Volume 87 — Minnesota Reports

Action of ejectment in the district court for Wabasha county by plaintiff, as executor of the estate of William E. Wording, deceased. The case was tried before Snow, J., who found that defendant Betcher was the owner of the premises and as conclusion of law directed that the action be dismissed. From a judgment of dismissal entered pursuant to the findings, plaintiff appealed.

<p>Appeal by defendant from a judgment of the district court for Steele county, Buckham, J.</p>

Separate actions in the district court for Steele county by Lars Thompson and Carrie Thompson, to quiet title to land. The cases were tried together before Buckham, J., who found in favor of defendant. From separate judgments entered pursuant to the findings, plaintiffs appealed.

Action in the district court for St. Louis county to recover |5,611.25 and interest upon an account stated. The case was tried before Ensign, J., and a jury, which rendered a verdict in favor of plaintiff: for the sum demanded. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for St. Louis county to recover .|5,250 damages for destruction of plaintiff’s buildings by a fire .alleged to have been caused by the negligence of defendant. The case was tried before Dibell, J., and a jury, which rendered a verdict in favor of plaintiff for the sum demanded. From an order granting a motion for a new trial, plaintiff appealed.

Alternative writ of mandamus issued out of tbe district court for Hennepin county on tbe relation of Minnesota Loan & Trust Company, and others, to compel A. A. Ames, as mayor of tbe city of Minneapolis, to sign certain municipal bonds authorized by tbe city council. From a judgment entered pursuant to an order, Elliott, J., directing tbe issue of a peremptory writ, defendant appealed.

Action in the district court for Martin county to recover $335 and interest upon a contract. The case was tried before Quinn, J., and a jury, which rendered a general verdict in favor of defendant, and a special verdict, the substance of which is stated in the opinion. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed.

<p>Appeal by defendant from a judgment of the district court for Otter Tail county, Searle, J.</p>

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

<p>Grand Larceny — Evidence.</p> <p>In a criminal prosecution of a bank cashier on the charge of grand larceny in the first degree, based upon his alleged wrongful and unlawful appropriation of the sum of $925, funds of the bank, the evidence is examined, and Held sufficient to sustain a conviction.</p> <p>Books of Account.</p> <p>State v. Elements, 82 Minn. 434, holding in effect that, where books of account material to an issue on trial, are properly received in evidence, and before the court and parties subject to inspection, and requiring an examination for details of information contained therein, it is proper to receive balances and summaries thereof from an expert witness, who has made the same, followed and applied.</p> <p>■Written Instrument — Parol Evidence.</p> <p>Whether a sufficient foundation has been laid for the introduction of parol evidence of the existence and contents of a written document rests in the sound discretion of the trial court, and its decision permitting such evidence is reviewable on appeal only in case of an abuse of discretion.</p> <p>Jury — Dispersion at Adjournment.</p> <p>It was not reversible error in this case for the trial court, over defendant’s objection, to permit the jury to separate for the period of four hours immediately after the taking of evidence had been concluded and before the case was argued and submitted to them by counsel, it appearing that the jury had been permitted to separate at other temporary adjournments of the court during the trial, and it not appearing that defendant was in any way injuriously affected thereby. The matter was within the discretion of the court.</p> <p>Intoxicating liquor.</p> <p>The use of intoxicating' liquor by a juror while engaged in the trial of an action is highly reprehensible, and when his indulgence is to such an extent as to impair his faculties, and render him incapable of comprehending or appreciating the proceedings in court, or unfit him for an intelligent, fair, and impartial consideration of the case, when not participated in, assented to, or waived by the parties, constitutes such misconduct as vitiates and invalidates the verdict, unless it be made to appear clearly that no prejudice resulted therefrom.</p> <p>Intoxication of Juror.</p> <p>The showing that a juror was intoxicated on the trial of an action to the extent above stated raises a presumption of prejudice, and the burden is upon the prevailing party to overcome and rebut it; but whether the presumption is overcome in any ease is very largely a question for the trial court to determine, requiring a clear showing to justify a reversal by the supreme court.</p> <p>New Trial — Knowledge of Misconduct.</p> <p>If the party against whom a verdict is returned be instrumental in causing the intoxication of the juror, or be aware of the fact before the verdict, and fails to bring it to the attention of the trial court, .he waives the misconduct. An essential of an application for a new trial based upon this ground is an affirmative showing that the moving party had no notice of the misconduct before verdict.</p> <p>Same — Discretion of Court.</p> <p>Whether a new trial should be granted for misconduct of a juror of this nature rests in the sound judicial discretion of the trial judge, and his determination thereof is not reviewable except in a clear ease of abuse of discretion.</p> <p>Assignments of Error.</p> <p>Various assignments of error considered, and held to present no reversible error.</p>

Action in the district court for Watonwan county by plaintiff, as receiver of Madelia. Farmers’ Warehouse Company, to vacate a judgment entered against said company in favor of defendants and to cancel certain promissory notes upon which the judgment was based. The case was tried before Cray, J., who found in favor of defendants. From a judgment entered pursuant to the findings, plaintiff appealed.

Action in the district court for Anoka county to recover $220.66 and interest for goods sold and delivered. Defendant interposed a counterclaim for $272.50 for breach of contract. The case was tried before G-iddings, J., who directed a verdict in favor of plain-' tiff for the sum demanded. From an order granting a motion for a new trial, plaintiff appealed.

Appeal by plaintiffs, as receivers of Minneapolis Fire & Marine Mutual Insurance Company, from an order of the district court for Hennepin county, Elliott, J., sustaining a demurrer to the complaint.

Action in the district court for Ramsey county by plaintiff,' as receiver of Allemannia Bank, to enforce the full statutory liability of defendant as the owner of five shares of its capital stock of the par value of $100 each.

Appeal by plaintiff from an order of tbe district court for Ren-ville county, Powers, J., denying a motion for a new trial.

Action in the district court for Bamsey county to recover $8,000 for personal injuries. The case was tried before Kelly, 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.

Alternative writ of mandamus issued out of the district court for Ramsey county to compel defendant, as comptroller of the city of St. Paul, to audit a certain resolution of the city council. The case was heard before.Otis, J., who directed the issue of a peremptory writ. From an order denying- a motion for a new trial defendant appealed.

Appeal by plaintiff from an order of the district court for St. Louis county, Dibell, J., denying a motion for a new trial on an appeal from an award of commissioners in proceedings by plaintiff for the condemnation of a right of way across defendants’ land.

Separate actions in ejectment in the district court for St. Louis county by plaintiff, Security Land & Exploration Company, against defendants G. A. Burns and another, and defendants Henry Weckey and another. The cases were by consent tried together-before Cant, J., who found in favor of defendants. From separate judgments entered pursuant to the findings, plaintiff appealed. Judgments The so-called meander line is not a factor in the case. Schur-meier v. St. Paul & Pac.

Action of ejectment in the district court for Red Lake county by plaintiffs Bem-way-bin-ness and others, tribal Indians, against Ezra Eshelby and others, defendants. The case being at issue, an alternative writ of prohibition was issued out of the supreme court on the petition of defendants, restraining plaintiffs and Hon. William Watts, judge of said district court, from further proceeding in the .action, also an order to show cause why the writ should not be made absolute.

Action of ejectment in the district court for Otter Tail county. The case was tried before Baxter, J., who directed a verdict in fay or of defendant. From an order denying a motion for judgment notwithstanding the verdict but granting a motion for a new trial, defendant appealed.

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

Alternative writ of mandamus issued out of the district court for Hennepin county, directed to Joshua Rogers, as comptroller of the city of Minneapolis. From a judgment quashing the writ, entered pursuant to the findings and order of Simpson, J., plaintiff appealed.

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

Appeal by Henry Truelsen from a judgment of the district court for St. Louis county, Ensign and Cant, JJ., that Trevanion W. Hugo was elected to the office of mayor of the city of Duluth.

Writ of certiorari issued out of the supreme court on the relation of M. P. Ryan and others to review a judgment of the district court for Ramsey county, Kelly, J.

Alternative writ of mandamus issued out of the district court for Hennepin county to compel the common council of the city of Minneapolis to appropriate the sum of $5,000 for the contingent fund of relator as mayor of said city. From a judgment quashing the writ, entered pursuant to the findings and order of Elliott, J., relator appealed.

Appeal by defendant from an order of the municipal court of Minneapolis, Holt, J., denying a motion for a new trial, after a trial and conviction of contempt of court.

In proceedings in tbe district court for Ramsey county to enforce payment of delinquent real estate taxes for tbe year 1899, judgment was ordered for plaintiff against certain land owned by defendants, and upon tbeir request tbe case was certified to tbe supreme court by Kelly, J.

<p>Appeal by plaintiff from a judgment of the district court' for Otter Tail county, Baxter, J.</p>

Appeal by plaintiff from an order of the district court for St. Louis county, Cant, J., denying a motion for judgment notwith- . standing the verdict or for a new trial.

Appeal by plaintiff from an order of the district court for Henne-pin county, McGee, J., denying a motion for judgment notwithstanding the verdict or for a new trial.

<p>Foreclosure of Mortgage — Separate Liens — Costs.</p> <p>Several parcels of real property, upon each of which Was apportioned a specific lien as security for the payment of a designated sum, were embraced in one mortgage, subject to the condition that each lien should be treated separately. Held, that the owner of such mortgage might upon default enforce his rights through foreclosure' of each distinct tract by advertisement under power of sale, and in such case would be entitled to the same costs, disbursements, and attorney’s fees, as if each were covered by a separate mortgage.</p> <p>Method of Foreclosure — Election of Mortgagee.</p> <p>Where several tracts or parcels of land, upon each of which a distinct lien is applied, are embraced in a single mortgage instrument, as in this case, it is optional with the owner of the security, upon default, to enforce his rights in one proceeding for each separate lien, or to include all the liens covered by one mortgage in one foreclosure by advertisement, although if he pursues the latter course he may have costs and disbursements for but one foreclosure.</p>

Separate appeals by plaintiff (as assignee of Lake Harriet Residence Park Improvement Company) and defendant from a judgment of the district court for Hennepin countyJn favor of plaintiff for $968, entered pursuant to the findings and order of Brooks, J.

Separate appeals by plaintiff and defendant from a judgment of the district court for Hennepin county in favor of plaintiff for the sum of $50.24, entered pursuant to the findings and order of Brooks, J.

Action in the district court for Hennepin county by plaintiff, as administratrix of the estate of Mons E. Jacobson, deceased, to recover $5,000 for the death of decedent. The case was tried before Harrison, J., and a jury, which rendered a verdict in favor of plaintiff for the sum demanded. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

Action in the district court for Rice county by plaintiff, as receiver of Allemannia Bank, insolvent, to recover from defendant, as distributee under the will of William H. Brown, deceased, the sum of $2,000, being the full statutory liability of deceased upon twenty shares of the insolvent bank of which he died the owner. The case was tried before Buckham, J., who found in favor of plaintiff for the sum demanded.

Alternative writ of mandamus issued out of t’he district court for Freeborn county, commanding defendant railway company to build and maintain a station-house at the village of Emmons, as required by an order of the railroad and warehouse commission. The case was heard before Quinn, J., who found in favor of relator and directed the issue of a peremptory writ. From a judgment entered pursuant to the order, defendant appealed.

Action in the district court for Crow Wing county by plaintiff as administratrix of the estate of Joseph A. Martin, deceased, to recover $5,000 for the death of decedent, alleged to have been caused by the malpractice of defendant. A change of venue was granted to Sherburne county where the case was tried before (biddings, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.

Action in the municipal court of Stillwater for the restitution of land withheld by defendants after a sale thereof on foreclosure of a mortgage by advertisement and expiration of the time for redemption. Defendants appeared specially and objected to the jurisdiction for the reason that the summons was made returnable at a special term of court instead of at a regular term thereof, as provided by law.

Appeal by Charles S. Hanley, contestant, from an order of the district court for Cass county, McClenahan, J., denying his motion to amend his notice of contest.

Petition to the supreme court for an order directing Peter E. Hanson, as Secretary of State, to show cause why he should not omit from the official ballot the name of Jay E. Nash, as candidate for governor of the Socialist party, and insert on said ballot the name of Thomas Van Lear as candidate for governor of the Socialist-Labor party. At the hearing of the order to show cause an order was made as specified in the opinion of October 10.

Application to the supreme court, in behalf of John L. Gulden, for writ of mandamus requiring Robert L. Johnson, as county auditor of Mower county, in making up and printing the official ballots to be used in that county at the primary election to leave certain blank spaces thereon, or show cause why such changes should not be made.

Application to the supreme court by John Lind for its order directing Hugh R. Scott, as county auditor of Hennepin county, to correct tbe official ballots to be used at the general election in November, 1902, in that county, by striking the word “Democrat” from the designation “Social Democrat” after the name of Spencer M. Holman.

Action in the district court for Ramsey county to rescind a contract for the sale of land. The case, was tried before Jaggard, J., who found in favor of defendants. From a judgment entered pursuant to the findings, plaintiff appealed.

Action in tbe district court for Becker county, by plaintiff company and F. C. Clayton, to restrain defendants, Carrie Kronsch-nabel and John L. Kronschnabel, from carrying on a general mercantile business in the village of Frazee in .said county. The case was tried, before Baxter, J., who ordered that the action be dismissed as to defendant Carrie Kronschnabel and that judgment be entered against defendant John Kronschnabel, as prayed.

In proceedings in the district court for Hennepin county to enforce payment of delinquent real estate taxes for the year 1900, defendant Willoughby M. Babcock interposed an answer. The case was tried before Elliott, J., who found in favor of plaintiff, and, on application of defendant, certified to the supreme court for its determination the question set out in the opinion.

Action in the district court for Stearns county by plaintiff, as administrator of the estate of Christian Schreiber, deceased, to recover $6,000 for the death of decedent. From an order, Searle, J., overruling a demurrer to tbe complaint, defendant appealed.

<p>Charge to Jury — Omission of Counsel to Mention Defect.</p> <p>The well-settled rule in this state that the omission of material instructions, or indefiniteness or insufficiency or even obscurity, in the charge of the court, is no ground for error or for a new trial, where the attention of the court was not specifically called to the defect at the time of the trial, has not been affected by the passage of Laws 1901, c. 113.</p> <p>Verdict — Evidence.</p> <p>Held, that the evidence at the trial abundantly supported the verdict in this case.</p>

Action in the municipal court of Minneapolis to recover $44.30 and interest, being an alleged excessive amount certified by the county auditor of Hennepin county to be due upon certain land as taxes for 1895, and paid by defendant into the county treasury under a mistake of fact. The case was tried before Holt, J., who found in favor of plaintiff for the sum demanded. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Becker county to recover $423.50, and interest, for money paid by plaintiffs to the use of defendant at his request. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of defendant. From a judgment entered pursuant to the verdict, plaintiffs appealed.

<p>Attorney at Law — Verdi'ct.</p> <p>Action to recover for legal services. Held, that the verdict for the-defendants is sustained by the evidence, and that the trial court did not err in its instructions to the jury.</p>

<p>Cattle Killed at Railway Crossing — Contributory Negligence.</p> <p>The plaintiff’s sixteen-year old son approached defendant’s railroad crossing with a team and wagon, at the rear of which were tied two cows; and, because they did not lead well, the boy left the team to go on without a driver, and went behind the cows to drive them along. At a point about eight rods from the track, where the view of the track was obstructed by a growth of underbrush and timber, the boy stopped and listened for signals or other indications of approaching trains, and, hearing none, he went on without further investigation. While crossing the track, the cows were killed by one of defendant’s trains. Held, the boy was guilty of contributory negligence.</p> <p>Fence — Proximate Cause.</p> <p>In the Tillage of Eden Valley defendant maintained a depot and side track for the accommodation of warehouses, lumber yard, coal shed, etc. The distance from the east to the west switch was eighteen hundred feet, and the space, to the extent of two hundred feet west of the west switch and three hundred fifty feet east of the east switch, was left unfeneed by defendant, and treated as a part of its depot grounds or switching- yard. Certain stock belonging to plaintiff was killed at a point about one hundred fifty feet west of the west switch. Held, it was a question of fact for the jury to determine whether the proximate cause of the killing of the cattle was the absence of the fence, and whether the point where they were killed was reasonably required by the railway company as a part of its depot grounds or switching yard.</p>

Action in the district court for Ramsey county to recover damages for breach of a contract of life insurance executed by defendant, a foreign corporation. The summons and complaint were served upon defendant by delivering copies thereof to the insurance commissioner of Minnesota as provided by Laws 1805, c. 175, and the amendments thereof.

Action in the district court for St. Louis county against defendants, Cloquet Lumber Company and Joseph H. Heininger, to enforce a trust under which plaintiff claimed to be entitled to an undivided one-sixth interest in certain land, and to compel the conveyance of such interest by defendant company to plaintiff. The case was tried before Cant, J., who found in favor of defendants. From a judgment entered pursuant to the findings, plaintiff appealed.

Writ of certiorari issued from tbe supreme court to tbe district court for Hennepin county, and tbe judges thereof, to review proceedings in tbe district court by tbe Board of Park Commissioners of Minneapolis to condemn land for a public park. In tbe original proceedings under tbe city charter tbe appraisers appointed by tbe board made an award to relator in tbe form set out in tbe opinion.

<p>Appeal by plaintiff from an order of tbe district court for St. Louis county, Cant, J., striking from the records an appearance for defendants; denying a motion for leave to file, nunc pro tunc, an affidavit of publication of the summons; and vacating a judgment entered in favor of plaintiff and an ex-parte order inserting therein, nunc pro tunc, the name of defendant Nettie E. Selden.</p> <p>The summons having been published in the manner and for the time prescribed by law was completely served and the court acquired jurisdiction. Jurisdiction could have been acquired without any service by the voluntary appearance of defendants, and having been acquired the manner of its acquisition is of no moment. Dousman v. City of St. Paul, 23 Minn. 394, 400. So far as the court’s power to try and determine the title is concerned it is immaterial whether there was an appearance or a default. Hunter v. Bryant, 98 Cal. 252; Johnson v. Lyon, 14 Iowa, 431; Woodward v. Willard, 33 Iowa, 542. The judgment being one of a court of competent jurisdiction raises the presumption of jurisdiction in the court which can be overcome only by proof that it had no jurisdiction. Kipp v. Collins, 33 Minn. 394; Nye v. Swan, 42 Minn. 243; Herrick v. Butler, 30 Minn. 156. Where the record is silent as to any fact necessary to support the judgment the court will presume its existence in the absence of evidence in the record showing its non-existence. Kent v. Dakota, 2 S. D. 306; Hoyt v. Clark, 64 Minn. 139. If the court deems it necessary to have proof of the service on file plaintiff should be allowed to file it. Burr v. Seymour, 43 Minn. 401. Ordinarily all amendments of the proof of publication should be allowed, in order to show the true facts of the case. Hackett v. Lathrop, 36 Kan. 661; Howard v. McChes-ney, 103 Cal. 536; Fisk v. Reigelman, 75 Wis. 499; Sueterlee y. Sir, 25 WTis. 357; Farmers v. Dickscn, 17 How. Pr. 477; Weaver y. Roberts, 84 N. C. 493; Bigelow v. Cbatterton, 51 Fed. 614. If tbe court bad jurisdiction and erroneously exercised it tbe only proper methods of correcting tbe error are by motion for a new trial, by appeal, or by motion under G. S. 1894, § 5206 or § 5267. Grant v. Scbmidt, 22 Minn. 1; Gallagher v. Irish-American Bank, 79 Minn. 226. An appearance by an attorney is presumed to be authorized. Hardin v. Ho-yo-po-nubby, 27 Miss. 567; Savery v. Savery, 8 Iowa, 223; Bonnifield v. Thorp, 71 Fed. 924. Even if there had not been an authorized appearance originally, we submit that there was a ratification. 3 Am. & Eng. Enc. (2d Ed.) 374; Ryan v. Doyle, 31 Iowa, 53; Robb v. Yos, 155 U. S. 13; Robb v. Roelker, 66 Fed. 23. Ratification may be shown by long acquiescence and silence after knowledge of the appearance, or by estoppel. Stearns v. Johnson, 19 Minn. 540; Singer Mnfg. Co. v. Flynn, 63 Minn. 475; Lynch v. Smyth, 25 Colo. 103.</p>

Action in the district court for Lac qui Parle county to recover $6,000 for malicious prosecution. The case was tried before Qvale, J., and a jury, which rendered a verdict in favor of plaintiff for $500. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

Action in tbe district court for Ramsey county by plaintiff, as administrator of tbe estate of Charles H. Gray, deceased, to recover $5,000 for tbe death of decedent. The case was tried before Kelly, J., and a jury, which rendered a verdict in favor of plaintiff for $2,750. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

Appeal by plaintiffs from an order of the district court for Freeborn county, Kingsley, J., sustaining a demurrer to tbe complaint.

<p>Promissory Note — Failure of Consideration.</p> <p>In an action upon a promissory note, the answer admitted its execution, and alleged that prior thereto the maker and payee had entered into a certain contract whereby the payee agreed to drill a well upon the maker’s farm which would produce water in sufficient quantities for his purposes; that in pursuance thereof the payee drilled a well, and represented to the maker that he had found water in the required quantity; that, relying upon such representations, the maker executed a note in payment therefor; that such representations as to the supply of water were untrue; that the well was not as represented, and was of no value; that a renewal note and certain payments made thereon were given in consideration of the payee’s promise to sink the well deeper and cause it to produce the amount of water originally agreed upon, but that the payee had failed so to do. To this answer a reply was served which alleged that the maker of the note had tested the well, satisfied himself that it was all right, and accepted it, and in consideration thereof executed the notes in question. Held, that the answer stated a good defense, to the effect that there was a failure of consideration for the note, and that the trial, court erred in granting a motion by plaintiff for judgment upon the pleadings.</p>

Action in tbe district court for Ramsey county to recover |25,000 for personal injuries received by plaintiff in alighting from defendant’s street car. Tbe case was tried before Otis, J., and a jury, wbicb rendered a verdict in favor of defendant. From an order denying a motion* for a new trial, plaintiff appealed.

Action in the district court for Becker county tO' recover $150, and interest, for the conversion of personal property. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of plaintiff for $108.63. From an order denying a motion for a new trial, defendant appealed.

Appeal by defendant from an order of tbe municipal court of Duluth, Gearhart, J., denying a motion for a new trial, after a trial and verdict in favor of plaintiff for $100.

Action in tbe district court for Houston county to recover from defendants, A. J. Yon Arx and others, individually, $100, being the amount of a reward offered, in excess of their authority, by defendants, as county commissioners of said county, for the finding and identification of a missing man. From a judgment upon the pleadings in favor of defendants, entered pursuant to an order of Kings-ley, J., plaintiff appealed.

Action in the municipal court of Mankato to recover from defendants $120, broker’s commission for procuring a purchaser of defendant’s land. The case was tried before Shissler, J., who found in favor of plaintiff for the sum demanded. From an order denying a motion for a new trial, defendants appealed.

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

Order of tbe supreme court directing John H. Moore, as auditor of Scott county, to show cause why a writ of mandamus should not issue requiring him to place upon the official ballot of Scott county the name of relator as an independent candidate for the office of superintendent of schools to be voted on at the November, 1902, general election.

Order of the supreme court directing Hugh R. Scott, as auditor of Hennepin county, to show cause why a writ of mandamus should not issue requiring him to place upon the official ballot of Hennepin county the name of relator as a Democratic candidate for state representative to be voted on at the November, 1902, general election.

Order of the supreme court, issued upon the petition of John Lind, requiring respondent Hugh R. Scott, as auditor of Hennepin county, to correct the official ballot to be used at the general November, 1902, election by striking therefrom the word “Democrat” after the name of Spencer M. Holman, a candidate for c.on-gress from the Fifth congressional district, and to refrain from placing on said ballot after the name of said candidate the word “Democrat” or “Democratic,” or to…

Action of ejectment in the district court for Ramsey county. The case was tried* before Kelly, J., wbo found in favor of defendant. From a judgment entered pursuant to the findings, plaintiff appealed. The re-enactment of a statute with modifications does not affect those parts of the original law which remain unaltered.

Writ of certiorari issued from the supreme court to review the proceedings of the Board of County Commissioners of Polk county ■ in laying out a drainage ditch m said county désignated as “Ditch No. 23.” The ditch was described in the petition therefor as follows: “A general description of the proposed starting point, route and terminus of said ditch is as follows: Commencing at a point in the southwest quarter of the southwest quarter of section eight on the northerly shore…

Appeal by defendants from a judgment of the district court for Hennepin county, Elliott, J., entered upon a verdict in favor of plaintiff.

Appeal by defendant, Township of Grand Lake, from an order of the district court for St. Louis county, Dibell, J., granting a motion for a new trial.

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

Appeal by defendant Dennis Hennessy from a judgment of the district court for Stevens county, entered pursuant to the findings and order of Steidl, J.

Action in the district court for Freeborn county to recover $3,000 for personal injuries resulting from plaintiff being carried beyond her destination while a. passenger on defendant’s railway train. The case was tried before Kingsley, J., and a jury, which rendered a verdict in favor of plaintiff .for $1,375. From an order denying a motion for a new trial, defendant appealed.

Action in the municipal court of Minneapolis to recover $125,. and interest, upon a check. The case was tried before Holt, J., who found in favor of defendant. From an order denying a motion, for a new trial, plaintiff appealed.

Action in the district court for Redwood county to recover $5,000 for breach of promise of marriage. The case was tried before Webber, J., and a jury, which rendered a verdict in favor of plaintiff for $750. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Hennepin county to recover $5,000 for personal injuries. From an order, Elliott, J., overruling a general demurrer to the complaint, defendant appealed.

<p>Action in the district court for Hennepin county to recover $738.59, and interest, for the conversion of a carload of wheat. The case was tried before Brooks, J., who found in favor of plaintiff for the sum of $642.80 and interest. From a judgment entered pursuant to the findings, defendant appealed.</p> <p>If the agent did not'take part in the original trespass of taking the goods, but innocently, in good faith and without negligence on his part, received the goods from his principal, he is not liable to the true owner. Leuthold v. Fairchild, 35 Minn. 99; McLennan v. Minneapolis & N. Ele. Co., 57 Minn. 317. The mere diversion by the carrier of the wheat from its proper route with the intent to deliver such wheat to one not authorized to receive it, was a conversion by the carrier. Brown & Haywood Co. v. Pennsylvania Co., 63 Minn. 546; Bailroad v. O’Donnell, 49 Oh. St. 489;-5 'Am. & Eng. Enc. (2d Ed.) 231, 232. Then Wasser, alias Pratt, had already through the railroad company converted this wheat and bad it in bis possession before these defendants ever interfered in any manner with it. The possession of these defendants was merely as agents, the possession of their principal, Wasser, and was received from him through the railway company. While so holding possession as his agents, these defendants were estopped from denying his title. 1 Am. & Eng. Enc. (2d Ed.) 1091. A commission merchant taking a small commission for his services is not liable for receiving from his principal and selling in the ordinary course of business, merchandise not the property of his principal. Abernathy v. Wheeler, 92 Ky. 320; Eoach v. Turk, 9 Heisk, 708; followed in Frizzell v. Bundle, 87 Tenn. 757; see also Travis v. Claiborne, 5 Munf. 435; Mires v. Solebay, 2 Mod. 242; Berry v. Vantries, 12 Serg. & K. 89.</p> <p>The fact of agency is not a defense to an action of trover, where the agent has assumed any personal responsibility of his own and exercised dominion over the property in an independent business. Auctioneers: Hoffman v. Carow, 22 Wend. 285, affirming 20 Wend. 21; Coles v. Clark, 3 Cush. 399; Robinson v. Bird, 158 Mass. 357. Commission merchants: Cerkel v. Waterman, 63 Cal. 34; Marks v. Bobinson, 82 Ala. 69. Brokers: Williams v. Merle, 11 Wend. 80; Anderson v. Bichólas, 5 Bosw. 121; Swim v. Wilson, 90 Cal. 126; Fort v. Wells, 14 Ind. App. 531; Arkansas v. Cassidy, 71 Mo. App. 186, 199; Bercich v. Marye, 9 Nev. 312. Miscellaneous cases of agency: Spraights v. Hawley, 39 N. Y. 441; Wing v. Milliken, 91 Me. 387; Knapp v. Hobbs, 50 N. H. 476; Cernahan v. Chrisler, 107 Wis. 645; Hill v. Campbell, 54 Neb. 59; Koch v. Branch, 44 Mo. 542; Lee v. Mathews, 10 Ala. 682; Miller v. Wilson, 98 G-a. 567.</p> <p>It is true there are certain quasi-exceptional cases — which are by no means out of harmony with the proposition of law as we have stated it, — where good faith and want of notice may protect an agent. But they do not conflict with the authorities we have cited. Such cases occur: (1) Where personal property is simply left on deposit, and is returned to the bailor without notice; (2) where common carriers accept property merely for transportation, and deliver the same without notice to the consignee; (3) where a right of possession or trust is Tested in the principal by the true owner, so that a. privity and an apparent authority exist through the act of the owner himself; (4) where a servant acts under .the direct control of his master and not in any way independently for his own benefit.</p> <p>In this case there is no element of the law of master and servant. The finding that the sale was made “according to the usual course of business as such brokers,” further implies that it was made in their own name, and that they warranted the title. Ex parte Dixon, 4 Ch. Div. 133, 136, 137; Schell v. Stephens, 50 Mo. 375, 379; Nichols & Shepard Co. v. Minnesota Thresher Mnfg. Co., 70 Minn. 528. See Barker v. Furlong, L. R. 2 Ch. Div. (1891) 172; Consolidated v. Curtis, L. R. 1 Q. B. Div. (1892) 495; 3 Am. & Eng. Enc. (1st Ed.) 317, and note 317-319.</p> <p>Neither good faith nor innocent intentions constitute any defense, except in the classes of cases already indicated. Williams v. Merle, supra; Hoffman v. Carow, supra. The disposing or assuming to dispose of another man’s goods without his authority is the gist of this action. Stephens v. Elwall, 4 Maulé & Sel. 259; Everett v. Coffin, 6 Wend. 603, 609; Coles v. Clark, 3 Cush. 399, 402; Robinson v. Bird, 158 Mass. 357, 360; Swim v. Wilson, 90 Cal. 126, 129; Spraights v. Hawley, supra.</p> <p>That the railway company might be subject to a suit as well, constitutes no defense for appellants; since all persons guilty of conversion are alike liable in trover, and it has been expressly held that either one of successive carriers, or the consignee, may be sued under such circumstances. Dickson v. Merchants, 44 Mo. App. 498, 504; Foy v. Chicago, M. & St. P. Ry. Co., 63 Minn. 255; 26 Am. & Eng. Enc. (1st Ed.) 778-779.</p>

Appeal by plaintiff from a judgment of the district court for Redwood county, Webber, J. When there is no case or exceptions, the appellate court, on appeal from the judgment, will determine whether on the pleadings and verdict the judgment entered up was proper. When the trial is by the court, the inquiry on appeal is more particularly as to whether on the findings of the court it is proper.

Appeal by defendants from an order of ■ the district court for Pamsey county, Bunn, J., overruling their separate demurrers to the complaint.

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

Appeal by defendant from a judgment in favor of plaintiff for |16.50, entered in the municipal court of St. Paul pursuant to the order of Orr, J.

<p>Appeal by plaintiffs from an order of tbe municipal court of Minneapolis, Holt, J., overruling a demurrer to tbe answer.</p>

Separate actions in the district court for Hennepin county by Sophie Laury and Leny Laury, each to recover from defendant $5,000 for slander. The cases were tried together before Harrison, J., who directed a verdict in favor of defendant. From separate orders denying motions for a new trial, plaintiffs severally appealed.

Action in the district court for Watonwan county by George F. Rice to recover from Madelia Farmers’ Warehouse Company and the officers and directors thereof the value of wheat stored with defendant company and converted.

Appeal by plaintiff from a judgment of tbe district court for Stearns county, Searle, J., reversing a judgment of a justice of tbe peace in favor of plaintiff.

The board of supervisors of the town of Minnetrista having, upon petition, made an order changing the location of a county road plaintiff, an adjoining property owner, appealed to the district court for Hennepin county, praying for the vacation of said order or that he be awarded damages for such change of location.

Appeal by plaintiff from an order of the district court for Todd county, Searle, J., sustaining a demurrer tb the complaint.

Action in the district court for Le Sueur county to recover $2,500 for personal injuries. The case was tried before Cray, J., and a jury, which rendered a general verdict in favor of plaintiff for $1,000, and also returned special findings, referred to in the opinion. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

<p>Accord and Satisfaction.</p> <p>There can be no accord and satisfaction of a disputed claim unless something of legal value has been received in full payment thereof, to-which the creditor had no previous right.</p> <p>Payment — Consideration.</p> <p>Where payment of a sum admitted to be due to a creditor for work and labor and for money paid out is made upon condition that he receipt in full for all accounts, claims, and demands, such receipt is without consideration and of no validity as to a previously existing disputed claim for damages arising out of an alleged breach of contract.</p>

Appeal by defendant from a judgment of the district court for Becker county, Baxter, J., reversing a judgment of a justice of the peace in favor of defendant.

Action in the district court for Hennepin county to recover from defendant, a fraternal insurance association, $3,000 upon a certificate of membership issued to Theodore Bost, Jr., payable to plaintiff as beneficiary. The case was tried before McGee, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed.

Proceedings in the district court for Blue Earth county under Laws 1902 (Ex. Sess.) c. 29, for the collection from defendant county of expenses incurred by plaintiff in the control of a smallpox epidemic. The case was tried before Cray, J., who found in favor of plaintiff for the sum of $519.75. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Lyon county to recover from defendants, H. C. Heine and J. M. Wardell, $325, and interest, upon a promissory note. Defendant Heine interposed his discharge in bankruptcy. The case was tried before Webber, J., who directed a verdict in favor of defendant Wardell. From an order denying a motion for a new trial, plaintiff appealed.

Action in the district court for Grant county to recover $140, and interest, upon a promissory note. The case was tried before Flaherty, J., and a jury, which rendered a verdict in favor of defendant. Rrom an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiffs appealed.

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

Action in the municipal court of Duluth to recover $286.85 for wood sold and delivered. The case was tried before Edson, J., and a jury, which rendered the following verdict: “In the above entitled action we, the jury, find for the plaintiff and assess his damages at $112.88.” “Was there an agreement to pay plaintiff the difference on freight saved between Stony.

<p>Illegal Special Assessment — Injunction.</p> <p>Where proceedings are instituted to enforce the collection of a special assessment for sewer construction, under the provisions of Laws 1901, c. 167, a property owner has an ample remedy at law for an illegal assessment, under G. S. 1891, § 1581, and cannot maintain an action in equity to restrain and enjoin the village authorities from transmitting to the auditor of the county the statement provided for by section 5, chapter 167, supra.</p>

Action in the district court for Grant county to recover $25,000 for slander. The case was tried before Flaherty, J., and a jury, which rendered a verdict in favor of plaintiff for $500. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Ramsey county to recover $6,000 for libel. The case was tried before Jaggard, J., who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. The allegation in the answer that the publication was made as an item of news for the public benefit does not make it a privileged communication. Mallory v. Pioneer Press Co., 34 Minn. 521; Trebby v. Transcript Pub. Co., 74 Minn. 84.

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

<p>Fraudulent Conveyance — Title.</p> <p>The legal title to property alleged to have been transferred with intent to hinder, delay, and defraud creditors is in the fraudulent grantee, the fraudulent character of the transfer not appearing upon its face; and the title continues in such grantee, notwithstanding a sale of the property by a creditor on execution against the grantor, until the fraud is exposed, and the transfer set aside in some judicial proceeding.</p> <p>Statute of limitations.</p> <p>The title of a fraudulent grantee is protected by the statute of limitations, and, unless defrauded creditors effect a cancellation thereof in some appropriate action brought within six years from the discovery of the fraud, his title becomes absolute and unassailable.</p> <p>Action by Creditor of Grantor.</p> <p>The defrauded creditor may cause the property so transferred to be sold on execution against a fraudulent grantor, and then maintain ejectment to recover the possession of the same, but can recover only -upon establishing that the transfer was in fact fraudulent as to him; and that question must be tried and determined in accordance with the rules of law, statutory and otherwise, applicable to litigated questions generally. If it appear either from the pleadings, or from the evidence in cases where the pleadings do not disclose the source of title, and no opportunity is presented to plead the statute, that six years elapsed from the discovery of the fraud before the commencement of the action, his right to have the transfer set aside is barred by the statute of limitations, and he cannot recover. He cannot avoid the statute by bringing an action in ejectment, instead of an action to remove a cloud from his title.</p> <p>■Execution — Statute of Limitations.</p> <p>In cases where the creditor levies upon and sells the property on execution, the statute of limitations commences to run from the date of sale, unless it be made to appear that the creditor did .not discover the fraud until some later time. .</p>

Action in the district court for Hennepin county to recover $1,075 for personal injuries. From an order, Harrison, J., sustaining a demurrer to the complaint, plaintiff appealed.

In proceedings instituted in the district court for Ramsey county by plaintiff on relation of the attorney general, a receiver was appointed for defendant, an insolvent corporation. The assets being insufficient to pay the depositors in full, application was made by the receiver, under Laws 1899, c. 272, for an order making an assessment upon the stock of the insolvent bank. From an order, Brill, J., denying his application, the receiver appealed.

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

Action in tbe district court for Aitkin county to recover $11,370, the contract price of railroad ties sold and delivered to defendants. The case was tried before Cant, J., sitting for the judge of the fifteenth judicial district, who, upon conclusion of the testimony, granted a motion to dismiss the action. From an order denying a motion for a new trial, plaintiffs appealed.

Action in the district court for Nicollet county to recover $6,000 for personal injuries received from a fall caused by a defective sidewalk. The case was tried before Webber, J., and a jury, which rendered a verdict in favor of plaintiff for $1,250. From an order denying a motion for a new trial, defendant appealed.

Action in the district court for Hennepin county to enforce specific performance of an agreement to satisfy the judgment described in the opinion. From an order, Harrison, J., striking out the demurrer of defendant Kohler to the complaint, he appealed.

Appeal by defendant from a judgment of the district court for St. Louis county entered pursuant to the order of Dibell, J. The book known as the tax duplicate list was used as, and is, ■a full compliance with the statute as an assessment book,- sufficient to give notice of the expiration of redemption. The tax duplicate list is the book where the assessment is recorded. It contains the certificate of the county auditor.

Appeal by plaintiffs from an order of tbe municipal court of St. Paul, Hiñe, J., vacating a judgment by default entered against defendant, and dismissing tbe action for want of prosecution.

RES JUDICATA. After the decision of the supreme court in the former appeal in this case had been rendered, its mandate reversing the order ■of the district court for Hennepin county was filed in that court. Thereupon an order was made, Harrison, J., granting plaintiff’s motion for judgment against the defendant and intervenor notwithstanding the verdict, and directing a delivery of all the bonds and coupons to plaintiff.

Action in the district court for Hennepin county to recover $738.50, and interest, commission earned on the sale of real estate under a contract with defendants. The case was tried before Simpson, J., and a jury, which rendered a verdict in favor of defendants.

Petition in the district court for Ramsey county for a writ of mandamus commanding Edmund W. Bazille, judge of the probate' court for said county, to proceed with the distribution of the estate of Stina Johnson, deceased, without requiring payment of the so-called inheritance or transfer tax provided for by Laws 1901, c. 255, and to make and enter the final decree requisite therefor.

Separate actions in tbe district court for Ramsey county, the first against defendants, Diamond Iron Mining Company, Frederick E. Foster and William J. Tully, to recover $1,250, the balance of a commission earned by plaintiff on the sale of real estate; the second to recover from defendants, Frederick E. Foster and William J. Tully $1,875 had and received by them to the use of plaintiff.

Action in the municipal court of St. Paul to recover $484.92 for breach of contract of employment. Attempt was made to serve the summons on defendant by service on his agent, pursuant to the provisions of Laws 1901, c. 278, defendant being a nonresident and absent from the state of Minnesota. Judgment by default was entered in favor of plaintiff for the sum demanded.

Action in the district court for Otter Tail county to recover .|82.08, and interest, for the conversion of wheat. The case was tried before Baxter, J., and a jury, which rendered a verdict in favor of plaintiff for the sum demanded. From a judgment entered pursuant to the verdict, defendants appealed.

Action in the district court for Hennepin county to recover $1,875 for personal injuries. The case was tried before McGee, J., and a jury, which rendered a verdict in favor of plaintiff for $1,06G. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.

Action in the district court for Swift county to determine the adverse claim of defendant, as assignee in trust for the Hastings & Dakota Railway Company, to a quarter section of land in possession of plaintiff. The case was tried before Qvale, J., and a jury, which rendered a verdict in favor of plaintiff as to the north half of the quarter section.