The St. P. F. & M. Ins. Co. v. Allis

• Decision Date: 11 August 1877
• Citation: The St. P. F. & M. Ins. Co. v. Allis, 24 Minn. 75 (Minn. 1877)
• Parties: THE ST. PAUL FIRE & MARINE INSURANCE COMPANY <I>vs.</I> LORENZO ALLIS and others.
• Court: Minnesota Supreme Court

Page 75

24 Minn. 75

THE ST. PAUL FIRE & MARINE INSURANCE COMPANY vs. LORENZO ALLIS and others.

Supreme Court of Minnesota.

August 11, 1877.

Appeal by defendants from a judgment of the district court for Ramsey county, upon an action to foreclose a mortgage, tried before Simons, J., without a jury.

James B. Beals and Allis & Allis, for appellants.

Harvey Officer, for respondent.

BERRY, J.

1. The court before which this action was tried finds, as conclusions of fact, that the plaintiff is a corporation, and that a certain mortgage was delivered to the plaintiff by the defendants Allis and wife. The defendants claim that these findings are not justified by the evidence. No motion for a new trial upon this ground was made below. Where, however, an action is tried by the district court itself without a jury, a motion in that court for a new trial, upon the ground that the evidence does not justify any finding of fact, is not necessary, in order to entitle an appellant to raise the question of the sufficiency of the evidence in this court. In arriving at its findings of fact the district court distinctly and directly passes upon the sufficiency of the evidence to justify them, and there is no reason why it should be required to pass upon it a second time, to entitle a party to review its action in the appellate court. The statute gives a party the right to make the motion below if he desires to do so, but does not require him to make it as a prerequisite to his right to have the question of the sufficiency of the evidence examined here.

2. As to the delivery of the mortgage to the plaintiff by Allis and wife the evidence was conflicting. Some of it reasonably tended to show that the delivery was made, and some that it was not made. By a familiar rule this condition of the evidence prevents us from disturbing the finding of the fact of delivery.

3. As respects the corporate character and existence of the plaintiff, there is evidence showing the incorporation and organization of "The St. Paul Mutual Insurance Company," under the provisions of its original charter, found in Laws 1853, c. 7, 8. By Sp. Laws 1865, c. 61, chapters 7 and 8, Laws 1853, were amended in several particulars.

Defendants contend that chapter 61 is not properly amendatory of chapters 7 and 8, but that, under the guise of amendments, it creates a corporation materially different from that created by the acts of 1853. These acts created a mutual insurance company, with authority to issue stock policies to persons desiring such. The act of 1865 purports to make the company an exclusively stock company. This is the most radical and important change attempted. We think it is not obnoxious to that clause of our constitution which forbids the formation of corporations by special act. Its effect is only to authorize the company created by the acts of 1853 to exercise its subsisting franchise of carrying...