Volume 68 — Minnesota Reports

<p>Appeal by plaintiff from a judgment of the district court for Polk county, Ives, J., in favor of defendant.</p>

Action in the district court for St. Louis county. At tbe trial before Morris, J., without a jury, there were findings and an order for judgment in favor of plaintiff. From an order denying a new trial, Ensign, J., defendant appealed.

Action in the district court for Ramsey county by William H. Allen, by Anna L. Allen, his deserted wife, against the Minnesota Loan & Trust Company. From an order granting defendant’s motion for judgment on the pleadings, Kelly, J., plaintiff appeals.

<p>New Trial — Misconduct of Jury.</p> <p>Held, that the trial judge in this case did not abuse his discretion in granting a new trial for the alleged misconduct of the jury.</p>

Appeal by defendant from an order of the district court for Hennepin county, Pond, J., denying a motion for judgment notwithstanding a verdict, or for a new trial.

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

Appeal by defendant from an order of the district court for Stevens county, C. L. Brown, J., denying a motion to set aside service of the summons.

Appeal by plaintiff from a judgment of the district court for Aitkin county, reversing a judgment of a justice court, entered in pursuance of a ruling of Holland, J.

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

Appeal by defendant from an order of the district court for Wright county, Elliott, J., denying its motion for judgment, notwithstanding a verdict of $3,000 for plaintiff. The crossing in question being a private farm way, the statute relating to the giving of signals does not apply. Sather v. Chicago, 40 Minn. 91; Brooks v. New York, 13 Barb. 597.

Appeal by plaintiff from an order of the district court for Wright county, Pond, J., denying a motion for judgment in favor of plaintiff, notwithstanding the verdict in favor of the defendants, and denying a motion for a new trial. Affirmed as to motion for judgment.

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

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

Appeal by defendant from an order of the district court for Jackson county, P. E. Brown, J., denying a motion for a new trial after a verdict for $1,800.

Appeal by defendant from an order of the district court for Bamsey county, Otis, J., denying a motion for a new trial. Before parties to actions were permitted to testify in their own behalf evidence of complaints of pain or present suffering made to others was admitted on the ground of necessity.

Appeal by defendant from an order of the district court for Otter Tail county, Baxter, J., denying a new trial after a verdict for plaintiff for $475.66. The action was one for breach of a contract of warranty in the sal'e of a thresher and separator. The “November agreement” is given in the opinion upon the former appeal. See 63 Minn. 95.

Appeal by defendant from an order of the district court for Ramsey county, Willis, J., refusing a new trial The action was one for divorce on the ground of desertion, and defendant, in her counterclaim, asked a divorce in her favor on the ground of cruel and inhuman treatment. She had previously sought this in an independent proceeding which had been dismissed something over a year previous.

'Appeal by plaintiff from an order of the district court for Grant county, 0. L. Brown, J., sustaining a demurrer to the complaint. There are two essential elements in every champertous agreement: First. There must be an undertaking by one person to defray the expenses, in whole or in part, of another’s suit. Second. An engagement or promise on the part of the latter to divide with the former the proceeds of the litigation in the event it proves successful.

Appeal by plaintiff from an order of the district court for Sibley county, Oadwell, J., refusing a new trial after a verdict for defendant.

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

Action against the board of county commissioners of Becker county, the county auditor of that county and George D. Hamilton for an injunction restraining the defendant board from paying defendant Hamilton -from public funds for publishing the delinquent tax list for 1897, and from printing the official proceedings of said board. ■ From an order of the district court, Baxter, J., granting an injunction pendente lite defendant Hamilton appealed.

Appeal by each party from an order of the district court for Hennepin county, Russell, J., denying his motion for a new trial. The action was by J. Colfax Grant, as assignee of one Schneider, insolvent, against the Minneapolis Brewing Company to recover $2,681.15.

Certiorari, on the petition of Antoinette Abel, to the mayor, common council and city clerk of Minneapolis to review the proceedings of the council and-of the commissioners appointed by the council in the matter of raising, altering and changing the grade of Main street northeast in that city, so far as they relate to the land of petitioner. The- method of ascertaining damages contained in Sp.

Action in the district court for Hennepin county by a judgment creditor of the Cyclone Steam Snowplow Company to enforce the double liability of its stockholders. The Railroad Gazette, another judgment creditor, filed its claim and a supplemental complaint reaffirming the cause of action set out by the plaintiff and, as a separate cause of action, alleging that the stock of the company had not been paid up except by the transfer to it of fraudulently overvalued property.

Action in the municipal court of Minneapolis against S. S. Small and E. A. Hutchins. There were findings in favor of plaintiff as against defendant Small,' and in favor of defendant Hutchins, and from an order refusing a new trial, W. A. Kerr, J., plaintiff appeals.

Appeal by plaintiff from an order of the district court for Jackson county, P. E. Brown, J., refusing a new trial after a verdict for defendants.

An action by James Bristol, as executor, against Henry Schultz and wife to foreclose a mortgage, and one by Schultz and wife to cancel the same on the ground that it had been paid in full, were consolidated, and tried together in the district court for Washington county before Williston, J. From a judgment based on a finding that the alleged payment had been made, but directing a foreclosure for a small balance due and from an order refusing a new trial the plaintiff…

Appeal by defendant from an order of the district court for Wabasha county, Gould, J., refusing a new trial after a directed verdict for plaintiff. The burden of proof was on plaintiff, and there was an absolute lack of evidence as to the agency of Mrs. Holmes’s husband or as to her ratification of his assumed agency. Edgerton, Wickwire & Bice, for respondent.

Action by the Northern Trust Company against the Albert Lea College, its trustees, and all others interested in the property the mortgage on which is sought to be foreclosed. The court found that defendant college was indebted to plaintiff in the sum of $1,030, and also $200 for attorney’s fee, and ordered judgment for the same and a sale of the mortgaged premises to pay the amount of the judgment and the expenses of the sale.

Appeal by plaintiff from an order of the district court for Mille Lacs county, Searle, «L, refusing a new trial after a verdict for defendant. An order, drawn by a creditor, upon funds in the hands of the debt- or, and not accepted by the debtor, is an equitable assignment. Dean v. St. Paul, 53 Minn. 504; Bradley v. Berns, 51 N. J. Eq. 437; Williams v. Ingersoll, 89 N. Y. 508. This order in question said in so many words that it was an assignment.

Appeal by plaintiff from a judgment for defendant entered in the district court for Ramsey county, pursuant to the order of Otis, J. Registration of transfers of stock is for the benefit of the… Held: construeing the effect of a by-law similar to the one in this case, that the books of the company are conclusive as to the ownership of stock. Morrill v. Little Falls, 53 Minn. 371.

In the matter of the assignment of the Jacoby-Mickolas Company, the American Trust & Savings Bank presented a claim for allowance. From an order of the district court for Hennepin county, Jamison, J., denying a new trial, judgment having been directed for the bank, Frank P. Gluck, assignee, appealed. A corporation has no power to issue or accept accommodation paper. Morawetz, Priv. Corp., § 232, and note.

<p>Duties of Master — Fellow Servants.</p> <p>That portion of Laws 1895, c. 173, defining the duties of master and employes in certain cases, which reads in part as follows, viz. “to use reasonable care * * * to direct and supervise the performance of the work in a reasonably safe and prudent manner,” is merely declaratory of the common law. Soutar v. Minneapolis, supra, p. 18, and Hess v. Adamant, 66 Minn. 79, followed.</p> <p>Same — Sufficiency of Evidence to Show Relation.</p> <p>Evidence considered, and held, that plaintiff and certain other employes of defendant were fellow servants, and that the trial court was justified in dismissing the action.</p>

Appeal by defendants from an order of the district court for Washington county, Crosby, J., refusing a new trial after a verdict for plaintiff for $2,000.

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

Louis county, Ensign, J., in confirming an assessment for special benefits by reason of the acquisition by the city of certain land for park purposes. Where a trial court refuses relief, which it has power to give, on the ground of want of power, its action is erroneous, although it would not have been error had the court done the same thing in the exercise of its discretion.

Appeal by plaintiff from an order of the district court for Itasca county, Holland, J., refusing a new trial. G. S. 1891, § 5534, in using the word “interest” excludes mortgage liens, as a mortgage lien is not an interest in real estate.. 2 Bouvier, Law Diet. Title “Lien.” The purpose of the statute was to prevent fraud on the creditors of either husband or wife, and has no application to any case where their rights do not intervene.

Appeal by defendant from an order of tbe district court for Stevens county, C. L. Brown, J., refusing a new trial after a verdict for plaintiff for $6,500. The complaint alleged the particular kind of negligence which was the origin of the cause of action and the facts constituting that negligence were set forth therein. This was that defendant negligently and wantonly ran and propelled certain cars.

Appeal by defendant from an order of the district court for Wright county, Smith, J., refusing a new trial after a verdict for plaintiff for $1,256.90. A mere payment on account does not establish a new point from which the statute of limitations begins to run. 2 Wood, Lim. A.ct, § 232. See Brisbin v. Farmer, 16 Minn. 186 (215); Chadwick v. Cornish, 26 Minn. 28; Young v. Perkins, 29 Minn. 173.

Action in justice court. From a judgment for defendant, plaintiff appealed to tbe district court for Grant county. From an order of that court, O. L. Brown, J., reversing the justice’s judgment but allowing judgment in plaintiff’s favor merely for costs, plaintiff appealed.

Action in justice court by B. L. Polk & Co. against the American Mortgage Loan Company. There was a judgment for plaintiff, which was affirmed by the municipal court of St. Paul, Orr, J., and defendant appeals.

Appeal by defendant from an order of the district court for Hennepin county, Bussell, J., denying a new trial after a decision for plaintiff. This policy was not an insurance by the mortgagee of its interest in the property, but the mortgagor was the party insured, and by reason of the mortgagee clause the mortgagee was merely a payee to receive the money as its interest might appear. Brunswick v. Commercial, 68 Me. 313, 8 Ins. Law Jour. 120; Ostrander, Ins. § 287.

Appeal by plaintiff from an order of the district court for Swift county, Powers, J., refusing a new trial after verdict for defendants.

Appeal by plaintiff from a judgment for defendant in the district court for Le Sueur county, after a trial before Cadwell, J.

Appeal by defendants from judgment entered in the district court for Dodge county, Buckham, J., upon findings in favor of plaintiff. Default having occurred in respect to payments on the contract for the purchase of the land in question, if the vendor, having knowledge of the facts, treats the contract as still existing, he will be deemed to have waived his right to enforce forfeiture of the contract for a past default, although time was made of its essence.

<p>Appeal by plaintiffs from an order of the district court for Itasca county, Holland, J., denying a new trial.</p>

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., overruling a demurrer to the complaint. Cited Olson v. McMullen, 34 Minn. 94; Pederson v. Rushford, 41 Minn. 289, and Wood, Mast. & Serv. 743.

Appeal by defendants from an order of the district court for Hennepin county, Belden, J., denying their motion for a new trial. The plaintiff, standing in the position of payee of this paper, has no right of recovery thereon. It is always permitted the maker of commercial paper, when sued thereon by the payee, to show himself an accommodation maker, or to show that the paper is without consideration, and this is a complete defense to the suit.

Appeal by plaintiff from an order of the district court for Hennepin county, Belden, J., denying a new trial after findings for defendants. Three cases were tried together, and it was stipulated that the decision upon this appeal should be conclusive in all three cases. The note representing the secret agreement is illegal and void. The decisions are uniform that the agreement itself is void as to all parties.

Skoll, an insolvent, made an assignment for the benefit of Ms creditors to one Joseph M. Davis. The assignee having allowed a claim under the circumstances stated in the opinion, the Swedish-American National Bank and another corporation, as creditors of the insolvent, appealed from such allowance by the assignee to the district court of Hennepin county. That court set aside the allowance of the claim by the assignee.

Appeal by plaintiffs from an order of the district court for Blue Earth county, Severance, J., sustaining a demurrer to their complaint. The complaint alleged that plaintiffs executed to defendant a promissory note for $529, dated May 11,1891, and due September 11, 1891, with interest at the rate of seven per cent, per annum,, secured by-mortgage upon certain real estate.

Appeal by the intervenor, L. Schneider, from a judgment entered in the district court for Winona county, pursuant to the findings of Gould, J.

Appeal hy plaintiff from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the complaint. Laws 1876, c. 24; G-. S. 1878, c. 34, §§ 55-57, is a police regulation, designed for the protection of all, creating an absolute duty, and should not he limited in its effect to protecting cattle.

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

Appeal by plaintiff from an order of the district court for Sibley county, Cadwell, J., denying a new trial. The judgment lien on the debtor’s real estate did not constitute an unlawful preference, for there was no intention on the part of the judgment debtor to give a preference. Wright v. Fergus Falls, 48 Minn. 120; In re Church, 40 Minn. 39.

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

'Appeal by defendant from a judgment of the municipal court of Duluth in favor of plaintiff, entered pursuant to the findings of Edson, J.

Appeal by defendant from an order of the district court for Itasca county, Holland, J., refusing a new trial after a verdict for plaintiff for $1053.32.

, in confirming a reassessment for grading Prior avenue in the city of St. Paul. The land reassessed for the grading was described in the notice for judgment as “the easterly 146 feet of that part of” certain subdivisions of governmental sections, “except Prior avenue, being in St. Paul, Minnesota.” The relator is a railway company within State v. District, 54 Minn. 34, although its functions are limited.

Action in the district court for Pine county, for restitution of that pari of a certain lot occupied by the town hall and jail of defendant. In its answer defendant alleged entry and possession of the land under license from the owner. When plaintiff rested, the case was dismissed upon motion of the defendant. From an order granting .a new trial, Williston, J., defendant appealed.

<p>Appeal by defendant from an order of the municipal court of Minneapolis, Holt, J., refusing a new trial after a verdict for plaintiff for $310.</p>

In tbe matter of the assignment of J. B. Messing, insolvent, Dun-ham & Eastman, creditors, appeal from an order of the district court for Stearns county, Searle, J., refusing to direct distribution of his property without the filing of releases.

Appeal by defendants from a judgment of the district court for Douglas county, entered pursuant to the findings and order of Baxter, J. The voluntary recording of a deed by the grantor with the intention to pass title to the grantee is a valid delivery. Issitt v. Dewey, 17 Neb. 196; Cecil v. Beaver, 28 Iowa, 241; Palmer v. Palmer, 62 Iowa, 204; Glaze v. Three Rivers, 87 Mich. 349; Compton v. White, 86 Mich. 33; Conlan v. Grace, 36 Minn. 276.

Appeal by plaintiff from an order of tbe district court for Hennepin ■county, Belden, J., overruling a demurrer to certain subdivisions of the answer. The objection that a prior adjudication pleaded as an estoppel was between other parties is not well taken when it appears that the person making the objection was a party to the former suit, though in connection with other persons who were also parties thereto.

Appeal by plaintiff from an order of the district court for Mille Lacs county, Searle, J., denying a new trial, after findings in favor of plaintiff for $203.20 and an order for judgment.

Appeal by defendants Yinkjer from an order of the district court for Douglas county, Baxter, J., granting a new trial, after a verdict in their favor.

<p>Appeal by defendants Dow from an order of the district court for Itasca county, Holland, J., denying a new trial.</p>

Appeal by defendant from a judgment of the district court for St. Louis county against her, as surviving executrix of the will of Jonathan G. Callahan, deceased, for $696.72, entered pursuant to the findings and order of Moer, J. The surety upon a bond of an insurance agent is released where such agent, before the default is complained of, had committed other faults of the same kind for which the company might have dismissed him, but the company, knowing thereof, omitted to…

Appeal by Duluth Trust Company, as assignee in insolvency of defendant lumber company, from an order of the district court for St. Louis county, Moer, J., denying a new trial, after findings that plaintiff was entitled to the sum of $258,632.25 under the contract mentioned in the opinion and to a first lien upon certain lumber cut under that contract, and upon all the standing pine timber covered by said contract, and directing a sale of the standing timber and of the lumber.

<p>Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, J., denying a new trial.</p>

The board of county commissioners for Itasca county denied an application of Louis Pairier for damages by reason of the location of a highway upon his land. He appealed to the district court of that county. When appellant rested at the trial, his appeal was dismissed for the reason that he had failed to prove any right to damages. From an order of the district court, Holland, J., denying a new trial Pairier appealed.

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

<p>Appeal by plaintiff from a judgment of the district court for St. Louis county, Moer, J., for defendant.</p>

Appeal by defendant from an order of the district court for Eamsey county, Willis, J., refusing a new trial after a verdict for plaintiff.

Action by C. E. Danforth against'the National Chemical Company and others. F. B. Hart intervened. There was judgment on the pleadings against intervenor, and from an order of the district court for Bamsey county, Otis, J., denying his motion for a new trial, intervenor appealed.

Appeal by defendant from a judgment for plaintiff entered in the district court for Pine county, Williston, J. The deed first issued is void under the decisions of this court in Farnham v. Jones, 32 Minn. 7, and Brown v. Setzer, 39 Minn. 317. The county auditor had no power to issue the second certificate. A certificate of the sale is one of the elements of the sale, and the law contemplates that it should be issued at the time of the sale.

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

Habeas corpus on the relation of Patrick Kelly against Arthur F. Kilbourne, superintendent of the Rochester State Hospital, into whose custody relator had been committed by proceedings had in the probate court for Ramsey county, Olivier, J. Relator was discharged by an order of the district court for Olmsted county, Gould, J., and defendant appeals.

Appeal by the garnishees and the intervenor Englund from a judgment of the district court for Stevens county, entered pursuant to the findings and order of O. L. Brown, J.

Appeal by plaintiff from an order of the district court for St. Louis county, Moer, J., denying a new trial. The action was brought against defendant as assignee of the State Bank of Duluth.

Appeal by plaintiffs from an order of the district court for Dakota county, Crosby, J., denying a new trial after dismissing the action.

Appeal by defendant from an' order of the district court for Ramsey county, Egan, J., denying a new trial after a verdict for plaintiff for 1326.07.

Appeal by defendant from an order of the district court for Brown county, Webber, J., denying a new trial after a verdict for plaintiff for $S00.

Proceedings by the state of Minnesota against Frederick Weyerhauser and others to enforce payment of taxes for 1894. Judgment ordered discharging the lands from liability for taxes. Case certified from the district court for Itasca county, Holland, J. No dispute is made as to the actual value of the lands during all the times mentioned in this proceeding, nor that they had, as a matter of fact, been grossly undervalued.

Action in the district court for Ramsey county against defendant corporation, an insolvent, and its stockholders. August Steffen, as a creditor, filed his complaint in intervention. Certain defendants answered his complaint setting up the proviso in the policy which is mentioned in the syllabus. From a judgment entered pursuant to the findings and order of Brill, J., the intervenor appealed.

<p>Chattel Mortgage — Renewal Affidavit — Jurat.</p> <p>A renewal affidavit of a chattel mortgage was taken before a person who signed the jurat as W. F. Cooley, “Recorder.” The record showed the existence of the village of Morris, in Stevens county, Minn.; that in said village there was an office designated as office of "village recorder”; that there was in fact such an officer therein as village recorder; that said affidavit was in fact filed in said office, where the original mortgage was filed; that said Cooley certified upon said affidavit, with proper venue thereon indorsed, that said affidavit was filed in his office, and affixed to his signature thereto the word “Recorder.” Held, in connection with all the facts in this case, a sufficient designation of his office, and that the affidavit was valid.</p>

The Chicago, Milwaukee & St. Paul Railway Company, the Great Northern Railway Company, the Chicago Great Western Railway Company, and the Minneapolis, St. Paul & Sault Ste. Marie Railway Company were indicted under Laws 1895, c. 149, for refusing to turn over unclaimed freight to a licensed public warehouseman after twenty days from the receipt thereof.

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

Action by the Massillon Engine & Thresher Company against Ed. Churchill and 0. S. Holdridge. The action was dismissed as to Hold-ridge, and from an order of the district court for Winona county, Gould, J., denying its motion for a new trial, plaintiff appeals.

<p>Appeal by plaintiff from an order of tbe district court for Olmsted county, Gould, J., refusing a new trial.</p>

Appeal by plaintiff from an order of tbe district court for Hennepin county, Pond, J., refusing a new trial, after a verdict for defendant.

Appeal by plaintiff from an order of the district court for Bamsey county, Kelly, J., refusing a new trial after a verdict for defendant.

Appeal by defendant Allan Black from a judgment for plaintiff entered in the district court for Ramsey county, after a trial before Otis, J. Where in an action to foreclose a mechanic’s lien, a mortgagee appears by attorney without authority, and where in such action a court of competent jurisdiction finds, after a trial on the merits, that such mechanic’s lien claim is in fact prior to such mortgagee’s interest, a court of equity will not reform such mortgage in a…

Appeal by defendant from an order of the district court for Bamsey county, O. B. Lewis, J., refusing to set aside the judgment entered for plaintiff after a verdict in his favor for $4,000, afterwards remitted, in obedience to the suggestion of the supreme court in a former appeal, 67 Minn. 260, to $2500.

Appeal by defendant from an order of the district court for Redwood county, Webber, J., overruling his demurrer to the reply.

<p>Appeal — Weight of Evidence.</p> <p>Evidence considered, and held, that the findings of the referee herein are sustained hy the evidence.</p>

Action in the district court for Pine county, Crosby, J., by the Minneapolis Trust Company, as assignee of Martin Bing, insolvent, against school district No. 5 of Pine county. The action having been dismissed and an order denying a motion for a new trial made, plaintiff appeals.

Appeal by plaintiff from an order of the district court for Hennepin county, Pond, J., denying a new trial. The right of appropriation is confined to the parties themselves. Gordon v. Hobart, 2 Story, 243; Seymour v. Marvin, 11 Barb. 80; Allen v: Culver, 3 Denio, 284; Frost v. Mixsell, 38 N. J. Eq. 58G; Seymour v. Van Slyck, 8 Wend. 403; Hunger, App. Pa.ym., 75-80. Sureties cannot direct it, but are bound by the application made by the parties.

Action by Bernard Silberstein and another, partners as the Crowley Electric Company, against the Duluth News-Tribune Company in the municipal court of Duluth. From a judgment entered pursuant to findings by Boyle, Sp. J., in favor of plaintiffs, defendant appeals.

Appeal by defendants from an order of the district court for Nobles county, P. E. Brown, J., denying a new trial after a verdict for plaintiff for $423.78.

Action by Charles B. Parker against John Bradford. From a judgment of the district court for Sherburne county, Baxter, J., reversing the judgment of the justice before whom the case was tried and in favor of defendant, plaintiff appealed.

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

Appeal oy plaintiff from an order of the municipal court of Minneapolis, W. A. Kerr, J., denying a new trial after a dismissal of the action at the close of plaintiff’s evidence. The passenger had the right to stand on his contract with the ticket agent, and if he was not furnished with a ticket evidencing his rights secured by the contract entered into, the company should have corrected the mistake when the emergency required, and was liable for ejecting him from the train.

Appeal by defendant from an order of the municipal court of Duluth, Edson, J., denying its motion for a new trial, and from the judgment entered for plaintiff.

<p>Appeal by defendants from a judgment of the district court for Marshall county, entered in conformity to findings by Ives, J.</p>

Action by the Luger Furniture Company against Warren Gilbert, in which the Warren Manufacturing Company was summoned as garnishee. The Sawyer Grain Company interposed a claim to the fund attached. There was a finding for plaintiff, and from an order of the district court for Marshall county, Ives, J., denying a new trial, claimant appeals.

Appeal by plaintiff from a judgment for costs entered in the district court for Morrison county, Searle, J., after a verdict for defendant and the denial of a new trial.

<p>Writ of habeas corpus against Henry Wolfer, warden of the penitentiary, upon the petition of J. C. Hull.</p>

In the matter of the receivership of the Merchants’ Bank of Lake City, John C. Schmidt and others, purchasers at the sale by R. H. Moore, receiver, appeal from an order of the district court for Wabasha county, Gould, J., refusing to confirm the sale. It was not discretionary with the court below to refuse to confirm the sale; if it were, the court’s discretion was abused. Note a distinction between confirming a sale and setting aside a sale after confirmation.

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

<p>Appeal by defendant from an order of tbe municipal court of St.. Paul, Orr, J., denying a new trial.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Ensign, J., refusing a new trial after a verdict returned for defendant by direction of the court.

Appeal by defendants from a judgment entered for plaintiff in the district court for Kamsey county, after a trial before Egan, J.

Appeal by defendant from an order of tbe district court for Hennepin county, Jamison, J., granting plaintiff a new trial. The term “lot” as used in the statute was not intended to exempt as a homestead any quantity of land that might be platted and called a lot. By the term “lot,” as used in the homestead act, is intended the ordinary, prevailing or average sized lot in the immediate vicinity.

Action by Marguerite Anderson against the Minnesota Loan & Trust Company to recover a surplus remaining in its hands as mortgagee in possession during the year of redemption from foreclosure, such surplus and their right thereto having been assigned to plaintiff by the mortgagors. There had been two mortgages on the property in question, both executed by the same parties as mortgagors, and the second mortgagee had been for some time in possession by agreement with them.

From an order of the district court for St. Louis county, Moer, J., sustaining demurrers of defendants Crassweller and American Loan & Trust Company to the complaint, plaintiff appealed.

Appeal by plaintiff from a judgment of the district court for Polk county, Ives, J., entered in his favor for the sum of $174.63.

Appeal by defendant from a judgment entered in the district court for Ramsey county, Egan, J., after a verdict for plaintiff for $2341.50, and from an order denying its motion for a new trial.

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

<p>Appeal by plaintiff from an order of tbe district court for Ram.sey county, Bunn, J., after a verdict for defendant, denying a new trial.</p> <p>Cited the following cases: Southerland v. Northern, 43 Fed. '646; Northern v. Herbert, 116 U. S. 642; Bessex v. Chicago, 45 Wis. 477; Hulehan v. Green, 68 Wis. 520; Kelly v. Erie, 34 Minn. 321; ■Cook v. St. Paul, 34 Minn. 45; Franklin v. Winona, 37 Minn. 409; Waters v. Pioneer, 52 Minn. 474; Sheedy v. Chicago, 55 Minn. 357; Delude v. St. Paul, 55 Minn. 63; Sims v. American, 56 Minn. 68; Scharenbroich v. St. Cloud, 59 Minn. 121; Voyer v. Dispatch, 62 Minn. 393; Lawson v. Truesdale, 60 Minn. 411.,</p>

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

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

Appeal by defendants from an order of the district court for St-Louis county, Moer, J., striking out certain portions of their answer.

<p>This action against the Eastern Railway Company, the St. Paul, Minneapolis & Manitoba Railway Company and the Great Northern Railway Company, was brought to recover for damages sustained by plaintiff resulting from fires started by the negligent •operation of its trains by the first named company. From orders of the district court for Mille Lacs county, Baxter, J., overruling separate demurrers of the Manitoba and Great Northern Companies, they appealed.</p> <p>' The allegations in the complaint that it was and is the duty of the Manitoba and Great Northern Companies to keep the right of way free from combustible materials and to see that locomotives passing over the road were properly equipped, kept in repair and skillfully operated, are merely conclusions of law and are not admitted by demurrer. Ritchie v. McMullen, 159 U. S. 235; Lumley v. Wabash, 71 Fed. 21; Clark v. Hart, 98 Ky. 31; Fish v. Farwell, 160 111. 236; England v. Russell, 71 Fed. 818. There is no allegation in the complaint that the alleged negligence of the Manitoba and Great Northern Companies in failing to keep the right of way free from combustible material caused or contributed to cause the damage complained of, and no matter how gross that negligence may have been, unless it caused wholly or in part the injury or damage complained of, it is not actionable. Bennett v. Missouri, 11 Tex. Civ. App. 423; Sheridan v. Bigelow, 93 Wis. 426. The alleged negligence of these companies in permitting grass and leaves to accumulate on the right of way is not the proximate cause of the injury and damage complained of. The negligent management and defective condition of the locomotive operated by the Eastern Company is the immediate and proximate cause. This independent act of negligence committed by a third party intervening between the negligence of appellants and the injury occasioned is the cause to which the damage must be attributed. St. Joseph v. Hedge, 44 Neb. 448; Milwaukee v. Kellogg, 94 U. S. 469; Merchants v. Wood, 64 Miss. 661; Texas v. Woods, 8 Tex. Civ. App. 462; Grimmer v. Pennsylvania, 175 Pa. St. 1; Morier v. St. Paul, 31 Minn. 351. The Manitoba Company, having parted with possession and control of the railroad and right of way, is in no wise liable for the condition of the right of way or other appurtenances and appliances. Ahern v. Steele, 115 N. Y. 203. The lease by the Manitoba Company to the Great Northern Company and the license or agreement between the Great Northern Company and the Eastern Company were authorized by statute. G. S. 1894, §§ 2714 and 2721. This being so, the Manitoba Company is not liable for the torts of the Great Northern or the Eastern Company and the Great Northern Company is not liable for the torts of its licensee, the Eastern Company. Arrowsmith v. Nashville, 57 Fed. 165; 3 Wood, By. Law, § 490; Nugent v. Boston, 80 Me. G2; St. Louis v. Curl, 28 Kan. 622; Fort v. Fortney, 51 Kan. 287; Ditehett v. Spuyten, 67 N. Y. 425; Miller v. New York, 125 N. Y. 118; Ahern v. Steele, supra; and see, also, Hukill v. Maysville, 72 Fed. 745; Harper v. Newport, 90 Ky. 359; East v. Culberson, 72 Tex. 375; Hanna v. Chattanooga, 88 Tenn. 310; City v. Mores, 80 Md. 348; Georgia v. Friddell, 79 Ga. 489; Virginia v. Washington, 86 Va. 629.</p> <p>It is the duty of a railway company to keep its right of way reasonably free from combustible matter and whether the allegations in the complaint to that effect are statements of fact or conclusions of law is immaterial. Salmon v. Delaware, 38 N. J. L. 5; Watt v. Nevada, 23 Nev. 154; Eddy v. Lafayette, 163 U. S. 45G; Clarke v. Chicago, 33 Minn. 359; 8 Am. & Eng. Enc. Law, 14. The complaint sufficiently alleges that the damage complained of was caused by the negligence of the appealing defendants in failing to keep the right of way free from combustible matter. Louisville v. Hanmann, 87 Ind. 422; Louisville v. Krinning, 87 Ind. 351; Pittsburgh v. Jones, 86 Ind. 496; Ohio v. McCartney, 121 Ind. 385; Chicago v. Burger, 124 Ind. 275. See, also, Eddy v. Lafayette, supra; Solum v. Great, 63 Minn. 233. The alleged negligence of appellants in permitting grass and leaves to accumulate upon the right of way is the proximate cause of the injury and damage complained of. Undoubtedly the negligence of the Eastern Company is the original and primary cause, but the negligence of the other defendants is equally proximate. It is not necessary that the injury should be the inevitable or necessary consequence of the wrongful act or omission, but only that it should be the natural or probable result. Miller v. St. Louis, 90 Mo. 389. A railway company may be liable upon proof of negligence in not keeping its right of way clear of combustible matter, regardless of the condition or operation of its locomotives. Clarke v. Chicago, 33 Minn. 359; Bowen v. St. Paul, 36 Minn. 522; Smith v. London, L. R. 6 C. P. 14; Eddy v. Lafayette, supra; Jones v. Michigan, 59 Mich. 437; Gram v. Northern, 1 N. D. 252; Haugen v. Chicago, 3 S. D. 394; Toledo v. Endres, 57 111. App. 69; Kellogg v. Chicago, 26 Wis. 223; Kelsey v. Chicago, 1 S. D. 80; Louisville v. Miller, .109 Ala. 500; Hycock v. Raleigh, 89 N. C. 321; Notwithstanding the lease by the Manitoba Company to the Great Northern and the operation by the latter pursuant to such lease, the Manitoba Company remains liable for the negligence of its lessee in permitting combustible matter to accumulate upon the right of way and also for the negligence of the Eastern Company as to the running of its engine and the manner of running it, even if such lease was authorized by statute, there being no statutory exemption from such liability, and for the same reason the Great Northern Company is liable for the negligence of the Eastern Company as to the condition and operation of its engine, citing Freeman v. Minneapolis, 28 Minn. 443; Singleton v. Southwestern, 70 Ga. 464; Harmon v. Columbia, 28 S. C. 401; Driscoll v. Norwich, 65 Conn. 230; Logan v. North, 116 N. C. 940; Balsley v. St. Louis, 119 111. 68; Green v. Coast, 97 Ga. 15; Pennsylvania v. Ellett, 132 111. 654; Cholette v. Omaha, 26 Neb. 159; Nelson v. Vermont, 26 Vt. 717; Independent v. Western, 6 Inter. C. Com. 378; Bouknight v. Charlotte, 41 S. C. 415; Braslin v. Somerville, 145 Mass. 64; Railroad v. Brown, 17 Wall. 445; Central v. Morris, 68 Tex. 49; Tillett v. Norfolk, 118 N. C. 1031; Hycock v. Raleigh, supra; Ingersoll v. Stockbridge, 8 Allen, 438; Railroad v. Barron, 5 Wall. 90; Macon v. Mayes, 49 Ga. 355; McCoy v. Kansas, 36 Mo. App. 445; Chicago v. Meech, 59 111. App. 69, 163 111. 305; Pittsburg v. Campbell, 86 111. 443; Galveston v. Burnett, 37 S. W. 779; Central v. Phinazee, 93 Ga. 488. The liability of the appellants for the torts of their lessee or licensee is not limited to the violations of the duties or obligations imposed upon them as common carriers, but extends to violations of all duties or obligations which are owed to the public. Driscoll y. Norwich, 65 Conn. 230; Harmon v. Columbia, 28 S. C. 401; Logan y. North, 116 N. C. 940; Balsley v. St. Louis, 119 111. 68; Pittsburgh v. Campbell, supra; Galveston v. Burnett, supra; Naglee v. A. & F., 83 Va. 707; and see particularly Freeman v. Minneapolis, 28 Minn. 443.</p>