Nickerson v. Wells-Stone Mercantile Co.

• Decision Date: 19 January 1898
• Citation: 71 Minn. 230,73 N.W. 959
• Parties: NICKERSON v WELLS-STONE MERCANTILE CO.
• Court: Minnesota Supreme Court

71 Minn. 230

73 N.W. 959

NICKERSONvWELLS-STONE MERCANTILE CO.

Supreme Court of Minnesota.

Jan. 19, 1898.

(Syllabus by the Court.)

1. Held, the court below did not abuse its discretion in relieving appellant from his laches, and from certain irregularities committed by him in preparing, serving, and presenting for settlement a proposed “case.”

2. The statute requires a chattel mortgage to be filed in the town where, at the time of its execution, the property is, and a copy thereof in the town where the mortgagor resides. The mortgage in question was filed in the town where the property was, but it does not appear where the mortgagor then resided. Held, it did not appear that the mortgage was properly filed. A recital in the mortgage, that the mortgagor is “of the town” where the property is, held not evidence against a subsequent mortgagee or purchaser that the mortgagor then resided in such town.

3. It was stipulated on the trial of an action of trover that the jury should find the value of the property, and the judge should find on the other issues. The jury found the value of all the property in a lump sum, and the court found for defendant on the other issues. It conclusively appeared that plaintiff was entitled to recover for the conversion of a few of the articles, but no separate finding as to the value of these, or any of them, was ever made or asked for. Under these circumstances, held, plaintiff was entitled to recover only nominal damages, the rule de minimis applies, and the order appealed from will not be reversed.

Appeal from district court, Sherburne county; L. L. Baxter, Judge.

Action by Charles Nickerson against the Wells-Stone Mercantile Company for conversion of a building. There were findings for defendant, and from an order denying a motion for a new trial plaintiff appeals. Affirmed.

Charles S. Wheaton, for appellant.

Draper, Davis & Hollister and H. J. Grannis, for respondent.

CANTY, J.

This is an action for damages for conversion of a building used as a sawmill, and for the sawmill and machinery contained in the same. On the trial it was stipulated that the jury should find the value of the property, and the judge should dispose of all other issues. The jury found the value, and the judge, on the other issues, found for defendant. From an order denying a new trial, plaintiff appeals.

1. Respondent claims that the proposed “case” was not properly settled and allowed, and moves to strike it out. When the decision was filed, the court ordered a stay of 30 days, and allowed plaintiff “that time in which to serve a ‘case’ or bill of exceptions.” The proposed “case” was served within the 30 days by delivering to respondent the original proposed “case,” not a copy of the same. This was returned. Appellant made a copy, and served it 5 days after said 30-day stay had expired. This was also returned. In the meantime, on the last day of this stay, appellant procured ex parte a further stay of 20 days, and so notified respondent at the time of re-serving the proposed “case.” Appellant moved the court to settle the “case,” and, after hearing the parties, the court ordered the service of the proposed “case” to stand as proper service, and ordered appellant to furnish respondent a copy of the proposed “case,” and that respondent have 10 days thereafter in which to propose amendments thereto. The copy was furnished, but respondent proposed no amendments thereto, and after the 10 days the “case” was settled. Respondent does not complain because he was not given 15 days, instead of 10, in which to propose amendments, and, under all the circumstances, we cannot say that the court abused its discretion in disposing of the irregularities in practice and laches of appellant and the technical and exacting positions of respondent. The motion is denied.

2. On May 25, 1891, David Tozier was the owner of all of said property which stood on land not owned by him in the town of Windemere, in Pine county, Minn. On that day he executed to plaintiff a chattel mortgage on all of the same, and the mortgage was then filed in the office of the clerk of the town. Some time afterwards Tozier moved the building, sawmill, and machinery onto land owned by him at La Prairie, Itasca county, reconstructed the building on this land, and placed the machinery therein in position to commence sawing lumber. Thereafter, on May 25, 1892, he mortgaged the land to defendant, who subsequently foreclosed his mortgage in due form under the power of sale therein contained, and bid in the property at the foreclosure sale. On September 1, 1893, the year to reddem expired. No redemption was made, and defendant, as between him and Tozier, became the owner of all the property except, possibly, some parts of the machinery and some of the tools, which were not attached to the realty. Plaintiff claims through the chattel mortgage, and defendant through the real-estate mortgage and the foreclosure...