State ex rel. v. Myers

• Decision Date: 19 November 1897
• Docket Number: Nos. 10,847-(30).,s. 10,847-(30).
• Citation: 70 Minn. 179
• Parties: STATE OF MINNESOTA ex rel. MARY HANKE v. MATTHEW J. MYERS.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

70 Minn. 179

STATE OF MINNESOTA ex rel. MARY HANKE v. MATTHEW J. MYERS.¹

Nos. 10,847-(30).

Supreme Court of Minnesota.

November 19, 1897.

Application by the state, on the relation of Mary Hanke, for a writ of mandamus against Matthew J. Myers, justice of the peace. From an order of the district court for Watonwan county, Severance, J., granting a peremptory writ, defendant appealed. Affirmed.

W. S. Hammond, for appellant.

Seager & Lobben, for respondent.

START, C. J.

The appellant is a justice of the peace in and for Watonwan county, and as such has in his custody the docket and files of A. Sturm as a justice of the peace, his predecessor in office.

The relator, claiming that on August 16, 1895, she recovered a judgment for the sum of $40 and $47.39 costs in an action then pending before A. Sturm, as such justice of the peace, wherein she was plaintiff and Peter Stemper was defendant, and that such judgment was duly entered in the docket of the justice, duly demanded of the appellant that he issue an execution in her favor upon such judgment. He refused to do so. Thereupon the relator sued out an alternative writ of mandamus requiring the appellant to issue the execution, or show cause why he should not do so. The appellant answered the writ, admitting that he was in possession of the justice docket referred to, and that there was of record therein certain proceedings in the action named, but he denied that there was any record of any judgment therein in favor of the plaintiff in such action. The trial court found that the relator did recover such judgment, and that it was of record in such docket, and ordered a peremptory writ to issue requiring the execution to be issued, from which order the appellant appeals.

On the trial the relator introduced, over the objection and exception of appellant, a writing in the following words:

                State of Minnesota,                          In Justice Court
                County of Watonwan.                          A. Sturm, J. P
                     Mary Hanke, Plff
                           vs
                     Peter Stemper, Deft
                

We, the jury in the above-entitled action, find for the plaintiff, and assess her damages $40 00/100 dollars.

                  Dated August 16th, 1895.                     A. Warnke,
                                                          Foreman of the Jury.
                

There was no indorsement of filing on such writing, but both parties admitted the writing was one of the files in the action of Mary Hanke against Peter Stemper. The respondent objected to the writing being received as evidence, on the ground that it was "incompetent, irrelevant, and immaterial."

The docket shows the pendency of the action in question, the appearance of the parties, issue formed, and a trial by jury on August 16, 1895, and concludes with these words:

"Pleas made, and officers sworn, and the following verdict given by jury: `We, the jury in the above-entitled action, find for the plft., and assess her damages at $40.00 and costs; costs of this action $47.39.

                                                    "`A. L. Warnke,
                                                          "`Foreman of Jury.'"
                

On the margin of the docket there is an itemized statement of the costs in the case, showing the amount of fees due...