The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-05-06
Barber Company Wins First Round
in Paving Trial.
City Claimed That Failure to File Claim
lnyaIidated Suit.
Court Holds That 1t Would Have Been
Useless to File 1t.
Taking Of the Evidence in the Case
Commences.
From Fridays Daily.

From Fridays Daily.
The trial of the suit of the Barber
Asphalt Paving company against the
city of Mankato commenced yesterday
afternoon in the district court. The case
is the most important on the calendar,
and is attracting much attention. A
number of attorneys not connected with
the case were present to hear the trial
of the case that is to decide whether the
tax payers of Mankato at large are to
be required to pay for the paving of
Broad street and the curbing and gutter
ing there.
Mr.. Taylor of Howe, Taylor & Nit
chell of st. Paul opened the case by
stating what the plaintiff intended to
prove, which was that it had been the
lowest bidder on the work, had been
awarded the contract and had done the
work in a good ana satisfactory manner,
but that the city had failed to pay it
for doing the work. 1t was sought to
obtain judgment against the city for
about $4,000.
C. N. Andrews then stated to the
court the stand taken by the city, that
the contract was illegal, that the coun-
ell had been enjoined from levying the
assessment upon the property owners as
provided in the contract, etc.
The first witness called to the stand
was City Recorder Hodapp, and pro-
ceedings of the council and board of
public works were offered in evidence.
A. E. Clark entered an objection to the
introduction of any evidence ON the
ground that the complaint fails to state
a cause for action because it does not
.aIlege that the plaintiff filed with the
city any claim upon which this action
is based. He said that no such claim had
been filed, although the charter requires
that all claims shall be presented to the
council and audited by the proper city
officials. He cited cases in which the
supreme court had held that this was
essential prior to the bringing of an ac
ton, these cases being Albert Lea and
Duluth cases. He also quoted from the
statutes of Minnesota to uphold his po-
sition.
Mr.. Taylor took the position that the
statutes cited do not apply to Mankato.
Duluth, he said, had a special charter.
He had never known of a case where it
was necessary for a claimant to file his
claim before he could commence action
1t WIGS true that the Mankato charter
has a provision whereby claims for dam
ages for injuries received upon the
streets must be filed with the council,
but this was for the purpose of the or
derby conduct of business, and did not
apply where a contractor sues on his
contract, as the council has notice of his
claim. In this case the city had denied
the claim, so it was useless to present it
to the council merely to have it rejected.
The court took the matter under ad-
visement until nine o'clock this morning
When court convened this morning
the objection was still further argued.
Mr.. Taylor had fortified his position
over night, and had big array of law
books, from behind which he success
fully bombarded the position of the enc
INV Ha oro-,ad flIot ba cf f,fo of 1870
did not apply to Mankato, but only to
counties and towns. He explained the
Albert Lea and Duluth cases to show
that those cases were not exactly anal
ogious with the present one. He reviewed
every decision on the subject made by
the Minnesota supreme court, and said
that it had never held that the law was
applicable to Incorporated cities.
Referring to the present Mankato city
charter, adopted in 1887, Mr.. Taylor said
that it expressly states that all laws APP
plying to the city are Incorporated in
it. As to the charter provision requir-
ing notice of the filing of claims, he
said that it did not apply to this case,
can be waived, and is apparently per-
fectly useless and idle ceremony
Mr. Clark took the floor and argued
that the objection was valid. He main
tanned that this claim comes within the
class of claims which the council must
audit and adjust.
Judge Lochren said that the reason for
requiring notice of presentation of claims
evidence is obvious, in order to protect
the city from old and stale claims where
it is difficult for the city to get evil
dence. Where there is failure to give
notice in the case of actions arising from
the failure of the city to keep its streets
in good repair, the right of action is
destroyed. 1t is proper to require claims
to be presented to the proper officers so
that they may be considered and allowed
if proper and thus prevent needless liti-
cation. He saw no other reason for the
statute. 1t is unnecessary to perform
a needless act, and where it appears