The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1902-01-18


END disposed of by an examination of a
single instrument or paper, such, for eX~
ample as the assessment sheet or award
OF damages, or the order of confirmation,
but the entire record, or what may be
called roll of the proceedings, is open
to inspection.
3. A paper so referred to and described
in written instrument, that it may be
identified beyond all reasonable doubt,
may be, by such reference, made part
of the instrument as if incorporated into
the body of it. Order reversed.
Collins, J.
State of Minnesota ex rel. w. B. Douglas,
Attorney General. relator. appellant, VS..
School District No. 102, Dakota county
quo warrantO proceeding is a
subject for the exercise of sound judicial
discretion. 1t is proper for a court to
consider the circumstance of the case,
the position and motives of the relator
i'll having the proceedings instituted and
the necessity and policy of allowing the
remedy.
2. Where the right of corporation to
assert its corporate existence is ques-
tened by a state, because of some defect
or irregularity in the proceedings for
organization, the doctrine of waiver,
operating by way of estoppel in pals is
applicable as against the state. It's con-
duct may have been such as to constitute
a declaration that a forfeiture of corpo-
rate rights will not be insisted upon, and
that the right to declare such forfeiture
is waived.
8. This rule applied where, after its
organization in FORM and prior to the in
Stitution of quo WarrantO proceedings, a
school district had borrowed money from
the state to be, and which was actually
used, in the erection of a school build
ing. had issued its bonds therefor to
such state and had voted a tax for cur
rent expenses. Judgment affirmed.
Collins. ].
State of Minnesota ex rel. S. R. Child,
relator VS.. District Court Of Chippewa
County, Minnesota ct al, respondents.
l. The general rule is that civil ac-
county where the defendant resides.
That they must be brought and tried
where the subject matter is situated is
the exception to such rule.
2. The general lien of a judgment on
land confers only a right to levy OH the
same, to the exclusion of other adverse
Interests subsequent to the docketing of
the judgment. A judgment or the lien
land
g The nature of the lien is not changed
by the levy of an execution. By such
levy the execution creditor does not ac-
Quire an estate, right, or interest in the
land levied on. within the meaning Of
G. S.. 1894 sections 51s2-51-83.
/. Where an action is brought to set
aside and vacate judgment. to vacate
and set aside a transcript and the dock
citing thereof, in a county other than the
one in which the judgment was obtained
y
upon real estate in such other county
made by virtue of an execution issued
and delivered to the sheriff thereof the
primary and principal object of the ac-
ton is to vacate and set aside the judg-
ment. Vacating and setting aside the
transcript and docketing and the levy
of the execution are merely incidental
to the primary and principal object
5. Such an action is transitory and not
local 1t is to be tried in the county in
which the defendant resides.
g. In the case at bar there were six
defendants. Tnree-including the judg-
ment creditor-resided in the same coun-
ty; two were non-residents, and the other
was the sheriff making the levy. No re-
lief was demanded against any of the
defendants except the creditor and none
of the other defendants save the sheriff
in his official capacity were shown to
have any rights or interests in the mat
ter at issue. Held, that the creditor was
entitled to have the place of trial chang
ed from the county in which the land was
situated to the county in which he re-
sided upon making demand and fling
his affidavit showing the facts as above
stated. Let the writ issue as prayed for.
Collins,
John Durham, appellant, VS.. Frederick
G. Johnson and John S. Pillsbury, re-
SpOndentS.
l. In an action against the sureties or
a bond given to a retiring partner in
Identifying him against liability on &C.
count of the debts of the partnership;
held, that the contingent liability of the
firm by reason of its ownership of stock
in corporation was not debt within
the meaning of the recitals and condi-
tons of the bond.
Q The recitals in a bond purporting tc
express the precise intention of the par
ties thereto will control It's conditions and
prevent a more extensive operation OF
the bond than was intended by the par
ties as disclosed by the recitals. Order
affirmed. Start, G. j.
George 7. Robinson and Lavina Robin