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time to a day certain, to enable it to complete / visors duly met at the time and place s the hearing and determine whether it will lay in the notice for hearing, which was the road. (Ed. Note.-For other cases, , see Highways, question of laying out the proposed high

given, for the purpose of determining Cent. Dig. $ 78; Dec. Dig. $ 33.*] 4. HIGHWAYS ($ 33*)-PROCEEDINGS TO Es- examined the route, and heard inter TABLISH-ADJOURNMENT OF HEARING.

parties, but, without coming to any In this case the supervisors met at the time mination as to whether they would or and place -stated in the notice to hear and de, not lay out the road as prayed for, sepa termine a petition for laying a highway, viewed the route, and heard interested parties; but, without definite adjournment to any without any determination of the matter or ad place or time for the consideration of journment of the hearing, they separated, and matter. On the 10th day of February three weeks thereafter met by agreement outside of their town, and there took up the matter following, by agreement among thems of laying out the proposed road, and determined they met at the courthouse in the city so to do. Held, that their order so laying the James and took up the matter of layin road was void, [Ed. Note.--For other cases, see Highways, determined to lay out the road as p

the proposed road, and they then and Cent. Dig. $ 78; Dec. Dig. $ 33.*]

for in the petition, and made and filed (Syllabus by the Court.)

der purporting to lay out the highway. Appeal from District Court, Watonwan meeting of the supervisors was witho County ; A. R. Pfau, Judge.

tice to any of the parties interested Proceedings before the Board of Super- matter, and was held without previou visors of the Town of Rosendale for the es- journment from the regular meeting tablishment of a highway. From an order board. purporting to lay it out, J. A. Baldwin ap As a conclusion of law from these pealed to the district court, and Jerimiah the court found that the supervisors Crowley and others, landowners, intervened without jurisdiction to lay out the hi and contested the appeal. The order of the at the time they attempted so to do supervisors was vacated, and interveners ap- that their order was void, and that peal from an order denying a new trial. Af- vacated. The interveners appealed fr firmed.

order denying their motion for a new t Seager & Seager, for appellants. Ham

The record presents two questions mond & Burns, for respondent.

the trial court err in not dismissing t

peal from the order of the supervisor START, C. J. The supervisors of the not, do the facts found support the town of Rosendale, in the county of Waton.

conclusions of law? wan, this state, on February 10, 1908, made

1. The right to appeal in cases o an order purporting to lay out a public high- kind is given by the statute (section way as therein described. The respondent Rev. Laws 1903), to any person aggrie herein appealed from the order of the dis to any taxpayer or voter of the trict court of the county named. His notice through which the proposed highway of appeal stated that, “feeling himself ag. part of it passes, by filing the require grieved by the order," describing it, he ap- and by service of a notice of appeal pealed to the district court of the county of vided in section 1188. The sole requis Watonwan, that the appeal was taken to re

a valid notice of appeal, as stated in t verse entirely the decision of the board, and section referred to, are that it shall stated the grounds of appeal in full. Other briefly the grounds of appeal, that is, than this the notice did not show his right to er it relates to the damages, or to the appeal. There was no appearance by the su- lishing, altering, or discontinuing a rd pervisors in the district court, and the inter to the refusal so to do, and whethe veners herein, owners of land along the pro- taken to reverse entirely the decision posed highway, were by order of the court board, or some portion thereof, and, permitted to appear and contest the appeal. latter, what portion, and, further, Upon the trial, which was by the court with shall be signed by the party appealing out a jury, it appeared that the respondent attorney. These statutory requisites had no interest in any land over or along or notice of appeal are so specific and c to which the proposed highway would pass, to leave no room for any implication and therefore was not an aggrieved party; other; hence the notice of appeal ne but it did appear that he was, when the ap- state or show by what right or in w peal was taken and at all times the proceed-pacity the appellant appeals. Ander ings were pending, a taxpayer and voter of County of Meeker, 46 Minn. 237, 48 the county. The court denied the interven- 1022. ers' motion to dismiss the appeal from the In the case cited Anderson appealed order of the supervisors.

district court from an order of the bo The facts found by the court were substan-county commissioners laying out a tially these: On January 21, 1908, the super- I ditch pursuant to chapter 97, Gen. Law

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l'pon the trial, which was by the court with shall be signed by the party appealing als out a jury, it appeared that the respondent attorney. These statutory requisites de had no interest in any land over or along or notice of appeal are so specific and class to which the proposed highway would pass, to leave no room for any implication of a and therefore was not an aggrieved party; other; hence the notice of appeal next but it did appear that he was, when the ap- / state or show by what right or in this real was taken and at all times the proceed- pacity the appellant appeals. Anders!

In the case cited Anderson appealed by ings were pending, a taxpayer and voter of County of Meeker, 46 Minn, 237, 48.XI

district court from an order of the band The facts found by the court were substan- county commissioners laying out a pak tially these: On January 21, 1908, the super- I ditch pursuant to chapter 97, Gen. Laman

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporters

time to a day certain, to enable it to complete visors duly met at the time and place stried the hearing and determine whether it will lay in the notice for hearing, which was duly the road. (Ed. Note-For other cases, see Highways, question of laying out the proposed libing

given, for the purpose of determining the Cent. Dig. $ 78; Dec. Dig. $ 33.*] 4. HIGHWAYS ($ 33*)— PROCEEDINGS TO Es- examined the route, and heard internet TABLISH-ADJOURNMENT OF HEARING. parties, but, without coming to any deter

In this case the supervisors met at the time mination as to whether they would or will and place stated in the notice to hear and de; not lay out the road as prayed for, separatel termine a petition for laying a highway, viewed the ute, and heard interested parties; but, without definite adjournment to any de without any determination of the matter or ad- place or time for the consideration of uit journment of the hearing, they separated, and matter. On the 10th day of February nat ihree weeks thereafter met by agreement outside of their town, and there took up the matter following, by agreement among themselves of laying out the proposed road, and determined they met at the courthouse in the city d& 80 to do. Held, that their order so laying the James and took up the matter of laste et road was roid, [Ed. Note.–For other cases, see Highways, determined to lay out the road as prayel

the proposed road, and they then and the Cent. Dig. $ 78; Dec. Dig. $ 33.*]

for in the petition, and made and filed or (Syllabus by the Court.)

der purporting to lay out the highway. This Appeal from District Court, Watonwan meeting of the supervisors was without County; A. R. Pfau, Judge.

tice to any of the parties interested in the Proceedings before the Board of Super- matter, and was held without previous ał visors of the Town of Rosendale for the es- journment from the regular meeting of the tablishment of a highway. From an order board. purporting to lay it out, J. A. Baldwin ap As a conclusion of law from the fruits pealed to the district court, and Jerimiah the court found that the supervisors PT Crowley and others, landowners, intervened without jurisdiction to lay out the bieta and contested the appeal. The order of the at the time they attempted so to da, el supervisors was vacated, and interveners ap- that their order was void, and that it le peal from an order denying a new trial. Af- vacated. The interveners appealed from it firmed.

Seager & Seager, for appellants. Hammond & Burns, for respondent.

order denying their motion for a new tri.
The record presents two questions

: il
the trial court err in not dismissing the i?

peal from the order of the supervisors? I START, C. J. The supervisors of the not, do the facts found support the court town of Rosendale, in the county of Waton

conclusions of law? wan, this state, on February 10, 1908, made

1. The right to appeal in cases of an order purporting to lay out a public high- kind is given by the statute (sectia 18 way as therein described. The respondent Rev. Laws 1905), to any person ageriet, berein appealed from the order of the dis- to any taxpayer or voter of the core trict court of the county named. His notice through which the proposed highway er of appeal stated that, "feeling himself ag- part of it passes, by filing the required be grieved by the order," describing it, he ap- and by service of a notice of appeal op pealed to the district court of the county of vided in section 1188. The sole requisitos Watonwan, that the appeal was taken to re a valid notice of appeal, as stated in the De verse entirely the decision of the board, and section referred to, are that it shall se stated the grounds of appeal in full. Other briefly the gronnds of appeal

, that is niet than this the notice did not show his right to er it relates to the damages

, or to the core appenl. There was no appearance by the su- lishing, altering, or discontinuing a nade pervisors in the district court, and the inter to the refusal so to do, and whether l'eners herein, owners of land along the pro- taken to reverse entirely the decision eft posed highway, were by order of the court board, or some portion thereot, and it permitted to appear and contest the appeal. latter, what portion, and, further, the

the county. The court denied the interven- 1022. ers' motion to dismiss the appeal from the order of the supervisors.

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PER CURIAM. This case involves the va START, C. J. On March 17, 1908, the lidity of the same road order which was held to tiffs brought this action in the distric be void in the case of Baldwin vs Board of Su. of the county of St. Louis to recove pervisors (opinion filed herewith) 124 N. W. 641, and is ruled by it.

the defendants the balance due upon a Order affirmed.

issory note, dated January 29, 1907, m the defendant L. G. Bradley to the pla whereby he promised to pay to them,

on August 20th next thereafter, with it BANDLER et al. v. BRADLEY et al. The note was indorsed before its deli (Supreme Court of Minnesota. Feb. 4, 1910.) L. G. Bradley's father, C. H. Bradle 1. PRINCIPAL AND SURETY (88 45, 159, 162*)– after referred to as the defendant, wh

FRAUDS, STATUTE OF (8 131*)—ACTIONS- defended this action. His answer ad
DEFENSES-BURDEN OF PROOF – DISCHARGE that he indorsed the note, and affirm
OF SURETY_EXTENSION OF TIME FOR Pay.
MENT OF NOTE – CONSENT - QUESTION OF alleged in effect the facts following
Fact.

upon or about the 17th day of Octobe Action on a promissory note. Defense, that the defendant L. G. Bradley enter the defendant was a surety to the knowledge of the plaintiffs, and that they extended the time an agreement with the payees of t of payment of the note without his consent. whereby it was paid by L. G. Bradley Verdict for the plaintiffs. Held, the burden of agreeing to pay the remaining amoun proving such defense was upon the surety. The debtedness represented by said note, statute of frauds has no application to the Whether the surety consented to the extension October 20, 1907, and $366.74 on the 2 of the time of the payment of the note was, un- of each month thereafter up to and in der the evidence, a question of fact.

April 20, 1908, and L. G. Bradley g [Ed. Note.-For other cases, see Principal and Surety: Cent. Dig. $$ 433, 443; Dec. Dig. es payee a mortgage upon certain pro 45, 159, 162;* Frauds, Statute 'of, Dec. Dig. y secure the balance then due upon the 131.*]

edness represented by the note, wher 2. PRINCIPAL AND SURETY (8 115*) DIS- payees were to accept the mortgage CHARGE OF SURETY.

curity for the indebtedness, and were Any unauthorized act, or laches, of a cred- did release this defendant from any itor in the management of collateral remedies or tion upon the note, and were to look securities, if loss ensues will discharge the surety pro tanto; that is, so far as he is absolute- Bradley and the security alone for ly damaged.

of the indebtedness, and this defen [Ed. Note. For other cases, see Principal and leges that the mortgage pursuant Surety, Cent. Dig. 88 244–268; Dec. Dig. $arrangement was given by L. G. Bra 3. PLEADING ($ 280*)-NEW TRIAL (% 100*)- and this defendant released from t

taken and accepted by the payees of New DEFENSE AFTER VERDICT-REMEDY.

Where new matter of independent defense The reply denied, except as therein arises after verdict, the remedy is not a motion ted, the allegations of the answer, for a new trial on the ground of newly discov- tained admissions and allegations to ered evidence, which has no relevancy to the issues litigated by the trial, but by å motion fect as follows: The plaintiffs admit to be permitted to make a supplemental answer, or about October 17, 1907, L. G. Bra with a stay of proceedings on the verdict until ecuted a chattel mortgage on some the issue tendered by the supplemental answer can be determined.

property, but allege that the mortg (Ed. Note.-- For other cases, see Pleading, executed to the plaintiffs by L. G. Dec. Dig. 280;* New Trial, Dec. Dig. $ 100.*j at the request of the defendant C. 4. RULINGS OF COURT.

ley, with his knowledge and cons The court correctly denied the defendant's that it was distinctly understood an motion for judgment notwithstanding the ver- by and between the plaintiffs and dict, but erred in granting his motion for a new trial.

fendants that the taking of the 1 (Syllabus by the Court.)

should in no way release either of

fendants from their obligations as m Appeal from District Court, St. Louis

indorser of the note. County; Homer B. Dibell, Judge.

It appears from the record that Action by Bernard Bandler and others defense made on the trial by the a against L. G. Bradley and others. Verdict

was that he was a surety on the for plaintiffs. A motion for judgment not. his son and codefendant, that the withstanding the verdict was overruled, and knew it, and without his consent o a new trial granted. Plaintiffs appeal from edge extended the time of the pa the grant of a new trial, and defendant C. the note for a valuable consideratio H. Bradley appeals from both orders. Af- this was the practical construction firmed as to denial of motion for judgment, the answer and the defense on the and reversed and remanded as to granting pears not only from the record, bu new trial.

sively so from the admission and s Reynolds & McClearn, for plaintiffs. Wash-of counsel for defendant in his brie burn, Bailey & Mitchell, for defendant C. H. court, which are in these words: Bradley.

Bradley's defense was that, being

115.1

he was released, because his principal had, excepted to, occurred on the trial. Th been given for a valuable consideration an fendant's appeal raises the question wh unequivocal extension of the time of pay- upon the pleadings and evidence he wa ment in writing, to which C. H. Bradley was titled to a directed verdict as a matt not a party, nor did he consent." It appears law. A consideration of the defendant from the recitals in the mortgage referred to peal is logically first in order, for if in the answer and reply that the parties had entitled to judgment the plaintiffs' a agreed to extend the time for the payment must fall. of the note, in installments, to specified fu The defendant, in support of his cont ture dates, the last of which was April 20, that he was entitled to judgment no 1908. The express condition of the mortgage standing the verdict, urges that he w: was this: "Provided that, if the first parties then liable on the original contract evid shall pay the said sum of $3,400.47 remaining by the note, for the reason that the not unpaid on said note held by second party on been changed by the new agreeme or before the said date of April 20, 1908, which he was not a party. The allege with all accrued interest thereon, then these agreement must refer to the provisid presents shall be void and of no effect.” This the mortgage extending the time of th and other provisions of the mortgage clearly ment of the note as the record disclo show that it was given simply for the pur- other agreement between the plaintiff pose of securing the payment of the note at L. G. Bradley subsequent to the mak the times specified therein.

the note. In discussing this claim a The trial judge instructed the jury that for the defendant in his brief assun the taking of this mortgage by the plain effect, as the premise of his argumen tiffs extended the time of the payment of the a new contract, to which he was not a note, and if the defendant C. H. Bradley was was substituted for the note; therefor then a surety for L. G. Bradley, to the knowl. if he consented to the new contract, edge of the plaintiffs, he was released from not liable, for as to him the case wo all liability to pay the note, unless he con- within the statute of frauds. If thi: sented to such extension of time, and, fur- an action on the alleged new agreemer ther, that the burden of proving that the ex. it was sought to hold him as surety tension was without his consent and that he performance, there would be some m was a surety to the knowledge of the plain the claim and the argument made tiffs was upon the defendant C. H. Bradley. brief relevant. The trouble, however No other issue was submitted to the jury. this claim of the defendant and his Nor did either party request any other ques- ment in its support, is that the record tions to be submitted to the jury. The jury no basis for the assumed premise. T returned a verdict for the plaintiffs against tion is not upon any new or modific the defendant C. H. Bradley for the balance tract, but upon the note, to which the due on the note. Thereupon he made a mo- ant was a party and for the paym tion for judgment notwithstanding the ver- which he bound himself, and to wh dict or for a new trial, on the ground that sole defense was that the time of ti the verdict was not justified by the evidence, ment of the note had been extended for alleged errors of law accruing at the his consent. The burden was upon trial, on the ground of newly discovered evi- establish this defense. Washington si dence, and for an order relieving him from v. Burdick, 60 Minn. 270, 62 N. W. 28 all liability on the verdict and the judgment derian v. Leland, 61 Minn, 67, 63 N. that might otherwise be rendered thereon. Norton v. Insurance Co., 74 Minn. 48 The trial court made its order denying the W. 298, 539. The action being based u motion for judgment notwithstanding the defendant's written promise, the no verdict, but further ordered that the verdict his defense being that the time of be set aside and a new trial of the action be was extended without his consent, t had. The plaintiffs appealed from the order ute of frauds has no application to th granting a new trial, and the defendant ap- for the consent of a surety to ext pealed from the whole order.

time of the payment of his principal It in no manner appears, from the order.or need not be in writing. Whether the otherwise, upon what grounds the new trial in any given case did or did not com was granted; hence it cannot be presumed such an extension is a question of fac that it was upon the ground that the verdict may be proved in the same manner was not justified by the evidence. In this other fact, the evidence of which nee respect the order cannot be treated as a dis- in writing, by direct or circumstant cretionary one. Independent Brewing Ass'n dence. The evidence in this case m v. Burt (Minn.) 123 N. W. 932. It follows question whether the defendant cons that, in considering the plaintiffs' appeal, an extension of the time of paymen we are limited to the general questions: (a) note one of fact. It follows that the Whether the trial court was justified in ant's request for an instructed verdi: granting a new trial on the ground of newly favor and his motion for judgment discovered evidence; (b) if not, then whether standing the verdict were properly

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