The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-05-20

cree of the Trial COurt-Another
Reversal Applies to the Liability
Of CredftOrs-Section Foreman
ton Negligence
Hobart y. Stocking will have to wait
Tor his divorce. indeed if he gets one at
eHssIhe supreme court yesterday added
a closing chapter to the sensational
Stocking divorce ease, which was tried
IN the Ramsey county district court last
year. reversing The lower court and grant
ihg Mrs. Stocking a new trIal.
The court holds that to secure a di-
vorce Inc plaintiff must prove willful de-
strtion, and in the Stocking case the
supreme court as well says that Mrs
stocking had coed reason for leaving
her husband IN a case where further
echaoitation could not be continued with
heaiJh, safety or respect, fhe court says
that cescrtion on the part of the wife
Goes hot constitute wiIiful lesertion The
- Habus OF the case is as follows:
Hobart NJ Stocking respondent. ys
bI9hThe Clare Stocking, appellant.
5.oyIabus-l. To entitle plaintiff to a
QiNotce on the ground OF deSertiOn he
must aueSe ana prove willful deserIion by
fiie USsi a Tor full year next be-
AOtS Inc commencement. OF the action
= The misconduct of one of the parties
10 tne marriage contract, which will SO
lar justify the injured party in leaving,
tn9t the separation will not -constitnfe
willful descrtion, need not necessarily. be
such as TO entitle the injured party to
divorce. 1t is sufficient il the party with
drawing from the coha bitation has rea-
SonaOle grounds for believing and does
honestly believe that by reason of the
actual misconduct of the other it cannot
Oe longer continued with health, safety or
sei1-reSpect- Willful desertion in such a
case does not begin until after the Offend
ing party has in good faith exhausted ALI
reasonable efforts to right the wrong and
20 satisfy the injured spouse that there
VIII De no recurrence of the causes which
induced the separation, nor until the
eiapse OF reasonable time for a con-
siderat1on of the overtures for recon
). Rule applied, and held. that the find
Ing OF the trial court in this case to the
erect that the defendant willfully deserted
commencement of this action is NOT sus
tained by the evidence.
Order reversed and new trial granted.
Start, c. J.
Lewis c. spooner, appellant, VS.. The
Travellers Insurance Company Of Hart
Iord, Conn.,, respondent
Syllabus. Where a creditors suit is
prought to reach equitable assets which
the debtor has fraudulently transferred
me plaintiff must allege and prove that
ne has no legal remedy, that the debtor
Is insolvent and has no other property
rom WHICH MS Q6Dt may be satisfied.
As a rule the best and only evidence of
unSatiSfied.
2. But where the plaintiff has acquired
a legal lien on property of his debtor and
lne suit IS one to set aside a transfer
thereof fraudulent in fact as to creditors
which is an obstruction, in the way Of the
plaintiffs right to enforce his lien, he has
the right to be placed in the same posi-
ton which he would have occupied had
the transfer never been made and he is
not bound as condition of obtaining the
relef to alIege or prove that the debtor
mas no other property or that he is in
solvent, or that any execution has been
returned unsatisfied.
3. In such a case the mere fact that
the judgment creditor has collateral Sc
curity for his judgment does not raise
any equity in favor. of the fraudulent
grantee. to compel the creditor to first
exhaust his collateral security.
a Gpon the findings Of fact It is held
IT. that the doctrine Of Baldwin V. Rogers,
Is Mimi ,5i4, and cases following ii is not
applicable TO this case. Judgment re-
versed. Saks. Start, C. J.
James Revor. respondent, VS.. s. c. Bag
ley, appellant =
-s9llabus-Held that the verdict is sus-
tanned by the evidence and that the trial
court properly exercised It's discretion in
denying motion for a new trial. on, the
ground -, of newly discovered evidence.
In re guardianship of Bridget E. Nc
Closky, incompetent, Bridget e. Nc
appellant.
Syllabus-The probate court cannot
legally remove a guardian without notice
to him of the time and place of hearing
GA the matter of his removal, unless his
residence Is unknown. Order reversed.
Start, c. ].
In re application of the Minneapolis &. st.
Louis Railroad Company to condemn
certain lands, etc, Minneapolis & ST.
Louis Railroad Company, appellant vs.
Henry Nicolin, respondent.
Syllabus-A railway company is author
lied by G.. S. 1894 S. S. 2645-2646 to &C
quire land by condemnation for a right of
way for a spur track from its main line
to its gravel pit, for the purpose of OBJ
tanning necessary gravel to enable it TO
safely maintain and operate its railroad.
Such a taking of land is for a public pur-
pose or use. Order reversed.
Charles J: cBerryhill, appellant. vs.
Patrick H. Carney, respondent.
Syllabus Held that the trial court
rightly dismissed the action for the rea-
son that there was no evidence tending
to establish the contract alleged in the
complaint.
2 An affidavit, which states that a
witness. who was not sworn on the trial,
was a material one and was in attend
ance necessarily at the trial, is not suffi-
cent to justify the taxation of fees for
such witness Judgment modified
Start, C. ].
Elmer E. Sloniker. respondent, VS.. Great
Northern Railway Company, appellant.
Syllabus-1 When a person discovers
another in a position of peril although
the latter is a trespasser and Gnegligentiy
placed himself in such position, and the
former after 50 discovering him can by
the exercise of ordinary care avoid in
Turing him. but omits to do so, he evinces
such a reckless disregard of the safety Of
others as to constitute in law wilful and
wanton negligence.
2. Rule applied in this case and held
that the evidence is sufficient to Justify a
finding by the jury to the effect that the
defendants section foreman was guilty of
wilful and wanton negligence in running
q hand car over the plaintiffs child
5. An aword of $4,000 damages to a
girl six years old for the loss of her right
leg is not so excessive as to indicate that
it was given under the influence of pas
sion or prejudice. Order affirmed.