The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1898-11-01
affirmed .-CoI,ins =

affirmed. Collins J.
Nora L.. Swain. appellant. vs. e. A. Lynd,
A Judgment creditor who has levied on the
land OF his debtor may, In aid Of his ex-
and have adtudged void a foreclosure, under
a power Of sale Of q prior mortgage executed
by his debtor. on the ground that notice Of
sale WAS not served on the person in pos
session Of the mortgaged premises, but the
certificate of sale and aff1davits of sale and Of
service Of notice placed on record show,
on their face, valid foreclosure.
The notice OF sale required to be served
on the person In actual possession Of the
mortgaged premises is designed for the pro-
lection Of all parties having an interest in
the premises and not for the exclusive benefit
OF the OCCUPANT himself; hence the omission
to serve such notice may be raised for the
purpose OF invalidating the foreclosure, by
any one having an interest in the premises
oerlved from or acquired through the
mortgagor.
In such an action it is not necessary for the
Judgment creditor to allege In his complaint
that the mortgaged premises are worth more
than the amount due on the mortgage.
oroer reversed. Mitchell j.
8. P. Crosby. appellant. vs. St. Paul Lake Ice
Company, respondent.
.Syllabus--In an action to recover for ser
vices Is endeavoring to procure for defendant
tract OF land suitable for It's business.
Held that the evidence justified the court
IN hnding that the agreement was that plain
TIN was only to be entitled to compensation
in case his efforts resulted successfully in
procuring such a tract. Order atirmed.
Mitchell, J.
L.: Trautman. ct al. respondents vs. ]. E.
Mcleod. ct al. appellants.
syliabus-ln the absence Of any contrary
showing. the fact that the trustees of the
village of Reads have for thirty years always
acted as and performed the duties of, q
school board under Sp. Laws 1853. chap "a.
Of Reads" at least raises presumption that
the trustees had duly accepted the provis-
ions Of said act relating to the common
schools of the village.
Gen. Laws 1877 chap. a. CUB chap 1, sec.
IL (Gen- st. 1898, sec. 1860 giving women the
right to vote at school elections and making
them eligible to any office pertaining solely to
the management OF schools, did not repeal
the provision of the special act incorporating
the village of Reads, that the trustees Of the
village should be trustees of the special school
district comprising the territory constituting
the village. Judgment affirmed.
Mitchell. ].
Henry Damkroger, respondent vs. Victor
Pearson, appellant
Syllabus-The fact that tenant remains In
possession of the demised premises notwith-
health and comfort Of himself and family,
does not amount to election to continue
a tenant, Notwithstanding subsequent and
increased defecs which render the premises
untenantable and unfit for occupancy. Judg-
ment reversed. Mitchell, J.
Byron A. Cole, respondent vs. W. D. An
drews, appellant.
Syllabus-In an action for malicious prose-
cut,on.
Held, that upon the evidence the question
whether the prosecution was instituted or in
stigated by the defendant was for the Jury
and that the court erred in instructing them
as a matter Of law, that he did institute
or instigate it.
The defendant communicated certain facts
to the county attorney In his official capacity
for the purpose of having a prosecution for
public offense instituted, ascertaining
whether the facts constituted a proper case
for such prosecution. These communications
were not made IN confidence or under any
injunction OF secrecy. At the request Of the
county attorney defendant subsequently APP
peared as witness and testified to the same
facts before the grand jury, who found an
Indictment, upon the trial OF which the 40
cused was acquitted.
When sued for malicious prosecution the
fully and fairly communicated all the facts
to the county attorney and acted in good
faith upon his advice.
Held, that the confidential. relation of at
torney and client did not exist between the
county attorney and the defendant, and that
the communications by the after to the for
mer were not privileged as being made by
client to his attorney.
Neither were they privileged under the PR
vision of Gen. st. 1894, sec. $3.50 that "a pub
lie officer cannot be examined as 10 comuIJni-
cations made to him in official confidence
when the public interest would suffer by the
disclosure" Order reversed.
Mitchell, ].
Samuel Trebby, appellant, VS.. The Transcript
5, Publishing Company, respondent.
10. Syllabus-A written publication character
iZfng a person as disreputabIe and charging
him with having maliciously published in
newspaper false report mot knowing 1t be
falsel tending to injure the credit of the
city in which he lived is libelous per Sc and
actionable unless privileged or justified; and
the trial court erred IN submitting to the
jury the question whether or not the publi-
cation was defamatory
The publication ccmriained of consis ed Of
a resolution OF the city council thus denounc-
ing the plaintiff for publishing an alleged
false report as to the result and effect OF a
suit brought by him to enjoin the payment
Of certain city bonds On tn. ground that
they had been Illegally issued.
Held that the publication was not privi-
legged neither absolutely cor ditionally be-
cause, first, it was not official, but merely
published as item Of news, ard second,
the resolution Itself was not within the scope
of the official authority of the city council
Held. further, that the evidence did not
establish justification at least not conclu-
sively. order reversed. Mitchell ].