his opponent could not be bound by his answers. We have allowed evidence of this character to prove financial standing upon the issue of insolvency (Hahn v. Penney, 62 Minn. 116, 63 N. W. 843), and we fail to discover any good reason why we should limit this proof to other cases, where financial standing is a relevant and material subject of inquiry.

We do not consider the other assignments of error of sufficient importance to require special mention.

Order affirmed.

MILLER v. GANSER et al. Supreme Court of Minnesota. Nov. 7, 1902.) ACTION AGAINST ADMINISTRATRIX-PLEAD

ING.

1. Complaint construed, and held to state a cause of action against an administratrix for her failure to pay a distributee her share of the estate.

(Syllabus by the Court.)

Appeal from district court, Hennepin county; C. B. Elliott, Judge.

Action by Katie Miller against Anna Ganser, administratrix, and others. Judgment for plaintiff, and defendants Joseph Ingerhutt and others appeal. Affirmed.

J. M. Dunn and E. E. Witchie, for appellants. Frederick L. McGhee, for respondent.

BROWN, J. Action to recover against the administratrix of the estate of a deceased person and her bondsmen for the failure on her part to pay over to plaintiff her distributive share of the estate. Plaintiff had judgment in the court below, and defendants appealed therefrom.

The only question presented for our consideration goes to the sufficiency of the complaint. The complaint alleges, in substance, that on the 30th of June, 1890, Peter Ganser died intestate, leaving, him surviving, his widow, this defendant, and six children, plaintiff being one of them; that the widow was appointed by the probate court administratrix of the estate, which she duly administered, and reported to the court on the 7th of April, 1891, that the same had been duly administered, and that there remained in her hands the sum of $1,874.76 for distribution. The complaint then alleges that the probate court made its final decree of distribution, assigning the said estate as follows: Onethird thereof to the widow, "and to the remaining heirs the one twenty-first part of said estate, and the share to which plaintiff became and was entitled, and was due and payable to her, was the sum of $178.54." A prior allegation of the complaint is to the effect that the administratrix duly made and filed her final accounts in the probate court, and that the probate court duly made and entered its final decree assigning the residue of said estate. Counsel for appellant presented his cause on the oral argument with much

earnestness, and in apparent belief in the soundness of his contentions; but to sustain him we must violate every rule for the construction of pleadings this court has ever laid down, and apply to the complaint the strictest and most technical sort of construction. The rule is, and always has been, that, where objection is made to a pleading for the first time in this court, the same will be overruled and disregarded, if, by any sort of liberal construction, a cause of action may be spelled out of the pleading. That a cause of action may be spelled out of the complaint in this action is too clear to admit of discussion. The allegation that the probate court assigned to the six children of the deceased "the one twenty-first part of the estate" was clearly a mistake of the pleader, and it is conclusively shown to be such by the other allegations shown therein. The deceased left surviving him his widow and six children. The widow was entitled to one-third and the children to two-thirds of the estate. This conclusively appears from the complaint, and we are bound to presume that the probate court assigned the estate in accordance with the law, and no mere inaccuracy in the language of the complaint from which a contrary inference might be drawn is sufficient to rebut that presumption. Cases on the subJect of the rule for the construction of pleadings where objection is made for the first time in this court may be found in Dunnell, Pl. § 744. See, also, Slater v. Olson, 83 Minn. 35, 85 N. W. 825.

To the matter of interest, complained of by appellant,-something like $4,-we apply the maxim of "de minimis non curat lex." Judgment affirmed.

SCHEIBER v. VON ARX et al. (Supreme Court of Minnesota. Oct. 31, 1902.) COUNTY COMMISSIONERS-OFFER OF REWARD -AUTHORITY-PERSONAL LIABILITY.

1. A resolution of the county commissioners offering a reward for the finding and identification of a missing man is in excess of legal power, and does not authorize a contract between the county and a third person.

2. Where such a resolution was adopted in good faith at a regular meeting of the board, and, after being signed by the commissioners individually, was attested by the county auditor, and in that form published in a newspaper, the authorized inference to be drawn from such published resolution is that the board intended in its official capacity to create a public liability, instead of the personal obligations of the individual commissioners.

3. Hence, where a third party acts upon such offer of reward, the commissioners do not become individually liable, although, as members of the board, they exceeded their authority in that respect.

(Syllabus by the Court.)

Appeal from district court, Houston county; Nathan Kingsley, Judge.

Action by John Scheiber against A. J. Von Arx and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. H. Harries, for appellant. James O'Brien and O. K. Dahle, for respondents.

LOVELY, J. Upon the pleadings in this case defendants moved for judgment, which was ordered in their favor, and duly entered. Plaintiff appeals from the judgment.

The substantive facts disclosed in the issues alleged are as follows: About the 15th day of May, 1900, a young man disappeared from his home near Caledonia, in Houston county, which caused considerable excitement, many people believing that he had been murdered. The defendants were the commissioners of Houston county, and at the regular July session for the year 1900 the county board, as a part of its proceedings, in good faith, and upon the advice of the county attorney, adopted a resolution, the material portions of which we here quote: "Be it resolved that we, the undersigned county commissioners of Houston Co., Minn., will pay the following reward on the following conditions: $50.00 to the person who finds and proves to us that the missing man John Peter SacMary is alive. $100.00 to the person or persons who find and identify the body in case he is dead." The resolution was entered at length under proper date as a part of the proceedings of the board, and was thus formally signed by the defendants: "A. J. Von Arx, Chairman. Francis Duffy, C. Rasmussen, A. H. Belding, O. H. Newhouse, County Commissioners, Houston Co., Minn." After being attested by the signature and seal of the county auditor, it was then published in a newspaper issued at the county seat. It further appears that the plaintiff, a few days afterwards, found the dead body of the missing man in the woods. He saw the published resolution, and notified the public authorities, by whom the body was identified. At subsequent sessions of the board plaintiff presented a properly verified bill against the county, claiming $100 for the finding and identification of the body, which was ultimately rejected, through the advice of a new county attorney, upon the ground that the bill was not a legal charge upon the public funds. The plaintiff then brought this action against defendants to recover the sum named upon the theory that the members of the board were individually liable therefor. The trial court disposed of the motion for judgment upon the view that the facts above set forth established that the county board, under a mistaken view of their authority, had offered a reward for the discovery of a missing person supposed to have been foully dealt with, but that such offer did not subject its members to the personal liability claimed. Conceding that the county board intended to act in their public capacity when promulgating this offer, the conclusion of the court was undoubtedly correct, for "when public agents in good faith contract with parties having full knowledge of the extent of their authority, or who have

equal means of knowledge with themselves, they do not become individually liable unless the intent in regard to the personal responsibility is clearly expressed, although it should be found that through ignorance of the law they may have exceeded their authority." Sanborn v. Neal, 4 Minn. 126 (Gil. 83), 77 Am. Dec. 502; First Nat. Bank of Detroit v. Board of Com'rs of Becker Co., 81 Minn. 95, 83 N. W. 468. While it is insisted that by the form of the resolution the reward appears to have been the act of the commissioners individually, we are quite clear that the admitted facts show it was not so intended. The resolution is criticised for not stating that the offer was made "as a board," or "for the board," to indicate such an intent; yet no other conclusion can be derived from the terms actually adopted than that it was a public act, without such qualification. The offer was made in good faith under the advice of the county attorney, and in the form of a resolution passed at a session of the board as a part of its ordinary proceedings, then signed by the county auditor, who is the clerk of the board, then attested by his seal, and published, presumably under section 671, Gen. St. 1894, which provides that the "county commissioners shall have and use the seal of the auditor of their county as their common seal, and shall cause the official proceedings of each session to be published in some newspaper printed and published in their county." Although it would have been more formal to have stated in the resolution that the offer was made for the county, we have no doubt that it otherwise sufficiently appears therein that the reward was intended to be made officially, and that it was not the purpose of the members of the board to incur a personal obligation for what was erroneously supposed to have been a public duty. Neither the legal understanding nor common sense of an ordinary layman could have been misled as to the purpose of the resolution in that respect. The plaintiff himself interpreted its meaning correctly when he made his claim against the county, and it does not follow, because the county is not bound by such offer, that the commissioners are liable thereon individually. Judgment affirmed.

STATE ex rel. MCCARTHY ▾. MOORE, County Auditor. (Supreme Court of Minnesota. Oct. 31, 1902.)

ELECTIONS-NOMINATIONS-RIGHTS OF CANDI

DATES-PRIMARY ELECTIONS-CON-
STITUTIONAL LAW.

1. The legislature may recognize the existence of political parties, and within reasonable limits regulate the means by which partisan efforts should be protected in exercising individual preferences for party candidates, which is the general purpose of the primary election law of this state.

2. Under the constitution every person who is entitled to vote is eligible to office, but eligibility does not entitle a candidate to equal ad

one candidate over another; but it would seem proper that any candidate who seeks the assistance of the primary election law to aid him in securing party support should be bound by the obligations of good faith and the dictates of fair play to which he has voluntarily subjected himself. It is said by this law to a candidate, "If you prefer the advantages of a party nomination which is quite desirable, you may seek it; but if the state prepares and prints your ballot and regulates nominations so as to secure the utmost freedom of choice among the members of your party, it does so upon the submission by you to the condition that, if you are unsuccessful, it will not thereafter print your name upon the ballot to defeat your opponent;" and it should not be said, because this is refused, that it is an unreasonable condition, but rather an imposition of evenhanded justice that would have been bestowed upon his previous contestant had the result been otherwise. The conditions he accepted and the consequences he would have imposed upon his adversary should impel him upon every sanction of justice and common honesty to submit to results he should have been prepared for, and it cannot be said either that in this effort at regulation of politi cal methods the unsuccessful aspirant for a party nomination is deprived of the right to run for office, or the majority of voters deprived of his services in office, if they desire to secure them; for by the terms of section 24, c. 4, Gen. Laws 1893; chapter 1, Gen. St. 1894,-it is provided that, "After the name of the last named candidate for each office shall be placed on the ballot there shall be left as many blank lines thereon as there are like offices to be filled." That is, a blank line is to be left on the official ballot, where voters, or a majority of them, may express their preferences for a person by writing his name therein. That it is more advantageous to the candidate to have his name printed on the ballot instead of requiring it to be written is true, but in this case, under the prohibition of the statute to which he submitted, petitioner voluntarily denied himself that advantage. While he cannot have his name printed, because he has for supposed benefits surrendered that right, he is still eligible, and may aspire to the office, invite his fellow cit izens to vote for him in the blank space provided for, and secure the office, if he can obtain the requisite support.

STAI v. SELDEN et al. (Supreme Court of Minnesota. Oct. 31, 1902.) ATTORNEYS-VACATING APPEARANCE-SETTING ASIDE JUDGMENT.

1. The judgment roll herein showed that the defendants were not residents of this state, nor therein; an affidavit and return of the sheriff as a basis for the publication of the summons;

1. See Judgment, vol. 30, Cent. Dig. §§ 686, 689.

an appearance of the defendants by attorneys, and a recital of that fact in the judgment; but the roll contained no proof of the service of the summons by publication, nor did the judgment_recite that the summons had been served. Held, that the trial court did not err in setting aside the appearance of the attorneys as unauthorized, nor in vacating the judgment, on motion of the defendants, on the ground that it then appeared of record to be void. Godfrey v. Valentine, 40 N. W. 163, 39 Minn. 336, 12 Am. St. Rep. 657, followed. Nor did the court err in denying the plaintiff's motion to file proof of the publication of the summons nunc pro tunc.

(Syllabus by the Court.)

Appeal from district court, St. Louis county; W. A. Cant, Judge.

Action by Charles R. Stai against Sarah L. Selden and others. From an order setting aside an appearance of attorneys and vacating a judgment for plaintiff, he appeals. Affirmed.

Alford & Hunt, for appellant. George L. Spangler and W. G. Joerns, for respondents.

START, C. J. This is an action to determine adverse claims to a lot in the city of Duluth. The plaintiff's claim of title to the lot was based upon a tax certificate issued to him upon the sale of the lot pursuant to Laws 1897, c. 290, which, some months after the entry of what purported to be a judgment herein adjudging that the plaintiff was the owner of the lot, was held to be unconstitutional by this court. Banking Co. V. Koon, 81 Minn. 486, 84 N. W. 335. It appears from the judgment roll that the complaint was filed and the summons issued on October 18, 1899; that none of the defendants is a resident of this state, and that the foundation for the publication of the summons was laid by the filing of the sheriff's return on the summons, and an affidavit showing that the defendants were not residents of this state, and could not be found therein, and that a copy of the summons had been mailed to each of them. It further appears from the judgment roll that on January 27, 1900, an appearance for all of the defendants was entered by attorneys, who served an answer for them, and thereafter made a stipulation on their behalf with the plaintiff's attorneys as to certain facts; that the cause was tried by the court May 3, 1900, the attorneys who had appeared and answered for the defendants appearing for them; that the court on the same day made its findings of fact and conclusions of law directing judgment for the plaintiff, wherein it was recited that it appearing to the court that the defendants have heretofore appeared by their attorneys, and the court having acquired jurisdiction over the defendants, the court proceeded to the trial of the action; that on May 23, 1900, judgment was entered upon the findings adjudging that the plaintiff was the owner of the lot, and that he recover from the defendants $33.75, the costs of the action. The name of the de

fendant Nettie E. Selden was omitted from the judgment, but was afterwards, by order of the court, inserted nunc pro tunc therein, on ex parte application of the plaintiff. There are no recitals in the judgment as to the service of the summons, but it is recited therein that the defendants appeared by their attorneys. Nor is there any affidavit of the publication of the summons in the judgment roll or in the record. On August 21, 1901, the defendants other than Nettie E. Selden, appearing for that purpose specially by their attorneys, secured an order from the court on the plaintiff to show cause why the appearance of the attorneys who assumed to appear for them in this action should not be vacated and stricken from the records as unauthorized, and, further, why the findings of fact, conclusions of law, and the judgment herein should not be vacated for the reason that the court was without jurisdic-| tion in the premises. On October 10, 1901, the defendant Nettie E. Selden, also appearing specially by her attorneys, obtained from the court an order on the plaintiff to show cause why the ex parte order inserting her name in the judgment should not be set aside, and why the judgment should not be vacated for the reason stated by her codefendants. The court on October 14, 1901, upon the affidavit of the printer showing that the summons was in fact duly published, and on motion of the plaintiff, made its order requiring the attorneys who had so appeared for the defendants to show cause why the plaintiff should not be allowed to make the affidavit of the printer a part of the judgment roll nunc pro tunc, with the same effect as if it had been filed before the entry of the judgment. The several orders to show cause and motions to which we have referred were duly heard by the district court, and on November 19, 1901, it made its order to the effect that the appearance of the attorneys for the defendants be stricken from the record of this case as unauthorized; that the plaintiff's motion to file the printer's affidavit showing publication of the summons be denied; that the findings of fact, conclusions of law, and judgment, and the whole thereof, be vacated and set aside as to each of the defendants; that the order inserting the name of the defendant Nettie E. Selden be vacated; and, further, that the defendants pay to the plaintiff $50 before the order shall become effectual. The plaintiff appealed from the order.

1. Did the trial court err in setting aside the appearance of the attorneys for the defendants? The plaintiff insists that it did, for the reason that the affidavits and evidence presented on the hearing of the motion were not only insufficient to overcome the presumption that the attorneys were authorized to appear and answer for the defendants, but that they establish affirmatively the fact that the attorneys were so authorized. It may be conceded that the

evidence was such that the trial court might have found that the attorneys were either originally authorized to appear for the defendants, or that they subsequently ratified the act of the attorneys. But this is not sufficient to justify a reversal of the court's findings. The rule in such cases is this: Where, upon the hearing of an order to show cause, or a motion, an issue of fact is raised by the affidavits and evidence of the respective parties, the determination thereof by the court will not be reversed by this court if there be evidence reasonably tending to support it. Bank v. Randall, 38 Minn. 382, 37 N. W. 799; Bausman v. Tilley, 46 Minn. 66, 48 N. W. 459; State v. Madigan, 66 Minn. 10, 68 N. W. 179. The finding of the trial court that the appearance of the attorneys who assumed to appear for the defendants in this case was unauthorized is fairly sustained by the evidence, and its order vacating such appearance was correct.

2. Did the court err in denying the plaintiff's application to file and make a part of the judgment roll nunc pro tunc the printer's affidavit showing the publication of the summons? This was a matter within the discretion of the court. But the exercise of a sound discretion requires that all applications of this kind should be granted, except in cases where it would be unjust to the defendants or to innocent third parties to do So. Burr v. Seymour, 43 Minn. 401, 45 N. W. 715, 19 Am. St. Rep. 245. This case is within the exception. To have granted the application would have resulted in depriving the defendants, through legal forms, of their land, and vesting it in the plaintiff, who had no legal or equitable claim thereto. The $50 which the defendants were required to pay as a condition of denying the application is amply sufficient to indemnify the plaintiff for any amount he may have invested in his void tax title to the lot in question. The court rightly denied the application.

3. Did the court err in setting aside the judgment? In considering this question, we must keep in mind that the defendants' motion to vacate the judgment was not a collateral, but a direct, attack upon the judgment; hence the rule as to the absolute verity of judgments has no application to this case. Van Fleet, Coll. Attack, §§ 2, 3; Vaule v. Miller, 69 Minn. 440, 72 N. W. 452. And further, that the defendants were not residents of this state nor found therein, and that it appeared upon the face of the judgment roll that the court acquired jurisdiction to award the judgment by the supposed personal appearance of the defendants by their attorneys. Now, when the appearance of the attorneys for the defendants was stricken from the record, the judgment appeared upon the record to be void, and the court was authorized to vacate it. In this respect this case cannot be distinguished from Godfrey v. Valentine, 39 Minn. 336, 40 N. W. 163, 12 Am. St. Rep. 657, and is ruled