St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1888-11-13
SUPREME COURT DECISIONS
Chief Justice Gilfillan Hands Down a
Number Of Gases.
ATTORNEYS BIND CLIENTS.
Statute of Limitations Does Not Consti-
tute a Bar to the Right Of the State
to Assess Taxes.


ing the present October term.
Dennis Bray. respondent, VS.. Dennis
Doheny.appellant. Action in ejectment;
plaintiff had verdict and Judgment
was entered upon it. The defendant,
within the time prescribed by the stat
ute, paid the costs and demanded a sec
ond trial. About a month afterwards,
the attorneys for the respective parties
signed a stipulation as follows: That
the demand for a retrial of said action
be and the same is hereby dismissed,
without costs to either party" Defend
stipulation, which motion was denied,
and the defendant appealed. The only
ground on which it is claimed the stipu-
lation ought to be set aside is that
the defendants attorney had no author
ity to make it.
Syllabus-An attorney for the de-
PENDANT in an action in ejectment has
authority to bind his client by stipu-
Iation to dismiss demand by defendant
under the statute for a second trial.
Order affirmed.
The State of Minnesota, respondent,
VS.. Winona IL ST. Peter Land Com
pany, appellants.
Judge Giifllan, entering fully into
this appeal, said: The point made by
the defendant, that the lands involved
were exempt from taxation was decided
adversely to the defendant in State VS..
Winona Il st. Peter Railroad Company,
81 Mimi, 472, and The State VS.. Weber,
81 N. w. Rep. $40, which decision we
adhere to. Following the decision in
the latter case, we hold that the statute
of limitations is no bar to the right of
the state to assess the taxes OH lands
for years in which they were omitted
from the assessment. The statute, sec.
lib. chap. IL, General Statutes 1878, as
1881, provides that If any real or
personal property shall be omitted in
the assessments of any year or years
and the property shall thereby escape
taxation, when such omission shall be
discovered the county auditor shall
enter such property on the assessment
and tax books for the year or years
omitted. and shall assess the same and
extend all arrearageS of taxes properly
accruing against said property, with Z
per cent thereon from the time said
taxes would have become delinquent.
and the same shalt be extended against
such property on the tax list for the
current year. From the certificate of
the findings Of fact by the court below
it appears that the amount of taxes in
serted in the list was made by assessing
taxes, interest and penalty for each
year in which assessment had been
omitted. The defendant complains only
of the penalties thus added to the taxes
each year. Without inquiring whether
the legislature could impose a penalty
for non-payment OF a tax while one has
no opportunity to pay it, it is enough to
say it has not assumed to do SO. There
is no warrant in the statute we have
quoted for including penalties in the
amount assessed. The court below will
ascertain how much of penalties WAS SO
included in the assessment and exclude
the amount of them from the amount of
the Judgment" 49, :.
SyllabuS-Section Is. chap. IL, General
Laws 1878, as amended by section l,
chap. 5, Laws 1881. providing for assess
ing taxes upon property for past Years
in which such taxes had not been as
SeSSed. does not authorize the including
in such assessment of penalties Tor such
year. Judgment ordered modified.
T. G. Salisbury ct d., respondents. VS..
j. Bar;leson, appellant.
Suit arising out OF a prOmlSSOry note.
SylIabus-Where the court below finds
a fact not pleaded it will be presumed,
if the record did not show the trial, that
the parties at the trial waived the OBJ
lection to the want of pleading. A note
was made in Minneapolis, this state, no
place of payment being fixed; at the
time of making the payee resided there;
the maker then resided in Wisconsin.
The payee Endorsed the note, the in
dorSee then doing business in Minneap-
oils and knowing that the maker at the
time of making the note then resided
in Wisconsin. Before the note became
due the maker (Without the knowledge
of the holder) removed from Wisconsin
and became Il resident of Minneapolis.
Held that this excused demand for pay
ment of the note, so as to charge the IN
dorSer. Judgment affirmed.
d. NJ. Osborne & Co., appellants, VS..
James E. Williams, respondent.
Action to recover upon the promiSSOry
notes made by defendant to plaintiff,
the nature of which is explained in the
syllabus: "A chattel mortgage was
given to secure two prOmissory notes.
The MORTGAGE brought an action
against the murtgagor TO recover posses
sion of the mortgaged property. In that
action the defendant alleged as de-
Tense only, and got verdict Oh it. that
there was failure of consideration for
the notes and mortgage. Held, this is
no bar to counter claim based on such
failure of consideration in an action on
the notes brought by the same plaintiff
against the same defendant. Error
cannot be alleged upon, nor irregularity
or misconduct of the trial court shown
ION appeal by any statement of what
took place at the trial contained in the
findings of fact filed by the judge of the
trial court. Order affirmed.
John c. Drake. as executor. etc, re-
spondent, VS.. William Y. Sigafoos,
appellant.
Action on two promissory notes made
by defen dant, payable to the plaintiffs
testator. Syllabus-The Endorsement
made and signed by the debtor on
promissory note after it has become
barred by the statute of limitations in
these words, II hereby acknowledge
the Indebtedness of this note" takes it
out of the operation of the statute. BY
the laws of Iowa exclusive jurisdiction
of wills, and of the appointment of eX-
ecutorS, ETC., was vested in the circuit
courts, and the clerk was authorized in
vacation to appoint executors. Held
not necessary to sustain an appoint
ment by the clerk to show affirmatively
that it was done in vacation. Order
modified. Judge Gilillan, in his opin-'
ION. remarks: 1--WE infer that the court
allowed interest for the whole time
at 10 per cent per annum. The true
rule is to allow that rate on each note
until it become due, and after that
per cent per annum. The cause will be
remanded, and the court below will
modify its conclusions by ON lifting the
amount to be recovered by that rule"
Andrew Nippolt, appellant, VS.. W. II.
Kamuron, respondent.
Action to enforce specific perform
ance of an agreement to convey real es-