauntry to build a saw mill at Little Falls and to perform certain other things, and in consideration of the mutual covenants and agreements of the signers to and with each other, the signers jointly and severally promised to pay to the order of Sauntry…

Appeal by defendant from a judgment of tlie district court for Ramsey county, in favor of plaintiffs for $276.67, entered in pursuance of tbe findings and order of Otis, J.

Appeals by defendants from an order of the district court for Carlton county, Moer, J., striking out as frivolous separate demurrers to the complaint.

Appeal by .defendants St. Paul and Dulutb Bailroad Company and Northern Pacific Bailroad Company from a judgment of the district court for St. Louis county, entered in pursuance of the findings and order of EL F. Greene, Esq., referee.

Appeal by defendant from a judgment of the district court for Otter Tail county, entered in pursuance of the findings and order of Baxter, J.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial after a verdict in favor of plaintiff for $3,500.

Appeal by plaintiff from an order of the district court for Hennepin county, Hicks, J., sustaining a demurrer to the complaint. The provision of the certificate of shares referred to in the opinion provided that any action against defendant should be brought on or before 6 months after filing proofs^. The other facts are stated in the opinion.

Appeal by defendant from an order of the district court for Morrison county, Baxter, J., denying a motion for a new trial. The case was tried without a jury and the court ordered judgment in favor of plaintiff for $246.10.

Appeal by plaintiff from an order of the district court for Yellow Medicine county, Powers, J., referring the case to a referee.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., overruling a demurrer to the complaint.

Proceeding instituted by Henry Truelsen in the district court for St. Louis county to contest the validity of a special election. Notice of contest was served upon the city and upon Ray T. Lewis,, mayor of the city, and-upon Benjamin F. Howard, a member of the city council, who appeared. From a judgment affirming the-validity of the election, entered in pursuance of the findings and order of Lewis, J., before whom the matter was tried, the contestant, Truelsen, appealed.

<p>Charter of St. Haul — President of Common Council.</p> <p>Held, that such portion of the charter of the city of St. Paul as created the office of president of the common council, and provided for his election annually (Sp. Laws 1874, c. 1, sube. 3, § 3), was repealed by implication by an amendment to the charter (Sp. Laws, 1S91, c. 6), and that the office was then abolished.</p> <p>Same — Appointment of County Assessor.</p> <p>Held, that Sp.. Laws 1875, e. 90, § 1, authorizing the appointment of a county assessor by a board consisting of the chairman of the board of county commissioners of Ramsey county, the county auditor, and the president of the common council, is no part of the charter of the city of St. Paul.</p> <p>Same.</p> <p>Held, that said board of appointment has consisted of the chairman of the board of county commissioners and the county auditor since the enactment of the charter amendment in 1891, and that the power and right to appoint the assessor fpr Ramsey county devolves upon these two officials solely.</p>

Appeal by defendants from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial. Affirmed, as to defendant E. F. Scallen.

Appeal by defendant from an order of tbe district court for Anoka county, Elliott, J., denying a motion for a new trial. By his assumption Hall became principal debtor and Leland surety only for payment of tbe obligation. Pingrey, Mortg. § 1013; Jones, Mortg. §§ 740-741; Marsh v. Pike, 10 Paige, Ob. 595; Calvo v. Davies, 73 N. Y. 211; Cornell v. Prescott, 2 Barb. 16; Russell v. Pistor, 7 N. Y. 171; Paine v. Jones, 76 27. Y. 274; Millerd v. Thorn, 56 27.

<p>Appeal — Judgment.</p> <p>Eeld, tliat the findings of fact, conclusions of law, and order for judgment are merged in tlie judgment, and are immaterial, so far as they awarded the prevailing party any greater relief than the judgment awards him.</p>

Gustave Peterson and John J. Ostby were indicted in the district court for Polk county, for selling intoxicating liquors to a minor. A motion to set aside the indictment and to discharge defendants from custody was denied by Ives, J., who certified to the supreme court the question whether such denial was error.

Action in tbe district court for Ramsey county, by Ida J-. Newstrom, as administratrix of tbe estate of Elias Newstrom, deceased, against St. Paul and Dulutb Railroad Company to recover damages for tbe death of tbe intestate. From an order, Egan, J., denying a. motion for a new trial, after a verdict in favor of plaintiff for |>5,000, defendant appealed.

Appeal by plaintiff from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial, after a verdict of $1,000 for plaintiff.

<p>Appeal by defendant from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial.</p>

Action in the district court for Nicollet county. The complaint alleged in substance that by the will of Charles P. Stark, deceased, plaintiff was entitled to one undivided fifth of certain real and personal property; that the will was duly probated and that defendant was appointed administrator with the will annexed and took possession of said property; that defendant made a report of his administration, showing that he had in his possession said real property and certain…

Appeal by defendant from an order of the district court for Hennepin county, Russell, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial. The amendment to art. 10, § 6, of the by-laws, referred to in the opinion, was as follows: “It being further understood that if an assessment levied to the full maximum of the table of rates as provided by the by-laws will not produce a sum sufficient to pay the full limit named, then and in that case the payment above shall be made pro rata.”

<p>Larceny — V ariance.</p> <p>In a complaint for larceny, under subdivision 2, § 415, Penal Code (6. S. 1894, § 6709), it was alleged that the money came into defendant’s possession as agent of the owner. The evidence was that defendant was an attorney at law, and that certain accounts were placed by the owner in his hands for collection, and that the money misappropriated was received by him in payment of these accounts. Seld, that there was no variance between the complaint and the proof.</p> <p>Same — Evidence.</p> <p>Evidence held sufficient to Justify the verdict.</p>

<p>Appeal by defendant from an order of the district court for Ramsey county, Willis, J., striking out the answer.</p>

Appeal by Eastern Railway Company of Minnesota, garnishee, from a judgment of the municipal court of St. Paul, in favor of plaintiff and against the garnishee for $31.68, entered in pursuance ■of an order for judgment by Orr, J. The possession which a common carrier, as such, has of goods in transit is not sufficient to make the carrier liable as garnishee. Illinois C. R. Co. v. Cobb, 48 111. 402; Bates v. Chicago, M. & St. P. R. Co., 60 Wis. 296,19 N. W. 72.

Appeal by defendant from a judgment of the district court forBamsey county against Germania Bank of St. Paul, garnishee, entered in pursuance of an order for judgment by Brill, J.

Appeal by defendant from a judgment of the municipal court of St. Paul for $31.43, entered in pursuance of an order for judgment by Twohy, J.

Three separate appeals by plaintiff, two from orders of the district court for Ramsey county, Willis, J., denying motions for a new trial, and one from a judgment in favor of plaintiff and against •defendants.

Appeal by plaintiff- from an order of tbe district court for Ramsey county, Kelly, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for Lac Qui Parle county, Powers, J., denying a motion for a new trial.

Certiorari, on tbe relation of William J. Hurd, against the respondent as judge of the district court for Ramsey county, to review proceedings wherein an order was made punishing relator for contempt.

<p>Evidence.</p> <p>Held, there was sufficient evidence to sustain a verdict for the defendant. Same — Conclusion of Witness.</p> <p>Held, it was error to admit as evidence the answers to certain questions calling for the mere conclusion of the witness.</p> <p>Same.</p> <p>But held, this rule does not apply to a certain question asked for the purpose of proving a negative, and it was error to exclude the answer to the question.</p> <p>Replevin — Damages.</p> <p>The plaintiff, by replevin proceedings, wrongfully took from the defendant a threshing machine, and retained it until after the trial of the action. It does not appear that he used it, or did not properly store or care for it, during the detention. Held, the measure of damages for such detention is the fair rental value of the machine, less the damages which would result to it from the extra wear and tear caused by the use of it while so rented.</p> <p>Possession by Agent.</p> <p>Possession of property by an agent is not evidence that the agent has authority to sell the property.</p>

Appeal by plaintiff from an order of tbe district court for Wabasha county, Start, J., denying a motion for a new trial.

Action in the district court for Hennepin county, against W. H. Truesdale as receiver of Minneapolis & St. Louis Railway Company to recover damages for trespass in ejecting plaintiff from defendant’s train.

<p>Fixtures between Mortgagor and Mortgagee — Gas Fixtures.</p> <p>As between mortgagor and mortgagee: Held, gas fixtures, consisting of chandeliers and burners, screwed to the ends of the gas pipes projecting from the walls and ceilings of the building, are not a part of the realty.</p> <p>Same — Steam Radiators.</p> <p>But held this must be regarded as rather an arbitrary exception, established by the great weight of authority to the general rule, and does not apply to steam radiators, attached at the floor to steam pipes by being screwed to those pipes, and such radiators are a part of the realty.</p> <p>Same — Electric Annunciator.</p> <p>Held, an electric annunciator attached to the wall, and to ail the wires of the electric bell system of an hotel, is a part of the realty.</p> <p>Same — Office Desk.</p> <p>An office desk, about 25 feet long, rested on a tile floor, between projections in the walls, to which it was fastened by means of screws. The-space behind the desk formed the hotel office. Held, such desk was a part of the realty.</p> <p>Same — Counter.</p> <p>Held, on the evidence, it was a question for the jury whether or not a certain cigar counter was a part of the realty.</p>

Action in the district court for St. Louis county to recover $1,500 apon a policy of fire insurance. The case was tried before Lewis, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial plaintiff appealed.

Appeal by defendant from an order of the district court for Winona county, Start, J., denying a motion to set aside a verdict for $1,000 in favor of plaintiff and for a new trial. Exhibits A, B, and C, referred to in the opinion, read as follows: EXHIBIT A, BEWARE OP COUNTERFEITS and BASE AND DANGEROUS IMITATIONS of our well-known DR. WARD’S VEGETABLE ANODYNE LINIMENT.

Action by plaintiff in justice court for breach of contract. Plaintiff obtained judgment for $53.01 damages and defendant appealed to the district court on questions of law alone, and the district court reversed the judgment.

<p>Quo warranto against the village of Fridley Park. C. J. Swanson, President, Wm. McDermott, Recorder, P. Rydall, Treasurer, and S. .Knudson, John G-utwa'dt and Chas. A. Nelson, Trustees, of said village.</p>

Action in the municipal court of Minneapolis to recover the balance due upon a promissory note for $70. The case was tried before Mahoney, J., who ordered judgment for plaintiff. It appeared in evidence that defendant owned real estate on which plaintiff held a mortgage executed by a prior owner.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., denying a motion to set aside the special findings and verdict of the jury and for judgment notwithstanding said findings and verdict, and also a motion to set aside said findings and verdict and for a new trial.

Action in tbe district court for St. Louis county by William F. Marvin against Clarence H. Foster and Mary P. Foster, Ms wife,, and Edward H. Foster and Sarab C. Foster, Ms wife, for partition. The case was tried before Lewis, J., without a jury, who ordered judgment in favor of defendants. The facts are stated in the opinion. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for Mower county tó recover damages for personal injuries. The jury rendered a verdict in favor of plaintiff for $1,500. From an order, Whytock, J., denying a motion for a new trial defendant appealed.

Appeal by Alvin A. Meister from an order of the district court for Hennepin county,. Pond, J., denying an application for the appointment of a receiver of William H. Adamson.

Appeal by plaintiff from an order of the district court for Hennepin county, Canty, J., denying a motion to set aside an order dismissing the action and for a new trial.

Action in the district court for Ramsey county by August Heidel and Margaret Heidel, Ms wife, against Henry Benedict and Henry Habighorst. From an order, Kerr, J., denying a motion to vacate the decision and for a new trial plaintiffs and defendant Habighorst appealed. Affirmed as to plaintiffs.

• Appeal by defendant from an order of tbe district court for Marshall copnty, Ives, J., denying a motion for a new trial.

Appeal by defendants from a judgment of the district court for St.. Louis county, entered in pursuance of an order for jucement by Moer, J.

Action in the district court for Faribault county against the village of Winnebago City and E. C. Moulton as its treasurer. From the order of Severance, J., sustaining the demurrer of defendants, plaintiff appealed.

Appeal by defendant from an order of the district court for Becker county, Searle, J., denying a motion for a new trial.

Appeals by defendant in each case from, an order of the district court for Nobles county, P. E. Brown, J., denying a motion for a new trial.

<p>Appeal by plaintiff from an order of the district court for Clay •county, Searle, J., denying a motion for a new trial.</p>

Appeal by defendant Samuel Bearing from a judgment of the district court for Ramsey county in favor of plaintiff and against said defendant for $735.87.

Appeal by defendant from an order of the district court for St. Louis county, Ensign, J., denying a motion for a new trial.

<p>Term of Health. Officer — -Repeal of General Law by Duluth Charter.</p> <p>Held, that so much of the general law relating to local boards of health (G. S. 1894, § 7048) as fixes the health officer’s term at three years was repealed as to the city of Duluth by its charter (Sp. Laws 1887, c. 2), and that, since such charter was amended by Sp. Laws 1891, e. 55, § 6, the term of office of the health officer of the city of Duluth has been, and now is, one year only.</p>

<p>Appeal by defendants from an order of the municipal court of Minneapolis, Holt, J., denying a motion for a new trial.</p>

Action in the district court for Hennepin county by Charles W. Hagelin against Henry Wacks to recover damages for breach of defendant’s contract to assign an insurance policy and to procure the assent of the insurance company to such assignment. The case was tried before Elliott, J., wlio ordered judgment for defendant. From an order denying a motion for a new trial, plaintiff appealed.

<p>On rehearing. Prior decision (59 Minn. 415, 61 N. W. 456)</p>

Appeal by plaintiff from a judgment of the district court for Carlton county, entered in pursuance of an order for judgment by Ensign, J. Exhibit A referred to in the opinion was as follows: .'State of Minnesota, ) District Court, County of Carlton, j ss‘ 11th Judicial District. The State of Minnesota.

Appeal by defendant from an order of the district court for Grant county, O. L. Brown, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the answer.

<p>Appeal by plaintiff from a judgment of the district court for Hennepin county, entered in pursuance of an order by Belden, J.</p>

<p>Case certified from the district court for Carlton county, Moer, J., upon the application of Carlton county.</p>

In the matter of the assignment of Mary M. How, an insolvent debtor, pending in the district court for Scott county, the First National Bank of Shakopee and other creditors filed their petition praying that a certain selection of land made by the insolvent as her homestead be set aside and that the homestead to which she was entitled be ascertained by the court.

Action in tbe district court for Eenville county by tbe board of county commissioners of Eenville county against Finley A. Gray and Joseph A. Beard, copartners as tbe Bank of Fairfax, and others. Tbe jury rendered a verdict for $1,876,16 against defendants Gray, Beard, Martin D. Brown, Henry Hauser, Horatio Werring and Matthew Welter, and in favor of tbe other defendants.

Appeal by plaintiff from an order of the district court for Jackson county, P. E. Brown, J., denying a motion for a new trial.

Appeal by Thomas H. Reeves, insolvent, from an order of the district court for Hennepin county, Russell, J., allowing Albert W. Hastings, as receiver, the sum of $750 in addition to the sum of $564.58, as commissions upon the moneys collected by him as receiver.

Appeal by defendant Sherman R. Norris from an order of the district court for St. Louis county, Lewis, J., denying his motion to set aside the judgment and for leave to answer and defend.

Action in the district court for Houston county by Michael Stadtler and others in behalf of themselves and of all other resident taxpayers of defendant school district against School District No. 40 in the county of Houston, the trustees of said school district and the auditor of said county to restrain defendants from removing the school-house site of said district.

Appeal by defendant Thomas D. Merrill from a judgment of the district court for St. Louis county, entered in pursuance of an order for judgment by Lewis, J.

<p>Appeal by defendant from a judgment of the district court for Ramsey county, Brill, J., in favor of plaintiff for $1,090.45.</p>

<p>Appeal by defendant from an order of the municipal court of Duluth., Winje, Special Judge, denying a motion for a new trial.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, J., vacating a judgment for $5,800 entered against defendants on default and allowing them to answer.

Action in the district court for Hennepin county by First National Bank of Freeport, Illinois, against Compo-Board Manufacturing Company, Northwestern Guaranty Loan Company, J. H. Randall, E. J..McMahon, A. Z. Levering, W. S. Streeter and George B. Bower. The case was tried before Baxter, J., who directed a verdict in favor of plaintiff. From a judgment for $2,150.27 entered in pursuance of the verdict, defendants Randall, McMahon, Levering and Bower appealed.

■Appeal by plaintiffs from an order of the district court for St. Louis county, Ensign, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial.

Action in the district court for Hennepin county by Gustav Eliason against Henry G. Sidle and others. The complaint contained three causes of action, each seeking to recover for an excessive amount of attorney’s fees charged and retained by defendants out of thé proceeds of the foreclosure sale of certain lots, the ownership of which at the date of the sale was in plaintiff, subject to the mortgages which defendants foreclosed.

Appeal by defendant from an order of the district court for St. Louis county, Moer, J., denying a motion to set aside a verdict for $3,624.83 in favor of plaintiff, and for a new trial.

Appeal by defendant from an order of the district court for Houston county, Whytock, J., denying a motion to set aside a verdict in favor of plaintiff for $341.75, directed by the court, and for a new trial.

Action for claim and delivery in tbe district court for Hubbard county, in wbicb Farwell, Ozmun, Kirk & Co., intervened, and under a mortgage from one Jarvis and defendant as copartners claimed to be owner of 500 bushels of wheat taken by plaintiff.

Appeal by defendant from an order of the district court for Stearns county, Searle, J., denying a motion for a new trial after a verdict in favor of plaintiff for $3,000.

Action in the district court for Washington county by W. C. Masterman, as receiver of defendant R. J. Wheeler, against Lumbermen’s National Bank of Stillwater and said Wheeler. E. W. Durant intervened. The case was tried without a jury before Williston, J., who ordered judgment in favor of defendant bank and against plaintiff, and in favor of the intervenor and against defendant bank, as stated in the opinion..

Appeal by defendant from an order of the district court for Mower county, Whytock, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial. The Minneapolis Times Company, after the payment of the delinquent call by Nimocks, recognized defendant as one of the shareholders and -waived the formalities of an actual transfer.

Appeal by defendant from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial after a verdict directed by the court in favor of plaintiffs.

Action in the district court for St. Louis county by Isabella J. 'Carlton against Nebemiab Hulett. John E. Carey, administrator of tbe estate of said Nebemiab Hulett, was substituted as defendant. From an order, Moer, J., denying defendant’s motion for judgment in bis favor and granting1 plaintiff’s motion for judgment in ber favor, and from tbe judgment entered upon said order in favor of plaintiff, defendant appealed.

Appeal by defendant from an order of tbe district court for Houston county, Whytock, J., denying a motion for a new trial.

Appeal by defendants Charles J. Spratt and Frederick Loewe from a judgment of the district court for Le Sueur county, entered in pursuance of an order for judgment by Cadwell, J.

Appeal by plaintiff from a judgment of the district court for Ramsey county, entered in pursuance of an order for judgment by Kerr, J.

Action in the district court for Hennepin county by Bridget McNamara against Michael Gassefly, Minneapolis and St. Louis Railway Company, W. H. Truesdale, as receiver of said railway company, and others. After the trial and decision, the plaintiff having died, Thomas McNamara and others were substituted as plaintiffs. From an order, Hooker, J., denying a motion for a new trial, plaintiffs appealed.

Appeal by defendant from an order of tbe district court for Big Stone county, O. L. Brown, J., denying a motion for a new trial.

Appeal by defendant from a judgment of the district court for Kamsey county entered pursuant to an order for judgment by Kelly, -J.

Appeal by defendants from an order of the district court for St. Louis county, Ensign, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Blue Earth county, Severance, J., denying a motion to set aside the verdict and for a new trial.

Appeal by F. D. Hager and others from an order of the district court for Ramsey county, Egan, J., making them parties defendant in the action, amending the original summons, and authorizing the attorneys of the claimant Smith to issue a summons in the action and to serve the summons as amended upon the additional parties defendant.

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining demurrers to the complaint.

Appeal by defendant from a judgment of the district court for Ramsey county, entered pursuant to an order for judgment by Willis, J.

Appeal by plaintiff from a judgment of the district court for Hennepin county, entered in pursuance of an order for judgment by Smith, J. On application of defendant Tousley costs, including $10 statutory costs, were taxed by the clerk, notwithstanding plaintiff’s objection, in favor of said defendant.

Two actions in the district court for Hennepin county. The defendants in the first-named action were Northwestern Guaranty Loan Company, William S. Streeter, C. H. Pettit, Loren Fletcher, W. D. Washburn, Thomas Lowry, George A. Pillsbury, Charles Robinson, William H. Eustis, and Louis F. Menage. In the other action the defendants were S. H. Harper, W. G. Crocker, Frank J. Percival, and all the defendants in the former action.

Appeal by defendant from an order of the district court for St. Louis county, Moer, J., overruling a demurrer to the complaint.

Appeal by defendant and garnishee from an order of the district ■court for Ramsey county, Willis, J., denying a motion for a new trial.

Appeal by defendant Vaule from a judgment of the district court for Polk county, entered in pursuance of an order for judgment by Ives, J.

<p>Garnishment — Appearance of Garnishee.</p> <p>If the court has jurisdiction of the person of the defendant, the voluntary appearance and disclosure of the garnishee waives, as to him, the defects in the affidavit of garnishment.</p> <p>Same — Affidavit.</p> <p>In an action against two defendants, an affidavit of garnishment which states that the garnishee “is indebted to the said defendants in an amount exceeding the sum of fifty dollars” is sufficient to charge the garnishee for a debt due from him to one of the defendants alone.</p>

<p>Appeal by plaintiff from an order of the district court for Ramsey county, Willis, J., denying a motion for judgment.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Lewis, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for Ramsey ■county, Brill, J., sustaining a demurrer to the complaint.

Appeal by defendant from an order of the district court for Mower county, Whytock, J., denying a motion for a new trial.

.Action in the district court of Hennepin county to recover an unpaid balance of $2,303.32, and interest, upon the contract mentioned in the opinion. When the plaintiff rested at the trial a motion to dismiss the action was denied. The court ordered judgment in favor of the plaintiff for $1,934.02. From an order of the court, Hicks, J., denying a new trial, defendant appealed.

Appeal by defendant from a judgment of the district court for Ramsey county, for $580.64, entered in pursuance of an order for judgement by Otis, J.

Appeal by defendant from an order of the district court for Ramsey county, Kerr, J., granting plaintiffs’ motion for a new trial.

Appeal by defendants John G-. Nelson and August Booren from a judgment of the municipal court of Stillwater, entered in pursuance of an order for judgment by Jack, J.

Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., denying a motion for a new trial. The word “railroad” as used in Laws 1887, c. 13, does not include street railways. 23 Am. & Eng. Enc. Law, 316; Reiche v. Smythe, 13 Wall. 162; County Seat of Linn Co., 15 Kan. 500; Robbins v. Omnibus R. Co., 32 Cal. 472; Whitcomb v. Rood, 20 Vt. 49.

Appeal by plaintiff in each of the above entitled actions from a judgment of the district court for Houston county dismissing the action on the merits.

<p>Unlawful Detainer — Sufficiency of Answer.</p> <p>Held, in an action brought to obtain restitution of leased premises after a breach of the covenant to pay rent, and under the provisions of G. S. 1894, § 6118, that the answer failed to allege a defense.</p> <p>Same — Judgment on Pleadings.</p> <p>The answer having admitted all of the material allegations of the complaint, and alleging no defense, judgment on the pleadings for restitution was properly ordered in the court below, following Norton v. Beckman, 53 Minn. 456.</p>

Appeal by defendant from an order of. the district court for Martin county, Severance, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for Yellow Medicine county, Powers, J., denying a motion for a new trial.

The will of Robert F. Gillam, deceased, was admitted to probate in the probate court of Hennepin county in 1879. By the will the testator gave $1,000 to Josephine H. Cowles, and the residue of his estate as stated in the opinion, and appointed his mother and his sister Hannah E. Henry executrices, and they duly qualified. In 1883 James W. Gillam, the testator’s father, died, and in 1892 the testator’s mother died.

Application in the district court for Hennepin county by Henry Hill and others, copartners under the .firm name of Hill, Sons & Co. for the appointment of a receiver of the property and estate of Mason H. Crittenden and Archie M. Crittenden, individually and as copartners as M. H. Crittenden & Son. From an order of the court, Hicks, ■J., appointing Northern Trust Company as such receiver, Metropolitan Trust Company, assignee of Mason H. Crittenden, insolvent, appealed.

<p>New Trial — Surprise—Newly-Discovered Evidence.</p> <p>Motion for a new trial, on the ground of surprise and newly-discovered evidence, held properly refused.</p>

In proceedings in the district court for Wadena county to enforce the collection of taxes for the year 1892 on real estate in said county remaining delinquent and unpaid, defendant interposed an answer alleging that under Sp.

Appeal by defendants from an order of the district court for Hennepin county, Jamison, J., denying a motion for a new trial.

Appeal by defendant from an order of.the district court for Hennepin county, Russell, J., overruling a demurrer to the complaint.

Appeal by defendant from an order of the 'district court for St. Louis county, Moer, J., overruling a demurrer to the complaint. The complaint in the former action referred to in the opinion was for money collected after a mutual dissolution of a copartnership under an agreement that defendant therein should collect all moneys and pay over half to plaintiff.

Appeal by defendant from an order of the district court for St. TLouis county, Ensign, J., overruling a demurrer to both causes of ¡¡action ¡in the complaint. Appellant was entitled to insist on respondent’s performance of the contract, and a promise to pay him additional compensation for such performance is without consideration.

.Appeal by defendants from an order of the district court for St. Louis county, Moer, J., denying a motion to set aside a verdict’ for $2,451, in favor of plaintiffs, and for a new trial.

Appeal by one of defendants from an order of the district court lor Hennepin county, Hicks, J., denying a motion for a new trial.

<p>Railway — Contributory Negligence — Standing on Steps.</p> <p>Tbe plaintiff was a passenger upon tbe defendant’s railway train, operated by steam; and, as it was approaching the station at a dangerous rate of speed, be went, in anticipation of its stopping, and for the purpose of being ready to get off when it should stop, upon the platform of the car, and stood upon the steps thereof, and was thrown therefrom by a sudden jerk of the train, which, instead of stopping, increased its speed when opposite to the station. There was no evidence of any necessity for him to assume such position, or invitation, express or implied, by the defendant’s agents in charge of the train for him to do so. Held, that he was guilty of contributory negligence, as a matter of law.</p>

Three appeals from the district court for Heunepiu county, Smith, J. (1) Petition by Minneapolis & St. Louis Railway Company, and W. TL Truesdale as its receiver, defendants in an action for ejectment brought by Minneapolis Western Railway Company against said defendants and another, for the appointment of commissioners to determine the compensation to he paid by petitioners for appropriating to railroad use by petitioners certain lands referred to in the opinion as the…

Appeal by one of defendants from an order of the district court for Ramsey county, Kelly, J., overruling a demurrer to the complaint. This action is unauthorized by G. S. 1878, c. 76, for the reason that defendant corporation was not a moneyed corporation.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., granting plaintiff’s motion to amend the complaint and denying defendant’s motion for a new trial.

Appeal by defendant from a judgment of the district court for Hennepin county. The case was tried before Elliott, J., and a jury, which rendered a verdict in favor of plaintiff for $10,490. In cases of alleged suicide, a presumption as to the cause of death is to be indulged in only where a person is found dead, without more. In such case the presumption is that death was natural or accidental. Germain v. Brooklyn Life Ins. Co., 26 Hun, 604; Guardian Ins.

Appeal by plaintiffs from an order of the municipal court of Minneapolis, Holt, J., sustaining a demurrer to the complaint. Co-tenants are liable for contribution. Van Brunt v. Gordon, 53 Minn. 227, 51 N. W. 1118. The claim was not a contingent claim. Jemison v. Blowers, 5 Barb. 686; In re Martin’s Estate, 56 Minn. 120, 57 N. W. 1065; Bullard v. Moor, 158 Mass. 118, 33 N. E. 928; Corn-stock v. Matthew's, 55 Minn. Ill, 56 N. W. 583.

Appeal by plaintiff from an order of the district court for St. ■Louis county, Ensign, J., sustaining a demurrer to the complaint.

Appeal by plaintiff from orders of the district court for Kittson county, Ives, J., sustaining separate demurrers of defendants respectively to the complaint.

Appeal by plaintiff from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial.

Appeal by defendants from an order of tbe municipal court of Minneapolis, Holt, J., denying a motion for a new trial. The action was for tbe conversion of certain books' of account used by plaintiffs in their business. Tbe case was tried by tbe court, without a jury, and judgment was ordered in favor of plaintiffs for seventy-ñve dollars.

Appeal by defendant from an order of the district court for Polk county, Ives, J., denying its motion to set aside the taxation of costs and entry of judgment and for leave to answer the complaint.

<p>City of St. Paul — Scavenger’s Permit.</p> <p>A regulation of the health department of the city of St. Paul prohibited “licensed persons” from doing certain scavenger work “without a permit first obtained from the health officer.” It nowhere appeared what license was required, or that any persons were prohibited from doing such work without such license. The defendant was charged with having violated such regulation by doing such work without such permit. It was not alleged or proved that he was a licensed person.</p> <p>Held, a conviction cannot be sustained.</p>

Belabor, having appealed from an order in habeas corpus proceedings of the district court for Bamsey county, Otis, J., awarding the custody of his minor child to respondent, served notice of trial de novo in the supreme court under Laws 1895, c. 327.

Proceedings were commenced by the village of West Dulutli under Laws 1891, c. 146, sube. 9, for tbe purpose of making certain street improvements. After letting the contract an assessment of ■85 per cent, of the estimated cost of $108,000 was made. After the work was finished, it was found that there was a deficiency in the cost of $48,277.97 over the first assessment, and a second assessment was levied to pay such deficiency.

Appeal by defendant from an order of the district court for St. Louis county, Moer, J., granting plaintiffs motion for a new trial. Upon the trial defendant objected to the introduction of evidence on the ground that the matters involved in, and the subject matter of, the action had been determined and adjudicated in the former action referred to in the opinion. The court sustained the objection and dismissed the action.

Appeal by defendants from an order of the district court for St. Louis county, Ensign, J., sustaining plaintiff’s demurrer to the second defense in the answer.