almost without limit, but we deem the above | tions here involved, though in the former sufficient. In Armstrong v. Chicago, etc., action the violation was alleged in terms so R. Co., supra, the complaint alleged that the restricted and specific that, under the rule plaintiff delivered a mare to the defendant, applied in Scarlotta v. Ash, 95 Minn. 240, a common carrier, for carriage, and charged 103 N. W. 1025, the proofs were restricted negligence on the part of the defendant in by the court below to the particular specific the care of the animal while in its custody; act of closing the gates of the dam, while in one paragraph alleging negligence while the the second action the ultimate duty and its mare was in the possession of the defendant violation was alleged in terms sufficiently as carrier, and the other charging negligence general to admit of proof of any and all speafter the arrival of the mare at destination cific manifestations of the defendant's disreand while she was in the defendant's cus- gard of his duty. The complaint in the sectody as warehouseman. It was held that ond action states but a single cause of action only one cause of action was alleged. "Al--such is manifest from the mere reading of though inaccurately so called,” said Mr. Jus- the complaint, and the plaintiff does not contice Mitchell, in delivering the opinion of the court, "the complaint did not state two causes of action, but only one, to wit, negligence in the care of the property, constituting a breach of the defendant's contract of bailment." In McCain v. Louisville, etc., R. Co., supra, an action for injuries caused by the "negligence of the defendant's agents in giving an unusual and loud whistle of its engine after plaintiff had crossed the track in safety, thus frightening the (plaintiff's) horse and causing the injury," was held barred by a judgment against the plaintiff in a former action, wherein it was alleged that the plaintiff's horse was frightened by reason of the fact that the "train approached the public crossing at a dangerous rate of speed, without giving the usual and customary notice of its approach, whereby the appellant (plaintiff) was decoyed so near the crossing that his horse became frightened." etc. In Columb v. Webster Mfg. Co., supra, it was held that a judgment in an action for personal injuries alleged to have been caused by the defendant's negligence was a bar to a subsequent action between the same parties, for the same injury, based upon the same transaction, though additional acts of negligence were alleged in the second action. It was declared by the court that the complaint in FIRST STATE BANK OF MOUNTAIN LAKE the second action merely alleged "additional acts of negligence, operating upon the same occurrence, and tending to the same result." These cases, and especially the one last referred to, which has been cited and approved many times (see Hein v. Westinghouse Air Brake Co. [C. C.] 172 Fed. 524, 526; Bresnahan v. Tripp Giant Leveller Co., 99 Fed. 280, 283, 39 C. C. A. 508; The New Brunswick [D. C.] 125 Fed. 567, 569), are, we think, conclusive of the question before us. In each of them the violation of the ultimate duty was held to constitute the delict, as distinguished from the specific acts by which such violation was manifested. And so in the instant case the ultimate duty of the defendant was so to conduct and maintain its dam as not to violate the rights of the plaintiff, whose lands lay further up the river, and it was the violation of this duty which was alleged in both of the ac tend otherwise and yet thereunder would v. C. E. STEVENS LAND CO. et al. (Supreme Court of Minnesota. Oct. 25, 1912.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 1232*)-LIABILITIES ON APPEAL BONDS-RELEASE OF SURETY. A stipulation for an affirmance of an order does not release the surety on the appeal bond. or judgment appealed from, made in good faith, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4753-4757; Dec. Dig. § 1232.*] 2. APPEAL AND ERROR (§ 1225*) — PROCEEDINGS FOR REMOVAL OF CAUSE VALIDITY OF BOND. In an action findings were made, directing judgment to be entered in favor of the plaintiff therein, the stay allowed had expired, and plaintiff threatened to enter judgment, whereupon the defendant promised that, if plaintiff would refrain from entering judgment in the intended appeal, defendant would give a satisfactory bond to pay all judgments and costs proven that such an agreement was made and that might be entered in the action. If it be kept by plaintiff, and pursuant thereto an ap 3. APPEAL AND ERROR (§ 1071*)-REVIEWPREJUDICIAL NATURE OF ERROR. In order to determine the prejudicial effect of errors properly assigned, the whole record may be examined; and if, in the light thereof, the findings appear indefinite and uncertain on a vital issue, the judgment should not be allowed to stand. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. & 1071.*] 4. FRAUDS, STATUTE OF (§ 108*) — VALIDITY OF APPEAL BOND-STATEMENT OF CONSIDER ATION. that may be awarded against it and all damages sustained by the respondent in consequence of said appeal, and abide and satisfy the judgment or order which the appellate court may give therein, and pay all judgments and costs which may be rendered against it in said action, then this obligation shall be void; otherwise, to remain in full force." The order appealed from was affirmed, and upon remittitur to the district court judgment was entered upon the findings. Plaintiff now seeks to recover of the defend ant, the surety in the bond, the balance unpaid on the judgment. [1] The surety pleaded, and the court found, that the affirmance of the order appealed from by the C. E. Stevens Land ComThe bond in this case, considered as a common-law obligation, is not void under the stat-pany in this court was pursuant to a stipulaute of frauds for failure to state the consideration, namely, the alleged agreement, in full. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. 88 214-221; Dec. Dig. § 108.*1 5. COURTS (§ 99*) DEMURRER--EFFECT OF DECISION-LAW OF THE CASE. An order sustaining a demurrer to a complaint is of no effect as determining the law of the case, after the service of an amended complaint. [Ed. Note. For other cases, see Courts, Cent. Dig. 340; Dec. Dig. § 99.*] Appeal from District Court, Cottonwood County; L. S. Nelson, Judge. Action by the First State Bank of Mountain Lake against the C. E. Stevens Land Company and others. From a judgment for defendant Title Guaranty & Surety Company, plaintiff appeals. Reversed, and new trial granted. Wilson Borst and J. G. Redding, both of Windom, for appellant. James E. Markham and Benjamin Calmenson, both of St. Paul, for respondent. HOLT, J. The action is to recover on an appeal bond. Judgment was rendered for the defendant, the surety, and plaintiff appeals therefrom. an Plaintiff's assignor, one J. C. Heibert, in action pending in the district court against the C. E. Stevens Land Company, was successful, and findings directing judgment to be entered in his favor for $5,050 were duly made and filed September 22, 1904. A stay of proceedings for 20 days was granted the next day, but none other. A motion for a new trial was denied November 26th, and December 5, 1904, a notice of appeal was served. On that day the attorney for the Land Company delivered to the attorney for said Heibert the bond in suit for $6,000, executed by said Land Company, as principal, and this respondent as surety. After stating that an appeal from the order denying a new trial had been taken, the bond reads: "Now, therefore, if the said the C. E. Stevens Land Company aforesaid shall pay all costs tion between the parties. Plaintiff herein saved exception to the reception of the stipulation in evidence, and also assails the finding upon that issue as immaterial. The defendant contends that this finding is not only material, but conclusive that no liability exists on the bond. There are authorities to the effect that an affirmance of an appeal by active consent of the litigants releases the surety, or precludes the happening of the implied condition precedent to liability on the bond, namely, that the appeal shall be heard on its merits; that by stipulating for affirmance of the appeal a condition not contemplated is added to the contract of the surety, and he is released; and that the surety, in assuming the contract, has a right to rely on the chance that he will be relieved from liability if the appellate court considers the appeal on the merits, therefore, when the litigants, by agreement, take away this chance, he is not to be holden. Johnson v. Flint, 34 Ala. 673, where, however, the stipulation disposing of the appeal without a hearing was for the entry of a different judg ment than the one appealed from. Foo Long v. American Surety Co., 146 N. Y. 251, 40 N. E. 730, is also relied on by the defendant. In that case, where the stipulation in the Court of Appeals was for a judgment reversing the decision of the Supreme Court and reinstating the judgment of the trial court, the circumstances of the stipulation savored of fraud upon the surety. However, the court does not place its conclusion on that ground, but on the ground that the affirmance of the original judgment was not an affirmance within the true meaning of the bond. The court makes use of this language: "The question of fraud or collusion is not presented. But it seems difficult to escape the conviction that the purpose of the arrangement was to subject the defendant to liability on its undertaking. None of the cases on the construction of bonds indemnifying against suits or judgments, or upon appeal bonds, which have come to our attention, presents the peculiar features of For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes this case, of a consent by a party who has | pay the judgment to be entered under the succeeded on the appeal taken by him to a reversal of the judgment in his favor and to a restoration of the original judgment against him." While the facts may thus differentiate this case cited from the case at bar, the principle announced sustains the defendant's contention. See, also, Large v. Steer, 121 Pa. 30, 15 Atl. 490; Baker v. Frellsen, 32 La. Ann. 822; Andre v. Fitzhugh, 18 Mich. 93. We are, however, not inclined to the views taken in the foregoing decisions. The surety on an appeal bond has no voice in the conduct of the litigation, nor any interest in the matters involved. It is understood that the appeal is for the sole benefit of the principal in the bond. He alone has the right to carry on or terminate the appeal in the manner he chooses, if not prevented by his adversary or the court. Therefore, if at any time he concludes that continuing the litigation will be of no advantage to him, or will entail useless expense, he should have the right to stipulate for an affirmance or dismissal of the appeal, without thereby releasing the surety on the bond. All authorities are agreed that intentional neglect of an appellant to take the steps necessary for a consideration of the appeal on the merits does not affect the liability of the surety on the appeal bond. And what is such neglect but doing by indirection what was here accomplished by the stipulation? We are of opinion that the right of a litigant to terminate litigation, and which should be favored by courts, is an incident annexed to bonds on appeal, so that, when this right is exercised in good faith, it does not in any wise release the surety on the bond. We do not here consider a case where the parties have colluded to work a fraud on the surety, for the stipulation for affirmance appears to have been prompted by a laudable desire to avoid certain defeat for one of the parties and needless trouble and expense for the other. As supporting the rule we adopt, see Chase v. Beraud, 29 Cal. 138; Drake v. Smythe, 44 Iowa, 410; Ammons v. Whitehead, 31 Miss. 99; Bailey v. Rosenthal, 56 Mo. 385; Howell v. Alma Milling Co., 36 Neb. 80, 54 N. W. 126, 38 Am. St. Rep. 694. We therefore conclude that it was error to receive the stipulation to affirm, and that the finding based thereon, if given any legal value, will result in a wrong judgment. [2] Since no judgment was entered in the court below when the bond was given, and since on this trial no evidence was offered to show that the financial standing of the obligor in the bond had changed for the worse during the pendency of the appeal, the contention of the defendant is that plaintiff is not in any event entitled to recover. It claims this was a statutory cost and supersedeas bond given on an appeal from an order is without consideration, and must be regarded as mere surplusage. If the bond was given to secure only the rights given by statute, the contention is correct. Johnson v. Dun, 75 Minn. 533, 78 N. W. 98; Proprietors of Union Wharf v. Mussey, 48 Me. 307; Kountze v. Omaha Hotel Co., 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609. But plaintiff claims that the bond was given pursuant to a voluntary agreement entered into be tween the obligor and obligee therein to the effect that the latter should refrain from entering the judgment to which he was then entitled, the stay having expired, upon receiving such a bond as would have been required to stay proceedings, had the judgment been entered. The weight of authority supports the proposition that, where an appeal bond is not in the express terms of the statute, it may be valid as a common-law obligation voluntarily entered upon by the parties. Johnson v. Dun, supra; Slutter v. Kirkendall, 100 Pa. 307; Smith v. Fargo, 57 Cal. 157; Gardner v. Donnelly, 86 Cal. 367, 24 Pac. 1072; Mix v. People, 86 Ill. 329; Meserve v. Clark, 115 Ill. 580, 4 N. E. 770; Coughran v. Sundback, 13 S. D. 115, 82 N. W. 507, 79 Am. St. Rep. 886; Coughran v. Hollister, 15 S. D. 318, 89 N. W. 647. In Pray v. Wasdell, 146 Mass. 324, 16 N. E. 266, the court says: "But it is unnecessary to decide whether the contract is valid under the statute, for, if not, it is binding at common law. It was entered into voluntarily, it contains nothing in conflict with the statute, and it is not otherwise illegal. Obligors who sign such an instrument are bound by it." Upon the issues made by the pleadings and the findings, defendant insists that the bond is statutory. There is no express finding to that effect. The complaint set out the bond, and alleged that it was executed according to an agreement between the parties under which the obligee was to refrain from entering the judgment pending the appeal, and that he did so. The answer admitted that the bond was executed in the form and manner set out in the complaint, and further on specifically denied the paragraph in the complaint in which the allegations of the agreement were contained. [3] On the trial the court received the evidence showing the agreement, but reserved ruling on the objection made thereto. The record shows that upon final consideration the objection was sustained. Manifestly this was prejudicial error, unless the court regarded the admission of the answer as to the manner in which the bond was executed as including an admission of the agreement, in which case the bond would not be a statutory obligation. We are, however, preclud. ed from predicating a reversal on the ruling, for no assignment of error is based STATE ex rel. MASON v. CONSUMERS' (Supreme Court of Minnesota. Oct. 25, 1912.) (Syllabus by the Court.) PORATIONS-DISCRIMINATIONS IN SErvice. A public service corporation, which has accepted a franchise from a city authorizing it to operate therein, is bound by the implication of the law to make no unreasonable discriminations between those to whom service is or is to be furnished; that is, it must not be partial, and must serve all alike who are similarly cirwho are members of any class which it has cumstanced with reference to its system, or undertaken or is otherwise bound to serve. [Ed. Note.-For other cases, see Electricity, Dec. Dig. § 11.*] the record for the purpose of determining the meaning of the findings and the prejudicial effect of the errors assigned. It is clearly shown that the obligor in the bond did not cause it to be approved by the court commissioner, nor file it with the clerk. This was done by plaintiff's attorney after the 1. ELECTRICITY (§ 11*)-PUBLIC SERVICE COBbond was delivered to him. The findings apparently to the contrary are assailed, and we think justly so, if any inference is to be drawn therefrom that the bond is statutory. Had the court not rejected the testimony showing the bond to be given pursuant to the voluntary agreement of the parties, it could be said, perhaps fairly, that the findings must be considered as inferentially determining that issue in favor of the defendant herein. But to draw such an inference now in the light of the record would seem to work an injustice upon plaintiff. The pleadings, trial, and findings leave the issue in doubt as to whether the bond was intended as a statutory supersedeas, or as a voluntary agreement by and between the litigants, and as such a good common-law bond. We therefore conclude that a new trial ought to be had. Had there been a definite finding that the bond was given solely pursuant to statute, the error in regard to the stipulation first above discussed could not have changed the result. But, such not being the case, plaintiff is in a position to claim prejudicial error. [4] The point made that the bond is not a good common-law obligation, because it does not comply with the statute of frauds, in that it fails to state the consideration or agreement, we do not consider of sufficient merit for discussion. [5] Respondent also claims that because the court sustained a demurrer to the original complaint, which set out this bond in hæc verba, on the ground that no damages from the stay were alleged, and appellant acquiesced in such order by serving an amended complaint alleging such damages, therefore it is the law of the case that the bond is a statutory supersedeas bond on appeal from an order. We do not concur in this view. The service of an amended pleading takes the place of the former pleading, and stops all further use thereof. Pleins v. Wachenheimer, 108 Minn. 342, 122 N. W. 166, 133 Am. St. Rep. 451; Hanscom v. Herrick, 21 Minn. 9; Cook v. Kittson, 68 Minn. 474, 71 N. W. 670. Had the demurrer been overruled, the objection that the complaint did not state a cause of action would still have been open to defendant at the trial. Our conclusion is that the judgment should be reversed, and a new trial granted. ordered. So 2. ELECTRICITY (§ 3*)—ELECTRIC COMPANIES— [Ed. Note. For other cases, see Electricity, -PROCEEDINGS-SUFFICIENCY OF EVIDENCE, Evidence, in mandamus to compel an electric light company to furnish electric service to relator's house, considered, and held to show that such house was situated within a zone of service already established by the respondent, and was therefore prima facie entitled to the same service furnished to other houses within the same zone. [Ed. Note. For other cases, see Electricity, Dec. Dig. § 11.*] 4. EVIDENCE (§§ 5, 21*)—JUDICIAL NOTICE— MATTERS OF COMMON KNOWLEDGE-PUBLIC SERVICE CORPORATIONS. The court will judicially notice that, when an application is made to a public service corporation for a public service, such as water, gas, electric light or power, or telephone serv ice, certain things have to be done in order to connect the applicant's premises with the company's system, and that the company, and not the applicant, usually attends to such matters, except in so far as they may be controlled by special rules and regulations applicable to the particular service. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 4, 25; Dec. Dig. §§ 5, 21.*] 5. EVIDENCE (§§ 10, 21*)-JUDICIAL NOTICEMATTERS OF COMMON KNOWLEDGE-PUBLIC SERVICE CORPORATIONS. The court will judicially notice that cities are divided by streets and alleys into blocks and subdivisions of blocks; that public service corporations using wires for the distribution of the service supplied by them, such as telephone and electric light service, customarily set poles in the streets and alleys, and string wires along and across the same; that such wires frequently cross the streets and alleys; that many persons are served by such wires so strung above and across the streets and alleys; and that when the consent of the city PHILIP E. BROWN, J., took no part in is necessary, in order that the service com the decision of this case. pany may lawfully set such poles and string such wires as may be necessary to carry the serv For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ice to the persons so served and to be served, | specifying the manner in which such duty is the company, and not its patrons or applicants performed. for service, usually attends to the obtaining of the necessary consent of the city to the use of the streets, by application to the council or otherwise. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 9-14, 25; Dec. Dig. §§ 10, 21.*1 6. MANDAMUS (§ 168*)-PROCEEDINGS-SUFFICIENCY OF EVIDENCE. In the absence, therefore, of evidence of a contrary custom, in mandamus proceedings to compel the furnishing of service, it will be presumed that the respondent, an electric light company, follows the usual custom and itself performs the details incident to the connection of its lines with the premises of applicants for service; and hence, where it appears that an applicant for service, whose house is in an established service zone, has made proper application and demand upon the respondent, and has his house equipped to receive the service, his right to the writ is prima facie established -the burden of establishing a contrary custom being upon the respondent, as is also the burden of establishing any defense predicated upon its inability, through physical, legal, financial, or other obstacles, to furnish the service demanded. [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 371-374; Dec. Dig. § 168.*] 7. ELECTRICITY (§ 11*) ELECTRIC LIGHT COMPANIES-DISCRIMINATION IN SERVICE. It is unreasonable discrimination for an electric light company to require an applicant for service to procure for it a right of way to his premises, when such condition is not imposed upon other applicants and patrons. [Ed. Note.--For other cases, see Electricity, Dec. Dig. § 11.*] 8. ELECTRICITY (§ 11*)-ELECTRIC COMPANIES -COMPELLING COMPANY TO FURNISH SERV ICE EXTENSIONS." A provision, in an ordinance granting a franchise to an electric light company, that the city should not require the company to make "extensions," except upon certain conditions, held not to affect the right of a resident in an established service zone to invoke the aid of the courts to compel the company to connect his premises with its line. [Ed. Note. For other cases, see Electricity, Dec. Dig. § 11.* For other definitions, see Words and Phrases, vol. 3, pp. 2615-2618; vol. 8, pp. 7658, 7659.] 9. ELECTRICITY (§ 11*)—ELECTRIC COMPANIES -PROVISION OF FRANCHISE. Such provision held not to affect the mutual rights and obligations of the company and the individual residents of an established service zone. [Ed. Note. For other cases, see Mandamus. Cent. Dig. 88 405-408, 411, 412; Dec. Dig. § 182.*] Appeal from District Court, Ramsey County; Oscar Hallam, Judge. Mandamus by the State, on the relation of William H. Mason, to the Consumers' Power Company. From an order denying the relator's motion for a new trial, after the overruling of his motion for judgment on the findings, or for amended findings and judgment thereon, the relator appeals. Keversed, with directions. Wm. H. Mason, of St. Paul, pro se. Denegre & McDermott, of St. Paul, for respondent. PHILIP E. BROWN, J. Mandamus to compel the respondent to furnish electric service to the relator's residence in the city of St. Paul. An alternative writ was issued; but, after hearing had and upon findings made, such writ was quashed, whereupon, from an order denying the relator's motion for a new trial, prayed for on the grounds that the court erred in overruling the relator's motion for judgment upon the findings, or for amended findings and judgment thereon, the relator appealed. [1, 2] 1. The respondent is, and during all the times hereinafter mentioned has been, a corporation duly organized and existing under the laws of this state, with power to generate, distribute, and supply electric current for light, heat, and power, and other purposes, to the cities of the state and the inhabitants of such cities, and by virtue of certain ordinances is, and at all times material to the issues involved in this case has been, authorized to carry on its said business in the city of St. Paul. Being a corporation organized and empowered to perform a public service, and having accepted a franchise from the city authorizing it to operate therein, it is bound by the implication of the law to make no unreasonable discriminations between those to whom the said service is to be furnished; that is, it must not be partial, and must serve alike all who are similarly [Ed. Note. For other cases, see Electricity, circumstanced with reference to its system, Dec. Dig. § 11.*] 10. MANDAMUs (§ 133*)—SuBJECTS OF RELIEF -ACTS OF CORPORATIONS. Mandamus is the proper remedy to compel a public service corporation to furnish service to an individual applicant therefor. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 268; Dec. Dig. § 133.*] 11. MANDAMUS (§ 182*)—Proceedings-RELIEF GRANTED. The mandate of a writ of mandamus to compel an electric light company to furnish electric service to the relator should, under the established facts herein, be merely that the respondent must furnish such service, without or who are members of any class to which it has undertaken or is otherwise bound to furnish service. State v. Board of Water & Light Commissioners, 105 Minn. 472, 117 N. W. 827, 127 Am. St. Rep. 581; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 450, 107 N. W. 405, 5 L. R. A. This is the (N. S.) 638, 7 Ann. Cas. 1182. rule almost universally applied to telephone companies (State v. Board of Water & Light Commissioners, 105 Minn. 472, 477, 117 N. W. 827, 127 Am. St. Rep. 581; State v. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |