St. Paul daily globe., 1890-07-12

cause of an adverse claim to the prop
erty by third person, would not be ar
bitrary or capricious or amount to fraud
or bad faith toward plaintiff.
James Bennett appellant. VS.. Valentino
Blatz ct al, respondents. Judgment re-
versed. MITCHELL, j.
No defect in the verification of the
tax list filed with the clerk of the courts
affects the jurisdiction of the court oyer
the proceedings: Following Commis-s
sioners Mile Lacs County VS.. Morri-
son, % Minn., 172. Publication OF the
list and notice, being essential to
the jurisdiction of the court, must af-
firmatively appear; but as it is the fact
and not the proof of publication which
confers jurisdiction, this proof may be
supplied at any time, even after
judgment. The proof OF publica-
ton In this case held insufficient.
1t is not necessary that the orig
inal of the notice attached by the
clerk of the court to the copy OF the
tax list delivered by him to the county
auditor, should be kept on file in his
office. The fact that two certificates OF
sale have been issued by the county
auditor. one to the effect that he had
sold single tract for certain sum,
and the other to the effect that at the
same sale he had sold to the same
purchaser six separate tracts, including
the one named in the first certificate,
for certain other and larger sum, will
not destroy the frst-uamed certificate
as prima facie evidence of the facts
stated in it. The two certificates are
not necessarily inconsistent, although
preSumptiyely the language OF the lat
ter certificate would imply that all six
tracts had been sold together for a
gross sum.
Frederick H. Hudson, appellantys. The Min
neapolis, Lyndale & MinnetOnka Railway
Company respondent. Order affirmed.
MITCHELL, j.
Syllabus: Held, that upon the facts
in this case the instruction given by the
judge to the jury, in the absence of
plaintiff and his counsel, was not privy
communication, but an instruction in
open court and in the regular form of
judicial proceedings. The trial of
case is not concluded until verdict
has been rendered or the jury dis
charged. 1t is the duty of parties and
counsel to remain in or be represented
at the court during its session until the
trial is ended, and it is no part of the
duty of the court to send after parties
or counsel who have absented them
selves from the court room before the
trial of their cause is concluded. When
jury returns into court for further in
StructiOnS it is customary to send for
counsel and to wait a reasonable time
for their arrival, and it is desirable that
this be done when practicable; but this
is matter of courtesy and not Of right.
The Minnesota Thresher Manufacturing Com
pany, appellants, vs. R. B. Langdon, re-
spondent The Minnesota Thresher MAN.
ufacturing Company, appellant. VS.. 4
Thomas Lowry, respondent Order al
frmed. MITCHELL, j.
Syllabus: Upon an adjudication of
the insolvency of corporation and the
appointment of receiver OF its prop
erty and effects under the provisions Of
General Statutes, chapter rs. the right
to recover capital withdrawn and re-
funded by the corporation to its stock
holders. without provision for the pay
ment of corporate debts, passes to the
receiver as the representative OF all the
creditors, and the right of the creditors
in their own behalf to maintain such an
action under General Statutes. chapter
"a. section 139, is taken away, or at
least suspended during the pendency of
the proceedings under chapter 76. An
order of the court directing the sale OF
''all the assets. property and business"
of the insolvent corporation only au-
thorizeS the sale of such property as be-
longed to the corporation, or chooses of
action which it might have enforced, in
its own right, and not chooses in action
which the receiver might have main
tanned only in the right of creditors. as
for example capital Withdrawn and re-
funded by the corporation to its srare-
holders without payment of the corpo-
rate debts. Gilfillan. G. j., and Van
derburgh, j., did not sit.
The following cases were argued and
submitted in the supreme court yester-
day: Harriet j. Seymour, respondent,
VS.. Daniel E. Dwyer, appellant; Charles
j. Allen, respondent, VS.. The Chicago,
Milwaukee & st. Paul Railway Com
pany, appellant; j. W. Ennis ct al, re-
spondent, VS.. The Buckeye Publishing
Company, appellant.