Volume 63 — Minnesota Reports

Appeal by defendants from a judgment of the district court for Hennepin county in favor of plaintiffs, entered in pursuance of the order of Hicks, J.

<p>Amendment of Complaint.</p> <p>Held, the court below did not abuse its discretion in refusing plaintiff, leave to amend his complaint on the trial.</p> <p>Finding Sustained.</p> <p>A certain finding held supported by the evidence.</p> <p>Conveyance to Wife — Written Declaration of Trust.</p> <p>A husband procured the title to real estate to be taken in his wife's name. A subsequent declaration of trust made and signed by her recited that the-consideration for the conveyances was paid by her husband, that the land was conveyed to her for his use and benefit, and that Sheffield It in trust for him. Held void under 6. S. 1894, § 5534.</p> <p>Same — Verbal Declaration.</p> <p>A verbal declaration of trust made by the wife to her husband at the time of the above conveyances also held void as within the statute of frauds and the statute of uses and trusts.</p> <p>Trust ex Maleficio — Finding Sustained.</p> <p>Held, the finding of the court that there was not a trust ex maleficio is also supported by the evidence.</p> <p>Claims of Creditors of Deceased — Jurisdiction.</p> <p>Held, this is not a proper action in which to determine whether or not the surviving husband’s statutory interest in his deceased wife’s real estate is subject to the claims of her creditors, but the same must be determined in the probate court, which has exclusive jurisdiction for that purpose.</p>

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

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

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

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

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

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

<p>Finding Sustained.</p> <p>Evidence considered, and held sufficient to justify the finding of the trial court.</p>

Appeal by plaintiff from a judgment of the district court for Good-hue county, in favor of defendant, entered in pursuance of tlie findings and order of Crosby, J.

Action in the district court for Scott county against Julius Braun, Mathilda Braun and John Niemann. The jury rendered a verdict in favor of plaintiff for $602.50. From a judgment entered in pursuance of the verdict and also from an order, Cadwell, J., denying a motion for a new trial, defendant Niemann appealed.

Appeal by defendant from an order of tbe district court for Stevens county, C. L. Brown, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $900.

Appeal by defendant from a judgment of tbe district court for Washington county, in favor of plaintiff, as executor of tbe last will of Mary H. Bromley, deceased, in whose place be was substituted as plaintiff, entered in pursuance of tbe findings and order Of Williston,. J.

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

Action in the district court for Hennepin county, referred by order of court to W. E. Hale, Esq., as referee, to try and determine the issues and to report a judgment thereon. The referee found in favor of defendants. From an order, Elliott, J., denying a motion for a new trial, plaintiff appealed.

Appeal by plaintiff from a judgment of tbe district court for Kandiyohi county, in favor of defendants, entered in pursuance of the findings and order of Powers, J.

<p>Executors and Administrators — Liability for Taxes Assessed before Settlement.</p> <p>On May 1, 1893, and prior thereto, and afterwards- to December 21, 1893, one B. was the administrator of the estate of K. The personal property of the estate in the hands of B. was duly assessed May 1, 1893. On December 21, 1893, B., upon petition and due notice given, filed his final account in probate court, which account was allowed, a final decree of distribution of said estate was entered, and, pursuant thereto, the estate was distributed to the persons entitled by law thereto, and B. was by said probate court duly discharged as such administrator. B. not having paid the taxes assessed upon said personal property, the county treasurer brought this action against him personally to- recover the amount thereof. It did not appear, and could not be shown, when the tax claimed in this case was extended by the county auditor on the tax list. The auditor of said county completed the tax lists for the year 1893, and turned the same over to the treasurer of said county, as required by G. S. 1894, § 1562, upon January 2, 1894. Held, that B. was not personally liable for such taxes; that under the statute, as against the administrator, the taxes were not finally ascertained and levied until lie could ascertain and know the-amount thereof, and to whom he could legally pay the same, which in this case was on January 2, 1894.</p>

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

Appeal by plaintiffs from an order of the district court for Hennepin county, Belden, J., overruling a demurrer to the answer.

Appeal by plaintiffs from an order of the district court for Hennepin county, Elliott, J., overruling a demurrer to the answer.

Case certified from the district court for Hennepin county, Russell, J. An enactment granting privileges, exemptions or immunities not enjoyed by the community at large must be strictly construed. St. Peter’s Church v. County of Scott, 12 Minn. 280 (395); County of Hennepin v. Bell, 43 Minn. 344, 45 N. W. 615; County of Bamsey v. Church of Good Shepherd, 45 Minn. 229, 47 N. W. 783; State v. Cooley, 62 Minn. 183, 64 N. W. 379.

Appeal by plaintiff from a judgment of the district court for Hennepin county,- entered in pursuance of the findings and order of Elliott, J.

Appeal by plaintiff from an order of the district court for Otter Tail county, Charles L. Lewis, J., denying a motion for a new trial.

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

Quo warranto on the relation of O. H. Arosin and Edward H. Milham against Joseph Ehrmantraut and Eobert N. Hare. Eespondents filed an answer, to which relators demurred on the ground that the facts stated did not constitute a defense. Judgment of ouster.

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

Action in the district court for Clay county to recover a balance of $286.91 due for goods sold and delivered. The summons was dated July 13, and was served July lá, 1893. The complaint alleged that the price of the goods was $1,003.97 and admitted payments made between September 30, 1891, and January 9, 1892, amounting to $717.06.

Order of this court upon the petition of Charles W. Burdic, defendant and appellant, requiring James A. Owens, receiver, to show cause why 'he should not turn over to said defendant the possession of certain real •estate ánd why said defendant should not he granted such other and further relief as to the court might seem meet and proper. An appeal removes a case wholly to the appellate court. Elliott, App.

Appeal by defendant Capehart from an order of the district court for Ramsey county, Otis, J., denying a motion for a new trial and also denying a motion to amend the findings and conclusions of law.

Appeal by plaintiffs from an order of the district court for Hennepin county, Smith, Pond, Russell, Jamison, Belden, JJ., denying a motion for a temporary injunction. Under the rule “Expressio unius est exclusio alteráis,” Laws 1893, c. 20-4,. § 2, forbids the deduction of the sinking fund. McRoberts v. Washburne, 10 Minn. 8 (23); Sutherland, St. Const. §§ 325-9; United States v. County of Macon, 99 U. S. 582.

Appeal by defendant from an order of the district court for Freeborn county, Whytock, J., granting plaintiff’s motion for a new trial. Defendant is not liable even if the “hostler” was negligent. There can be no recovery under the statute unless the injured party was at the time “engaged in operating a railroad.” Lavallee v. St. Paul, M. & M. By. Co., 40 Minn. 249, 41 N. W. 974; Pearson v. Chicago, M. & St. P. By.

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

<p>Appeal by defendant from an order of the district court for Lac Qui Parle county, dismissing an appeal.</p>

Quo warranto. Judgment of ouster. The purpose of the constitutional provision is to guard against trafficking in offices. A further purpose is to remove from the incumbent of an office an inducement for causing a vacancy. Ellis v. Lennon, 86 Mich. 468, 49 N. W. 308; Waldo v. Wallace, 12 Ind. 569; Shelby v. Alcorn, 36 Miss. 273; Sublettv. Bedwell, 47 Miss. 266; Smith v. Moore, 90 Ind. 294; 1 Story, Const. §§ 867-869. Constitutional ineligibility cannot be cured at the polls.

Appeal by defendant Jordan from ah order of the district court for Waseca county, Buckliam, J., denying a motion for a new trial.

Appeal by plaintiff from an order of the district court for St. Louis county, C. L. Lewis, J., denying a motion for a new trial. The court found as facts, among other things, that in defending the action of Burke v. Backus, referred to in the opinion, Edward J. Bradley necessarily expended for costs and attorney’s fees $804.05, and that after the judgment therein plaintiff and said Edward J. Bradley paid to Henry M. Backus the amount of said attorney’s fees.

Appeal by plaintiff from an order of tbe district court for Polk county, Ives, J., sustaining a demurrer to the complaint. The status of plaintiff in its relation to defendant is that of surety, using that term in its generic sense, or more specifically its status is that of a guarantor by reason of its special promise to answer for the debt, default and miscarriage of defendant.

Appeal by Frank J. Farrand from an order of the district court for-Morrison county, Baxter, J., directing the clerk of said court to pay to-Nehemiah P. Clarke the amount of an award in condemnation proceedings, and denying the motion of said Farrand for payment of said' award to him.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial. The facts are stated in the opinion.

Appeal by relator from an order of tlie district court for Ramsey county, Otis, J., discharging a writ of habeas corpus and ordering that the custody of a minor child remain in respondent until further order, subject to the conditions stated in the opinion.

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

Appeal by plaintiffs from an order of the district court for Hennepin county, Smith, J., setting aside the judgment and directing that the original answer stand as the answer to the amended complaint.

Separate appeals in each of the above cases by defendants Howard, Nash, Brackett and Stone and by defendant Lynn, respectively, from orders of the district court for Hennepin county, Bussell, J., respectively sustaining demurrers of plaintiffs to parts of the separate answers of defendants Howard, Nash, Brackett and Stone and to parts of the separate answer of defendant Lynn.

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

Appeal by defendant from an order of the district court for St. Louis county, Ensign, J., setting aside a former order and directing-that a certain application of defendant stand for trial.

<p>Appeal by defendant from an order of the municipal court of Minneapolis, W. A. Kerr, J., denying a motion for a new trial.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, C. L. Lewis, J., denying a motion for a new trial. The fact that the giving of the original note was induced by the agreement of Turle not to institute criminal proceedings against Hooker, did not invalidate the note.

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

Appeal by defendant from a judgment of the district court for St. Louis county, entered in favor of plaintiff for $3,378.75 after trial before Ensign, J., and a jury.

Appeal by plaintiff from a judgment of the municipal court of St. Paul, in favor of defendant, entered in pursuance of the findings and order of Orr, J.

Appeal by defendant from an order of the municipal court of Minneapolis, Holt, J., denying a motion for a new trial, after a verdict in favor of plaintiff' for $267.87.

Action in the district court for St. Louis county to enforce specific performance of an agreement to convey real estate.

Appeal by defendant from a judgment of the district court for Olay county, in favor of plaintiff for $367.02, after a trial before Baxter, J., and a jury.

Appeal by defendant from a judgment of the district court for Blue Earth county in favor of plaintiff, entered in pursuance of the findings and order of Severance, J.

Appeal by defendants from an order of the municipal court of Duluth, Powell, J., denying a motion for a new trial, after a .verdict in favor of plaintiff for $385.60.

Appeal by defendant from an order of the district court for Polk county, Ives, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $5,000.

Appeal by defendant from a judgment of the district court for Hennepin county in favor of plaintiff, entered in pursuance of the findings and order of Bussell, J.

Appeal by defendant from a judgment of the municipal court of St. Paul, in favor of plaintiff, entered in pursuance of the findings and order of Orr, J.

Appeal by defendant from an order of the district court for Bamsey county, Otis, J., setting aside a verdict and granting a new trial.

Appeals by defendant Ezra F. Lambert and by Ezra F. Lambert and Alfred H. Lambert, copartners as Lambert Bros., from orders of the district court for Ramsey county, Willis, J., overruling separate demurrers to the complaint.

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

Appeal by defendants Fredolin, Sebastian and Matilda Blumer from an order of tbe district court for Washington county, Crosby, J., denying a motion for a new trial.

Appeal by defendants from an order of the district court for St. Louis county, C. L. Lewis, J., denying a motion for a new trial. The facts do not show open, notorious, and continuous possession. 'Washburn v. Cutter, 17 Minn. 385 (361); Bazille v. Murray, 40 Minn. 48, 41 N. W. 238; Lambert v. Stees, 47 Minn. 141, 49 N. W. 662.

Appeals by plaintiff Albert C. Cobb, assignee, and by defendant from an order of tbe district court for Hennepin county, Bussell,, J., denying their respective motions for á new trial. The contract is one of indemnity only and there can be no recovery because the judgment has not been paid by the assured. The essence of a policy of insurance is the agreement to indemnify. 1 May, Ins. §§ 1, 2; Castellain v. Preston, L. B. 11 Q. B. D. 380.

In the matter of the estate of Neis J. Hoff, deceased, in the probate court for St. Louis county, Carl M. Johanson, administrator of the estate of John Erickson, deceased, filed a claim for $435 for rent due under a lease, which was disallowed, and from the order of dis-allowance, he appealed to the district court for said county.

<p>Appeal — New Trial — Sufficiency of Evidence.</p> <p>Great weight is given by this court to the opinion of the trial judge in granting a new trial for insufficiency of the evidence to justify the verdict. Hicks v. Stone, 13 Minn. 398 (434) followed.</p> <p>Same.</p> <p>Upon a careful perusal of the evidence, and mature reflection, it is held that the evidence in this case is so far from being manifestly and palpably in favor of the verdict that the preponderance thereof is against it.</p>

Appeal by plaintiff from an order of the district court for Earn* sey county, Otis, J., denying a motion for a new trial.

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

Action in the district court for Scott county by Theodore Weiland, as assignee of Frank Nicolin, insolvent, to determine the rights of •all parties to wheat received in his elevator at New Prague by the insolvent before the assignment. Defendant Krejnick and certain other defendants had previously instituted replevin actions for part of the wheat. The evidence is stated in the opinion.

Appeal by defendants from a judgment of tbe district court for St. Louis county, in favor of plaintiffs for $5,351.11, entered in pursuance of tbe order of C. L. Lewis, J.

Action in the district court for Scott county by Theodore Weiland, as assignee of Frank Nicolin, insolvent, to determine the rights of all parties to wheat received in Ms elevator at Jordan by the insolvent before the assignment. Defendant Klinkhammer and certain other defendants and also defendants Sunwall and New RicMand Milling Company had previously instituted replevin actions for the wheat.

In bastardy proceedings in the district court for Mower county defendant was, December 16, 1895, adjudged to be the father of the bastard child of complainant. By the judgment defendant was charged with the support of the child, and was ordered to pay the costs of the proceedings, and to give bond for the performance of the judgment and in default of compliance therewith to be committed.

Appeal by defendant from an order of tbe district court for Ramsey county, Kelly and Otis, JJ., denying a motion for a new trial. Mr. Hill was without authority to execute the petition on behalf of the railway company. It was incumbent on plaintiff to show that, in signing the petition, he acted under authority from the company, or that the company, while still in possession .of its interest as an adverse claimant, ratified his act with full knowledge of all the facts.

Action in the district court for Hennepin county by plaintiff mortgagor against defendant mortgagee to recover an alleged surplus of the amount bid by defendant at mortgage foreclosure sale over the amount due upon the mortgage. The case was tried before Jami-son, J., who found in favor of plaintiff. From a judgment in favor of plaintiff for $2,395.02, defendant appealed.

Action in the district court for St. Louis county to restrain defendant from causing or suffering surface water to flow upon plaintiff’s land. The court made a temporary restraining order and after-wards made an order continuing the same in force. From both orders, as well as from an order, Morris, J., overruling a demurrer to the complaint, defendant appealed.

Appeal by plaintiff from a judgment of the municipal court of Minneapolis, in favor of defendant, entered in pursuance of the findings and order of Elliott, J.

Petition of Luther L. Higby for the removal of Edward J. McMahon from his office of attorney and counsellor at law in all the courts of the state of Minnesota.

Appeals by plaintiff from an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial and also from a judgment dismissing the action.

Appeal by defendant from an order of the district court for Ramsey county, O. D. Kerr, J., denying a motion for a new trial.

Appeal by defendant from an order of the district court for Fillmore county, Whytock, J., fixing the amount of plaintiff’s attorney’s fees at $250, and also from that part of the judgment entered in favor of plaintiff which adjudged that plaintiff recover said sum as attorney’s fees.

Appeal by Andrew Alstrom from an order of the district court for Hennepin county, Russell, J., disallowing his claim against defendant society except as allowed by defendant receiver.

Appeal by plaintiffs from a judgment of the municipal court of St. Paul, in favor of defendant entered in pursuance of the findings, and order of Orr, J.

Appeals by defendants from an order of tlie district court for Rock county, Gould, J., denying a motion for a new trial and also from a judgment in favor of plaintiff for $144.60.

<p>•Action on Contract — Evidence.</p> <p>H. executed a written instrument to B., wherein he promised to pay B. $76.25 when several notes and mortgages held by other parties and one by himself were paid in full to H. None of the mortgages held by the other parties were paid to H. by B., although all of them were satisfied of record. B. brought suit upon the written instrument to recover the said sum of $76.25, and upon trial of the action H. offered to prove that in fact the mortgage held by him was not paid in full, and the court excluded the evidence. Held error.</p>

In the matter of the estate of Patrick Keogh, deceased, Annie Bohmert filed a claim in the probate court for Bamsey county, and from an order disallowing her claim she appealed to the district court for said county. The appeal was tried before Kelly, J., and a jury, who found a verdict in favor of appellant for $650. From an order denying a motion for a new trial, George L. Becker, executor, appealed.

Appeal by defendant from- an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial, after a verdict of $235.40 in favor of plaintiff.

Appeal by defendant from an order of the district court for Ramsey county, C. D. Kerr, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $988.

Appeal by defendant Sprague from an order of tbe district court for Houston county, Whytock, J., denying a motion for a new trial. The action was originally brought against Ara D. Sprague as sole defendant. Afterwards an order was made granting plaintiff leave to amend the complaint and making Mary Weibke and Henry Weibke, her husband, Peter Styer, Joseph Vossen, Mathias Simon and Catherine Simon, his wife, parties defendant.

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

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

Appeal by defendant from an order of tbe district court for Hennepin county, Hicks, J., denying a motion for a new trial, after a. verdict in favor of plaintiff for $1,500.

Appeal by plaintiff from an order of the district court for Ramsey county, Willis, J., requiring him to pay alimony and ordering that in the event of his refusal he be imprisoned.

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

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

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

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

Appeal by plaintiff from a judgment of the district court for Polk county, in favor of defendant, entered in pursuance of the findings and order of Ives, J.

Appeal by plaintiff! from an order of tbe district court for Ramsey county, Egan, J., granting the motion of defendant Benz for a new trial.

Appeal by plaintiff from a judgment of the municipal court of St. Paul, in favor of defendant, entered in pursuance of the findings and order of Twohy, J.

Action in the district court for Ramsey county by William R. Wood and another as co-partners doing business under the firm name and style of Cumberland Packing Company. From an order, Kelly, J., denying a motion for a new trial defendants appealed.

<p>Appeal by plaintiff from an order of the municipal court of St. Paul, Twohy, J.. denying a new trial.</p>

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

Appeal by defendant from a judgment of the district court for Chippewa county, in favor of plaintiff, entered in pursuance of the findings and order of Powers, J.

Action in the district court for Otter Tail county. The case was tried before Baxter, J., who found in favor of plaintiff. From an order denying a motion for a new trial, defendant appealed.

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

Appeal by defendant from a judgment of the district court for Washington county, in favor of plaintiff for $1,107.01, entered in pursuance of the findings and order of Williston, J.

Case certified from district court for St. Louis county, C. L. Lewis, J., in proceedings to enforce payment of taxes on real estate delinquent on the first Monday of January, 1895.

Appeal by defendant Steele from an order of the district court for Hennepin county, Jamison, J., denying a motion for a new trial, after a verdict against him for $1,334.42.

Action in tlte district court for Hennepin connty. The court found in favor of plaintiff. From an order denying a motion for a new trial, Smith, J., defendant appealed.

Action in the district court for Hennepin county by plaintiff, as trustee and in her own right, against the several defendants named in the opinion. From a judgment entered in pursuance of the findings and order of Russell, J., defendants Samuel Mayall and S. Mayall Bruner, by their guardian ad litem, appealed.

Action in the district court for Ramsey county. The case was tried before C. D. Kerr, J., who found 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 Hennepin county, Russell, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $2,000.

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

Appeal by relator from an order of tbe district court for Ramsey county, Egan, J., denying his application for release from custody on writ of habeas corpus.

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

Appeal by defendant from an order of the district court for Ramsey county, Willis, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $310.

Appeal by defendant from a judgment of tbe municipal court of Minneapolis, in favor of plaintiff for $36.90,, entered in pursuance of tbe findings, and order of W. A. Kerr, J.

Appeal by defendant from an order of tbe district court for Hennepin county, Elliott, J., denying a motion for a new trial. Action in tbe district court for Hennepin county. Tbe case was tried before Elliott, J., who found in favor of plaintiff in tbe sum of $592.80 with interest from December 1, 1892, less $165. From an order denying a motion for a new trial, defendant appealed.