The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-10-26
|SupreneCOurt:

Frederick Lockwood, respondent, VS.. F. NJ.
Geier ct al, appellants.
Syllabus: On reargument. Held that the con-
trolling findings of fact made by the trial court
are sustained by the evidence and that they sup
port its conclusion of law that the contract of
the parties as to the sale of land be reformed
and reformed that 1t be. Cancelled.
Order affirmed Start, c. J, =
Jaggard, j., dissents.
Prizer- Painter Stove g. Heater company, appell-
ant, Mn. Peaslee, respondent.
Syllabus: First-The definite and specific as
, signment in motion for trial of
| ruling Or decision of the trial court constitutes
a sufficient exception under chapter 113, c. L.
1901.
Second-It is unnecessary to follow an assign.
| ruling. -
Thrd-In action to recover the value Of
goods sold, in which defendant pleads in defense
a breach of warranty, the burden to prove the
defense is upon defendant. Plaintiff need not
| negative the defense in his case in chief.
| Order reversed and new trial granted
Brown, J.
State ex-rel. City of Duluth, appellant, vs..
| Northern Pacific Railway company, respond
ent.
Syllabus: Where plaintiff RECEIVERS judg-
ment In his favor but mot for all of the relief
claimed and his adversary appeals from the judg-
ment and assigns errors only to the part of
the judgment unfavorable to him and the judg-
ment is affirmed on his appeal, the plaintiff
thereafter, and within the time limited for
taking an appeal, may appeal from that part
of the Judgment which is to his advantage. -
Motion to dismiss the appeal denied. gs-
Start c. ].
Jaggard, j., dissents -
L. NJ Barrie respondent, Northern Assur-
ance company, appellant.
Syllabus: The discretion of the trial court in
| opening Judgment by default and in permitting
a trial upon the merits, or in refusing so to d.
is judicial one not to be exercised arbitrarily
or capriciously; in clear Of abuse the ex-
ercise of that discretion may upon appeal be re-
| versed.
Where an answer discloses a good defense
| and there Is reasonable excuse for delay occa-
| sioing' judgment by default, and no substan-
| tial prejudice appears to have arisen because
| of that delay, the trial court should open the
default and permit the defense to be main
tanned Waleh US. Boyle, 81 Mimi, 4S7; 103
Nm. SOB, followed and approved.
| The circumstan of this case required the
trial codrt. to grant defendants motion to open
| the default. -. <..s.>
| Order reversed. .-Jaggard, ]. -:
! Towi o. F, rtridse respondent, VS.. Maurice
Ring, appellant. -.
| Syllabus: The electors of a town having statu-
| tory power to direct the Institution of actions
and to employ necessary attorneys for their pros
ecution, may ratify the action of counsel in
bringing to judgment a claim of the town. altho
such counsel We're, In the nrSt instance, directed
| to bring the action by town board without au-
| thority of law.
| Order affirmed. .e-N -Jaggard, J.
Arcade Investment company. respondent, VS.
| Marcelline, Gieriet, appellant.
| Syllabus: notice by the landlord to a ten
ant to quit may be waived by the landlord giving
it.. Thenceforth the notice is imperative.
T. Where the landlord subsequently to the service
Of such notice agrees that the tenant may re-
4 main in possession OF the premises notwithstand-
I ing such notice. the effect of the notice Is
/ waived. .s=-,r-ss. .. a. --..s.- ~ q.
4 The failure Of the trial court to instruct as
I to the effect Of conduct of the landlord as a
waiver of the notice in this case is held to
have been error. -..
Judgment reversed and new trial granted.
| = s-Jaggard, J.
Frank Kohout respondent, vs.. Lewis B. New
man and William ]. Hoy, co-partners New
man & Hoy, appellants.
Per acknowledgement affirmed.
Oakland Cemetery association, appellant Va.
board of county commissioners OF Ramsey
county respondent.
Order affirmed. 7aggard, ].