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Page Wheeler v. Castor (N. D.)......

381 Wolff v. Alpena Nat. Bank (Mich.).... 287 White v. Watts (Iowa).... 660 | Wolff v. Phelps (Neb.).

113 Whitney v. Bailey, two cases (Minn.). 974 | Wolski, State v. (Wis.).

360 Whitney, Bowers v. (Minn.).

540 Wong Free Lee, Sing You v. (S. D.). .1073 Wilcox v. Morten (Mich.). 777 Wood v. Matter (Minn.).

523 Wilcox Lumber Co. v. Ritteman (Minn.).. 472 Wood v. Zibble (Mich.).

318 Wiley, National Exch. Bank v. Neb.).. 582 | Woodard v. Kavan (Neb.).

1132 Williams v. Minneapolis St. R. Co. (Minn.). 479 Woodcock v. Reilly (S. D.).

10 Williams, State v. (Iowa). 652 Woolsey, Chamberlain_v. (Neb.).

181 Wilson, Lamb v. (Neb.). 167 Worner, Little v. (N. D.)...

430 Wilson, Pekin Plow Co. v. (Neb.). 176 Wright v. Reed (Iowa).

61 Wimmer v. Key Minn.). 228 Wright, Bowman v. (Neb.).

580 Winklemann, Nebraska Loan & Trust Co. Wrzensinski, City of South Omaha v. (Neb.) .1132 (Neb.)

1045 Winterfield, Koepke v. (Wis.).

437 Wuerfler v. Trustees of Grand Grove of Winter & Ames Co. v. Atlantic Elevator

Wisconsin Order of Druids (Wis.). 433 Co. (Miun.).

955 Wunderlich v. Palatine Ins. Co. (Wis.).. 264 Wisconsin Bridge & Iron Co., Koepcke v. Wylie, Horton v. (Wis.)....

245 (Wis.)

558 Witte, Citizens' Loan & Trust Co. V. Yates, Trompen v. (Neb.)..

647 (Wis.) 443 Young v. Evans (Iowa).

111 Witte, Ladd v. (Wis.). 365 Young v. Lohr (Iowa).

68+ W. J. Perry Live Stock Commission Co. v. Young, McGill v. (S. D.)...

..1006 Barto (Neb.)

762 Woebkenberg, Enneking v. (Minn.). 932 Zalesky v. City of Cedar Rapids (Iowa).. 657 Wolcott, Ayers v. (Neb.) .1036 Zibble, Wood v. (Mich.)..

348 Wolf, Haslack v. (Neb.)... 574 Zlotky, Phoenix Ins. Co. v. (Neb.).

736 Wolf, State V. (Iowa).. 673 | Zoller, Rieck v. (Neb.).

728

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REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this reporter.]

Ames v. Miller (Neb.) 91 N. W. 250.

Hoover v. Haynes (Neb.) 91 N. W. 392.

Huffman v. Ellis (Neb.) 90 N. W. 552.
Baunard v. Duncan (Neb.) 90 N. W. 947.
Batty v. City of Hastings (Neb.) 88 N. W. Lay v. Honey (Neb.) 89 N. W. 998.

139. Bonacum v. Harrington (Neb.) 91 N. W. 886. McBride v. Whitaker (Neb.) 90 N. W. 966. Bruu v. Brun (Neb.) 90 N. W. 860.

McBryan v. Universal Elevator Co. (Mich.)

89 N. W. 683. Chicago, B. & Q. R. Co. v. Roberts (Neb.) 91 Meek v. Lange (Neb.) 91 N. W. 695. N. W. 707.

Mendel v. Boyd (Neb.) 91 N. W. 860. Courier Printing & Publishing Co. v. Leese Morrill v. McNeill (Neb.) 91 N. W. 601, 602.

(Neb.) 91 N. W. 357. Creedon v. Patrick (Neb.) 91 N. W. 872. Nieboer v. Detroit Electric Railway (Mich.) Crocker v. Huntzicker (Wis.) 88 N. W. 232. 87 N. W. 626. Dale v. Council Bluffs Sav. Bank (Neb.) 91 N. Reeg v. Adams (Wis.) 87 N. W. 1067. W. 526.

Robertson v. Brooks (Neb.) 91 N. W. 709. Doane v. Dunham (Neb.) 89 N. W. 640. Dorer v. Hood (Wis.) 88 N. W. 1009.

Snell v. Margritz (Neb.) 91 N. W. 274.

State Bank of Pender v. Frey (Neb.) 91 N. W. First Nat. Bank v. Peterson (Neb.) 91 N. W. 239. 195.

State ex rel. Freeman v. Scheve (Neb.) 91 N. Fort v. Cook (Neb.) 90 N. W. 634.

W. 816. Foster v. McKinley-Lanning Loan & Trust Stitzer v. Whittaker (Neb.) 91 N. W. 713.

Co. (Neb.) 90 N. W. 765. Fremont Carriage Mfg. Co. v. Thomsen (Neb.) Thom v. Dodge County (Neb.) 90 N. W. 763. 91 N. W. 376.

Village of Plainview v. Mendelson (Neb.) 90 Hall v. Hopper (Neb.) 90 N. W. 549.

N. W. 956.
Harlan County ý. Whitney (Neb.) 90 N. W.
993.

Willey v. Lewis (Wis.) 88 N. W. 1021.
Hinman 1. F. C. Austin Mfg. Co. (Neb.) 90
N. W. 934.

Zunker v. Kuehn (Wis.) 88 N. W. 605.

See End of Index for Tables of Northwestern Cases in State Reports. 92 N.W.

(IV)*

THE

NORTHWESTERN REPORTER.

VOLUME 92.

tain as to render it wholly void. We are unHANLON V. HENNESSEY et al.

able to concur in this view. In construing (Supreme Court of Minnesota. Nov. 7, 1902.)

a judgment with respect to its form and sutiJUDGMENT-CONSTRUCTION-SURPLUSAGE

ciency, recourse must be had to the plead-EVIDENCE.

ings in the action to ascertain whether the 1. In construing a judgment with respect to relief awarded is within the issues there its form and sufficiency, recourse must be had

made, or, where the amount of recovery is to the pleadings in the action, to ascertain whether the relief awarded is within the issues

involved, to the verdict or findings. The evithere made; and any matter appearing in the dence may not be looked to, especially where, judgment, not pertinent to such issues, may be

as in this case, it is only partly returned. rejected as surplusage, if what remains grants definite and specific relief within the issues.

So far as the case at bar is concerned, the The evidence may not be referred to ou this pleadings are the sole guide; and, referring subject, except, perhaps, where it is made part to them, we find that defendants were sued of the record, and then only for the purpose of

jointly for work and labor alleged to have ascertaining whether a matter covered by the judgment was within an issue litigated on the

been performed for them, and there is no trial by consent of parties.

suggestion, either in the complaint or answer, (Syllabus by the Court.)

that they were severally liable. The justice Appeal from district court, Stevens county; had no authority to apportion their liability F. J. Steidel, Judge.

in any respect whatever, and the words reAction by Cornelius Hanlon against Dennis ferred to, showing an attempt to do so, and Hennessey and others. Judgment for plain- which are claimed to render the judgment tiff, and defendant Hennessey appeals. Af- indefinite and uncertain, are wholly impertifirmed.

nent to any issue in the case, and must be R. A. Stone, for appellant. L. C. Spooper,

rejected as surplusage. What remains grants for respondents.

definite and specific relief within the issues.

Clark v. Gaar, Scott & Co., 84 Minn. 270, BROWN, J. This action was brought in

87 N. W. 777. It might be proper, in a given justice court to recover against defendants

case, to consider the evidence, when called jointly an amount claimed to be due plaintiff

upon to determine the sufficiency of a judg

ment as to the amount of recovery, or perfor work and labor. Plaintiff had judgment, and defendant Hennessey appealed to the dis

haps as respects its form and contents, when trict court upon questions of law alone, where

made part of the record, to ascertain whether

an issue not covered by the pleadings was the judginent of the justice was affirmed, and he again appealed to this court. But one

litigated on the trial by consent of the par

ties. But such is not this case. question is presented for our consideration, and that goes to the sufficiency, in respect to

Judgment affirmed. form and contents, of the judgment rendered by the justice. The judgment, as appears from his docket, is in the following language:

BIRUM V. JOHNSON. I enter judgment, and judgment is now

(Supreme Court of Minnesota. Nov. 7, 1902.) hereby rendered, in favor of plaintiff and

BREACH OF VARRIAGE PROMISE-DEMANDagainst defendants Wm. Riordan, Dennis

NECESSITY-EVIDENCE. Hennessey, and Wm. Sullivan, in the sum of 1. Where au engagement of marriage is en$37 damages and $5 statutory costs, and the tered into to take place on the happening of a costs and disbursements of this action, taxed

future event, the law implies that the promise

will be fulfilled within a reasonable time there. at $8.10, each according to ownership in the after, which may depend, where no specific machine.” The contention of appellant is date is named, upon the character of such

event. that the closing words of the judgment, "each according to ownersbip in the machine,"

2. Where a party has promised another to party after his return which show that he site to the commencement of the action, and, does not intend to fulfill his promise, as under

fulfill a marriage contract on return from a make the judgment so indefinite and uncer- trip abroad, lapse of time and conduct of such

92 N.W.-1

having failed to show such a request, she the facts of this case, may be regarded as the

cannot recover. equivalent of a refusal to do so, and to dispense with a request to consummate marriage by It appears that a future event, to become the other party.

definite by its occurrence, was specified,-the 3. In actions of this nature, it is admissible

return of the defendant from his contemplatto establish the pecuniary ability of defendant in the first instance, to show the substan

ed journey,-when the marriage was to take tial injury which plaintiff has sustained.

place. It cannot, of course, be justly claim4. In such a case, evidence of the financial

ed that a breach would follow instanter on standing of the defendant may be shown by proof of his reputed pecuniary ability.

the happening of the event, but within a rea(Syllabus by the Court.)

sonable time thereafter, based upon the situ

ation of the parties and surrounding circumAppeal from district court, Redwood coun

stances; but the evidence tending to show an ty; B. F. Webber, Judge.

abandonment of the plaintiff by defendant, Action by Mary M. Birum against Isaac

that he significantly held himself aloof from Johnson. Verdict for plaintiff. From an or

and avoided her, which was practically a notider denying a new trial, defendant appeals.

fication that he would have nothing more to do Affirmed.

with her, and excused her from humiliating A. E. Clark, for appellant. Bowers & herself by a demand that he should do that Howard, for respondent.

which his conduct indicated as plainly as if

| he had so declared that he would not do. It LOVELY, J. Plaintiff recovered a verdict is an acknowledged truism that the law does for the breach of a promise of marriage. not require unnecessary things, and while there Upon a settled case, motion for a new trial is some conflict in the cases where no time was made, which was overruled. Defendant has been fixed for the marriage to take place, appeals.

whether it should be required of the party The complaint alleges a promise by defend- who seeks damages for a breach of promise ant to marry plaintiff as soon as he return- of marriage to request a fulfillment before ed to Redwood Falls from a trip he was about action, we need not determine this question to make to New Mexico and other places. i here, for we think, where the testimony tends The answer is a general denial. In support i to show that a certain event in the future has of the verdict, the evidence tended to show been fixed for the marriage to take place, and that the parties resided at Redwood Falls conduct thereafter by one party indicates that during the fall of 1899; that defendant re- it is not to be carried out by him, this may peatedly visited the plaintiff at her residence, be considered tantamount to a refusal, and paid her noticeable attentions, and engaged authorizes action for the breach without re to marry her, fixing the time for the mar- quiring proof of an actual request by plainriage when he should return from a journey tiff and refusal by defendant. which he was about to make to New Mexico. Evidence was offered to show the financial Defendant started on his journey in Novem- condition of the party involved. We have ber. At this time agreeable and friendly so- no doubt that proof of that character is aucial relations existed between the parties, thorized in such cases. In announcing this but thereafter defendant did not write to rule, Judge Cooley uses the following lanplaintiff, although she sent him several let- guage, which we approve and adopt: “When ters. About the 1st of June of the following the suit is for the loss of a marriage and of year, defendant returned to Redwood Falls. an expected home, the fact that the plaintiff Thereafter no communication took place be- is without means to provide an independent tween the parties. Defendant avoided plain- home for herself is not entirely unimportant. tiff, and on occasions when he saw her ap- It may be supposed to be one of the facts proaching would move away in an opposite which both parties had in mind in making direction, or step into a store or saloon, to their arrangements, and it is not improper avoid meeting her. She continually endeav. that the jury should know of it also, and take ored to meet him, but was unable to do so. it into account in making up their verdict." This condition of indifference toward plain- Vanderpool v. Richardson, 52 Mich. 336, 17 tiff by defendant, with acts of apparent re- N. W. 936. At the trial evidence was intropulsion, continued for some nine months, duced tending to show the financial ability when this action was commenced. Plaintiff of defendant by proof of his reputed wealth, had never during the meantime requested the as well as of the value of his actual possesdefendant to fulfill his promise, giving as her sions. This was received over objection, and reason for not doing so that defendant pur- defendant now complains of the course purposely shunned her, and gave her no chance sued in this respect. It would seem from the to speak to him; which is a fair inference very nature of the inquiry, and the difficulty from the testimony.

of proving the value of a person's property, The serious contention on the part of de- that oftentimes reputation might furnish, fendant is that, before any action for the from necessity, the only means by which a breach of the marriage contract will lie, prima facie showing thereof could be made. plaintiff should have demanded a fulfillment The adverse party might be cross-examined of the promise from defendant as a prerequi- on this issue under the statute, but even then

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