LaRson v. Kelley

• Decision Date: 29 April 1898
• Citation: 75 N.W. 13,72 Minn. 116
• Parties: LARSON v KELLEY ET AL.
• Court: Minnesota Supreme Court

72 Minn. 116

75 N.W. 13

LARSONvKELLEY ET AL.

Supreme Court of Minnesota.

April 29, 1898.

(Syllabus by the Court.)

1. The evidence justified the verdict.

2. Where the questions propounded to a witness clearly advise the opposite party that they are designed to elicit incompetent testimony, and they are answered without objection, the granting or refusing a motion to strike out the evidence is discretionary with the court.

3. The failure of the defendant, in an action in justice's court to appear and answer, is not a confession of judgment, within the meaning of Gen. St. 1894, § 5022, and in such case the justice has three days within which to render and enter judgments.

4. Certain assignments of error held too general to be available.

Appeal from district court, Norman county; Frank Ives, Judge.

Action by Andrew B. Larson against W. A. Kelley and others. Verdict for defendants. From an order denying a new trial, plaintiff appeals. Affirmed.

Carmody & Leslie and M. A. Brattland, for appellant.

Calkins & Sharpe and N. T. Moen, for respondents.

MITCHELL, J.

This was an action on the official bond of a justice of the peace to recover damages caused by the failure of the justice to enter in his docket judgment in favor of the plaintiff and against one Foss. The case was here on an appeal from an order overruling a demurrer to the complaint. 64 Minn. 51, 66 N. W. 130. After the case was remanded, the defendants answered. While other matters were set up in the answer, the only defense really urged on the trial, and the only one submitted to the jury, was that within three days after the cause was submitted to the justice the parties thereto made a full settlement of the matters in litigation by which Foss gave plaintiff a promissory note secured by chattel mortgage, which plaintiff accepted in full payment of the claim upon which the action was brought; that plaintiff advised the justice of the fact, who for that reason did not enter judgment. This the plaintiff put in issue by his reply. This issue was submitted to the jury, which found a verdict for the defendants.

All we need say about the evidence is that we are of the opinion that it justified the verdict.

The only other question necessary to be considered is whether the trial court committed any error (excepted to and assigned as error) in the admission of evidence or instructing the jury on the issue as to the settlement.

The evidence tended to show that the justice took part in bringing about the alleged settlement, and drew the note and mortgage referred to. Thereupon the defendants introduced evidence of a conversation (which occurred about the time the settlement was alleged to have been made) between the justice and a third party, in which the former stated to the latter that the matter was settled....