St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-12-20
Safpreyae Court.
OPINIONa

as assignee, etc, Charles L. vance, ap-
pellant.
syllahus-Under the mechanics lien law
(chapter 80, general statutes 1879 when the
building ON which the lien Is claimed Is sit
uatcd upon tract Of land containing q
greater area than that upon which q lien Is
given. II IS not necessary that the claimant
should In his affidavit aud claim of lien
come out aud describe the statutory amount
Il Is sufficient II he describe the building
and the entire tract upon which It stands.
The court, II necessary, can determine and
ix the shape in which the statutory amount
subjec, to the lien shall be carved out Of the
entire tract. Remarks in Tuttle & Howe, IA
MINI. l45, indicating q different view or
mere O5iilsr.
When the building Is described so as 10
identify IL, aud the tract of land upon which
il stands, the fact that the claimant mbraees
IN his claim for a lien other lands not in
cluded in the tract and cartilag upon which
the building Is situated (no fraud being sug-
gested, aud it not appearing that any per-
son has been missed or his rights preiudicrd)
will not iuvalidAte the lien, but It will be
neld good 10 the extent It is recognized By
the statute.
1t is not necessary that an action to enforce
= lieu should be prosecuted 10 judgment
within the period mentioned In sections
aud during which the ding Of the account
alone continues the lien. II commenced
within that period IL may be prosecuted to
judgment aud the Judgment enforced, not
outstanding that the expiration of such
period intervepes.
Judgment affirmed. MITCHELL, j.
Gillian being absent owing to Illness took
no part.
Eva Clapp formerly Morse Administrative
Of the estate of Henry L. Morse, deceased,
appellant, VS.. the Minneapolis IL ST. Louis
Railway company.
Syilabus-An order granting a new trial
upon the ground that the verdict is not justi-
lied By the evidence sustained under the rule
laid down in Rheimer VS.. r. r 90 Mime
sofa, las. By THE COURT.
John A. Lucy, respondent, vs.. Charles F.
Wilkins, A. L. Tate, and w. H. Furber,
ct al; George G. Jae"by, appellant.
Syllabus-A guarantor Of the payment of
rent accruing on a written lease, whose un-
dertaking is endorsed thereon may be sued
jointly with the principal debtors. Hamill &
Beardsley, 81 Minnesota, 3l4. Order af-
6rmed and cause remanded for further pro-
ceedings. VANDERBURGH, J.
The State Of Minnesota, ex rel, +. W. Luly, re-
lator, VS.. Orlando Simons, respondent.
Syilabus-Chapter 73, general laws, 1888,
provides for the Incorporation of villages
upon petition to the judge of the district
court; that upon hearing OF such petition
the court may proceed 10 hear
proof for or against the Incorporation
and take such evidence as il shall deem
necessary, and that IL the court after much
hraring is satisfied ''that the lands embraced
IN such petition or any part thereof ought %
be included in said proposed village, and
that the interests Of tue inhabitants will be
promoted thereby, 1t shall make an order de-
claring that such territory, the boundaries of
which shall be therein set forth BY metes and
bounds, and which may be diminished or
enlarged by such court from the boundaries
specified in the application, as justice may
require, shall be an incorporated village"
Held, That this act is unconstitutional
for the reason that 1t assumes to delegate
legislative powers to the district court. a tri-
to exercise such powers.
That writ OF prohibition will lie against a
judge Of the district assuming to exercise
such powers under this act Let the writ
issue. MITCHELL, j.
State Of Minnesota, plaintiff, vs.. Patrick
Williams, defendant.
Observation-Disclosures under General Stat
utes, chapter 80, section IA, for fraLEulent
sale of mortgaged personal property. Held,
that an allegation that defendant ''sold aud
disposed of the property Of one, A B and
divers other persons whose names we're to
the grand jury unknown" charges only one
offense. The indictment that defendant ex-
ecuted q mortgage ''of which q true copy Is
hereunto attached, marked E. A and hereby
made part thereof" A copy of the mort
gage thus marked was attached. Held, that
while the practice OF attaching an instru-
ment as an exhibit, instead of Incorporating
it into the body of the indictment, is a loose
and Objectionable practice not to be encour-
aged, yet upon demurrer the exhibit must be
deemed part OF the indictment
The expression, shaving conveyed by
mortgage, ''as used in the statute, simply
means shaving executed q mortgage
II is not necessary To allege in the iudict-
ment that the defendant was the owner Of the
property mOrtgaged-
A growing crop Of grain is personal prop
perty within the meaning of this statute
Conclusion of opinion: This dispOses OF all
the questions raised oy the demurrer, and
the result Is that, in our opinion, it was prop
eriy overruled. MITCHELL, ].
Cushman <. Davis, respondent, vs. Chas.
P. Chonteau and Julia Moffltt, appellants.
syllabus-The code provides (Gen. ST.,
chap. &C, secs 90, "a and 95) that where
there is defect of parties. plaintiff or de-
fendant, II the defect appears on
the face Of the complaint, the
objection may be taken by de-
murrer; II the defect does not appear
on the face of the complaint, the objection
may be taken by answer; IL no such obiec-
ton is taken either by demurrer or answer,
the defendant Is deemed 10 have waived the
same.
Held-That these provisions apply to de-
feet Of parties plaintiff In actions &c contracts
as where q member Of partnership Is not
joined as plaintiff in an action on'S demand
due the firm; and IL objection is not taken
to this defect by answer It cannot be raised
upon the trial upon q motion for 8 non-suit
on the ground Of variance or failure of
proof.
II the objection be appealed from 1t must
distinctly set up the defect Of parties as de-
Tense, and must allege wherein the defect
consists, specifically stating who should
have joined as plaintiff.
Order affirmed.
MITCHELL, J.
D. NJ. Osborne & Co., respondents, vs.. Is
rael POket aDnelfaut fN.