St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-11-08
SUPREMEC COURT DECISIONS
Seven Important Cases Properly Set
tied.
RAILROAD COMPANIES LIABLE
Care Must Be Exercised in Preventing
Collisions and Manning or Killing
Passengers.

appellant.
This was an appeal from an order de-
nying motion TO set aside Judgment
entered against him in the district
court, August 1888, the defendant never
having appeared i'm the motion. The
motion raised the question of the juris-
diction of the court. After proper
proof of the non-reSidence of the de-
PENDANT, and of want of knowledge as
to his place of residence. the summons
was published in the st. Paul
DAILY GLOBE. and upon proof by
affidavit of such publication and Of
the defendants default, the cause
was brought to hearing and judgment.
The asserted jurisdictional defect is
that the summons was not published
''once in each week. every six consecu-
tive weeks. as provided by the statue.
the summons was published in the
GLOBE "for the period Of six success
i've weeks, commencing the 23rd day
of June, 1883. on which day it was first
published, and ending on the 4th of
August, 1883, on which Gay it was last
published" The affidavit is referred
to in the judgment itself as the proof of
service upon which the court enter
tanned jurisdiction.
SvllabuS-The record of judicial pro-
ceedingS stating the manner in which
the summons was served Thy publica-
tom against nonresident defendant,
who was personally beyond the juris-
diction of the court. 1t will not be pre-
Sumed that every proof of service was
made to the court than that shows in
the record and recited i'll the Judgment,
nor that the court acquired juris-
affi oofi vol
shown. Ullman VS.. Lion, s MINI. 3S1,
and Golcher VS.. BriSbin, 90 MINI. 453,
followed to the effect that proof publ
cation for six successive weeks" does
not show tine publication to have been
made "once in each for the per period
named" Carter VS.. jackson, % Mimi.
26S, overru1ed upon the ground that he
appeals in court after the rendition of
a Judgment which is void for want Of
jurisdiction is effectual to render that
judgment Valid
An important decision affecting the
liability of railway companies was given
in the case of Margaret Flaherty, adj
ministratriX of the estate of Michael
Flaherty, deceased, respondent, VS.. the
Northern Pacific Railway company,
and the Minneapolis IL st. Louis Rail
way company. appellants.
pany appealed from an order Overruling
its demurrer to the plaintiff. Plaintiffs
interstate was passenger upon train
of the Northern Pacific company, and
was killed in collision with st. Louis
train, the collision being caused by the
negligent manner of the operation of
both trains.
Syllabus: SIN an action against two
railroad companies for the killing of
passenger in a train of one of the de-
PENDANTS in collision with train of
the other, complaint alleging negli-
gence in the operation of both trains
held sufficient. The negligence of the
carrier i'll whose train the deceased was
passenger is not importable to him.
Such an action may be maintained
Jointly against both the parties whose
concurrent negligence directly pro-
duced the one event complained of.
The court. in everything the demurrer
to a complaint, allowed the defendant
to answer within ten days upon the con-
dition of going to trial at term of court
then being held Held, that the impos-
ing of this condition was not the abuse
OF discretion"
A matter of interest to creditors is
raised in the appeal of William p. Dale.
appellant. VS.. Joseph 2. Wilson and
Mary p. Wilson, respondents.
This action is sufficiently explained
by the syllabus: "a Judgment debtor
who has neglected to exercise reason
able diligence to enforce his judgment
until it has expired by statutory limita-
ton is not entitled to equitable relief to
enforce the satisfaction of the extinct
Judgment. A Judgment creditor who
accepted the bare statements of his
a. nc m |, j. 10 In
faith of the parties in respect to rec
ord of membranes, without re-
sorting to the usual proceedings
provided for the discovery of
fraud, and to reach concealed property.
held to have been negligence. The
rule excepting cases of trust from the
operation of statutes of Limitation is not
applicable to mere resulting tlust.
The money Judgment held recoverable
upon former judgment, although no
case for equitable relief is shown"
The appeal Of August Erickson, re-
spondent, VS.. Charles G. Bennett and
Jennie Bennett, appellants, is of
especial Importance to real estate
buyers.
1t is an action for damages for the
breach of contract executed by the
defendants to the plaintiff, whereby the
stipulated price to convey to the latter
certain lot of land. The plaintiff paid
1925 of the purchase price, went into
possession under the contract, and
erected dwelling house thereon. He
was subsequently evicted by third
party, who was the real owner, the de-
PENDANTS having no title when they
made the contract, or, so far as appears,
had at any time.
Syllabus-Proof of false representa-
tionS concerning his title by one con-
tracing to sell real estate, held to JUS
tify an averment of fraud. In an action
by the vendor for the breach of such
contract the recovery is not strictly linn
tied to the amount of the purchase price
paid. with interest. In case of fraud, or
where one contracts to convey anything
that he has no title and cannot perform
on his part, the damages may be meas
ured by the ordinary rule of compenSa-
ton for the injary suffered, and may
include reimbursementS for improve
ments put upon the estate.
James IverSon ct al, respondents, VS..
John Duboy. appellant.
SyllabuS-"In ali action for the re-
covery of the price OF goods sold, proof
that the purchase price was less than
that alleged in the complaint held not
TO constitute material variance. Re-
fusal of the court at the trial to allow
an answer, setting up counter-claim
10 be amended SO as to make it applica-
bic to wholly different subject, sus-
tanned as a proper exercise of discre-
ton.
c. Aultman & Co., respondent, VS.. Nor
ris Il. Brown, appellant.
SyllabuS-'A written contract IAN ac-
ceptance) cannot be varied by proof of
temporary parol agreement importing
conditions not expressed i'll the writ
ing"
ROUTINE OF THE CALENDAR.
The routine of the court yesterday
was:
State of Minnesota ex rel, Neil Cur
RE, respondent, VS.. E. K. Weld, as