fraction of the rule against collateral attack. Boom v. St. Paul Fdry. & Mfg. Co., 33 Minn. 253, 22 N. W. 538. Order reversed and judgment ordered for defendant. On Motion for Rehearing by Defendant Reid. who made the attachment, was a party defendPER CURIAM. Defendant Reid, the sheriff ant in this action. The jury found in his favor. Defendant Surety Company made him party to this appeal. We find no error in the case as far as concerns the defendant Reid, and as to him the order appealed from is affirmed. (No. 19572 [212].) (Supreme Court of Minnesota. Jan. 28, 1916.) (Syllabus by the Court.) the bond or the statute. The purpose of the requirement of the statute for an attachment bond is to protect the defendant against wrongful attachment. Liability is accordingly made to arise if the attachment is set aside or vacated, or if judgment is given for the defendant, because if the plaintiff have no cause of action so that judgment is given against him, or if, having a cause of action, he has no statutory ground for attachment, the attachment must necessarily be wrongful. "Judgment * given" for the defendant means that a judgment is given by the court determining that the plaintiff had no cause of action when the LEWER ▼. MINNEAPOLIS & ST. L. R. CO. attachment was procured. It may be a judgment after trial on the merits, or it may be a judgment of dismissal. Nielsen v. City of Albert Lea, 87 Minn. 285, 91 N. W. 1113; St. 1. CARRIERS 132, 134-DAMAGE TO SHIPJoseph & Elkhart Pr. Co. v. Graham, 165 Ind. 16, 74 N. E. 498, 6 Ann. Cas. 399. Both have the same significance in this particular. The reasons for such a rule are manifest. A cause of action on the bond cannot be created by act of the defendant in the attachment suit after the attachment has been made. For example, it would be unthinkable that in a case where suit is brought on a just debt, and attachment is procured based on just grounds, the defendant could, after suit brought, by payment of the claim and procurement of a judgment of dismissal in that manner, create a liability on the bond. Nor can he accomplish that result by a settlement and payment of the claim through negotiations and agreement with the plaintiff in the attachment suit. Authorities upon this proposition are very meager, but the case is governed by substantially the same principles as apply to injunction bonds (Frost v. Jordan, 37 Minn. 544, 545, 36 N. W. 713); and in the case of injunction bonds there are numerous pertinent deci. sions. The courts are quite unanimous in holding that where an injunction is procured pendente lite and an indemnity bond given, judgment entered upon stipulation of the parties, pursuant to an amicable settlement of the case, does not give rise to liability on the bond. Large v. Steer, 121 Pa. 30, 15 Atl. 490; Palmer v. Foley, 71 N. Y. 106; Railway Co. v. Burke, 54 Ohio St. 98, 43 N. E. 282; St. Joseph & Elkhart Pr. Co. v. Graham, 165 Ind. 16, 74 N. E. 498, 6 Ann. Cas. 399. The reasons there are the same as here. Were the rule otherwise, the liability of the surety could be fixed by the agreement of the parties without the surety's assent, and even without his knowledge, instead of by the determination of the court as contemplated by the bond. Large v. Steer, 121 Pa. 30, 34, 15 Atl. 490. It is contended that this is a collateral attack upon the judgment in the attachment suit. We do not consider it an attack upon that judgment at all. The face of the judgment may, we think, be examined to determine the nature of the judgment without in MENT EVIDENCE. A cast iron heating boiler shipped from St. Paul to Waseca by train, transferred from the train by dray and lowered into a basement, and there installed, was found, after installation, to be cracked. The evidence is that it was sound when shipped, and that it was carefully handled after it was taken from the train, and resuch boilers crack very easily, and there is no ceived no jars or jolts, but there is evidence that positive evidence that it was not cracked while so handled. The evidence is not conclusive that the damage occurred while on the train, and the rule that, when goods are delivered to a carrier in good condition and arrive at destination in damaged condition a prima facie case of liability is made out does not, as a matter of law, apply. Cent. Dig. §§ 578–582, 588-592, 605, 607; Dec. 2. CARRIERS 134, 136-DAMAGE TO SHIP- Appeal from District Court, Waseca County; Arthur B. Childress, Judge. Action by E. W. Lewer against the Minneapolis & St. Louis Railroad Company. Verdict for defendant, and from an adverse order, plaintiff appeals. Affirmed. L. D. Rogers, of Janesville, and Moonan & Moonan, of Waseca, for appellant. W. H. Bremner and F. M. Miner, both of Minneapolis, and P. McGovern, of Waseca, for respondent. HALLAM, J. [1] 1. Plaintiff, the owner of a garage at Waseca, purchased of Crane & Ordway, of St. Paul, a cast iron heating boiler. The boiler was shipped over defendant's road consigned to plaintiff at Waseca. It was in one piece and its weight was seven or eight hundred pounds. There is evidence that the boiler was in good condition when it left the store of Crane & Ordway. It was shipped in a box car with other merchandise. The other merchandise arrived at destination [2] 2. Clearly this is not a case for the application of the rule laid down in Hawkins v. Sauby, 48 Minn. 69, 50 N. W. 1015, that: "Where the positive testimony of witnesses is uncontradicted and unimpeached either by other either extrinsic or intrinsic, of its falsity, a jury, positive testimony or by circumstantial evidence, * * has no right to disregard it." in good condition. No one inspected the boil-in handling after its arrival. Had they done er on its arrival. A drayman with the help so, it would only have been matter of inferof several men, including plaintiff, took it ence or opinion. from the car. They rolled it over and over to the door of the car. The dray was about six inches lower than the door of the car. No planks were used, but the boiler was rolled from the car to the dray. The boiler was then taken on the dray four blocks to plaintiff's garage. There it was unloaded by sliding it down a plank, and was rolled into the garage. It was slid down into the basement of the garage with block and tackle, then rolled on a plank to an elevated base about a foot from the floor. The work of installing the boiler consumed three or four days. No one examined the boiler until it had been set up in place. Water was then put into it, and then for the first time a crack was discovered. This crack was variously described as from two to six inches long, and wide enough so that you could put in a thin knife blade. Plaintiff brought this action, claiming that the crack was caused by the negligence of defendant carrier. The jury found for defendant. Plaintiff contends that the evidence is conclusive that defendant is liable. The rule is well settled that, if goods are delivered to a carrier in good condition and arrive at destination in damaged condition, a prima facie case of liability is made out, and the carrier is, then called upon to prove that the damage did not arise from its negligence. Fockens v. United States Express Co., 99 Minn. 404, 109 N. W. 834. But it is plain that before this rule can be invoked it is incumbent on the plaintiff to prove, both the delivery to the carrier in good condition, and the delivery by the carrier in damaged condition. There was evidence from which the jury might find in favor of plaintiff on both of these points, but under the evidence they were not bound to find that the boiler was delivered by defendant in damaged condition. There is no direct evidence as to where the damage was done. The claim that it was done while on the cars is based on the testimony calculated to show that it could not have been damaged after its arrival. But the evidence on this point is far from conclusive. The witnesses who handled the boiler after its arrival at Waseca testified that it was carefully handled, was never dropped, and that it did not receive any jar or jolt. The evidence shows, however, that these boilers have a hollow air space in them and crack very easily. The testimony as to the care with which the boiler was handled after its arrival is persuasive but not conclusive proof that it could not have been damaged while so handled, and if we eliminate the testimony of the steam fitter as to what occurred while it was in his possession, no witness undertook to say that the boiler was not damaged The jury had a right to consider all the facts and circumstances in evidence bearing upon the probability that a casting, broken no one knows when or how, might have been broken by the handling that it received after it left the train. The work of the jury was largely a matter of drawing inferences from uncontroverted facts. We are of the opinion that reasonable men might fairly draw the same inference that the jury evidently did, namely, that the casting was broken after it left the train. This being so, the verdict must be sustained. Order affirmed. WARSAW TP. v. BAKKEN. (Supreme Court of Minnesota. Jan. 28, 1916.) obstructing a roadway through his land and to abate the nuisance caused by its obstruction, the issue being whether under an agreement relative to the opening of the roadway and what was done pursuant to it the roadway became a town road, affects interests in lands and does not abate upon the death of a party. An action to restrain the defendant from [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 294-309; Dec. Dig. m58.] Appeal from 'District Court, Goodhue County; Albert Johnson, Judge. Action by the Township of Warsaw against Knute E. Bakken. From decision for defendant, plaintiff appeals, and moves to substitute the successors in interest in place of the defendant, deceased since the appeal. Motion granted. Mohn & Mohn, of Red Wing, for appellant. A. J. Rockne, of Zumbrota, for respondent. PER CURIAM. Motion in this court by the plaintiff to substitute the successors in interest in place of the defendant, deceased since the appeal. The motion is opposed upon the ground that the action abated upon the death of the defendant. The action is for an injunction restraining the defendant from obstructing a roadway through his land, and for an abatement of the nuisance caused by such obstruction. The issue was whether under an agreement between the plaintiff town and the predecessor in title of the defendant and what was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fraction of the rule against collateral attack. Boom v. St. Paul Fdry. & Mfg. Co., 33 Minn. 253, 22 N. W. 538. Order reversed and judgment ordered for defendant. On Motion for Rehearing by Defendant Reid. who made the attachment, was a party defendPER CURIAM. Defendant Reid, the sheriff ant in this action. The jury found in his favor. Defendant Surety Company made him party to this appeal. We find no error in the case as far as concerns the defendant Reid, and as to him the order appealed from is affirmed. for the defendant means that a judgment is given by the court determining that the plaintiff had no cause of action when the LEWER v. MINNEAPOLIS & ST. L. R. CO. attachment was procured. It may be a judg(No. 19572 [212].) ment after trial on the merits, or it may be (Supreme Court of Minnesota. Jan. 28, 1916.) a judgment of dismissal. Nielsen v. City of Albert Lea, 87 Minn. 285, 91 N. W. 1113; St. Joseph & Elkhart Pr. Co. v. Graham, 165 Ind. 16, 74 N. E. 498, 6 Ann. Cas. 399. Both have the same significance in this particular. The reasons for such a rule are manifest. A cause of action on the bond cannot be created by act of the defendant in the attachment suit after the attachment has been made. For example, it would be unthinkable that in a case where suit is brought on a just debt, and attachment is procured based on just grounds, the defendant could, after suit brought, by payment of the claim and procurement of a judgment of dismissal in that manner, create a liability on the bond. Nor can he accomplish that result by a settlement and payment of the claim through negotiations and agreement with the plaintiff in the attachment suit. Authorities upon this proposition are very meager, but the case is governed by substantially the same principles as apply to injunction bonds (Frost v. Jordan, 37 Minn. 544, 545, 36 N. W. 713); and in the case of injunction bonds there are numerous pertinent decisions. The courts are quite unanimous in holding that where an injunction is procured pendente lite and an indemnity bond given, judgment entered upon stipulation of the parties, pursuant to an amicable settlement of the case, does not give rise to liability on the bond. Large v. Steer, 121 Pa. 30, 15 Atl. 490; Palmer v. Foley, 71 N. Y. 106; Railway Co. v. Burke, 54 Ohio St. 98, 43 N. E. 282; St. Joseph & Elkhart Pr. Co. v. Graham, 165 Ind. 16, 74 N. E. 498, 6 Ann. Cas. 399. The reasons there are the same as here. Were the rule otherwise, the liability of the surety could be fixed by the agreement of the parties without the surety's assent, and even without his knowledge, instead of by the determination of the court as contemplated by the bond. Large v. Steer, 121 Pa. 30, 34, 15 Atl. 490. It is contended that this is a collateral attack upon the judgment in the attachment suit. We do not consider it an attack upon that judgment at all. The face of the judgment may, we think, be examined to determine the nature of the judgment without in (Syllabus by the Court.) 1. CARRIERS 132, 134–DAMAGE TO SHIPMENT EVIDENCE. A cast iron heating boiler shipped from St. Paul to Waseca by train, transferred from the train by dray and lowered into a basement, and there installed, was found, after installation, to be cracked. The evidence is that it was sound when shipped, and that it was carefully handled after it was taken from the train, and resuch boilers crack very easily, and there is no ceived no jars or jolts, but there is evidence that positive evidence that it was not cracked while so handled. The evidence is not conclusive that the damage occurred while on the train, and the rule that, when goods are delivered to a carrier in good condition and arrive at destination in damaged condition a prima facie case of liability is made out does not, as a matter of law, apply. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 578-582, 588-592, 605, 607; Dec. Dig. 132, 134.] 2. CARRIERS 134, 136-DAMAGE TO SHIPMENT QUESTION FOR JURY. that the boiler was damaged in handling after it The jury might infer from all the evidence left the train, and the case is not one for the application of the rule that testimony uncontradicted and unimpeached cannot be disregarded. Cent. Dig. 88 478, 588-592, 596-598, 607; Dec. [Ed. Note.-For other cases, see Carriers, Dig. 134, 136.] Appeal from District Court, Waseca County; Arthur B. Childress, Judge. Action by E. W. Lewer against the Minneapolis & St. Louis Railroad Company. Verdict for defendant, and from an adverse order, plaintiff appeals. Affirmed. L. D. Rogers, of Janesville, and Moonan & Moonan, of Waseca, for appellant. W. H. Bremner and F. M. Miner, both of Minneapolis, and P. McGovern, of Waseca, for respondent. HALLAM, J. [1] 1. Plaintiff, the owner of a garage at Waseca, purchased of Crane & Ordway, of St. Paul, a cast iron heating boiler. The boiler was shipped over defendant's road consigned to plaintiff at Waseca. It was in one piece and its weight was seven or eight hundred pounds. There is evidence that the boiler was in good condition when it left the store of Crane & Ordway. It was shipped in a box car with other merchandise. The other merchandise arrived at destination [2] 2. Clearly this is not a case for the application of the rule laid down in Hawkins v. Sauby, 48 Minn. 69, 50 N. W. 1015, that: "Where the positive testimony of witnesses is uncontradicted and unimpeached either by other either extrinsic or intrinsic, of its falsity, a jury, positive testimony or by circumstantial evidence, ** 串 * has no right to disregard it." in good condition. No one inspected the boil-in handling after its arrival. Had they done er on its arrival. A drayman with the help so, it would only have been matter of inferof several men, including plaintiff, took it ence or opinion. from the car. They rolled it over and over to the door of the car. The dray was about six inches lower than the door of the car. No planks were used, but the boiler was rolled from the car to the dray. The boiler was then taken on the dray four blocks to plaintiff's garage. There it was unloaded by sliding it down a plank, and was rolled into the garage. It was slid down into the basement of the garage with block and tackle, then rolled on a plank to an elevated base about a foot from the floor. The work of installing the boiler consumed three or four days. No one examined the boiler until it had been set up in place. Water was then put into it, and then for the first time a crack was discovered. This crack was variously described as from two to six inches long, and wide enough so that you could put in a thin knife blade. Plaintiff brought this action, claiming that the crack was caused by the negligence of defendant carrier. The jury found for defendant. Plaintiff contends that the evidence is conclusive that defendant is liable. The rule is well settled that, if goods are delivered to a carrier in good condition and arrive at destination in damaged condition, a prima facie case of liability is made out, and the carrier is, then called upon to prove that the damage did not arise from its negligence. Fockens v. United States Express Co., 99 Minn. 404, 109 N. W. 834. But it is plain that before this rule can be invoked it is incumbent on the plaintiff to prove, both the delivery to the carrier in good condition, and the delivery by the carrier in damaged condition. There was evidence from which the jury might find in favor of plaintiff on both of these points, but under the evidence they were not bound to find that the boiler was delivered by defendant in damaged condition. There is no direct evidence as to where the damage was done. The claim that it was done while on the cars is based on the testimony calculated to show that it could not have been damaged after its arrival. But the evidence on this point is far from conclusive. The jury had a right to consider all the facts and circumstances in evidence bearing upon the probability that a casting, broken no one knows when or how, might have been broken by the handling that it received after it left the train. The work of the jury was largely a matter of drawing inferences from uncontroverted facts. We are of the opinion that reasonable men might fairly draw the same inference that the jury evidently did, namely, that the casting was broken after it left the train. This being so, the verdict must be sustained. Order affirmed. WARSAW TP. v. BAKKEN. (Supreme Court of Minnesota. Jan. 28, 1916.) obstructing a roadway through his land and to An action to restrain the defendant from abate the nuisance caused by its obstruction, the issue being whether under an agreement relative to the opening of the roadway and what was done pursuant to it the roadway became a town road, affects interests in lands and does not abate upon the death of a party. [Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 294-309; Dec. Dig. 58.] Appeal from 'District Court, Goodhue County; Albert Johnson, Judge. Action by the Township of Warsaw against Knute E. Bakken. From decision for defendant, plaintiff appeals, and moves to substitute the successors in interest in place of the defendant, deceased since the appeal. Motion granted. Mohn & Mohn, of Red Wing, for appellant. A. J. Rockne, of Zumbrota, for respondent. The witnesses who handled the boiler after its arrival at Waseca testified that it was PER CURIAM. Motion in this court by carefully handled, was never dropped, and the plaintiff to substitute the successors in that it did not receive any jar or jolt. The interest in place of the defendant, deceased evidence shows, however, that these boilers since the appeal. The motion is opposed have a hollow air space in them and crack upon the ground that the action abated upon very easily. The testimony as to the care the death of the defendant. with which the boiler was handled after its The action is for an injunction restraining arrival is persuasive but not conclusive proof the defendant from obstructing a roadway that it could not have been damaged while through his land, and for an abatement of so handled, and if we eliminate the testimony the nuisance caused by such obstruction. of the steam fitter as to what occurred while The issue was whether under an agreement it was in his possession, no witness under- between the plaintiff town and the predetook to say that the boiler was not damagedcessor in title of the defendant and what was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes done pursuant to it the roadway became a and vice president, and the time for such filing does not expire until February 3d next. The last clause in said section clearly indicates that no candidate for delegate can file until there is a candidate for president, whom he can specify in the affidavit as his choice. To this mode of selecting delegates to the national conventions we see no constitutional objection. It is essentially a priSec-mary election. State ex rel. Nordin v. Erickson, 119 Minn. 152, 137 N. W. 385, Brown v. Smallwood, 130 Minn. 492, 153 N. W. 953. STATE ex rel. CARROLL v. SCHMAHL, (Syllabus by Editorial Staff.) 1. ELECTIONS 131-PRIMARY ELECTION DELEGATE TO NATIONAL CONVENTION-AFFIDAVIT OF CANDIDACY. In view of the provisions of Laws 1915, c. 372, § 1, that the affidavit of a candidate for delegate to the national convention of a political party shall specify his choice of the names filed by petition as candidates for presidents, the Secretary of State properly refused to accept an affidavit of candidacy for delegate, where no one had filed a petition to become a candidate for president or vice president and the time for such filing had not expired. see Elections, [Ed. Note.-For other cases, Cent. Dig. § 120; Dec. Dig. 2. ELECTIONS 131-PRIMARY ELECTION CANDIDATE FOR PRESIDENTIAL ELECTOR AFFIDAVIT-SUFFICIENCY. The [2] As to relator's candidacy for presidential elector, we are also of opinion that respondent properly declined to receive the filing affidavit. The law does not require candidates for electors to state a preference in respect to presidential candidates. federal Constitution gives the electors free choice, but tradition demands that they cast their votes for the party candidate for president if the party succeeds in the state in the November election. In this case the affidavit states that a certain person is relator's choice for president. An electoral candidate may gain an undue advantage by adding matters not required by the statute to be incorporated in the affidavit. It is neither necessary nor expedient that more than what the law specifies be stated. The Secretary of State properly refused to accept an affidavit of candidacy for presidential elector, where it contained an unnecessary It may be true that the part of the affistatement of the candidate's choice for presi- davit, wherein the candidate must state "that dent; it being neither necessary nor expedient he will, to the best of his judgment and abilthat the affidavit state more than the law spec-ity, faithfully carry out the wishes and pref ifies shall be stated. [Ed. Note. For other cases, see Elections, Cent. Dig. § 120; Dec. Dig. 131.] Application by Walter N. Carroll to require Julius A. Schmahl, as Secretary of State, to show cause why he should not place relator's name on a primary election ballot. Order to show cause discharged. H. V. Mercer, of Minneapolis, for relator. Lyndon A. Smith, Atty. Gen., for respondent. erences of the voters of his political party as expressed by the voters at" the nominating who offers himself as a candidate for preselection, is of doubtful application to one idential elector. But even if this applies to an electoral candidate, it means no more than tradition demands of him in respect to the performance of his duties in the electoral college. The order to show cause is discharged. (No. 19146.) (Supreme Court of Nebraska. Jan. 15, 1916.) PER CURIAM. Upon the application of the relator, Walter N. Carroll, the respondent, the Secretary of State, was required to BODIE v. BATES (BATES et al., Interveners). show cause before this court why he should not place the name of relator upon the ballot as a Republican candidate for presidential elector at the coming presidential preference primary election, and also as a Republican candidate for delegate to the national convention of said party. In response to the order to show cause, the Secretary of State assigns as a reason for refusing to accept and file the affidavits of candidacy presented by the relator that they do not comply with the statute. [1] As to relator's candidacy for delegate to the national convention of the Republican party, we think the respondent clearly right in refusing to accept the affidavit. Section 1 of chapter 372, L. 1915, governs. When the affidavit was tendered, no one had filed a petition to become a candidate for president (Syllabus by the Court.) JURISDICTION 1. DIVORCE 57, 201, 249 [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 198, 199, 591, 592, 701-705, 707, 709, 712; Dec. Dig. 57, 201, 249.] 2. DIVORCE 240-PROPERTY RIGHTS-CONSTRUCTION OF STATUTE. Sections 2681 and 2684, Kirby's Digest of examined, and held, that section 2681 applies to the Statutes of Arkansas, set out in the opinion, cases where a husband obtains a decree of di For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |