St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-11-17
SAINT PAUL.
SUPREME COURT MATTERS
Nine Decisions Argued Upon by Wear
ers Of The Ermina.
DESERTED BY HIS WIFE.
LITIGATION Ended in Number Of In
portaut Gases---A Spark Arrester
Which Was Not Practicable.

broken Stlpuiatl0nS. were the SUBJECTS
Of number of appeals settled yesterday
in the supreme court, nine decisions
being filed by Judges Dickinson and
Collins. &.
One appeal, involving several inter-
esting points of law, was that entitled
Frank Wagner. respondent, VS.. Amelia
Wagner, appellant. This was an action
for divorce upon the ground of desertion
and adultery. The action was COM
menced in 1887, the court finding in
favor of the plaintiff upon the ground of
deSertion alone, and ordering Judgment
for a divorce. The defendant APP
pealed from an order refusing
n new trial. In 1884 the wife. having
left her husbands home, commenced an
action for divorce on the ground Of cruel
and inhuman treatment. Upon trial on
that occasion the relief sought was de-
MED. In 1885 the husband sued for di-
vorce on the ground of adultery. After
a trial relief was refused in that action
also. Later in 1855 the wife sued for a
limited divorce on the ground OF the
husbands conduct being such as to
render cOhabitatiUn unsafe and i'm
proper. The relief was also denied, and
the wife appealed to the supreme court.
4 new trial was granted and that action
is still pending in the district court.
During the pendency of these actions
the court made allowance out of the
property of the husband for the support
OF the wife, she living apart from him
ever since June, 1884. The question is
presented whether the finding by the
court of wiliful desertion continued dur
ing the period of thee years was juSti
fed in view of the commencement and
tendency. during part of that time, of
plaintiffs action for divorce upon the
ground of adultery.
Judge Dickinson dealt with this ap-
peal and filed the follwing:
Syllabus-If a wife, who has deserted
her husband without just cause. there
after SO wrongfully conducts herself as
to Justify and induce her husband to
sue for divorce on the ground of adul-
terry, the tendency of such action, al
though she be not in fact guilty, will
not suspend the effect of her desertion:
and after the lapse of the statutory
period the husband may MAINTAIN an ac-
ton for divorce for such desertiOn. A
deSertion does not cease TO be such by
reason of the tendency of actions pros
ecuted for a divorce by the deserving
party, if the continuance of the Separa-
ton is for reasons foreign to those for
which such actions are prosecuted. a
provisional allowance for tue support of
the deserving party during the tendency
of such actions does not determine the
question of desertion. A court may, in
its discretion, allow trial to proceed,
although one of the parties may be in
for nhnIiQnan .,f n n ord OF.
of court. An application for prOviS
ional allowance i'll an action for divorce
is addressed to the discretion Of the
court.
FIRED BY A LOCOMOTIVE.
An appeal of some importance to rail
road corporations is that of Sophronia
Dean, respondent. VS.. The Chicago,
milwaukee, IL st. Paul Railroad Com
pany, appellant In this suit plaintiff
obtained damages for fire caused in the
plaintiffs open field. about sixty feet
from the railroad track and far away
from any building or highway. De
fen ants appealed, bringing forward
teStim 0ny that the locomotive was fitted
with an improved spark arrester.
Judge Dickinson disposed Of the aD-
peal as set forth below:
SyliabuS-Evidence considered as
sufficient to justify the conclusion that
Il fire, which started i'll an open field
near railroad track Immediately after
the passing of a train, was caused by
the engine. An expert witness for the
defendant testifying that with the ap-
planes in use to prevent such acct
dents the fire could not have been so
caused unless the engine had been out
of repair. considered in connection with
the statutory presumption Of negli-
gence, as juStifying 4 verdict against
the defendant, although otlier evidence
tended to eXculpate the defendant.
TAX TITLES IN DULUTH.
An interesting tax title suit was de-
cided by Judge Collins, that of S. ID.
Stocking, appellant, VS.. st. Paul Trust
Company ct al, respondents. Action
was instituted to determine an adverse
claim to several lots in the city of Du-
luth, originally bought from Thomas
Bowen, who died pending the litigation.
and whose legal representatives were
substituted as defendants. Deceased
claimed title to the property through a
tax certificate issued to the state by the
county auditor. and subsequent assign
ment Of the right and interest of the
state to him. Upon trial defendants
asserted that the certificate of sale had
been lost or destroyed, and against
plaintiffs objection parol evidence Of
their contents was received in evidence
SyliabuS-Secondary evidence of the
contents OF an instrument alleged to
have been lost or destroyed is inn
properly received when the testimony
wholly fails to show that the instru-
ment once existed. And it must further
be shown that. the production of the
primary evidence is out Of the party
power. 1t will not be presumed that
certificates made by the county auditor
where prope. ty was bid in by the state
at fax sale held in the year 1874 re-
manned in the Office of the auditor sub
Sequent TO all assignment by the state
TO an individuality all its right, title
and interest in the property described
Ill and conveyed by said certificates.
NEGLIGENT ABOUT \ SUMMONS.
The other appeals raised no questions
of vital Importance. Three decisions
were filed by Judge Dickinson, as
follows:
Patrick Bray, is administrator of the
estate Of Timothy Ryan. deceased, APP
pellant, VS.. The Church of ST. Bran
don, of Green Isle, Mimi, respondent.
Action having been commenced by
the service of the summons upon
the treasurer of the defendant-a re
ligiouS corpOration-tlle defendant made
no appearance and judgment was en-
tered by default. Upon a motion based
upon affidavitS going to excuse the de-
fault, the court set aside the Judgment
and allowed an answer to be interposed
upon the payment of costs. This appeal
is from that order.
Syllahus-An order setting aside 4
Judgment by default and allowing the
defendant corporation to defend, sus-
tanned, although the default was oc-
casioned by negligence or intentional
omission Of duty Oh the part of the
agent upon whom the summons was
served. Order affirmed
RESPONSIBILITY OF PARTNERS.
Jonathan ii. Brown, respondent, VS.,
c. ID. Vernon and George S. Grant. CO.
partners in the Vernon Dairy COM