Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1882-01-03
THE COURTS.
Supreme Court October Term.

Edward L. Davis, appellant, VS.. Luther B.
Hudson, and Mary Hudson, respondents
Syllabus-A probate court of this state may
properly appoint guardian for nonresident
minor as respects any estate which the minor
may have in the county where such probate
court is established. If a general guardian be
appointed in such circumstance the appoint
ment is good to the extent of the minors es-
tate within the jurisdiction in which 1t is
made.
Under section 10, chapter SO, general sta
tue authorizing the appointment of a guardian
for nonresident minor, ''after such notice to
all persons interested as the Judge shall order
and full hearing and examination, the notice
jurisdictiOnal, and it is only upon notice
that the Judge of probate is authorized to ap-
point. Section AZ, chapter 81 Gen.
Stat. tenacts that in case of an
action relating to any real
in which the word n shall co ntrol the
validity of the sale it shall not be avoided on
account of any irregularity in the proceedings
provided it appears that the guardi-
an was licensed to make the sale by the pro-
bate court having jurisdiction" etc.
Held, Following Montour VS.. Purdy, II,
MIMI, 1856, that under this section the pro-
ceedings of probate court in reference to a
guardians sale may be drawn in question by
ceedings and upon the grounds in section ~,
specified.
Held, Also that the appointment of guar
dian not being proceeding in reference to
guardians SALE its validity is not collaterally
assailable under section AZ, but that its proof
is governed by the rules of evidence applicable
in other analogous cases.
The probate courts OF this state are courts
OF record and courts of superior jurisdiction.
Thar raonrds i'm ohcn1ufa uorifu and their
proceedings possess, as a general rule, the
same presumption of jurisdiction presented by
courts of superior common law jurisdiction.
Where probate court possesses general juris-
diction of given class of of subject matters,
the possession of jurisdiction assumed to be
exercised in particular case falling within
that class, is In collateral proceedings pre-
sumed, or as the rule may be otherwise
stated, the particular case is not intended to be
out of its Jurisdiction, unless it affirmatively
appears to be SO, but the affirmative appear
ance must be an affirmative appearance upon
the face of the record itself. This general rule
of presumptioc appears to be somewhat modi-
fed by section II, CHI. 81, general statutes.
(Section 81, CHI 81, G. S. 1878
The rule of presumption applied to the case
of the appointment of a guardian for non
resident minor having estate in this state,
| the records being silent upon the matter OF
notice of the application for such appoint
ment, such notice is presumed in collateral
proceeding.
Letters of guardianship are proper to be re-
corded upon the record books of the probate
conrt, both under sub. div. 8, Sec s, oh. 49,
gen. stat. 1878. When recorded the records
ere as the production of the original letters,
and without accounting for their absence.
The transfer of such letters, as we'll as of an
order appointing guardian, may properly be
made by clerk of the probate judge, under
the judges direction. The fact that they are
transcribed some years after they were origin
ally made out does not deprive the records of
their evdentiary value.
Montour VS. Purdy, II Mimi, 1885, and Rum
Grill VS. First National Bank, N. w. report
731, followed and applied. Judgment af-
frmed. BERRY, j.
John A. Bratken VS. The Minneapolis & st
Louis Railway Company.
Syllabus-In order to the establishment of a
public street or highway through common
law defeating it is not necessary that any
formal act of acceptance ba the public author
tiles be shown.
Acceptance may be shown by user, by the
public, and by an actual assumption of care
and control over the street by the public
authorities as by grading or working upon it.
The owner of lots AUDITING on a public
street has such special interest in the street,
different from that of the general public,
as to entile him to maintain a
private suit for damages against
party who wrongfully obstructs the street
| in front of or near his property, but not upon
his SOIL so as to cut off all public access to it,
| The measure of damages in such case is not
the diminution in value of the AUDITING prop
| erty by the wrongful obstruction, the injury
| not being to the freehold, not permanent in
| its nature, but should be confined to compen-
| sation for the injury occasioned by the unlaw-
| full obstruction up to the time of the CON-
| mencement of the suit.
Where view of the premises is allowed to
the jury such view is not for the purpose of
furnishing evidence upon which verdict is
found, but to enable the jury better to unde.
stand and apply the evidence given in court.
1t was therefore error to instruct the jury that
| they might use their own examination and
judgment, as we'll as the judgment of the wit.
nesses, in estimating the damages; followin g
| Chute VS.. State, 10 MINI. 2S1.
| Order reversed and new trial granted
CLARK, j.
Conrad Bohn and Edward P. Wilce, respon-
dents We T n MoCarthv ond Thorn os