Volume 74 — Minnesota Reports

Action in the municipal court for the city of Duluth to recover $89.60, a balance alleged to be due on account of merchandise sold and delivered by plaintiffs to defendant. The cause was tried before Gearhart, Special Judge, without a jury, and judgment was ordered in favor of plaintiffs for $30.85. From an order denying defendant’s motion for a new trial, and from the judgment, defendant appealed.

<p>Discretion of Court — Order Vacating Judgment.</p> <p>Held, tbat the order of the trial court vacating the judgment herein as to the defendant sheriff, and permitting him to answer, was not an abuse of its discretion.</p> <p>Attachment against Nonresident Defendants — Judgment by Default —Error to Vacate the Judgment and Dismiss the Action.</p> <p>The plaintiff caused property within the jurisdiction of the court to be seized, as the property of the nonresident defendants herein, by virtue of a writ of attachment duly issued against them. Service of the summons was thereafter made upon them by publication, and judgment entered against them for want of an answer. Thereupon they moved the trial court to vacate the judgment and dismiss the action, upon affidavits denying that they had any interest in the property. The court made its order granting the motion. Held, that it was error.</p>

Lucas Kells, as assignee of N. P. Clarke & Co., insolvents, offered at public auction certain pine lands belonging to the insolvent estate. There being no bids received, he negotiated a sale thereof for $36,500 to the Brainerd Lumber Company, subject to the approval of the court.

George W. Higgins, A. H. Gilmore, Archibald A. Stone, Delbert U. Weld and Daniel W. Doty petitioned the supreme court for an order requiring the respondent Berg, as secretary of state, to place the names of petitioners, as candidates of the Prohibition party for the offices of governor, lieutenant governor, secretary of state, state auditor and attorney general, respectively, in the second place in the list of candidates for each office instead of in the third place in such…

Action in the district court for Dodge county to enjoin the foreclosure of a mortgage, and to cancel the mortgage of record. The cause was tried before Buckham, J., without a jury, and judgment was ordered for plaintiff. The motion of defendant Perkins for a new trial was denied, and judgment was entered in favor of plaintiff. From the judgment, defendant Perkins appealed.

<p>Findings — Goods Furnished Defendant — Labor Performed for Defendant-Insufficient to Sustain Judgment.</p> <p>In an action brought to recover for goods sold and delivered, and for labor performed, findings of fact that plaintiff “furnished” the goods to defendant, and “performed” the labor for him, — the value thereof also being found, — are insufficient to sustain a judgment for such value in plaintiff’s favor.</p>

Action in the district court for Otter Tail county by plaintiffs, in their own behalf and in behalf of all other creditors of the defendant City Power Company, to enforce the individual liability of the stockholders in that company. Defendants A. T. Rand, C. D. Wright, Elmer E. Adams, Samuel Hill, Anna E. Hill, and C. W. Ames demurred to the complaint on the ground that it failed to state a cause of action.

Action in the district court for Cook county by a taxpayer therein to enjoin defendant board from issuing certain county bonds. The cause was tried before Ensign, J., without a jury; and judgment was ordered for defendant. From the judgment entered in pursuance of the order, plaintiff appealed.

Action in the district court for Kandiyohi county to foreclose a mechanic’s lien. The cause was tried before Powers, J., without ■a jury, and judgment was ordered in favor of defendants. From an order denying plaintiff’s motion for a new trial, it appealed.

Action in the district court for St. Louis county to set aside the foreclosure of a mortgage. The cause was tried before Moer, J., without a jury, and judgment was ordered for defendant. Plaintiff’s motion for additional findings was denied, and judgment was entered against him. From the judgment plaintiff appealed.

Action in the district court for Big Stone county to recover $1,020 on three promissory notes. Defendant I. Y. Sherman alone answered. The cause was tried before C. L. Brown, J., and a jury. There was a verdict in favor of defendant, and from an order denying their motion for a new trial, plaintiffs appealed.

Action in the district court for Rice county. The cause was tried before Buckham, J., and a jury, and a verdict was rendered in favor of defendant. From an order denying his motion for a new trial, plaintiff appealed. Defendant having proved the relation of the parties, as she was entitled to do, the burden was shifted, and plaintiff could meet the situation only by positive proof of an express promise or circumstances equivalent.

Action in the district court for Sibley county to partition certain real estate. The cause was tried before Cadwell, J., without a jury, and the court found that defendant Frank Flannery was the owner in fee of the premises. From an order denying plaintiff’s motion for a new trial, she appealed. The will confers upon the trustee of the power no power to distribute the real estate in such manner or proportion as she may think proper.

Action in the district court for Kittson county to recover $200. The cause was tried before Ives, J., and a jury, and a verdict was returned in favor of defendants. From a judgment entered on the verdict, plaintiff appealed. Authority to collect for plaintiff, and, in the course of collections to receive bank checks payable to the order of plaintiff, did not carry with it authority to the agent to indorse the checks. Mechem, Ag. § 382; 1 Daniel, Neg.

Action in the municipal court of Ortonville to recover $65, the value of a wagon owned by plaintiff alleged to have been wrongfully converted by defendant. Judgment was rendered in favor of defendant, and plaintiff appealed to the district.court for Big Stone county on questions of law alone. The court, C. L. Brown, J., ordered that the judgment of the municipal court be reversed, and that plaintiff recover the sum prayed for in his complaint.

Action in the district court for Ramsey county to recover $3,000 for personal injuries sustained by plaintiff, a boy eight years and four months old. The cause was tried before Bunn, J., and a jury, and a verdict of $750 was returned in favor of plaintiff. From an order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial, it appealed.

Action in the district court for Marshall county. The facts and the pleadings are described in the opinion. From an order, Ives, J., overruling the demurrer of the garnishee Brown to the complaint of the intervenors Meehan, the garnishee appealed.

Petition in the supreme court to compel respondent, as county auditor for Cass county, to place petitioner’s name on the official ballot as a candidate for county commissioner, or to show cause why this should not be done.

Action in the district court for Blue Earth county by the assignee in insolvency of Oscar Cassidy to recover $16,000, the value of certain meats conveyed, and of payments made, in violation of the insolvency law of the state. Plaintiff, as receiver of said insolvent, was subsequently substituted for the assignee. The cause was tried before Cadwell, J., without a jury.

Action in the district court for Waseca county to declare an assessment levied by defendant corporation on its members, invalid, to remove the individual defendants as officers of the corporation, and to have a receiver of its property appointed.

Action in the district court for Nobles county to set aside a foreclosure by advertisement, and to cancel the same of record. From an order, P. E. Brown, J., sustaining a demurrer to the complaint on the ground that it fails to state a cause of action, plaintiff appealed.

Appeal by defendant from a judgment of the municipal court of St. Paul for $18.96 in favor of plaintiff, entered upon the pleadings pursuant to the order of Orr, J. Where the demised premises become untenantable through a cause within the exclusive control of the landlord, the latter’s refusal to remove said cause, upon reasonable notice, will amount to constructive eviction.

Appeal by William Deering & Co. from an order of the district court for Hennepin county, Simpson, J., denying its motion for an order requiring A. E. Randall, sheriff of Big Stone county, to pay to it, or its attorney, the amount of the judgment entered in its favor against defendant Thomas F. Burke ($108.42), with interest and costs thereon, and the costs of the proceeding.

Action in the municipal court of St. Paul to recover .$38 for servicés rendered and disbursements incurred by plaintiff as an attorney at law. The cause was tried before- Orr, J., without'a jury, and judgment was ordered for defendant. From an order denying plaintiff’s motion for a new trial, lie appealed.

Action in the district court for Morrison county to recover $10,000 for an alleged libel. Tbe cause was tried before Searle, J., and a jury, and a verdict was returned in defendant’s favor. From an order denying plaintiffs motion for a new trial, he appealed. We contend upon this appeal, as we did before the trial court, that the article complained of is libelous per se, and that the court should so have instructed the jury.

Action in the district court for Grant county by plaintiff, as administrator of the estate of Peter G. Westling, deceased, to recover $85 on a promissory note executed and delivered by defendant to plaintiff’s intestate.

Action in the district court for Kandiyohi county to recover $3,500 for an alleged malicious prosecution. The cause was tried before Powers, J., and a jury, which returned a'verdict of $150 in favor of plaintiff. From an order denying defendant’s motion for a new trial, he appealed. One who merely states the facts to the prosecuting attorney, who procures the finding of an indictment by the grand-jury, is not liable as for a malicious prosecution.

In the matter, of the receivership of the City Bank pending in the district court for Hennepin county, Isaac C. Seeley filed an intervening complaint, alleging that he was a creditor of the bank in the sum of $3,895 for breach of covenant to pay rent in a lease executed by the bank. Seeley also filed a similar complaint in intervention in an action brought to enforce the individual liability of the stockholders of the bank.

Action in the district court for St. Louis county to restrain the common council and other officials of the city .of Duluth from issuing the bonds of the city for the purpose of obtaining money with which to extend the waterworks of the city. From an order, Ensign, J., overruling plaintiff’s demurrer to the answer, he appealed.

Action in the district court for Wabasha county to enjoin defendants from acting as trustees of a school district. The cause was submitted to the court, Snow, J., upon an agreed statement of facts, and judgment was ordered in favor of plaintiffs. From the judgment entered pursuant to the order, defendants appealed..

Action in the district court for Scott county to recover $319.25, the amount alleged to be due on three several promissory notes executed by defendant Cassellius and guarantied by defendant Fred. Habegger. The complaint alleged that the consideration for these notes was a corn husker sold by plaintiff to defendant Cassellius.

Petition in the supreme court by W. H. White for an order directing S. 0. Sanderson, as county auditor of Olmsted county, to receive and file petitioner’s certificate of nomination to the office of probate judge of that county, and to print petitioner’s name on the official ballot as candidate for said office, or to show cause why he should not do so.

Action in the district court for St. Louis county to quiet title to certain real estate. The cause was tried before .Moer, J., without a jury, and judgment was ordered in favor of plaintiff. From the judgment entered pursuant to the order, defendant Peterson appealed.

Action in the district court for Polk county to recover the possession of a quantity of grain alleged to be of the value of $2,230, and $500 damages for its detention. The cause was submitted to the court, Ives, J., on an agreed statement of facts, and judgment was ordered in favor of plaintiff for the possession of the grain. From the judgment entered pursuant to the order, defendant appealed.

Action in the district court for Wright county to have plaintiffs declared the owners of certain land, and to correct a mistake as to grantees in the patent therefor issued by the federal government. Defendants demurred to the complaint on the ground that it failed to state a cause of action. From an order, Tarbox, J., overruling the demurrer, defendants appealed.

Action in the district court for Polk county to recover $2,000 for the alleged malicious prosecution of a civil action. The cause was tried before Ives, J., and a jury, and a verdict for $1,500 was returned in favor of plaintiff. From an order denying defendant’s motion for a new trial, it appealed. The proper venue was Hennepin county, where defendant had its place of business, and not Polk county.

Action in the district court for Ramsey county to recover $14,400 damages for alleged malpractice by defendant, a physician and surgeon. Tbe cause was tried before Bunn, J., and a jury, and a verdict for $1,800 was returned in favor of plaintiff. From the judgment entered on the verdict, defendant appealed. The instructions as to the weight of expert testimony are susceptible of no other construction than that tbe jury are not bound by expert testimony.

<p>Bank — Deposit as Collateral Security — Finding Sustained by Evidence.</p> <p>Evidence considered, and held sufficient to sustain the finding of the trial court to the effect that a deposit made by plaintiff with the defendant was to secure it for any money loaned to the plaintiff’s manager on any paper discounted by the defendant for him.</p>

Action in the district court for St. Louis county to recover $2,500 damages for personal injuries alleged to have been sustained because of a defective sidewalk. The cause came on for trial before Cant, J., and a jury, and defendant objected to the introduction of any testimony on the ground that the complaint failed to state a cause of action. The motion was granted, and the case was dismissed. From an order denying plaintiff’s motion for a new trial, she appealed.

Petition in the probate court for Houston county for the appointment of a guardian for Simon Doyle, alleged to be incompetent to manage his property. From an order denying the petition, petitioner appealed to the district court for Houston county, where the cause was tried de novo before Whytock, J., without a jury. Judgment was ordered in favor of defendant, and from an order denying petitioner’s motion for a new trial he appealed.

Action in the district court for Ramsey county to recover $1,000 for personal injuries. The cause was tried before O. B. Lewis, J., and a jury, and a verdict for $1,000 was returned in favor of plaintiff. From an order denying defendant’s motion for judgment-baits favor notwithstanding the verdict, and denying its motion for a new trial, defendant appealed. Respondent was employed to repair and replace the wooden poles, and he therefore assumed the risks incident to defects.

Complaints in the municipal court for Minneapolis for obstructing sidewalks in tbe city of Minneapolis. The causes were tried separately before W. A. Kerr, J., without a jury, and defendants were convicted. From orders denying their separate motions for a new trial, defendants severally appealed.

Action in the district court for Ramsey county for the rescission of a contract for the sale of land, and to recover $800, part of which sum plaintiff had paid under said contract, and for part of which he had become liable under the contract. The cause was tried before Bunn, J., and a jury, and a verdict was directed in favor of defendants. From an order denying plaintiff’s motion for a new trial, he appealed.

Action in the district court for Wabasha county to annul the charter of the Merchants Bank of Lake City. A creditor of the bank thereupon filed an intervening complaint, in his own behalf and in behalf of all other creditors, to enforce the double liability of the stockholders in said bank.

Writ of certiorari to the district court for Bamsey county, to review an order of said court, Brill, Kelly and Otis, JJ., ordering the county auditor of said county to strike from the official county ballot about to be printed and voted at the ensuing general election the names of Otto K. Sauer and others, candidates for the offices of sheriff, county surveyor, clerk of the district court, register of deeds, judge of probate, county treasurer and county auditor respectively,…

On Reargument. January 30,1899. Action in the district court for Morrison county by plaintiff in behalf of himself and all other taxpayers of defendant city against the city of Little Falls, its mayor, clerk, treasurer, the members of its common council and the Little Falls Electric & Water Company to enjoin the city and its officers from continuing to carry out the provisions of a certain ordinance.

Action in the district court for Morrison county. By the sixth cause of action set forth in the complaint plaintiff sought to recover the sum of $106, the amount of taxes for the year 1895, which had been levied and assessed on its waterworks for city purposes alone and which it had paid. From an order, Baxter and Searle, JJ., overruling its demurrer to the complaint, as to the sixth cause of action, defendant appealed.

Action in the municipal court of Duluth to recover $500 damages, on the ground that plaintiff, a colored man, was refused the privileges of defendant’s saloon, and was discriminated against on account of his color. The case was tried before Edson, J., and a jury, which rendered a verdict in favor of plaintiff in the sum of $25. From an order denying a motion for a new trial, defendant appealed.

<p>Receiver — Contract for Management of Trust Estate Void.</p> <p>An agreement by a receiver, appointed by the court, to turn over to another the control and management of the property and business intrusted to his charge, is void. He cannot thus abdicate his powers, or tie himself up in the performance of his official duties.</p> <p>Receiver is a Trustee for All Interests.</p> <p>A receiver occupies a fiduciary relation, and is trustee for all parties interested in the property intrusted to his charge by the court, and cannot exercise his powers for the individual benefit of himself or any third party.</p> <p>Same — Purchase of Certificate of Sale upon Foreclosure — Redemption-Election.</p> <p>Held, upon the facts pleaded, that a purchase by the receiver in his own name of a certificate of sale on foreclosure of the property which was the subject of the receivership will, at the election of the parties interested in the property, be deemed a redemption for their benefit, and the title thus acquired to be held by him in trust for them, subject to his right to-be reimbursed for any advances.</p>

Action in the district court for Polk county to recover $1,850 damages for injury to plaintiff’s dam. From an order, Ives, J., overruling a demurrer to the complaint, defendants appealed.

Action in the district court for Ramsey county to set aside an attachment and to restrain defendant from proceeding thereunder.

Action in the district court for Clay county to recover $870, the proceeds of the sale of a car load of wheat. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of plaintiffs in the sum of $382.62. The court denied a motion for a new trial, and from a judgment entered upon the verdict defendant appealed.

Action in the district court for Blue Earth county to recover $2,604 damages for breach of contract. The case was tried before Severance, J., and a jury, which rendered a verdict in favor of defendant in the sum of $1,500. From an order denying a motion for a new trial defendant appealed.

Action in the district court for Freeborn county to abate a dam and to recover damages for overflowing plaintiff's land. A der murrer to the complaint having been sustained by Buckham, J., judgment was entered in favor of defendant, and plaintiff appealed therefrom. The action was one of six, in which the complaints were the same, save as to the names of plaintiffs, the description of the lands and the amount of damages, and in which identical demurrers were sustained.

Action in the district court for St. Louis county to determine adverse claims to real estate. Service of the summons was made on defendant, who was a nonresident, by publication, and an answer was interposed which purported to be made in his behalf. Thomas Martin intervened. The case was tried before Cant, J., who on the issues between plaintiff and defendant found in favor of plaintiff, and on the issues between the intervenor and defendant found in favor of the intervenor.

Action in the district court for Swift county to enjoin defendants from redeeming under a void-judgment from a mortgage foreclosure sale.

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

Habeas corpus. From an order of the district court for St. Louis county, Ensign, J., quashing the writ and remanding the relator to the custody of the keeper of the common jail of said county, relator appealed.

Action in the district court for Polk county to recover $20,400. The case was tried before Ives, J., and a jury, which rendered a verdict in favor of plaintiff for $2,000. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, defendant appealed.

Action before a justice of the peace to recover on a promissory note. The justice rendered judgment in favor of defendant, and plaintiff appealed on questions of law alone to the district court for Clay county. The district court, Baxter, J., reversed the judgment, and from an order denying a motion for a new trial, defendant appealed.

<p>Appeal by plaintiff from an ■ order of the municipal court of Duluth, Edson, J., sustaining a demurrer to the complaint.</p>

Defendants John Grimes, Thomas Murphy and Eugene D. Farrell were convicted, in the municipal court of Minneapolis of keeping a gambling house. The case was tried before Holt, J., without a jury. From an order denying a motion for a new trial, defendants appealed.

Action in the district court for Ramsey county to recover $2,560, as damages for breach of contract. At the close of plaintiff’s case, the court, O. B. Lewis, J., granted the motion of defendant to dismiss the action, to which plaintiff excepted. From an order denying a motion for a new trial, made on the grounds that the decision was not justified by the evidence and was contrary to law, and of errors occurring at the trial and excepted to at the time, plaintiff appealed.

Petition in the district court for Ramsey county by James A. Owens, receiver in the above entitled action, praying that plaintiff be required to pay him the amount of his fees and disbursements. From an order, Otis, J., adjudging the amount, and directing plaintiff to pay the same to petitioner, or to show cause why its officers should not be adjudged guilty of contempt, plaintiff appealed. Plaintiff was not in esse, and hence the court had no jurisdiction.

Appeal by defendants from an order of the district court for Blue Earth county, Quinn, J., denying a motion for a new trial. In order to be within the platted or laid-out portions of a city or town, within Gr. S. 1894, § 5521, the land itself must be-platted or the owner must have done acts equivalent to laying out 'or platting. Mintzer v. St. Paul T. Co., 45 Minn. 323; Baldwin v: Bobinson, 39 Minn. 244. It must be platted into lots.

Appeal by defendants from an order of the district court for Sibley county, Cadwell, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $105.67.

Appeal by defendant Meighen from an order of the district court for Bock county, P. E. Brown, J., overruling a demurrer to the complaint. As to property rights, debts and dealings with each other and third parties, husband and wife are independent of each other, except as to dealings in lands, one with the other. They are not liable for each other’s debts, and a wife may buy her husband’s property at execution or foreclosure sale. G-.

Appeal by defendants from a judgment of the municipal court of St. Paul, in favor of plaintiffs, entered pursuant to the findings and order of Twohy, J.

Appeal by defendant from an order of the district court for Pine county, Crosby, J., denying the petition of defendant to set aside á judgment and execution sale, and to require plaintiff to accept defendant’s tender of the amount of the judgment and costs.

Action in tbe district court for Benton county to recover $5,000 for breach of covenant. A demurrer to the complaint having been sustained by the court, D. B. Smith, J., judgment was entered in favor of defendant, from which plaintiff appealed.

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

Defendant was indicted in the district court for Polk county for the crime of selling intoxicating liquor to a minor. The case was tried before Ives, J., and a jury, which rendered a verdict of guilty. From the judgment and sentence imposed, defendant appealed.

Action in the district court for Redwood county by the executors of the estate of Henry G. Abbott, deceased, for the specific performance of an executory contract for the sale of land and to enforce a vendor’s lien. Defendants set up that the contract was rescinded by mutual consent of the parties thereto and prayed for the cancellation of the contract and purchase-money notes given in pursuance thereof. The other material facts are stated in the opinion.

Appeal by defendant from an order of the municipal court of St. Paul, Orr, J., denying a motion to set aside the return of a constable and a judgment rendered by a justice of the peace. Jurisdiction over the subject-matter can be acquired only in the manner pointed out by law.

From an order of the district court for St. Louis county, Cant, J., granting plaintiff’s motion for an order of payment of certain money, and denying defendant assignee’s counter motion to amend a judgment, defendant assignee appealed. ' This case is to he distinguished from Weston v. Watts, 45 Hun, 219, as in that case the appointment of the receiver was without jurisdiction and void.

From an order of the district court for Hennepin county, Simpson, J., denying a new trial after a verdict of $2,500 in favor of plaintiff, defendant appealed. Where the application for insurance is, by the express terms of the policy, made a part thereof, such application becomes a part of the insurance contract so far as any questions may arise out of it. Fitzpatrick v. Hartford, 56 Conn. 116; Brady v. United Life Ins. Assn., 60 Fed. 727; Price v. Phoenix Mut. Life Ins.

Action in the district court for Ramsey county against Maurice B. Hartmann and Amozine V. Hartmann, Edward Sephton and Gust Larson. From a judgment entered against Amozine V. Hartmann for $123.68, pursuant to an order and findings of Willis, J., she appealed.

Appeal by defendant from an order of the. district court for Norman county, Ives, J., denying a motion for a new trial. Any circumstance which tends to overcome or lessen the presumption of malice should be considered in mitigation of damages. Eviston v. Cramer, 54 Wis. 220; Marks v. Baker, 28 Minn. 162; Newell, Defam. 883. Punitive damages cannot be awarded in an action for libel, unless defendant has been actuated by malice.

Action in the district court for Stearns county to recover $204.75. From an order, Searle, J., denying a motion for a new trial, after a verdict for defendant, plaintiff appealed. In a suit brought by a foreign corporation it is not necessary for the plaintiff either to allege or to prove a compliance with the law which permits such foreign corporation to do business within the state. Noncompliance is a matter of defense.

From an order of the municipal court of St. Paul, Twohy, J., denying a new trial, after findings and order for judgment in favor of plaintiff for $100, defendant appealed.

Action in replevin in the district court for Todd county to recover possession of an engine, water tank and drive belt. Plaintiff claimed as assignee of a chattel mortgage upon the property given to secure three promissory notes of $200 each, and drawing 12 per cent, interest. Defendant contended that said notes and mortgage were usurious and void. From an order denying a new trial, after a judgment for defendant entered pursuant to findings by Baxter, J., plaintiff appealed.

<p>Appeal by plaintiff from an order of the municipal court of Minneapolis, Holt, J., denying a motion for a new trial.</p> <p>Purchasing subject to the mortgage estops the vendee from denying its validity. Johnson v. Thompson, 129 Mass. 398; Freeman v. Auld, 44 N. Y. 50; Alt v. Banholzer, 36 Minn. 57; Moffett v. Parker, 71 Minn. 139; Calkins v. Copley, 29 Minn. 471. See also Tolbert v. Horton, 31 Minn. 518; Stevens v. McMillin, 37 Minn. 509. The assignee having elected to treat the mortgage as a valid lien, it stands good as between the parties to it. Freeland v. Freeland, 102 Mass. 475; Tuite v. Stevens, 98 Mass. 307; Bean v. Brackett, 34 N. H. 102; Taylor v. Taylor, 74 Me. 582. The purchaser at an assignee’s sale in insolvency proceedings cannot avoid the mortgage placed upon the property, before the assignment by the insolvent debtor, upon the ground of fraud or want of consideration in the inception of the mortgage. New Prague Milling Co. v. Schreiner, 70 Minn. 125.</p> <p>A purchaser from an assignee of an insolvent may contest a mortgage given by the insolvent and void for want of proper filing. Shay v. Security Bank, 67 Minn. 287.</p>

From an order of the district court for Blue Earth county, Severance, J., denying a new trial, after a verdict that plaintiff was entitled to $150 damages by reason of the laying out of a highway across his land, plaintiff appealed. The statutory notice for the hearing of a road petition is jurisdictional. Town of Lyle v. Chicago, M. & St. P. Ry. Co., 55 Minn. 223; G. S. 1894, §§ 1808, 1809.

From an order of the district court for Hennepin county, Lancaster, J., denying a motion for a new trial after directing a verdict for defendant, plaintiff appealed. Taxes paid after the foreclosure sale cannot be retained out of the proceeds of the sale, and the mortgagor or his assigns may recover them. See Truesdale v. Sidle, 65 Minn. 315; Gorham v. Nat. Life Ins. Co., 62 Minn. 327; Wyatt v. Quimby, 65 Minn. 537; Hamel v. Corbin, 69 Minn. 223;.

From an order of the district court for Hennepin county, Lancaster, J., denying a motion for a new trial after directing a verdict for defendant, plaintiff appealed. This being virtually a suit to foreclose the second mortgage, it is absolutely essential that the debt be proven, especially when the execution of the note and mortgage is denied. See Ward v. Mun-son, 105 Mich. 647, and cases cited; Boone, Mort. § 204; Franklin v. Van Cott, 11 Paige, 129; Wiltsie, Mort. § 755.

Action in the district court for Wright county to determine adverse claims to real estate. The case was tried in November, 1896. The findings and order for judgment in favor of plaintiff were filed by Smith, J., of the fourth judicial district on June 4, 1897, after the passage of Laws 1897, c. 379, transferring Wright county from the fourth to the eighteenth judicial district.

On Reargument. January 20, 1899. Action in the district court for St. Louis county by plaintiff, as assignee of the American Loan & Trust Company, to recover balance due on a promissory note given by defendant for tbe purchase price of capital stock in that company. The case was tried before Ensign, J., without a jury, who ordered judgment in favor of plaintiff for |8,142.18. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Ramsey county to recover $26,700 for personal injuries suffered by plaintiff. From an order, Bunn, J., denying a motion for a new trial after directing a verdict for defendant, plaintiff appealed.

Action in ejectment in the district court for Sherburne county. The case was submitted upon an agreed statement of facts, which was adopted by the findings. From a judgment for defendants entered pursuant to an order of Lancaster, J., plaintiffs appealed. Const, art. 1, § 12, confers the right to sell the homestead for any debt that is contracted for its improvement, but does not point out the way in which it shall be sold.

Mandamus. Alternative writ from the district court for Ramsey county to John Copeland, Philip C. Justus, Ernest L. Mabon and Robert N. Hare, as members of the board of public works of the city of St. Paul, and James W. Smith, requiring them to remove said James W. Smith from the office of deputy clerk of said board and to appoint relator to that position. From an order, Willis, J., allowing a peremptory writ, respondents appealed.

Defendant was arrested and tried in the municipal court of Minneapolis for keeping open a barber shop on Sunday. He objected to the introduction of testimony under the complaint on the ground that it did not charge a crime under the laws of the state of Minnesota, and that the law upon which the charge was made contravenes the state and federal constitutions. He was convicted and fined ten dollars. From an order, W. A. Kerr, J., denying a new trial, defendant appealed.

Defendant was indicted and found guilty by a jury of keeping his saloon open after 11 o’clock at night. From an order of the district court for Polk county, Ives, J., denying a motion to set aside the verdict and grant a new trial, defendant appealed. It was the absolute duty of the state, in order to sustain a conviction, to prove beyond a reasonable doubt that the defendant kept his saloon open after 11 o’clock p. m. See 2 Bishop, Or.

Defendant was indicted and found guilty by a jury of keeping his saloon open after 11 o’clock at night. From a judgment of the district court for Polk county, Ives, J., sentencing him to pay a fine of $25 and costs, defendant appealed. Defendant had a right to have his saloon open after 11 o’clock, inasmuch as the saloon was part of his hotel. State v. Jarvis, 67 Minn. 10; G. S. 1894, § 2012.

Action on a life insurance policy. From an order of the district court for Ramsey county, Brill, J., denying a motion for a new trial after dismissing the action, plaintiff appealed. On September 16, 1895, the defendant issued a policy of insurance on the life of William Banholzer for $20,000, payable, in the alternative, either to himself in the year 1915, or, in case of his death prior to that time, to his wife, Louisa Banholzer, the plaintiff and appellant herein.

From a judgment of the district court for Norman county, entered pursuant to the order of Ives, J., affirming a judgment of a justice of the peace in favor of plaintiffs, defendant appealed. A justice’s docket cannot be altered after it is made up and signed. Weaver v. Lamm on, 62 Mich. 366; Kluck v. Murphy, 115 Mich. 128; Sloss v. Bailey, 104 Iowa, 696. The jurisdiction of Justice Holm must be shown by the transfer.

Petition in the district court for Hennepin county by William S. Dwinnell for a reasonable allowance as attorney's fee, and disbursements, for services rendered by him in proceedings to enforce the liability of stockholders in the insolvent Northern Trust Company.

Defendant was indicted and found guilty by a jury of the crime of perjury. From an order of the district court for Hennepin county, McGee, J., denying a motion for a new trial, defendant appealed.

Action in the district court tor Morrison county to recover $1,150 damages for the overflow of plaintiff’s land by reason of the construction of certain piers and booms by the defendant. The other facts are stated in the opinion. Plaintiff had a verdict for the sum of $875. From an order, Searle, J., denying a motion for a new trial, defendant appealed.

In the district court for Ramsey county plaintiff filed its petition against defendants, as the receivers of the Bank of Minnesota. The petition was denied on June 10, 1898. The motion of plaintiff for a new trial was also denied on July 27, 1898, and on the same day plaintiff appealed from the order denying a new trial.

Action in the district court for Meeker county to restrain the foreclosure of a mortgage. The case was tried before Power, J., and a jury, which returned a special verdict, and judgment was ordered in favor of plaintiff against defendant loan and trust company, for $1,400, and interest. From an order denying a new trial, defendant trust company appealed.

From an order of the district court for Norman county, Ives, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $300, defendant appealed. The court erred in allowing plaintiff to give his opinion as to the practicability or possibility of performing the work in which he was engaged, without being warned by the man who worked and operated the track jack. See Couch v. Charlotte, 22 So.

From an order of the district court for Hennepin county, Lancaster, J., denying a motion for a new trial after a verdict for plaintiff, defendant appealed.

Action in the district court for Ramsey county against James Johnston and John Howe, copartners, to recover $911.22 for work and labor performed. On October 14, 1895, summons in garnishment was served upon the St. Paul National Bank. After disclosure of the garnishee had been taken, the bank was made a party to the action and directed to answer the supplemental complaint against it.

In the district court for Ramsey county Bertram GL Leveroos was served with a summons in garnishment proceedings. A motion to dismiss the proceedings for the reasons mentioned in the opinion was denied. From an order, O. B. Lewis, J., directing judgment for $648.87 to be entered against said garnishee, Leveroos appealed. Two or more cannot be held as garnishees, unless the liability to the principal debtor is joint. Ball y. Young, 52 Mich. 476.

From an order of tbe district court for Hennepin county, Lancaster, J, denying a motion for a new trial after directing a verdict for defendant, plaintiff appealed. If the article is not libelous, G. S. 1894, § 5417, is not required for a defense. If the article is libelous, the statute prevents recovery of damages and thereby conflicts with the constitution. In brief, if the article causes no general damage, the statute is of no effect, for there is no cause of action.

From a judgment of the district court for Wright county, Tar-box, J., sentencing Ashley 0. Biggs, Jr., to hard labor in the state prison at Stillwater for three years, after a conviction for burglary, he appealed.

Defendant was convicted of selling intoxicating liquor to a minor. From a judgment of the district court for Polk county, Ives, J., sentencing defendant to pay a fine of $25, and costs, he appealed.

Action in the district court for Hennepin county against defendant, as assignee of the Vanstrum Supply House, an insolvent corporation of Minnesota, to recover possession of certain merchandise of the value of $1,373.48. At the trial before Elliott, J., a verdict was directed for defendant. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for St. Louis county to recover $7,565.24 for work and labor performed. The First National Bank of Duluth was garnished. From an order, Cant, J., discharging the garnishee, plaintiffs appealed. It is the duty of the claimant to appear and maintain its rights, and not that of the garnishee or of the court to maintain them for it without proper evidence. Smith v. Barclay, 54 Minn. 47: North Star B. & S. Co. y. Ladd, 32 Minn. 381.

<p>Action in the district court for Hennepin county in replevin against defendant, as assignee of the Vanstrum Supply House, an insolvent corporation, to recover merchandise of the valúe of $716.16. At the trial before Simpson, J., a verdict was directed, for defendant. From an order 'denying a motion for a new trial,, plaintiff appealed.</p>

Action in the municipal court of Minneapolis to recover $193.51, as damages for failure to deliver certain hay shipped in two consignments. From an order, W. A. Kerr, J., sustaining a demurrer to the complaint, plaintiff appealed. It is part of the contract for the carriage of goods by a common carrier to deliver them to the consignee. Hutchinson, Car. § 338; Story, Bailm.

Action in the district court for Ramsey county. At the trial before Otis, J., and a jury, plaintiff had a verdict for $8,025. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, defendant appealed. Under G-. S. 1894, § 5380, a party has a right to have the jury instructed that they may, in their discretion, render a special verdict, and a refusal to do so is error. See Adams v. Pollock, 12 Oh.

Action in the district court for St. Louis county, by the executrix and executor of George W. Norton, to foreclose a real estate mortgage upon which a balance of $32,188.65 was claimed to be due, and interest thereon at 8 per cent, from January 15, -1896.

<p>Taxes — Amount Assessed — Meaning of Figures — Dollars and Cents.</p> <p>The blank on which a certain record was written had a column headed “Dollars,” and another headed “Cts.” A red line separated these two columns, and the word “Cts.” was erased with a pen; “560” and “1860” were written with the last figure of each number to the right of the red line and the other figures to the left of it. Held, under the circumstances recited in the opinion, these numbers should be read $560 and $1,860, respectively, and not $56 and $186.</p>

Action in the district court for Ramsey county to restrain defendants, the auditor and treasurer, respectively, of that county from paying out of the county funds the additional compensation of $1,500 per annum allowed by Sp. Laws 1887, c. 376, as amended by Sp. Laws 1889, c. 129, to each of the judges of said county.

Appeal by plaintiff as administratrix of the estate of Catherine M. Ging, deceased, from an order of the district court for Hennepin county, McGee, J., denying a motion for a new trial.

Appeals by the defendants from a judgment in favor of plaintiffs for $14,056.12, entered October 23, 1897, and from an order, dated August 5, 1898, of the district court for Aitkin county, Holland, J., refusing to vacate the judgment and allow defendants to answer the amended complaint.

Upon Application for Reargument. December 23,1898. Appeal by plaintiff from an order of the district court for Le Sueur county, Cadwell, J., granting judgment to defendant notwithstanding a verdict for plaintiff.

Habeas corpus. The facts are given in the opinion. From an order of the district court for Ramsey county, Otis, J., denying relator’s petition and remanding him to the custody of the sheriff, he' appealed. A court-martial is a court of special and limited jurisdiction. The facts necessary to show its jurisdiction, and that its sentence is conformable to law, must be stated or appear positively, and not be left to be inferred.

From an order of the probate court for Hennepin county, disallowing the promissory note in suit as a claim against the estate of Elisha Rivenburgh, the claimant appealed to the district court for that county. From an order of the latter court, McGee, J., setting aside a verdict for plaintiff, and granting the motion of the administrators of the estate for a new trial, the claimant appealed.

Appeal by the defendant from the order of the district court for Waseca county, Buckham, J., denying its motion for a new trial. If a person is defrauded and intends to rescind his contract, he should do so immediately. Oakey v. Cook, 41 N. J. Eq. 350; Brown v. Mutual, 32 N. J. Eq. 809; Jennings v. Broughton, 5 De Gex, M. & G. 125. What is a reasonable time, when the facts are not disputed, is a question of law for the court. Learning v. Wise, 23 P. F. Smith (Pa.) 173.

Action in the district court for Hennepin county by the holders of three notes of the Minnehaha Driving Park Association against the Minneapolis Trust Company, and the other note holders of that association, for an accounting by the trust company. The facts are stated in the opinion. The cause was tried before Simpson, J., who ordered that the case be dismissed as against the Minneapolis Trust Company.