1. Held, that the plaintiff is the owner of the fee in the street to the center thereof, except as conveyed to the public for street pur- poses. Donovan v. Allert, 289.
2. That the use of the street for telephone poles is not a street use, proper, and is a new burden or servitude thereon, inconsistent with the use of the street for travel, and for which compensation must be made. Donovan v. Allert, 289.
Held, on the facts stated in the opinion, that the plaintiff is estopped from alleging the invalidity of the proceedings of the drainage board in a court of equity for the purposes of enjoining the col- lection of assessments. Turnquist v. Commissioners, 514.
EVIDENCE. SEE CRIMINAL LAW, 1, 2; JUDICIAL NOTICE; Prac- TICE; FRAUDULENT CONVEYANCES.
I. When the obligations of a written contract are expressed in unam- biguous language, it is not competent to vary them by parol evi- dence of custom or usage. Deacon v. Mattison, 190.
2. A judgment cannot be proven by introducing in evidence the execu- tions issued thereunder, nor by the judgment docket containing an abstract of such judgment, nor by parol, in the absence of a showing that will allow the offer of secondary evidence. Amund- son v. Wilson, 193.
3. On the trial the court permitted the plaintiff, under objection, to answer the question, "Did you ever, Mr. Witte, intend to part with the goods except as they were paid for with cash?" Held prejudicial error. Mfg. Co. v. Reilly, 203.
4. Where, in an action for divorce, the marriage of the parties is al- leged in the complaint, admitted in the answer and is testified to by the plaintiff, held, construing § 2757, Rev. Codes, that such tes- timony does not require corroberation. Clopton v. Clopton, 212. 5. Evidence examined, and held, that testimony as to residence is suf- ficently corroborated. Clopton v. Clopton, 212.
6. In an action for divorce the corroborating testimony of a physician who treated the plantiff for bodily ailments which plaintiff stated to his physician were caused by his domestic troubles, is held competent under an exception to the rule excluding hearsay evi- dence within the meaning of § 2757, Rev. Codes. Clopton v. Clopton, 212.
7. Where, in an action for divorce, the element of collusion is excluded, held that only such corroboration as will satisfy the statute is re- quired. Clopton v. Clopton, 212.
8. One who relies upon a lost deed to sustain his title to real estate must establish its original existence, its loss, and the material parts thereof by clear and convincing evidence. Garland v. Bank, 374. 9. In cases where evidence of good character or reputation of the de- fendant is admissible in his behalf, held, that it was not error to strike out the testimony of two witnesses who testified to the de- defendants reputation, but not to his general reputation, and who disclosed upon cross-examination that they had no knowledge of his general reputation. State v. Thoemke, 386.
10. Held, under the evidence, that a deed, when delivered, was intended to operate as a deed absolute, and that the evidence to show a parol defeasance falls short of the high degree of proof required in such cases. Little v. Braun, 410.
II. In an action on a promissory note, the issue being whether the note was given for a valuable consideration or as an accommodation, certain evidence was held to be properly excluded, as it called for a conclusion, and not for a fact. Bank v. Monson, 423.
12. Evidence is considered, and held that the verdict was sustained be competent evidence. Bank v. Monson, 423.
EXCHANGE OF PROPERTY.
I. Where the contract is for the exchange of an equal number of bushels of wheat held that the measure of damages for the breach of such contract would be the difference between the value of the seed wheat at the time and place it was to be delivered and the market value of the more valuable wheat at the time of the refusal of the defendant to accept the tickets for the same. Talbot v. Boyd, 81. 2. Held, that under § 3997, Rev. Codes, the provisions of § 3958, Id., apply to contracts for the exchange of property, where the value of the property to be exchanged by either party is $50 or more; also that damages are measured and determined by § 4985, Rev. Codes. Talbot v. Boyd, 81.
EXECUTORS AND ADMINISTRATORS.
Upon the death of the vendor, in a contract for the sale of land, his interest passes as personalty, and continues as such for the pur- poses of administration; and, where the executors have canceled the contract for default of the purchases, and thus regained title, they may sell and convey such real estate, and account to the court of their appointment for the proceeds as personalty, and the title so conveyed is good as against the heirs of the descendent claiming title by succession. Clapp v. Tower, 556.
In order for a real estate broker to sign his principal's name to a contract for the sale of land, under § § 3887, 3690, Rev. Codes, it is necessary that his authority appear in a writing signed by the principal. Brandrup v. Britten, 376.
FRAUDULENT CONVEYANCES.
I. In actions to set aside conveyances as fraudulent as against a creditor claiming under a judgment, proof of such judgment is requisite to maintain such action. Amundson v. Wilson, 193.
2. In an action to set aside a conveyance by a judgment creditor, the fact that the judgment was rendered in an action before the same court and judge is not, of itself, ground for dispensing with the proof of said judgment. Amundson v. Wilson, 193.
3 So long as property retains its homestead character, an incumbrance or alienation of the same does not constitute a fraud upon the judgment creditors of the holder of title. Dalrymple v. Security Improvement Co., 65.
The rule that courts will leave parties to prohibited transactions where their unlawful acts have placed them, held not to authorize an indorsee to rely on an indorsement procured in a gambling transac- tion, nor to prevent the payee from enforcing payment against the maker. Drinkall v. Bank, 10.
1. Construing § 4630, Rev. Codes, held, that the test as to whether a guaranty amounts to an absolute guaranty, or merely as an offer of guaranty, is whether there has been or has not been that mutual assent or meeting of minds necessary to the existence of a con- tract. Sewing Mach. Co. v. Church, 420.
2. Held, that the instrument sued upon was only an offer of guaranty, and that, inasmuch as notice of aceptance was not given to the defendants, they are not liable thereon. Sewing Mach. Co. v. Church, 420.
HOMESTEAD. SEE FRAUDULENT CONVEYANCES, 3.
Under the laws of this state the statutory homestead is exempt from judgment liens and forced sales, save as to certain debts expressly excepted by statute, so long as the property retains its homestead character, and an incumbrance or alienation of the same does not constitute a fraud upon the judgment creditors of the holder of the title. Dalrymple v. Improvement Co., 65.
INJUNCTION. SEE DRAINS, 8.
1. Complaint and evidence considered, and held that an injunction will not lie to restrain the collection of personal property tax where plaintiff has an adequate remedy at law. Railway Co. v. Dickey Co., 107.
2. Injunction is a proper remedy to prevent the use of streets until the constitutional provision in regard to compensation has been complied with. Donovan v. Allert, 289.
3. The general rule is that a preliminary injunction will not be granted for the purpose of taking property from the possession of one per son and placing it in the possession of another. Dickson v. Dows, 404.
4. A defendant in a civil action is not entitled to the provisional remedy of injunction. This remedy is entirely a creature of statute, and is awarded only to the plaintiff in a proper action. Forman v. Healey, 563.
5. The order appealed from is without legal justification; the de- fendant in his pleadings alleges no facts entitling him to injunctive relief. Forman v. Healey, 563.
6. To entitle the plaintiff to an injunction restraining the defendant pendente lite, the complaint must state facts entitling the plaintiff to injunctive relief, which must be demanded in the prayer for relief even when the injunctional order is applied for on affidavits, after issue joined, under Subds. 2, 3, § 5344, Rev. Codes. For- man v. Headley, 563.
7. In an action to determine the right to possession, use and occupa- tion of land, an interlocutory order, secured on affidavit, ejecting plaintiff from the land, and restraining his re-entry, is void, as without legal authority, and as determining the merits before trial. Disobedience of such an order cannot be punished as for contempt. Forman v. Healey, 563.
INSANITY. SEE CRIMINAL LAW, 1-2.
INSTRUCTIONS. SEE APPEAL AND ERROR, 10, 15; CRIMINAL LAW; REPLEVIN.
A charge to the jury to the effect that a demand and refusal before suit were essential to any recovery by the plaintiff, held, under the evidence, that such instruction was prejudicial error. Thomp- son v. Thompson, 208.
1. Held, as to a life insurance policy containing the provision that the same "shall not take effect unless the first premium is actually paid while the insured is in good health," that the company is entitled to interpose such defense without a tender or payment back of the premium. Thompson v. Ins. Co., 274.
2. Held, on facts stated, that the rule in equity actions to cancel or annul contracts, that the moving party must return everything of value received pursuant to the contract, is not applicable to the facts in this case. Thompson v. Ins. Co., 274.
3. Receipt and retention of premiums with knowledge of forfeiture or of defenses against an action on the same is ordinarily a waiver of such forfeiture or defense. Thompson v. Ins. Co., 274.
INTERVENTION. SEE PARTIES, I.
INTOXICATING LIQUORS.
Upon an appeal from a conviction under § 7605, Rev. Codes, which is part of the prohibition law, held, that the verdict of the jury finding the defendant guilty is supported by the evidence. Thoemke, 386.
1. Judgments become liens upon real estate only to the extent of the interest of the judgment debtor, and when the judgment debtor has the bare legal title, without interest, and the equitable title is in another, the lien, in equity, does not attach. Dalrymple v. Improvement Co., 65.
2. The lien of a judgment entered against the vendor of real estate after a contract of sale, but before the execution and delivery of the deed, is subject to such contract. It may be made effective against any unpaid portions of the purchase price. If the entire puchase price has been paid or is due to another than the vendor, no lien attaches. Dalrymple v. Improvement Co., 65.
3. In judgments which are void for want of jurisdiction the remedy either by motion or by action is not barred by the statutory time limit of one year. Freeman v. Wood, 1.
4. In an action to set aside a judgment, held, that complaint did not state facts which sufficiently excused failure to proceed by mo- tion. Freeman v. Wood, I.
5. Under chapter 63, laws 1901, it is not error to direct the entry of judg- ment notwithstanding the verdict, when it is established by the evidence, as a matter of law, that the verdict should have been directed. Richmire v. Elevator Co., 453.
6. Held, that the burden is on the moving party to show diligence in seeking relief, and a failure to do so is fatal to the application. Wheeler v. Castor, 347.
7. Order vacating default judgment held, properly made. Wheeler v. Castor, 347.
8. Where, on motion to set aside a default judgment, a valid defense is set out by affidavit, it is discretionary with the trial court to accept such affidavit in lieu of a verified answer. Wheeler v. Castor, 347. 9. In an action to condemn land for street purposes judgment of con- demnation was entered; later upon the application of the planitiff the district court vacated the judgment. Defendants appeal. For reasons stated in the opinion the order appealed from is sustained upon the ground that the judgment was entered by the inadvert- ance and mistake of plaintiff's counsel. City of Fargo v. Keeney, 484.
1. Under § 5713d, Rev. Codes, a trial court is not required to take ju- dicial notice of a judgment rendered in the same court without being called upon to do so, nor is the introduction in evidence of the judgment docket of itself tantamount to calling upon the judge to take such judicial notice. Amundson v. Wilson, 193.
2. Courts will take judicial notice of the fact that the state convention is the highest organization of a political party. State v. Liudahl, 20.
JURISDICTION. SEE COURts, 5.
JUSTICE OF THE PEACE.
I. A justice of the peace is not bound, as a matter of duty, to dismiss a prosecution of a criminal offense on motion of the state's at- torney. In re Voss, 540.
2. On appeal from a judgment in justice court the notice may prop- erly be served on the adverse party, instead of the attorney appear- ing on the trial in justice's court. Richmire v. Elevator Co., 453.
3. In appealing to the district court from the justice court, it is suf- ficient if a proper notice is served upon the adverse party or his attorneys, together with an undertaking by a sufficient surety, as required by § 6772, Rev. Codes, and that such notice and under- taking, with the proof of service thereof, be subsequently, and within proper time, filed with the clerk of the district court ap- pealed to, and that such undertaking be approved by such clerk before the filing thereof. Eldridge v. Knight, 552.
4. It is not necessary, under § § 6771, 6772, 6776 and 6777, Rev. Codes. that the undertaking on appeal be approved and filed by the clerk of the district court before the same is served upon the appellee, or that proof of the approval be served. Eldridge v. Knight, 552.
LANDLORD AND TENANT. SEE SEWERS, I.
I. Where portions of a building are let to tenants, the landlord retaining exclusive possession and control of other portions, he is bound to exercise common care and prudence in the management and over- sight of the portions retained; and the landlord will be liable for damages caused by his failure to do so. Kneeland v. Beare, 233.
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