Seibert v. Minneapolis & St. Louis Ry. Co.

• Decision Date: 29 June 1894
• Docket Number: 8647,8648
• Citation: 59 N.W. 828,58 Minn. 72
• Parties: Henry Seibert v. Minneapolis & St. Louis Ry. Co. et al
• Court: Minnesota Supreme Court

59 N.W. 828

58 Minn. 72

Henry Seibert v. Minneapolis & St. Louis Ry. Co. et al

Nos. 8647, 8648

Supreme Court of Minnesota

June 29, 1894

Submitted on briefs June 14, 1894

Appeal by defendant, the Minneapolis & St. Louis Railway Company from an order of the District Court of Hennepin County Seagrave Smith, J., made December 8, 1893, denying its application for leave to propose and have settled a case after the time allowed for that purpose had expired.

Appeal also by same defendant from an order of the same court made January 6, 1894, denying its motion to vacate the judgment entered in the action June 29, 1893, and restoring the parties to the positions they were relatively in before such judgment was entered.

The motion made in this court should be denied, and the orders appealed from should be affirmed.

Isham Lincoln & Beale and Edward S. Isham, for appellant.

J. M Shaw, for respondent Seibert.

W. H. Norris, for respondent Minnesota Transfer Ry. Co. Keith, Evans, Thompson & Fairchild, for respondents certain bondholders.

H. C. Truesdale, for respondent Farmers Loan & Trust Co. Woods & Kingman, for respondent Fidelity Insurance Trust & Safe Deposit Co.

Harris Richardson, for respondent Central Trust Co.

Lusk, Bunn & Hadley, for respondents St. Paul & D. Ry. Co. and others.

J. C. Bullitt, Jr., for respondents Northern Pacific R. Co. and others.

Flandreau, Squires & Cutcheon, for respondent R. F. Parshall.

A. E. Clarke, for respondents Truesdale, receiver, and others.

W. F. Booth, for respondents Chicago, Rock Island & Pacific Ry. Co. and others.

Canty, J. Buck, J., absent, sick, took no part.

OPINION

Canty, J.

At the close of the trial of this action in the court below, printed findings of fact were prepared, and submitted to the attorneys of the different parties, to examine, and propose amendments thereto. These proposed amendments were afterwards printed, and a time fixed for hearing all the parties as to the allowance of the same, and the settlement of the findings of fact to be afterwards signed and filed. Upon that hearing the following printed finding was allowed:

"Upon the pleadings, as between the plaintiff and defendant the Minneapolis & St. Louis Railway Company, I find the allegations of the complaint with respect to default made by the mortgagor, the Minneapolis & St. Louis Railway Company, in the conditions of the said improvement and equipment mortgage, to be true, as therein stated."

It appears that the findings of fact were then allowed, and afterwards the same arrangement was made as to preparing, printing, and allowing the conclusions of law; and on April 22, 24, 1893, during the argument on the hearing for the allowance of the conclusions of law, the plaintiff proposed a further finding of fact, substantially as hereinafter stated. This was objected to by other parties, and after argument the court took it under advisement.

The findings of fact and conclusions of law, duly signed, were filed by the court thereafter, on May 6, 1893; and immediately following the printed finding, above quoted, the findings of fact contain, in the handwriting of the trial judge, the said proposed amendment, as follows:

"The alleged default in not using income properly applicable thereto for the payment of interest on the improvement and equipment bonds is also shown by the evidence."

The attorney of the defendant mortgagor did not examine these findings after they were filed, but another attorney afterwards represented said mortgagor at a hearing had before the court on May 28, 29, 1893, to settle the...