The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-11-21

upon the select body or person within the
corporation whose province 1t is to put in
motion the machinery necessary to secure
performance Of the duty.
l. NO reason exists why the rule above
stated should not be applicable when service
Is to be made upon a joint stock association.
D. In the case at bar an alternative writ
or mandamus was issued on the relation Of
the state railroad and warehouse commission
10 compel the Adams Express company a
nonresident joint stock association engaged
In business in this state as a common carrier
to print and keep for public inspection sched-
ules showing the classification, rates. fares
and charges for the transportation of prop
erty of all kinds and classes in force and
charged by it in the state, and to file copy
of such schedule with the commission When
allowing the writ the court directed that
service be made upon one j. w Owens GEN
erai agent OF the company. Service was ac-
tually made upon Owen, but on the return
day it was shown that he was not a general
agent but simply the local agent at ST. Paul.
NO claim was made that the company had a
general manager or general agent In this
state or any officer or agent superior to Owen
and it clearly appeared that ali of the officers
named IN the articles Of association and all
OF the shareholders were non-residents of
the state and not within its borders Held
that the service was sufficient to confer iur
1sdiction upon the court issuing the writ to
proceed with the hearing Order afirmed
and case remanded.
State ex rel, Frank Thompson. ETC.. ct al.
ANAoVOAS, VS. IuC pTODdL0 court OF ROCK county,
respondent.
First-Where upon the petition of non-resi-
oents they nave been appointed executors of
aonlhlstrators by probate court of this
state, SUCH court has the power to order that
they submit to the service Of summons in a
civil action brought in this state for the pur-
pose OF determining the liability of the estate
they represent on claim or demand not nrov-
able in the probate court in the due course
of administration. Whether the remedy in
case of refusal to obey the order is by pro
ceed1ngS as for contempt or by removal from
office is not decided.
Second-T in his lifetime subscribed for
STOCK SHARES In a corporation organized for
pecunary profit under the provisions of e.
5. 1884, Oh. "a, title 2, paying, it is alleged
only 30 per cent of par value thereon the
balance of such value being presently due
and payable. He died without making such
payment and subsequently the corporation be-
came lnsolvent, and passed into the hands of
receiver about the expiration Of the period
hxed by the court, for the presentation of
shareholder.
Held. that the claim was one to be presented
to the probate court for allowance under the
provisions Of G. S. supra, sec. 4511
COLLINS. ].
State of Minnesota, ex rel, Theodore
streissguth, respondent, vs. John Geib, Thorn
as Mcmahon, ct al, County Commissioners
Sibley county, and H. A. Seigneuret, county
auditor, appellants.
First-Electors who have signed a petition
absolute right to demand Of the board of
county commissioners at any time before it
has completed its action on the petition that
their names be withdrawn therefrom hut
such demand cannot be made of the county
auditor. 1t can only be made at a session of
the board called to consider the petition fol-
lowing Slingerland VS.. Norton, SO Mimi. 351.
Second-Where a withdrawal by an elector
of his name from such petition was presented
by his attorney.in fact to such board, and be-
fore any action thereon was had recall Of
hn Nxyith Hrpx vol nl -
thority of the attorney was presented to the
board it had no authority to remove such
name from the petition.
Third-Where a board of county commits
sioners illegally strikes from such petition
the names of electors so that the number re-
naming is reduced below the minimum re-
CURED for valid petition mandamus will lie
to compel restoration of the names to the
petition. Judgment affirmed. START. G. ].
Louis schilling, appellant vs. The Winona
& ST. Peter Railroad Company, respondent.
First-Held, following Oviatt VS.. Dakota
Central Railway Company, 43 Mimi, 3OO that
when passenger voluntarily takes passage in
freight car in a freight train, he assumes
all risks and inconvenience reasonably and
necessarily incident to that method OF trans
portation In such case the carrier has
right to discharge the duty imposed by law
upon it as to the safety of the passenger
with reference to the nature and purposes
Of the particular car and train so selected,
but it is bound to exercise the highest de-
gree of care for the safety of the passenger
consistent with the practical operation Of
such train.
verdict in this for the plaintiff was not
sustained by the evidence and that the judg-
ment Of the trial court for the defendant
Notwithstanding the verdict is correct. Judg
ment affirmed. START, C. ].
B. Josephine Friburk, respondent, VS.. the
Standard Oil company, corporation, appel
liant.
First-In an action brought to abate nuis-
ance caused, as appeared from the evidence,
by the careless manner in which defendant
handled coal oil in the vicinity of plaintiffs
dwelling, and to recover damages, it is held
that the court below erred when it excluded
evidence as to whether plaintiff had ever COM
planned of the alleged nuisance to defendants
agent or employees.
Second-The fact that wife is furnishing
the dwelling in which the family resides does
not change the common law rule that the
husband is the head of the family, nor will it
give to the wife the right to recover for dam
ages resulting from the maintenance of
nuisance.
Third-Held further, upon the evidence that
the award of damages was excessive in
amount. Order reversed. COLLINS, ].
Justice Buck dissented.
Kathrine Schultz, respondent, VS.. John S.
Bower, appellant.
First-Where jury cause is called, jury fee
paid, verdict rendered and new trial grant
ed further jury fee must be paid when the
!
jury can be sworn.
Second-There were three jury trials in this
case, each resulting in a verdict for the
plaintiff. She paid the jury fee on each trial,
held that the fee for each trial was correctly
taxed against the defendant, on the entry of
judgment on the last verdict.
Held, further, that the trial court did not
err in affirming the clerks taxation of the
plaintiffs disbursements for witness fees.
Judgment affirmed. START, c. J.
Attn
Ter, ct al defendants. Mathew Walsh, as
signee of M. Roeller, intervenor, appellant.
After a cause has been tried, argued and
submitted. to the court for determination it
has no power upon its own motion and with
out hearing to open the same, and by mere
verbal notice to the attorney of the party
whose interests are to be affected, proceed to
take further testimony on the issues involved.
COLLINS, j.
Alfonso Blondel. respondent, VS.. st. Paul
City Railway Company, appellant.
l. Evidence considered as to the plaintiffs
alleged contributory negligence and held that
it sustains the verdict.
2. The qualification Of a witness to testify
as an expert is question for the trial court
whose decision will not be reversed on ap-
peal unless it is manifestly against the weight
of the evidence. Order affirmed.
Start, c. J.
Ed West, appellant, VS.. Ole Berg. respond
ent.
l. An aff1davit for writ OF attachment in
a justice court, made by person other than
the plaintiff, is sufficient to authorize the
issuance of the writ, where 1t appears from
fhn and dc in he hat