The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-12
CHANGE OF VENUE QUESTION
ACTION OVERRULED BECAUSE THE
LOWER COURT WOULDN'T
TRANSFER A CASE.
SAW LOGS CUT ON STATE LANDS.
Insurance Companies Not Author
lied to Do Business in Minnesota
Cannot Enforce Claims.

handed down decisions in four cases
yesterday. He affirms the judgment in
three of these actions, and reverses
the order in one
The latter case is that Of Melon
Flowers ct al, respondents, against
John M. Bartlett ct al, defendants,
Charles Kittleson, appellant.
This action was commenced in lie
Sueur county, where none Of the de-
PENDANTS resided, and more than a ma
jority of them had joined in demand
for a change of venue to Hennepin
| county. The demand and affidavits
of residence were duly filed with the
clerk of LIE Sueur county The clerk
refused to transmit the files in the case
| TO Hennepin county, and thereupon
the defendants made a motion before
the judge Of LIE Sueur county to have
the place of trial changed and for an
order directing the clerk to transmit
the files The motion was denied
The defendant Kittleson, demurred
to the complaint, and the plaintiff no.
tlced the demurrer for argument at a
special term in Henderson. Kittleson
appeared and objected to the hearing,
on the ground that the action had
already been removed to Hennepin
county. The judge overruled the OBJ
lection, and Kittleson appealed from
the order. The syllabus of the case is:
F1rst-If an action commenced in one coun-
try is removable to another under section
5lS6, General Statutes of 1894, as amended by
eenspter 70, Laws Of 1895, the service by the
defendant of his affidavit of residence and de-
mana for change of the place of trial to
the latter county, the place of his residence,
ana the ming with the clerk of the court,
Where the acton was commenced of proof of
such service, ipso facto changes the place of
trial to the latter county and no order Of the
court is necessary.
The mere denial of an application thereafter
made to the judge of the court of the former
county to change the place of trial to the lat
ter county and 10 order the clerk of the
former county to transmit the files according
~, does not have the effect of retaining the
case in the former county or changing the
place OF trial back to that county. The ques-
ton of whether the place of trial has been
thus changed, may be raised by Directing to
the hearing of a demurrer to the complaint in
a county which if the action has been so re-
moved is not the proper county, and the ques-
ton may be raised in this court on appeal
from an order overruing the demurrer.
Second-An action under section 260O, Gen
eral Statutes 1894, by a creditor of a cor
poration TO recover the amount of his debt
from the officers of the corporation, on the
ground that they have been guilty of fraud
unfaithfulness or dishonesty in the discharge
OF their official duties, is not an action for
the recovery of a penalty within the meaning
of section 51S4, General Statutes, 1894 which
provides that action for the recovery of a
penalty or forfeiture imposed by statute shall
be tried In the county where the cause of
action or some part of it arose, unless the
court otherwise orders. Merchants Nat Bk
V. Car Co., 4S Mimi. $40, overruled. Order
reversed.
The respondents were represented by
G. G. Kolars, LIE Sueur Center; C. r.
Davis, ST. Peter; Edgerton & Wick
man, st. Paul; the appellant by Arc
lander & Arctander, Minneapolis
Lake Phalen Land and Improvement Co..
respondent, against Rose Lindeke, ct al, ap-
pellants.
Attorneys: Respondent, Davis. Kellogg &
Severance; appellants, Warner, Richardson &
Lawrence.
In Feb, '89, VIM. Lindeke subscribed
for 500 shares of plaintiffs stock of
the par value of $50 per share, and
agreed to pay for the same as provid-
ed for in the articles of Incorporation.
He paid a part, and in March, 1892,
died intestate. In JAN, 1894. a final de-
cree was entered in the probate court,
assigning the residue Of the estate lex
cept this stock, which was never as
signed or disposed of, one-third to the
widow and one-sixth to each Of the
four children, Feb. g. 1894
Plaintiff, by it's board of directors,
voted an assessment of $685. per share
and Nov. "a, "a, an additional assess
ment of $100 per share. The total
amount due on the Lindeke assessment
was $3.50 No claim was ever present
ed to the probate court for any of these
unpaid assessments, although an order
was made limiting the time for pre-
senting claims.
This action was brought against the
widow and heirs to recover the amount
of the assessments, and the court below
ordered judgment for the plaintiff The
defendants appeal. The syllabus:
The articles of incorporation of a corpora
ton provided chat certain portion of the
amount subscribed for its stock, should ''be
paid in when called for by its board of direc-
tors" A subscriber died intestate his estate
was administered, the residue distributed to
the heirs and next Of kin by decree of the
probate court and the administrator dis
charged. Thereafter said board made an as
sessment on all of the stock.
Held, Such assessment was a condition pre-
cedent to the recovery of the amount so called
or assessed, the claim for the same before
such call was contingent claim which could
not be proved in the probate court and fol-
| lowing Hantzsch VS.. Massolt, 63 N. W. R.
| 1910, an action will lie for the amount of the
same against the distributes to the extent
/ of assets received by them.
q. Held, AS the heir and next of kin is
now so far as material here the same per-
! son, 1t is lmmaterial under sections 5918-5925
| G. S.. 1894, what amount of personal assets
| and what amount of real estate was received
by such distributes, so long as they re-
! ceived more than enough of both or either to
! satisfy such claim.
8. Held, While the surviving wife's dis
! tributive share aside from the homestead
| in her deceased husbands real and personal
property, partakes somewhat Of the nature
! of the widows dover, it has also many of
| the attributes of the dstributive share OF
| the heir and next of kin, and for the purpose
| of subjecting 1t to the debts of the deceased
| dicfr ihIIfi
well under said sections 5918-5925. as un-
der the probate code. Judgment affirmed.
State OF Minnesota, appellant, vs. Shevlin
| Carpenter company, respondent.
Attorneys: State H. w. Childs. Warner
| Richardson & Lawrence; respondent, ]. B.
Atwater, A. B. Jackson.
This action was for the conversion
| of saw-logs cut on the land of the
state. The only contest was as to the
| quality and quantity of the logs. The
| syllabus:
| Held, the evidence was not manifestly
! and palpably in favor of the verdict that un-
| der the rule of Hicks VS.. Stone, the lower
! court abused its discretion by granting new
| trial. The case of Nelson VS.. West Duluth.
So Mimi, 497, distinguished and criticised.
| Held. the court erred on the trial by receiv-
| ing in evidence certain paper containing
! statements which, if properly proved would
be material evidence. Order affirmed.
| II. ocoh1dHS, dS receiver OIL the Wisconsin
| Mutual Fire Insurance Company, appellant,
| VS.. Christian Bros Mill Co. respondent
Attorneys: Appellant, c. c. Joselyn; re-
| spondent, Warner, Richardson & Lawrence
| The suit was brought to recover a
balance Of unpaid premiums claimed
| to be due on policy. One of the de-
| lenses Of the defendant and sustained
by the court was that the insurance
company never complied with the
statutes of the state. The Judgment
was for the defendant and the nlaintiff