Volume 73 — Minnesota Reports

Appeal by relators from an order of the district court for Chisago county, Crosby, J., sustaining the demurrer of respondent county auditor to an alternative writ of mandamus and denying a peremptory writ. A statute providing for a notice of expiration of time for redemption from a tax sale is mandatory, and the statutory requirement that the notice shall state the time when the redemption period will expire is mandatory. Kenaston v. Great Northern Ry.

Appeal by plaintiff as administrator of the estate of Edward Putnam, deceased, from a judgment of the district court for Chisago county, dismissing the action, entered in pursuance of the order of Crosby, J.

Appeal by defendant Edward D. Brown from an order of the district court for Hennepin county, Smith and Simpson, JJ., overruling his demurrer to the complaint. On the question of misjoinder, the complaint is to be considered without reference to the sufficiency, of its. allegations to constitute a cause of action against Brown, the attempt to state some cause of action being evident. Vaule v. Steenerson, 63 Minn. 110.

Appeal by plaintiff from an order of the municipal court of Minneapolis, Holt, J., denying a motion for judgment notwithstanding the verdict or for a new trial.

Appeal by plaintiff from an order of the district court for Hennepin county, McGee, J., denying a motion for a new trial. The foreclosure was null and void, because in violation of the statute requiring assignments to be recorded, and the notice to state the name of the assignee. Butler did not remain legal owner, or trustee, after her assignment.

<p>Payment — Acceptance in Extinguishment of Principal — Street Sprinkling Contract — Moran v. City Distinguished.</p> <p>Meld, distinguishing Moran Mnfg. & C. Co. v. City of St. Paul, 05 Minn. 300, that the evidence justified the verdict to the effect that payments made by the defendant upon certain contracts for sprinkling its streets were made and accepted upon and in full extinguishment of the principal of the debt, and that the trial court properly submitted the question to the jury.</p> <p>Witness — Conversation with Deceased — Competency of Officer of Defendant City.</p> <p>Meld, that it was competent for the defendant’s comptroller to testify in this case to a conversation relative to the issue with the deceased contractor.</p> <p>Evidence Inadmissible under Pleadings — Objection that it is Incompetent, etc., not Sufficiently Specific.</p> <p>An objection to evidence that it is incompetent, irrelevant and immaterial is not sufficiently definite to call the attention of the court to objections that the evidence is inadmissible under the pleadings.</p>

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

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

Action in the district court for St. Louis county to recover $6,261 because of injuries suffered and expenses incurred by defendant. From a judgment in favor of defendant, entered in pursuance of the order of Ensign, J., notwithstanding a verdict for plaintiff, he appealed.

Appeal by defendant York from an order of the district court for St. Louis county, Cant, J., denying a motion for a new trial and also denying a motion for additional findings of fact. The complaint states no cause of action against defendants. The cancellation of the subscription was the consideration for the mortgage, and the subscription having been cancelled there is no failure of consideration.

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

Action in the district court for Ramsey county by the administrator of the estate of Clarence Eugene Stendal to recover $3,050. From an order, Brill, J., denying defendant’s motion for judgment notwithstanding the verdict of $400 in favor of plaintiff, defendant appealed.

Appeal by plaintiff from a judgment of the district court for Renville county, in favor of defendants, entered in pursuance of the order of Powers, J., after a trial before Webber, J., and a jury. The terms of the order are given in the opinion. A purchaser of mortgaged premises under foreclosure is entitled to the crops sown and growing on the land at the time his title accrues.

Appeal by plaintiff from a judgment of the district court for Chisago county, in favor of defendant Fitch, entered in pursuance of the findings and order of Crosby, J. The notice of expiration of redemption- was invalid.

In the district court for Hennepin county the defendant corporation was cited to show cause why it should not pay $3,125.71, the amount of tax assessed against it for the year 1896. On the return day of the citation the proceedings mentioned in the opinion were had. At the request of defendant the facts and decision of Lancaster, J., stated at length in the opinion, were certified to the supreme court. The requirement that the statement should be sworn to cannot be waived.

Appeal by relator from an order of the district court for Hennepin county, Elliott, J., discharging a writ of habeas corpus and remanding one Hyman Schulman to the custody of respondent sheriff.

Action in the district court for St. Louis county to recover $20,000 for personal injuries. The case was tried before Cant, J., and a jury, which rendered a verdict in favor of plaintiff for $5,000. From an order denying motions for judgment notwithstanding the verdict or for a new trial, defendants appealed.

Action in tbe district court for Pine county to recover $500. The case was tried before Williston, J., and a jury, which rendered a yerdict in favor of plaintiff for $180. From an order, Crosby, J., denying its motion for judgment notwithstanding the verdict and' for a new trial, defendant appealed.

Action in the district court for Hennepin county against Swante A. Lindgren and Anna Lindgren, Ms wife, and Nils O. Werner, as receiver of the rents and profits of their real estate, to foreclose a mortgage. Defendant Swante A. Lindgren did not appear, and the other defendants answered jointly.

Appeal by defendant from an order of the district court for Kandiyohi county, Powers, J., denying a motion for a new trial. Evidence of plaintiff’s declarations was incompetent. Stoppert v. Merle, 45 Neb. 105; Richmond v. State, 19 Wis. 326; State v.. Tipton, 15 Mont. 74; Sidelinger v. Buclrlin, 64 Me. 371; Marvin v. Butcher, 26 Minn. 391.

Action in the district court for Hennepin county to recover f 10,000 for personal injuries. The answer set up a former judgment as a bar. Defendant moved for judgment on the pleadings. Plaintiff made a cross motion for leave to amend his reply and put in issue the plea of res judicata. The court, McGee, J., denied plaintiff’s L motion for the sole reason that the former judgment was a bar to the maintenance of the action, and for the same reason granted defendant’s motion.

Appeal by defendant from a judgment of the municipal court of Minneapolis in favor of plaintiff, entered pursuant to a verdict directed by Holt, J., in an action of forcible entry and detainer.

Action in the district court for Martin county to have a certain judgment confessed in favor of defendant Wollaston by Theodore L. Dreyer declared not to be a lien upon certain land conveyed by Dreyer to plaintiff. The cause was tried before Quinn, J., without a jury, who ordered judgment for defendants. From the judgment entered pursuant thereto, plaintiff appealed. The statement fails to state the consideration for the notes, and is insufficient to support the judgment.

Appeal by defendant from an order of the district court for Bamsey county, Bunn, J., denying its motion for a new trial. Bespondents are estopped by the acts, representations and direction of Page from now saying that the amount of this check was wrongfully paid by appellant to the First National Bank. Continental y. National, 50 N. Y. 575, 581; Pence y. Arbuckle, 22 Minn. 417.

Appeal by plaintiff from an order of the district court for Hennepin county, Tarbox, J., denying his motion for a new trial, after directing a verdict for defendant.

Action in the district court for Goodhue county to recover $20,000 damages for. personal injuries to plaintiff’s minor son, Raymond Kayser. The cause was tried before Williston, J., and a jury, which returned a verdict of $250 in favor of plaintiff. From an order denying defendant’s motion for a new trial, Crosby, J., he appealed.

A writ of habeas corpus was issued out of the district court for Ramsey county, on the petition of James Sherin, directing M. N. Goss, chief of police of the city of St. Paul, to produce the body of said petitioner, before the court, together with the time and cause for the imprisonment of said petitioner. At the hearing before O. B. Lewis, J., the petition was quashed and the writ discharged. From this decision relator appealed.

Action in the district court for St. Louis county to enjoin defendant from flooding plaintiff’s land, and for $500 damages for flooding the same in 1895 and 1896. The cause was tried before Moer, J., without a jury, and judgment was ordered for plaintiff, awarding the injunction prayed for in the complaint, and $15 damages. From an order denying its motion for a new trial, defendant appealed.

Action in the district court for Mower county to recover $5,000 for personal injuries caused by an alleged defective sidewalk. The cause was tried before Whytock, J., and a jury, and resulted in a verdict of $1,000 for plaintiff. From an order denying its motion for a new trial, defendant appealed.

Indictment in the district court for Goodhue county for rape. Defendant’s demurrer was overruled by Crosby, J., and at defendant’s request the case was certified to the supreme court. The indictment should state the facts so as to advise the accused in which one of the different ways specified in G. S. 1894, § 6528, he is accused of the crime of rape. State v. Yorey, 41 Minn. 134.

Proceedings supplementary to execution in the district court for Ramsey county. On the disclosure, which was made after the termination of defendant’s term as building inspector for the city of St. Paul, it appeared that he had a claim for $1,400 against the city of St. Paul for a balance of salary for each month from January 10, 1896, to January 10, 1898.

Action in tbe district court for Ramsey county against ibe village of North St. Paul and its officers to enjoin tbe payment of money out of the village treasury for tbe construction of a bicycle path and for painting tbe village ball. Tbe cause was tried before Willis, J., without a jury, who ordered judgment dismissing tbe action. From an order denying plaintiff’s motion for a new trial, he appealed.

Defendant was convicted in the district court for Hennepin county of the crime of asking for a bribe to influence his vote and action as an alderman of the city of Minneapolis. From an order, Elliott, J., denying defendant’s motion for a new trial, he appealed. On the hearing of the motion for a new trial defendant read affidavits to the effect that, while the jury were deliberating, certain jurors left the room and went upon the floor above in the court house.

Appeal by defendant from an order of the district court for Wabasha county, Snow, J., denying his motion to vacate a judgment by default. G. S. 1894, § 5196, which requires *a copy of the complaint to be served on defendant with the summons, unless the complaint itself be filed in the office of the clerk of the district court, is mandatory and not directory.

Action in the district court for Ramsey county by the receiver of the First National Bank of Decorah, Iowa, against defendants as distributees of the estate of Sumner ■W. Matteson, deceased, to recover the statutory liability which attached to 10 shares of stock in that bank held by Sumner W. Matteson at the time of his death. Judgment was ordered for plaintiff on the pleadings by Willis, J., and defendants Louise M. Matteson and Charles D. Matteson appealed.

Plaintiffs Lena Stanek, as administratrix of tbe estate of Thomas Stanek, and Katherine Sneda, as administratrix of the estate of Joseph Sneda, severally recovered judgments in the district court for Winona county against defendants Albert Libera and John Mlnazek for the deaths of their respective intestates, who were killed while in the employment of defendants.

Action in the district court for Washington county to recover §2,500 for damages alleged to have been sustained by the flooding of plaintiff’s land. The case was tried before Crosby, J., and a jury, which rendered a verdict of §500 in favor of plaintiff. From a judgment entered on the verdict, defendant appealed. The instructions requested by defendant and referred to in the opinion are as follows: “First.

Action in the municipal court of Minneapolis to recover $197.65, the value of certain fish delivered by plaintiff to defendant for transportation, which defendant had failed to deliver to the consignees. The case was tried before Holt, J., without a jury, who ordered judgment in favor of plaintiff for $147.83. From an order denying defendant’s motion for a new trial, defendant appealed.

Action in the district court for Mille Lacs county against the Great Northern Railway Company and the Eastern Railway Company of Minnesota to recover $732.50 for the destruction of plaintiff’s property by fire, alleged to have been set on defendants’ right of way by their sectionmen. The cause was tried by Baxter, J., and a jury, which returned a verdict in plaintiff’s favor for $564.16.

Appeal by defendants from an drder of the municipal court of Minneapolis, Holt, J., denying defendants’ motion for a new trial, after a trial before the court without a jury.

Appeal by defendants from an order of the district court for Martin county, Quinn, J., overruling their demurrer to the complaint. The words complained of must be upon their face applicable to plaintiff, or can be made so by a recital of facts which demonstrate their applicability without violating or straining their natural sense and meaning. McCallum v. Lambie, 145 Mass. 234; Petsch v. Dispatch P. Co., 40 Minn. 291.

Action in the district court for Hennepin county by the receiver of the Fred B. George Stationery Company, an insolvent corporation, to recover $1,000. The substance of the complaint is stated in the opinion. From an order, Johnson, J., overruling the demurrer to the complaint, defendants appealed.

Action in the district court for Hennepin county to wind up the affairs of defendant corporation, and for the appointment of a receiver for that purpose. From an order, Elliott, J., appointing a receiver, defendant appealed. The constitutional provision (art. 4, § 13) relating to the enacting clause of statutes, is directory merely, and not mandatory; hence the absence of an enacting clause from a statute does not render it invalid.

Action in the district court for Stearns county. The character of the action is stated in the opinion. After the case was remanded upon the former appeal, it was referred for hearing to E. T. Abbott, George L. Wilson and Ira. B. Mills, who ordered judgment in plaintiff’s favor as mentioned in the opinion.

Appeal by defendant from an order of the district court for Pine county, Williston, J., denying its alternative motion for judgment in its favor notwithstanding the verdict or for a new trial, after the court had directed a verdict in favor of plaintiff. The bonds in question are void, absolutely so, whether in the hands of the first taker or subsequent purchaser, because the bonds were not advertised for sale, as required by Laws 1893, c. 200, § 5.

Appeal by plaintiff from a judgment of the district court for Ramsey county in favor of defendant Rathbone, entered pursuant to findings by Brill, J. As between the parties to this suit, all interests in the land were merged in the decree foreclosing the mechanic’s lien, and the lien claim is the basis of the new title.

Action in the district court for Ramsey county by plaintiffs, partners as Merrick & Merrick, to recover §1,493 from defendant, as assignee of the Gladstone Land Company, for services rendered and expenses incurred by plaintiffs as attorneys at law for defendant and his assignor. The cause was tried before Kelly, J., and a jury. When plaintiff rested, the court, on motion of defendant, dismissed the action. From an order denying plaintiffs’ motion for a new trial, they appeal.

Appeal by Myra Harding, residuary legatee under the will of Sarah A. Peck, deceased, from a judgment of the district court for Goodhue county, entered pursuant to findings and order by Crosby, J., reversing a decree of the probate court for Goodhue county which directed E. V. Canfield, executor of the estate of said testate, to pay said Myra Harding $448.10.

Appeal by plaintiff from an order of the district court for St. Louis county, Moer, J., denying plaintiff’s motion for a new trial .after findings and an order for judgment in favor of defendants.

Action in the district court for Ramsey county to recover $10,500 damages for personal injuries. The cause was tried before Kelly, J., and a jury, and at the close of the testimony the court directed a verdict in favor of defendant. From an order denying plaintiff’s motion for a new trial, he appealed.

Action in the district court for Hennepin county by plaintiff, as assignee of Jacob Barge, insolvent, to restrain defendants from entering judgment against Barge in an action commenced by defendants against Barge before tbe assignment, and to compel defendants to transfer a leasehold estate to plaintiff as the property of Bayge.

Action in the district court for St. Louis county on a promissory note and a guaranty thereon. The cause came on for trial before Cant, J., and a jury, and at the conclusion of the testimony a verdict was directed in favor of plaintiff. From an order denying their motion for a new trial, defendants appealed. The note is absolutely due July 1, 1898.

Action in the district court for Mower county by plaintiff corporation to recover $740, the purchase price of certain farm machinery. The cause came on for trial before Whytock, J., and a jury, which returned a verdict in favor of defendants. From an order denying plaintiff’s motion for a new trial, it appealed.

Appeal by plaintiff from an order of the district court for St. Louis county, Moer, J., denying plaintiff’s motion for a new trial after a trial before the court without a jury.

Appeal by John Fitzgerald, as administrator of tbe estate of David O’Neil, deceased, from an order of the district court for Ramsey county, Willis, J., denying his motion for a new trial, after finding that the claim of Thomas English was a valid claim against said estate.

Action in the district court for St. Louis county to enjoin the city of Duluth and the Duluth Street Railway Company from interfering with certain railroad tracks of plaintiff in the city of Duluth. The cause came on for trial before Moer, J., without a jury; and at the conclusion of plaintiff’s testimony, the court, on motion of defendants, dismissed the action. From an order denying plaintiff’s motion for a new trial, it appealed.

Action in the district court for Hennepin county by plaintiffs, as trustees of the estate of Alfred W. Haven, against Derrick H. Dressen and David C. Bell Investment Company to cancel the release of a guaranty executed by the investment company, and for judgment against the investment company on the guaranty. The court, Elliott, J., sustained the demurrer of the investment company to the complaint, and overruled it as to defendant Dressen.

<p>Defendants William H. Adamson, Lou Hegman and Jake Fitzgerald were jointly tried in the municipal court of Minneapolis before Holt, J., and a jury, on a complaint charging them with assault and battery on the person of C. E. Brame. On the trial, the court dismissed the case as to defendant Hegman, and the jury returned a verdict of guilty as against defendants Adamson and Fitzgerald. From the judgment sentencing defendant Adamson to pay a fine of $75, and defendant Fitzgerald to pay' a fine of $50, these two defendants jointly appealed.</p> <p>On the trial, one of the witnesses was asked by the prosecution the following question: “Do you know what took place in there?” To which the witness answered: “I couldn’t understand everything that was said; he said he couldn’t get the money until he saw whether he was hurt or not.” The refusal of the court to strike this answer out as not responsive is the basis of appellants’ fifth assignment of error.</p>

Action in the district court for Clay county against defendants, as executors of the estate of George S. Lacy, deceased, to set aside the record of a foreclosure sale by advertisement. The cause was tried before Baxter, J., without a jury, who found in favor of defendants. From a. judgment entered on the findings, plaintiff appealed.

Action in the district court for Hennepin county against Leon H. Hardy, Jennie A. W. Hardy, Minneapolis Trust Company and James W. Criffin to cancel certain deeds and mortgages executed by plaintiff, and to recover $25,000 damages from all of the defendants, except the trust company, on the ground of a conspiracy between defendants, other than the trust company, to defraud plaintiff of his property.

Information in the supreme court by the discipline committee of the Hennepin County Bar Association, charging Alexander H. Nunn, an attorney at law, with professional misconduct.

Action in the district court for Ramsey county to recover $2,000 on a certificate of membership in defendant association. The cause was tried before Brill, J., without a jury, and findings were made in favor of plaintiff. From an order denying defendant’s motion for a new trial, it appealed. A waiver is an intentional relinquishment of a known right. It is actual intent upon actual knowledge that must be established to-make the case one of waiver.

Action in the district court for Hennepin county to recover $4,500 for falsely and maliciously accusing plaintiff of having counterfeited defendant’s trademark. From an order, Smith, J., setting aside the service of the summons, plaintiff appealed.

Action in the district court for Hennepin county by plaintiff, trading as the Olive Wheel Company, against Peter A. Myers, Elizabeth A. Patterson and Harlow A. Jacobs, copartners as P. A. Myers & Co., Harlow A. Jacobs, and George It. Smith, the assignee of Harlow A. Jacobs, to recover $3,274.15 for the alleged wrongful conversion by defendants of a number of bicycles .and bicycle attachments.

Action in the district court for Hennepin county against Eugene C. Garwood, Martha E. Parry and James Rowett to foreclose a real-estate mortgage, dated November 9,1895, and to foreclose a lien on a sheriff’s certificate of sale on foreclosure proceedings which had been assigned by defendant Garwood to plaintiff as collateral security. The cause was tried before Russell, J., without a jury, who ordered judgment for plaintiff.

Action in the district court for Hennepin county to recover the possession of certain personal property or its value. The cause was tried before Lancaster, J., without a jury, who found in plaintiff’s favor. From an order denying defendant’s motion for a new trial, or for a judgment in its favor notwithstanding the findings, defendant appealed. The milling company bought this press on this express representation and warranty, that it was the “latest series” Optimus.

Jobn D. Laddy and others, holders of matured certificates in the Youths’ Temple of Honor, an insolvent corporation, and C. F. Williams and others, who had given notice of withdrawal from the corporation, appealed to the district court of Hennepin county from the allowance by the assignee of the claims of the unmatured certificate holders, and the unmatured certificate holders likewise appealed from the allowance by the assignee of the full amount of the claims of the matured…

Action in the district court for Dakota county to recover $6,750 for personal injuries. The cause was tried before Crosby, J., and a jury, which returned a verdict of $500 in plaintiff’s favor. From a judgment entered on the verdict, defendant appealed. The liability of a master to his servant arises ex contractu. He contracts against his own negligence, not against the negligence of a fellow servant in the same common employment. Farwell v. Boston, 4 Mete.

Action in the district court for Steele county to foreclose a certain contract relating to real-estate mortgages and also to foreclose the mortgages. The cause was tried before Buckham, J., who found for plaintiff. From the judgment entered on the findings defendants Joseph A. Sawyer and Nellie A. Sawyer appealed.

<p>Case certified from district court for Hennepin county, Johnson, J., after ordering judgment for defendant.</p>

Appeal by defendant Nora W. Taylor from an order of the district court for Ramsey county, Kelly, J., denying her motion for a new trial, after findings in favor of plaintiff. Since one-third of the purchase money for the property in question was appellant’s separate property, and since she did not know that the title had been taken in the name of her husband, a constructive trust at common law was established in her favor, to which G. S. 1894, § 4280, does not apply.

Action in the district court for Hennepin county against the state of Minnesota and the board of county commissioners for Hennepin county to declare plaintiff’s land free from the lien of a certain special assessment. The cause was tried before Lancaster, J., without a jury, who ordered judgment in favor of defendants. From a judgment entered in pursuance of such order, plaintiff appealed. Affirmed.

Action in the district court for Wright county to recover $1,200 for flooding plaintiff’s land. The cause was tried before Tarbox, J., and a jury. At the conclusion of plaintiff’s evidence, the court dismissed the case on the ground that he had failed to prove his case. From an order denying his motion for a new trial, plaintiff appealed.

Action in the district court for Le Sueur county to recover $408 for services rendered for defendant at his special instance and request. The cause was tried before Cadwell, J., and a jury, which returned a verdict of $383.84 in plaintiff’s favor. From an order denying defendant’s motion for a new trial, he appealed.

Action in the district court for Hennepin county to have a certain mortgage declared paid and satisfied, and to have a foreclosure thereof declared void. The cause was tried before Lancaster, J., without a'jury, who found for defendant. From an order denying plaintiff’s motion for a new trial, she appealed. It is not necessary that the holder of a mortgage should have actual notice of the equities of a purchaser of a portion of the mortgaged premises.

Action in the district court for Ramsey county against Charles Butts, John E. Jaques, Sarah F. Jaques, William D. George, Lillie J. George, Rush B. Wheeler, Mary Browning, Clara H. Greene, and F. E. Elmund to determine adverse claims to real estate. The cause was tried before O. B. Lewis, J., without a jury, who found for plaintiff. From an order denying the motion of defendant Mary Browning for a new trial, she appealed.

Action in the district court for Kanabec county to recover $500 damages for the flooding of plaintiff’s land. The cause was tried before Williston, J., and a jury, which returned a verdict of $97.50 in favor of plaintiff. From an order, Crosby, J., denying defendants’ alternative motion for a new trial or for judgment notwithstanding the verdict, defendants appealed.

Action in the district court for Eamsey county by plaintiff, as' administrator of the estate of Margaret Connelly, deceased, to recover $5,000 damages for the wrongful death of plaintiff’s intestate. The cause was tried before Bunn, J., and a jury; and at the conclusion of plaintiff’s testimony the case was dismissed, on the ground that he had failed to prove a cause of action. From an order denying plaintiff’s motion for a new trial, he appealed.

Mandamus to compel respondent board to furnish relator with a school room in which to hold a. teachers’ examination. From an order of the district court for Swift county, Qvale, J., discharging the alternative writ, and denying the peremptory writ, relator appealed.

Mandamus in the district court for Ramsey county against Dennis M. Sullivan, county auditor of that county, to compel him to issue his warrant for the payment of relator’s salary as abstract clerk from December 1, 1897, to April 30, 1898. Respondent answered, and the matter came on for hearing before O. B. Lewis, J. From an order granting the peremptory writ, respondent appealed.

Mandamus against defendant, as county auditor of Ramsey county, directing him to issue his warrant to relator, as sheriff of said county, for the payment to one Joseph H. Jansen for services as deputy sheriff while in attendance on the district court for that county during- the month of December, 1897. From an order of that court, O. B. Lewis, J., granting a peremptory writ, respondent appealed.

Action in the district court for Ramsey county by plaintiff, as administrator of the estate of Mary Dehanitz, deceased, to recover $5,000 damages for the death of plaintiff’s intestate. Defendant demurred to the complaint on the ground that it failed to state a cause of action. From an order, Willis, J., overruling the demurrer, defendant appealed. The city owed no duty to deceased.

Action in the district court for Winona county to recover $ 1,056 damages for the negligence of defendant, as stated in the opinion. Defendant’s demurrer to the complaint was sustained by Snow, J. From a judgment in favor of defendant, plaintiff appealed.

Action in tbe district court for Hennepin county by plaintiff, as administratrix of tbe estate of Martin A. Anderson, deceased, against Nub S. Lee and August Pritzlaff to enjoin tbe foreclosure of a real-estate mortgage. Tbe cause was tried before McGee, J., without a jury, and judgment was ordered in favor of plaintiff. From an order denying tbe motion of defendant Pritzlaff for a new trial, be appealed.

Action in the district court for Douglas county to foreclose a mortgage, and to have plaintiff’s mortgage declared a prior lien to that of the Springfield Savings Bank. The cause was tried before Searle, J., without a jury, and judgment was ordered in favor of defendants Torkelson and the Springfield Savings Bank. From orders denying plaintiff’s motions to amend the findings and for a new trial respectively, it appealed.

<p>Action in the district court for Hennepin county to restrain the foreclosure of a real-estate mortgage, and to cancel the same. The cause was tried before Russell, J., without a jury, and judgment in favor of plaintiff was ordered. From an order, McGee, J., denying defendant’s motion for a new trial, she appealed.</p> <p>The Kelleys had no authority to receive payment of the mortgage in question at the time the attempted payment was made. In the absence of express or implied authority, the mortgage securities are the indispensable evidence of authority to collect the principal thereof, and the person dealing with the party assuming to act as agent for collection is bound to inform himself as to whether such agent has the securities. 1 Pingrey, Mort. •§ 1145; Haines v. Pohlmann, 25 N. J. Eq. 179; Smith v. Kidd, 68 N. Y. 130; Mechem, Ag. § 373; Brewster v. Games, 103 N. Y. 556; Security v. Graybeal, 85 Iowa, 543; Story, Ag. § 99. The firm of A. F. & L. E. Kelley had no implied authority to collect this mortgage on January 3,1896. Trull v. Hammond, 71 Minn. 172; Burchard v. Hull, 71 Minn. 430; Joy v. Vance, 104 Mich. 97; Security v. Graybeal, supra; Story, Ag. supra; Smith v. Kidd, supra; Church v. Walton, 114 Mich. 677; City v. Reams, 51 Neb. 225; U. S. v. Burson, 90 Iowa, 191; 1 Jones, Mort. § 964; Cooley v. Willard, 34 111. 68; Williams v. Walker, 2 Sandf. Ch. 325; Padley v. Neill, 134 Mo. 364.</p> <p>There was no payment of the mortgage in question in law or in fact. The payment of the mortgage was not in money or its equivalent. Trull v. Hammond, supra; Moore v. Pollock, 50 Neb. 900; U. S. v. Burson, supra; Security v. Graybeal, supra; Aultman v. Lee, 43 Iowa, 404; Drain v. Doggett, 41 Iowra, 682; McCormick v. Keith, 8 Neb. 142; Everts v. Lawther, 165 111. 487; Price v. White, 70 Ga. 381; Todd v. Reid, 6 E. C. L. 455; Scott v¡ Irving, 1 B. & A. 605; Ward v. Smith, 7 Wall. 447; McCormick v. Breen, 61 111. App. 528; Lane y. Duchac, 73 Wis. 646; Davis v. Smith, 29 Minn. 201.</p> <p>The Kelleys had authority to collect the mortgage debt. As general agents, the Kelleys had the right to collect mortgage debts at maturity, without possession of the securities, if the debtors were willing to pay under such circumstances. Ziegan v. Strieker, 110 Mich. 282; Noble v. Nugent, 89 111. 522; Stevens v. Meers, 11 111. App. 138; Shane v. Palmer, 43 Kan. 481; Security Co. v Richardson, 33 Fed. 16.</p> <p>Where agency is disputed, and is to be determined from conflicting evidence as to details relied upon to establish and characterize it, the question is one of fact both as to its existence and scope. Mechem, Ag. § 106; South v. Henlein, 52 Ala. 606; Morrison v. Whiteside, 17 Md. 452; Welstead v. Levy, 1 Mood. & R. 138; Krebs v. O’Grady, 23 Ala. 726; McClung v. Spotswood, 19 Ala. 165; London v. Hagerstown, 36 Pa. St. 498; Hart v. Borough, 56 Pa. St. 23; Reid v. Kellogg, 8 S. D. 596. The fact that the securities were not in Kelley’s possession, considered in its most adverse light, merely puts respondent to the proof of authority, express or implied. Richards v. Waller, 49 Neb. 639; Thomson v. Shelton, 49 Neb. 644. See also Wheeler v. Benton, 67 Minn. 293; Noble v. Nugent, supra; City v. Reams, 51 Neb. 225; Reid v. Kellogg, supra; Kasson v. Noltner, 43 Wis. 646; Quinn v. Dresbach, 75 Cal. 159; Shane v. Palmer, supra; Security Co. v. Richardson, supra; Bronson v. Chappell, 12 Wall. 681; Dunn v. Hornbeck, 72 N. Y. 80. Appellant ought not to be permitted to question this agency or its scope. She is responsible for the situation, and is bound, whether by authorization, ratification or estoppel. Columbia Mill Co. v. Nat. Bank of Commerce, 52 Minn. 224; Dimond v. Manheim, 61 Minn. 178; Turner v. Kennedy, 57 Minn. 104; Story, Ag. § 470; Burgess v. Bragraw, 49 Minn. 462.</p> <p>The transaction shows a payment of the Bailey mortgage. We do not question the general rule that authority to collect does not in itself authorize payment except in money. On analysis the rule may be stated thus: (1) Payment to an agent must be in money unless otherwise authorized. (2) Naked authority to collect does not in itself authorize payment in anything but cash, or what by usage is its equivalent. (3) But the authority .to collect may be so enlarged, expressly or by implication from the nature of the business or the course of dealing between the parties, that a collection in money may be made without passing the cash or its equivalent. Kelley had the money, and, if he consented to apply it on Bailey’s note, that was a payment. Bausman v. Faue, 45 Minn. 412; Eyles v. Ellis, 4 Bing. 112; Pratt v. Foote, 9 N. Y. 463; Mayer v. Heidelbach, 123 N. Y. 332; First v. McClung, 7 Lea, 492; Nightingale v. Bank, 26 U. C. C. P. 74; Hooper v. Hooper, 81 Md. 155; Osborn v. Baird, 45 Wis. 189; Conway v. Smith, 46 Pac. 1084; Howard v. Walker, 92 Tenn. 452; Scott v. Gilkey, 153 111. 168; Hawkes v. Dodge, 11 Wis. 196; British v. Tibballs, 63 Iowa, 468; Bolton v. Richard, 6 Dunn & E. 139; Phillips v. Mayer, 7 Cal. 82; Smith v. Lamberts, 7 Grat. 138; Moore v. Norman, 52 Minn. 83.</p>

Proceedings in the district court for Traverse county to enforce payment of delinquent taxes, phe defendant railway company duly filed objections to the enforcement of payment against the lands described. The cause was submitted to Powers, J., on a stipulation of facts, and he found in favor of defendant. Judgment was entered in pursuance of the findings, and the case was then certified to the supreme court.

Action in the municipal court for the city of Minneapolis to recover $190, the purchase price of certain goods alleged to have been sold by plaintiffs to defendant. The cause was tried before W. A. Kerr, J., without a jury, and judgment was ordered for defendant. From an order denying their motion for a new trial, plaintiffs appealed.

The Minneapolis Trust Company, as trustee, filed in the district court for Hennepin county its report of receipts and disbursements in connection with the sale of certain collateral held by it in trust. The La Salle National Bank, a creditor interested in the collateral, filed its exceptions to the report, which were adopted by certain other creditors.

Action in the district court for Hennepin county to enforce the double liability of defendant as a stockholder in the Citizen’s Bank. The cause was submitted to Elliott, J., on a stipulation of facts, and judgment was ordered in favor of defendant. From the judgment entered pursuant thereto, plaintiff appealed. The primary object of the statute in relation to the double liability of stockholders is the protection of the creditor.

Action in the district court for Ramsey county to determine adverse claims to real estate. The cause was tried before O. B. Lewis, J., and judgment was ordered for plaintiff. Defendant Clara H. Greene moved for a new trial, and from an order denying her motion she appealed. This court has uniformly given the recording act a most liberal construction in favor of the judgment creditor as against the holder of an unrecorded title.

Action in the district court for Houston county to recover permanent alimony. Defendant demurred to the complaint on all of the statutory grounds, except a defect of parties, and from an order, Whytock, J., sustaining the demurrer, plaintiff appealed.

Action in the district court for Swift county against defendant railway companies to enjoin the obstruction of an alleged public street. The cause was tried before Powers, J., without a jury, and judgment was ordered in plaintiff’s favor. From an order denying their motion for a new trial, defendants appealed. To constitute a common-law dedication there must be an intent to dedicate the land for a public highway on the part of the owner, and an acceptance by the public.

Action in the district court for Hennepin county to recover $3,000 on a benefit certificate. The cause was tried before Jamison, J., without a jury; but after the resignation of that judge the cause was submitted to McGee, J., on a deposition and the stenographer’s report of the evidence. The court found in favor of defendant, and from a judgment entered in pursuance of the findings plaintiff appealed.

Action in the district court for Hennepin county by plaintiff, as assignee of William A. McLeod, insolvent, against the Minneapolis Tailoring & Manufacturing Company, William A. McLeod, Frederick S. Pratt and Benjamin F. Ellison to set aside an alleged fraudulent sale of personal property, and to recover the value of said property, alleged to be $10,000.

Appeal by defendant from an order of the district court for Hennepin county, McGee, J., denying his motion for a new trial after an order for judgment in favor of plaintiff for $11,165.44.

The city comptroller of Duluth having applied to the district court for St. Louis county to enforce a delinquent assessment for street grading, judgments by default for certain instalments of the assessment were rendered against a certain lot owned by Condace J. Miles. The owner then appeared specially and moved the court to vacate these judgments, and from an order, Cant, J., denying the motion, she appealed.

Action in the district court for Waseca county by the executors of the will of Amasa Woolson, deceased, against Austin F. Kelley and his wife and others to cancel a satisfaction of mortgage and to foreclose the mortgage. By agreement the venue was changed to Hennepin county, and the cause was submitted to McGee, J., on an agreed statement of facts, who ordered judgment in favor of plaintiffs.

Action in the district court for Hennepin county by plaintiff, as a judgment creditor of the Minneapolis & St. Louis Railway Company, to enforce the double liability of the stockholders in that company. The cause was submitted to Belden, J., on an agreed statement of facts, and judgment was ordered in favor of plaintiff. Defendants’ motion for a new trial was denied, Smith, Elliott, Simpson, JJ.

Petition in the supreme court b'y Alonzo Phillips against Matthew Gallagher and William E. Gooding, president and secretary of the Democratic county convention for Hennepin county, and Martin Whitcomb, for an order to compel Gallagher and Gooding to issue to petitioner a certificate of nomination by the convention to the office of sheriff of Hennepin county, or to show cause why petitioner should not have such relief.