The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-02-03
ARLINGT0N'S VICTORY IN THE
LOWER SUSTAINED IN THE
UPPER COURT.
GAYLORD WILL HAVE TO WAIT.
HASTINGS &c DAKOTA RAILWAY
COMPANY SUCCESSFUL IN AN
APPEAL.
DOINGs IN THE DISTRICT COURT.
Decision in the Action on
Street Contract.

Seven decisions, all bearing the sig
nature of Judge Mitchell, were handed
down by the supreme court yesterday.
In the county seat contest between the
villages Of Arlington and Gaylord in
SibIey county, the order of the lower
court has been affirmed, and the court
takes the position that an injunction
will lie TO prevent unauthorized action
by the board of county commissioners
and county auditor upon the second pc
titiOn. In December, 1895, a petition
to change the county seat to Airing
ton, which was signed by the required
number of voters, was duly placed on
file, but in January, 1886, when the
county commissioners met to consider
the petition the names of IA of these
voters were enormously and unlawfully
stricken from the petition. During the
tendency of mandamus proceedings to
restore these names to the petition,
the petition of Gaylord village was
filed. The court holds that the latter
petition may not be considered until
the first has been disposed of entirely
The order of the district court has
been reversed in the ejectment case
of the Hastings & Dakota Railway
company against Andrew Rudrik Fol-
lowing are the syIlabi in all of the
seven cases:
Theodore StreisSguth, respondent vs. John
ZeIb ct al. appellants.
Where petition for the change Of county
seat IN due form and in fact containing
the required number Of signatures, has been
presented, no competing petition be
celYed or acted on until election has been
held on the first petition and until the expira-
ton of five years thereafter, or until it has
been Withdrawn without an election.
injunction will lie to prevent unauthorized
action by the board of county commissioners
and county auditor on such second petition.
Order affirmed. Mitchell, J.
Russell Sage, as assignee in trust of the
Hastings & Dakota Railway company, ap-
pellant, VS.. Andrew Rudnick respondent
Ih9 certificate of the trial court that the
settled case contains all the evidence is not
controlling when the itself shows the
contrary. When the statute of limitations
mas run IN favor OF a dIsseisor, no subsequent
ACKNOWLEDGMENT CT the former owners title
except by deed sufficient to pass title to land
VIII dlvest the title acquired by adverse pos
But an acknowledgment by the disseisor of
the record or paper title, by accepting
lease from the owner Of it, is in the nature
OF an admission that he had no title and IS
competent evidence tending to prove that his
possession was not adverse. Order reversed
Mitchell, ].
James s. Ray, as receiver of the Columbia
FIRE Insurance Company of America re-
spondent, VS.. George R. Lewis ct al APP
pellantS.
Held that the evidence was not such as to
require an assessment Of defendants damages
Tor breach Of contract at a greater sum than
that awarded by the trial court.
The rule that garnishee is not chargeable
with interest las damages for the detention
OF money! while he is, by the operation of an
attachment restrained from making payment,
applies only where he stands in all respects
as a mere Stakeholder, ready and willing to
pay 10 WhomsoeEer the court directs, and not
Whsre he assumes the attitude of a litigant
Order affirmed. Mitchell +
Levi L. Cook respondent vs. Fazen M. Par
ker, as receiver Of the Liljangren Furniture
and Lumber company appellant.
by tease for term Of years the lessee
coVenanted to pay an annual rental and all
taxes and assessments on the demsed prem
fses. 1t was covenanted that the lessees might
at any time within 60 days next preceding the
expiration or the term remove any buildings
placed DE- them On the premises provided
that they should have then paid all rent and
taxes due or to accrue up to the end Of the
term. A right Of re-entry in case Of non
payment OF rent or taxes was reserved: and
one OF tbe conditions of the lease was that If
the lessees should default for ninety days
IN the payment of rent or taxes the lease
should be terminated, and all rights of the
lesSees under it forfeited and the buildings
become the property of the lessor The lessees
went INTO possession and erected buildings
worth 81 900.
The assignees Of the lessees having de-
lessor brought an action against them asking
that the amount due him for rent and taxes
be ascertained by the court and a time fixed
within which it should be paid and that IF
not paid within the time fixed that all rights
OF the assignees under the lease and to the
buildings be adjudged terminated. He OBJ
IalIleo judgment as prayed for, the amount
que MN for rent and taxes being adiudged TO
be $500, and the time within which n
should be paid fixed at two months. The
aSSlSnees not having PAID within the time
fixed the lessor obtained a final decree adiudg-
ing their interest under the lease and IN the
pulldlngs terminated. Under this Judgment
he took and still retains possession IF tho
premises and the buildings.
Held, that by bringing this action the lessor
waved a strict forfeiture and his right Of
entry under the terms of the lease and elected
to assume the position of one who APPLIES for
ana obtains strict foreclosure of a mort
gage or other lien which operates to satisfy
the debt pro tanto: and hence he must he
deemed TO have accepted the unexnired term
OF the lease and the buildings erected bv the
Iessees m fun satisfaction of his claim for
Order reversed and Judgment ordered for de-
PENDANT. -NitcbaII
Daniel H. Towle, appellant, VS.. ]. ]. Starr
respondent. -
The defendant was sued as an indorser on
the following certificate of deposit:
The Bank of Zumbrota, Zumhrota, Mimi.
July T. 1851. ]. Starr has deposited in
TINS oank two thousand dollars. payable to
cerhtcate, properly Endorsed, with interest at
four -per cent. To be left six months. No
interest after maturity. Not subject to
check. e Y CanfeId
Held, this was "time" and not de
maDd' certificate; that payment was de-
mandable at the expiration Of six months
and, as between the holder and the indorser
i matured at that date; that tc hold the In
dorser it should have been presented for pay
ment on the last day Of grace, Jan. 30. 1894
Order affirmed. Mitchell J.
State Of Minnesota, ex rel. H. NJ Hagestad
plaintiff, VS.. F. A. Sullivan ct al, defend
ants.
General Laws 1885, CHI. 22e. entitled IAN
ect to establish municipal courts in incorpo-
rated cities having a population of less than
1000 Inhabitants is not an act regulating
the affairs of cities within the meaning n
section 80, art ". Of the constitution pro
hibiting special legislation on certain sub
jects.
The fact that the taking effect of the act
in a city is made contingent upon a vote Of
the city council does not constitute a dele
cation of legislative powers. Order dis
charged. Mitchell J.
Theodore Glaeser. appellant, VS. The City of
st. Paul. respondent