Volume 9 — Minnesota Reports

Points and authorities of Plaintiff in Error. First. — The payments of interest on the bond by Hollinshead take the case out of the statute of limitations, and the last payment having been made September'26, 1857, -within six years of the commencement of the action, must operate to defeat the Defendants’ plea, It is tlie settled law in England that part payment, either of principal or interest, by one of several joint debtors, upon an existing contract, takes the case out of…

Points and authorities of Plaintiff in'Error. 1. The facts found by the com-t below entitle the Plaintiff in error to judgment under the statute, for the amount demanded in the complaint. The judgment below should therefore be reversed. The Plaintiff should have judgment in this court for that amount. Sess. Laws of 1851, {Gen. Less.) eh. 2, sees. 1, 2; Lev. Mats, of 1851,p. 62, secs. 4, 5; Ld.,p. 60, see. 2J1; Ld.,p. 384, see. 24. 2.

Points and authorities by Appellant’s counsel. I. The parol testimony objected to by Appellant’s counsel should have been rejected as not competent to establish a contract relative to real estate. II.

Points and authorities for Apjmllant. I.The complaint does not state facts sufficient to constitute a cause of action. It shows no title in Respondent. 1. The complaint discloses no authority nor facts entitling the mortgagee to give notice of foreclosure.

Points and authorities for Plaintiff in Error. I. The Defendant’s answer of another suit pending was not sustained by the evidence, and the charge of the court to the jury that they should find for the Defendant was therefore erroneous. Comp Sts.,p. 502, sec. 38; 4 JDenio, 120; 4 Sill, 508; 11 John., 175; 14 Id., 432; 2 Id., 192; é Id., 117; 8 Id., 391; 13 A?., 469; 3 Sill, 499; 2 Id., 658.

Points and authorities for Appellant. I. The verdict of the jury upon the contract is special, and upon all other issues it is general for the Plaintiff. Comp. Sts. Minn., ch. 61, sec. 35, p. 561. II. The jury, by their general finding, say in effect that the Plaintiff had performed a part of Ms contract, and had held himself in readiness to perform it entire, and that the Defendant, without any justifiable cause, has refused to allow him to complete the contract.

Points and authorities for Appellant. I. The garnishee summons is process within the meaning of sec. 14, of art. 6, of the Constitution; 5 Gilm., (III. B.) 100; see. 3, ch. 70, Laws of 1860; sec. 5, ch. 84, Comp. Sis.; 5 Minot., 847 ; 2 Comyn's Dig., brief A; 2 List., 40. II. The existence of certain facts and their proofs by affidavit are necessary to confer jurisdiction to issue the summons. Sec. 1, art. 5, Const, of Minn.; Morrison vs. Lovejoy, 6 Minoi., 188. III.

Points and authorities for Appellant. I. When a cause of action has arisen in another State, and a citizen of that State has had such cause of action from the time it accrued, no statute of limitations can be set up as a defence to such action except the statute of the State where it accrued. Pub Sts. Minn., oh. 72, seo. 39, pp. 629-30. * II. Sec. 39, oh. 72, of Pub.

Points and authorities of Appellant. I. No fraudulent intent is shown by the affidavit except by the wholesale conclusion sworn to, which could not by any possibility be within the personal knowledge of the affiant. These cannot be taken as evidence. Bowen & Me Oonnell vs,-IlanJcs, 1st Western Law Monthly, 113-14.

<p>Hule 43 of the District Court Buies, in so far as it allows a Defendant in » divorce suit, in case of personal service of the summons and complaint, witliirs tlio jurisdiction of the court, more than thirty days to answer, is in conflict with the statute, and tho time prescribed by the latter must govern.</p>

Points and authorities for Appellant. I. The complaint states a good cause of action against the Defendant, Wm. O’Keefe. 4 Minn., 1. II. There is no misjoinder of causes of action for the reason that there is only one transaction set forth in the complaint, and all of its parts arise from the same subject of action. III. If there is a good cause of action stated against one of the Defendants, a joint demurrer by all the Defendants sued does not lie.

Points and authorities for Appellant. I. Our statute enables a married woman to take, hold and own any property, real or personal, to which she may become entitled by gift, grant or devise from any source at any time after her marriage to the same extent as before marriage. Comp. Sts., p. 571, see. 105. r II.

Points and authorities for Plaintiff in Error. I.The.District Court erred in sustaining the demurrer on the third cause assigned. The complaint does state facts sufficient to constitute a cause of action, and entitles the Plaintiff to the relief demanded. 1 Story's ,Fq. Jur., secs. 186-88, 192, 221; 6 Ind., Hep., (Porter) 183; 5 BlacJcf. Hep., 509; 8 Car & P, 124. Points and authorities for Defendant in Error.

Points and authorities for Appellant. I. Before the act of 1853, (Oomp. iSts., ,) abolishing the Court of Chancery, the practice in actions pending in equity upon the death of the sole Plaintiff after decree passed, was to revive the action by Bill of Revivor, strictly so called, in all cases where the interest of the deceased was transmitted to that representative which the law gives or ascertains as the heir, executor or administrator, where the title could not be…

Points and authorities for Appellant. I. The evidence is not sufficient to justify the verdict in this case, and that said verdict is against the evidence. II. Error in law occurring- at the time of the trial. III.

Points and authorities for Appellant. I.Courts ought not to interfere by injunction except in cases where irreparable injury would otherwise be done to the parties, or they show themselves entitled to more immediate relief than can be obtained by the ordinary course of proceeding's. Story's Hq., sec. 864; 969, a. b.‘, 4 Minn., 294; 1 Minn., 61; Id., 274; 7 Id., 47. Points and authorities for Respondent.

Points and authorities for Appellant. I. The court erred in allowing the Plaintiff to offer in evidence the deed from Fish to Willoughby & Powers, and the deed from them to the Plaintiff, and the United States patent to Willoughby c% Powers, and the record thereof at the Land Office in Washington City, (s Q& folios 2 to 6 of Oase,) because there is no allegation in the complaint under which such evidence could be received. 2 JDuer, 673; Van Sant. PI., 253, 298, 299. II.

Points and authorities for Appellant. I. This contract imposed upon the Appellant only the obligations and liability of a gratuitous trustee, or an assign.ee for the benefit of creditors. To authorize an action to be maintained against him, it was incumbent on the Respondent to show that some loss had been sustained by his negligence, want of caution, mistake, or positive misconduct. Burrell on Assignments, eh. 4’7, pp. 55 3 to 559.

Points and authorities for Appellant. I. The proceedings in the Circuit Court of Grant County, Wisconsin, though in the name of the Appellants as Plaintiffs, were not taken nor prosecuted by them, nor by their authority: they cannot therefore he hound by them. Comp. Sts., 66T; Graham’s Prac., 45 to 47 inclusive and cases there cited; 8 John. Rep., 361; 10 Id., 220;, 11 Id., 467. II.

APPEAR ERGi; THE DISTRICT COURT OE RAMSEY COUNTY. Points and authorities for Appellant. • I. The criticisms, comments or charges in a public journal upon a public officer or upon the official conduct of one while in office, and who is ag'ain a candidate for high official preferment, even where they impute the commission of a public offence, are quasi privileged, and not, as in ordinary cases, presumed to be malicious.

This was an application to this court to compel the County Commissioners of Hennepin county to open a road, the location of which was established by “ an act to locate and open a State road from Yorkville, in Carver county to intersect the St. Paul road south of Gibson’s, in Bloomington township, Hennepin county,” approved March 4, 1863. Special Laws of 1863, 242. Points and authorities for Defendant.

<p>Wliero a contract is male for the purchase of goods ancl nothing is said about payment or delivery, tlio property passes immediately, so as to east upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying the price. "But if anj'thing remains to be done on the part of the seller as between him and the buyer, such as weighing, measuring, or counting out of a common parcel, before the goods purchased are to bo delivered, until that is done the right of property has not attached in the buyer.</p> <p>A memorandum of agreement for the sale of certain saw logs, signed by both parties thereto, and which shows that no payment was made at the time it was executed ; that a payment was to be made down, that is, before delivery ; that the logs had not then been scaled, and that a portion of the logs, of average quality, were to be retained for stumpage — Held, that such instrument was an executory contract, and did not show a completed sale.</p>

<p>Where a cause was noticed for argument in this court for the first day of the term, and the return had not been filed until after the opening of the term, the notice was premature, and the cause stricken from the calendar upon motion.</p>

<p>Although, oases may arise in which this court will review the decisions of ■Other courts by means of a common law writ of certiorari, after th,e expiration of the time prescribed by statute for appealing them, such cases are exceptional, and some good reason must be shown why the ordinary manner was not resorted ■to.</p>

<p>Under di. 21, laws of 1861, pp. 131-2, an appeal lies from any order made upon a demurrer.</p>

Points and authorities of Appellants. I. — The instrument in writing contains no covenant or agreement to convey the land in question. II. — It does not appear that the Plaintiffs have complied with said agreement on their part, and hence they cannot claim a performance thereof. 1. No tender has been made to Brown at all, nor to any person authorized by him to receive said money, whether as assignee or otherwise. 2. A tender is not good unless it is kept good.

Points and authorities for Plaintiffs in Error. I — The reasoning of the Judge below is plausible but fallacious, and, when followed out to its legitimate consequences,, would enable the Legislature to create the City Justice or any other court, independent of the Supreme Coiu-t, and not amenable to it, and one whose' decision would be final, and not subject to review at all; in short, another Supreme Court, either as to some subjects, or all subjects to a certain extent or…

Points and authorities of counsel for Appellant-. I. Mr. B. in this cause sues merely for the use and benefit of the Indians as trustee of an express trust. Comp. Sts., 535, (29). II. The title of the complaint is defective in not showing the characters of the Plaintiff, but as such representative character is fully shown in the body of the complaint it is enough — moreover, all such irregularity is waived by answering. Comp.

APPEAL PROM THE DISTRICT COURT OP HENNEPIN COUNTY, Points and authorities of Respondent. I. — The facts alleged arc sufficient to constitute a cause of action for damages. II. — The facts alleged are sufficient-to constitute a cause of action to abate the nuisance. III. — The District Court only has jurisdiction of the cause of action to abate the nuisance, and of the amount of damages claimed.

Points and authorities of Respondents. I. — A motion to set aside a judgment, and for leave to answer, is addressed to the discretion of the Court, and an order granting the same is not appealable, except in cases of palpable abuse of the discretion possessed by the Court. My rich vs. Pierce, 5th Minn. B., 65; Swift vs. Fletcher, 6 Minn. B., 550; Merritt vs. Putnam et al., 'Uh Minn. B., 498.

Points and authorities of Counsel for Appellants. I. The complaint in this action shows no connection between the various conveyances alleged — shows no conspiracy, privity or concert of action among the various transferees. II.

Points and authorities of Appellant. I. — The complaint in this action states facts sufficient to constitute a cause of action for use and .occupation ; and duplicity, or irrelevant and redundant matter, or a radical variance, cannot afford any ground for dismissing the action.

Points and authorities for Appellant. I. The justice, and not the court above, is to approve of the sureties (on an appeal bond). The statute does not require that the. surety should justify. Seo. 136, subd. 2, p. 517, seo. 125, p. 575, Oomp. Sts.; 1 Gowen, 576. • II.

Points and authorities of Counsel for Appellants. The Court was wrong in overruling the offer of the Defendants, made on the trial, to prove, in mitigation of damages, that the premises described in the complaint were obtained from the Defendant Neil, by the Plaintiff Jacobs, by fraud and false representations.

Points and authorities for Appellant. I. — The tax deeds set up in the complaint are prima facie evidence of the validity of the taxes under which the same were executed, and of the facts recited in such deeds, as far as they affect the force or validity of the title conveyed by said deecls. Charter of the City of Wab'ashaw, chap. 6, secs. 19 and 20; 18 Ohio Hep., p. 400.

Points and authorities of Plaintiff in Error. I. — The summons was not subscribed, as required by law. II. — There was never any proof presented to the clerk of service of summons, nor of default. Points and authorities of Defendant in Error. The summons was regularly subscribed by the attorney of the Plaintiffbelow.

Points and authorities of Appellant. The district judge erred in refusing the instructions asked by Plaintiff’s counsel and in the instructions given to the jury. The contract under which the Defendant claimed title was a written executory contract. No title passed by it from Plaintiff to Defendant. By this contract the Defendant obtained a right to the piano upon and only upon performance of the contract.

<p>Tlie recording acts do not authorize the recording of a certified copy of the record of a deed.</p>

APPEAL PROM THE DISTRICT COURT OF 2ÍTCOLLET COBHTY. Points and authorities for Appellant. I. The Respondent does not complain nor allege that a notice of appeal was not served both upon Ms attorneys, and upon the clerk of the district court within the proper time, (for such was the fact). II.

Points and authorities of Appellant. I — It distinctly appears that the Defendant is a foreign corporation, established by the laws of Illinois. II. — It also distinctly appears that said foreign corporation has property within this State. III, — -From these jn'cmises it necessarily follows that the Court has jurisdiction of the Defendant to the extent of its property within the State; and that the summons could only have been served by publication, see. 37, p. 629 Qomp.

Points and authorities for Appellant. I. The alleged defect in not filing the estimate required by the charter of the city in such cases is cured by reason of there having been no objection made by the property owners by appeal or otherwise. See'secs. 6, 4, 10, 11, ch. 8, Oity Ohmter j Act of March 3, 1854, Laws of 1854,30-32.

<p>At a general term of the District Court, an entry was made in the records of said court in the following language :</p> <p>“ Christopher Carli vs. Jackman & Gardner and Canute Anderson. — This cause having been brought before the Court and submitted, on the 12th day of April, 1S62, after argument, upon motion of Plaintiff, to correct tie records of this court, and set aside the return upon the execution, and the same having been duly considered by the Court, it was ordered that the motion be denied.” Held, That this was an order sufficient in form, and no appeal having- been taken therefrom, decisive of the motion, a similar order, subsequently entered in the records of the court by the clerk, without any order of the Court to that effect, was unauthorized and inoperative to revive the Plaintiff’s right of appeal.</p>

Points and authorities of Counsel for Appellant. I. Property acquired by a wife while deserted by her husband is regarded as her separate estate. 1 Ath. Hep., 2Y8; 2 McQueen, on Sus. and Wife, 323; 4 McCord's Pep., 148; IV Sergt. S' Pawle, 130; 1 Pet. Pep., 480; 1 Vernon, 104; 1 Pos. S Pul., 359; 15 Mass. Pep., 31; Bell on Prop, of Sus. S Wife, 48V; 25 Law Pep., 352; Robert's Eq., 156; 2 Story's Eq. Jur., secs. 1385-8V; 8 Placlcf. Pep., 240-42. 2.

Points and authorities of Counsel for Appellant. First — The Court erred in the first charge to the jury. (See opinion.) Because— 1. — The testimony of the Appellee himself, as well as other evidence, shows that the Appellee was treated not only by the Appellant for his broken limb, but by other surgeons and physicians. See Folios 27, 28, 29, 30, 36, 37, 40 to 45, 54, 57, 64 to 77, 88 to 100, 118, 119, 122, 123, 127, 128, 129.

Points -and authorities for Appellant. I. — In the moving papers upon this application in supplementary proceedings, the Appellanthad complied with all the conditions by law required, and was clearly entitled to the order prayed for. Comp. Stats., sec. 121, p. 5Y4, and see. 129, p. 5Y5.

Points and authorities of Counsel for Relator. I. It is competent for this Court to grant the relief sought by the Relator. Oom. Stat. p. 475, sec. 5; alsoyi. 632, sees. 4-8; 2 Minn., 343. II. The writ asked for in this motion is the proper remedy.— Because, First — If the law be with this application, (there being no issue of fact,) it is apparent that no valid excuse can be given for the non-performance of the acts demanded of the Commissioners.— Oom.

APPLICATION POR WRIT’ OP MANDAMUS. Points and authorities for Respondent. The Constitution provides that the term of office of Judge of Probate shall be for two years. Section 1, Art. 6, Constitution (State), and can only be determined within that time by act of the party himself.

Points and authorities for Appellant. I. — The Court below erred in the charge and ruling, upon the question of estoppel. See 6 Minn., 291; also, 8 Minn., 189.

.Tbis was an equitable action, commenced in the Court below, 'by the Respondent against the Appellants; the following is a statement of the substance of the pleadings: The Plaintiff alleges that, on the 16th December, 1868, the Defendant, Jacob Myers, executed and delivered to Plaintiff a bond conditioned in the sum of $1,600 for the conveyance of certain real estate, upon the payment of the sum of $1,000 upon demand.

Points and authorities for Appellants. The demurrers were improperly overruled by the Court below. I. — Because it is not alleged in the amended complaint that in the action of C. Grant Lewis against the Respondent, the value of the personal property was assessed or adjudicated, or that judgment was recovered for any amount. Comp. Stat. chap. 61, sec. 38,p. 561.

<p>APPEAL EROM THE DISTRICT COURT OE WABASHAW COUNTY.</p>

Points and authorities of Appellants. I. — The Court erred in -excluding certain testimony offered by the Plaintiffs upon the trial, and also in receiving certain testimony offered by the Defendant Havens, under objections from the Plaintiffs’ counsel.

Points and authorities of Appellant. I. — Several causes of action have been improperly united in the complaint, to wit, a cause of action for the recovery of the premises therein described, is united with a cause of action for the use and occupation of the same premises. II. — The complaint does not state facts sufficient to constitute a cause of 'action. 1.