Volume 75 — Minnesota Reports

Action in the district court for Chisago county to determine adverse claims to real estate under tax sales. Defendant claimed title by virtue of a tax certificate dated October 12, 1893, under Laws 1893, c. 150. The cause was tried before Crosby, J., who ordered judgment for defendant. From the judgment entered in accordance with such order, plaintiffs appealed.

Helen Penstock and Ida Beard, daughters of Cyrus D. Hewitt, deceased, petitioned the probate court for Dodge county to except from the provisions of his will the 80-acre homestead which belonged to their father, and to apportion the homestead among all of his five children, share and share alike. The provisions of the will are given in the opinion.

The petition of the executor of the estate of May I. Dayton, deceased, for license to sell all her real estate for the payment of her debts was granted by the probate court for Ramsey county, Will-rich, J. The facts are stated in the opinion. Andrew E. Johnson, who had objected to the petition, appealed from the order of license to the district court for that county. The executor having died, the Minnesota.

Appeal by defendants from an order of the district court for Washington county, Crosby, J., denying their motion for a new trial after a verdict in favor of plaintiff. The effect of color of title, where an entry is made and possession taken and held in accordance with it, is to define the extent of the possession claimed. Washburn v. Cutter, 17 Minn. 335 (361); Sage v. Larson, 69 Minn. 122. All adverse possession is a trespass. Costello v. Edson, 44 Minn. 135.

From an order denying plaintiff’s motion to amend the findings, and from a judgment in favor of defendants, entered in the district court for St. Louis county in pursuance of an order of Moer, J., plaintiff appealed.

Appeal by defendant William Craig from a judgment in favor of plaintiff, entered in the district court for St. Louis county, pursuant to the order of Cant, J.

Action in the district court for Hennepin county to recover $102, the amount of the attorney’s fee and expenses of sale on foreclosure of mortgage by advertisement, on the ground that no affidavit of costs and disbursements of sale was filed within the statutory time.

Appeal by defendant from a judgment in favor of plaintiff for $392.33, entered in the district court for Hennepin county, pursuant to findings and order of Harrison, J. A lien upon the equity of redemption is also a lien upon any surplus of the foreclosure sale. Brown v. Crookston Agric. Assn., 34 Minn. 545; Ness v. Davidson, 49 Minn. 469; Fagan v. Peoples S. & L. Assn., 55 Minn. 437 ; 2 Jones, Mort. §§ 1687, 1688.

Appeal by defendant from an order of tbe district court for St. Louis county, Moer, J., denying a motion for a new trial, after a verdict for $2,500 in favor of plaintiff.

Separate appeals by defendants City of Minneapolis and F. W. Cappelen, city engineer of Minneapolis, from an order of the district court for Hennepin county, Lancaster, J., overruling their demurrers to the complaint.

Defendant was convicted in the district court for Hennepin county of grand larceny in the second degree, and sentenced, McGee, J., to imprisonment in the State Reformatory at St. Cloud. From the judgment, defendant appealed.

From an order of tbe district court for Ramsey county, Otis, J., denying plaintiff’s motion for a new trial, after directing a verdict for defendant, plaintiff appealed.

Action in the district court for Le Sueur county. The cause.was tried before Quinn, J., who ordered judgment for defendant. From the judgment entered in accordance therewith, plaintiff appealed.

Action in the district court for Carver county to cancel a satisfaction of mortgage, and the record thereof, and to foreclose the mortgage. The cause was tried before Cadwell, J., who ordered judgment in favor of defendants. From an order denying a motion for a new trial, plaintiff appealed.

Four children of John P. Jones, deceased, petitioned the probate court for the county of Blue Earth to set apart to them, and to Henry Jones, certain lands as the homestead of said deceased. The petition was granted, Torrey, J., and Henry Jones appealed to the district court for that county from the order granting the petition. In the district court the matter was tried, upon stipulated facts, before Severance, J., who reversed the order of the probate court.

Appeal by defendant from the order of the district court for Grant county, O. L. Brown, J., overruling its demurrer to the complaint.

Appeal by defendant from an order of the district court for Polk county, Ives, J., denying a motion for a new trial after a verdict for $7,500 in favor of plaintiff.

Action in the municipal court of Duluth to recover $400 upon a bank check for that amount, drawn by defendant upon the First National Bank of Grand Rapids, Wisconsin, and dated July 16, 1897. The other facts are stated in the opinion. The cause was tried before Edson, J., and a jury, which rendered a verdict for defendant. From a judgment in favor of defendant, plaintiff appealed.

Appeal by plaintiff from a judgment of the district court for Clay county, entered pursuant to an order for judgment on the pleadings, Baxter, J. The facts are stated in the opinion. The court will not review an order or decision on a partial presentation or disclosure of the case upon which such order or decision was made. Dow v. Northern Land & L. Co., 51 Minn. 326; Firth v. Brack, 64 Minn. 242.

Appeal by the plaintiff from a judgment of the district court for Wilkin county in favor of defendant, pursuant to the order of C. L. Brown, J. The naming of a place for the payment of a note does not make the owner of that place an agent to collect the note, or to receipt for the money. No power, authority or duty, is thereby conferred upon such person in reference to the note. 1 Daniel, Neg. Inst. § 326; Hills v. Place, 48 N. Y. 520; 1 Randolph, Com. Paper, § 125.

Action in the district court for Ramsey county to recover $900 for the unpaid portion of salary of William Church from November, 1895, to April, 1897, inclusive. The memorandum mentioned in the opinion was as follows: “This is to certify that I have this agreement and understanding with Wm.

Action in the district court for Ramsey county to recover $1,070.54, under the terms of the agreement mentioned in the opinion. The cause was tried before O. B. Lewis, J., without a jury, who ordered judgment in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for Ramsey county to recover $5,-808.59. After the decision upon the former appeal herein, 71 Minn. 81, the cause was tried before Bunn, J., who ordered judgment for defendants in the sum of $435.36, being the amount of the insolvent bank’s deposit with plaintiff, less the sum of $29,116.16 due to plaintiff from the insolvent bank, and less the sum of $5,808.59, the proceeds of collections made by defendants.

<p>Action in the district court for Stevens county to recover $391.25, for the conversion of 546 bushels of wheat by defendant. The cause was tried before C. L. Brown, J., and a jury, which rendered a verdict for $311.61 in favor of plaintiff." From an order denying a new trial, defendant appealed.</p>

Action in the district court for Hennepin county to recover $2,034.10. The cause was tried before Johnson, J., and a jury, which rendered a verdict for $213.01 in favor of plaintiff. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Wright county to recover $25,000 for personal injuries received by plaintiff while in the employ of defendant. The cause was tried before Tarbox, J., and a jury. At the close of plaintiff’s evidence, the defendant’s motion to dismiss the case was granted. From an order denying a motion for a new trial, plaintiff appealed.

Action in replevin in the district court for Hennepin county against the administratrix of Charles T. Allen, deceased. The cause was tried before Lancaster, J., without a jury, who ordered judgment in favor of plaintiff for the return of the property or for §220, if the same could not be delivered.- From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Marshall county to recover $103.50, the balance due on a promissory note. John G-illespie, Jr., was garnished. The board of county commissioners of Marshall county obtained leave to intervene as claimant to the property in the hands of the garnishee. Plaintiff demurred to the complaint in intervention. From an order, Ives, J., overruling the demurrer, plaintiff appealed.

From an order of the district court for Hénnepin county, Lancaster, J., denying a motion for a new trial, defendant appealed. The note in suit was given in payment of a then existing debt and therefore has a sufficient consideration. Holm v. Sandberg, 32 Minn. 427; Close v. Hodges, 44 Minn. 204; D. M. Osborne & Co. v. Doherty, 38 Minn. 430; 1 Daniel, Neg. Inst. §186.

Action to recover $2,500, the value of certain household goods destroyed by fire. From an order of the district court for Hennepin county, Johnson, J., sustaining a demurrer to the complaint, plaintiff appealed. When, in pursuance of an express power, a municipal corporation engages in business enterprises by which it becomes assimilated to private corporations, it is held strictly to the same liability as are private corporations and individuals.

From an order of the district court for Hennepin county, Simpson, J., denying a motion for a new trial, the claimant, George Ackerson, appealed.

From an order of the district court for Hennepin county, Simpson, J., denying a motion for a new trial after dismissing the action, plaintiff appealed.

Action by the assignee of Henry H. Bell, insolvent, in behalf of himself and all other creditors of the Masonic Temple Association of Duluth, insolvent, against the association and its shareholders to enforce the statutory liability of stockholders. Defendants Robert C. Ray, Caroline E. Ray and Marion Ray, were the devisees of James D. Ray, deceased, who at the time of his death was an owner and holder of certain shares of the stock of said association.

Action in replevin in the district court for Ramsey county against the assignee of Grisham & Winch to recover possession of four vehicles or, in lieu thereof, the sum of $905. The cause was tried before O. B. Lewis, J., and a jury. A verdict was directed in favor of plaintiff for two of the vehicles, and for a return to defendant of the other two.

Action in the district court for Hennepin county against Georgia A. Dewey and Andrew A. Hathaway, judgment creditors of one W. B. Clark, and the other defendants named below. The facts are stated in the opinion. Defendants Robert Webb, Fred W. Reed and Alonzo Phillips interposed separate demurrers to the complaint. From orders of the district court for Hennepin county, McGee, J., sustaining these demurrers, plaintiff appealed. Affirmed.

Action in the district court for Hennepin county to recover onebalf the value of a party wall. The cause was tried before Lancaster, J., without a jury, who ordered judgment in favor of plaintiff for $236.75. From an order denying a motion for a new trial, defendants appealed.

Action in the district court for Hennepin county to recover $1,950 for personal injuries received by plaintiff, while employed in the state of Wisconsin by defendant. From an order, Lancaster, The accident having occurred in Wisconsin, plaintiff’s right of , action depends upon the law of that state. What that law is, is a question of fact. Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11; Njus v. Chicago, M. & St. P. Ry.

Action in the district court for Ramsey county by the receivers of the Minnesota Savings Bank to recover $16,879.55 upon a promissory note. The cause was tried before O. B. Lewis, J., with a jury. The court directed a verdict in favor of plaintiffs against defendant Kittson for the sum of $19,817.66. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, defendant Kittson appealed.

Action in the district court for St. Louis county to recover $49,-513.90, upon a bond given to the county of St. Louis to secure the payment of county funds deposited in defendant bank. Defendants Joseph Sellwood and Frederick W. Paine, as sureties on the bond in suit, answered. The cause was tried before Moer, J., without a jury, who ordered judgment in favor of plaintiff. From an order denying a new trial, defendants Sellwood and Paine appealed.

<p>Action in the district court for Polk county to recover $240.60 for services rendered and expenses paid by plaintiff as attorney for defendant. The cause was tried in June, 1897, before Ives, J., and a jury, which rendered a verdict in favor of plaintiff for $90. On motion, of plaintiff a new trial was granted, and on the second trial the jury rendered a verdict in his favor for $97.22. Again the motion of the plaintiff for a new trial was granted, and on the third trial the jury rendered a verdict in favor of plaintiff for $190. From an order, Ivés, J.,,denying defendant’s motion for a new trial, defendant appealed.</p>

Petition by the South Park Foundry & Machine Company to the district court for Ramsey county in the matter of the receivership for the insolvent Bank of Minnesota. The receivers of the bank and the Chicago Great Western Railway Company were ordered to show cause why the petition should not be granted. The facts are given in the opinion. From an order, O. B. Lewis, J., granting petitioner’s application, the railway company appealed.

Action in the district court for Hennepin county to enjoin the foreclosure of a mortgage and obtain a decree that the same had been paid and satisfied. Defendant prayed for the foreclosure of the mortgage. The cause was tried before McGee, J., without a jury, who ordered judgment in favor of defendant for $400 and interest, and for a foreclosure of the mortgage. From an order denying a motion for a new trial, plaintiffs appealed.

Action in the district court for Ramsey county to recover from defendant bank, and the individual shareholding defendants, the sum of $7,517.47 deposited by plaintiff and other persons with the Minnesota Savings Bank. The cause was tried before Kelly, J., without a jury, who ordered judgment in favor of plaintiff against the defendant bank, but in favor of the individual defendants for costs. From the judgment entered in pursuance of such order, .plaintiff appealed.

From a judgment of tbe district court for Big Stone county in favor of plaintiff, entered-pursuant to the findings and order of C. L. Brown, J., defendant corporation appealed.

Action for $6,000 as damages done to plaintiff’s property by defendant in operating its street-car barn and switches. A verdict was rendered for defendant. From an order of the district court for Ramsey county, Bunn, J., denying a motion for a new trial, plaintiff appealed. The evidence in this case proved the existence of a nuisance within the meaning of G-. S. 1894, § 5881. See also Wood, Nuis. (2d Ed.) §§ 612, 617.

From an order of the district court for St. Louis county, Cant, J., denying a motion for a new trial, plaintiff appealed. Mortgagees are not “owners” as that term is used in the charter of the city of Duluth. St. Paul & S. C. E. Co. v. Matthews, 16 Minn. 303 (341); Parish v. Gdlmanton, 11 N. H. 293; Crane v. City, 36 N. J. Eq. 339. The existence, force and extent of assessment liens depend upon the statute creating them. Gause v. Bullard, 16 La.

From a judgment of tbe district-court for Polk county in favor of plaintiff for $821.57, entered pursuant to tbe findings and order of Ives, J., defendants Royem and Rapp appealed.

Action in the district court for Ramsey county by plaintiff, as trustee, to set aside an assignment of the sheriff’s certificate of sale upon foreclosure of the first mortgage, to have the lien of certain mortgages held by plaintiff declared superior to that of said sheriff’s certificate of sale, and to set aside the final decree and amended decree in the action to foreclose the first mortgage. The facts are stated in the opinion.

Action in the district court for Grant county against defendant sheriff to recover $2,000 for the conversion of certain merchandise. The cause was tried before C. L. Brown, J., and a jury, which rendered a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiffs appealed.

Action in the district court for Ramsey county to foreclose a mortgage and for the appointment of a receiver. From a judgment in favor of plaintiff, entered pursuant to the findings and order of Otis, J., defendant Cady appealed.

<p>From an order of the district court for Hennepin county, Simpson, J., denying a new trial, plaintiff appealed.</p>

Action in the district court for Ramsey county to foreclose a mortgage and to have the lien of it declared superior to the mortgage of Frances A. Mead. The cause was tried before O. B. Lewis, J., without a jury, who ordered judgment in favor of plaintiff and of Frances A. Mead for the foreclosure of their mortgages respectively. From an order denying a motion for a new trial, plaintiff appealed.

From an order of the municipal court of Duluth, Edson, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $103, defendant appealed.

Action in the district court for Blue Earth county for an injunction restraining defendant from taking possession of a strip of land for the purposes of its right of way. The cause was tried before. Severance, J., without a jury, who ordered judgment.in favor of plaintiff. From the judgment entered pursuant thereto, defendant appealed.

Action in the district court for Crow Wing county by the administratrix of Joseph A. Martin, deceased, to recover $5,000 for his death, alleged to have been caused through the malpractice of defendant. The cause was tried before Holland, J., and a jury, which rendered a verdict for $1,250 in favor of plaintiff. From an order denying a motion for a new trial, defendant appealed. The question of competency of an expert is one of fact for the court alone.

Action in the district court for Hennepin county to recover $2,100 for the conversion by defendant of plaintiff’s share of certain notes. The cause was tried before Lancaster, J., and a jury, which rendered a verdict in favor of plaintiff for $885. From an order denying a motion for a new trial, defendant appealed.

Action in tbe district court for Wilkin county to recover $1,500 upon an insurance policy. Tbe cause was tried before C. L. Brown, J., and a jury, wbicb rendered a verdict for $766.25 in favor of plaintiff. From an order denying a motion to enter judgment for defendant notwithstanding tbe verdict for plaintiff, defendant appealed.

From an order of the district court for Hennepin county, Smith, J., denying a motion for a new trial, defendant appealed. To constitute a delivery and acceptance of goods, within the meaning of the exceptions in the statute of frauds, something more than words is necessary. There must be Some act amounting to a transfer of the possession and ah acceptance thereof by the buyer.

From an order of the district court for St. Louis county, Moer, J., denying a motion for a new trial, defendants appealed.

Action in the district court for Hennepin county by the receiver of the Columbia National Bank, insolvent. From an order denying a motion for a new trial, Simpson, J., after ordering judgment in favor of plaintiff, defendant appealed.

From an order of the district court for Morrison county, Searle, J., denying a motion for a new trial, plaintiff appealed. It is a general and just rule that, when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss,- even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused, or contributed to, the misfortune.

From an order of the district court for Hennepin county, Smith, J., denying a motion for leave to file the claim described in the opinion, Gnnder B. Gunderson appealed. The notice provided for in G. S. 1894, § 5911, and required to be given to creditors is mandatory and exclusive.

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 upon promissory notes. At the trial the proceedings mentioned in the opinion were had. From an order, Elliott, J., denying a motion for a new trial, plaintiff appealed.

<p>Municipal Corporation — Local Assessment for Public Park.</p> <p>Held, while a public park is a general benefit to the whole city, it is also, as a general rule, á special benefit to the locality or part of the city in which it is established, and, to the extent that it is such a special benefit, the cost of it may be assessed on the property so specially benefited.</p> <p>City of St. Paul — Sp. Laws 1891, c. 35 — Benefits.</p> <p>Held, Sp. Laws 1891, c. 35, does not provide that such property may be thus assessed for more than it is actually benefited.</p> <p>Same — Confirmation of Assessment within Four Months.</p> <p>Held, the provision in section'26 of said act, requiring the board of public works of St. Paul to complete and finally confirm the assessment for such benefits within four months after receiving from the park board the order to condemn the park and make the assessment, is mandatory, and, if the assessment is not confirmed within that time, the board loses jurisdiction.</p> <p>Same — Double Taxation.</p> <p>Where a part of a parcel of land is taken for park purposes, held said chapter 35 does not provide for assessing double benefits on the balance of the tract, and, even if the act did so provide, it would only be unconstitutional to the extent of eliminating the feature of it which provided for such double taxation.</p>

Action in the district court for Hennepin county to recover $250. The cause was transferred to the district court for Ramsey county and was tried before O. B. Lewis, J., and a jury.

Action in the district court for St. Louis county to recover $869.64, the value of 1,062 bushels of wheat. The cause was tried before Moer, J., who directed the jury to return a verdict for defendant. From an order denying a motion for a new trial, plaintiff appealed. A mutual mistake is a mistake reciprocal and common to both parties, where each alike labored under the same misconception of facts. Botsford v. McLean, 45 Barb. 478.

Peter McGovern, the executor named in the will of Thomas McGovern, deceased, petitioned the probate court for Blue Earth county to assign the residue of the estate of the testator to the parties entitled thereto. At the hearing of the petition the executor offered evidence that the will contained a latent ambiguity, and that the testator intended to devise to his wife the real estate owned by him at the time of his death.

Action in the district court for Otter Tail county to foreclose a mortgage to secure the payment of $200. The defendants pleaded payment and prayed that the mortgage be discharged and satisfied of record. The cause was tried before Baxter, J., without a jury, who ordered judgment in favor of defendants. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for Douglas county to. recover §500, alleged to have been bequeathed to plaintiffs by the will of said deceased. At the trial both parties moved for judgment on the pleadings. The motion of defendant was granted, Baxter, J. From the judgment entered in favor of defendant, plaintiffs appealed. The defendant as residuary legatee and devisee accepted the provisions of the will and thereby obligated herself to pay the legacy.

Action in the district court for Traverse county to foreclose a mortgage given to secure the payment of $550. The defendant Keating pleaded payment, and prayed that the mortgage be discharged and satisfied of record. The cause was tried before C. L. Brown, J., without a jury, who ordered judgment in favor of defendant Keating. From an order denying a motion for a new trial, plaintiff appealed.

Action in the municipal court of St. Paul to recover $43.35, wages due from defendant railway company to one John McGraw, and assigned by said McGraw to plaintiff. The facts are stated in the opinion. From an order, Orr, J., denying a new trial, the intervenor, Clifford, appealed.

From an order of'the district court for Hennepin county, Simpson, J., denying a motion for a new trial, defendant appealed.

Action'in the district court for Ramsey county to recover $8,700 as tolls for the use of certain improvements upon Kettle river, whereby the driving, during the years 1892, 1893 and 1894, of defendant’s logs was alleged to have been facilitated. From an order, O. B. Lewis, J., sustaining defendant’s demurrer to the complaint, plaintiff appealed. The general proposition as to the right of a corporation to do incidental business is fairly well established by the courts.

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

Action in the district court for Washington county by plaintiff as surveyor general of logs and lumber for the first district of Minnesota, to recover $15,554.20, and interest, for scaling logs. The court, Crosby, J., directed a verdict in favor of plaintiff for $6,221.-68, and interest. From an order denying a motion for a new trial, plaintiff appealed. Sp. Laws 1870, c. 116, is in conflict with Const, art. 4, § 27.

Action in the district court for Hennepin county against Annie Hanson and John Hanson, her husband, and H. W. Thompson, as administrator with the will annexed of the estate of Francis Parks, deceased.

Appeal by defendant H. W. Thompson, as administrator with the wiir annexed of ihe estate of Francis Parks, deceased, from a judgment of the' district court for Hennepin county, entered pursuant to the findings and order of Johnson, J.

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

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

Action for libel in the district court for Brown county. The case-was tried before Webber, J., and a jury, wbicb rendered a verdict in favor of plaintiff for $2,000. From an order denying a motion for a new trial, defendant appealed. The submission of the question of punitive damages was error. The infliction of such damages in this jurisdiction rests on the theory that they are for punishment and example. Hoffman^ v. Northern Pac.

Action in the district court for Ramsey county to recover $5,000 upon an insurance policy. The court, Bunn, J., directed a verdict in favor, of defendant, and from an order denying a motion for a new trial plaintiff appealed.

Action in the district court for Ramsey county to recover the amount of an assessment paid by plaintiff. The court, O. B. Lewis, J., found in favor of plaintiff; and from an order denying a motion for a new trial, defendant appealed. The evidence does not show that, the improvement of East Third street was abandoned, so as to bring the case within Valentine v. City of St. Paul, 34 Minn. 446.

Alternative writ of mandamus issued from the supreme court requiring respondent, as judge of the district court for the fourth judicial district, to show cause why he should not take the deposition of L. A. Lydiard, city clerk of the city of Minneapolis.

Appeal by defendant, as administrator of the estate of Horace B. Strait, deceased, from an order of the district court for Scott county, Cadwell, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $8,875. Affirmed. The inventories mentioned in the opinion were introduced in evidence to show that the firm note, after execution by How of the renewal notes, was included therein and continued to be treated by the bank as an asset.

Action in the district court for St. Louis county to recover $5,-103.42, and interest, on a written contract. Tbe court, Cant, J., found in favor of plaintiff, and from a judgment in her favor for |4,297.04 entered pursuant to the findings, defendants appealed.

Action in the district court for Hennepin county to recover damages resulting from the negligence of defendant in the manner of storing plaintiff’s eggs and for conversion. The case was tried before Simpson, J., and a jury, which rendered a verdict in favor of plaintiff for $2,214.29. From an order denying a motion for a new trial, defendant appealed. The bailee may show that the bailor approved of the place of storage and that the goods were damp.

Action in the district court for Hennepin county to recover the amount of a life insurance policy. .The court, Johnson, J., found in favor of plaintiff for the sum of $2,027, and interest, and from an order denying a motion for a new trial, defendant appealed. Plaintiff cannot take advantage of his own wrongful acts and laches, to defeat an innocent bona fide holder. Fassett v. Smith, 23 N. Y. 252.

Action in the district court for Hennepin county to recover possession of land. Defendant Cornelia Jacobson answered, claiming title under one John Kelly. The court, Lancaster, J., directed a verdict in favor of plaintiff, and from an order denying a motion for a new trial, said defendant appealed.

Action in the district court for Ramsey county for divorce. The case was tried before O. B. Lewis, J., who found that plaintiff was entitled to a judgment of divorce and for the sum of $5,000 alimony. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Lyon county to recover upon three promissory notes given by defendants to plaintiffs. The answer alleged that the notes were given in consideration of the sale of a stallion, and contained a counterclaim for damages sustained by reason of plaintiffs’ alleged agreement to take back the stallion and return the notes in case he was not satisfactory.

Action in the district court for Morrison county to enforce the constitutional liability of stockholders in defendant corporation, People’s Gas & Electric Company. The case was tried before Searle, J., who made and filed findings of fact and conclusions of law whereby defendant stockholders were found liable for five times the amount of their original subscriptions.

Action in the district court for Eamsey county to recover damages caused by defendant’s negligence in failing properly to keep cheese delivered to it for storage. The case was tried before Kelly, J., and a jury, which rendered a verdict in favor of plaintiff for $1,750. From an order denying a motion for a new trial, defendant appealed.

Proceeding in the district court for Swift county to enforce the payment of taxes for the years 1890 and 1891, delinquent and unpaid on the first Monday in January, 1898, and the penalties accrued thereon, upon certain granted and indemnity lands.

Proceedings in the district court for St. Louis county to enforce the collection of taxes on real estate for the year 1896, delinquent and unpaid on the first Monday of January, 1898. West Duluth Land Company filed an answer, wherein it objected to entry of judgment against lands owned by it on various grounds, and a trial was had before Moer, J., who found in favor of plaintiff.

Appeals by defendants St. Paul & Duluth Railroad Company and Northern Pacific Railway Company from orders of the district court for St. Louis county, Ensign, J., directing a peremptory writ of mandamus to issue, and denying a motion for a new trial.

Appeal by defendant, as executrix of the last will of Matthew B. Harrison, from an order of the district court for St. Louis county, Ensign, J., denying a motion for a new trial.

Action in tbe district court for St. Louis county upon a bond executed by defendant trust company, as depositary of public funds, and by defendant sureties. Tbe cause was tried before Cant, J., wbo found in favor of plaintiff, and from a judgment entered in pursuance of bis findings, defendants A. W. Bradley and seven others appealed. It was error not to exclude evidence of tbe account secured by tbe bond, because of plaintiff’s failure to serve a bill -of particulars.

Action for conversion in the district court for Clay county. The case was tried before Baxter, J., who directed a verdict in favor of plaintiff in the sum of $2,731.77. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Hennepin county by plaintiff, as administratrix of the estate of Emil Lund, deceased, to recover $5,000 damages for the death of decedent. The cause was tried before Johnson, J., and a jury, which rendered a verdict in favor of plaintiff for $1,000; and from a judgment entered pursuant thereto, defendant appealed.

Action in the district court for St. Louis county to recover the value of 1,502 bushels of wheat, the amount of an alleged shortage in a shipment from defendant’s elevator. The case was tried before Moer, J., who ordered judgment in favor of plaintiff for $1,994.-52. From an order denying a motion for a new trial, defendant appealed.

Appeal by relator from an order of the district court for St. Louis county, Cant, J., discharging an alternative writ of mandamus.

Appeal by plaintiff from a judgment of the district court for Ramsey county in favor of defendant, entered pursuant to the order of Kelly, J. Upon the proposition that the provisions of Sp.

<p>Action in tbe district court for Hennepin county by tbe assignees in insolvency of Austin F. Kelley and Louis E. Kelley, copartners under the firm name of A. F. & L. E. Kelley and as individuals, to set aside as a preference a mortgage executed by Austin F. Kelley and wife to defendant White and by him assigned to defendant Evans. The cause was tried before Elliott, J., who found in favor of plaintiffs. From an order denying a motion for a new trial, defendants appealed.</p> <p>To constitute a cause of action under G-. S. 1894, § 4243, the relation of debtor and creditor must have existed, the mortgage must have been given with the intention of giving a preference to a creditor, and the mortgagee must have had reasonable cause to believe the mortgagor insolvent. Baumann v. Cunningham, 48 Minn. 292; Fisher v. Utendorfer, 68 Minn. 226. Here there was no pre-existing debt. The firm did not assume to make a collection of the mortgage debt as agent of White. See Herrick v. Mosher, 71 Minn. 270. Any disability applicable to A. F. Kelley applied to the firm. Deakin v. Underwood, 37 Minn. 98, 101. One cannot be a party and the agent for the opposite party in the same transaction. Mechem, Ag. § 68; Story, Ag. §§ 210, 211; Rhodes v. Webb, 24 Minn. 292; Fellows v. Northrup, 39 N. Y. 117, 122; Bank v. American, 143 N. Y. 559, 564. White’s right to repudiate the purported collection on discovery of the- facts is not dependent on showing actual damage. Tilleny v. Wolverton, 46 Minn. 256; Friesenhahn v. Bushnell, 47 Minn. 443; Lum v. McEwen, 56 Minn. 278, 282; Donnelly v. Cunningham, 58 Minn. 376; Conkey v. Bond, 36 N. Y. 427; Porter v. Woodruff, 36 N. J. Eq. 174. There was no ratification. Ratification must have been with knowledge of the facts. Seymour v. Wyckoff, 10 N. Y. 213; Owings v. Hull, 9 Pet. 607, 629; Ladd v. Hilderbrant, 27 Wis. 135, 144; Smith v. Kidd, 68 N. Y. 130. No ratification is to be implied from White’s failure to satisfy the mortgage. Humphrey v. Havens, 12 Minn. 196 (298); Bryant v. Moore, 26 Me. 84; Martin v. Hickman, 64 Árk. 217; Clark v. Clark, 59 Mo. App. 532, 535. The acts set up as a collection not having been performed under any pretense of agency, cannot be turned into a collection by ratification. Mitchell v. Minnesota Fire Assn., 48 Minn. 278; Hammerslough v. Cheatham, 84 Mo. 13; Herd v. Bank, 66 Mo. App. 643; Crowder v. Reed, 80 Ind. 1; Condit v. Baldwin, 21 N. Y. 219, 225. The Thayer mortgage is still a valid lien. White having chosen the Kelley mortgage, if the court permits him so to elect, he surrenders the Thayer mortgage, not by way of ratification of any pretended collection, but by acceptance of a substituted security. Even if this would be in fraud of creditors, no advantage of the fact could be taken in this action. Cragin v. Carmichael, 2 Dill. 519.</p> <p>If the alleged indebtedness is not shown, it follows that the alleged intent is not shown. See Ex parte Taylor, L. R. 18 Q. B. D. 295; Ex parte paldecott, L. R. 4 Ch. D. 150, 156. If the funds paid by the Derbys to Kelley could be traced into the hands of the assignee, they would be impressed with a constructive trust in favor of the Derbys for payment of the Thayer mortgage. Herrick v. Mosher, supra. But if A. F. Kelley, with the purpose of executing what he conceived to be a trust, had given the mortgage in question to pay the Thayer mortgage, the transaction would not have been a fraudulent preference. Ex parte Stubbins, L. R. 17 Ch. D. 58; In re Frantzen, 20 Fed. 785.</p>

Action in the district court for Ramsey county by the executrix of the last will of Enos Wood, deceased, upon a promissory note, the payment of which was guarantied by defendants. The cause was tried before O. B. Lewis, J., who found in favor of plaintiff. From an order denying a motion for a new trial, defendants appealed.

Action for conversion in the district court for Hennepin county. The cause was tried before Simpson, J., and a jury, which rendered a verdict in favor of plaintiffs for $8,297.65. From an order denying a motion for a new trial, defendants appealed. Defendants, being innocent of wrong, are liable only for plaintiffs’ pecuniary loss immediately resulting from the wrongful acts of the subagent. Hoover v. Wise, 91 U. S. 308, 311; Allen v. Merchants, 22 Wend. 215, 34 Am.

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

Writ of quo warranto issued from the supreme court requiring respondent to show by what warrant he held and exercised the office of county commissioner of Itasca county, and to show cause why he should not be adjudged to have usurped the office, and why William E. Meyers should not be declared to be entitled thereto.

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