The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-11-02
Supreme Court

Supreme Court
Minnesota Debenture company, respondent, Va.
United Real Estate corporation, appellant
Syllabus: Where prior tax sale has been
adjudged void, the lien of the state for such
taxes, interest, penalties and costs, becomes
revived but does not accrue and become de-
hnquent. within the provisions Of the second
subdivision Of section 1902, General Statutes,
1894, until the state has taken steps to en-
force its lien by including the same in the taxes
of the current year, or as provided by law.
When the purchaser at tax sale, or an as
signee Of state tax certificate, takes steps
to perfect his title hereunder, he is not re-
quired to insert in the notice of expiration
OF redemption the amount of the states lien
arising from such prior void tax SALE
Order affirmed. Lewis T.
Calender-vanderhoof company, respondent, vs..
Chicago Burlington & Quincy Railway COM
pany, appellant
Syllabus: 1t being a hazardous and unusual
proceeding to ship apples in bulk in box freight
cars from the state of New York to Mime
apolfs, MIMI, during the month Of November
owing to the liability of encountering cold
weather. a connecting railroad at Chicago, over
which the car is routed to the point of de-
livery, is not required to anticipate that car
Of apples so loaded will be delivered upon
Its yard tracks and be prepared to take ex-
traordinary precautions to protect the fruit from
frost.
Under the evidence, ii true, appellant exer-
c1sed reasonable care in receiving and for
warding the fruit and it was error to instruct
the jury that they might consider whether ap-
pellant was required to Immediately transfer
the fruit to another car, send the car to a
roundhouse.
The fact that the shipper packed and shipped
fruit in the manner indicated, at that sea-
son of the year, did not constitute contributory
negligence 80 as to preclude recovery for such
damages as appellant might have prevented in
the exercise Of reasonable care.
Order reversed. -Tauis r -,
Mary Becklin, appellant, vs.. Godfrey Becklin,
respondent
Syllabus: First-Changes made by a revision
of the statutes will not be regarded as alter
Ing the law unless it is clear that such was
the intention, and if the revised statute is
ambiguous or susceptible Of two construc-
lions, reference may be had to prior statutes
for the purpose of ascertaining the intention
: administrations S579 4111, Alp Revised
Laws, 1905, made no substantial Nehange in the
law as to the service by publication of the
summons in an action for divorce
| Third-An affidavit in such a case showing
that personal service cannot we'll be made, and
containing the statements required by section
411l; with the return of the sheriff that the
| defendant cannot be found is sufficient tn
Justify the making of an order BY the court
| directing service by publication and to author.
/ lie the publication Of the summons without
any further affidavit after the order has been
| made. VIGIL
| Order reversed. -st,r+ az
Joseph Devlin and Frank Stopped, appellants,
| vs.. Irving W. Fox, respondent.
Syllabus: Held that the verdict herein ia
sustained BY the evidence and that no reyersI.
Bile errors were made by the trial court.
Order affirmed Per curiam.
Charles F. Northrup, respondent, vs. William
| W. Hayward, appellant. =
syllabus: In this a personal injury action.
| nelo: mat the evidence is sufficient to sustain
a verdict to the effect that the PLAINTIFFS ini1
r1es were caused by the negligence Of the de.
PENDANT and not by that of an independent con.
tractor; that the trial court did not err in re-
| 1uslng new trial on the ground Of newly dis
covered evidences; and further, that the damages
as reduced are not excessive. =
| Order affirmed. START q
American Hardwood Lumber company respond.
| emit vs. Joannin- Hansen company, appellant
Syllabus: First-the proper tribunal to sde.
term1ne whether a garnshee may be charged
as such on the facts Of his disclosure is the
| court In which the garnishee action is pend
ing. .--.-.... .-....- ~. .-
Second-Blair vs.. Hilgedick, IS MIMI, %
!
t 4o5 to the effect that the tendency OF a gar.
nlsnee action constitutes a defense by way OF
plea In abatement in an action by the gar
nshee's creditor to recover the debt sought to BIZ
reached by the garnfshment proceedings and
that the proper practice in such cases Is for thu
court to order a stay of proceedings in the &C.
! ton to recover the debt, pending the determi.
nation of the liability Of the garnishee in the
| garnishee action, followed and applied
oroer reversed Brown, ].
Bryan o'Rourke, respondent, vs.. German Insur.
ance company of Freeport, Ill, appellant.
| Syllabus: Where after loss under a stan.
dard fire insurance policy the parties proceed and
| appoint referees to arbitrate the amount of the
loss and the arbitration fails because of the
arbitrary and unjustinable refusal Of the referee
appointed by the insurance company to act in
the selection Of an umpire. and the insured
thereafter notifies the insurance company of the
fact and requests that it join in the selection
| OF new referees, which request Is refused the
| company thereby valves its rights under the
policy to have the amount Of the loss deter
mined BY arbitration. The fact that the in.
sured In the meantime repaired the building ID
| immaterial. - q
| Order affirmed Elliott =
Fred Tozer and David Tozer Jr., as administers
tors, etc. of David Tozer deceased, respondents,
Ocean Accident and Guarantee corporation,
| appellant.
| Syllabus: Evidence sufficient to sustain the
allegations Of the complaint, which, upon a
former appeal. was held to state cause of ac-
| ton. 81 Mimi. 47S
/ Certain assignments of error reviewed and
found to contain no error.
| Order affirmed. Lewis, J,
W. H. Williams as receiver Of the property of
Gustave Kemper, respondent, vs. Louise KEN
4 per and Gustave Kemper, appellants.
Syllabus: First-A subsequent creditor cannot
avoid 3 CONVEYANCE BY his debtor merely be-
/ cause it was made with intent to defraud ex-
! listing creditors. subsequent creditor to
| avoid such a conveyance must allegee and prove
facts showing that fits purpose was or its eject
Il will be to defraud him
Il Second-A transfer of real or personal proper.
i ty by debtor to third party to be held in
trust for his use and benefit is void as to exist
ing and subsequent creditors sss
Third-In IN action In the nature Of a cred
itor's suit to subject property SO held In trus,
FOR The debtor II It Is alleged III the complain,