Volume 66 — Minnesota Reports

Action in the district court for Hennepin county by plaintiff, as receiver of the Chemical National Bank of Chicago, against John B. Bushnell and Alden J. Blethen. From an order, Smith, J., denying a motion for a new trial, defendant Bushnell appealed.

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

Accusation by Minnesota State Bar Association against Michael M. Madigan, an attorney at law of the state of Minnesota, in that he had been convicted of the crime of perjury.

Appeal by defendant from an order of the district court for Brown county, Webber, J., denying a motion to set aside the verdict and to vacate and adjudge void the judgment and conviction, and to grant a new trial and a writ of error coram nobis.

Appeal by defendant from an order of the district court for Ramsey county, Charles D. Kerr, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $120.

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

Action of ejectment in the district court for St. Louis county against Thomas W. Hyde. After the service of the answer, which included an equitable counterclaim, upon motion of defendant, an order was made making certain persons parties defendant, and requiring them to answer the counterclaim, which order, upon motion of four of said additional parties, was subsequently, by order of Moer, J., vacated as to them.

Case certified from the district court for Otter Tail county, Baxter and Searle, JJ., after findings and order for judgment in favor of plaintiff.

Appeal by defendant from a judgment of the district court for St. Louis county, in favor of plaintiffs, entered in pursuance of the findings and order of John H. Norton, Esq., referee.

Action in the district court for St. Louis county. The facts which appeared upon the trial were as follows: In June, 1891, one P. L. Peterson, in consideration of a loan of money to him, made his promissory note for $4,000, payable to the Beaver Valley Bank of Parkersburg, Iowa, due in six months, with interest at the rate of 8 per cent, per annum.

<p>Railway — Injuries to Brakeman — Negligence.</p> <p>The plaintiff, a brakeman on one of defendant’s freight trains, while engaged in attempting to uncouple the engine from the train while in motion, was injured by reason of the train breaking in two, and a subsequent collision between the detached parts. Held, that under the evidence it was a question for the jury whether the “swingman,” who was on top of the car next the engine, exercised reasonable care in watching the rear of the train and in keeping a lookout in that direction for signals from the conductor.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, J., vacating a judgment in favor of plaintiff.

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

Action in the district court for Hennepin county by Matt Olmscheid by Albert H. Olmscheid, guardian ad litem. From an order, Elliott, J., denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

Appeal by defendant from a judgment of the municipal court of St. Paul in favor of plaintiff for $116.69, entered in pursuance of the findings and order of Orr, J.

Action in the district court for St. Louis county against Nils Linderberg, as receiver of the estate of John McKinley in proceedings supplementary to execution, John McKinley, Alice S. McKinley, H. A. Ware and First National Bank of Duluth, praying that they be required to interplead concerning their claims to certain funds in the hands of plaintiff and that the court determine their respective rights.

<p>Dismissal of Action — Conflicting Evidence.</p> <p>Held, on the evidence, it was error to dismiss the ease on motion of defendants at the close of plaintiff’s evidence.</p> <p>Defect in Pleading — Waiver.</p> <p>Rule applied that a defect in pleading is waived by voluntarily litigating the question on the trial.</p>

Appeal by defendants from a judgment of the district court for-Houston county, so far as it gave plaintiffs judgment for f193.65, the-amount of their costs and disbursements incurred in the trial, after an order for taxation thereof made by Whytock, J., on appeal by plaintiffs from the refusal of the clerk to tax costs.

Appeal by defendant company from an order of the district court ■for Hennepin county, Belden, J., denying motions for a new trial and for judgment notwithstanding the verdict, after a verdict in favor of plaintiff for $5,495.

Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff for $7,309.17, including orders by Smith, J., denying a motion to set aside the service of the summons, and denying motions for a new trial and for judgment in favor of defendant.

Action in tbe district court for Hennepin county by Minna Kottmann, as administratrix of tbe estate of Frieda Gazett, deceased, against Minnesota Odd Fellows’ Mutual Benefit Society for tbe recovery of $2,000, alleged to- be due to tbe intestate upon a certificate of membership in defendant society issued by it to Jacob Gazett.

Petition by relator to the district court for St. Louis county for a peremptory writ of mandamus to be issued to defendants Charles G. Miller and others, as the board of county commissioners of St. Louis county, directing them to remove defendant William Haycraft from the position of fireman of the county court house of said county and to appoint relator thereto.

Appeal by defendant from an order of tbe district court for Ram.sey county, Brill, J., denying a motion for a new trial, after a verdict in favor of plaintiffs for $3,730.91.

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 $104.08.

Appeal by defendant from orders of the district court for Ramsey county, Willis, J., denying motions for judgment notwithstanding the verdict gnd for a new trial.

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 in favor of plaintiff for $1,774.52.

Appeal by defendant Rusten from an order of the district court for Polk county, lyes, J., sustaining a demurrer to his separate answer.

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., ordering the treasurer of the city of Minneapolis to deliver to plaintiff’s attorneys certain moneys and that in case of nonpayment a receiver in supplementary proceedings be appointed.

Appeal by defendant from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial, after a finding in favor of plaintiff for $51.85.

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

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, J., denying motions for a new trial and for judgment notwithstanding the verdict.

Appeal by plaintiffs, receivers of the Northern Pacific Railroad Company, from a judgment of the district court for Hennepin county, in favor of plaintiffs for $4,441.47, after a trial before Russell, J., and a jury.

<p>Appeal by defendant from a judgment of the district court for Eenville county, in favor of plaintiff for $28.20.</p>

Appeal by defendant from a judgment of the district court for St. Louis county, in favor of plaintiff for $1,517.32, and also from an order, Moer, J., denying a motion to vacate said judgment and to set aside a stipulation upon which it was entered.

Appeal by Charles E. Brame from an order of the district court for Hennepin county, Smith, J., denying a motion to amend the findings of fact, to set aside the conclusions of law, and to vacate and set aside-the findings of fact and the order for judgment thereon, determining the manner of payment of an award of $790.47 deposited with the court.

In the matter of the assignment of George Vetter, insolvent, to Frederick W. Bonness, assignee, in the district court for Hennepin county, H. H. Merrick and another, attorneys for certain creditors, made application for an order allowing them from the funds in the hands of the assignee the sum of $250, as compensation for services. From an order, Belden, J., denying their application, they appealed.

Appeal by defendant from a judgment of the district court for St. Louis county, in favor of plaintiffs, entered in pursuance of the findings and order of Ensign, J.

Appeal by plaintiff, administrator of the estate of Lee Koslowski, deceased, from a judgment of the district court for Benton county, in favor of defendants, entered in pursuance of the order of Searle, J.

Appeal by plaintiff from a judgment of the district court for Hennepin county, adjudging that the action be dismissed, entered in pursuance of the order of Smith, J.

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

Appeal by plaintiff from an order of the district court for Traverse county, C. L. Brown, J., denying a motion for a new trial. The written contract, referred to in the opinion, was as follows: “Wheaton, Minn., Aug. 31st, 1889. “It is hereby mutually agreed by and between The John T. FToye Mfg.

<p>Certiorari to review the action of the district court for St. Louis county, Morris, J., in confirming the report and award of appraisers.</p>

Defendant was convicted in the municipal court of Minneapolis of selling milk without license, in violation of an ordinance, and appealed from an order, Kerr, J., denying a motion to vacate and set aside the decision and judgment of conviction and for a new trial.

Appeal by defendant from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial, after ai verdict in favor of plaintiff for $1,700.

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

Appeal by defendant from a judgment of tbe district court for Hennepin county, in favo-r of plaintiff for $1,538.20, after trial be- fore Smith, J., and a jury.

In the matter of the assignment of Ezra F. Lambert and Alfred H. Lambert, copartners as Lambert Brothers, insolvents, pending in the district court for Ramsey county, the insolvents made application for an absolute discharge from all their debts and indebtedness. From an order, Otis, J., denying their application in part, the insolvents appealed.

Appeal by defendant from orders of the district court for Washington county, Williston, J., denying motions for judgment notwithstanding the verdict and for a new trial.

Appeal by defendant from an order of the district court for Redwood county, Webber, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $334.25.

Action in the district court for St. Louis county against Daniel G. Cash and Guilford G. Hartley, as sureties on a bond executed to plaintiff, as sheriff of said county. The case was tried before Moer, J., who ordered judgment in favor of plaintiff for $4,548.77. From an order denying a motion for a new trial defendants appealed.

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

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

Appeal by defendant Charles Kittleson from an order of the district court for Le Sueur county, Oadwell, J., overruling a demurrer to the complaint.

Appeal by plaintiff from an order of the district court for Hennepin county, Smith, J., granting a motion for a new trial, after a verdict in favor of plaintiff for $9,211.87.

Appeal by relator from an order of the district court for Murray county, P. E. Brown, J., denying a peremptory writ of mandamus.

Appeal by plaintiffs from an order of tbe district court for Winona -county, Gould, J., denying a motion for a new trial.

Action in the district court for St. Louis county, praying for a decree adjudging a mortgage foreclosure sale and the sheriff’s certificate issued thereon to be null and void, and for cancellation of the certificate. From a judgment in favor of plaintiff, entered in pursuance of the order of Ensign, J., defendant appealed.

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

Appeal by relator from an order of the district court for Eamsey county, Brill, Kelly, and Otis, JJ., dissolving a writ of injunction.

Certiorari by Frank Thompson, as executor, and Joe R. Lane, as-administrator with the will annexed, of James Thompson, deceased, against the probate court of the county of Rock and James Marshall,, judge thereof, to review an order of said court.

Appeal by plaintiff from a judgment of the district court for Brown county, in favor of defendant, entered in pursuance of the order of Webber, J.

Appeal by defendant from an order of the district court for Wilkin county, C. L. Brown, J., overruling a demurrer to the complaint.

Appeal by defendant from an order of the district court for Wilkin county, C. L. Brown, J., overruling a demurrer to the complaint.

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

Appeal by defendants from a judgment of the district court for Sibley county, entered in pursuance of the findings and order of Severance and Cadwell, JJ.

Appeal by defendant from an order of the district court for Ramsey 'County, Egan, J., denying a motion to quash an alternative writ of mandamus.

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

Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff, for $621.17, including $144.22 for costs and disbursements, entered after an appeal from the clerk’s taxation of costs, and an order, Russell, J., affirming said taxation.

Action in the district court for Hennepin county on a promissory note. Matthew Walsh, assignee, intervened as claimant of the note. From a judgment in favor of plaintiff against defendants Roeller and another for $2,044.34, and against the intervenor for $18.03, entered in pursuance of the findings and order of Jamison, J., the intervenor appealed.

<p>Street Railway — Injury to Passenger — Contributory Negligence.</p> <p>Evidence considered as to tiie plaintiff’s alleged contributory negligence, and held that it sustains tbe verdict.</p> <p>Expert Witness — Qualification.</p> <p>Tbe qualification of a witness to testify as an expert is a question for the trial court, whose decision will not be reversed on appeal unless it is manifestly against tbe weight of the evidence.</p>

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

Appeal by relator from an order of the district court for Eamsey county, Kelly, J., remanding relator to the custody of respondent.

Case certified from the district court for St. Louis county, Moer, J., for the decision of the supreme cotirt on the question whether the indictment ought to have been dismissed.

Defendant was indicted in the district court for Ramsey county for murder in the third degree, and on atrial before Kelly, J., the jury returned a verdict of guilty, as charged in the indictment. From a judgment adjudging defendant guilty of the offense charged, and sentencing him to the state prison for seven years, defendant appealed.

Appeal by plaintiff from an order of the district court for Wilkin county, C. L. Brown, J., denying a motion for a new trial.

Appeal by certain defendants from an order, of the district court for Hennepin county, Jamison, J., denying a motion for a new trial, after findings and order for judgment in favor of plaintiff for $23,452.04.

Appeal by defendant from an order of the district court for Stearns county, Baxter, J., denying a motion for a new trial, after findings and order for judgment in favor of plaintiff for $1,289.44.

<p>Case certified from district court for Wright county, Smith, J.</p>

Quo warranto on the relation of Henry W. Childs, attorney general, and Richard L. Gorman and others, as members of the board of public works of the city of St. Paul, requiring respondent to show by what warrant he assumed to act as commissioner of public works of said city.

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

In the matter of the estate of Nehemiah Hulett, then pending in the probate court for St. Louis county, Lucy A. Hulett, as widow of decedent, presented two petitions: the first praying to have the homestead and certain personal property set off to her; the second praying for vacation of a previous order, admitting to probate a certain instrument as decedent’s last will, and that said instrument be declared not to be the last will of decedent.

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

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 $206.90.

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

<p>Hew Trial — Insufficiency of Evidence.</p> <p>An order granting a new trial, on the ground, among others, that the-findings were not justified by the evidence, affirmed.</p>

<p>Appeal by plaintiff from a judgment of tbe district court for Polk county, in favor of defendant, entered in pursuance of the order of Searle, J., after a verdict in favor of plaintiff for $750.</p>

Thore J. Rud appealed to the district co-urt for Pope county from an order of the board of county commissioners of said county laying-out and changing a highway. From an order of said court, C. L. Brown, J., reversing the order of said board, it appealed.

Appeal by claimant, Windham County Savings Bank, irom an order of the district court for Washington county, Crosby, J., denying a motion for a new trial.

Appeal by defendant from an order of the municipal court of Minneapolis, Kerr, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $250.44.

<p>Appeal by plaintiff from a judgment of the district court for Morrison county, adjudging that the action be dismissed, entered in pursuance of the findings and order of Searle, J.</p>

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

Appeal by certain defendants from an order of tbe district court for Hennepin county, Elliott, J., overruling a demurrer to the complaint.

Appeal by plaintiff from a judgment of the district court for Meeker • county, in favor of defendant, after a trial before Powers, J., and a , jury.

<p>Mew Trial — Theory of Case — Mistake in Law.</p> <p>Evidence held, to justify the verdict under the theory of the law upon which the case was submitted to the jury. Where a party tries his case upon a certain theory of the law, and consents to its being submitted to the jury on that theory, he cannot afterwards claim a new trial, at least as a matter of right, on the ground that such theory of the law was erroneous.</p>

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

Information in the district court for Hennepin county against the Firemen’s Insurance Company, Minnneapolis Board of Fire Underwriters, Merchants’ Board of Fire Underwriters, and another, to recover from defendant insurance company a sum equal to 2 per cent, of the premiums received by it on its risks written in the city of Minneapolis in the year 1895, and to enjoin an action in the municipal -court of Minneapolis in which the Merchants’ Board, as plaintiff, and the…

Appeal by plaintiffs from orders of the district court for St. Louis county, Morris, J., denying motions to amend findings and for a new trial.

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

Action in the district court for Ramsey county, under G-. S. 1878, c. 76, in which judgment was entered sequestrating the property of defendant corporation, and adjudging the amount due plaintiff. Plaintiff assigned its claim and judgment to the Anchor Investment Company, which filed a complaint as intervenor, praying for enforcement of the liability of defendant’s stockholders, who were brought in as parties defendant.

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

Action in the district court for Stearns county by Herman Moede and others as a board of inspection and examination of ballots. From an order, Searle, J., sustaining a demurrer to the complaint, plaintiffs appealed.

Action in the district court for Ramsey county to foreclose a mortgage for $4,500. The case was tried before Brill, J., who ordered judgment in favor of plaintiff. From an order denying a motion for a new trial, defendants Francis M. Blossom and another appealed. The court found that the machinery referred to in the opinion was in the buildings at the time of the execution and delivery of the mortgage.

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

Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff, after affirmance of the clerk's taxation of costs, by Bussell, J.

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

Action in the district court for Ramsey county. From an order, Willis, J., denying a motion for leave to file an amended complaint, plaintiff and certain intervening creditors appealed. From an order denying the motion of Waterloo Wagon Company, Limited, intervenor, for leave to file an additional intervention complaint, it appealed.

Action in the district court for Hennepin county, in which David €. Bell was appointed receiver of defendant corporation, and Charles D. Whitall and another intervened for the purpose of enforcing the liability of stockholders.

Appeal by plaintiff from an order of the district court for Hennepin county, Russell and Belden, JJ., denying plaintiff's motion to strike from the files certain objections to its report and directing a hearing thereof.

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

<p>Cumulative Evidence.</p> <p>Cumulative evidence is additional evidence of the same kind and to the-same point as that given on the first trial, but it is not cumulative if it relate to distinct and independent facts of a different character, though tending: to establish the same ground of claim or defense.</p> <p>Newly-Discovered Evidence — New Trial.</p> <p>Held, that the trial court did not abuse its discretion in granting a new-trial in this case on the ground of newly-discovered evidence; and, further,, that such evidence was not cumulative.</p>

Appeal by defendant Mabel Root by her guardian ad litem from a judgment of the district court for St. Louis county, in favor of plaintiff, entered in pursuance of the findings and order of J. B.… Held: but whether the statute has been complied with. A sale made without a bond is void. Babcock v. Cobb, 11 Minn. 247 (347). The requirement of a seal to a bond is a mere technicality. County of Redwood v. Tower, 28 Minn. 45, 8 N. W. 907.

<p>Appeal by defendant Nicholas Georges from an order of tbe district court for Wright county, Pond, J., denying a motion for a new trial.</p> <p>It was a question of fact for the jury whether it was necessary to borrow this money. Irvine v. Myers, 4 Minn. 164 (229); Heenan v. .Nash, 8 Minn. 365 (407).</p>

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

<p>Appeal by defendant from an order of tbe district court for Bamsey county, Willis, J.</p>

Appeal by defendant from a judgment of the district court for Eamsey county, dismissing an appeal from and affirming the judgment of a justice of the peace in favor of plaintiff, after an order, Brill, J., discharging an order to show cause why an order dismissing the appeal should not be vacated and the return of proof of service of the notice of appeal should not be amended.

Action in the district court for Hennepin county by George E. Wallace, as executor of Edwin Wallace, deceased. The action was originally begun by decedent and another as co-partners under the name of E. G. & E. Wallace, and was afterwards prosecuted by decedent as surviving partner. From a judgment in favor of plaintiff, after a trial before Elliott, J., and a jury, defendants appealed..

Appeal by Ryan Drug Company from an order of the district court for Ramsey county, Kelly, J., denying a motion for a new trial.

Appeal by certain defendants from an order of the district court for Olmsted county, Whytock, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $1,389.12. The testimony of Florence Halloran was admissible under the rule in McKillop v. Duluth S. R. Co., 53 Minn. 532, at page 537, 55 N. W., at page 739. See State v. Ward, 61 Vt. 153, 17 Atl. 483; Bates v. Sharon, 45 Vt. 474; Crane v. Northfield, 33 Vt. 124; McKee v. Nelson, 4 Cowen, 355.

Appeal by defendant from an order of the district court for Ramsey county, Egan, J., denying a motion for a new trial, after a verdict in favor of plaintiff for ¡§604.41.

Action in the district court for Hennepin county. The case was-tried before Elliott, J., who found in favor of plaintiff, and judgment was entered against certain defendants. Some of defendants appealed from orders denying their motions for a new trial, and-others appealed from the judgment.

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

Writ of quo warranto requiring respondents to show by what warrant they exercised jurisdiction, control and authority over certain territory alleged to be a portion of Cass county.

Appeal by plaintiff from an order of the district court for Ramsey county, Willis, J., dissolving an injunction against defendants, and sustaining their demurrer to the complaint.