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+"{\"id\": \"10592270\", \"name\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent\", \"name_abbreviation\": \"Lewis & Harris v. County of Hennepin\", \"decision_date\": \"1994-05-13\", \"docket_number\": \"No. CO-93-1195\", \"first_page\": \"177\", \"last_page\": \"180\", \"citations\": \"516 N.W.2d 177\", \"volume\": \"516\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T02:23:23.472000+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent.\", \"head_matter\": \"LEWIS & HARRIS, a Partnership, Petitioner, Relator, v. COUNTY OF HENNEPIN, Respondent.\\nNo. CO-93-1195.\\nSupreme Court of Minnesota.\\nMay 13, 1994.\\nThomas R. Wilhelmy, James E. Dorsey, Fredrikson & Byron, P.A., Minneapolis, for relator.\\nMichael 0. Freeman, Hennepin County Atty., Mark Kapter Maher, Asst. County Atty., Minneapolis, for respondent.\", \"word_count\": \"1766\", \"char_count\": \"10992\", \"text\": \"OPINION\\nCOYNE-, Justice.\\nLewis & Harris, a partnership, challenged the 1990 assessed valuation of the partnership's commercial property at 4100 West 76th Street in Edina. The Hennepin County assessor's valuation was $1,170,000. The tax court declared the fair market value of the property was $1,150,000 and ordered the Hennepin County books and records changed to reflect that conclusion. Lewis & Harris moved for amended findings and conclusions or a new trial and, following denial of the post-trial motions, brought this appeal.\\nIn September 1987 the petitioner partnership composed of Terry Lewis and James S. Harris, III, two nationally known, Minneapolis-based music producers, purchased the subject property for $800,000 less an allowance of approximately $10,000 for roof repair. The one story structure, built as an office/warehouse in 1966, was being used as an office furniture showroom at the time of sale. Messrs. Harris and Lewis are also the sole shareholders of the production company, Flyte Tyme Productions, Inc. After acquiring the property, the partnership leased it to Flyte Tyme, which spent about $384,000 on leasehold improvements. Four studios were built, each with an adjacent control room. The other improvements comprised a copy and editing room, a kitchen, two lounges, restrooms, storage rooms and a refurbished office. Recorded performances take place in the studios, which are also called \\\"isolation booths\\\", while the engineer and producer oversee the recording process from the control room. With this renovated building, the Flyte Tyme Productions facility is regarded as a \\\"world class\\\" recording studio.\\nEssentially, the valuation dispute boils down to a difference of opinion among various appraisers. The partnership based its position primarily on the valuation prepared by Gary Battuello, a partner in a real estate appraisal and consulting firm, and on the method he employed in his appraisal. The county, on the other hand, relied chiefly on the value fixed by Moreau Sankey, an appraiser employed in the office of the City of Edina Assessor.\\nThis court has on various occasions recognized the three basic approaches to determining the market value of real estate:\\n1. Market data \\u2014 an appraisal based on prices paid in actual market transactions involving comparable properties;\\n2. Income \\u2014 a value estimate predicated on the capitalization of the rental income which a lease could be expected to produce;\\n3. Cost \\u2014 a valuation founded on the proposition that an informed buyer would pay no more for the property than the cost of constructing new property having the same utility as the subject property.\\nSee, e.g., Federal Reserve Bank of Minneapolis v. County of Hennepin, 372 N.W.2d 699, 700 (Minn.1985). The partnership urges recognition of the \\\"superiority of the market approach\\\" recommended by Mr. Battuello. Having concluded that the highest and best use of the Lewis & Harris property was use as an offiee/warehouse, Battuello testified that four nearby office and warehouse buildings had been sold for prices ranging from $24.69 to $41.81 per square foot. He then testified to the 1980s market price of five production facilities, whose highest and best use he described as media production studios: a studio at 25th Street and 27th Avenue, $32.33 per square foot; a studio at 2543 Nicollet Avenue, $31.60 per square foot; Flyte Tyme's former studio at 4330 Nicollet, $42.65 per square foot; a video production facility in Edina, next door to the subject property, $56.60 per square foot; and KTCA's former video studios on Como Avenue in St. Paul, $21.77 per square foot. After adjusting for the differing times of sale and variations in buildings and locations, Mr. Battuello concluded that the market value of these properties, which he considered comparable to the subject property, was slightly under $39.00 per square foot in January 1990. It was Mr. Battuello's opinion that the market does not recognize any measurable contribution to value because of the sound recording improvement. Mr. Battuello then estimated the market value of the Lewis & Harris building at $40.00 per square foot, yielding an overall value of $670,000.\\nBased on a market value of $3 to $4 per square foot for the land and a replacement cost of $40 per square foot for a Class C distribution warehouse, Mr. Battuello's cost approach estimate as of January 1990, after considering depreciation, was $760,000.\\nUsing a capitalization rate of 10.5 percent, Mr. Battuello's income approach valuation was $530,000. He discounted the reliability of the income method because properties of the kind at issue are not often financed by investors, and he relied primarily on comparable sales to arrive at his final estimate of $670,000 as of January 1990.\\nThe county's appraiser, on the other hand, relied most heavily on the cost approach, estimated the depreciated cost of the building at $892,124 and the land value at $450,-000, and gave it as his judgment that the property had a total market value of $1,300,-000 on January 2, 1990.\\nMr. Sankey determined the land value by market data approach with consideration given to three sales of vacant land. Mr. Sankey gave the greatest weight to the 1987 sale of a 90 + acre parcel at 76th and France Avenue, about one block east of the subject property. Although he discussed three sales of recording studios and the sale of the video studio adjacent to the subject property, Mr. Sankey concluded that the sales of the studios at 4330 and 2543 Nicollet and at 2501 27th Avenue either were not sales of comparable properties or were not arms-length transactions which reflected actual market value. In his appraisal report Mr. Sankey pointed out that there are more than 40 recording studios listed in the telephone directory but that a drive-by inspection convinced him that they were not comparable. He thought his observation was supported by the buyer of the studio at 2543 Nicollet Avenue, who told Sankey that there were only three top quality recording studios in the area \\u2014 Prince's Paisley Park, Flyte Tyme and his own studio \\u2014 and that each of the three were involved in different facets of the recording industry. Because Mr. Sankey was of the opinion that only the sale of the next door video studio could be considered a comparable sale, he gave his market data valuation of $1,070,000 only nominal weight.\\nBecause Messrs. Lewis and Harris are both the only partners of the partnership which is the owner-lessor of the property and the sole shareholders of the tenant production company and because the few recording studio leases in existence are usually between related parties, Mr. Sankey deemed any information about rental income too unreliable to permit development of a market value based on an income approach.\\nBecause of the absence of market data and of reliable income data and because of the high degree of specialization in the recording industry, Mr. Sankey was of the opinion that the subject property is a special purpose property. In conclusion, Mr. Sankey gave the depreciated replacement cost approach the greatest weight with some consideration for the one sale of comparable property \\u2014 the next door video studio \\u2014 and arrived at a value of $1,300,000.\\nThe tax court judge recognized that market data approach is ordinarily the preferable approach to the valuation of owner-occupied properties, but she accorded market data little weight in this case. Judge Doar considered the highest and best use of the property on the assessment date was as an office and recording studio, and, therefore, disregarded office/warehouse sales. She rejected Mr. Battuello's analysis of the sale of the next-door video production studio as insufficient to support his conclusion that the market does not recognize a measurable contribution to value by the sound recording studios. She agreed with Mr. Sankey that only one of the three recording studio sales could be regarded as comparable \\u2014 the studio vacated by Flyte Tyme when it moved to the subject property.\\nAccordingly, valuation based on market data could be derived from only a single sale. Because of this very limited market data and almost non-existent data concerning income generated by arms-length lease arrangement, Judge Doar regarded the cost approach as the most reliable.\\nRejecting the partnership's contention that the recording studios are equipment, not real estate, Judge Doar found that the studios are integrated with and permanently affixed to the building and are, therefore, part of the real estate.\\nBased on Mr. Sankey's depreciated replacement cost as of January 2, 1990, together with the land value estimates presented by both appraisers, Judge Doar arrived at a depreciated replacement cost of $1,200,000. Giving some, but minimal, weight to the value based on market data, the tax court declared the value of the property on January 2, 1990 to be $1,150,000.\\nBecause of the continual rapid change in recording technology, it is no doubt accurate to say that the useful life of the recording studios is somewhat shorter than that of the building to which they are affixed. That it is advantageous for income tax purposes to depreciate them as equipment does not alter their essential character. They are affixed to and integrated with the building. They are leasehold improvements which will stay with the building and become the property of the lessor on expiration of the lease term, just as the studios were sold as a part of the real property in each recording studio sale included in the market data used here. The tax court properly included the studios in the estimated market value of the subject property.\\nWith respect to the propriety of placing greater weight on the replacement cost approach, according the market data approach minimal weight, and of considering the income approach not at all helpful, we note that, at best, appraisal is an inexact value determination. It must be conceded, we believe, that an appraisal is an estimate of value. That is the reason for the development of three approaches to value. Viewing value from three different perspectives may help the appraiser arrive at an estimate closer to actual market value than if the property were viewed from a single perspective. Whatever weight priority may usually attach to each approach, the priority and quantum of reliance depends on the facts of each case. It seems to us that in this case the market data approach left a good deal to be desired and that the tax court cannot be faulted for giving it minimal weight while relying primarily on the replacement cost approach.\\nAffirmed.\"}"
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+"{\"id\": \"10597324\", \"name\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Schoer v. West Bend Mutual Insurance Co.\", \"decision_date\": \"1991-07-09\", \"docket_number\": \"No. C8-90-2404\", \"first_page\": \"73\", \"last_page\": \"77\", \"citations\": \"473 N.W.2d 73\", \"volume\": \"473\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:12:14.718453+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by PARKER, P.J., and NORTON, and SCHUMACHER, JJ.\", \"parties\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant.\", \"head_matter\": \"Jeffrey Robert SCHOER, Respondent, v. WEST BEND MUTUAL INSURANCE COMPANY, Appellant.\\nNo. C8-90-2404.\\nCourt of Appeals of Minnesota.\\nJuly 9, 1991.\\nJames E. Malters Von Holtum, Malters & Shepherd, Worthington, for Jeffrey Robert Schoer, respondent.\\nPaul T. Eidsness Moss & Barnett, Minneapolis, West Bend Mut. Ins. Co., appellant.\\nConsidered and decided by PARKER, P.J., and NORTON, and SCHUMACHER, JJ.\", \"word_count\": \"1816\", \"char_count\": \"11224\", \"text\": \"OPINION\\nNORTON, Judge.\\nAppellant, West Bend Mutual Insurance Company (West Bend), seeks review of judgment declaring respondent, Jeffrey Robert Schoer, a resident of his mother's household under her automobile insurance policy issued in Wisconsin.\\nFACTS\\nSchoer was injured in a single vehicle accident while riding as a passenger in an automobile near Waseca, Minnesota on August 25, 1988. He received a partial recovery for his injuries from the driver's automobile insurance carrier. Because Schoer did not have his own automobile insurance policy, he sought underinsured motorist benefits from his mother's policy issued by West Bend. West Bend denied coverage saying that Schoer was not living with his mother, Ruth Ann Schoer, in her home in Stevens Point, Wisconsin as required under the terms of the policy.\\nSince 1984, when his parents divorced and he left high school, Schoer has spent a considerable amount of time away from his mother's home. He would live with his mother and work in Wisconsin for a few months and then stay with his father or friends and work in Minnesota for a few months. He also stayed, periodically for a year, with a girlfriend with whom he had a child. However, he frequently went home to his mother. Schoer lived out of a suitcase when he was away from his mother's home. At the time of the accident, Schoer had completed his first year as a student at Southwest Technical Institute and was living in Jackson, Minnesota.\\nISSUES\\n1. Are the legal issues raised in West Bend's motion for summary judgment properly before this court on appeal?\\n2. Does Minnesota statute section 65B.50 require that the nonresident West Bend insured vehicle be present in Minnesota at the time of the accident giving rise to Schoer's claim?\\n3. Does the evidence support the jury's finding that Schoer was a resident of his mother's household?\\n4. Should the limit of underinsured coverage be the statutory minimum rather than as stated in the policy?\\nANALYSIS\\nI.\\nOn appeal from a judgment, this court may review any order involving the merits or affecting the judgment. Minn.R.Civ.App.P. 103.04. Although an order denying summary judgment is not appeal-able, it may be reviewed as part of an appealable judgment. Peterson v. Brown, 457 N.W.2d 745, 748 (Minn.App.1990), pet. for rev. denied (Minn. Aug. 23, 1990).\\nIn this case, West Bend's motion for summary judgment was denied. West Bend properly appealed from judgment for Schoer. Therefore, the issues raised in the summary judgment motion are reviewable in this appeal.\\nII.\\nBoth parties agree that Minnesota law is controlling in this case. Construction of the Minnesota no-fault automobile insurance act is a question of law and is subject to de novo review on appeal. Doe v. State Bd. of Medical Examiners, 435 N.W.2d 45, 48 (Minn.1989).\\nWest Bend contends that Ruth Ann Schoer's nonresident automobile insurance policy should be interpreted under Minn. Stat. \\u00a7 65B.50 (1988) which states in pertinent part:\\nSubdivision 1. Every insurer licensed to write motor vehicle accident reparation and liability insurance in this state shall afford at least the minimum security provided by section 65B.49 to all policy holders, except that in the case of nonresident policyholders it need only certify that security is provided with respect to accidents occurring in this state.\\nSubd. 2. Notwithstanding any contrary provision in it, every contract of liability insurance for injury, wherever issued, covering obligations arising from ownership, maintenance, or use of a motor vehicle includes basic economic loss benefit coverages and residual liability coverages while the vehicle is in this state .\\nWest Bend concludes that the insured vehicle would have to be in Minnesota at the time of Schoer's accident before West Bend is required to extend underinsured coverage to Schoer.\\nSection 65B.50 imposes underin-sured liability coverage in a nonresident's automobile insurance policy issued by an out-of-state insurer, licensed to do business in Minnesota, where there is no provision for coverage already existing in the policy. See Western Nat'l Mut. Ins. Co. v. State Farm Ins. Co., 374 N.W.2d 441, 445 (Minn.1985). Subdivision 1 requires that insurers licensed in Minnesota provide the minimum coverage mandated by the act or in the case of nonresident policyholders, certification of the same with respect to accidents occurring in this state. Subdivision 2 requires that a covered nonresident vehicle be in Minnesota at the time of an accident giving rise to a nonresident's claim before liability can be imposed on the nonresident's insurer. See id.\\nIn this case, underinsured coverage does not need to be imposed by section 65B.50 because it is already written into the West Bend insurance policy and premiums were paid for the coverage. See id. at 442 (where nonresident insured paid no premiums for no-fault coverage, coverage is imposed under 65B.50 if insured vehicle is in state at time of accident). Therefore, section 65B.50 does not apply under the facts of this case and the West Bend insured vehicle was not required to be in Minnesota at the time of the accident to extend coverage to Schoer.\\nIII.\\nWhether Schoer was a resident of his mother's household at the time of the accident is a fact question. See Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 55, 142 N.W.2d 299, 300 (1966). On appeal, the jury's verdict that Schoer is a resident of his mother's household must be upheld unless it is manifestly and palpably contrary to the weight of the evidence when considered in the light most favorable to the prevailing party. See Flom v. Flom, 291 N.W.2d 914, 916 (Minn.1980).\\nWest Bend argues that Schoer is not insured because he was not living with his mother at the time of the accident. The terms of her nonresident policy stated that a relative must be living with the named insured to be included under the insurance coverage.\\nAn insured under the Minnesota no-fault automobile insurance act includes:\\npersons not identified by name as an insured while residing in the same household with the named insured .\\n* #\\n(2)other relative of a named insured\\n\\u215d * # * % *\\nA person resides in the same household with the named insured if that person's home is usually in the same family unit, even though temporarily living elsewhere.\\nMinn.Stat. \\u00a7 65B.43, subd. 5 (1988). There are three factors which determine residency in the named insurer's household:\\n(1) Living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship \\\" in contracting about such matters as insurance or in their conduct in reliance thereon.\\\"\\nFireman's Ins. Co. v. Viktora, 318 N.W.2d 704, 706 (Minn.1982) (quoting Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 37, 197 N.W.2d 783, 789 (1972) (citations omitted)). The factfinder considers:\\n(1) age of the person;\\n(2) whether a separate residence is established;\\n(3) self-sufficiency of the person;\\n(4) frequency and the duration of the stay in the family home; and\\n(5) intent to return.\\nWood v. Mutual Serv. Casualty Ins. Co., 415 N.W.2d 748, 750 (Minn.App.1987), pet. for rev. denied (Minn. Feb. 12, 1988). Personal possessions remaining in the home and that the home continues to be the mailing address may be considered but are not dispositive. Id. at 751. A determination of residency in a household is fact specific to each case. Id. at 750.\\nSchoer's age of 21 years at the time of the accident does not preclude him as a resident of his mother's household. See Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16 (Minn.App.1986), pet. for rev. denied (Minn. Mar. 27, 1986) (24-year-old college student was resident of parents' household); Morgan v. Illinois Farmers Ins. Co., 392 N.W.2d 37 (Minn.App.1986), pet. for rev. denied (Minn. Oct. 22, 1986) (21-year-old college student was resident of parents' household). Although Schoer lived in Jackson when attending school, he returned home as often as possible and did not establish a permanent residence separate from his mother's household. See Skarsten, 381 N.W.2d at 17 (daughter lived at college and in past had established residency in California for school tuition purposes). Additionally, Schoer was not totally self sufficient. He received financial support when needed from his mother.\\nFinally, Schoer returned home as often as possible. He frequently went home on weekends and holidays whenever a ride was available. In his post high school years, Schoer lived in many different places for short periods of time, but would spend time at home, including a few months at a time. He considered his mother's home as his permanent residence. See id. at 19 (daughter's absence from home was of a temporary nature because she intended to return if only for weekends and holidays and considered the home to be her permanent residence). Schoer also stayed with his mother for several weeks while recuperating from his injuries. See Morgan, 392 N.W.2d at 39 (daughter staying with parents for several weeks while recuperating from injuries resulting from accident is one indicator of her being a resident of parents' household).\\nThis case is distinguishable from college student cases where the students were self-supporting and did not intend to return to their parents' residences following college. See Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 389, 227 N.W.2d 807, 810 (1975); Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 56-57, 142 N.W.2d 299, 301 (1966).\\nBecause this court does not substitute its views for those of the jury, we cannot say that the jury finding was contrary to the weight of the evidence when considered in a light favorable to Schoer.\\nIV.\\nWhen a court imposes insurance coverage on parties by law rather than by contract, the only coverage imposed is the statutory minimum. State Farm Mut. Auto. Ins. Co. v. Feldman, 359 N.W.2d 57, 59 (Minn.App.1984). In this case, West Bend and Ruth Ann Schoer contracted for underinsured motorist coverage up to a limit of $100,000. Coverage was not imposed by law. Schoer is entitled to coverage up to $100,000.\\nDECISION\\nMinnesota Statutes section 65B.50 does not apply under the facts of this case where underinsured liability coverage was written into the West Bend automobile insurance policy and premiums were paid for the coverage. The evidence sustains the jury finding that Schoer was an insured under his mother's insurance policy at the time of the accident. Therefore, he is entitled to underinsured coverage up to the policy limits for his injuries.\\nAffirmed.\"}"
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diff --git a/minn/10611997.json b/minn/10611997.json
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+"{\"id\": \"10611997\", \"name\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent\", \"name_abbreviation\": \"Marriage of Pettit v. Pettit\", \"decision_date\": \"1991-07-02\", \"docket_number\": \"No. CX-90-2453\", \"first_page\": \"668\", \"last_page\": \"671\", \"citations\": \"472 N.W.2d 668\", \"volume\": \"472\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:06:43.135036+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FOLEY, P.J., HUSPENI and MULALLY, JJ.\", \"parties\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent.\", \"head_matter\": \"In Re the Marriage of Marjorie Ann PETTIT, Petitioner, Appellant, v. Donald A. PETTIT, Respondent.\\nNo. CX-90-2453.\\nCourt of Appeals of Minnesota.\\nJuly 2, 1991.\\nBrian M. Olsen, Cokato, for appellant.\\nSharon L. Hall, Barna, Guzy & Steffen, Ltd., Minneapolis, for respondent.\\nConsidered and decided by FOLEY, P.J., HUSPENI and MULALLY, JJ.\\nRetired judge of the district court, acting as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 2.\", \"word_count\": \"1267\", \"char_count\": \"7571\", \"text\": \"OPINION\\nFOLEY, Judge.\\nIn this marital dissolution matter, challenge is made to the trial court's conclusions of law regarding whether property was marital or nonmarital, its division of certain of the parties' assets, and its failure to award permanent maintenance. We affirm in part, reverse in part and remand.\\nFACTS\\nAppellant Marjorie Ann Pettit and respondent Donald A. Pettit were married on June 28, 1952. They had four children, all of whom are now emancipated. The parties farmed for most of the marriage. Their farm was unencumbered at the time of the divorce.\\nAfter a trial, the marriage was dissolved by entry of a judgment and decree on Sep tember 6, 1990. Marjorie appeals the trial court's denial of her motions for amended conclusions of law or a new trial.\\nISSUES\\n1. Did the trial court err in its conclusions of law regarding whether property was marital or nonmarital?\\n2. Did the trial court err in its division of certain of the parties' assets?\\n3. Did the trial court err in not awarding permanent maintenance to Marjorie?\\nANALYSIS\\n1. Marjorie challenges the trial court's conclusions of law regarding whether Donald had a nonmarital interest in the parties' farm equal to his payment of a debt with inherited funds, whether a $6,000 loan was a marital debt and whether Marjorie has a nonmarital interest in a lawnmower purchased with money she received in settlement of a personal injury claim.\\nThe characterization of a type of property as marital or nonmarital is a question of law upon which an appellate court may exercise independent judgment. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn.Ct.App.1984). The trial court, however, has broad discretion in the determination of underlying facts, and those findings of fact will be affirmed unless they are manifestly and palpably contrary to the evidence as a whole. Kucera v. Kucera, 275 Minn. 252, 254-55, 146 N.W.2d 181, 183 (1966).\\nCampion v. Campion, 385 N.W.2d 1, 4 (Minn.App.1986).\\nProperty acquired during a marriage is presumed to be marital. Minn.Stat. \\u00a7 518.-54, subd. 5 (1990).\\n\\\"Nonmarital property\\\" means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which\\n(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;\\n#\\n(c) is acquired in exchange for property which is described in clauses (a), (b), (d), and (e);\\nId.\\nHere, the trial court found Donald's inheritance was nonmarital property and that $20,130 of the inheritance had been used to pay a \\\"farm indebtedness.\\\" The trial court gave Donald a lien on the parties' homestead for $20,130.\\nWe agree with Donald that the payment of the loan is readily traceable to the inheritance. See Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn.App.1984) (if asset is readily traceable to inheritance, it is non-marital), pet. for rev. denied (Minn. Dec. 20, 1984). Donald, however, has not shown he acquired any property with the $20,130. See Minn.Stat. \\u00a7 518.54, subd. 5(c).\\nFor that reason, Donald's reliance on Kottke is misplaced. The nonmarital funds in Kottke did pass through a joint account and pay off a joint debt, but the debt was incurred with the understanding that it would be repaid with an expected inheritance. Kottke, 353 N.W.2d at 636. More importantly, the loan was used to acquire property, a home. Id.\\nHere, Donald offered no evidence at trial to show the bank loan was secured by any of the parties' property and makes no such argument on appeal. Therefore, his payment of the loan cannot be said to have given him an interest in any property given as security for the loan.\\nThe trial court found the loan was used for the farming business. The trial court did not find, however, that property was acquired with the loan. Nor did the trial court find that Donald acquired an interest in any property by paying off the loan.\\nWithout the acquisition of property, there was no \\\"exchange\\\" as required by Minn.Stat. \\u00a7 518.54, subd. 5(c). Donald could not, therefore, acquire a nonmarital interest in the farm. Accordingly, on remand, the trial court is instructed to quash the $20,130 lien in Donald's favor on the farm.\\nBecause we have found the trial court erred in concluding Donald had a nonmari- tal interest in the farm, we do not reach whether the trial court should have invaded that nonmarital interest under Minn.Stat. \\u00a7 518.58, subd. 2 (1990).\\nThe trial court did not err in concluding the $6,000 Donald borrowed during the marriage to pay taxes was a marital debt. The record is clear that the debt was incurred during the marriage.\\nNor did the trial court err in failing to award Marjorie as nonmarital property a lawnmower she testified was purchased with a personal injury settlement. Marjorie did not ask for the award when she submitted her proposed findings after the trial. Additionally, Marjorie did not\\nproduce demonstrable proof that the amount of the recovery was awarded for [her] personal injuries and not for replacement of property marital in nature. Absent such proof, the proceeds recovered for any injury occurring during the marriage will all be treated as marital property.\\nVan de Loo v. Van de Loo, 346 N.W.2d 173, 177 (Minn.App.1984).\\n2. There is no merit to Marjorie's claim the trial court erred in not awarding her the parties' household goods. Marjorie stipulated on the record that the household goods would be appraised and sold and the proceeds divided between the parties. Marjorie argues the trial court erred in failing to specify the marital farm equipment to be sold. On the record before us, we find no error.\\nIt does appear, however, that the trial court inadvertently failed to order that the parties share equally in patronage dividends and set-aside funds. On remand, the trial court is instructed to order that Marjorie is entitled to one-half of all patronage dividends and set-aside payments arising from the operation of the farm during the marriage.\\n3. The trial court ordered Donald to pay $12,000 to Marjorie as lump sum spousal maintenance. Marjorie contends the trial court erred in not giving her permanent maintenance.\\nNo abuse of the trial court's broad discretion in determining spousal maintenance will be found if the trial court's decision has a reasonable and acceptable basis in fact. Cisek v. Cisek, 409 N.W.2d 233, 235 (Minn.App.1987), pet. for rev. denied (Minn. Sept. 18,1987). We find no abuse of discretion. The trial court's finding that Donald's age and physical condition make it likely he will not have income to pay maintenance in the future is not clearly erroneous. Furthermore, in light of our holding that Donald does not have a nonmarital interest in the farm, the parties have been left in substantially equal positions.\\nIn the interests of justice, however, we believe Marjorie should have a lien on the parties' homestead for the $12,000 in maintenance. On remand, the trial court is to place such a lien on the homestead and amend the judgment to provide for the lien.\\nDECISION\\nAffirmed in part, reversed in part and remanded.\"}"
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+"{\"id\": \"10639501\", \"name\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents\", \"name_abbreviation\": \"Yellowbird, Inc. v. MSP Express, Inc.\", \"decision_date\": \"1985-11-26\", \"docket_number\": \"No. C3-85-1243\", \"first_page\": \"490\", \"last_page\": \"494\", \"citations\": \"377 N.W.2d 490\", \"volume\": \"377\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:13:58.671382+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by CRIP-PEN, P.J., and FOLEY and WOZNIAK, JJ.\", \"parties\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents.\", \"head_matter\": \"YELLOWBIRD, INC., Relator, v. MSP EXPRESS, INC., Minnesota Transportation Regulation Board, Respondents.\\nNo. C3-85-1243.\\nCourt of Appeals of Minnesota.\\nNov. 26, 1985.\\nMichael J. Pitton, St. Paul, for relator.\\nStanley C. Olsen, Jr., Minneapolis, Hubert H. Humphrey, III, Atty. Gen., Craig R. Anderson, Asst. Atty. Gen., St. Paul, for respondents.\\nHeard, considered, and decided by CRIP-PEN, P.J., and FOLEY and WOZNIAK, JJ.\", \"word_count\": \"2046\", \"char_count\": \"13041\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nYellowbird, Inc. appeals from an order of the Minnesota Transportation Regulation Board granting MSP Express, Inc.'s petition for a certificate of public convenience and necessity as a regular route common carrier of passengers and their baggage between the Minneapolis-St. Paul International Airport and Burnsville, Savage, Shakopee, Faribault and Owatonna. Yel-lowbird contends that the Board's decision is arbitrary and capricious, is not supported by substantial evidence, and is based upon unlawful procedure. We reverse and remand.\\nFACTS\\nIn May 1984 James and Nancy Gardner, doing business as MSP Express, filed a petition for regular route common carrier permit authority to transport passengers between the Minneapolis-St. Paul International Airport and Burnsville, Savage, Shakopee, Hastings, Red Wing, Faribault and Owatonna. The Gardners then asked that the petition be amended to reflect their plans to operate as a corporation.\\nThe Gardners proposed to operate regularly scheduled routes between the airport and three sets of southern Minnesota communities. The first route begins at Shako-pee and stops at Savage and Burnsville before reaching the airport. Shakopee is 22 miles from the airport. The second route begins at Red Wing and stops at Hastings. Red Wing is 47 miles from the airport. The third route begins at Owaton-na and stops at Faribault. Owatonna is 60 miles from the airport. Each route has a return schedule. Three round trips are scheduled for each week day. The proposed weekend service was more limited.\\nYellowbird filed a protest. A hearing was held in October 1984.\\nJames Gardner testified that after the petition was filed MSP began carrying interstate passengers anywhere within 25 miles of the airport because Gardner believed the service fell within an interstate exception to current regulations. Between July 15 and July 31,1984, MSP operated on the scheduled routes between the airport and Shakopee. After July 31, MSP abandoned its regularly scheduled Shakopee airport route and began taking passengers back and forth anywhere south and west of the airport as long as either the destination or pickup point was within a 25-mile radius of the airport. During August MSP transported 73 passengers and in September it transported 167 passengers. In the first 10 days of October, it transported 101 passengers and by the end of the month had transported 269 \\\"fares.\\\"\\nMSP Express has been losing money since it began operations. After the company acquires a third van, which Gardner believes is the minimum number for the service proposed, Gardner estimates that between 700 and 800 passengers per month will be needed in order for the enterprise to break even.\\nAt the time of the hearing, Gardner had one van which had met safety standards. A second van was scheduled for delivery and had not been inspected. The Gardners filed a financial statement as equal partners doing business as MSP Express, but never prepared a financial statement for the corporate entity even though the administrative law judge requested one.\\nThe president of Northstar Travel Service, which has offices in Owatonna, testified that Jefferson Bus Lines is the only regular route common carrier which serves passengers traveling from Owatonna to the airport and, in his opinion, a regularly scheduled van or limousine service is needed for travelers for that route.\\nAn owner of First World Travel in Burnsville testified that his office arranges travel for several hundred people per month and a significant number require transportation between Burnsville and the airport. In his opinion, there is a need for moving small charter groups from Burns-ville to the airport in vans or limousines because these groups now travel in charter buses which are often half empty.\\nThe manager of Howard Johnson's Motor Lodge in Burnsville testified than many of the lodge's guests use MSP because it is more convenient than the lodge's complimentary service. Minneapolis and Suburban Airport Limousine Service has the authority to transport passengers between the lodge and the airport on a regularly scheduled basis but does so on a \\\"reservation only\\\" basis.\\nA Savage resident who makes up to three trips a year from the airport testified that there is no regular route passenger service between Savage and the airport and she 'intends to use MSP's services. A Shakopee resident who makes 20-24 trips a year from the airport testified that MSP is the only regularly scheduled service between Shakopee and the airport. A Fari-bault resident who makes at least two trips to the airport each year testified that the Jefferson Bus Lines service is very inconvenient.\\nA co-owner of Suburban Taxi, which operates in the suburbs south and west of the airport, is also a consultant to transportation services. He testified that MSP does not have enough vehicles to operate its proposed schedule and that'the Gardners' projected operating costs are grossly underestimated. Suburban Taxi serves the area proposed for service by MSP with 36 taxis. Some carry as many as nine passengers. The co-owner also testified that (1) there are also two limousine services offering charter service for Savage and Burns-ville; (2) at least six other taxi companies have unexercised authority to serve those areas; (3) Shakopee and Hastings are served by two bus lines, two taxi companies and MTL's Dial-A-Ride service; and (4) Faribault and Owatonna are served by two limousines, a local taxi company and Jefferson Bus Lines.\\nThe general manager of Minneapolis and Suburban Airport Limousine Service testified that his company operates 29 large vans. It has authority to serve the Howard Johnson's Lodge in Burnsville on a regular route basis. It also has charter authority to operate from the airport to all points in Minnesota. The manager believes that MSP badly underestimated costs and it will need seven vans to operate its proposed schedules.\\nYellowbird has statewide charter authority and frequently runs charters to areas sought to be served by MSP. The president of Yellowbird agrees that, for the reasons given by other owners and managers, MSP's cost estimates are far too low and that it will need seven vans to operate its proposed schedules.\\nThe administrative law judge concluded that (1) all of the regular route passenger transportation services applied for are within the jurisdiction of the Transportation Regulation Board; (2) MSP is not fit and able to provide all the proposed services; (3) it is fit and able to perform regular route common carrier passenger service between Burnsville and Savage and the airport; (4) its vehicle which began operation on July 15, 1984 meets the prescribed safe ty standards, but the record offers no basis for making any conclusions with regard to any other vehicle; (5) petitioner proved a need for the service to Burnsville and Savage, but failed to establish a need for service for any other communities which it proposed to serve; and (6) Yellowbird failed to prove that existing permit and certified carriers offer sufficient transportation services to meet the needs of Burns-ville and Savage for regular route passenger service to and from the airport.\\nThe administrative law judge recommended that the petition for a certificate of public convenience and necessity as a regular route common carrier of passengers between Burnsville, Savage and the airport be granted to James Gardner and Nancy Gardner, doing business as MSP, but that the remainder of the petition be denied.\\nOn June 5 the Board issued an order granting MSP, Incorporated a certificate of public convenience and necessity as a regular route common carrier of passengers between the airport and Burnsville, Savage, Shakopee, Faribault and Owatonna. The Board made no findings of fact and rejected the administrative law judge's findings.\\nYellowbird appeals. MSP neither filed a brief nor appeared at oral argument.\\nISSUE\\nWas the Board's decision arbitrary or made upon unlawful procedure?\\nANALYSIS\\nAfter petitioning for a regular route common carrier permit, MSP began operating within a 25-mile radius of the airport. In doing so, the Gardners relied upon 49 U.S.C. \\u00a7 10526(a)(8) (1984) which provides that the Interstate Commerce Commission does not have jurisdiction over \\\"transportation of passengers by motor vehicle incidental to transportation by aircraft.\\\" Thus, while it was operating without a permit, MSP was essentially assuming that neither the Interstate Commerce Commission nor the Minnesota Transportation Board had jurisdiction to regulate its transportation service. The administrative law judge found that all of the regular route transportation services applied for by MSP are within the Board's jurisdiction. The Board assumed jurisdiction. Yellowbird initially rebuts possible arguments that MSP might make with regard to the Board assuming jurisdiction over its petition. Since MSP does not now challenge the Board's jurisdiction, we need not consider the issue.\\nJudicial review of an administrative agency decision in a contested case is governed by the Administrative Procedures Act, Minn.Stat. \\u00a7 14.63-.69 (1984). This court may reverse an agency's decision if we find it is arbitrary and capricious, made upon unlawful procedure, or affected by other errors of law. Minn.Stat. \\u00a7 14.69 (1984). We adhere to the \\\"fundamental concept that decisions of administrative agencies enjoy a presumption of correctness \\\" but:\\n[WJhere there is a combination of danger signals which suggest the agency has not taken a \\\"hard look\\\" at the salient problems and \\\"has not genuinely engaged in reasoned decisionmaking\\\" it is the duty of the court to intervene.\\nReserve Mining Co. v. Herbst, 256 N.W.2d 808, 824-25 (Minn.1977) (citing Greater Boston Television Corp. v. Federal Communications Commission, 444 F.2d 841, 851 (D.C.Cir.1971)). A combination of dangerous signals exists in this case.\\nEvery decision and order made by an agency must \\\"include the agency's findings of fact and conclusions on all material issues.\\\" Minn.Stat. \\u00a7 14.62, subd. 1 (1984). Contrary to the procedural requirements of the statute, the Board neither made findings of fact nor adopted those made by the administrative law judge. In the absence of findings, we are unable to determine whether substantial evidence supports the Board's findings, conclusions or decision.\\nWithout findings, the Board concluded that the administrative law judge erred by recommending denial of authority to serve Shakopee, Faribault and Owaton- na. The Board offered no reasonable explanation of why it rejected the administrative law judge's conclusion that petitioners had failed to establish a need for its service in Faribault, Owatonna and Shakopee. The Board merely cited part of a statutory section and summarily concluded that testimony supported the need for service. The Board ignored the administrative law judge's conclusion that petitioners were not fit and able to provide all of the proposed services, but were only fit and able to provide regular route common carrier passenger service between Burnsville and Savage and the airport. The Board also ignored the administrative law judge's finding that his findings, conclusions, and recommendations related only to the application made by the Gardners as equal partners doing business as MSP Express. The Board ordered that a certificate be granted to the corporation, not to the Gardners. The absence of a reasoned explanation, the lack of consideration of the statutory requirement that a provider be fit and able, and the decision to issue a certificate to the corporation are evidence of the Board's desire to exercise its will and not its judgment. See Beaty v. Minnesota Board of Teaching, 354 N.W.2d 466, 472 (Minn.Ct.App.1984).\\nThe Board acknowledges that Yel-lowbird requested oral argument before the Board after exceptions had been filed and states that it failed to notice the request. A decision in contested cases is not to be made until each party who is adversely affected has been given an opportunity to \\\"present argument to a majority of the officials who are to render the decision.\\\" Minn.Stat. \\u00a7 14.61 (1984). Again, the Board failed to follow statutory procedure, resulting in a \\\"lack of basic fairness\\\" in its decisionmaking process. See In re Haugen, 278 N.W.2d 75 (Minn.1979).\\nDECISION\\nThe Board's decision was both arbitrary and capricious and based upon unlawful procedure. We reverse and remand to give the Board an opportunity to follow proper procedure and to make a reasoned decision. Reversed and remanded.\"}"
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+"{\"id\": \"10654099\", \"name\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent\", \"name_abbreviation\": \"Hommerding v. Travelers Insurance Co.\", \"decision_date\": \"1986-09-23\", \"docket_number\": \"No. C8-86-762\", \"first_page\": \"389\", \"last_page\": \"391\", \"citations\": \"393 N.W.2d 389\", \"volume\": \"393\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:22:41.370743+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.\", \"parties\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent.\", \"head_matter\": \"Sylvester J. HOMMERDING, et al., Appellants, v. TRAVELERS INSURANCE COMPANY, Respondent.\\nNo. C8-86-762.\\nCourt of Appeals of Minnesota.\\nSept. 23, 1986.\\nJames A. Beitz, Valerie K. Werness, Hagerty & Candell, Minneapolis, for appellants.\\nJohn Remington Graham, Brainerd, for respondent.\\nHeard, considered, and decided by LESLIE, P.J., and WOZNIAK and CRIPPEN, JJ.\", \"word_count\": \"877\", \"char_count\": \"5768\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nAppellants Sylvester and Marion Hom-merding began a suit in district court to set aside the mortgage foreclosure instituted by respondent Travelers Insurance Company based on insufficient notice. The trial court granted Travelers' summary judgment. We affirm.\\nFACTS\\nThe Hommerdings owned and farmed about 615 acres of land in Steams County, and also owned residential property in the township of Wakefield. On June 11, 1976, Travelers loaned the Hommerdings $330,-000 for agricultural needs, secured by a first mortgage on the Hommerdings' agricultural property. On October 27, 1981, Travelers loaned the Hommerdings an additional $285,000, secured by a second mort gage on the Hommerdings' agricultural property.\\nSoon after the second agricultural loan, the Hommerdings defaulted on the notes. On September 21, 1982, the Hommerdings filed Chapter 11 bankruptcy proceedings in United States Bankruptcy Court, District of Minnesota, which automatically stayed any action to create or enforce any lien against the Hommerdings' property. On March 6, 1984, the bankruptcy court filed an order lifting that stay.\\nOn March 8, 1984, Travelers commenced foreclosure by advertisement under Minn. Stat. ch. 580 (1982 and Supp.1983). In accordance with Minn.Stat. \\u00a7 580.03, Travelers published the notice of mortgage foreclosure, and notified the Hommerdings and occupants of the foreclosed property of the foreclosure. The foreclosure sale was held on May 4, 1984, and Travelers bid on both mortgages.\\nOn October 4, 1984, the Hommerdings commenced suit in Steams County District Court alleging that Travelers failed to notify them they had 60 days from the date foreclosure notice was mailed in which to cure the default under Minn.Stat. \\u00a7 47.20, subd. 15 (Supp.1983).\\nRespondents claimed that the notice of right to cure default was necessary only when homestead property was being foreclosed and that the Hommerdings were not homesteading the foreclosed property. Travelers relied on the affidavit of Donald Ramler, the appraiser for Steams County, who stated that the Hommerdings homesteaded the residential property located in Wakefield Township from May 24, 1983 through May 4,1984. Ramler further stated that the Hommerdings' agricultural property, which secured Travelers' first and second mortgages, was not classified as homestead property during that period. The sheriff's affidavits of service of notice of foreclosure indicate that the Hommerd-ings did not reside in the foreclosed property, but resided in the Wakefield residential property. The sheriff's affidavits further indicate that he served Mike and Lori Hom-merding, appellants' son and daughter-in-law, who resided on the agricultural property.\\nThe trial court granted Travelers' motion for summary judgment based on the affidavit of Donald Ramler and found the requirements of Minn.Stat. \\u00a7 47.20 inapplicable to the foreclosed property. The Hom-merdings appeal from the grant of summary judgment.\\nISSUE\\nShould Travelers' notice of foreclosure have complied with Minn.Stat. \\u00a7 47.20, subd. 15, which requires notice to the borrower of a 60-day period to cure default?\\nANALYSIS\\nMinn.Stat. \\u00a7 47.20, as amended in 1983 and applicable to this action, provided:\\nSubd. 15. Notwithstanding the provisions of any other law to the contrary, any notice of default on homestead property as defined in section 583.02, mailed after May 24, 1983 and prior to May 1, 1984, shall indicate that the borrower has 60 days from the date the notice is mailed in which to cure the default.\\n1983 Minn. Laws ch. 215 \\u00a7 1 (current version at Minn.Stat. \\u00a7 47.20, subd. 15 (Supp. 1985)) (emphasis added).\\nChapter 215 defined \\\"homestead\\\" as \\\"residential or agricultural real estate, a portion or all of which is entitled to receive homestead credit under section 273.13, subdivision 15a.\\\" 1983 Minn. Laws ch. 215 \\u00a7 5 (current version at Minn.Stat. \\u00a7 583.02 (Supp.1985)). Section 273.13, subdivision 15a explains the process by which homestead credit is given. Minn.Stat. \\u00a7 273.13, subd. 15a (1982).\\nUnder these statutes, the Hommerd-ings were not entitled to notice of a 60-day period to cure default. First, the Hom-merdings were not receiving a homestead credit on the foreclosed properly from the time the foreclosure action was commenced until the sheriff's sale. The Steams County appraiser's statement that the foreclosed property was not classified as homestead during that period was undisputed.\\nSecond, the Hommerdings were not entitled to receive homestead credit on the foreclosed property during that period. The Hommerdings' agricultural property does not qualify as an exempt homestead. Minn.Stat. \\u00a7 510.01 (1982) defines an exempt homestead as \\\"[t]he house owned and occupied by a debtor as his dwelling place, together with the land upon which it is situated.\\\" The Hommerdings do not dispute that they did not occupy or reside in the foreclosed property. The legislature's use of \\\"the house\\\" in the singular indicates that a debtor may claim only one homestead.\\nUnder the clear wording of the notice and homestead exemption statutes, the Hommerdings' foreclosed property was not homestead property and was not entitled to the special notice provisions afforded to owners of homestead property under Minn. Stat. \\u00a7 47.20, subd. 15 (Supp.1983).\\nDECISION\\nThe trial court properly granted summary judgment in favor of Travelers.\\nAffirmed.\"}"
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+"{\"id\": \"10654251\", \"name\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant\", \"name_abbreviation\": \"Emporium of Jazz v. City of Mendota\", \"decision_date\": \"1985-10-15\", \"docket_number\": \"No. CO-85-681\", \"first_page\": \"825\", \"last_page\": \"828\", \"citations\": \"374 N.W.2d 825\", \"volume\": \"374\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:25:15.020460+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by HUS-PENI, P.J., and RANDALL and CRIPPEN, JJ.\", \"parties\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant.\", \"head_matter\": \"EMPORIUM OF JAZZ, et al., Respondents, McCarty Properties, et al., Respondents, v. CITY OF MENDOTA, Appellant.\\nNo. CO-85-681.\\nCourt of Appeals of Minnesota.\\nOct. 15, 1985.\\nDaniel J. Beeson, South St. Paul, for Emporium of Jazz, et al.\\nArnold F. Kempe, West St. Paul, for McCarty Properties, et al.\\nMichael R. O\\u2019Brien, St. Paul, for appellant.\\nHeard, considered and decided by HUS-PENI, P.J., and RANDALL and CRIPPEN, JJ.\", \"word_count\": \"1331\", \"char_count\": \"8351\", \"text\": \"OPINION\\nRANDALL, Judge.\\nAppellant City of Mendota appeals from a judgment issued after the first half of a bifurcated trial. The trial court bifurcated a trial on certain assessments levied by the City of Mendota. The trial determined two separate issues: (1) whether the city's assessment method was constitutional and proper under Minn.Stat. \\u00a7 429.061 (1984) and (2) whether the specific assessments against respondents were in compliance with Minn.Stat. \\u00a7 429.061. Minn.Stat. \\u00a7 429.061 states that an assessment against a parcel of property may not exceed benefits to that property from the assessed improvements.\\nAfter granting appellant's motion to bifurcate, the court tried the first issue to conclusion and entered judgment finding that the sewer assessments method as to businesses along Highway 13 violated the equal protection clause of the U.S. constitution, the uniformity clause of the Minnesota constitution, and Minn.Stat. \\u00a7 429.-061.\\nWe vacate the court's judgment and remand for completion of the trial on the second issue. Upon completion of the entire trial, the court should then consider the constitutional issue.\\nFACTS\\nOn September 13, 1983, after approving installation of a new sewer system for the entire city of Mendota, the Mendota city council adopted a resolution containing an assessment roll against selected properties located on Highway 13 (\\\"downtown\\\") in Mendota. Downtown contains both residential and commercial properties.\\nThe city assessed downtown commercial properties for the lateral sanitary sewer and service lines running along Highway 13 and the lateral line connecting the downtown system to the rest of Mendota (\\\"low-ertown\\\"). Lowertown Mendota is geographically separate from downtown Men-dota.\\nThe rest of the sewer system was funded by federal and state grants. These grants, intended to benefit lower and middle income property, were used by the city to fund the lowertown portion of the system as well as the cost for the residences and two vacant lots located on Highway 13. The Metropolitan Waste Control Commission (MWCC) funded construction of the lift station and force main connecting the city's sanitary sewer to the metropolitan area sewer system.\\nThe city certified the assessment roll to the county auditor for inclusion on property tax statements. The assessment roll contained assessments only for the commercial properties on Highway 13 and vacant lots owned by the businesses on Highway 13. No other property was assessed.\\nAt trial respondents, the businesses located on Highway 13, challenged the constitutionality of the assessments and also contended that the city assessed them in excess of the benefits they received from the system, in violation of Minn.Stat. \\u00a7 429.061.\\nRespondents contend that the city determined the assessments by subtracting the total amount of grants received from the total cost of the sewer system. They claim the city divided the unfunded balance by the number of businesses and assessed each business accordingly. The city claims it charged the commercial property owners based on a formula of 50% for direct lateral benefit based on front footage and 50% as a sewer availability charge (SAC).\\nThe trial court granted the city's motion to bifurcate the trial and determine the legality of the assessment process before it determined the legality of each assessment. Following the first portion of the trial, the court determined that the assessment procedure violated the equal protection clause of the U.S. constitution, the uniformity clause of the state constitution and Minn. Stat. section 429.061, vacated the assessments, and ordered the city council to reassess the properties in accordance with state law. The city appeals from the trial court's judgment.\\nISSUE\\nDid the trial court err in vacating the assessment on constitutional grounds prior to a trial on the issue of the legality of the individual assessments?\\nANALYSIS\\nAt the outset we note the city appealed from a non-appealable order. The trial court entered a judgment after the first portion of the bifurcated trial. Following this appeal, the issue of the specific assessments to each commercial parcel of property still needs to be determined.\\nMinn.R.Civ.App.P. 104.01 allows a party to appeal only from a final judgment. Financial Relations Bd., Inc. v. Pawnee Corp., 308 Minn. 109, 112, 240 N.W.2d 565, 566 (1976). Minn.R.Civ.P. 54.02 provides for the entry of a final judgment as to less than all of the claims in multiparty litigation:\\nWhen multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.\\nHere the court did not make an express determination of no just reason for delay, nor did it expressly direct entry of judgment. The parties and the court intend to finish the trial after this appeal is completed. The judgment is not a final judgment, nor does it comply with the con ditions of Rule 54.02 for entry of a final judgment when fewer than all claims have been adjudicated. See Matter of Commodore Hotel Fire and Explosion, 318 N.W.2d 244 (Minn.1982) (Where issues of liability and damages were bifurcated for trial, determination of liability was a partial adjudication and not appealable.)\\nThe purpose of [rule 54.02] is to prevent piecemeal, multiple appeals arising from a single act and to protect a party from the prejudice that may result from adjudication of less than all of the claims or less than all of the rights and liabilities of all the parties.\\n2A Herr & Haydock, Minnesota Practice, Civil Rules Annotated 8 (1985).\\nEven though nonappealable, in the interest of judicial economy, we grant discretionary review of the trial court's judgment entered following the first portion of the bifurcated trial.\\nFollowing the trial on the general propriety of the assessments, the trial court vacated the assessments. The court stated as a legal conclusion that the assessment method violated the state and federal constitutions and Minn.Stat. \\u00a7 429.061.\\nAppellate courts do not defer to the trial court on reviewing ultimate conclusions of law. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354 (Minn.1978).\\nHere we examine both the trial court's decision to bifurcate the issues as it did and the court's conclusion of law that the assessment was unconstitutional.\\nTrials may be bifurcated where multiple claims or parties exist. A case involves multiple parties whenever more than one plaintiff or one defendant exist. Whether an action involves multiple claims presents a more difficult question. 2A Herr & Haydock, supra, at 8.\\nThis case does present multiple parties, but there is only one real issue, the constitutionality of the assessment. The city's assessment method and the question of whether the individual assessments are in compliance with Minn.Stat. \\u00a7 429.061 are intertwined and meaningful appellate review can only be granted after a complete trial on both questions.\\nHere, the trial court made a final determination on the merits with the portion of the trial on the individual assessments yet to be conducted. The court's conclusion of law and entry of judgment vacating the assessments was premature. We vacate both the conclusion of law and the judgment that the assessments are vacated and remand for completion of the trial. This order is without prejudice to the trial court's need to again consider the constitutional issue at the completion of the trial. This order is also without prejudice to the rights of either party to appeal following a final judgment.\\nDECISION\\nThe trial court prematurely vacated Men-dota's assessment on constitutional grounds.\\nVacated and remanded for completion of the bifurcated trial on the merits of all matters.\"}"
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+"{\"id\": \"10660822\", \"name\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent\", \"name_abbreviation\": \"Marriage of Ricketson v. Ricketson\", \"decision_date\": \"1987-03-17\", \"docket_number\": \"No. C4-86-1200\", \"first_page\": \"588\", \"last_page\": \"591\", \"citations\": \"402 N.W.2d 588\", \"volume\": \"402\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:42:09.902545+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and PARKER and LESLIE, JJ., with oral argument waived.\", \"parties\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent.\", \"head_matter\": \"In re the Marriage of: Michael Raymond RICKETSON, petitioner, Appellant, v. Carol Lynn RICKETSON, Respondent.\\nNo. C4-86-1200.\\nCourt of Appeals of Minnesota.\\nMarch 17, 1987.\\nClyde C. Ahlquist, Roseville, for appellant.\\nRobert J. Monson, St. Paul, for respondent.\\nConsidered and decided by POPOVICH, C.J., and PARKER and LESLIE, JJ., with oral argument waived.\", \"word_count\": \"1395\", \"char_count\": \"8711\", \"text\": \"OPINION\\nLESLIE, Judge.\\nMichael Raymond Ricketson appeals from a judgment increasing his child support obligation. He claims the trial court's decision is not supported by sufficient findings of fact under Moylan v. Moylan, 384 N.W.2d 859 (Minn.1986). We reverse and remand for additional findings.\\nFACTS\\nThe parties' marriage was dissolved on November 26, 1979. Pursuant to the judgment and decree the trial court awarded respondent Carol Lynn Ricketson custody of the parties' two minor children and ordered appellant Michael Raymond Ricket-son to pay child support in the amount of $78.00 per month. The child support was modified after appellant became employed. A March 6, 1980 order excused support arrearages from November 26, 1979 to February 11, 1980 and reset support payments at $54.17 per month until January 1, 1981 after which payments were raised to $86.67 per month.\\nOn September 24, 1984 respondent moved for modification of child support payments. Appellant responded by moving the court to dismiss respondent's motion and award attorneys' fees. Both respondent and appellant filed affidavits in support of their respective positions. No transcript was made, but appellant did prepare a statement of the proceedings pursuant to Minn.R.Civ.App.P. 110.03. The hearing referee was unavailable for evaluation of this statement and it was never approved.\\nThe trial court found that at the time of the original decree respondent was earning $654.59 per month and receiving APDC. The court further found that she is now earning approximately $980.00 net income per month. The court indicated that respondent \\\"originally claimed that her monthly expenses for herself and two children were $848, but later modified the same to $1,392, in that her original statement was based on one-half expenses.\\\" The court additionally found that respondent presently is residing with a person who receives a weekly gross income of $220. With respect to appellant, the court found that at the time of the first modification he was earning $688.00 per month. The court ultimately found:\\n4. That the [appellant] is now employed earning a monthly net income of $1,081. He is living with a woman, with whom he has had two children, since entry of the Decree and former order. The person with whom he is residing has one child and is receiving $412 per month AFDC for that child. He claims that his monthly expenses for himself and the woman with whom he is residing, and three children, total $1,678.\\n5. That there has been substantial increase in the earnings of the [appellant], since entry of the Decree and Amended Order, so as to make the $78 per month unreasonable and unfair within the meaning and purview of M.S. 518.64, Subd. 2.\\n6. That by virtue of the fact that the child support guidelines apply to modification motions when the moving party has shown a change of circumstances [citations omitted] and because looking at the total factual circumstances involved therein, the Court sees no basis upon which to depart either above or below the guidelines, the Court is compelled to follow the guidelines and order 30 percent of $1,081, or $324 per month child support.\\nConsequently on December 10, 1984, the trial court ordered appellant's child support payments raised to $324.00 per month. After appellant's first appeal was dismissed for appealing from a non-appealable order the trial court entered an amended judgment and decree on April 21, 1986. This appeal followed.\\nISSUE\\nIs the trial court's decision supported by adequate findings?\\nANALYSIS\\nA trial court has broad discretion in determining whether or not to grant a motion for modification of child support payments. Quaderer v. Forrest, 387 N.W.2d 453, 455 (Minn.Ct.App.1986). Such a determination will not be reversed by this court unless there has been a clear abuse of discretion that renders the order arbitrary, unreasonable or without evidentiary support. Id. Yet, the supreme court has noted that this discretion is limited by Minn.Stat. \\u00a7 518.64 (1984) which requires a two-step analysis:\\n(1) Do any of the four factors in Minn. Stat. \\u00a7 518.64, subd. 2, alone or in combination, create a substantial change in circumstances warranting a modification of child support?; and (2) if so, after considering the needs of the children and the financial situation of the parties' spouses, what modification should the court make?\\nMoylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986).\\nTo comply with the first step of this analysis the trial court must make findings showing one or more of the following:\\n(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; (3) receipt of assistance under sections 256.-72 to 256.87; or (4) a change in the cost-of-living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair.\\nMinn.Stat. \\u00a7 518.64, subd. 2 (1984). Additionally, the substantial change in circumstances making the terms unreasonable and unfair must have occurred since the last modification of the support obligation. Blomgren v. Blomgren, 386 N.W.2d 378, 380 (Minn.Ct.App.1986).\\nThe trial court here has failed to comply with this first step. The court found that \\\"there has been a substantial increase in the earnings of [appellant], since entry of the Decree and Amended Order, so as to make the $78 per month unreasonable and unfair.\\\" (emphasis added). The court apparently made a finding of unreasonableness and unfairness pursuant to the first of the four factors. In fact, there is authority supporting the court's substantive finding that an appellant's increase in earnings from a monthly income of $688.00 to $1,081, a 57% increase, itself supplies a basis for modification with respect to the substantial change requirement. Neary v. Neary, 366 N.W.2d 369, 371 (Minn.Ct.App.1985) ($5,000 increase over $11,280 was substantial change for increasing child support). Regardless, the trial court looked back to the original decree of November 26, 1979 when it made this determination. The court should have looked to the last modification, the March 6, 1980 order to so determine. To fail to do so is reversible error. Blomgren, 386 N.W.2d at 380.\\nTo comply with the second step required by Moylan the court must make findings demonstrating that it considered the needs of the children and the financial situation of the parties' spouses. Moylan, 384 N.W.2d at 864. The spouses' income should have been considered here, as the support order was entered before August 1, 1986. See Minn.Stat. \\u00a7 518.64, subd. 2 (1986).\\nThe trial court failed to comply with this step by failing to make any finding concerning the needs of the parties' children. Without such a finding we are unable to determine whether the trial court considered this statutorily required factor.\\nMoylan requires that in all child support cases not involving public assistance, the trial court must make specific findings of fact as to the factors it considered in formulating the award. Moylan, 384 N.W.2d at 863. The factors that must be considered are enunciated in Minn.Stat. \\u00a7 518.-17, subd. 4 (1984):\\n(a) The financial resources and needs of the child;\\n(b) The financial resources and needs of the custodial parent;\\n(c) The standard of living the child would have enjoyed had the marriage not been dissolved;\\n(d) The physical and emotional condition of the child, and his educational needs; and\\n(e) The financial resources and needs of the noncustodial parent.\\nBecause Moylan was released after the trial court's decision, the trial court also failed to make these mandated findings. The trial court merely found that there had been a substantial increase in appellant's earnings. Specifically, the trial court has failed to make any finding with respect to the financial resources and needs of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and the child's emotional needs. While there is evidence within the record upon which these determinations could have been made, the record fails to establish that such factors were considered.\\nDECISION\\nThe trial court failed to make all the statutorily required findings for modification of child support payments.\\nReversed and remanded.\"}"
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+"{\"id\": \"10660869\", \"name\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant\", \"name_abbreviation\": \"State v. Coe\", \"decision_date\": \"1987-04-21\", \"docket_number\": \"No. C5-87-79\", \"first_page\": \"844\", \"last_page\": \"847\", \"citations\": \"404 N.W.2d 844\", \"volume\": \"404\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:25:52.629682+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FORSBERG, P.J., and RANDALL and STONE, JJ.\", \"parties\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Ronald T. COE, Appellant.\\nNo. C5-87-79.\\nCourt of Appeals of Minnesota.\\nApril 21, 1987.\\nReview Granted June 25, 1987.\\nHubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, J. Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.\\nC. Paul Jones, State Public Defender, Mark F. Anderson, Asst. State Public Defender, University of Minnesota, Minneapolis, for appellant.\\nConsidered and decided by FORSBERG, P.J., and RANDALL and STONE, JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. 6, \\u00a7 2.\", \"word_count\": \"1687\", \"char_count\": \"10479\", \"text\": \"OPINION\\nSTONE, Judge.\\nRonald Thomas Coe was convicted of two counts of first degree burglary and one count of attempted criminal sexual conduct in the third degree following a jury trial. He was sentenced in October 1986 to a 30 month prison term for one of the burglary convictions. Coe, a repeat sex offender, also received a concurrent 90 month sentence for the attempted criminal sexual conduct conviction, an increase of two and one-half times the presumptive sentence of 36 months. He appeals from this latter sentence on the grounds that it is greater than the statutory maximum sentence allowed for the offense and seeks a reduction of the sentence to 60 months. We affirm as modified.\\nFACTS\\nAppellant Ronald Thomas Coe was convicted by a jury of:\\n1. First degree burglary of an occupied dwelling in violation of Minn.Stat. \\u00a7 609.582, subd. 1(a) (1984) (Count I).\\n2. First degree burglary with an assault in violation of Minn.Stat. \\u00a7 609.582, subd. 1(c) (1984) (Count II).\\n3. Attempted criminal sexual conduct in the third degree in violation of Minn. Stat. \\u00a7 609.344, subd. 2 (Supp.1985), with reference to Minn.Stat. \\u00a7 609.17 (1984) (Count III).\\nCoe is a repeat sex offender with a criminal history score of 2, and has unsuccessfully participated in five separate treatment programs in the previous years. Before sentencing, the State moved the trial court for an upward durational departure on Count II to 88 months (based upon a maximum presumptive sentence of 44 months). In the alternative, the State requested that Counts II and III be executed consecutively for an aggregate sentence of 80 months. The trial court sentenced Coe to a presumptive 30 month sentence for his conviction under Count I. The remaining burglary conviction under Count II was merged. For the attempted third degree criminal sexual conduct conviction, the trial court imposed a concurrent 90 month sentence, two and one half times the presumptive sentence of 36 months. The durational departure was based upon the trial court's assessment that Coe was not amenable to treatment and likely to repeat this type of offense, the fact that the offense involved an invasion of the victim's zone of privacy and the fact that the victim sustained injuries as a result of the attempted assault. In imposing sentence, the court commented:\\nThe record should further indicate that this appears to be a case where the Sentencing Guidelines have not taken into consideration the facts of this particular case and that it is the Court's feeling the sentence should be much longer.\\nMr. Coe, it is clear to the Court that at least from your past record that treatment is no longer a viable option and that at least one psychologist and maybe two have come to the conclusion that when you are released from prison that you will be back doing the same things that brought you before this Court.\\n\\u215d H * \\u215d\\nSo the record is clear for any future use, it is this Court's opinion that you should be incarcerated for a much longer period of time and it is questionable that you should ever be released from either prison or an institution.\\nAnd if it wasn't for the Sentencing Guidelines, I would fashion a sentence that would accomplish that purpose.\\nISSUES\\n1. Is appellant entitled to a reduction of his 90 month sentence for attempted third degree sexual conduct to the statutory maximum sentence of 60 months?\\n2. If a reduction in the attempted third degree sexual conduct sentence is mandated, may the matter be remanded for resen-tencing on the first degree burglary convictions to reflect an increase to the statutory maximum sentence allowed?\\nANALYSIS\\n1. The sentencing scheme available to the trial court following the jury's verdict consisted of the following:\\nCOUNTS STATU- PRESUMP-TORY TIVE MAXIMUM SENTENCE ACTUAL SENTENCE IMPOSED\\nI. First degree burglary of an occupied dwelling in violation of Minn.Stat. \\u00a7 609.582, subd. 1(a). (Severity VI) 20 years 30 months 30 month concurrent\\nII. First degree burglary with an assault in violation of Minn.Stat. \\u00a7 609.582, subd. 1(c). (Severity VII) 20 years 41 months executed (range 38-44 months) No sentence (merged)\\nIII. Attempted criminal sexual conduct in the third degree in violation of Minn.Stat. \\u00a7 609.344, subd. 2. (Severity VII) 5 years' 36 months * 90 months\\nCoe acknowledges the existence of aggravating circumstances in this case and does not challenge the upward departure on the attempted criminal sexual conduct conviction from 36 to 60 months. See, e.g., State v. Morales, 324 N.W.2d 374 (Minn.1982) (departure from the presumptive sentence for criminal sexual conduct conviction upheld when assault with a dangerous weapon occurred in the victim's backyard, invading her zone of privacy, and caused the victim fear of great bodily harm); State v. Eberhardt, 379 N.W.2d 242, 246 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Feb. 19, 1986) (although the trial court erred in assigning a 95 month presumptive sentence for defendant's criminal sexual conduct conviction, the court did not err in assigning a double durational departure when the assault occurred in the victim's home and in the presence of her minor child).\\nRecently, in State v. Mortland, 399 N.W.2d 92 (Minn.1987), the supreme court held that when severe aggravating circumstances are present, the only absolute limit on sentence duration for the offense is that provided by the legislature in defining the offense. Thus, even when severe aggravating circumstances are present, the maximum sentence that could be imposed for the offense of attempted criminal sexual conduct would be 60 months. The trial court in this case therefore erred in imposing \\u00e1 sentence greater than the statutory maximum, and Coe is entitled to a reduction of sentence to 60 months. See State v. Perkins, 353 N.W.2d 557, 562 (Minn.1984) (trial court erred in imposing a sentence for assault in the second degree greater than the statutory maximum of five years); State v. Skerjance, 397 N.W.2d 602, 604 (Minn.Ct.App.1986) (trial court erred in imposing a 36 month sentence when the statu tory maximum for attempted assault in the second degree was 30 months).\\n2. Although the State essentially concedes that Coe is entitled to a reduction in sentence to 60 months for the attempted criminal sexual conduct conviction, it nevertheless argues that the sentence should be vacated and remanded for the purpose of increasing Coe's concurrent burglary sentence. In short, the State asserts that since it originally proposed a double departure of the 44 month presumptive sentence on Count II to 88 months and since the trial court intended to impose the maximum sentence available, the matter should now be remanded for resentencing to reflect a sentence consistent with the trial court's intentions. We disagree.\\nIn Walker v. State, 394 N.W.2d 192 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Nov. 26, 1986), this court held that a remand for resentencing was mandated, but cautioned that upon remand \\\"the trial court is limited to the sentence originally imposed and may not 'increase the penalty for any of the offenses on which it will sentence [the defendant].' \\\" Id. at 200 (quoting State v. Prudhomme, 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975)) (emphasis supplied). See State v. Holmes, 281 Minn. 294, 298, 161 N.W.2d 650, 653 (1968) (\\\"any increase in penalty upon a retrial inevitably discourages a convicted defendant from exercising his legal rights and is contrary to public policy.\\\") See also State v. Carver, 390 N.W.2d 431, 435 (Minn.Ct.App.1986). A remand for resentencing on the burglary convictions in excess of 30 months concurrent, the sentence originally imposed, would constitute an impermissible increase in penalty in this case.\\nAlthough it was neither briefed nor argued, State v. Rohda, 358 N.W.2d 39 (Minn.1984) is the authority closest to furnishing support for the State's requested removal and resentencing. In Rohda the trial court had sentenced the defendant to consecutive terms of 76 and 15 months, stating that it decided to \\\"follow the Guidelines.\\\" Id. at 41. However, the guidelines did not authorize consecutive sentences absent aggravating circumstances. The Supreme Court remanded for re-sentencing, and authorized the trial court to depart by imposing a concurrent sentence of up to but not more than 91 months.\\nThe instant case is unlike Rohda. Here, Coe's sentence of 90 months was more than a guidelines violation, it was statutorily invalid to the extent that it exceeded 60 months. After five years Coe would have been released on habeas corpus. Hence any sentence in excess of 60 months would be an enhancement of penalty by reason of Coe's appeal, and is precluded by Walker, Prudhomme, and Holmes.\\nDECISION\\nAppellant's sentence for attempted criminal sexual conduct in the third degree is reduced to 60 months.\\nAffirmed as modified.\\nSee Minn.Stat. \\u00a7 609.344, subd. 2 (Supp.1985); Minn.Stat. \\u00a7 609.17 (1984).\\nMandatory minimum sentence pursuant to Minn.Stat. \\u00a7 609.346 (Supp.1985) (persons convicted of a second or subsequent offense \\u2014 including attempts \\u2014 under sections 609.342 to 609.345 shall be committed for a prison term of not less than three years).\\n. In addition to Coe's status as a repeat sex offender and the existence of aggravating circumstances, the trial court here also considered his unamenability to treatment as a basis for durational departure. Generally, unamenability to rehabilitation, while a consideration for dis-positional departure, should not be used to determine whether to depart durationally. State v. Johnson, 327 N.W.2d 580, 583 (Minn.1982).\\n. The State's reliance on State v. Nunn, 399 N.W.2d 193, 198 (Minn.Ct.App.1987), pet. for rev. denied, (Minn. Mar. 13, 1987), is misplaced since that case, unlike the present case, involved multiple victims.\"}"
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+"{\"id\": \"10661604\", \"name\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent\", \"name_abbreviation\": \"Minnesota Life & Health Insurance Guaranty Ass'n v. Department of Commerce\", \"decision_date\": \"1987-02-17\", \"docket_number\": \"No. C5-86-1464\", \"first_page\": \"769\", \"last_page\": \"775\", \"citations\": \"400 N.W.2d 769\", \"volume\": \"400\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:20:17.724213+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by RANDALL, P.J., and FOLEY and WOZNIAK, JJ.\", \"parties\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent.\", \"head_matter\": \"MINNESOTA LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATION, Relator, v. DEPARTMENT OF COMMERCE, Respondent.\\nNo. C5-86-1464.\\nCourt of Appeals of Minnesota.\\nFeb. 17, 1987.\\nFrank J. Walz, Best & Flanagan, Minneapolis, for relator.\\nHubert H. Humphrey III, Atty. Gen., Jerome L. Getz, Allen I. Gilbert, Sp. Asst. Attys. Gen., St. Paul, for respondent.\\nChristopher J. Dietzen, John E. Diehl, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, for John Alden Life Ins. Co. and Sun Life Ins. Co. of America.\\nTimothy R. Thornton, Thomas J. Voll-brecht, Hart, Bruner, O\\u2019Brien & Thornton, Minneapolis, for IDS Life Ins. Co. and Midwest Life Ins. Co.\\nDepartment of Commerce, St. Paul, pro se.\\nCarl W. Cummins, Jr., Dorsey & Whitney, St. Paul, for Manufacturers Life Ins. Co.\\nHeard, considered, and decided by RANDALL, P.J., and FOLEY and WOZNIAK, JJ.\", \"word_count\": \"3326\", \"char_count\": \"21932\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nThe Minnesota Life and Health Insurance Guaranty Association appeals from a decision of the Commissioner of Commerce determining the assessment base for Association member insurers. The Association contends that the Commissioner erred in: (1) broadly defining annuity contract under Minn.Stat. \\u00a7 61B.03, subd. 3 (1984); (2) determining unallocated annuities are contracts \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02, subd. 1; and (3) ordering recalculation of the assessments of all Association member insurers. We affirm.\\nFACTS\\nAppellant Minnesota Life and Health Insurance Guaranty Association (Association) is a nonprofit organization created under the Insurance Guaranty Association Act, Chapter 61B. All insurers in Minnesota dealing in life, health, and annuity contracts are Association members. The Act is designed to protect policyholders, insureds, beneficiaries, and others against insurance company failures. The Association was created to guarantee benefit payments and coverage continuation for Minnesota residents. Association members are assessed to make the payments to insureds. Assessments are limited to 2% yearly of an insurer's premiums covered by a particular account, such as an annuity account.\\nThe Department of Commerce found that Minnesota's Insurance Guaranty Association Act, adopted in 1977, was patterned after a national Model Act. However, the Minnesota Act contains a definition of \\\"annuity contracts,\\\" the major issue of this appeal, which is not contained in the Model Act.\\nThis action stems from a recent assessment of Association insurers due to the bankruptcy of Baldwin-United and its subsidiaries, University Life Insurance Company of Indiana and National Investors Insurance Company of Arkansas. Cincinnati-based Baldwin-United filed for bankruptcy in 1983, shortly after its subsidiaries were placed into rehabilitation in their home states. Before Baldwin-United's failure, over 2,700 single premium deferred annuities (SPDAs) were purchased by Minnesota residents. Under an SPDA policy, the policyholder pays a lump sum to the company, which establishes an interest-earning account. At a fixed time, the policyholder may withdraw the accumulated funds or elect one of the contract's annuity payout options.\\nIn November 1983, the Commissioner found that the companies were unable to meet their obligations to policyholders and were \\\"impaired insurers\\\" under the Act. In January 1984 the Commissioner sued the Association to force it to assess member insurers to cover payments due Minnesota policyholders. The parties entered into a stipulation in May 1985 to assume or guarantee the obligation of the two insurance subsidiaries under the SPDAs issued to Minnesota residents. The stipulation provides that on November 1, 1987, the Association will reimburse Minnesota residents the difference between whatever an insured had received with respect to the SPDA from whatever source, and the policy value of the SPDA on May 1, 1984.\\nTo meet this obligation, the Association agreed to assess its members based on a percentage of the dollar amount of annuity contracts they write. The Association excluded certain types of annuity contracts from the assessment base, specifically those not issued to or owned by a named individual. The unallocated annuity contracts excluded by the Association include guaranteed investment contracts (GICs) and deposit administration contracts (DACs). GICs and DACs, issued primarily under pension fund and profit sharing plans, provide for payment of funds to the insurer by an employer or other policyholder at a specific interest rate for a fixed term. The policyholder cannot withdraw the funds before the end of the term except to adjust for a prevailing interest rate change or to begin annuity payments for plan participants.\\nThe Association determined that the definition of annuity in Minn.Stat. \\u00a7 61B.03 put GICs and DACs outside the Act's coverage, thus removing them from the assessment base. Minnesota Statute Section 61B.03, subdivision 3 states:\\n\\\"Annuity contracts\\\" means contracts subject to Chapter 61A wherein the poli-cyowner agrees to make payments to the insurer at the beginning of the contract period and the insurer agrees to make payments thereafter to the insured for a specified period of time or until the insured's death.\\nThe stipulation between the State and the Association requires a $6 million assessment from member insurers. The Association's board of directors' resolution sets the assessment base as:\\nAll premiums or considerations received by such members from the sale in Minnesota during the calendar year 1982 of annuity contract or annuity certificates, except premiums or considerations arising from any annuity contract or any annuity certificate issued under a group annuity contract which was not issued to or owned by an individual, except to the extent of any annuity benefits guaranteed to any such individual by the insurer under any such annuity contract or certificate.\\n(Emphasis added.)\\nAfter excluding GICs and DACs, the assessment was based on $389 million in premiums. If GICs and DACs were included in the base, an additional $252 million in annuity premiums would have been included, bringing the assessment base to $641 million. This dispute involves the question of whether the GICs and DACs should be included in the assessment base.\\nRespondent insurers appealed the assessment base to the Commissioner of Commerce, objecting to the exclusion of GICs and DACs. A contested case hearing was held before an administrative law judge (AU) whose proposed findings recommended that the Association reassess all member insurers and include unallocated annuities in the assessment base. The AU determined that exclusion of the unallocated annuities would deprive many Minnesota insureds of the Act's protection, while improperly reducing the assessment base. He noted that a major insolvency would substantially increase the time it would take to protect Minnesota consumers.\\nBoth oral testimony and documentary evidence were presented at the administrative hearing. John Ingassia, supervisor of the life and health section of the Department of Commerce, testifying for informational purposes, said the department was taking a neutral position with respect to inclusion of DACs and GICs into the Act's coverage. He explained that unallocated annuities are regulated by the Commerce Department in the same manner as all other annuities and noted that GICs and DACs are not specifically excluded from the Act's coverage. He also pointed out that GIC contracts include an annuity option. Richard O'Brien, vice president and assistant general counsel for IDS Financial Services, testified that the board's narrow assessment base means that IDS bears a disproportionate share of the assessments. He claims that the Baldwin-United annuities sold to Minnesotans were basically GIC contracts and that GICs are considered annuities by the Internal Revenue Service and for general insurance law purposes.\\nRoyce Sanner, Vice President and General Counsel for Northwestern National Life Insurance and a member of the Association's board of directors, explained that the distinction between covered and noncov-ered annuity contracts is the absence of the provision identifying the persons who would become annuitants in the noncovered contracts. He explained the board interpreted the statute to require narrow coverage in the belief that, \\\"It's better to protect individual John Does than to protect large, sophisticated pension plan buyers.\\\" San-ner admitted that his company sells DACs and GICs and that $32 million in premiums were excluded under the board's interpretation. He said nearly all other board members also benefit from this interpretation.\\nSanner agrees that GICs and DACs are considered annuities under Minn.Stat. \\u00a7 61A, but disputes whether they are annuities under Chapter 61B due to the definition of annuity contract contained in the Minnesota Act. Respondents claim there is no difference.\\nThe Association disagreed with the AU's findings. In July 1986, the Commissioner's findings, conclusions and order determined that GICs and DACs and other unallocated annuity contracts are covered under the Act as contracts \\\"supplemental to\\\" annuity contracts or, alternatively, \\\"annuity contracts.\\\" The order invalidated the Association's assessment and required a new assessment of all insurers. The Association then appealed by writ of certiorari.\\nISSUES\\n1. Did the Commissioner of Commerce err in determining GICs, DACs, and other unallocated annuities are covered policies under the Minnesota Insurance Guaranty Association Act?\\n2. Did the Commissioner err in determining GICs and DACs were \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02, subd. 1?\\n3. Did the Commissioner err in ordering recalculation of the assessments of all member insurers?\\nANALYSIS\\n1.Scope of Review\\nMinnesota Statutes Sections 14.63-14.69 (1986) govern judicial review of an agency decision.\\nIn a judicial review under sections 14.-63 to 14.68, the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusions, or decisions are:\\n(a) In violation of constitutional provisions; or\\n(b) In excess of the statutory authority or jurisdiction of the agency; or\\n(c) Made upon unlawful procedure; or\\n(d) Affected by other error of law; or\\n(e) Unsupported by substantial evidence in view of the entire record as submitted; or\\n(f) Arbitrary or capricious.\\nMinn.Stat. \\u00a7 14.69.\\nAgency decisions enjoy a presumption of correctness. Crookston Cattle Co. v. Minnesota Department of Natural Resources, 300 N.W.2d 769, 777 (Minn.1980). Courts should afford special deference to an agency's expertise, knowledge, education, and experience in the field of its technical training. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977).\\nThe agency's factual findings are to be reviewed under the substantial evidence test. Peoples Natural Gas Co. v. Minnesota Public Utilities Commission, 342 N.W.2d 348, 351 (Minn.Ct.App.1983), pet. for rev. denied (Minn. April 24, 1984). Substantial evidence is:\\n1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;\\n2. More than a scintilla of evidence;\\n3. More than \\\"some evidence\\\";\\n4. More than \\\"any evidence\\\"; and\\n5. Evidence considered in its entirety.\\nReserve Mining Co., 256 N.W.2d at 825.\\nThe reviewing court should use this test to evaluate the evidence considering the entire record, and affirm if the agency decision is lawful and reasonable. See id. at 826-27.\\nHere, the Association argues the Commissioner erroneously interpreted the Act by incorrectly defining \\\"annuity contracts\\\" and contracts \\\"supplemental to\\\" annuity contracts. The Association also claims the Commissioner exceeded his authority under the Act by invalidating the assessment as applied to the 250 insurers who did not appeal.\\n2. The Association contends the Commissioner erroneously determined that GICs and DACs are. covered contracts pursuant to the definition of annuity contracts contained in Minn.Stat. \\u00a7 61B.03, subd. 3. It argues that deference to agency expertise is inappropriate in a case of first impression such as this. On the other hand, respondents, John Alden Life Insurance and Sun Life, urge the court to accord even greater deference to the agency's decision.\\nIn urging courts to defer to an agency's skill and technical expertise, this court stated:\\nWhere evidence is conflicting or more than one inference may be drawn from the evidence, findings of the hearing examiner must be upheld.\\nIn re Kern Grain Co., 369 N.W.2d 565, 569 (Minn.Ct.App.1985), pet. for rev. denied (Minn. August 29, 1985). We believe the principle is the same for matters not subject to prior judicial construction.\\nIn a case of first impression involving interpretation of a statute subject to two reasonable interpretations, the supreme court noted:\\n[A] statute is to be construed according to the legislative intent, which is to be sought in the language used, in light of the subject matter, the purpose of the statute, the occasion and necessity for the law, and the consequences of a particular interpretation.\\nState v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (quoting Grudnosky v. Bislow, 251 Minn. 496, 498, 88 N.W.2d 847, 850 (1958)). The legislature directed the provisions of the Insurance Guaranty Association Act apply to\\ndirect life insurance policies, health insurance policies, annuity contracts, and contracts supplemental to life and health insurance policies or annuity contracts, issued by persons authorized at any time to transact insurance in this state.\\nMinn.Stat. \\u00a7 61B.02, subd. 1. The defined purpose of the Act is\\nto protect policyowners, death benefit certificate holders, insureds, beneficiaries, annuitants, payees, and assignees of life insurance policies, health insurance policies, annuity contracts, and supplemental contracts .\\nId., subd. 2. The legislature provided that the Act is to be liberally construed to meet its purposes and that the fundamental consumer protection policy shall aid in interpreting the Act. Id., subd. 3. Therefore, we need not speculate about the Act's purpose. It is to protect the future financial stability of individuals.\\nThe Insurance Guaranty Association Act is protective and remedial legislation. In general,\\na liberal construction is usually accorded statutes which are regarded by courts as humanitarian or which are grounded on a humane public policy. Where there are disqualifying provisions, the exceptions should be narrowly construed.\\nNordling v. Ford Motor Co., 231 Minn. 68, 76-77, 42 N.W.2d 576, 581-82 (1950) (citations omitted). Minnesota Statutes Section 61B.02, subdivision 1(a) through (e) identifies five types of policies which are excluded from coverage under the Act. Unallocated annuity policies such as GICs and DACs are not mentioned. To construe the statute to exclude GICs and DACs from coverage would be to broadly interpret the exclusionary clauses.\\nUnder Minn.Stat. \\u00a7 645.08 (1986), words are to be construed \\\"according to their common and approved usage\\\" unless they have acquired some special meaning. All parties to this action seem to agree that, without the narrow or unusual definition of annuity contract contained in the statute, such unallocated annuities would be covered and thus included in the assessment base.\\nTestimony at the administrative hearing did not show that the term \\\"annuity contract\\\" has been accorded any special meaning. Further, the purpose of judicially construing any statute is to determine the intent of the legislature. Minn.Stat. \\u00a7 645.16. In ascertaining legislative intent, we may consider other statutes concerning the same subject matter. E.g., County of Hennepin v. County of Houston, 229 Minn. 418, 420-22, 39 N.W.2d 858, 859-60 (1949); In re Estate of Messerschmidt, 352 N.W.2d 774, 776-77 (Minn.Ct.App.1984).\\nMinnesota Statutes Sections 61A.01-61A.52 (1986) deal with the insurance industry and annuity contracts in the context of life insurance industry. At the administrative hearing, most of the witnesses testified that GICs and DACs would be considered annuity contracts under Chapter 61A.\\nIt is well-settled that where evidence is conflicting or more than one inference may be drawn from the evidence, the hearing examiners findings must be upheld. In re Kern Grain Co., 369 N.W.2d at 569. In this case, the Commissioner of Commerce, as well as the administrative law judge, determined that the Association erred in eliminating the unallocated annuities from the assessment base. The record presents an adequate basis for the Commissioner's decision.\\nThroughout the administrative hearing, the parties complained about the ambiguous wording of the statute. \\\"When the meaning of a statute is doubtful, courts should give great weight to a construction placed upon it by the department charged with its administration.\\\" Krumm v. R.A. Nadeau Co., 276 N.W.2d 641, 644 (Minn.1979). The applicable case law and rules of statutory construction favor the Commissioner's decision to afford GICs and DACs coverage under the Act.\\nThe $6 million assessment levied is far in excess of the projected liability of $290,000 to Minnesota policyholders on November 1, 1987. The Association argues that, since the direct impact of this case on Minnesota policyholders is minimal and no Minnesota policyholders are in jeopardy, the court should adopt the Association's interpretation of the statute and seek legislative amendment to the Act to specifically include unallocated annuities. However, this argument ignores the public policy implication of the decision. An insurer selling GICs and DACs to pension funds could find itself in financial trouble before the legislature could act. We find that it is clear the legislature intended that those who place their money in pension funds be protected.\\n3. The Association argues that the Commissioner erred when he determined that GICs and DACs were \\\"supplemental to\\\" annuity contracts under Minn.Stat. \\u00a7 61B.02., subd. 1. Although the Commissioner primarily based his decision on the premise that GICs and DACs are supplemental to annuity contracts, a finding not proposed by the ALJ, the Commissioner alternatively adopted the AU's recommended findings that GICs and DACs are annuity contracts within the meaning of the statute.\\nWe believe the Association correctly contends that GICs and DACs are not \\\"supplemental to\\\" anything. Evidence at the hearing shows the annuity option contained in such contracts is one possibility of the GIC or DAC. For example, if the pension fund trustee decided to exercise an annuity option contained in a DAC or GIC, the trustee would then enter into a supplemental contract. However, since there is sufficient evidence to uphold the Commissioner's decision based on direct coverage of DACs and GICs as annuity contracts, we will not address this question in detail.\\n4. The Association finally contends that if this court determines the assessment was computed on an improper base, only the assessments of the Association members appealing from their assessments should be recalculated. The AU concluded that since the assessment was wrongfully computed, it is void and must be recalculat ed for all Association member insurers. The Commissioner adopted the AU conclusion in his decision. The Association takes the position that the assessment is only voidable.\\nThe Association was formed as a mechanism for assessing its member insurers. Minnesota Statutes Section 61B.07, subdivision 3(b) provides:\\n[Assessments against member insurers for each account shall be in the proportion that the premiums received on business in this state by each assessed member insurer on policies covered by each account bear to premiums received on business in this state by all assessed member insurers.\\nIn Minnesota Farmers Mutual Insurance Co. v. Landkammer, 126 Minn. 245, 247, 148 N.W. 305, 306 (1914), the court held that where legislation requires a uniform, pro rata assessment, a nonuniform assessment cannot be sustained.\\nPast practices in Minnesota support the Commissioner's order for recalculation. When courts modify a power company consumer rate increase, refunds are given to all power purchasers, not just to parties appealing. More on point would be an appeal by commercial power purchasers from a major utility company. If rates are reduced, realigned, etc., the new rate is applied to all members of the power class, not just those appealing the decision.\\nThe Association argues that if this court affirms the Commissioner's decision, it will be placed in an \\\"intolerable administrative position\\\" because it will be required to return the promissory notes and cash paid by about 250 members, as well as levy a new assessment. We do not accept the Association's argument. Requiring some of the Association's insurers to bear a disproportionate amount of the burden would violate the statutory mandate. Finally, if this court adopts the Association's position, those companies who would have to pay a greater share under the Commissioner's interpretation would not have their assessments subject to recalculation.\\nDECISION\\nThe record supports the decision of the Commissioner of Commerce determining that GICs and DACs are covered annuities under Minn.Stat. \\u00a7 61B.03, subd. 3 (1984). We affirm and direct the Minnesota Life and Health Insurance Guaranty Association to recalculate assessments for all member insurers consistent with this opinion.\\nAffirmed.\\n. Seven members of the nine member board of directors of the Guaranty Association represent companies which benefit financially from the board's interpretation of the statute. We believe this represents a serious conflict of interest and call the legislature's attention to such conflicts in the assessment procedure.\"}"
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+"{\"id\": \"10663655\", \"name\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant\", \"name_abbreviation\": \"Gernes v. Commissioner of Public Safety\", \"decision_date\": \"1988-11-15\", \"docket_number\": \"No. C9-88-1066\", \"first_page\": \"267\", \"last_page\": \"269\", \"citations\": \"431 N.W.2d 267\", \"volume\": \"431\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:47:36.334051+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by PARKER, P.J., and RANDALL and BOWEN, JJ.\", \"parties\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.\", \"head_matter\": \"Gregory John GERNES, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.\\nNo. C9-88-1066.\\nCourt of Appeals of Minnesota.\\nNov. 15, 1988.\\nSteven R. Peloquin, Streater, Murphy, Gernander & Forsythe, Winona, for respondent.\\nHubert H. Humphrey, III, Atty. Gen., Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for appellant.\\nHeard, considered and decided by PARKER, P.J., and RANDALL and BOWEN, JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 2.\", \"word_count\": \"674\", \"char_count\": \"4138\", \"text\": \"OPINION\\nPARKER, Judge.\\nRespondent Gregory Gernes was arrested for driving while under the influence and refused to submit to breath testing. His license was revoked for one year and he petitioned for judicial review. The trial court ordered the period of revocation reduced to 30 days. The Commissioner of Public Safety appeals. Gernes advised the court that he would not appear by written or oral argument, and this matter proceeds pursuant to Minn.R.Civ.App.P. 142.03.\\nFACTS\\nGernes was arrested for DWI on February 1, 1988. He did not provide a breath sample to determine his alcohol concentration. At the time of his arrest, he gave no indication of any intention to enter a guilty plea to the DWI charge or to any other charge. Gernes' driver's license was revoked for refusal pursuant to the implied consent law.\\nAt the time of the implied consent hearing, Gernes had not been charged with DWI, but was charged with felony possession of a controlled substance. Minn.Stat. \\u00a7 152.09 (1986). He entered a plea of guilty to this charge at his first opportunity. Had Gernes been charged with DWI and pled guilty to that charge at the first opportunity, he would normally have been subjected to a driver's license revocation for only 30 days, as a first-time DWI offender, pursuant to a policy adopted by the Commissioner of Public Safety.\\nThe trial court concluded that Gernes was entitled to the benefit of the procedure that a first-time DWI offender would receive. It ordered the period of revocation reduced to 30 days. The Commissioner of Public Safety appeals.\\nISSUE\\nIn a proceeding under Minn.Stat. \\u00a7 169.123, subd. 6 (1986), may the trial court order the driver's one-year revocation for refusal reduced to 30 days upon a plea of guilty to a non-traffic offense which does not appear on the driving record and does not result in any driver licensing action?\\nDISCUSSION\\nThe Commissioner has a policy of revoking for 30 days the driver's license of those who plead guilty to or are convicted of their first DWI offense. The trial court here shortened the period of revocation of Gernes' driver's license from one year for refusal, Minn.Stat. \\u00a7 169.123, subd. 4 (1986), to 30 days. It reasoned that had Gernes been charged with and pled guilty to DWI at the first available opportunity, he would have been subjected to a driver's license revocation for only 30 days as a first-time DWI offender. Because Gernes was not given the opportunity to address the DWI charge, the trial court determined he was entitled to the benefit of the Commissioner's procedure for a first-time DWI offender.\\nThe implied consent law authorizes the court, after a hearing on a driver's petition for judicial review, either to sustain or to rescind the revocation. Minn.Stat. \\u00a7 169.123, subd. 6; see Godderz v. Com missioner of Public Safety, 369 N.W.2d 606, 608 (Minn.Ct.App.1985). The trial court was without authority to reduce the period of revocation. Further, Gernes was not convicted of a first-time DWI offense, which would have brought him within the purview of the Commissioner's policy. Conviction of possession of a controlled substance pursuant to Minn.Stat. \\u00a7 152.09 (1986) does not affect Gernes' driving record or his implied consent revocation. The trial court improperly reduced the length of Gernes' revocation.\\nIn view of the disposition of this issue, it is unnecessary to address the other issue raised by the Commissioner.\\nDECISION\\nThe trial court's order reducing the length of respondent's revocation period is reversed, and the Commissioner's order revoking respondent's driver's license for one year is reinstated.\\nREVERSED.\"}"
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+"{\"id\": \"10664750\", \"name\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent\", \"name_abbreviation\": \"Purnell v. Commisioner of Public Safety\", \"decision_date\": \"1987-08-18\", \"docket_number\": \"No. C3-87-565\", \"first_page\": \"439\", \"last_page\": \"441\", \"citations\": \"410 N.W.2d 439\", \"volume\": \"410\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:20:25.833798+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered and decided by CRIPPEN, P.J., and LESLIE and LOMMEN , JJ.\", \"parties\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent.\", \"head_matter\": \"Anderson PURNELL, Petitioner, Appellant, v. COMMISSIONER OP PUBLIC SAFETY, Respondent.\\nNo. C3-87-565.\\nCourt of Appeals of Minnesota.\\nAug. 18, 1987.\\nTrygve A. Egge, Arden Hills, for appellant.\\nHubert H. Humphrey, III, Atty. Gen., Joel A. Watne, Spec. Asst. Atty. Gen., St. Paul, for respondent.\\nHeard, considered and decided by CRIPPEN, P.J., and LESLIE and LOMMEN , JJ.\\nActing as judge of the Court of Appeals by appointment pursuant to Minn. Const, art. 6, \\u00a7 2.\", \"word_count\": \"1182\", \"char_count\": \"7161\", \"text\": \"OPINION\\nLESLIE, Judge.\\nAppellant Anderson Purnell was arrested for driving while under the influence of alcohol and his license was revoked for an implied consent violation. He petitioned for judicial review, contesting the validity of the stop and arguing that the officer did not have probable cause to believe he was driving while under the influence of alcohol. The trial court sustained the revocation, and Purnell appeals.\\nFACTS\\nAt approximately 5:10 a.m. on Sunday, December 28, 1986, a taxi cab driver flagged down a St. Paul police officer to inform him he had just seen a black man beating a black woman on a nearby street. The officer knew the address had a history of problems calling for police attention in the past.\\nThe officer immediately drove to the reported location, about six or seven blocks away, and arrived within two minutes. As he drove around the nearest corner to that address, he saw no one in the immediate vicinity, but saw a black pickup truck pulling away rapidly from the curb. Although he did not see the occupants and did not know whether they were black, the officer signaled the pickup truck to stop, \\\"suspecting\\\" the pickup might contain either persons involved in the reported assault, or possible witnesses to the assault.\\nThe driver, appellant Anderson Purnell, had an odor of alcohol on his breath. His speech was fast, mumbled and slurred, and his balance was poor and unstable. The officer also observed appellant's eyes were bloodshot. The officer conducted several field sobriety tests on appellant. Appellant failed them all.\\nThe officer determined appellant had been driving while under the influence of alcohol and placed him under arrest. Appellant's license was revoked for an implied consent violation, and he petitioned for judicial review. The only issues were whether the stop was valid and whether the officer had probable cause to believe that appellant was under the influence of alcohol. The trial court determined the stop was valid and that the officer had probable cause. Appellant Purnell appeals from the trial court's order.\\nISSUES\\n1. Did the police officer make a valid stop of appellant's pickup truck?\\n2. Did the police officer have probable cause to believe appellant had been driving while under the influence of alcohol?\\nANALYSIS\\nI.\\nAppellant challenges the validity of the stop of his vehicle contending the officer did not have reasonable and articulable grounds to make the stop. We disagree, finding Appelgate v. Commissioner of Public Safety, 402 N.W.2d 106 (Minn.1987) controlling.\\nIn Appelgate, an officer received a report at 2:25 a.m. of a burglary in progress at a large apartment complex. He immediately drove to the location and observed a vehicle coming from the complex within a few minutes of the report, at a time of day when there was \\\"very little if any\\\" traffic. The officer believed the driver probably saw him in his marked squad car. The driver made two prolonged stops at intersections. Id. at 107-08. Despite the fact that the officer had no description of the burglar or the get-away car, the supreme court upheld the stop and stated:\\nIn such a situation \\\"the police must have some authority to freeze the situation.\\\" Indeed, \\\"[e]ven if the circumstances are such that no one person can be singled out as the probable offender, the police must sometimes be allowed to take some action intermediate to that of arrest and nonseizure activity.\\\"\\nId. at 108 (citations omitted).\\nThe officer was entitled to rely upon the information which the cab driver, in a face-to-face confrontation, had given to him about the alleged assault. State v. Davis, 393 N.W.2d 179, 181 and n. 1 (Minn.1986). The alleged assault took place at approximately 5:00 a.m. The officer who arrived at the reported location within two minutes saw the black pickup truck pulling rapidly away from the curb on the west side of the street. While the appellant contests the accuracy of the officer's testimony that the truck pulled away from the curb \\\"kind of fast,\\\" because the description was not in his report, it was within the trial court's discretion to accept the credibility of the officer's testimony. The officer also testified that when he arrived at the location, which is on the east side of the street, it was dark and there were other vehicles parked on the street. He did not see any other vehicles driving north or south on the street. The appellant's vehicle traveled approximately 200 feet before the officer turned on his emergency lights; it did not weave, and it was not until the officer stopped the truck that he determined the individuals in the vehicle were black. The cab driver did not describe the truck as being involved in the incident.\\nDespite the fact that the officer did not have a description of the truck, he was justified in stopping appellant's vehicle and subjecting him to a limited investigative stop for purposes of \\\"freezing\\\" the situation. Appelgate, 402 N.W.2d at 109. It was early in the morning, the officer arrived on the scene promptly, there was no other traffic, and the truck pulled away from a location near the reported assault. The officer properly stopped appellant's vehicle.\\nII.\\nThe appellant also claims the officer did not have probable cause to believe he was under the influence. The trial court found that the officer noted appellant had an odor of an alcoholic beverage on his breath, his speech was fast, mumbled, and slurred, and his balance was poor and unstable. At the police station the officer noted that appellant's eyes were bloodshot. Appellant failed several field sobriety tests which the officer gave to him.\\nAppellant argues that the officer's observations and the field tests were suspect because he had suffered a head injury and asserts the officer should have taken him to a hospital for a medical examination. He contends that if the officer was then confident that his delayed responses were a result of alcohol impairment rather than the head injury, he could have then obtained a test.\\nThe indicia of intoxication which the officer observed were sufficient to provide probable cause to believe he was driving while under the influence. Holtz v. Commissioner of Public Safety, 340 N.W.2d 363, 365 (Minn.Ct.App.1983). Even if there are valid exculpatory explanations for the indicia of intoxication, the officer may still consider those facts in assessing the totality of the circumstances and determining probable cause. State v. Olson, 342 N.W.2d 638, 640 (Minn.Ct.App.1984).\\nDECISION\\nThe police officer made a valid investigatory stop under Appelgate and had probable cause to believe appellant was driving under the influence of alcohol.\\nAffirmed.\"}"
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+"{\"id\": \"10664880\", \"name\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent\", \"name_abbreviation\": \"Demning v. Grain Dealers Mutual Insurance\", \"decision_date\": \"1987-09-08\", \"docket_number\": \"No. C9-87-358\", \"first_page\": \"571\", \"last_page\": \"574\", \"citations\": \"411 N.W.2d 571\", \"volume\": \"411\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:17:52.741388+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by FOLEY, P.J., and PARKER and SEDGWICK, JJ., with oral argument waived.\", \"parties\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent.\", \"head_matter\": \"Naemi DEMNING, Appellant, v. GRAIN DEALERS MUTUAL INSURANCE, Respondent.\\nNo. C9-87-358.\\nCourt of Appeals of Minnesota.\\nSept. 8, 1987.\\nThomas A. Klint, Babcock, Locher, Neil-son & Mannella, Anoka, for appellant.\\nRobert E. Salmon, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, for respondent.\\nConsidered and decided by FOLEY, P.J., and PARKER and SEDGWICK, JJ., with oral argument waived.\", \"word_count\": \"1996\", \"char_count\": \"12114\", \"text\": \"OPINION\\nPARKER, Judge.\\nAppellant Naemi Demning filed suit against her insurer, respondent Grain Dealers Mutual Insurance, seeking no-fault economic loss benefits for injuries she suffered in an automobile accident. The trial court ruled that she was entitled to the benefits, but that they were offset by social security disability benefits she had been receiving. We affirm in part, reverse in part, and modify.\\nFACTS\\nNaemi Demning held various full-time jobs for most of the period from 1953 to 1976. In the fall of 1976, however, she was diagnosed as having multiple sclerosis and was forced to quit working. At that time, she was employed as a produce wrapper, earning $4.77 hourly. After the diagnosis, Demning began receiving social security disability benefits, which amounted to $358 per month by December 1980. In late 1979 Demning's multiple sclerosis symptoms subsided, and in April 1980 she began working about 23 hours per week as a drug store cashier, earning $3.10 hourly. In August 1980 she quit that job and has not worked since.\\nOn December 5, 1980, Demning was a passenger in a car that was rear-ended at a stop light. As a result of the accident, her back and neck were injured and she eventually underwent back surgery. Demn-ing's movement is still severely restricted; for example, she can sit for only 20 minutes at a time, or stand for 15 minutes, and can walk only about one and a half blocks. After the accident, her physician advised her not to work due to her injuries.\\nIn July 1983 Demning's physician examined her again and determined that she had recovered sufficiently to return to work. In December 1983 he advised her to do so, but after unsuccessfully attempting to increase her activity, Demning decided that she could not work and did not seek employment.\\nIn 1984 Demning submitted a claim to her insurer, Grain Dealers Mutual, for economic loss benefits. When the insurer refused payment, she brought this action. At trial Demning claimed she had planned on returning to work in the spring of 1981, but had been unable to do so because of the car accident. The insurer argued that Demning was unemployed due to her multiple sclerosis, not the car accident. In the alternative, the insurer argued that Demn-ing's economic loss benefits should be offset by the social security benefits she was receiving.\\nTo show that Demning's multiple sclerosis would have prevented her from working, the insurer pointed out that Demning had quit her last job four months before the auto accident occurred. When asked why she had quit that job after only four months, Demning testified:\\nI understood that if you were employed nine months you automatically lose your benefits. So we decided that I'd work part of 1980 and I didn't feel at that time that I could work full-time, so I decided to quit my job and resume it in 1981, and at that time, I was hoping I could go full-time and get off social security.\\nDemning further testified that she could have handled a full-time job in the spring if not for the accident, because she had no trouble working eight hours per day at the drug store.\\nThe manager at the drug store where Demning had worked testified that his notes indicated Demning had left the store for health reasons. Although he had not held a job open for her after she left, he testified that Demning had been an excellent employee and that he would have rehired her if he had a future opening. He further testified that his store had an opening approximately every six months.\\nThe trial court concluded that Demning was unable to work from the date of the accident until December 1983 as a direct and proximate result of the injuries she suffered in the car accident and was therefore entitled to economic loss benefits of $306.59 per month (23 hours at $3.10 per hour x 4.3 weeks/month). However, the court ruled those benefits were completely offset by her $358 monthly social security disability benefits and therefore entered judgment for the insurer. Demning's post-trial motions were denied, and she appeals. The insurer has also filed a notice of review, arguing that the trial court erred in ruling that Demning was entitled to the economic loss benefits as a threshold matter.\\nISSUES\\n1. Was Demning entitled to economic loss benefits?\\n2. If so, were such benefits offset by her receipt of social security disability benefits?\\nDISCUSSION\\nI\\nMinn. Stat. \\u00a7 65B.44, subd. 3 (1980), provides that\\n[disability and income loss benefits shall provide compensation for 85% of the injured person's loss of present and future gross income and inability to work proximately caused by the non-fatal injury subject to a maximum of $200.00 per week.\\nBy ruling that Demning was entitled to these benefits, the trial court implicitly found that Demning would have been able to resume work if not for the accident, despite her pre-existing medical problems.\\n[I]f the injured person can demonstrate that at an appropriate period of time, employment would have been obtained but for the injury, disability income loss benefits should be payable. [Economic loss benefits] should be payable if the injured person can prove he had an offer of employment that would have been accepted but for the injury .\\nM. Steenson, Minnesota No-Fault Automobile Insurance at 53-54 (1982) (footnotes omitted). See also Kennedy v. Auto Owners Insurance Company, 87 Mich. App. 93, 273 N.W.2d 599, 601 (1979) (claimant entitled to economic loss benefits under Michigan's \\\"temporarily unemployed\\\" provision when he showed that he \\\"would have been employed part-time but for the injuries\\\" and that he suffered a loss of income as a result of that injury).\\nWhether Demning would have returned to work if not for the car accident presents a factual issue. The trial court, in its conclusions of law, found that \\\"as a direct and proximate cause of her injuries received on December 5,1980, Plaintiff was not able to return to work until December, 1983; and that as a result Plaintiff incurred a loss of future wages [of] $306.59 per month.\\\" In its memorandum of law, the court found \\\"there was sufficient evidence to show that Plaintiff intended to return to some type of work in early 1981,\\\" but that she was \\\"forestalled from seeking employment because of injuries received in the December 1980 accident.\\\" Although the trial court did not include these determinations in its findings, facts stated in a memorandum that are made a part of the court's decision, and which are consistent with the facts specifically found, become a part of the findings. Sime v. Jensen, 213 Minn. 476, 7 N.W.2d 325 (1942); see Minn. R.Civ.P. 52.01.\\nDemning testified that she planned to return to work in the spring of 1981. The store manager testified that if there were an opening at that time, he would have rehired her and that the turnover rate for clerks is quite high and he has periodic openings. Viewed in the light most favorable to Demning (as the prevailing party below on this issue), this evidence reasonably supports the trial court's determination that she would have been able to return to work but for the automobile accident. Therefore, the trial court's ruling will not be set aside. See Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn.1977). This court is obliged to accept findings that are based primarily on the relative credibility of the parties and witnesses whose testimonial demeanor the trial judge was able to observe and evaluate. Donaldson v. Kohner, 264 Minn. 230, 233, 118 N.W.2d 446, 448 (1962); see also In re Estate of Balafas, 293 Minn. 94, 198 N.W.2d 260 (1972) (reviewing court must give due regard to trial court's opportunity to judge witness credibility). The trial court's determination of Demning's entitlement to economic loss benefits from the date of the accident to December 1983 must be modified to comport with the testimony of her physician that she had recovered sufficiently to return to work in July 1983.\\nII\\nHaving determined that Demning was eligible for economic loss benefits, we must next determine whether those benefits were properly offset by her social security benefits, as the trial court ruled. Because this issue presents a question of law, we need not defer to the trial court's determination. Van de Loo v. Van de Loo, 346 N.W.2d 173, 175 (Minn.Ct.App.1984).\\nMinn.Stat. \\u00a7 65B.61, subd. 1 (1980), provides that \\\"[b]asic economic loss benefits shall be primary with respect to benefits, except for those paid or payable under a workers' compensation law See Steenson, supra, at 72 (\\\"Only if the injured person is covered by worker's compensation or medicare benefits may there be an offset from economic loss benefits\\\"). This explicit exception came into play in Griebel v. Tri-State Insurance Co., 311 N.W.2d 156 (Minn.1981), in which the supreme court determined that \\\"when a claimant receives benefits under no-fault and workers' compensation, the legislature has indicated that the no-fault benefits must be reduced by the amount of workers' compensation benefits paid.\\\" Id. at 159.\\nAlthough worker's compensation benefits may be offset by economic loss benefits under section 65B.61, subd. 1, there is no similar provision for social security disability benefits. Minn. Stat. \\u00a7 645.19 (1980) dictates that exceptions in a statute are to be construed to exclude all other exceptions. Therefore, we hold that economic loss benefits are not to be offset by social security disability benefits.\\nOur holding is consistent with previous cases involving the coordination of benefits under multiple insurance policies. In Wallace v. Tri-State Insurance Co., 302 N.W.2d 337 (Minn.1980), the supreme court held that an insurer had no right to coordinate its own obligations with amounts paid by another insurer:\\nIf the legislature had intended to allow [the insurer] to defer its payment of benefits because of the existence of health insurance covering the same losses, it would have written such an exception into \\u00a7 65B.61, subd. 1.\\nId. at 339. See also Hoeschen v. Mutual Service Casualty Insurance Co., 359 N.W.2d 677, 680 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. March 6, 1985) (\\\"the no-fault insurers may not coordinate benefits with those paid by the army, nor may they offset their own obligation with the amounts paid by the army\\\").\\nDECISION\\nThe trial court did not err in determining that Demning was entitled to economic loss benefits, but her entitlement is modified from December 5, 1983, to July 1983. The trial court erred in ruling that such benefits should be offset by her social security security benefits.\\nAffirmed in part, reversed in part, and modified.\\n. The insurer cites two decisions in support of its assertion that this issue presents a question of law that is reviewable on a de novo basis. Neither case, however, has anything to do with eligibility for economic loss benefits. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476 (Minn.1985), was a libel action in which the issues were whether the plaintiff was a public figure and whether the defendant newspaper had displayed actual malice. The other case cited, Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1977), was a breach of warranty case arising out of the sale of an automobile.\\n. In its brief, the insurer mischaracterizes the holding of Wallace. It claims that the court held that the insurer, as a legal entity, could coordinate benefits under section 65B.61, subd. 3. As discussed above, the court actually held the opposite: \\\"Tri-State, as a reparation obligor, has no right to coordinate its benefits with Federated's. This is clear from the language of Minn. Stat. \\u00a7 65B.61, subd. 3 (1978).\\\" Id. (emphasis added).\"}"
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+"{\"id\": \"10667927\", \"name\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant\", \"name_abbreviation\": \"Marriage of Flinck v. Flinck\", \"decision_date\": \"1984-07-17\", \"docket_number\": \"No. C7-84-67\", \"first_page\": \"401\", \"last_page\": \"402\", \"citations\": \"351 N.W.2d 401\", \"volume\": \"351\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:22:43.586034+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.\", \"parties\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant.\", \"head_matter\": \"In re the Marriage of Robin FLINCK, petitioner, Respondent, v. Tanya FLINCK, Appellant.\\nNo. C7-84-67.\\nCourt of Appeals of Minnesota.\\nJuly 17, 1984.\\nH.R. Chalupsky, Chalupsky, Nyberg & Hawkinson, Ltd., Grand Rapids, for respondent.\\nThomas Butorac, Legal Aid Service of Northeast Minnesota, Virginia, for appellant.\\nConsidered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ., with oral argument waived.\", \"word_count\": \"555\", \"char_count\": \"3427\", \"text\": \"OPINION\\nPOPOVICH, Chief Judge.\\nFollowing a dissolution hearing, the court granted custody of the parties' two-year-old son to the father, and the mother appeals. We affirm.\\nFACTS\\nThe parties were married on December 9, 1981, and their only child, Jesse, was born shortly thereafter. Tanya Flinck has custody of one other child from a previous marriage. During the parties' marriage, the family lived in Minnesota.\\nIn February, 1983, Tanya, Robin, and the children drove to Oregon to visit Tanya's mother. During the visit, Robin and Tanya quarreled and Robin returned to Minnesota alone. In June, Robin filed a marriage dissolution petition. Tanya and the children remained in Oregon.\\nTanya returned to Minnesota for the dissolution hearing in November, 1983, but did not bring Jesse with her, even though she could have done so at no cost and even though Jesse had not seen his father since February. At the hearing, both parents sought custody and both testified to their fitness as a parent. The court ordered a home study of each parent. The investigator's study of Robin's home indicated Robin had no significant problems which would interfere with his ability to care for his son and he would be an adequate parent. The study of Tanya's home was never completed because Oregon officials would not cooperate and a private study could not be arranged.\\nISSUE\\nDid the trial court abuse its discretion in granting custody of the minor child to the father?\\nANALYSIS\\nA trial court has the opportunity to view the parties and hear their testimony and so has broad discretion in determining custody. The trial court's custody decision will not be set aside unless it was a clear abuse of discretion or was arbitrary. LaBelle v. LaBelle, 296 Minn. 173, 175, 207 N.W.2d 291, 292 (1973); Warden v. Warden, 286 Minn. 543, 544, 176 N.W.2d 121, 122 (1970); see also Peterson v. Peterson, 308 Minn. 365, 368, 242 N.W.2d 103, 106 (1976). Here, the trial court stated it made the custody determination based on the best interest of the child as determined by application of the nine factors listed in Minn. Stat. \\u00a7 518.17, subd. 1 (1982). Since the court based its decision on the appropriate statutory provision and since there is evidence in the record, including testimony of Robin's relationship with the child and Robin's home study, supporting the court's determination, we cannot say the trial court abused its discretion.\\nTanya claims she was denied her statutory opportunity to cross-examine the investigator who conducted the home study of Robin. Minn.Stat. \\u00a7 518.167, subd. 3 (1982). Her claim is without merit. The trial court ordered the studies at the dissolution hearing. Recognizing the parties' right of cross-examination with respect to the studies, the court also informed the parties of their right to demand a hearing to cross-examine the investigators. No such hearing was ever demanded.\\nDECISION\\nThe trial court did not err in granting custody of the parties' minor child to the father.\\nAffirmed.\"}"
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diff --git a/minn/10668977.json b/minn/10668977.json
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+"{\"id\": \"10668977\", \"name\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent; and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent\", \"name_abbreviation\": \"Thorud v. Commissioner of Public Safety\", \"decision_date\": \"1984-06-12\", \"docket_number\": \"Nos. C7-83-1824, C9-83-1825\", \"first_page\": \"343\", \"last_page\": \"345\", \"citations\": \"349 N.W.2d 343\", \"volume\": \"349\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:24:29.922143+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard, considered, and decided by WOZNIAK, P.J., HUSPENI and NIEREN-GARTEN, JJ.\", \"parties\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent, and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.\", \"head_matter\": \"Richard John THORUD, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent, and Cathleen Joyce CHRISTENSON, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.\\nNos. C7-83-1824, C9-83-1825.\\nCourt of Appeals of Minnesota.\\nJune 12, 1984.\\nRalph S. Palmer, Roseville, for Thorud and Christenson.\\nHubert H. Humphrey, III Atty. Gen., Donald J. Paquette, Sp. Asst. Atty. Gen., St. Paul, for Com\\u2019r of Public Safety.\\nHeard, considered, and decided by WOZNIAK, P.J., HUSPENI and NIEREN-GARTEN, JJ.\", \"word_count\": \"876\", \"char_count\": \"5502\", \"text\": \"OPINION\\nWOZNIAK, Judge.\\nAppellants Thorud and Christenson seek to reverse a determination that the petitions for review of their driver's license revocations were not timely filed. We affirm.\\nFACTS\\nOn July 14, 1983, Thorud and Christen-son were involved in a single incident and were arrested for D.W.I. After refusing to take breathalyzer tests, both were sent notices and orders of revocation of their driving licenses pursuant to Minn.Stat. \\u00a7 169.123(5c) (1982). Accordingly, they had 30 days to file for review:\\nWithin 30 days following receipt of a notice and order of revocation pursuant to this section, a person may petition the court for review. The petition shall be filed with the clerk of county or municipal court in the county where the alleged offense occurred, together with proof of service of a copy on the commissioner of public safety, and accompanied by the standard- filing fee for civil actions.\\nMinn.Stat. \\u00a7 169.123(5c) (1982).\\nTwenty-nine days later, on Thursday, August 11, 1983, a law clerk, employed by Thorud's and Christenson's counsel, attempted to file their petitions with Henne-pin County Municipal Court. Lynn Mang-es, a senior court deputy, asked the law clerk where the incident occurred. He did not know. She took the money and petitions in hand and checked a computer for the arrest information. This information is used to designate the court in which the case will be heard. Unable to obtain the information, Manges returned to the counter.\\nThe law clerk testified that Manges would not accept the petitions without the background information. Manges testified that she twice told the law clerk that the petitions could be filed at that time, and that the other information would be acceptable at a later date. She testified that this was usual procedure.\\nRegardless, the petitions and money were returned to the law clerk. Having obtained background information in the interim, he returned eight days later, on August 19, to file the petitions \\u2014 the 37th day. The law clerk testified that he knew about the thirty-day rule when he originally attempted to file.\\nBased on the above, the court found that the petitions were not timely filed.\\nISSUE\\nWas the trial judge's finding that the petitions for Thorud and Christenson were not timely filed clearly erroneous?\\nANALYSIS\\nOn review, factual findings are not set aside unless they are clearly erroneous, State, Dep't of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971), \\\"and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses,\\\" Minn.R.Civ.P. 52.01.\\nThe court was entitled to believe Manges that she did not reject the petitions offered by the law clerk. Her testimony was credible; she had less personal interest in this case than the law clerk. Thus, the findings based on her testimony were not clearly erroneous.\\nWere the law clerk confused, he and his employing attorney had yet another day to remedy the situation. They were aware of the thirty-day rule. Their neglect to file by the thirtieth day left the court without jurisdiction. See, Qualley v. Commissioner of Pub. Safety, 349 N.W.2d 305 (Minn.Ct.App.1984); cf. Swicker v. Ryan, 347 N.W.2d 367 (Minn.Ct.App.1984) (law clerk's misinterpretation of time limits no excuse).\\nOur Supreme Court has observed in similar circumstances:\\nThe 30-day period for pre-revocation hearing requests is a jurisdictional limitation upon the trial court, where, as here, notice of intended revocation is adequate. Although the result seems harsh in the case at bar, since it was not the fault of respondent that the hearing request which he had left with his attorney was not forwarded to the Commissioner of Public Safety within the 30-day period, the district court was without jurisdiction to extend the limitation period. The harshness is mitigated by respondent's entitlement to a full post-revocation hearing, under Minn.Stat. \\u00a7 171.19 (1980), in which he may challenge the merits as well as the procedure of revocation.\\nWinchester v. Commissioner of Pub. Safety, 306 N.W.2d 899, 900 (Minn.1981). Minn.Stat. \\u00a7 171.19 has been changed since the Winchester decision and the petition for reinstatement procedure in the district court no longer is available for revocation under this section. Recognizing this, we recently commented:\\nIf the result now seems harsh, it is a criticism that may be levelled against many statutes of limitation. Furthermore, as a matter of public policy D.W.I. laws, including the implied consent statute, are liberally construed in the public's favor and are strictly applied.\\nQualley, slip op. at 3 (Minn.Ct.App., May 22, 1984).\\nDECISION\\nIn view of the testimony and the established interpretation of Minn.Stat. \\u00a7 169.-123(5c) (1982), the court did not err in finding that the petitions were not timely filed.\\nWe affirm.\\n. However, an administrative review by the Commissioner of Public Safety is available under Minn.Stat. \\u00a7 169.123(5b) (1982).\"}"
\ No newline at end of file
diff --git a/minn/10671072.json b/minn/10671072.json
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+"{\"id\": \"10671072\", \"name\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant\", \"name_abbreviation\": \"Parson v. Argue\", \"decision_date\": \"1984-02-22\", \"docket_number\": \"No. CX-84-46\", \"first_page\": \"431\", \"last_page\": \"432\", \"citations\": \"344 N.W.2d 431\", \"volume\": \"344\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T02:20:23.936224+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., PARKER and WOZNIAK, JJ.\", \"parties\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant.\", \"head_matter\": \"Glenn S. PARSON, et al., Respondents, v. Helen ARGUE, Appellant.\\nNo. CX-84-46.\\nCourt of Appeals of Minnesota.\\nFeb. 22, 1984.\\nRichard R. Doran, Columbia Heights, for appellant.\\nBarry L Blomquist, North Branch) for respon(jents.\\nConsidered and decided by POPOVICH, C.J., PARKER and WOZNIAK, JJ.\", \"word_count\": \"529\", \"char_count\": \"3135\", \"text\": \"MEMORANDUM OPINION AND ORDER\\nPOPOVICH, Chief Judge.\\nFacts\\nThis matter arises out of a dispute of a real estate sale in Chisago County. An order for summary judgment was granted to respondents July 15, 1983. Appellant Argue then sought amended findings of fact, conclusions of law, and order or a new trial. That motion was denied on December 2, 1983 and the order was served on appellant on December 9, 1983.\\nOn January 6, 1984, this appeal was filed. The notice of appeal states that the appeal is taken pursuant to Rule 103.03(e), Minn.R.Civ.App.P. Respondents now seek dismissal of the appeal as from a non-ap-pealable order.\\nAnalysis\\n1. Appellant said the appeal is taken pursuant to Rule 103.03(e) which provides for appeal from an order \\\"which, in effect, determines the action and prevents a judgment from which an appeal might be taken.\\\"\\n2. In the author's comments to Rule 103.03, Minn.R.Civ.App.P., Hetland and Ad-amson said:\\n\\\"If there never was a trial (i.e., dismissal prior to trial, summary judgment, etc.), a motion for a 'new trial' is an anomaly and an order denying such a motion is not appealable. Samels v. Samels, 174 Minn. 133, 218 N.W.2d [N.W.] 546 (1928); Dodge v. Bell, 37 Minn. 382, 34 N.W.2d [N.W.] 739 (1887).\\\" Hetland & Adam-son, Minnesota Practice, Volume 3, at 279.\\n3. In Frontier Lumber and Hardware, Inc. v. Dickey, 289 Minn. 162, 183 N.W.2d 788 (1971), the Minnesota Supreme Court held that an order denying a motion to vacate summary judgment is non-appeala-ble because it would have been reviewable by appeal from the judgment.\\n4. Although the motion of appellant before the trial court was termed a motion for a new trial, because there was no trial it was, in effect, a motion to vacate the summary judgment. An order denying such a motion is not appealable.\\n5. In Weinzierl v. Lien, 296 Minn. 539, 209 N.W.2d 424 (1973), the supreme court held that an order is not appealable unless it, in effect, finally determines the action or finally determines some positive legal right of the appellant relating to the action. Howev\\u00e9r, the court stated that an order reinstating findings of fact, conclusions of law and an order for judgment cannot be given a different effect than one denying a motion to amend such an order. The court then dismissed the appeal from the order reinstating the findings.\\n6.The December 2 order of the trial court denying the motion for amended findings of fact, conclusions of law, judgment or new trial does not fall within the parameters of Rule 103.03(e) as it merely upheld the order for summary judgment of July 15, 1983.\\nDecision and Order\\nThe order of the trial court denying appellant's motion for amended findings of fact, conclusions of law, judgment or new trial dated December 2, 1983 is non-appeal-able. This appeal, not being from the judgment itself, is dismissed.\"}"
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diff --git a/minn/10671116.json b/minn/10671116.json
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+"{\"id\": \"10671116\", \"name\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant\", \"name_abbreviation\": \"Drewes v. Levine\", \"decision_date\": \"1985-05-07\", \"docket_number\": \"No. C1-85-141\", \"first_page\": \"719\", \"last_page\": \"721\", \"citations\": \"366 N.W.2d 719\", \"volume\": \"366\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:15:06.203757+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by POPOVICH, C.J., and FORSBERG and LESLIE, JJ., with oral argument waived.\", \"parties\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant.\", \"head_matter\": \"James Brian DREWES, Respondent, v. Leonard W. LEVINE, Commissioner of Human Services, Respondent, Itasca County, Appellant.\\nNo. C1-85-141.\\nCourt of Appeals of Minnesota.\\nMay 7, 1985.\\nReview Denied July 11, 1985.\\nDavid C. Moody, Schmidt, Thompson, Thompson & Johnson, P.A., Willmar, for Drewes.\\nHubert H. Humphrey, III, Atty. Gen., Ruth Mickelsen, Sp. Asst. Atty. Gen., St. Paul, for Leonard W. Levine.\\nJohn P. Dimich, Itasca County Atty., Jim Mason, Asst. County Atty., Grand Rapids, for appellant.\\nConsidered and decided by POPOVICH, C.J., and FORSBERG and LESLIE, JJ., with oral argument waived.\", \"word_count\": \"1090\", \"char_count\": \"6902\", \"text\": \"OPINION\\nPOPOVICH, Chief Judge.\\nRespondent previously appealed from the denial of his petition for discharge from commitment. Drewes v. Levine, 352 N.W.2d 456 (Minn.Ct.App.1984). We reversed for lack of factual findings, established the burden of proof to obtain discharge, and remanded. The parties then agreed a new petition for discharge would be heard de novo. The appeal panel ordered respondent discharged because he was not mentally ill and his dangerousness did not result from mental illness. We reverse and remand.\\nFACTS\\nDrewes, a 49 year old man, was committed to the St. Peter Security Hospital in August 1981 as manic depressive and chemically dependent. He petitioned the Commissioner of Public Welfare (now Human Services) for discharge. The petition was denied and the supreme court appeal panel affirmed, retaining jurisdiction for one year to monitor placement. We reversed concluding Drewes must meet the statutory criteria for discharge and that the panel must make factual findings in support of their decision.\\nA new petition for discharge dated July 18, 1984 was heard on August 31, 1984. The panel, in a split decision, found (a) Drewes was not mentally ill, (b) that he may not have been mentally ill when committed, (c) that he suffers from a character disorder (anti-social personality), and (d) he abuses chemicals. The appeal panel concluded his dangerousness did not result from mental illness and ordered discharge. The committing county appeals, arguing the statutory criteria for discharge should have been considered.\\nISSUES\\n1. Does a nonparticipating committing county have standing to appeal a discharge order?\\n2. Was respondent properly discharged when the appeal panel concluded he was not dangerous as a result of mental illness?\\nANALYSIS\\n1. A patient committed as mentally ill and dangerous may file a petition for discharge to be heard by the special review board. Minn.Stat. \\u00a7 253B.18, subd. 5 (1984). The Commissioner of Human Services must issue a decision within 14 days after receiving the board's recommendation. Id. \\\"The committed person or the county attorney of the county from which\\\" the patient was committed may petition a judicial appeal panel for reconsideration of the commissioner's decision. Minn.Stat. \\u00a7 253B.19, subd. 2.\\nA party aggrieved by an order of the appeal panel may appeal from the decision of the appeal panel to the court of appeals as in other civil cases.\\nId., subd. 5.\\nThe commissioner appeared before the appeal panel, but Itasca County did not participate. The county now appeals from the appeal panel decision. Respondent argues the county lacks standing since it did not appear before the panel. We do not agree.\\nThe county advocates the commissioner's position. There is no surprise, and this is essentially a substitution of counsel. It would be inefficient to require the committing county to appear before the appeal panel to make the same arguments as the commissioner merely to protect its right to appeal an adverse decision. Substitution of the committing county does not prejudice the patient. The county is an aggrieved party and may assert its interest on appeal.\\n2. A patient committed as mentally ill and dangerous shall not be discharged unless it appears the patient:\\n(1) is capable of making an acceptable adjustment to open society;\\n(2) is no longer dangerous to the public; and\\n(3) is no longer in need of inpatient treatment and supervision.\\nSee Minn.Stat. \\u00a7 253B.18, subd. 15 (1984). The commissioner must also \\\"consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the patient in adjusting to the community.\\\" Id.\\nThe appeal panel'found Drewes remains dangerous to the public but not as. a result of mental illness. It also found Drewes \\\"has the potential to make an acceptable ' adjustment to society upon release if he abstains from alcohol.\\\" The panel concluded Drewes must be discharged because he was no longer mentally ill \\\"even though his potential for dangerousness continues to exist.\\\" Itasca County contends the discharge should be reversed and remanded for findings whether Drewes meets the statutory criteria for discharge. We agree.\\nWe previously interpreted the patient's burden to obtain discharge from commitment in Reome v. Levine, 350 N.W.2d 428 (Minn.Ct.App.1984) (Reome I). There, the judicial appeal panel, with one judge dissenting, discharged Reome after concluding he suffered from a character disorder and not a mental illness. We affirmed, and the commissioner petitioned the supreme court for review.\\nThe supreme court remanded for reconsideration in light of Enebak v. Noot, 353 N.W.2d 544 (Minn.1984), decided after Reome. See Reome v. Levine, 361 N.W.2d 29 (Minn.1985). Enebak was committed as a psychopathic personality subject to the same provisions as persons committed as mentally ill and dangerous. See Minn.Stat. \\u00a7 253B.02, subd. 17 (1984). Like Reome and Drewes, Enebak was diagnosed as having an anti-social personality but no major mental illness. The Enebak court held the statutory criteria must be addressed rather than the factors in Johnson v. Noot, 323 N.W.2d 724 (Minn.1982). Enebak, 353 N.W.2d at 547. Johnson, which was decided under the prior commitment statute, construed the discharge criteria \\\"to mean that the patient is either no longer mentally ill or no longer dangerous.\\\" Johnson, 323 N.W.2d at 728.\\nBecause the supreme court explicitly rejected the Johnson analysis upon which we relied in Reome I, we vacated our decision and remanded to the appeal panel for consideration of the statutory discharge criteria. Reome v. Levine, 363 N.W.2d 107 (Minn.Ct.App.1985) (Reome II).\\nSimilarly, the appeal panel in this matter did not address Drewes' need for further treatment and supervision or examine the conditions which may protect the public and assist Drewes in adjusting to open society. It found Drewes \\\"may now be dangerous in the ordinary sense of the word.\\\" If Drewes remains dangerous to the public, he \\\"shall not be discharged.\\\" Minn.Stat. \\u00a7 253B.18, subd. 15 (1984).\\nDECISION\\nThe supreme court appeal panel must address the statutory factors. Only if respondent demonstrates that he meets the criteria of Minn.Stat. \\u00a7 253B.18, subd. 15 may he be discharged.\\nReversed and remanded.\"}"
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+"{\"id\": \"10681401\", \"name\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent\", \"name_abbreviation\": \"Volstad v. State\", \"decision_date\": \"1981-04-24\", \"docket_number\": \"No. 51952\", \"first_page\": \"649\", \"last_page\": \"650\", \"citations\": \"304 N.W.2d 649\", \"volume\": \"304\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:21:59.972118+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\", \"head_matter\": \"Steven A. VOLSTAD, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\\nNo. 51952.\\nSupreme Court of Minnesota.\\nApril 24, 1981.\\nWilliam R. Kennedy, Hennepin County Public Defender, and David Knutson, Asst. Public Defender, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Michael McGlennen, Asst. County Attys., and Thomas A. Weist, Minneapolis, for respondent.\", \"word_count\": \"237\", \"char_count\": \"1538\", \"text\": \"YETKA, Justice.\\nPetitioner was convicted in 1978 of criminal sexual conduct in the first degree. We affirmed that conviction in State v. Volstad, 287 N.W.2d 660 (Minn.1980). Thereafter, petitioner sought postconviction relief from the conviction, claiming that the conviction violated the double jeopardy clause of the federal constitution because it was based on an act of sexual misconduct for which he had previously been punished in a criminal contempt proceeding. See People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). The postconviction court, after analyzing the record of the contempt proceeding, determined that although evidence of the act of sexual misconduct was admitted at the contempt hearing, the order was based not on that but on a specific finding that petitioner had committed an earlier assaultive act with his automobile against the same victim in violation of a court order. Our analysis of the record on appeal satisfies us that the district court did not err in that conclusion.\\nAffirmed.\"}"
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+"{\"id\": \"10683450\", \"name\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619)\", \"name_abbreviation\": \"State ex rel. L.E.A. v. Hammergren\", \"decision_date\": \"1980-06-20\", \"docket_number\": \"Nos. 50619-50623\", \"first_page\": \"705\", \"last_page\": \"709\", \"citations\": \"294 N.W.2d 705\", \"volume\": \"294\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:36:17.317882+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before SHERAN, C. J., PETERSON, and TODD, JJ., and considered and decided by the court en banc.\", \"parties\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619).\", \"head_matter\": \"STATE of Minnesota ex rel. L.E.A., petitioner, Appellant (50619), State of Minnesota ex rel. S.P., petitioner, Appellant (50620), State of Minnesota ex rel. C.S., petitioner, Appellant (50621), State of Minnesota ex rel. K.H., petitioner, Appellant (50622), State of Minnesota ex rel. K.H., petitioner, Appellant (50623), v. Donald HAMMERGREN, Superintendent, Hennepin County Juvenile Detention Facility, Woodview, Respondent, Donald Omodt, Hennepin County Sheriff, Defendant (50619).\\nNos. 50619-50623.\\nSupreme Court of Minnesota.\\nJune 20, 1980.\\nWilliam R. Kennedy, County Public Defender, and Patrick J. Sullivan, Asst. Public Defender, Minneapolis, for appellants.\\nThomas L. Johnson, County Atty., and David W. Larson, Asst. County Atty., Minneapolis, for respondent.\\nLinda J. Gallant, Minneapolis, Coalition for the Protection of Youth Rights, Amicus Curiae.\\nHeard before SHERAN, C. J., PETERSON, and TODD, JJ., and considered and decided by the court en banc.\", \"word_count\": \"2058\", \"char_count\": \"13099\", \"text\": \"SHERAN, Chief Justice.\\nPetitioners appeal from dismissal of their petition for habeas corpus in the Fourth Judicial District. Petitioners sought habeas corpus claiming they were wrongfully being held in the Hennepin County Detention Center for contempt of court. The lower court reasoned that under Minn. Stat. \\u00a7 260.301 and 588.01, subd. 3 (1978), the court has the power to find status offenders in constructive contempt of court for failing to comply with court orders and that In re Welfare of R.L.W., 309 Minn. 489, 245 N.W.2d 204 (1976) permits confinement in any center authorized by the Juvenile Court Act. Consequently, the lower court found that detention in the secure facility was appropriate and dismissed the petition.\\nThe issue raised by this case is whether, despite the language of Minn. Stat. \\u00a7 260.-173, subd. 3 (1978) stating that wayward children shall be placed in shelter care facilities only, status offenders can be held in secure detention centers after being found in constructive contempt of court for failing to comply with court orders.\\nAlthough each petitioner's case presents a slightly different fact pattern, the parties stipulated to the following common factors. At separate times, the juveniles were each charged with being wayward and habitually disobedient within the meaning of Minn. Stat. \\u00a7 260.015 (1978). Thereafter, they were each charged with constructive contempt of court under Minn. Stat. \\u00a7 588.01, subd. 3(3) (1978) for violating a court order by running away from a shelter care facility or failing to appear for a hearing. As a result of a finding of constructive contempt of court, each was incarcerated in the Hen-nepin County Juvenile Detention Center.\\nThe individual juveniles may no longer be held in a secure facility. Normally, this would render the case moot but, we find that the issue raised is \\\"capable of repetition but evading review\\\" and take jurisdiction. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976); Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). We make these observations notwithstanding the mootness which moves us to discharge the writ.\\nJuvenile courts have the authority to find a juvenile in contempt of court and to impose appropriate sanctions. But, given the Legislature's expressed disapproval of the practice of confining status offender juveniles in secure facilities, juvenile courts should not direct such confinement for contempt of court unless they first find specifically that there is no less restrictive alternative which could accomplish the court's purpose. In re Welfare of R.L.W., 309 Minn. 489, 245 N.W.2d 204 (1976); see also U. S. v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975).\\nMinn. Stat. \\u00a7 260.173, subd. 3 (1978) was amended by the Legislature in 1978 in Minn. Laws, ch. 637. The statute before the amendment stated that a child taken into custody by reason of being wayward or habitually disobedient who had previously escaped from a shelter care facility might be placed in a secure detention facility. Minn. Stat. \\u00a7 260.173 (1976). As amended, Minn. Stat. \\u00a7 260.173, subd. 3 (1978) states that a child taken into custody because of waywardness or habitual disobedience \\\"may be placed only in a shelter care facility\\\" even if she is conditionally released and has violated her field supervision. The language in the former statute authorizing the placement of these children in a secure detention facility was eliminated. The Hen-nepin County Juvenile Detention Center where these juveniles were incarcerated is a \\\"secure detention facility\\\" defined in Minn. Stat. \\u00a7 260.015, subd. 16 (1978) as a \\\"physically restricting detention facility, including a detention home.\\\"\\nThe amendment brought Minnesota into compliance with the funding requirements of the Law Enforcement Assistance Administration of the United States Justice Department. The Juvenile Justice and Delinquency Prevention Act of 1974 requires that each state seeking funds under the Act submit a plan to ensure that wayward or disobedient children \\\"shall not be placed in juvenile detention or correctional facilities.\\\" 42 U.S.C. \\u00a7 5633(a)(12) (1976).\\nMinnesota, in adopting the federal policy of deinstitutionalization of status offenders, is moving in the direction adopted by the ABA Juvenile Justice Standards Project, Standards Relating to Noncriminal Misbehavior. The ABA Standards, and their Commentary, conclude that runaway youth, truant youth, and otherwise \\\"incorrigible\\\" or \\\"wayward\\\" youth are best served outside the juvenile court system and outside juvenile detention facilities. As Amicus Coalition for the Protection of Youth Rights rightly points out, once children are defined as delinquent and placed with delinquent law-breakers, they may conform their behavior to that label, thus countermanding the entire process. E. Schur, Radical NonIntervention: Rethinking the Delinquency Problem, 118-126 (1973). The Legislature may well have determined that removing status offenders from facilities designed for and used for law violators would result in better treatment, better programs, and better services for the child and that child's family. In addition, we interpret the amendment as reflecting the Legislature's concern with the effects of comingling disobedient or wayward children with juveniles who have allegedly committed more serious crimes.\\nIn light of the foregoing, we hold that only under the most egregious circumstances should the juvenile courts exercise their contempt power in such a manner that a status offender will be incarcerated in a secure facility. If such action is necessary, the record must show that all less restric tive alternatives have failed in the past. (See State in Interest of M.S., 73 N.J. 238, 374 A.2d 445 [1977] for other alternatives.)\\nIn L.A.M. v. State, 547 P.2d 827, 831 (Alaska, 1976), the Alaska Supreme Court noted:\\nBefore a party may be held in criminal or civil contempt for failure to abide by a court order, certain elements must be established: (1) the existence of a valid order directing the alleged contemnor to do or refrain from doing something and the court's jurisdiction to enter that order; (2) the contemnor's notice of the order within sufficient time to comply with it; and in most cases, (3) the con-temnor's ability to comply with the order; and (4) the contemnor's willful failure to comply with the order.\\nIn order for the juvenile court to find a \\\"willful failure to comply\\\" which warrants a holding of contempt, the record from the previous hearing must show that the child understood that disobedience would result in incarceration in a secure facility. A child too young to comprehend the warning cannot be found in contempt of court. With these limitations, the juvenile court can resort to the use of the secure facility if absolutely necessary.\\nFinally, if it is necessary to rely on the use of a secure facility, the order must include instructions to the administrator of the institution that the disobedient child's contact with the more committed juvenile be kept to a minimum.\\nWrit discharged.\\n. A \\\"shelter care facility\\\" is defined by Minn. Stat. \\u00a7 260.015, subd. 17 (1978) as \\\"a physically unrestricting facility, such as a group home or a licensed facility for foster care, excluding a detention home.\\\"\\n. In contrast to adults who, by escape \\\"affront the authority of the State,\\\" children who run away only harm their own well being. State in Interest of M.S., 73 N.J. 238, 374 A.2d 445 (1977).\\n. 1.1 Noncriminal misbehavior generally.\\nA juvenile's acts of misbehavior, ungovern-ability, or unruliness which do not violate the criminal law should not constitute a ground for asserting juvenile court jurisdiction over the juvenile committing them.\\n*\\n5.2 Prohibition against placement in secure facility.\\nIn no event should alternative residential placement for a juvenile in conflict with his or her family, who has violated no criminal law, be arranged in a secure detention facility or in a secure institution used for the detention or treatment of juveniles accused of crimes or adjudged delinquent.\"}"
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+"{\"id\": \"10683534\", \"name\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant\", \"name_abbreviation\": \"State v. Butler\", \"decision_date\": \"1980-08-15\", \"docket_number\": \"No. 50282\", \"first_page\": \"658\", \"last_page\": \"659\", \"citations\": \"295 N.W.2d 658\", \"volume\": \"295\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:43:53.238578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Henry Walter BUTLER, Appellant.\\nNo. 50282.\\nSupreme Court of Minnesota.\\nAug. 15, 1980.\\nRehearing Denied Sept. 15, 1980.\\nJack Nordby, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., St. Paul, Thomas Johnson, County Atty., Vernon E. Bergstrom, David W. Larson, Asst. County Attys., and Thomas Weist, Minneapolis, for respondent.\", \"word_count\": \"278\", \"char_count\": \"1816\", \"text\": \"ROGOSHESKE, Justice.\\nDefendant was found guilty by a district court jury of three counts of burglary with tool, Minn.Stat. \\u00a7 609.58, subd. 2(l)(a) (1978), and was sentenced by the trial court to a maximum prison term of 20 years. On this appeal from judgment of conviction defendant raises a number of issues, including the sufficiency of the evidence, the admission of certain evidence, and the adequacy of instructions. We affirm.\\nDefendant was caught and arrested as he fled from the scene of a drugstore burglary one week after the incident out of which the present charges against defendant arose. Evidence seized from defendant connected him to the burglaries with which we are concerned. The trial court also admitted, as Spreigl evidence, evidence concerning defendant's participation in both the subsequent burglary and another drugstore burglary committed several months earlier. We are satisfied that the trial court did not prejudicially err in any of its evidentiary rulings, including the ruling admitting the Spreigl evidence, and the evidence of defendant's guilt clearly was adequate to sustain the verdicts. Defendant did not object to the trial court's instructions. Notwithstanding this, we could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence. However, we are satisfied that the instructions were adequate in this respect.\\nAffirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"10684555\", \"name\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants\", \"name_abbreviation\": \"State ex rel. Powderly v. Erickson\", \"decision_date\": \"1979-10-12\", \"docket_number\": \"No. 49708\", \"first_page\": \"84\", \"last_page\": \"91\", \"citations\": \"285 N.W.2d 84\", \"volume\": \"285\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:58:46.801973+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants.\", \"head_matter\": \"STATE of Minnesota, By Edward POWDERLY, Martha Wasmund and Maxine Pfleuger, Plaintiffs, Maxine Pfleuger, Appellant, and Friends of History, Inc., etc., intervenor, Appellant, v. Claire ERICKSON and Erickson Diversified Corp., Respondents, City of Red Wing, Respondent, John Doe and Mary Roe, Defendants.\\nNo. 49708.\\nSupreme Court of Minnesota.\\nOct. 12, 1979.\\nConnolly & Heffernan, and Donald J. Heffernan, St. Paul, for appellants.\\nGrossman, Karlins, Siegel & Brill, Josiah E. Brill, Jr., and Thomas H. Goodman, Minneapolis, for Erickson, et al.\\nPatrick J. Costello, City Atty., and Henry L. Miller, Asst. City Atty., Red Wing, for City of Red Wing.\\nWarren Spannaus, Atty. Gen., Byron E. Starns, Chief Deputy Atty. Gen., and Karen G. Schanfield, Sp. Asst. Atty. Gen., State of Minnesota and Minnesota Historical Society, St. Paul, for amici curiae; Charles W. Skrief, St. Paul, of counsel.\", \"word_count\": \"3062\", \"char_count\": \"19366\", \"text\": \"WAHL, Justice.\\nPlaintiffs appeal from an order of the Goodhue County District Court refusing to enjoin demolition of two row houses in Red Wing. They challenge the court's denial of the application for intervention of the Friends of History, Inc. and the court's findings that the demolition permit was valid, that defendants have established that there was no feasible and prudent alternative, and that demolition is consistent with and reasonably required for the promotion of public health, safety, and welfare. We affirm in part, reverse in part, and remand for issuance of permanent injunction.\\nDefendant Erickson Diversified Corporation (hereinafter Erickson) operates a food market, pharmacy, and gasoline service station at the corner of Highway # 61 and Dakota Street in Red Wing, Minnesota. In 1964 it purchased the adjoining parcel of land, on which the row houses stand, for future expansion. Because no immediate expansion was planned, a manager was engaged to rent the houses but was told not to make extensive repairs. On March 31, 1978, as part of preparations to expand, Erickson petitioned the City of Red Wing to vacate the alley located south of its present store. The petition was heard and granted by the city council on April 10, 1978.\\nOn May 12,1978, the Historical Preservation Commission of Red Wing sent a letter to all property owners within 200 feet of a proposed preservation district, including the owner of the row houses, notifying them of an informal meeting to be held on May 15 to discuss the proposed Heritage Mall Preservation District. No public opinion either in favor of or against the proposed preservation district was expressed at this meeting.\\nOn May 25, after receiving- a complaint, the building inspector, the fire chief, their assistants, and the assistant manager of Erickson's inspected the row houses. As a result of that inspection, Claire Erickson, secretary of Erickson Diversified Corporation, applied for and was issued a demolition permit on May 31 and had the apartment manager give tenants 60-days notice on June 1. On June 6, the building inspector wrote to Claire Erickson specifying the defects in the row houses and stating that if demolition or renovation had not begun by August 15, the city would institute condemnation proceedings.\\nThe city council held the first reading of the ordinance establishing the Heritage Mall Preservation District on June 12. The second reading occurred July 24, and the ordinance became effective 30 days thereafter.\\nOn July 31, 1978, three citizens brought suit under the Minnesota Environmental Rights Act (MERA), Minn.St. c. 116B, to enjoin demolition of the row houses. A temporary restraining order was issued the same day. The row houses were seriously vandalized on August 1.\\nThe case was tried to the court on August 15-16, 1978. The district court found that the row houses were historical resources but that demolition was consistent with public health, safety, and welfare because of building code and fire safety violations and that defendants had no feasible and prudent alternative to meet their parking needs. On December 27, 1978, the district court denied plaintiffs' motion for a new trial and their petition to permit the Friends of History, Inc., a nonprofit corporation, to intervene.\\nThe issues raised by this appeal are: (1) whether the court erred in denying the petition for intervention; (2) whether the row houses are historical resources; (3) whether defendants have established an affirmative defense; (4) whether the demolition permit is valid; and (5) whether defendants' property has been unconstitutionally taken without just compensation.\\n1. Friends of History, Inc. moved to intervene pursuant to Rule 24, Minnesota Rules of Civil Procedure, and/or Minn.St. 116B.09, subd. 1. An application for intervention should be timely filed. See, generally, People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, 266 N.W.2d 858, 875 (Minn.1978); Note, 56 Minn.L.Rev. 575, 626. In the instant case Friends of History did not move to intervene until November 16,1978, three months after trial. At that time the court had not only issued its findings of fact and conclusions of law but had also amended those findings and conclusions upon plaintiffs' motion. In addition, Rule 24.01 permits intervention only if the interests of the intervenor are not adequately represented by the existing parties. There is no allegation in the record that Friends of History had any additional information or an interest different from plaintiffs' interest that would affect the court's decision. There is thus no showing that its interests were not adequately represented by existing parties. The district court, therefore, did not err in denying the petition for intervention.\\n2. Under MERA, plaintiffs have the burden of proving (1) the existence of a protectable natural resource, and (2) the pollution, impairment, or destruction of that resource. County of Freeborn v. Bryson, 297 Minn. 218, 210 N.W.2d 290 (1973); Minn.St. 116B.04. In the instant case there is no dispute that demolition would destroy the row houses; the only issue is whether they are protectable natural resources within the meaning of MERA.\\nFor purposes of MERA, natural resources are defined as \\\"all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources.\\\" Minn.St. 116B.02, subd. 4. No cases define the term \\\"historical resources,\\\" although there are extensive local, state, and federal programs for historical preservation. See, 16 U.S.C.A. \\u00a7 461-470t; Minn.St. 138.-51-.65, 138.71\\u2014.75; Red Wing City Code, \\u00a7 2-53-.66. Buildings, sites, and structures of local, state, or national significance are eligible for inclusion on the national register of historic sites under the following criteria:\\n\\\" The quality of significance in American history, architecture, archeology, and culture is present in districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association and:\\n\\\"(1) That are associated with events that have made a significant contribution to the broad patterns of our history; or\\n\\\"(2) That are associated with the lives of persons significant in our past; or\\n\\\"(3) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or\\n\\\"(4) That have yielded, or may be likely to yield, information important in prehistory or history.\\\" 36 C.F.R. \\u00a7 800.10(a).\\nAlthough these criteria do not control our decision, they do indicate what factors should be considered in determining whether the row houses are historical resources.\\nIn the instant case Russell Fridley, Director of the Minnesota Historical Society and the State Preservation Officer, defined an historical resource as a building, structure, or site possessing historical, archeological, or architectural value. He stated that although age was one factor to consider, not all old buildings were historically significant. Other factors Mr. Fridley considered important were: (1) who built the structure; (2) who lived in it; (3) its location; (4) its architecture; (5) unique materials; (6) quality of workmanship; (7) the structure's association with builders or important people or events in the area; and (8) its interaction with other buildings. In his opinion, the row houses are historical resources because of their age, their construction, and their association with local historical events. The north row house was built in 1870 by James Lawther, an Irish immigrant, who was highly successful in real estate. Lawther had a tremendous impact on building in Red Wing and was one of the town's greatest philanthropists. The south house was built in 1882 by Silas Foot, a mayor and famous civic leader of Red Wing, who was involved in the Foot Tanning Company. The style of the houses, although common in other parts of the country during the 19th century, was unusual in Minnesota. The row houses also occupy a key position on the mall and act as a buffer between the highway and the Heritage Mall Preservation District. Mr. Frid-ley also testified that both the row houses and the Heritage Mall Preservation District would be eligible for nomination to the national register.\\nDefendants did not rebut this evidence. Their only rebuttal witness was a registered architect who testified that he had seen buildings of similar style in the Twin Cities. He admitted that he had no prior professional experience in historical renovation or preservation, nor was he familiar with a number of local renovation projects. We find there is sufficient evidence to sustain the trial court's finding that the row houses are historical resources within the meaning of MERA.\\n3. Section 116B.04 requires defendants who do not rebut a plaintiff's prima facie case to prove (1) that there is no feasible and prudent alternative and (2) that the conduct in issue is consistent with and reasonably required for the promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources. In deciding whether defendants have established an affirmative defense under MERA, the trial court is not to engage in wide-ranging balancing of compensable against noncompensable impairments. Rather, protection of natural resources is to be given paramount consideration, and those resources should not be polluted or destroyed unless there are truly unusual factors present in the case or the cost of community disruption from the alternatives reaches an extraordinary magnitude. County of Freeborn by Tuveson v. Bryson, 309 Minn. 178, 187, 243 N.W.2d 316, 321 (1976). In Bryson a taking of agricultural land for highway construction that resulted in shortened crop rows and inconvenience in farming was considered a prudent and feasible alternative to destroying marshland. In People for Environmental Enlightenment & Responsibility (PEER), Inc. v. Minnesota Environmental Quality Council, supra, the destruction of seven or eight homes was considered insufficient to overcome the law's preference against proliferation of high voltage transmission lines and the destruction of natural resources.\\nIn the instant case defendant Erickson did not sustain its burden of proving that there was no feasible and prudent alternative to demolition of the row houses to satisfy its parking requirements. Claire Erickson testified that the corporation had not considered renovating the row houses, that it did not intend to renovate them, that it had received no offers to buy them, and that it needed the land on which the row houses stand to provide parking when it expanded its retail space. The architect who testified for Erickson stated that if the cost of renovation exceeded 50 percent of the value of the building, the building code required that the entire building be brought up to code. He believed it was impossible to remodel the row houses to bring them into compliance with the code.\\nPlaintiffs' expert, Mr. Fridley, testified that the row houses were structurally sound, that they could be renovated, and that grant money might be available to renovate them. Other witnesses agreed that the houses were structurally sound. It appears that if the row houses are renovated, they will be easily rented because the rental market in Red Wing is tight.\\nErickson did not submit any evidence regarding possible alternative parking plans which it had considered. It limited its evidence to rejecting all of plaintiffs' suggestions for possible ways to meet its parking requirements without demolishing the row houses, such as on-street angle parking, zoning variances, some smaller parking spaces designated for compact cars, etc. From all the evidence presented by both sides it appears that if Erickson expands without demolishing the row houses, it will lose approximately 10 parking spaces. This is not such an unusual circumstance or of such extraordinary magnitude as to permit the demolition of the historical resources.\\nNot only have defendants not sustained their burden of proving no feasible and prudent alternative, they have not sustained their burden of proving that demolition is \\\" consistent with and reasonably required for promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment, or destruction.\\\" (Emphasis added.) Minn.St. 116B.04. Renovation as well as demolition will remove any danger to the public caused by the current condition of these houses. Because of the state's paramount concern with the protection of its natural resources, demolition is not consistent with the public health, safety, and welfare.\\nOn the evidence before us, we reverse the district court's findings that there is no feasible and prudent alternative to demolition and that demolition is consistent with the public health, safety, and welfare.\\n4. We need not reach plaintiffs' argument that the demolition permit issued to Erickson on May 31 was not valid because it was issued while the city was considering establishing the Heritage Mall Preservation District which included the row houses. Once plaintiffs have established a prima facie case under MERA and defendants have not proven an affirmative defense, demolition is enjoined, even though the per mit is valid. Cf. County of Freeborn by Tuveson v. Bryson, 309 Minn. 178, 243 N.W.2d 316 (1976) (power of eminent domain limited by the operation of MERA).\\n5. Erickson claims that preventing demolition of the row houses constitutes an unconstitutional taking of its property without just compensation. Historic preservation ordinances have been upheld as a reasonable exercise of police power. See, Maher v. City of New Orleans, 516 F.2d 1051 (5 Cir. 1975). The restrictions on use of property which such ordinances impose do not effect a taking of property, even though the value of the property is diminished. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Maher v. City of New Orleans, supra. There is an unconstitutional taking only if all effective use of the property is prevented or if the owner is not permitted to obtain a reasonable rate of return on his investment. Penn Central Transp. Co. v. City of New York, supra; Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (Mo.App.1977). The burden of proof is on the person challenging the government's action to establish that there is an unconstitutional taking, Lafayette Park Baptist Church v. Scott, supra; Maher v. City of New Orleans, supra, or that he has been deprived of all reasonable uses of his land, e. g., Czech v. City of Blaine, 312 Minn. 535, 539, 253 N.W.2d 272, 274 (1977).\\nIn Penn Central Transp. Co. v. City of New York, supra, the owners brought suit to declare the New York Landmark Preservation Law unconstitutional when the Landmark Preservation Commission rejected the owner's plans to build a 50-story tower on top of Grand Central Terminal. The Supreme Court held there was no unconstitutional taking of property because there was no interference with the present use of the building, the owners were obtaining a reasonable return on their investment, there was no showing that the Commission would reject all plans for use of the air space above the terminal, and the owners had obtained valuable development rights which were transferable to surrounding properties because the terminal was designated a landmark. In Lutheran Church in America v. City of New York, 35 N.Y.2d 121, 359 N.Y.S.2d 7, 316 N.E.2d 305 (1974), on the other hand, the New York Court of Appeals found an unconstitutional taking of property where plaintiff was not permitted to demolish J. P. Morgan, Jr.'s house, which had been designated as a landmark. The court found that plaintiff was unable to continue its present use of the structure because it required more space and adjoining structures had already been integrated with the building. In addition, plaintiff, as a religious organization, was unable to take advantage of the ameliorative tax provisions of the act.\\nIn the instant case no evidence was admitted to establish that the value of the property might decrease if Erickson is not allowed to demolish the row houses. The evidence does indicate that it is possible to renovate and rent the row houses and, thus, continue their present use. There was no evidence that the cost of renovation was so high that Erickson would not be able to obtain a reasonable return on its investment through future rentals. Erickson, therefore, has not sustained its burden of proving that there was an unconstitutional taking of its property.\\nWe do not decide that the application of MERA to \\\"historical resources\\\" is constitutional under all circumstances. Our decision is limited to holding that the row houses are historical resources within the meaning of MERA and that defendants have not established an affirmative defense. We realize that Erickson cannot be forced to renovate the row houses under the provisions of MERA. Nor can demolition be enjoined indefinitely if Erickson refuses to renovate or sell the houses or if the city does not condemn them. See, People v. Ramsey, 28 Ill.App.2d 252, 171 N.E.2d 246 (1960). It would seem to be more fair and more efficient in such a case as this for the relevant legislative or administrative bodies to initiate condemnation proceedings with regard to these buildings within a reasonable period of time. Where control or acquisition of property is for the benefit of the many, it makes sense that the cost of the control or acquisition should be borne by all of the taxpayers and not fall on the few directly affected.\\nAffirmed in part, reversed in part, and remanded for issuance of permanent injunction.\\n. We note that on November 13, 1978, after the trial in the instant case, the Red Wing City Council adopted the proposal of the Historical Preservation Commission to relax landscaping zoning ordinances, making 92 parking spaces available to Erickson without the destruction of the row houses.\"}"
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+"{\"id\": \"10686978\", \"name\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant\", \"name_abbreviation\": \"State v. Cobb\", \"decision_date\": \"1979-05-18\", \"docket_number\": \"No. 48862\", \"first_page\": \"832\", \"last_page\": \"834\", \"citations\": \"279 N.W.2d 832\", \"volume\": \"279\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:09:53.040442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Tyrone Lee COBB, Appellant.\\nNo. 48862.\\nSupreme Court of Minnesota.\\nMay 18, 1979.\\nC. Paul Jones, Public Defender, and Eva-lynn B. Welling, Asst. Public Defender, Minneapolis, for appellant.\\nWarren Spannaus, Atty. Gen., William B. Randall, County Atty., and Steven C. De-Coster, Asst. County Atty., St. Paul, for respondent.\", \"word_count\": \"1023\", \"char_count\": \"6299\", \"text\": \"PER CURIAM.\\nDefendant was found guilty by a district court jury of aggravated robbery and was sentenced by the trial court to a 1- to 20-year prison term. On this appeal from judgment of conviction defendant contends that the trial court erred in (1) permitting in-court identification of him by three eyewitnesses because the pretrial identification procedures used violated his right to due process and his right to counsel, and (2) in permitting the prosecutor to elicit an admission from defendant on cross-examination that 2 months after the crime he had pawned property similar to that taken in the robbery. We affirm.\\nAs we indicated, there are two parts to defendant's claim that the court errlcl in permitting the in-court identification by the three eyewitnesses.\\n(a) First, defendant contends that the in-court identification of him was tainted by suggestive identification procedures. The test which is used in determining a claim such as this is whether the identification procedures were so impermissibly suggestive as to create a \\\" very substantial likelihood of irreparable misidentification. \\\" Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The focus of the test is the reliability of the identification, and all relevant factors are considered in determining this. Defendant's claim that the procedures used were suggestive is based on the use of two photographs of him in the photographic display and the fact that only three people (one with hair that was different from defendant's) participated in the lineup. We agree that there may be dangers in using two photographs of a suspect in a photographic display and only one of each of the others represented. This is especially true where the suspect looks the same in both pictures. However, in this case we are satisfied that the fact that two pictures of defendant were used did not increase the likelihood of misidentification, because each of the three eyewitnesses identified defendant as the robber before looking at the second of the two pictures. With respect to the lineup we agree that it would have been preferable if more than two people had participated in the lineup with defendant, but the lineup was a confirmatory lineup which was requested by defendant, and the eyewitnesses had all positively identified defendant before they saw him in the lineup. Considering all the relevant factors, we conclude that there was no \\\" very substantial likelihood of irreparable misidenti-fication. \\\"\\n(b) Defendant's related contention is that the admission of the in-court identification testimony was erroneous because he was denied his right to have counsel present at the lineup.\\nThe lineup was held at defendant's insistence, and the failure to notify defense counsel of the time at which it was being held was the result of a mixup. Nonetheless, defendant's right to counsel at the lineup was denied. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977). In the absence of a voluntary waiver of the right to counsel by the defendant, any evidence of the identification of a defendant at a post-accusation lineup held in the absence of defendant's counsel is inadmissible per se, and any subsequent in-court identification of defendant by the witnesses who viewed the lineup is inadmissible unless the evidence clearly and convincingly indicates that the subsequent in-court identification has a source independent of the improper lineup. The numerous factors which the court must consider in making this determination are listed in the Wade case. 388 U.S. 241, 87 S.Ct. 1940, 18 L.Ed.2d 1165. These factors are similar to the factors one considers in determining the admissibility of testimony about both in-court and out-of-court identification of a defendant which is challenged on due process grounds. A consideration of those factors here mandates the conclusion that the in-court identification in this case had an independent source and was not tainted by the error in the conduct of the lineup.\\nDefendant's only other contention concerns the propriety of permitting the prosecutor to elicit from defendant on cross-examination the damning admission that he had pawned a diamond ring 2 months after the robbery. Since the robbery with which we are concerned was a jewelry store robbery in which 18 diamond rings were taken, we believe the evidence was relevant and therefore properly admitted. There was nothing to indicate that the diamond ring that defendant pawned clearly was not one of the stolen rings and that the state had no way of proving that it was because the pawned ring apparently was no longer in the pawnbroker's possession and could not be found. Under these circumstances, the evidence was properly admitted. See, 1 Wigmore on Evidence (3 ed.) \\u00a7 152, 153; 77 C.J.S. Robbery \\u00a7 46e(5)(b). See, also, State v. Kotka, 277 Minn. 331, 152 N.W.2d 445 (1967), certiorari denied, 389 U.S. 1056, 88 S.Ct. 806, 19 L.Ed.2d 853 (1968), where, in holding that the defendant's gun was sufficiently connected with the crime charged to be admissible, we stated that in that case it did not matter that the state could not prove that the gun was the one used, so long as the state was able to show that it was \\\"[t]he type of weapon or instrument with which the crime was committed.\\\"\\nAffirmed.\\n. The witnesses had an adequate opportunity to view the robber over a 5-minute period, they were attentive witnesses, their description of the robber accurately fit defendant, they were positive in their identification of defendant, and their initial photographic identification of defendant took place shortly after the crime.\"}"
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+"{\"id\": \"10697284\", \"name\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent\", \"name_abbreviation\": \"Willis v. County of Sherburne\", \"decision_date\": \"1996-10-31\", \"docket_number\": \"Nos. C6-95-363, C5-95-371\", \"first_page\": \"277\", \"last_page\": \"284\", \"citations\": \"555 N.W.2d 277\", \"volume\": \"555\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:25:00.272723+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent.\", \"head_matter\": \"Galen WILLIS, Petitioner, Appellant (C6-95-363), Respondent (C5-95-371), v. The COUNTY OF SHERBURNE, Petitioner, Respondent (C6-95-363) Appellant (C5-95-371), Dan Nickols, Respondent.\\nNos. C6-95-363, C5-95-371.\\nSupreme Court of Minnesota.\\nOct. 31, 1996.\\nFrederick E. Finch, John M. Buckley, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for Willis.\\nMichael J. Ford, Kenneth H. Bayliss, Quinlivan, Sherwood, Spellaey & Tarvestad, P.A., St. Cloud, for Sherburne County.\\nJeff M. Zalasky, Lauri A Vranyes, Erstad & Riemer, P.A., Minneapolis, for Niekols.\", \"word_count\": \"4503\", \"char_count\": \"28691\", \"text\": \"OPINION\\nCOYNE, Justice.\\nOn the petition of plaintiff Galen Willis and conditional petition of defendant Sherburne County we review an unpublished decision of the court of appeals, Willis v. County of Sherburne, Nos. C6-95-363, C5-95-371, 1995 WL 479640 (Minn.App., Aug. 15, 1995). Following termination of his employment, Willis sued Sherburne County and Dan Niekols, alleging that the county had wrongfully discharged him, breached his employment contract, discriminated against him because of a medical disability, and defamed him and alleging that Niekols had wrongfully interfered with his employment. The district court granted the defendants' motions for summary judgment with respect to Willis' wrongful termination claim but denied the motions with respect to Willis' claims of breach of contract, discrimination and defamation and the claim that Niekols interfered with Willis' prospective business advantage. The district court granted the plaintiffs contemporary motion to amend his complaint. On appeal the court of appeals affirmed summary judgment dismissing the wrongful discharge claim and ruled that because Willis had not proceeded by timely writ of certiorari, the court also lacked subject matter jurisdiction -with respect to Willis' breach of contract claim. Denial of summary judgment with respect to claims of defamation and disability discrimination was affirmed. We affirm the decision of the court of appeals.\\nIn his amended complaint, Willis makes these allegations: Willis was employed in 1988 as an appraiser in the office of the Sherburne County Assessor. In 1989 he became manager of the newly created mapping department within the county assessor's office. In June of 1990 the Sherburne County Board established a Geographic Information System (GIS) designed to create a database of geographical information which could be used to implement a countywide 911 emergency dispatch system, land use planning and other public uses. On June 6,1990 the county board reorganized the mapping department as a separate county department known as Land Information/Mapping Office and appointed Willis as department director.\\nAs director of the Land Information/Mapping Office, Willis reported directly to the board of county commissioners, and on his recommendation the board authorized the employment of a registered land surveyor to perform the surveying work previously contracted with outside surveyors. Willis hired Dan Niekols, a licensed surveyor, who was later appointed Sherburne County Surveyor.\\nIn January 1991 Willis suffered an acute episode of multiple sclerosis. He advised Commissioner Michael Johnson, the chairman of the county board, of his illness, saying that although it affected his physical coordination, it did not impair his ability to do his job. Johnson assured Willis that his job was not in danger, but he suggested that Willis not inform David Loch, the county coordinator, that he had multiple sclerosis. Willis did not inform Loch but from time to time he discussed his condition with other county department heads.\\nAccording to Willis, Niekols came to resent Willis' supervision and \\\"began to undermine Willis' authority.\\\" Then Niekols became openly critical of Willis' qualifications, complaining to members of the county board and other county officials about Willis' management of the department and that Willis was not a licensed surveyor. At about the same time, the county commissioners began to receive anonymous letters accusing Willis of malfeasance and misfeasance in the performance of his duties. On information and belief, Willis alleges that Niekols wrote or solicited the writing of those letters in order to undermine the board's confidence in Willis' ability to manage the Land Information/Mapping Office.\\nWillis alleges that the county board failed to investigate charges made by Niekols and the anonymous letter writers. Willis also asserts that his job performance was discussed at both open meetings of the board and one or more closed meetings with Niek-ols, from which Willis was excluded. Willis also accuses the newspapers of Sherburne County of printing Niekols' and some county commissioners' factually inaccurate statements about Willis.\\nIn April or May of 1993 the county board split the Land Information/Mapping Department into two divisions. Niekols became supervisor of the mapping division and Willis remained as head of the Geographic Information System (GIS) division.\\nDespite the. chairman's assurance that Willis' job was not in jeopardy, on June 8, 1993, the GIS operation was assigned to the mapping division and Willis was directed to report to Niekols.\\nA day or two later Willis told Niekols of his multiple sclerosis and informed Niekols that his condition precluded participation in field survey operations. Willis also says he requested confidentiality with respect to his illness but that within a few days Niekols advised him that he had discussed the matter with \\\"friends\\\" and that he was going to disclose the information to the board or to David Loch, the county coordinator.\\nOn June 15, 1993 the board terminated Willis' employment. Willis alleges that discontinuance of the GIS project was the stated reason for his discharge but that the project has continued under Niekols' supervision. Willis complains that the county did not reassign him to other county employment for which he is qualified by virtue of education, experience and background.\\nAbout 9 months after he was discharged, Willis commenced this action against Sher-burne County and Niekols alleging breach of contract by reason of termination of his employment without just cause, disability discrimination, defamation and interference with prospective advantage. The defendants moved for summary judgment on the ground that the court lacked subject matter jurisdiction because a petition for certiorari provides the exclusive means by which an employee can secure judicial review of the county's employment determination decision. The district court granted summary judgment dismissing Willis' claim for wrongful termination but also granted Willis' motion to amend his breach of contract count to assert what Willis characterizes as a \\\"pure breach of contract claim.\\\" At the same time the district court denied summary judgment with respect to the claims of breach of contract, disability discrimination, defamation and intentional interference with prospective business advantage.\\nThe defendants appealed denial of their motions for summary judgment. The court of appeals affirmed the judgment of dismissal with respect to the claim of wrongful termination and the denial of summary judgment with respect to the claims of disability discrimination and defamation but reversed the denial of judgment dismissing the breach of contract claim.\\nWe review the decision of the court of appeals on petitions of both Willis and the county. Willis seeks reversal of the dismissal of his breach of contract count, contending that Dietz v. Dodge County, 487 N.W.2d 237 (Minn.1992), should be overruled or substantially limited. The county, on the other hand, would have us extend the rule announced in Dokmo v. Independent School Dist. No. 11, 459 N.W.2d 671 (Minn.1990), and applied in Dietz, to include claims of defamation and discrimination arising out of the discharge of an employee of a local government.\\nCertainly, as the court of appeals recognized, there can be little doubt that the correct interpretation and application of Dietz v. Dodge County, 487 N.W.2d 237 (Minn.1992), governs the disposition of the present case.\\nThe circumstances giving rise to both the Dietz case and the present case are markedly similar. About 6 months after the county had terminated Ms. Dietz' employment, she commenced an action for wrongful discharge. About 9 months went by before Willis commenced this action in which he complained of wrongful discharge in a count entitled \\\"Breach of Contract.\\\" In both cases the district court properly dismissed the claim for wrongful discharge. In the present case, however, the district court contemporaneously permitted Willis to amend his complaint to assert what he contends is a \\\"pure\\\" breach of contract claim. Following the erroneous trail laid down by the court of appeals in Stadum v. Norman County, 508 N.W.2d 217, 219 (Minn.App.1993), pet. for rev. denied, (Minn. Jan. 6, 1994) (holding Dietz inapplicable to a \\\"pure breach of contract\\\" claim), the district court ruled that Willis was not limited to review by certiorari and denied the defendants' motion for dismissal of the breach of contract count.\\nWhat the district court faded to recognize, however, is that Dietz, as well as Willis, brought an action grounded on breach of contract. Willis would have us render Dietz a victim of creative pleading: if the claimant calls it an action for wrongful discharge, he or she is limited to review by certiorari, but if the claimant calls the action, one for breach of contract, the action is to be regarded as an ordinary action for failure to perform on a contract for goods or services. This despite the fact that the amendment of Willis' complaint consisted only of the following: \\\"23. Willis's employment contract provided that Willis would not be terminated except for just cause\\\" was amended to state \\\"23. Willis' employment contract provided certain criteria for the [sic] Sherburne County to follow when terminating or laying off employees.\\\" The next paragraph of the complaint, \\\"24. Sherburne County breached the employment contract by terminating Willis without just cause\\\" was amended to state \\\"24. Sherburne County breached the employment contract by terminating Willis without following the procedures and policies set out in the employment contract.\\\" All other allegations of the complaint remain unchanged, including the allegations set out at paragraph 26: \\\"26. As a result of the County's breach of contract, Willis has suffered lost wages and benefits in the past and will continue to lose wages and benefits in the future all in an amount to be proven at trial.\\\" Willis' prayer for relief also remains unchanged: he demands judgment ordering his reinstatement to a position with the county; awarding him back pay, front pay, and the value of lost fringe benefits including pension contributions, medical benefits and other benefits offered by the county, and awarding him damages for mental anguish caused by the defendant's wrongful acts. What Willis is really demanding is specific performance of his alleged employment agreement, a remedy which this court has observed is unavailable in an action for breach of an employment contract. Bussard v. College of St. Thomas, Inc., 294 Minn. 215, 228, 200 N.W.2d 155, 163 (1972).\\nWhen Dietz is read as it was written, it is quite apparent that Dietz' complaint stated an action for breach of her employment contract. Dietz alleged that her employment contract provided that she could be discharged only \\\"for cause\\\" and she contended that the county had breached that contract by discharging her without cause. Therefore, she argued, she should have access to the courts to seek damages for such wrongful discharge. This court was not persuaded that framing the complaint as one for breach of contract avoided the necessity to proceed by writ of certiorari.\\nAfter remarking that the principles governing review of quasi-judicial decisions of executive bodies had recently been reiterat ed in Dokmo v. Independent School Dist. No. 11, 459 N.W.2d 671 (Minn.1990), we stated in Dietz that our decision was \\\"informed by and consistent with Dokmo \\\" although it was not dependent on Dokmo. Dietz, 487 N.W.2d at 239.\\nWe then set out, in what we have regarded as reasonably straightforward language, four of the several reasons for our decision:\\nFor several reasons we conclude that writ of certiorari was the only mechanism by which Dietz could obtain judicial review of the county's decision to terminate her employment. First, Dietz was not entitled by statute to appeal the decision by traditional means. The county, not having statewide jurisdiction, is not subject to the Minnesota Administrative Procedure Act, Minn.Stat. \\u00a7 14.02, subd. 2 (1990), and no statute specifically provides appeal to the courts from an administrative decision to terminate a county nursing home administrator. See, e.g., Minn.Stat. ch. 144A (1990); Minn.Stat. \\u00a7 376.55, et seq. (1990).\\nSecond, because of the nature of the board's action upon which this dispute centers, the standard of review on certiorari is more appropriate to a review of the exercise of the board's discretion than would be the standard of review of an independent proceeding. Her request for reinstatement and damages for mental anguish highlights the fact that her claim is not an ordinary action for failure to perform on a contract for goods or services. The cause of action alleged in Dietz's complaint would require the rights and liabilities of the parties to be fixed not by the terms of the contract, but by the propriety of the county's exercise of discretion in terminating her. Compare Oikari v. Independent School Dist. No. 10, 170 Minn. 301, 212 N.W. 598 (1927); Backie v. Cromwell Consolidated School Distr. No. 13, 186 Minn. 38, 242 N.W. 389 (1932) (actions for salary in which the plaintiffs alleged their employment contracts were for a specified term). The issue which Dietz would have the court review demands scrutiny of the manner in which the county has discharged its administrative function; the very type of scrutiny that runs a grave risk of usurping the county's administrative prerogative. Thus, to the extent that she has characterized her contract as requiring cause to dismiss, she has raised a threshold issue which at least arguably renders the county's termination decision quasi-judicial in nature, warranting the issuance of writ of certiorari. See, e.g., State ex rel. Furlong v. McColl, 127 Minn. [155] at 160, 149 N.W. 11 [(1914)]; State ex rel. McGinnis [v. Police Civil Service Commission of Golden Valley], 253 Minn. [62] at 70-71, 91 N.W.2d 154 [(1958)].\\nThird, whether she entered into a \\\"for cause\\\" or \\\"at will\\\" employment contract is a question of law that is appropriate for review on certiorari. While the record in this case plainly falls short of a record generated in formal judicial proceedings, it is certainly adequate to ascertain the type of employment contract to which Dietz was a party.\\nFinally, in terms of practicality and cost, this case vividly illustrates the inappropriateness of permitting Dietz to obtain judicial review of the county's termination decision by way of a wrongful termination claim. A six-year statute of limitations, extensive discovery procedures, and a panoply of rules attend her cause of action. As a direct consequence, her wrongful ter mination claim remains unresolved and largely unexamined by the courts almost nine years after the termination of her employment.\\nDietz, 487 N.W.2d at 239-40 (footnote omitted).\\nJust as in Dietz, Willis complains that the county breached his employment contract by failing to follow the termination and lay-off procedures specified in the county's employee handbook. Just as in Dietz, Willis requests reinstatement, back pay, lost fringe benefits, and front pay. Just as in Dietz, the cause of action Willis alleges does indeed require the rights and liabilities of the parties to be fixed by the propriety of the county's decision to discharge him.\\nWillis urges us to adopt the rationale of Stadum v. Norman County, 508 N.W.2d 217, 219 (Minn.App.1993), even though the fact that Stadum, unlike Willis, did not demand reinstatement may account for the decision in Stadum. Although we denied further review of the decision of the court of appeals in the Stadum ease, we observe here that the Stadum decision does not represent a definitive statement of the law of Minnesota until adopted by this court, and we now specifically reject the rationale of Stadum v. Norman County.\\nRegardless that the claim is cloaked in the mantle of breach of contract, when the alleged breach of the employment contract of a governmental employee results in termination of the claimant's employment by an executive body which does not have statewide jurisdiction \\u2014 for example, a county \\u2014 the claimant may contest the employer's action by certiorari alone, absent statutory authority for a different process. Just as Ms. Dietz was required to proceed by writ of certiorari, so also is Willis.\\nWillis would have us believe that his breach of employment contract count does not implicate the county's decision to discharge him. Just how a discharged employee can demonstrate the county's breach of termination and layoff procedures without implicating the county's decision to discharge escapes us. Furthermore, although reinstatement, back pay and fringe benefits may be available in the statutory action for alleged disability discrimination, the prayer for relief is not limited to the Human Rights Act count; the several counts are included in a single action which Willis clearly wants tried as a unit; and it seems to us singularly unlikely that wrongful termination and a demand for reinstatement, back pay and fringe benefits will not migrate from the discrimination claim to the \\\"pure\\\" breach of contract count. If, however, Willis demands bifurcation of his claims with his \\\"pure\\\" breach of contract tried by a jury, we note that the only prayer for relief set forth in his complaint is for reinstatement, back pay, fringe benefits and damages for mental anguish. So much for Willis' \\\"pure\\\" breach of contract action.\\nThe county also contests the determination that the district court has subject matter jurisdiction over Willis' claims of defamation and disability discrimination. The county contends that the defamation and discrimination claims \\\"arise out of a common nucleus of operative facts\\\" which led to termination of Willis' employment and that, therefore, his only recourse lies in certiorari. As both the district court and court of appeals observed, however, the defamation Willis alleges occurred over a period of time which began more than a year before he was discharged and was separate and distinct from the termination of his employment. We agree with the court of appeals' conclusion that because the district court's \\\"necessary inquiry into what the county board knew about the truth or falsity of those letters before publishing them to a third party will not involve any inquiry into the county board's discretionary decision to terminate Willis,\\\" Willis' common law defamation action does not fall within the principle explicated in Dietz.\\nFinally, we agree that Willis' claim of disability discrimination proscribed by the Minnesota Human Rights Act is not limited to review by certiorari. See Minn.Stat. \\u00a7 363.03, subd. 2 (1992). Minn.Stat. \\u00a7 363.14, subd. 2 (1992) provides that an action for disability discrimination may be brought in district court. Unlike Ms. Dietz, who had no statutory right to appeal the county board's termination decision by traditional means, Willis has available a statutory cause of action pursuant to the Human Rights Act.\\nAlthough the county's assertion that Willis' disability discrimination claim has been included in order to obtain judicial review of the county's decision to discharge him may be correct, we are constrained to point out that the Minnesota Human Rights Act's prohibition against employment discrimination is applicable to the state and its political subdivisions as well as to private sector employers. Minn.Stat. \\u00a7 363.01, subd. 28 (1992). Moreover, in Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114 (Minn.1991), this court held that when a school board was required to judge not only an employee's conduct but also whether the school district itself had engaged in unlawful discrimination against the employee, the discharged employee was entitled to pursue her retaliatory discharge action. Accordingly, even though prosecution of the alleged violation of the Minnesota Human Rights Act may implicate at least some aspects of the decision to discharge Willis, we affirm the determination that the district court has subject matter jurisdiction of Willis' disability discrimination action pursuant to the Minnesota Human Rights Act.\\nAffirmed and remanded to the district court for further proceedings in accordance with this opinion.\\n. Although an order denying a motion to dismiss is generally nonappealable, an order denying a motion to dismiss for lack of jurisdiction is immediately appealable of right. Hunt v. Nevada State Bank, 285 Minn. 77, 88-89, 172 N.W.2d 292, 299-300 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1239, 25 L.Ed.2d 423 (1970).\\n. The historical origin of the availability of review on certiorari of executive branch matters is found in State ex ret Ging v. Bd. of Educ. of Duluth, 213 Minn. 550, 570-71, 7 N.W.2d 544, 556 (1942) (citations omitted), overruled in part on other grounds, where this court said:\\nComplete jurisdiction cannot, either directly or indirectly, be conferred upon the courts [to review school board decisions] in view of the constitutional division of the powers of government. [Y]et a limited jurisdiction by way of certiorari, and in some cases by statutory ap peal, is conferred upon the courts. This is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it. A court cannot put itself in the place of the board, try the matter de novo, and substitute its findings for those of the board. Errors of the board committed within its jurisdiction are not subject to review. As said in Lindquist v. Abbett, 196 Minn. 233, 240, 265 N.W. 54, 57, \\\"executive officers as well as judges have a power to decide erroneously as well as rightly. There is a wide field wherein their decision, even though wrong, is final.\\\"\\nIt is significant that the tenure act itself gives no right of appeal, leaving a discharged teacher only the right to a review by a prerogative writ; \\\"writs, such as certiorari, cannot be used to review decisions purely of fact or to determine the weight of evidence, nor to review decisions based upon conflicting evidence.\\\"\\n. The dissent treats Dietz as if it deprives Willis of a remedy. It does not; it simply specifies the appropriate remedy \\u2014 a timely writ of certiorari. That Willis failed to seek the proper remedy in a timely fashion cannot be laid at the door of Dietz or its predecessors. Because Dietz applied a principle adopted not later than 1942, State ex rel. Ging v. Board of Educ. of Duluth, 213 Minn. 550, 7 N.W.2d 544 (1942), overruled in part on other grounds, and reaffirmed in 1990, Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671 (Minn. 1990), Dietz cannot be said to have announced a new rule nor should its holding have come as a surprise.\"}"
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+"{\"id\": \"10702470\", \"name\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant\", \"name_abbreviation\": \"Continental Casualty Insurance Co. v. Teachers Insurance Co.\", \"decision_date\": \"1995-06-06\", \"docket_number\": \"No. C6-95-170\", \"first_page\": \"275\", \"last_page\": \"279\", \"citations\": \"532 N.W.2d 275\", \"volume\": \"532\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:13:34.198462+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by HARTEN, P.J., and RANDALL and HOLTAN, JJ.\", \"parties\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant.\", \"head_matter\": \"CONTINENTAL CASUALTY INSURANCE COMPANY, Respondent, v. TEACHERS INSURANCE COMPANY, a/k/a Horace Mann Insurance Company, Appellant.\\nNo. C6-95-170.\\nCourt of Appeals of Minnesota.\\nJune 6, 1995.\\nReview Denied July 27, 1995.\\nMichael W. McNee, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, Minneapolis, for respondent.\\nEric J. Magnuson, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, P.L.L.P., Minneapolis, for appellant.\\nConsidered and decided by HARTEN, P.J., and RANDALL and HOLTAN, JJ.\\nRetired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1655\", \"char_count\": \"10567\", \"text\": \"OPINION\\nHARTEN, Judge.\\nAppellant Teachers Insurance Company, a/k/a Horace Mann Insurance Company (Horace Mann), challenges the summary judgment against it, claiming that the district court erred by concluding that it was liable in contribution to respondent Continental Insurance Company (Continental) under a Horace Mann policy and under principles of equitable contribution. We affirm.\\nFACTS\\nOn April 3,1990, a motor vehicle driven by an uninsured motorist struck Michael Lyns-key while he was walking across a street in Fort Myers Beach, Florida. Lynskey sustained serious personal injuries as a result of the accident. Lynskey and his wife were named insureds under two uninsured motorist policies' \\u2014 -one with Continental, and the other with Horace Mann.\\nSince the Lynskeys were required by statute to select coverage under only one policy, they selected benefits under the Continental policy, which had a coverage limit of $500,-000, rather than the Horace Mann policy, which had a coverage limit of $100,000. Continental subsequently paid its policy limits to the Lynskeys in return for a release of all claims against Continental and an assignment of any claims the Lynskeys had against Horace Mann.\\nIn July 1993, Continental sued Horace Mann and moved for summary judgment, claiming that Horace Mann is liable in contribution as a matter of law pursuant to its policy language and principles of equitable contribution. Horace Mann asserted that Minn.Stat. \\u00a7 65B.49 precludes any basis for joint liability between Continental and Horace Mann.\\nThe district court granted Continental's motion for summary judgment, concluding that Horace Mann was liable in contribution under both the language of its policy and principles of equitable contribution. The court ordered Horace Mann to pay Continental $83,333.30 in accordance with the terms of its policy. Horace Mann appeals.\\nISSUES\\n1. Did the district court err by concluding that Horace Mann was liable in contribution pursuant to the terms of its policy?\\n2. Did the district court err by concluding that Horace Mann was liable in contribution under principles of equitable contribution?\\nANALYSIS\\nHorace Mann claims that the district court erred by granting summary judgment for Continental. On appeal from summary judgment, this court must determine \\\"(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.\\\" State ex rel. Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The parties agree that there are no genuine issues of material fact. The question, therefore, is whether the district court erred in its application of the law. A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).\\n1. Horace Mann claims that it cannot be liable to Continental under its policy because Minn.Stat. \\u00a7 65B.49 (1990) renders its policy inapplicable. That section provides that if a pedestrian is injured by an uninsured motorist\\nthe injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is insured.\\nId., subd. 3a(5). Horace Mann contends that under Dohman v. Housely, 478 N.W.2d 221 (Minn.App.1991), pet. for rev. denied (Minn. Feb. 11, 1992), once the Lynskeys selected coverage under Continental's policy, Horace Mann's policy was no longer applicable.\\nIn Dohman, an uninsured motorist drove over police officer Dohman's foot, causing serious injury. Id. at 223. The city insured Dohman's squad car through the League of Minnesota Cities Insurance Trust (the League), and Dohman had personal automobile insurance through State Farm Mutual Automobile Insurance Company (State Farm). Id. Both policies provided uninsured motorist coverage. Id. Dohman sued State Farm for benefits and State Farm sought contribution or indemnification from the League. Id.\\nThe district court granted summary judgment to State Farm, determining that Doh-man was an \\\"occupant\\\" of the police squad car and that the League was responsible to provide primary insurance to Dohman. Id. We held that the district court erred when it concluded that Dohman was \\\"occupying\\\" his police car at the time of the accident. Id. at 224. We therefore looked to Minn.Stat. \\u00a7 65B.49, subd. 3a(5), and determined that Dohman was entitled to select any one limit of liability, either that of the League or that of State Farm. Id. at 225. Since Dohman sued State Farm, we concluded that State Farm was hable to Dohman for uninsured motorist benefits under its policy. Id.\\nAlthough Dohman touches upon the issue here, it is not squarely on point. We decided only that State Farm was liable to Dohman for uninsured motorist benefits. We did not decide whether the League owed a duty of contribution to State Farm. Nor did we interpret an \\\"other coverage\\\" provision. Consequently, Dohman is not controlling here.\\nContinental argues that since section 65B.49 is silent on contribution and the Horace Mann policy explicitly provides for contribution in its \\\"other coverage\\\" provision, Horace Mann should contribute. We agree. The relevant portion of the Horace Mann policy provides:\\nIf the insured is injured as a pedestrian or while occupying your car and other unin- snred motor vehicle coverage applies:\\n2. we are liable only for our share. Our share is that percent of the damages that the limit of liability of this policy bears to the total of all uninsured motor vehicle coverage applicable to the accident.\\n(Emphasis omitted.) Continental claims that interpreting this \\\"other coverage\\\" provision to provide coverage in this situation is consistent with Minnesota law, which generally accommodates policy language providing coverage broader than that required by statute. See, e.g., Minn.Stat. \\u00a7 65B.49, subd. 7 (1990) (insurer may provide more coverage than statutory minimum); Krueger v. State Farm Fire & Cas. Co., 510 N.W.2d 204, 209 (Minn.App.1993) (an insurance policy can include broader coverage than the minimum statutory requirements).\\nHorace Mann argues that the district court's holding is contrary to the express language in its policy because the \\\"other coverage\\\" provision requires that more than one policy apply to a loss before that clause will be triggered. Since only the Continental policy applies, the argument goes, the \\\"other coverage\\\" provision is never triggered. As Continental points out, however, under Horace Mann's interpretation, the \\\"other coverage\\\" provision would be useless in Minnesota because more than one policy would never be applicable after an injured pedestrian elects coverage. See Wyatt v. Wyatt, 239 Minn. 434, 437, 58 N.W.2d 873, 875 (1953) (\\\"A construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction.\\\").\\nMoreover, the legislative history of section 65B.49 shows no intent to limit contribution under these circumstances. In 1985, the legislature amended section 65B.49, subd. 3a (formerly subd. 4) to prohibit judicially-imposed stacking of uninsured and un-derinsured coverages. 1985 Minn.Laws ch. 168, \\u00a7 11; In re State Farm Mut. Auto. Ins. Co., 392 N.W.2d 558, 561 (Minn.App.1986). The 1985 amendments also added subd. 3a(5) (formerly subd. 4(5)), which ties particular accident types to particular limits of coverage:\\n[I]f at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underin-sured motorist coverages available to the injured person is the limit specified for that motor vehicle.\\nIf at the time of the accident the injured person is not occupying a motor vehicle, the injured person is entitled to select any one limit of liability for any one vehicle afforded by a policy under which the injured person is named insured.\\n1985 Minn.Laws. ch. 168, \\u00a7 11. The legislature's intent in enacting the 1985 amendments was to limit the total coverage available to injured persons. We find no evidence, however, that the legislature also intended to limit contribution that is expressly provided for in insurance policies.\\nWe hold that the legislature did not intend for section 65B.49, subd. 3a(5) to render an unselected policy inapplicable to such extent that a duty to contribute under a pertinent \\\"other coverage\\\" clause is avoided. Horace Mann's \\\"other coverage\\\" clause plainly provides liability where other insurance policies apply. When Lynskey was injured, both the Horace Mann policy and the Continental policy applied. By selecting coverage under one policy, Lynskey was merely choosing the total limit of coverage receivable; he was not limiting Continental's right to contribution from Horace Mann under the plain terms of Horace Mann's policy.\\n2. Since we conclude that Horace Mann is liable in contribution to Continental pursuant to the Horace Mann policy, we need not address whether Continental has an equitable right to contribution.\\nDECISION\\nThe district court correctly applied the law when it awarded summary judgment in favor of Continental on its contribution claim against Horace Mann.\\nAffirmed.\\n. Minn.Stat. \\u00a7 65B.49, subd. 3a requires pedestrians who are injured by uninsured motorists and who have more than one uninsured motorist policy to select coverage under one policy.\\n. Under the terms of Horace Mann's policy, it agreed to pay that percent of the damages that the limit of liability of its policy bears to the total of all uninsured coverage applicable to the accident. Accordingly, the court ordered it to pay \\u215b ($100,000/$600,000) of the $500,000 total damages.\\n. The statute has been interpreted to allow contractual stacking. Austin Mut. Ins. Co. v. Temptin, 435 N.W.2d 584, 587 (Minn.App.1989), pet. for rev. denied (Minn. Apr. 24, 1989).\"}"
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diff --git a/minn/107047.json b/minn/107047.json
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+"{\"id\": \"107047\", \"name\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT\", \"name_abbreviation\": \"In re Improvement of Lake of the Isles Park\", \"decision_date\": \"1922-04-21\", \"docket_number\": \"No. 22,718\", \"first_page\": \"39\", \"last_page\": \"44\", \"citations\": \"152 Minn. 39\", \"volume\": \"152\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:41:31.960026+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, J., took no part.\", \"parties\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT.\", \"head_matter\": \"IN RE IMPROVEMENT OF LAKE OF THE ISLES PARK. ANDREAS UELAND, APPELLANT.\\nApril 21, 1922.\\nNo. 22,718.\\nPark left in natural state special benefit to neighboring land.\\n1. Special 'benefits to lands in the locality of a -tract acquired and dedicated to -the public as -a park m-ay result from such -acquisition and dedication, although -the land is left in its natural state, and there may be an immediate assessment of such benefits.\\nSuccessive levies may be made for different improvements.\\n2. Successive special assessments may be levied if they are not for the same improvement. The power ito levy them is continuous and coextensive with benefits received.\\nCurbs and gutters on adjacent street do not. require concurrence of city council.\\n3. Under chapter 185, Laws 1911 as amended, curbs and gutters along the side of a street upon which a -park 'borders may be included in a special' assessment for benefits resulting from the improvement of the park, and the concurrence of the city council in the resolution of the park board authorizing the improvement is not necessary.\\nWhether public interest will be served not considered on appeal.\\n4. Whether or not the public interests will be served by a public improvement is a political and not a judicial question.\\nAndreas Ueland filed objections to tbe confirmation of tbe commissioners\\u2019 report to the board of park commissioners of\\\\the city of Minneapolis in tbe matter of tbe improvement of tbe Lake of tbe Isles Park. From tbe order confirming the report, objector appealed to tbe district court for Hennepin county where tbe appeal was beard by Montgomery, J., who confirmed tbe report, and appointed commissioners to reassess tbe benefits. From tbe final order, Jelley, J., confirming tbe report of tbe reassessment commissioners, Andreas Ueland, Frank C. Murray and others appealed.\\nAffirmed.\\nUeland & Ueland, for appellant.\\nJames D. Shearer, for respondent.\\nReported in 188 N. W. 59.\", \"word_count\": \"1788\", \"char_count\": \"10275\", \"text\": \"Lees, O.\\nThis is an appeal by a property owner from tbe order reviewed in Improvement of Lake of tbe Isles Park, supra, page 29, in which many of tbe questions raised on this appeal are disposed of. We shall refer only to those which were not there involved.\\nIn 1890 tbe park board purchased and designated as a park 25 acres >of land south of Lake Calhoun. Tbe purchase price was $113,000. Tbe board resolved to assess that amount upon lands specially benefited. Appellant's property was accordingly assessed $3,320, and tbe assessment was paid. In 1908 tbe board acquired additional land on the shore of the lake for a- parkway and another assessment of $498 was levied on appellant's property and paid. About 10 acres of the tract first purchased was low marshy ground, not then in condition to be used for any purpose. The second tract was not passable for vehicles. The park board now proposes to improve both tracks of low land and to assess two-thirds of the cost upon private property specially benefited, including appellant's property already assessed as above stated. He strenuously objects on the ground that this will' be a second assessment for the same benefit. If that be true, the assessment cannot be sustained. State v. District Court for St. Louis County, 66 Minn. 161, 68 N. W. 860. Prior to the enactment of the Elwell Law, the special acts applicable to Minneapolis provided that, as soon as the amount required for the purchase and condemnation of land selected for a park or parkway had been ascertained with reasonable certainty, the park board should determine what percentage, if. any, of the amount so ascertained, should be assessed upon the lands benefited by such park or parkway. Chapter 281, p. 404, Sp. Laws 1883, and chapter 30, p. 560, Sp. Laws 1889. Assessments were limited to a percentage of the cost of the land. No authority was granted to assess for benefits from the improvement of the land. The resolution for the first assessment contained the explicit statement that it was for 100 per cent of the cost of the land. Clearly no assessment was authorized and none was levied for benefits which might result from subsequent improvements. The conclusion would seem to follow that the assessment now levied is for new benefits.\\nAppellant vigorously combats this conclusion. He insists that it is absurd to say that his land was benefited by having the marsh in front of it owned by the city instead of by private individuals; that there could be no valid assessment except for actual benefits, which could only accrue when the unsightly spot was transformed into a park or parkway, and that the previous assessments included the cost of the land and benefits resulting from putting it to the use for which it was acquired. The argument is plausible and is reinforced by a dictum in the opinion of Mr. Justice Mitchell in State v. District Court for St. Louis County, 66 Minn. 161, 68 N. W. 860, and by the definition of \\\"park\\\" and \\\"parkway\\\" in Kloepfert v. City of Minneapolis, 90 Minn. 158, 95 N. W. 908, but we are unable to give it our approval. When land is acquired for and designated as a public park, the owners of adjoining lands have the assurance that an open plot of ground, either in its natural state or with such additions as are appropriate for parks and parkways, will be permanently maintained. They are assured against the uses to which it may be put while privately owned, uses which not infrequently are detrimental to the value of adjacent lands.'\\nThe first step in the establishment of a park is to acquire the land and dedicate it to public use. This alone may enhance the value of property in the neighborhood, although the land is left in a state of nature. It may even confer greater benefits than the subsequent improvement or adornment of the land, and an immediate assessment of such benefits may be made. Thus in State v. District Court of Ramsey County, 75 Minn. 292, 77 N. W. 968, an assessment to cover part of the purchase price of Phalen Park was levied as soon as the land was acquired, and in Foster v. Board of Park Commrs. 133 Mass. 321, followed in Jones v. Met. Park Commrs. 181 Mass. 494, 64 N. E. 76, and cited with approval in Wilson v. Lambert, 168 U. S. 611, 18 Sup. Ct. 217, 42 L. ed. 599, it was held that a betterment assessment could be laid for locating and laying out a park before the park was completed. In Foster v. Board of Park Commrs. 131 Mass. 225, it was held that there could be no\\u00a1 assessment for the estimated expense of constructing a park in the future. The reason given was that it might be constructed at a less expense or not constructed at all, hence it was necessary that the expense should actually be paid or incurred. This seems obvious, for the cost of an improvement necessarily enters into every special assessment. Until it has been ascertained with some degree of certainty, there is no basis for an assessment. The previous assessments upon appellant's land were ordered before any improvements were made or directed. There was no undertaking to make future improvements and no duty to make them was imposed by statute. If benefits had been assessed on that basis, the assessment could not have been sustained. An assessment cannot be levied for benefits not secured, In re Minne- tonka, 56 Minn. 513, 519, 58 N. W. 295, 45 Am. St. 494, or in excess of actual benefits, State v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B; 189. We conclude that the previous assessments were neither authorized nor levied for benefits other than such as resulted from the acquisition of the land in its natural state.\\nOur attention has not been called to any obstacles to successive special assessments if they are not for the same improvement. This court has said that the power to levy such assessments is continuing and coextensive with benefits received, and, whenever its exercise becomes again necessary by reason of the inutility of the original improvement, it may be again exerted. Karst v. St. Paul S. & T. F. B. Co. 22 Minn. 118; State v. District Court of Ramsey County, 80 Minn. 293-310, 83 N. W. 183; McMillan v. Board of Co. Commrs. of Freeborn County, 93 Minn. 16, 100 N. W. 384, 1125. The authorities generally support this view. Dillon, Mun. Corp. (4th ed.) \\u00a7 780; (5th ed.) \\u00a7 1151; Page & Jones, Taxation by Assessment, \\u00a7 954; McKevitt v. Hoboken, 45 N. J. Law, 482; Sheley v. City of Detroit, 45 Mich. 431, 8 N. W. 52; Shannon v. Omaha, 73 Neb. 507, 103 N. W. 53, 106 N. W. 592.\\nIt is contended that the assessment is void because in part it is to pay for curbstones, gutters and sidewalks on streets upon which the parks or parkways abut and there was no concurrent resolution by the city council as provided by sections 1 and 6 of the Elwell Law. We are of the opinion that such a resolution is not necessary where a park bordering on a street is to be thus improved. Streets come in contact with parks and parkways. To complete the improvement of the latter, curbs and gutters on the park side of the street are necessary and so are sidewalks. Primarily they are park rather than street improvements, and hence they may be made at the direction of the park board alone.\\nA portion of appellant's brief is devoted to an indictment of the growing tendency to trample upon the rights of the individual when thought to conflict with those of the public. All. that is said may properly be addressed to the legislative department of the state government. Whether a public improvement shall be undertaken when wages are high and materials are expensive, or the improve ment deferred until it will cost less or be dispensed with entirely in the interests of economy, are not judicial questions. Whether or not too much power has been lodged with the park board and city council, who are laying undue burdens upon helpless taxpayers, is a political question.\\nIn determining whether a special assessment shall be sustained, the courts will look to see that there has been a compliance with the requirements of the statutes and Constitution. Beyond that they may not go without usurping power not committed to them.\\nThis, in connection with what has been said in the opinion in the companion appeal, covers all of the assignments of error which require discussion.\\nOrder affirmed.\\nHolt, J., took no part.\"}"
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+"{\"id\": \"10707688\", \"name\": \"In the Matter of Andrew D. McGAUGHEY\", \"name_abbreviation\": \"In re McGaughey\", \"decision_date\": \"1995-09-01\", \"docket_number\": \"No. C6-94-952\", \"first_page\": \"621\", \"last_page\": \"625\", \"citations\": \"536 N.W.2d 621\", \"volume\": \"536\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:30:42.903724+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Andrew D. McGAUGHEY.\", \"head_matter\": \"In the Matter of Andrew D. McGAUGHEY.\\nNo. C6-94-952.\\nSupreme Court of Minnesota.\\nSept. 1, 1995.\\nKurt M. Anderson, Minneapolis, for appellant.\\nMichael 0. Freeman, Hennepin County Atty., Gayle C. Hendley-Zappia, Asst. County Atty., Minneapolis, for respondent.\", \"word_count\": \"1613\", \"char_count\": \"10482\", \"text\": \"OPINION\\nANDERSON, Justice.\\nThis appeal is from a decision of the Minnesota Court of Appeals in which that court affirmed the trial court's civil commitment of Andrew D. McGaughey as a mentally ill person. McGaughey argues that the record does not support by clear and convincing evidence the trial court's finding that McGaughey poses a threat of physical harm either to himself or to others and that dual commitment to the Hennepin County Medical Center and the Anoka Metro Regional Treatment Center was not the least restrictive alternative available. We reverse.\\nAppellant, Andrew McGaughey, is a 53-year-old man who has been diagnosed as suffering from chronic schizophrenia. In the summer of 1993, McGaughey moved from Washington, D.C. to Minneapolis to live with his brother. Within three to four days of moving to Minneapolis, McGaughey was hospitalized for an asthma attack. After a short stay in the hospital, he returned to his brother's home, but he was immediately rehospi-talized after another asthma attack. During this second hospitalization, McGaughey had an appendectomy. As a complication of the surgery, he developed urinary problems and has become intermittently incontinent.\\nOn July 10, 1993, McGaughey was discharged from the hospital to Queen Care Center, a nursing home. While at Queen, McGaughey was treated with medication for his schizophrenia, although he continued to exhibit symptoms of his mental illness. Employees at Queen reported that McGaughey engaged in some inappropriate behavior, including staring at and sometimes following female employees and making inappropriate sexual comments. During his stay at Queen, McGaughey required several short-term voluntary in-patient hospitalizations at the Fair-view-Riverside Medical Center (\\\"FRMC\\\").\\nDuring his hospitalizations at FRMC, MeGaughey continued to engage in some inappropriate behavior. In one incident, MeGaughey allegedly squeezed or rubbed his genitals through his clothing while standing over a seated female patient who was using the telephone. In another incident, MeGau-ghey, while sitting down, laid his head against the chest of a female patient who was standing next to him. On several occasions, MeGaughey eonsensually held hands with female patients, in violation of FRMC rules. MeGaughey also made repeated, nonthreatening phone calls to public figures and businesses, either seeking employment or voicing large-scale, grandiose business plans. Finally, MeGaughey continued to be intermittently incontinent and often needed \\\"redirection\\\" to shower or to attire himself in clean clothing.\\nOn March 14, 1994, MeGaughey was again hospitalized at FRMC. Subsequently, FRMC determined that its acute-care facility was not the best environment in which to treat McGaughejds mental illness. The FRMC staff persons responsible for McGaughey's treatment recommended that he be civilly committed. On March 30, 1994, the FRMC administrator filed a petition for judicial commitment in Hennepin County District Court. A commitment hearing was held on April 18, 1994. On April 20, 1994, the trial court filed its order dually committing MeGaughey as \\\"mentally ill\\\" to the Hennepin County Medical Center and the Anoka Regional Treatment Center. On October 4, 1994, in an unpublished decision, the Minnesota Court of Appeals affirmed the trial court's commitment order. In re McGaughey, C6-94-952, 1994 WL 534849 (Minn.App., Oct. 4, 1994).\\nI.\\nWe will not set aside the trial court's findings unless they are clearly erroneous. See Minn.R.Civ.P. 52.01. To civilly commit a person as mentally ill, the trial court must find by clear and convincing evidence that the person is \\\"mentally ill,\\\" as defined by the Minnesota Civil Commitment Act (\\\"Commitment Act\\\"). Minn.Stat. \\u00a7 253B.02, subd. 13 & 253B.09, subd. 1 (1994). The Commitment Act defines a mentally ill person as:\\n[A]ny person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which\\n(a) is manifested by instances of grossly disturbed behavior or faulty perceptions; and\\n(b) poses a substantial likelihood of physical harm to self or others as demonstrated by:\\n(i) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or\\n(ii)- a recent attempt or threat to physically harm self or others. This impairment excludes (a) epilepsy, (b) mental retardation,\\n(c) brief periods of intoxication caused by alcohol or drugs, or (d) dependence upon or addiction to any alcohol or drugs.\\nMinn.Stat. \\u00a7 253B.02, subd. 13 (1994).\\nThe statute clearly requires that the substantial likelihood of physical harm must be demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others. Minn.Stat. \\u00a7 253B.02, subd. 13(b)(i) & (ii); see Enberg v. Bonde, 331 N.W.2d 731, 736-38 (Minn.1983) (recognizing that civil commitment of mentally ill persons requires a recent overt act, attempt or threat of harm to self or to others). Therefore, speculation as to whether the person may, in the future, fail to obtain necessary food, clothing, shelter, or medical care or may attempt or threaten to harm self or others is not sufficient to justify civil commitment as a mentally ill person. This is not to say, however, that the person must either come to harm or harm others before commitment as a mentally ill person is justified. The statute requires only that a substantial likelihood of physical harm exists, as demonstrated by an overt failure to obtain necessary food, clothing, shelter, or medical care or by a recent attempt or threat to harm self or others.\\nIn its April 20, 1994 commitment order, the trial court concluded that McGaughey is a mentally ill person, as defined by section 253B.02, subdivision 13. The court first found that McGaughey has schizophrenia, a substantial psychiatric disorder. McGau-ghey does not challenge this conclusion. The court next found that McGaughey poses a substantial likelihood of causing physical harm, \\\"as demonstrated by his recent readmission to FRMC.\\\" McGaughey does challenge this conclusion. The court noted that \\\"[a]t Queen [McGaughey] had become labile, was following the nurses, and became extremely inappropriate with sexual comments and behaviors.\\\" The court also noted that, while at FRMC, McGaughey \\\"inappropriately touched females, stared at females to the point of making them uncomfortable, and engaged in one incident of masturbation near the head of a female patient who was using the telephone.\\\" Finally, the court noted that McGaughey needed assistance with his daily living needs, especially with respect to bathing and to attiring himself in clean clothing.\\nWe conclude that the trial court's findings are insufficient to support the conclusion that McGaughey is a mentally ill person, as defined by the Commitment Act. The record does not show by clear and convincing evidence that McGaughey poses a substantial likelihood of physical harm to himself or to others.\\nFirst, none of the witnesses who testified at McGaughey's commitment hearing indicate ed that McGaughey has at any time failed to obtain necessary food, clothing, shelter, or medical care. McGaughey's case manager at FRMC, Jenny Just, testified that McGau-ghey had difficulty maintaining hygiene as a result of his intermittent incontinence. Just also speculated as to what McGaughey would do if he were released into the community. She opined that McGaughey would probably provide food and shelter for himself. She did not believe, however, that he would seek medical assistance for mental health issues. Just was also concerned that McGaughey may forget to take his medications on his own, although she acknowledged that, while at FRMC, McGaughey was very compliant with his medications. Just admitted that she had no reason to believe that McGaughey would refuse to take his medications outside of a hospital environment. Nothing in Just's testimony indicates that McGaughey has demonstrated a substantial likelihood of harm to himself by failing to obtain food, clothing, shelter, or medical care. Aside from her testimony about McGaughey's hygiene problems, Just's testimony was entirely based on unsupported speculation. Moreover, McGaughey's intermittent hygiene problems simply do not amount to a substantial likelihood of physical harm to himself.\\nSecond, none of the witnesses who testified at McGaughey's commitment hearing indicated that McGaughey had made any recent attempt or threat to physically harm himself or others. Although McGaughey engaged in some inappropriate sexual behavior at Queen and at FRMC, the behavior was not assaul-tive and primarily involved staring at and sometimes following female employees and patients and making inappropriate sexual comments. The only incident reported in the record in which McGaughey touched another person involved McGaughey briefly laying his head against the chest of a female patient. Jenny Just testified that McGaughey does not have a history of any type of assaul-tive behavior, and both Just and McGau-ghey's court-appointed examiner, Dr. Vraa, opined that McGaughey does not pose a danger either to himself or to the community.\\nWe conclude that McGaughey does not meet the statutory definition of a mentally ill person because the record does not show by clear and convincing evidence that McGau-ghey poses a substantial likelihood of physical harm to himself or to others. We therefore reverse his civil commitment as a mentally ill person and order that he be fully discharged.\\nBecause we conclude that the trial court erred in committing McGaughey as a mental ly ill person, we give no opinion as to whether McGaughey's dual commitment to the Hennepin County Medical Center and the Anoka Regional Treatment Center was the least restrictive alternative available.\\nReversed.\\n. For example, in applying the commitment statute, the Minnesota Court of Appeals has followed this approach. See In re Terra, 412 N.W.2d 325 (Minn.App.1987); In re Burmeister, 391 N.W.2d 89 (Minn.App.1986).\"}"
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+"{\"id\": \"10711169\", \"name\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant\", \"name_abbreviation\": \"Greenwaldt v. Illinois Farmers Insurance Co.\", \"decision_date\": \"1994-12-27\", \"docket_number\": \"No. C2-94-1760\", \"first_page\": \"202\", \"last_page\": \"205\", \"citations\": \"526 N.W.2d 202\", \"volume\": \"526\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:54:26.333752+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by HUSPENI, P.J., and SCHUMACHER and MANSUR, JJ.\", \"parties\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.\", \"head_matter\": \"Brenda GREENWALDT, Respondent, v. ILLINOIS FARMERS INSURANCE COMPANY, Appellant.\\nNo. C2-94-1760.\\nCourt of Appeals of Minnesota.\\nDec. 27, 1994.\\nReview Denied Feb. 14, 1995.\\nRobert H. Gross and Elliot L. Olsen, Minnetonka, for appellant.\\nMitchel I. Kirshbaum, Minneapolis, for respondent.\\nConsidered and decided by HUSPENI, P.J., and SCHUMACHER and MANSUR, JJ.\\nRetired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1111\", \"char_count\": \"7317\", \"text\": \"OPINION\\nSCHUMACHER, Judge.\\nRespondent Brenda Greenwaldt sued appellant Illinois Farmers Insurance Company (Illinois Farmers) to recover underinsured motorist benefits for damages sustained in an automobile accident that occurred on October 3, 1988. Illinois Farmers challenges the district court's award of underinsured motorist benefits, arguing the district court erred in determining the tortfeasor's vehicle was un-derinsured. Greenwaldt challenges the district court's determination that her award should be reduced by her comparative fault before deducting any no-fault benefits. We affirm in part and reverse in part.\\nFACTS\\nGreenwaldt's car collided with a car driven by Roger Baumgartner on October 3, 1988. Greenwaldt brought an action against Baum-gartner for injuries she suffered in the collision. Baumgartner had $50,000 of liability insurance. Greenwaldt accepted $13,000 from Baumgartner in settlement of her action. Greenwaldt then demanded arbitration to recover underinsured motorist benefits from her insurer, Illinois Farmers. A panel of arbitrators determined that Greenwaldt was 40% at fault in the collision and that she had suffered $238,000 in damages.\\nGreenwaldt petitioned the district court for a confirmation of the arbitrators' award. Illinois Farmers opposed confirmation, arguing that after reductions for comparative fault and no-fault benefits paid and payable, Baumgartner's vehicle was not underinsured.\\nThe district court held that Baumgartner's vehicle was underinsured and Greenwaldt was entitled to underinsured motorist benefits. The district court reduced the arbitrators' award by the amount of Greenwaldt's comparative fault and then deducted no-fault benefits paid and payable from the remaining amount to arrive at a total of $36,200 in underinsured motorist benefits. The district court entered judgment for Greenwaldt on May 26, 1994.\\nIllinois Farmers challenges the district court's determination that Baumgartner's vehicle was underinsured. Greenwaldt filed a notice of review challenging the district court's order of reductions for comparative fault and no-fault benefits.\\nISSUES\\n1. Did the district court err in determining that the offset provision of Minn.Stat. \\u00a7 65B.51 is not applicable for purposes of defining an underinsured vehicle?\\n2. Did the district court err in reducing Greenwaldt's award by the amount of her comparative fault before deducting no-fault benefits?\\nANALYSIS\\nThe facts of this ease are undisputed. The issues on appeal present pure questions of law. Where the material facts are not in dispute, this court need not defer to the district court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).\\n1. Illinois Farmers argues the district court erred in determining that Baumgart-ner's vehicle was underinsured. An underin-sured vehicle is defined as:\\na motor vehicle \\u215c to which a bodily injury liability policy applies at the time of the accident but its limit for bodily injury liability is less than the amount needed to compensate the insured for actual damages.\\nMinn.Stat. \\u00a7 65B.43, subd. 17 (1988). The No-Fault Act further provides:\\nWith respect to a cause of action in negligence accruing as a result of injury arising out of the use of a motor vehicle \\u215c \\u215c \\u215c be deducted from any recovery the value of basic or optional economic loss benefits paid or payable, or which would be payable but for any applicable deductible.\\nMinn.Stat. \\u00a7 65B.51, subd. 1 (1988).\\nRelying on Richards v. Milwaukee Ins. Co., 505 N.W.2d 97 (Minn.App.1993), rev'd, 518 N.W.2d 26 (Minn.1994), the district court held that the offset provision of section 65B.51 is not applied in calculating actual damages for purposes of defining an underin-sured motor vehicle. See id., 505 N.W.2d at 100. In Richards v. Milwaukee Ins. Co., 518 N.W.2d 26, 28 (Minn.1994), however, the supreme .court held that the determination of whether a vehicle is underinsured must be made after deductions for no-fault benefits. While the district court applied the correct law at the time of its decision, we must reverse the district court's decision and apply the supreme court's rationale from Richards to determine whether Baumgartner's vehicle was underinsured.\\n2. Greenwaldt argues the district court erred in reducing her award by the amount of her comparative fault before deducting no-fault benefits. In 1990, the legislature added the following language to section 65B.51:\\nIn any case where the claimant is found to be at fault under section 604.01, the deduction for basic economic loss benefits must be made before the claimant's damages are reduced under section 604.01, subdivision 1.\\n1990 Minn.Laws ch. 555, \\u00a7 6. The added language applies \\\"to all causes of action arising on or after\\\" May 4, 1990. Id. at \\u00a7 24.\\nThe district court used the 1988 version of the statute because it was in effect at the time of the collision. Greenwaldt argues the district court should have used the 1990 version because her \\\"cause of action\\\" for underinsured motorist benefits did not arise until July, 1992, when she settled the underlying liability action with Baumgartner. We disagree. The terms \\\"cause of action\\\" and \\\"claim\\\" are not interchangeable. See Employers Mutual Cos. v. Nordstrom, 495 N.W.2d 855, 856 (Minn.1993) (\\\"An underin-sured motorist claim is both alike and unlike a tort cause of action.\\\" (emphasis added)). Because a tort cause of action may give rise to any number of claims, including an under-insured motorist claim, the district court determined correctly that Greenwaldt's cause of action arose on the date of the collision.\\nTherefore, applying Minn.Stat. \\u00a7 65B.51, subd. 1 (1988), and the supreme court's analysis from Richards v. Milwaukee Ins. Co., 518 N.W.2d 26 (Minn.1994), the district court should have arrived at the following calculations:\\nItem Arbitrator's Def. Fault Award Adjustment for Net Award No Fault Benefits Remaining\\nPast Medical Exp. 60% $ 56,000 $ 33,600 $ 33,600 $\\nFuture Medical Exp. 60% 12,000 7,200 7,200\\nPast Wage Loss 60% 100,000 60,000 60,000\\nFuture Lost Income 20,000 12,000 12,000\\nPast Pain/Suffering 30,000 60% 18,000 18,000\\nFuture Pain/Suffering 20,000 60% 12,000 12,000\\nTotal $238,000 $142,800 $49,200\\nBecause $49,200 is less than Baumgartner's liability coverage of $50,000, Baumgartner's vehicle was not underinsured. Illinois Farmers is therefore not liable to Greenwaldt for underinsured motorist benefits.\\nDECISION\\nThe district court determined correctly that Greenwaldt's cause of action arose at the time of the collision rather than when she submitted a claim for underinsured motorist benefits. The determination of whether a vehicle is underinsured, however, must be made after deductions for no-fault benefits paid and payable.\\nAffirmed in part and reversed in part.\"}"
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+"{\"id\": \"109329\", \"name\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY\", \"name_abbreviation\": \"Hannan v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.\", \"decision_date\": \"1923-02-09\", \"docket_number\": \"No. 23,191\", \"first_page\": \"492\", \"last_page\": \"494\", \"citations\": \"154 Minn. 492\", \"volume\": \"154\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:14:28.525039+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.\", \"head_matter\": \"BRIDGET HANNAN v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY COMPANY.\\nFebruary 9, 1923.\\nNo. 23,191.\\nNegligent driving of car against safety gates at highway crossing.\\nThe plaintiff, who drove her auto into the lowered railway safety gates over a street at 6 in the afternoon, a half hour after sunset, was negligent and cannot recover for an injury sustained.\\nAction in the district court for Hennepin county to recover $5,000 for injuries received at defendant\\u2019s crossing gates. The case was tried before Montgomery, J., who at the close of the testimony denied defendant\\u2019s motion for a directed verdict, and a jury which returned a verdict for $1,000. From an order denying its motion for judg- \\u2022 ment notwithstanding the verdict or for a new trial, defendant appealed.\\nReversed.\\nJohn E. Palmer and John L. Erdall, for appellant.\\nJohn J. Keefe, for respondent.\\nReported in 191 N. W. 922.\", \"word_count\": \"876\", \"char_count\": \"4883\", \"text\": \"Dibeel, J.\\nAction to recover damages for personal injuries. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.\\nThe plaintiff was driving a Ford northerly on Second avenue north in Minneapolis at 6 o'clock, a half hour after sunset, on October 18, 1920, and ran into the lowered safety gates of the defendant and was injured. The lights on her car were lighted and were in good condition. The accident was in a wholesale district. Traffic had substantially ceased. There were no distracting circumstances. The plaintiff was familiar with the surroundings. She- had driven over the crossing often, though she does not recall having driven across in the dark. She knew that there were gates. There were no lights on the gates. Her testimony would bear the construction that she supposed that when gates were down after dark there were warning lights upon them.\\nWe have held that open gates are in the nature of an assurance of safety, and that to some extent a driver approaching a crossing, though he must still exercise care, may guide his conduct, within reasonable limits, upon the assurance which open gates give. Woehrle v. Minnesota T. Co. 82 Minn. 165, 84 N. W. 791, 52 L. R. A. 348; Stegner v. Chicago, M. & St. P. Ry. Co. 94 Minn. 166, 102 N. W. 205; Wardner v. Great Northern Ry. Co. 96 Minn. 382, 104 N. W. 1084. The absence of a light at night, when there customarily is one, or where the driver is justified in assuming that there will be one, may have somewhat the same effect as an assurance.\\nThe plaintiff and two other witnesses testify that it was very dark. The plaintiff says that she did not see the gates until she was right upon them. She and two witnesses say that right after the accident they experimented by approaching the gates from the direction from which the auto came, and were unable to see them at a distance farther away than from 10 to 20 feet. In these experiments they did not have the aid of the auto lights. There is other evidence that there was ample electric light at the crossing and that objects were easily visible. The gateman and some others say they saw the plaintiff coming some distance back. The arms of the gates extended from either side of the street, tapering towards the ends, and meeting at the center of the street, where they were 2-\\u00a3 inches wide and some 3 feet and 8 inches above the street surface.\\nIn Heiden v. Minneapolis St. Ry. Co. 154 Minn. 102, 191 N. W. 254, we held it the duty of a motorman operating a street car after dark, it being his duty to be on the lookout for travelers, to have his car under such control that he could bring it to a stop within such distance as his headlight enabled him to see a vehicle on the street. The case of Lawson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. 30, and other cases, were cited, holding, under the circumstances there existing, that a driver after dark is guilty of negligence if he fails to have his auto under such control that he can avoid striking an obstruction within the distance illuminated by his light.\\nIt is the view of a majority of the court that the plaintiff was negligent and that her negligence prevents a recovery for her injury. In coming to this conclusion the evidence that it was dark at the crossing and that the gates were not seen until the plaintiff was upon them has not been overlooked. The dusk or twilight may have deceived the plaintiff, and the car lights may not have been as serviceable as if it had been darker. But if the plaintiff had used ordinary care as she came to the crossing, considering what she knew of it, and the condition of the light, and the means at hand for avoiding danger, there would have been no injury. We need not discuss the question of the defendant's negligence.\\nThe case has been tried out. There should not be a Second trial. There should be judgment notwithstanding.\\nOrder reversed.\"}"
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+"{\"id\": \"11197910\", \"name\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent\", \"name_abbreviation\": \"Smith v. Soo Line Railroad\", \"decision_date\": \"2000-09-19\", \"docket_number\": \"No. C7-00-338\", \"first_page\": \"437\", \"last_page\": \"440\", \"citations\": \"617 N.W.2d 437\", \"volume\": \"617\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:48:19.864903+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.\", \"parties\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent.\", \"head_matter\": \"Timothy M. SMITH, Appellant, v. SOO LINE RAILROAD COMPANY, d/b/a CP Rail System, Respondent.\\nNo. C7-00-338.\\nCourt of Appeals of Minnesota.\\nSept. 19, 2000.\\nReview Denied Nov. 21, 2000.\\nMichael F. Tello, Patrick R. Gillespie, Tello & Associates, Anoka, for appellant.\\nJulius William Gernes, Scott Howard Rauser, Spence, Ricke, Sweeney & Gernes, St. Paul, for respondent.\\nConsidered and decided by SHUMAKER, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.\\nRetired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, \\u00a7 10.\", \"word_count\": \"1396\", \"char_count\": \"8715\", \"text\": \"OPINION\\nG. BARRY ANDERSON, Judge\\nAppellant railroad worker, allegedly injured while carrying a five-gallon water bottle up the stairs of his work building, sought relief under 45 U.S.C. \\u00a7 51 (1994), the Federal Employer's Liability Act (FELA). The district court granted respondent railroad summary judgment based on lack of actual or constructive notice that employees were carrying bottles. Because appellant has shown that his employer and agent saw bottles stored on a building's first floor and knew they were used by third-floor employees who had no elevator to transport them, appellant has supplied the \\\"scintilla\\\" of evidence necessary to prove constructive notice and survive summary judgment under FELA. Accordingly, we reverse.\\nFACTS\\nIn response to ongoing water quality problems at its St. Paul rail yard, respondent, Soo Line Railroad Company, contracted with an agent to deliver bottled water to the third floor of the yard's retarder tower. Eight years later, the agent stopped delivering most of the five-gallon bottles to the third floor, and instead began leaving nearly all of the bottles on the retarder tower's first floor. The retarder tower was not accessible to the public, and no one reported any problems or raised any safety concerns about transporting the bottled water from the first to the third floor.\\nAppellant Timothy M. Smith worked on the third floor of the retarder tower. One morning in July 1998 appellant found the water dispenser empty. Appellant took the empty bottle downstairs, lifted a full bottle to his shoulder, and felt a snap in his back while climbing the stairs. Appellant did not feel any pain and continued with his work. Over the next several days, however, he experienced worsening back pain and ultimately underwent surgery.\\nAppellant's supervisor observed some full, five-gallon, bottles of water on the first floor of the retarder tower, but never saw employees carrying water bottles nor received any complaints concerning water delivery to the tower's third floor. Similarly, the manager of yard operations did not know employees were carrying water to the top of the retarder tower; he did not receive any complaints either. It was his understanding that the agent was delivering the water to the retarder tower's third floor as arranged.\\nAppellant's complaint alleged, among other things, that respondent negligently caused his injury in violation of the Federal Employers Liability Act, 45 U.S.C. \\u00a7 51 (1994) (FELA). Respondent denied the allegations and, following several months of discovery, moved for summary judg ment. The district court granted respondent's motion on the basis that respondent did not have actual or constructive notice that employees were carrying the bottled water from the retarder tower's first floor to the third floor.\\nISSUE\\nDid the district court err by granting summary judgment on the ground that, as a matter of law under FELA, respondent railroad did not have actual or constructive notice that employees were carrying water bottles?\\nANALYSIS\\nAppellant argues that the district court erred by granting respondent summary judgment on the basis that respondent lacked actual or constructive notice that employees were manually carrying bottled water up the retarder tower stairs.\\nSummary judgment is properly granted if the\\npleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law.\\nMinn. R. Civ. P. 56.03. On appeal from a summary judgment, we determine whether there are triable issues of material fact and whether the court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We view the evidence in the light most favorable to the party against whom the motion was granted. Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).\\nUnder the Federal Employer's Liability Act, 45 U.S.C. \\u00a7 51 (1994) (FELA), a railroad has a duty to provide its employees with a reasonably safe workplace. Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266-67 (8th Cir.1987). A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees. Gallose v. Long Island R. Co., 878 F.2d 80, 84-85 (2nd Cir.1989). The railroad's duty extends to negligent acts of third-party agents engaged in the operational activities of the railroad. Nivens v. St. Louis S.W. Rwy. Co., 425 F.2d 114, 119 (5th Cir.1970). It is the actual or constructive knowledge of a hazardous condition that gives rise to the railroad's duty. Gallose, 878 F.2d at 85.\\nTo prove negligence, a FELA plaintiff must offer evidence proving the common law elements of negligence. Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.1994). But a plaintiffs burden of proof to present a case to the jury is significantly lighter under FELA than it would be in an ordinary negligence case. Habrin v. Burlington Northern Ry. Co., 921 F.2d 129, 132 (7th Cir.1990) (providing examples of FELA actions submitted to the jury based only on \\\"evidence scarcely more substantial than pigeon bone broth\\\"). The Minnesota Supreme Court observed that FELA requires only a \\\"scintilla\\\" of evidence to establish negligence. Hauser v. Chicago, Milwaukee, St. Paul & Pac. R. Co. 346 N.W.2d 650, 653 (Minn.1984).\\nAppellant contends that he presented sufficient evidence that respondent knew or should have known that employees were carrying water to the third floor of the retarder tower. Appellant supports his argument with: (1) a co-worker's statement that \\\"[t]here have been complaints of no water, or of having to supply it yourself,\\\" (2) a supervisor's testimony that he saw the large water bottles stored on the first floor of the retarder tower; and (3) appellant's own testimony that the agent stopped delivering all of the bottles to the third floor nine months before his alleged injury.\\nThe district court determined that appellant failed to show that respondent had actual or constructive notice of a dangerous condition. We disagree. Respondent knew there were no elevators or similar lifts in the tower, that the tower lacked potable drinking water, and the only way to transport the large bottles of drinking water to the tower's third floor was to carry it. Both appellant's supervisor and respondent's water delivery agent knew the bottles stored on the tower's first floor were used on the third floor. Accordingly, respondent should have known, through the exercise of due care, that employees might have undertaken the task of carrying the large water bottles to the third floor of the retarder tower.\\nWhile appellant's evidence on the issue of notice is minimal and, to say the least, less than overpowering, given that we are required to view appellant's evidence in light of the extremely low burden of proof standard applicable to FELA litigation, we conclude that appellant has supplied the \\\"scintilla\\\" of evidence necessary to survive summary judgment. Because the district court erred by concluding that respondent lacked actual or constructive notice of employees carrying bottled water, we reverse the district court's grant of summary judgment to respondent.\\nDECISION\\nA FELA plaintiff need only present a scintilla of evidence tending to show negligence to survive summary judgment. A FELA plaintiff who shows that the railroad and an agent of the railroad knew employees used bottled water on a building's third floor and saw the bottles stored on the first floor meets the very low burden of proving the railroad had constructive notice of employees carrying water.\\nReversed.\\n. We note that although Hauser involved review of a directed verdict, not summary judgment, a FELA plaintiffs burden of proof remains the same in both procedural contexts. See Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th Cir.1998) (reciting, in a summary judgment context, the low evi-dentiary burden of a FELA plaintiff).\"}"
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+"{\"id\": \"11484128\", \"name\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant\", \"name_abbreviation\": \"State v. Kenard\", \"decision_date\": \"2000-02-10\", \"docket_number\": \"No. C1-98-1211\", \"first_page\": \"440\", \"last_page\": \"445\", \"citations\": \"606 N.W.2d 440\", \"volume\": \"606\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:51:36.906854+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Deborah Ann KENARD, petitioner, Appellant.\\nNo. C1-98-1211.\\nSupreme Court of Minnesota.\\nFeb. 10, 2000.\\nJohn M. Stuart, Minnesota State Public Defender, Marie L. Wolf, Assistant State Public Defender, Minneapolis, for appellant.\\nMike Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, for respondent.\", \"word_count\": \"2951\", \"char_count\": \"18411\", \"text\": \"OPINION\\nPAGE, Justice.\\nAppellant Deborah Ann Kenard was convicted of one count of aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 1 (1998) and one count of aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 3 (1998) \\\\ for her involvement in concealing Ronald Hare's murder. Kenard was sentenced to one year and one day for her conviction under Minn.Stat. \\u00a7 609.495, subd. 1, which is a severity level I offense under the Minnesota Sentencing Guidelines. Aiding an offender under Minn. Stat. \\u00a7 609.495, - subd. \\u2022 3, is an unranked offense under the sentencing guidelines. The sentencing court ranked her conviction under subdivision 3 at severity level VII and as a result, Kenard was sentenced to an executed term of 68 months in prison. Kenard appealed on various grounds, including sentencing, and the court of appeals affirmed. We granted Kenard's petition for further review, but\\\" limited our review to the sentencing issues raised in the petition. Those issues are whether the sentencing court abused its' discretion when it assigned offense severity level VII to Kenard's unrariked offense and whether it was an abuse of discretion for the sentencing court, having assigned the offense severity level VII, to have sentenced Ke-nard to an executed term of 68 months in prison. Based on our conclusion that the sentencing court abused its discretion in assigning offense severity level VII to Ke-nard's offense under Minn.Stat. \\u00a7 609.495, subd. 3, we reverse the court of appeals and remand to the sentencing court for resenteneing.\\nOn December 31, 1997, Kenard spent the early afternoon in her apartment with her four-year old son, Robert, and another child taking down Christmas decorations. Kenard's fianc\\u00e9, Emmett Thomas, lived in the apartment and was also present. At about 1:00 p.m., Ronald Hare came to the apartment to visit Thomas. . Shortly after Hare arrived, Thomas and Hare began arguing and using profanity. As a result, Kenard took the children to a nearby grocery store to get them away from the argument.\\nWhen Kenard and the children returned approximately 45 minutes later, there was blood on the apartment's walls and floor. When Robert asked about the blood, Ke-nard told him it was paint and rushed the children to a back bedroom, telling them to stay there and watch cartoons. Kenard then returned to the living room and found Thomas pointing to the closet, which led her to assume that Hare was in the closet. She did not, however, check the closet. When Kenard asked Thomas what happened, he responded that he was just trying to defend himself. When Kenard said to Thomas, \\\"Well, you didn't have to kill him,\\\" Thomas responded, \\\"I didn't kill him, I just knocked him out.\\\"\\nThomas asked Kenard to help him clean up the blood, 'which she did out of concern for the children. The cleaning process took about ten minutes. After cleaning up the blood, Kenard opened the closet door, checked Hare's wrist for a pulse, and finding none, told Thomas that Hare was dead and that Thomas had to remove Hare's body from the apartment because she did not want her son to see it. According to Kenard, Thomas moved Hare's body \\\"about 45 minutes or an hour after we had cleaned up the foyer.\\\" When he moved the body, Thomas asked Kenard to hold the closet and apartment doors open and she complied. Thomas evidently moved Hare's body to a storage room in the building because later that night Thomas again asked Kenard to assist him in moving the body. She complied with his request by holding open both the door to a storage room and a door to the outside as Thomas removed Hare's body from the building.\\nHare's body was found across the street from the apartment building by passersby at about 4:00 a.m. on January 1 and the police were called. The investigation led the police to Kenard's apartment. That afternoon, the police executed a search warrant at the apartment. Evidence obtained during the search led the police to believe that Hare had been killed in the apartment. When the police first questioned Kenard, she was uncooperative and denied having any knowledge of Hare's death. Eventually, Kenard informed the police that Thomas had killed Hare and that she helped Thomas clean up Hare's blood and held doors open so that Thomas could take Hare's body from the apartment and later from the building.\\nThe Minnesota Sentencing Guidelines set out the procedure for sentencing offenders. The presumptive sentence for an offender is determined by locating the appropriate cell on the Sentencing Guidelines Grid. See Minnesota Sentencing Guidelines II. The first step in determining the appropriate cell is to determine the offense severity level for the offense of conviction. See id. at II.A. The severity level of the offense of conviction is located on the vertical axis of the grid. See id. at IV. The guidelines assign a severity level from I to X to most offenses, but certain offenses, such as those in violation of section 609.495, subd. 3, are left unranked. See Minnesota Sentencing Guidelines II.A. \\\"When persons are convicted of offenses excluded from the Offense Severity Reference Table, judges should exercise their discretion by assigning an offense a severity level which they believe to be appropriate.\\\" Id. at II.A.05 comment. Beyond indicating that the sentencing court is to exercise its discretion in assigning an offense severity level to unranked offenses, the sentencing guidelines do not give any direct guidance as to what considerations should go into the exercise of that discretion.\\nThat lack of guidance notwithstanding, we conclude that the sentencing court, on the facts presented here, abused its discretion when it assigned an offense severity level VII to Kenard's offense. We reach that conclusion for two reasons. First, because the sentencing court did not indicate on the record what factors, if any, it considered when it assigned offense severity level VII to Kenard's offense, it is almost impossible for a reviewing court to evaluate the sentencing court's exercise of discretion. See State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981). The second reason is that it appears from the record that the sentencing court, rather than first determining the offense severity level as required by the sentencing guidelines, took the sentence recommended in Kenard's presentence investigation report and worked backward to find an offense severity level that would support a sentence approximating the recommendation.\\nBecause the sentencing guidelines do not give any direct guidance as to what should be considered when assigning an offense severity level to unranked offenses, we feel compelled to give some direction. The sentencing guidelines do provide a framework sentencing courts can use when determining the offense severity level of unranked offenses. The framework is found in the purposes of the sentencing guidelines, which are to:\\nestablish rational and consistent sentencing standards which reduce sentencing disparity and ensure that sanctions following conviction of a felony are proportional to the, severity of the offense of conviction and the extent of the offender's criminal history. Equity in sentencing requires (a) that convicted felons similar with respect to relevant sentencing criteria ought to receive similar sanctions, and (b) that convicted felons substantially different from a typical case with respect to relevant criteria ought to receive different sanctions.\\nMinnesota Sentencing Guidelines I. Relying on these purposes, we recommend that when assigning a severity level to un-ranked offenses, the sentencing court take into consideration the following: the gravity of the specific conduct underlying the unranked offense; the severity level assigned to any ranked offense whose elements are similar to those, of the unranked offense; the conduct of and severity level assigned to other offenders for the same unranked offense; and the severity level assigned to other offenders who engaged in similar conduct. No single factor is controlling nor is the list of factors meant to be exhaustive. Thus, while the sentencing court has discretion in sentencing for unranked offenses, information from the Sentencing Guidelines Commission on other offenders sentenced on the same or similar offenses can help guide the exercise of that discretion.\\nKenard's conduct, while not as grave as that of Thomas, was nonetheless extremely serious. She was convicted of aiding the perpetrator to conceal the most serious of crimes, murder in-the first degree. Her conduct, which included cleaning the crime scene, holding open doors so Thomas could dispose of Hare's body, and initially providing false information to -the police, interfered with the investigation of Hare's death and had the potential to make Thomas' prosecution more difficult.\\nThe ranked offense most similar to Ke-nard's offense is aiding an offender under Minn.Stat. \\u00a7 609.495, subd. 1(a), which provides that:\\nWhoever harbors, conceals, or aids another known by the actor to have committed a felony under the laws of this or another state or of the United States with intent that such offender shall avoid or escape from arrest, trial, conviction, or punishment, may be sen tenced to imprisonment for not more than three years or to payment of a fine of not more than $5,000, or both.\\nThis offense is ranked at severity level I under the guidelines. Minnesota Sentencing Guidelines V (Offense Severity Reference Table). The primary differences between subdivision 1 and subdivision 3 of Minn.Stat. \\u00a7 609.495 are that subdivision 3\\u215b application is limited to certain enumerated offenses while subdivision 1 is not so limited; and that subdivision 3 provides that those convicted thereunder may be sentenced to up to one-half of the statutory maximum of the aided offense. Obviously, the legislature considers convictions under subdivision 3 more serious than those under subdivision 1.\\nFor purposes of comparing the offense severity level assigned to other offenders found to have engaged in conduct similar to Kenard's to the severity level assigned to Renard, the parties have identified only one case. As it turns out, the offense in that case is aiding an offender in violation of Minn.Stat. \\u00a7 609.495, subd. 1. That case involves Arneatrice Shaw (Henn. Cty. File No. 98-123289), whose conduct was virtually identical to that of Renard. Like Re-nard, Shaw came home to find that a loved one, in Shaw's case her son, had killed someone in her home. Also like Renard, Shaw proceeded to help remove the victim's body from the home and then cleaned the house and washed blood from clothes in order to help her son avoid arrest. Shaw was charged under section 609.495, subd. 3, but was allowed to plead guilty to violating section 609.495, subd. 1. Thus, Shaw's virtually identical conduct was ranked at offense severity level I while Renard's was ranked at VII. Given the virtually identical conduct, equity and proportionality suggest that the severity levels assigned to Renard and Shaw's offenses should not be so far apart. Such variations in severity level for the same conduct do not comport with the sentencing guidelines' goals of equity and proportionality. The legislature's intent of treating convictions under subdivision 3 more seriously than convictions under subdivision 1 may dictate a higher severity level for Renard than Shaw, but there is nothing to suggest that Renard's offense warrants a severity level six steps higher than Shaw.\\nFor purposes of comparing the offense severity level assigned to Renard's offense with that of others convicted of aiding an offender under section 609.495, subd. 3, our attention is drawn to cases involving Antonio Brayboy (Henn. Cty. File No. 96-071357), Eugene Myers (Benton Cty. File No. K9-96-521), Sathith Mevangsaksith (Henn. Cty. File No. 97-015813), Frank Soman (Ramsey Cty. File No. R3-96-4229), and Nickie Frank (Henn. Cty. File No. 98-095728) and Stacy Roerner (Henn. Cty. File No. 98-095714). Brayboy was indicted for aiding and abetting first-degree murder but was allowed to plead guilty to one count of aiding an offender under section 609.495, subd. 3, for his involvement in the brutal slaying of three people. Although Brayboy denied participating in the murders, he admitted to being present at the scene when they took place. See State v. Patterson, 587 N.W.2d 45, 47-48 (Minn.1998). He further admitted to helping the perpetrator flee the death scene. Brayboy's offense was assigned severity level VIII. Brayboy's presence at the time of the offense distinguishes his case from Renard's.\\nMyers pleaded guilty to aiding and abetting attempted second-degree murder after he drove a stolen van while two other men severely beat the van's owner and then helped the two men drag the owner from the van into the woods, leaving him to die. Myers offense, like Brayboy's, was also assigned severity level VIII. Mevang-saksith's offense of conviction arose out of his involvement in driving a car for friends who robbed two people at gunpoint. Me-vangsaksith's offense was assigned severity level VII. Soman's offense of conviction arose as a result of Soman's presence during a robbery and grabbing some marijuana as he and another fled the scene. So-man's offense was assigned severity level VII. While the underlying offense in Ke-nard's case is far more serious than the underlying offenses in the cases of Myers, Mevangsaksith, and Soman, their conduct, which included some active participation in the underlying offenses, makes their offenses more serious. Thus, Kenard's offense should be ranked lower.\\nFrank and Koerner's offenses were assigned severity level VIII for their involvement in attempting to conceal the brutal rape and murder of a 13-year old Hmong girl. They became involved with the murder when the murderer, a classmate of theirs, called Frank and asked to use her car so that he could dispose of the victim's body. At sentencing, the court noted that Frank not only provided the car, but that she and Koerner voluntarily went along and helped the murderer dispose of the victim's body. While Frank and Koerner's offense is similar to Kenard's in terms of gravity, we note that it is distinguishable in that Frank and Koerner readily assisted the murderer when asked. In contrast, the murder in this case was thrust upon Kenard in her own home. Thus, we view Kenard's offense as less serious than theirs.\\nIn each of these cases, Brayboy, Myers, Mevangsaksith, Soman, and Frank and Koerner, the offender was either present at the time of the underlying offense, participated to some degree in the underlying offense, or readily participated in covering up the underlying offense. In contrast, Kenard was neither present at the time of, nor participated in, Hare's murder. Moreover, she did not choose to become involved in concealing Hare's murder, rather she walked into her own home with two young children to find blood on the walls and floor and took steps to hide the murder from her 4-year old son. With these cases in mind, we remand to the' sentencing court for a determination of the severity level of Kenard's offense, consistent with this opinion. We decline to reach the sentencing issue presented by Kenard's appeal. While on this record the sentence imposed on Kenard seems to be on the high side, because of our remand, we need not reach that issue at this time.\\nReversed and remanded.\\n. Minn.Stat. \\u00a7 609.495, subd. 3 provides that:\\nWhoever intentionally aids another person known by the actor to have committed a criminal act, by destroying or concealing evidence of that crime, providing false or misleading information about that crime, receiving the proceeds of that crime, or otherwise obstructing the investigation or prosecution of that crime is an accomplice after the fact and may be sentenced to not more than one-half of the statutory maximum sentence of imprisonment or to payment of a fine of not more than one-half of the maximum fine that could be imposed on the principal offender for the crime of violence.\\n. The sentencing court stated \\\"the sentence is based on really what I think is appropriate, in light of the severity of the crime,\\\" but the judge never mentioned what factors made severity level VII appropriate.\\n. B}' specific conduct, we mean that conduct underlying proof of the elements of the offense. While we have held that such conduct cannot be relied on to justify an upward departure, State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983), we conclude that its use is appropriate for setting the severity level for un-ranked offenses. Once the sentencing court has determined the severity level by considering the conduct underlying proof of the elements of the offense, it is not prohibited, in appropriate cases, from considering whether there are also aggravating or mitigating circumstances that would justify departure.\\n. This and the preceding cases, identified by court file number, are not reported cases but are from the records compiled on unranked offenses by the Sentencing Guidelines Commission for record keeping purposes.\\n. Antonio Brayboy's plea agreement states that he pleaded guilty to one count of accessory to first-degree murder but State v. Patterson, 587 N.W.2d 45, 47 (Minn.1998), reports that Brayboy pleaded guilty to three counts of accessory to first degree murder.\\n. We recognize that another factor at work here is that in some of the cases used for comparison purposes, involving conduct substantially more serious than that of Kenard, the defendants pleaded guilty to lesser offenses. As a result, factors beyond the conduct underlying proof of the elements of the offense were likely considered in setting the offenders' severity level. However, that procedural difference, while one more factor to consider in the analysis, does not make the comparisons any less valid for purposes of insuring that the sentencing guidelines' goals of equity and proportionality are met.\"}"
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+"{\"id\": \"12015127\", \"name\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent\", \"name_abbreviation\": \"Robinson v. State\", \"decision_date\": \"1997-08-07\", \"docket_number\": \"No. C8-96-2044\", \"first_page\": \"491\", \"last_page\": \"496\", \"citations\": \"567 N.W.2d 491\", \"volume\": \"567\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:16:59.868252+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\", \"head_matter\": \"Spencer ROBINSON, Petitioner, Appellant, v. STATE of Minnesota, Respondent.\\nNo. C8-96-2044.\\nSupreme Court of Minnesota.\\nAug. 7, 1997.\\nRehearing Denied Sept. 5, 1997.\\nSpencer Robinson, Stillwater, pro se.\\nHubert H. Humphrey, III, St. Paul, Michael Richardson, Asst. Hennepin County Atty., Minneapolis, for respondent.\", \"word_count\": \"2292\", \"char_count\": \"14566\", \"text\": \"OPINION\\nGARDEBRING, Justice.\\nSpencer Robinson was convicted of first-degree murder in the September 16, 1993 shooting death of Karl Boswell in Minneapolis. He appealed his conviction to this court, which affirmed. State v. Robinson, 536 N.W.2d 1 (Minn.1995). Because the facts of the offense are detailed in our opinion on his direct appeal, we do not reiterate them here.\\nRobinson brings this petition for postcon-viction relief, alleging he was denied the effective assistance of counsel by numerous errors on the part of both his trial and his appellate counsel. The postconviction court denied all of Robinson's claims, and we affirm.\\nIn his petition for postconviction relief, Robinson alleged that he was denied the effective assistance of counsel because his trial attorney failed to: (1) investigate; (2) prepare for trial; (3) present a defense, i.e., he did not present any witnesses; (4) object to improper jury instructions; (5) challenge the indictment on the grounds that a grand juror was familiar with the victim; (6) move to suppress police interviews; and (7) challenge a petit juror who was familiar with the investigating officer. Robinson also alleged his trial attorney was ineffective because he failed to communicate two plea offers. Finally, Robinson alleged his appellate attorney was ineffective because on appeal, she failed to raise the issue of whether there should have been a jury instruction on a lesser included offense.\\nThe postconviction court dismissed Robinson's petition without an evidentiary hearing. After closely examining Robinson's claims, the court concluded that Robinson had failed to make any factual allegations, which, if proven, would have entitled him to relief on any of his claims. Specifically, the court concluded that Robinson had alleged neither what investigation and preparation should have been done or what witnesses should have been called, nor what difference any of those actions would have made. As to the improper jury instructions, the court noted that this issue was considered and rejected by this court in Robinson's direct appeal. On the issue of grand jury bias, the court noted that while the grand jury transcript revealed that two grand jurors had a slight familiarity with the victim, both indicated that they were able to remain impartial, and Robinson had not made any factual allegation to refute that testimony. On the issue of the failure to move to suppress, the court observed that Robinson in his petition failed to allege what statements should have been suppressed, and noted that Robinson's trial counsel did in fact move to suppress one statement. Finally, on the plea-offer issue, the court concluded that Robinson had provided insufficient factual allegations to support the claim.\\nOn June 19, 1996, Robinson filed an amended petition for postconviction relief in which he restated, with more specificity, his claim that his trial counsel had failed to communicate two plea offers. The postcon-viction court granted a hearing on this issue only, which was held on September 9, 1996. After hearing the evidence, the court concluded that Robinson's trial counsel had in fact communicated the plea offers and dismissed the petition.\\nIn this appeal, Robinson reasserts all the claims raised in his petition and amended petition, and alleges new facts in support of his claim that his trial counsel failed to investigate. In particular, he claims his attorney failed to: (1) hire an expert or question the medical examiner regarding powder burns on the victim's hands; (2) contact Robinson's co-defendant, who would have corroborated Robinson's version that the shooting occurred during a struggle; (3) elicit testimony from the medical examiner regarding whether the victim's wounds could have resulted from a struggle; and (4) investigate the gun used in the murder in order to determine whether Robinson's fingerprints were on it. Robinson further argues that the posteonviction court's conclusion that his trial counsel did communicate the plea offers was clearly erroneous. Finally, Robinson for the first time specifies that his appellate counsel was ineffective because she failed to raise the issue that a jury instruction on first-degree manslaughter should have been given.\\nThe scope of review of a postcon-viction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion. Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995) (citing Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992)). An evidentia-ry hearing is not required unless facts are alleged which, if proven, would entitle a petitioner to relief. Id. The petitioner's allegations must be more than argumentative assertions without factual support. Id.\\nA convicted defendant when claims ineffective assistance of counsel so egregious that a new trial is required must prove:\\nFirst that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \\\"counsel\\\" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\\nFox v. State, 474 N.W.2d 821, 826 (Minn.1991) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Whether counsel's performance was deficient is measured by an objective standard of reasonableness. Hodgson, 540 N.W.2d at 518. Moreover, there is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.\\nMost of Robinson's claims were properly dismissed because they were known at the time of his direct appeal. Once an appeal has been taken, all issues raised and all issues known but not raised will not be considered upon a subsequent petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). This generally includes claims for ineffective assistance of counsel, unless the claim is such that the reviewing court needs additional facts to explain the attorney's decisions. Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). Here, Robinson knew that he wished to challenge his trial attorney's effectiveness at the time of his direct appeal, although he did not specify at that time what those claims would have been. Robinson admits that he discussed the issue with his appellate counsel, and he submitted a supplemental pro se brief indicating he wished to \\\"preserve\\\" the issue. See King v. State, 562 N.W.2d 791, 795-96 (Minn.1997) (holding ineffective assistance of counsel claim barred because raised on direct appeal). With the exception of Robinson's claim that his trial counsel failed to communicate two plea offers and his claim of ineffective assistance of appellate counsel, his claims of ineffective assistance of counsel either were or should have been raised at the time of the direct appeal and were accordingly properly dismissed by the postconviction court.\\nHowever, Robinson's claim that his trial counsel failed to communicate two plea offers requires additional factfinding, so it is not barred by his having known of the claim at the time of his direct appeal. See Black, 560 N.W.2d at 85 n. 1. In order to evaluate such a claim, a court needs to hear testimony from the defendant, his or her trial attorney, and any other witnesses who have knowledge of conversations between the client and the attorney. Only after hearing such testimony could a court determine whether in fact the trial attorney communicated the plea offers. This differs from the claims discussed above, which can be evaluated by an appellate court on direct appeal based on the briefs and trial court transcript, and without any additional factfinding. For this reason, an ineffective assistance of counsel claim such as this is properly raised in a petition for posteonviction relief, even though it was known at the time of direct appeal. Robinson's remaining claim for ineffective assistance of appellate counsel was not known at the time of his direct appeal, so it was properly raised in a petition for posteonviction relief. We turn next to these two claims.\\nAfter an evidentiary hearing, the posteonviction court found that Robinson's trial attorney did in fact communicate two plea offers to Robinson. Robinson claims that this finding of fact was erroneous and should be reversed. In general, a trial court's findings of fact will not be disturbed unless clearly erroneous. Minn. R. Civ. P. 52.01. That means that this court will not reverse, unless \\\"upon review of the entire evidence, [the] court is left with the definite and firm conviction that a mistake has been made.\\\" Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987).\\nAt the posteonviction hearing, there was conflicting testimony on the issue of whether Robinson's trial counsel had communicated the plea offers to Robinson. Robinson testified that the attorney had not conveyed any offers to negotiate a plea. His trial counsel testified that he conveyed two separate offers to Robinson, one while he was in jail and one immediately before the trial. The two prosecutors on the case both testified that they had two discussions with Robinson's counsel about possible pleas, and that he had returned to them saying that his client was not interested in the offers they put forth. Given this testimony, the posteonviction court could have reasonably concluded that Robinson's trial counsel did in fact discuss the plea offers with Robinson. We thus conclude that the posteonviction court's finding of fact was not clearly erroneous.\\nAs for Robinson's ineffective assistance of appellate counsel claim, he alleges his counsel was ineffective because she failed to raise the issue of submission of a jury instruction on a lesser-included offense in Robinson's direct appeal. In his petition, Robinson did not detail the alleged failure of appellate counsel, nor how it would have made a difference. For this reason, the post-conviction court concluded that Robinson had alleged insufficient facts to entitle him to relief. In his appellate brief, Robinson makes the new argument that an instruction on first-degree manslaughter should have been given. Because it was not raised below, this claim is not properly before this court. K.T., 327 N.W.2d at 16-17. Moreover, the claim has no merit because Robinson specifically waived the issue at trial. Robinson testified, out of the presence of the jury, that he did not want the lesser-included offense of manslaughter instruction given to the jury. This claim was therefore properly dismissed by the postconviction court.\\nIn summary, we hold that most of Robinson's claims for ineffective assistance of counsel were barred from being raised in a petition for postconviction relief because they were known at the time of his direct appeal. His two claims that were not so barred were properly dismissed by the postconviction court. The postconviction court's finding of fact that Robinson's trial counsel had communicated plea offers was not clearly erroneous, and Robinson's claim for ineffective assistance of appellate counsel was properly dismissed because Robinson failed to allege sufficient facts to entitle him to relief.\\nAffirmed.\\n. The postconviction court did not dismiss these claims on this basis; rather, it examined each claim and determined that Robinson failed to make any factual allegations, which, if proved, would have entitled him to relief. After reviewing the record and Robinson's petition, we conclude that the petition was properly dismissed on this basis as well.\\n. Robinson attempts to avoid this procedural rule by alleging new facts and adding specific claims of a failure to investigate by his trial counsel. It is well settled that a party may not raise issues for the first time on appeal. Matter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982). These claims are therefore not properly before this court. Moreover, while Robinson has made more specific allegations regarding what investigation his attorney should have performed than he provided the postconviction court, he has still failed to allege how such investigation would have changed the outcome of his case. A showing of prejudice is an essential element of an ineffective assistance of counsel claim. See Fox v. State, 474 N.W.2d 821, 826 (Minn.1991).\\nThe only claims Robinson now makes about a failure to investigate that might have any merit are the claims that the victim's hands should have been tested for powder burns, and that the medical examiner should have been asked whether the victim's wounds could have occurred during a struggle. While these pieces of information, had they been presented, would have supported Robinson's contention that the shooting occurred during a struggle, given the weight of the evidence supporting the jury's ver-diet, it is unlikely that their absence affected the jury's verdict. Thus, it cannot be said that the attorney's failure to pursue these leads and introduce this evidence was an error that prejudiced Robinson's trial.\\n. The best procedure for raising such a claim, however, is to file a petition for posteonviction relief before appeal. Roby v. State, 531 N.W.2d 482, 484 n. 1 (Minn.1995).\\n. Even if Robinson had not waived the claim, it was not error to exclude the instruction. Where the jury finds the intent necessary for a higher degree of murder, the failure to instruct jury on the lesser offense of manslaughter is not prejudicial error. Cf. State v. Lee, 282 N.W.2d 896, 899-900 (Minn.1979). Here, the jury found Robinson guilty of, among other things, second-degree murder. Because the jury made this finding, they could not have concluded that Robinson also committed manslaughter. See Minn.Stat. \\u00a7 609.20(2) (1996). Failure to give an instruction on manslaughter in this situation was not an error, and Robinson's appellate attorney could not have been ineffective for not raising the issue on appeal.\"}"
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+"{\"id\": \"124297\", \"name\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER\", \"name_abbreviation\": \"Elliott v. McAllister\", \"decision_date\": \"1908-10-16\", \"docket_number\": \"Nos. 15,883\\u2014(138)\", \"first_page\": \"25\", \"last_page\": \"28\", \"citations\": \"106 Minn. 25\", \"volume\": \"106\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:01:15.985294+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER.\", \"head_matter\": \"J. K. ELLIOTT and Another v. T. E. McALLISTER.\\nOctober 16, 1908.\\nNos. 15,883\\u2014(138).\\n^Pleading \\u2014 Answer.\\nIn this, an action to recover for moneys advanced and commissions on purchases and sales of wheat for the defendant by the plaintiffs as grain brokers, it is held that neither by the answer nor by the defendant\\u2019s testimony was the plaintiffs\\u2019 alleged cause of action admitted.\\nAction in the district court for Hennepin county to recover $659.86, amount alleged to have been paid out and for commissions earned by plaintiffs as agents for defendant in the purchase and sale of wheat. The case was tried before Brooks, J., who directed a verdict in favor of defendant. From an order denying plaintiffs\\u2019 motion for a new trial, they appealed.\\nAffirmed.\\nBenton, Molyneaux & Morley, for appellants.\\nMead & Robertson, for respondent.\\nReported in 117 N. W. 921.\", \"word_count\": \"1224\", \"char_count\": \"7159\", \"text\": \"START, C. J.\\nThis action was brought in the district court of the county of Hennepin to recover from the defendant the sum of $659.86 for moneys paid and commissions earned by the plaintiffs in the purchase and sale of wheat for the defendant as his agent. At the close of the evidence the trial court directed the jury to return a verdict for the defendant, which was done, and the plaintiffs appeal from an order denying their motion for a new trial.\\nThe only question raised by the assignment of errors is whether the trial court erred in directing a verdict for the defendant. The plaintiffs in their brief urge, in support of their contention that the instruction was erroneous, that the answer admitted their cause of action as alleged in the complaint, and, further, that the defendant admitted it on the trial in giving his testimony. If either of these claims is justified by the record, it follows that the instruction was erroneous, and that there must be a new trial of the cause; but, if neither claim is sustained by the record, the order appealed from must be affirmed, for it is not claimed by plaintiffs that, independent of the-alleged admissions, the evidence made a case for the jury.\\nThe first question, then, is: Does the answer admit the plaintiffs'' cause of action ? After alleging that the plaintiffs were grain brokers,, doing business as such, and the' rules and methods of business of the Minneapolis Chamber of Commerce, the complaint alleged that plaintiffs, at the request of the defendant, bought and sold, as such brokers,, for him, wheat at various times from May 26 to June 13, 1900, inclusive, as shown by a detailed statement set out in the complaint,, giving dates of purchase and sale, number of bushels and prices, and' showing a net loss of $593.75. The complaint also alleged that the plaintiffs, at the request of the defendant, advanced and paid for him on such sales the sum of $593.75, the amount of such net losses, and, further, that the commissions on such transactions amounted to. $62.50.\\nThe answer denied each and every allegation of the complaint not expressly admitted in the answer. It then affirmatively alleged that in the months of May and June, 1900, the defendant employed the plaintiffs to make purchases and sales of wheat for future delivery, with the-mutual understanding and agreement that no wheat was to be delivered or received by either party on such transactions; that such purchases and sales and such transactions were to be mere wagers upon the-future rise and fall of the market price of wheat at Minneapolis, the account of which is particularly set forth in the itemized statement in the complaint, the plaintiffs to receive as their compensation one-eighth of one per cent, on the amount of such purchases and sales; that all such purchases and sales were made pursuant to such mutual understanding; that all of such transactions were to be settled at a future time by the' payment of differences, to wit, the difference between the contract of purchase or sale price and the market price on the day of the settlement, and that neither party to the transaction should be required to deliver or receive any wheat; that' all of such transactions involved and were simply gains or losses depending upon the future rise or fall of the market price, and that none of such wheat, or any wheat, was or was to be demanded,- tendered, delivered,, or received in any of said purchases or sales; and, further, that each and all of them were not veritable purchases or sales of wheat, but were colorable, and were wagers and gambling transactions, whereby plaintiffs, in form, undertook to buy and sell on the Minneapolis Board of Trade, ostensibly for future deliveries, wheat, but without any intention or expectation on the part of the plaintiffs or defendant, or any one else, that the same would be actually delivered. The reply put in issue these allegations of the answer.\\nCounsel for plaintiffs urge that the answer must be construed as admitting that wheat was actually purchased and sold by them for the defendant, and money advanced by them for him, as alleged in the complaint; hence the only issue tendered by the answer was whether the sales were gambling transactions. It is clear that the allegations of the complaint, to the effect that the plaintiffs bought and sold wheat for the defendant and advanced money for his use, at his request, were put in issue by the denials in the answer. The affirmative allegations of the answer, which are relied upon as an admission of the plaintiffs' cause of action, must be construed in connection with such denials. So construing them, it is obvious that they do not admit that the plaintiffs ever made any actual and legal purchases and sales \\u2022of wheat for the defendant, but only colorable and gambling sales \\u2022or transactions, \\\"the account of which is particularly set forth in the complaint.\\\"\\nThe claim of the plaintiffs that the defendant admitted the plaintiffs' cause of action on the trial is based solely upon testimony given by the defendant upon being called by plaintiffs for cross-examination. It was this: \\\"Q. You have admitted here in your answer, Mr. McAllister, under oath, that this statement of account contained in the complaint is correct, and that these sales were made upon your order. Is that true? A. That is true. Q. Well, you ordered these sales made by telegram? A. I did, I believe; all that I had made. Q. All these purchases you ordered by telegram, isn't that so? A. I think it was all by wire.\\\" This testimony must be \\u2022construed with reference to the answer, which did not admit that any actual sales of wheat were ever made, but only colorable ones. It is quite apparent, from the testimony quoted, that it was such sales that defendant had in mind when he answered the question; for it referred to the admission in the answer. When, however, the \\u2022entire testimony of the witness with reference to the purchase and sale of wheat for him by the plaintiffs is considered, there is no substantial basis for the claim that the defendant admitted on the trial the plaintiffs' cause of action.\\nWe therefore hold that neither by his answer, nor by his testimony, did the defendant admit the plaintiffs' alleged cause of action.\\nOrder affirmed.\"}"
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+"{\"id\": \"12564263\", \"name\": \"Adam BANDEMER, Respondent, v. FORD MOTOR COMPANY, Appellant, Eric Hanson, et al., Defendants.\", \"name_abbreviation\": \"Bandemer v. Ford Motor Co.\", \"decision_date\": \"2019-07-31\", \"docket_number\": \"A17-1182\", \"first_page\": \"744\", \"last_page\": \"762\", \"citations\": \"931 N.W.2d 744\", \"volume\": \"931\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Adam BANDEMER, Respondent,\\nv.\\nFORD MOTOR COMPANY, Appellant,\", \"head_matter\": \"Adam BANDEMER, Respondent,\\nv.\\nFORD MOTOR COMPANY, Appellant,\\nEric Hanson, et al., Defendants.\\nA17-1182\\nSupreme Court of Minnesota.\\nFiled: July 31, 2019\", \"word_count\": \"8695\", \"char_count\": \"56333\", \"text\": \"MCKEIG, Justice.\\nAppellant Ford Motor Company (Ford) appeals from a court of appeals decision affirming a district court's exercise of specific personal jurisdiction over Ford in a products liability case. Central to the litigation is a Ford vehicle that was involved in a car crash in which the passenger was seriously injured and an airbag in the vehicle allegedly failed to deploy. Ford argues that its contacts with Minnesota were not sufficiently connected to the current litigation because the car at issue was designed, manufactured, and sold outside of Minnesota. Because the claims here arise out of or relate to Ford's contacts with Minnesota, we affirm the court of appeals.\\nFACTS\\nIn January of 2015, Respondent Adam Bandemer, a Minnesota resident, was a passenger in a 1994 Ford Crown Victoria driven on a Minnesota road by defendant Eric Hanson, a Minnesota resident. Hanson rear-ended a Minnesota county snow plow, and the car ended up in a ditch. Minnesota county law enforcement responded to the crash, and Bandemer alleges that he suffered a severe brain injury as a result of the passenger-side airbag not deploying. He was treated for his injuries by Minnesota doctors in Minnesota. Bandemer alleges that the airbag failed to deploy because of a defect, and that the accident was caused by Hanson's negligence. He filed a complaint in district court alleging products liability, negligence, and breach of warranty claims against Ford and negligence claims against Hanson and his father, who owned the car.\\nFord moved to dismiss Bandemer's claims for lack of personal jurisdiction. See Minn. R. Civ. P. 12.02(b). Ford does not dispute the quantity and quality of its contacts with Minnesota, nor does it dispute the reasonableness of personal jurisdiction under the circumstances. But it argues that, because the Ford car involved in the accident was not designed, manufactured, or originally sold in Minnesota, Ford cannot be subject to personal jurisdiction in Minnesota on this claim.\\nFord's contacts include sales of more than 2,000 1994 Crown Victoria cars-and, more recently, about 200,000 vehicles of all kinds in 2013, 2014, and 2015-to dealerships in Minnesota. Ford's advertising contacts include direct mail advertisements to Minnesotans and national advertising campaigns that reach the Minnesota market. Ford's marketing contacts include a 2016 \\\"Ford Experience Tour\\\" in Minnesota, a 1966 Ford Mustang built as a model car for the Minnesota Vikings, a \\\"Ford Driving Skills for Life Free National Teen Driver Training Camp\\\" in Minnesota, and sponsorship of multiple athletic events in Minnesota. Ford also collects data from its dealerships in Minnesota for use in redesigns and repairs. Finally, Ford has employees, certified mechanics, franchises, and real property, as well as an agent for accepting service, in Minnesota.\\nThe district court held that the exercise of jurisdiction over Ford was proper, and Ford appealed. The court of appeals, applying our decision in Rilley v. MoneyMutual, LLC , 884 N.W.2d 321 (Minn. 2016), cert. denied , - U.S. -, 137 S. Ct. 1331, 197 L.Ed.2d 518 (2017), held that the district court did not err in denying Ford's motion to dismiss for lack of personal jurisdiction because Ford's marketing contacts with Minnesota \\\"established a 'substantial connection between the defendant, the forum, and the litigation, such that [it] purposefully availed [itself] of the forum' \\\" and those contacts \\\"sufficiently relate[ ] to the cause of action .\\\"\\nBandemer v. Ford Motor Co. , 913 N.W.2d 710, 715 (Minn. App. 2018) (quoting Rilley , 884 N.W.2d at 332 ). The court of appeals rejected Ford's arguments that the Supreme Court's decisions in Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014), and Bristol-Myers Squibb Co. v. Superior Court of California , - U.S. -, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017), require a more direct connection between and among the defendant, the forum, and the litigation than the standard articulated by this court in Rilley . 913 N.W.2d at 715-16. This appeal followed.\\nANALYSIS\\n\\\"Whether personal jurisdiction exists is a question of law, which we review de novo.\\\" Rilley , 884 N.W.2d at 326 (citation omitted) (internal quotation marks omitted). After a defendant challenges a court's exercise of personal jurisdiction, the plaintiff must make a prima facie showing that personal jurisdiction is proper. Juelich v. Yamazaki Mazak Optonics Corp. , 682 N.W.2d 565, 569-70 (Minn. 2004). When reviewing a motion to dismiss for lack of personal jurisdiction, we accept all of the factual allegations in the complaint and supporting affidavits as true. Rilley , 884 N.W.2d at 326. In a close case, we resolve any doubt in favor of retaining jurisdiction. Hardrives, Inc. v. City of LaCrosse , 307 Minn. 290, 240 N.W.2d 814, 818 (1976).\\nMinnesota's long-arm statute prevents personal jurisdiction over a nonresident defendant if it would \\\"violate fairness and substantial justice.\\\" Minn. Stat. \\u00a7 543.19, subd. 1(4)(ii) (2018). We may \\\"simply apply the federal case law\\\" because Minnesota's long-arm statute \\\"extend[s] the personal jurisdiction of Minnesota courts as far as the Due Process Clause of the federal constitution allows.\\\" Valspar Corp. v. Lukken Color Corp. , 495 N.W.2d 408, 410-11 (Minn. 1992). The Due Process Clause of the Fourteenth Amendment limits the ability of a state to exercise its coercive power by asserting jurisdiction over non-resident defendants. Bristol-Myers Squibb Co. , - U.S. -, 137 S. Ct. at 1779. A state may not exercise personal jurisdiction unless the defendant has \\\"minimum contacts\\\" with the state and maintaining the lawsuit \\\"does not offend traditional notions of fair play and substantial justice.\\\" Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citation omitted) (internal quotation marks omitted).\\nWe analyze five factors to determine whether the exercise of personal jurisdiction is consistent with federal due process: \\\" '(1) the quantity of contacts with the forum state; (2) the nature and quality of those contacts; (3) the connection of the cause of action with these contacts; (4) the interest of the state providing a forum; and (5) the convenience of the parties.' \\\" Rilley , 884 N.W.2d at 328 (quoting Juelich , 682 N.W.2d at 570 ). This five-factor test is a means for evaluating the same key principles of personal jurisdiction established by the Supreme Court-reasonableness in light of traditional notions of fair play and substantial justice. See K-V Pharm. Co. v. J. Uriach & CIA, S.A. , 648 F.3d 588, 592 (8th Cir. 2011) ; Dent-Air, Inc. v. Beech Mountain Air Serv., Inc. , 332 N.W.2d 904, 907 (Minn. 1983). The first three factors determine whether Ford has sufficient \\\"minimum contacts\\\" with Minnesota, and the last two factors determine whether jurisdiction is otherwise \\\"reasonable\\\" under concepts of \\\"fair play and substantial justice.\\\" Juelich , 682 N.W.2d at 570.\\nI.\\nWe will first address factors one through three, which determine whether minimum contacts are present. A defendant has sufficient \\\"minimum contacts\\\" to support personal jurisdiction if the defendant \\\"purposefully avails itself\\\" of the privileges, benefits, and protections of the forum state, such that the defendant \\\"should reasonably anticipate being haled into court there.\\\" Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). \\\"In determining whether a defendant has sufficient 'minimum contacts,' we consider the contacts alleged by the plaintiff in the aggregate and not individually, by looking at the totality of the circumstances.\\\" Rilley , 884 N.W.2d at 337. The forum State \\\" 'does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State' and those products subsequently injure forum consumers.\\\" Burger King Corp. , 471 U.S. at 473, 105 S.Ct. 2174 (quoting World-Wide Volkswagen Corp. , 444 U.S. at 297-98, 100 S.Ct. 559 ).\\nThe \\\"minimum contacts\\\" inquiry necessary to support specific personal jurisdiction over the defendant focuses on \\\"the relationship among the defendant, the forum, and the litigation.\\\" Walden , 571 U.S. at 284, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted). The \\\"defendant's suit-related conduct must create a substantial connection with the forum State.\\\" Id. Physical presence by the defendant in the forum state is not required for specific personal jurisdiction-rather, sufficient minimum contacts may exist when an out-of-state defendant \\\"purposefully direct[s]\\\" activities at the forum state, and the litigation \\\"arise[s] out of or relate[s]\\\" to those activities. Burger King Corp. , 471 U.S. at 472, 105 S.Ct. 2174 (citation omitted) (internal quotation marks omitted). This minimum-contacts inquiry must \\\"look[ ] to the defendant's contacts with the forum State itself\\\" and not the defendant's \\\"random, fortuitous, or attenuated\\\" contacts with \\\"persons affiliated with the State\\\" or \\\"persons who reside there.\\\" Walden , 571 U.S. at 285-86, 134 S.Ct. 1115. Substantial contacts with the forum do not compensate for a lack of a connection \\\"between the forum and the specific claims at issue.\\\" Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781.\\nA.\\nAlthough Ford does not contest the quality or quantity of its contacts with Minnesota, a description of those contacts is necessary for us to determine \\\"the relationship among the defendant, the forum, and the litigation.\\\" Walden , 571 U.S. at 284, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted). \\\"[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State .\\\" Hanson , 357 U.S. at 253, 78 S.Ct. 1228. The court of appeals held that Ford's regional advertising and marketing activities in Minnesota were contacts that were not \\\"random, fortuitous, or attenuated\\\" and through those contacts, Ford \\\"purposefully availed [itself] of the forum .\\\" Bandemer , 913 N.W.2d at 715 (citation omitted) (internal quotation marks omitted). We agree.\\nFord's data collection, marketing, and advertising in Minnesota demonstrate that it delivered its product into the stream of commerce with the intention that Minnesotans purchase such vehicles. Ford collected data on how its vehicles perform through Ford dealerships in Minnesota and used that data to inform improvements to its designs and to train mechanics. Ford has sold more than 2,000 1994 Crown Victoria vehicles in Minnesota. It sold about 200,000 vehicles of all types in Minnesota during a three-year period. It conducted direct-mail advertising in Minnesota and directed marketing at the state. This suit's connection with Minnesota is beyond \\\"the mere 'unilateral activity of those who claim some relationship with a nonresident defendant,' \\\" World-Wide Volkswagen Corp. , 444 U.S. at 298, 100 S.Ct. 559 (quoting Hanson , 357 U.S. at 253, 78 S.Ct. 1228 ); rather, the connection is based on Ford's own actions in targeting Minnesota for sales of passenger vehicles, including the type of vehicle at issue in this case.\\nTherefore, the court of appeals did not err in holding that the quality and quantity of Ford's contacts with Minnesota were sufficient to support personal jurisdiction.\\nB.\\nThe first two factors establish that Ford has purposely availed itself of the privileges, benefits, and protections of the state of Minnesota. We turn to the third factor in our personal jurisdiction inquiry: the connection of the cause of action to Ford's contacts with the state. A corporation's \\\"single or isolated items of activity in a state . are not enough to subject it to suit on causes of action unconnected with the activities there.\\\" Int'l Shoe Co. , 326 U.S. at 317, 66 S.Ct. 154 (emphasis added) (citation omitted).\\nThe court of appeals relied in part on our decision in Rilley to determine that there was an adequate connection between Ford's contacts with Minnesota and the cause of action, so as to support personal jurisdiction over Ford. Bandemer , 913 N.W.2d at 714-15. In Rilley , we noted disagreement among courts about how to apply the connectedness factor, distinguishing between a test that looks to whether the plaintiff's claim was \\\"strictly caused by or arose out of the defendant's contacts\\\" on the one hand, and a test that looks to whether \\\"the contacts are substantially connected or related to the litigation\\\" on the other hand. 884 N.W.2d at 336 We observed that although there was no evidence that certain ads \\\"actually caused any of the claims,\\\" nevertheless the ads were \\\"sufficiently related to the claims of respondents to survive a motion to dismiss,\\\" id. at 337, because they were the \\\"means by which\\\" the defendant, MoneyMutual, solicited Minnesota residents to apply for an allegedly unlawful loan. Id. at 336. We concluded that those ads were \\\"a relevant contact with the Minnesota forum for the purpose of the minimum contacts analysis.\\\" Id. at 337.\\nFord urges us to change course and instead adopt a \\\"causal\\\" standard for this prong, under which \\\"the defendant's contacts with Minnesota [must] have caused the plaintiff's claims\\\" for personal jurisdiction over the defendant to be proper. It argues that Supreme Court jurisprudence consistently applies a \\\"giving rise to\\\" standard, consistent with a requirement of causation, and therefore, the \\\"relating to\\\" standard that we applied in Rilley is incorrect. It further argues that a causal standard is clearer and easier to apply. Bandemer disputes Ford's characterization of Supreme Court precedent and argues that eliminating the \\\"relating to\\\" possibility would be a \\\"radical\\\" shift in specific personal jurisdiction law. We agree with Bandemer.\\nFirst, Ford argues that our \\\"related to\\\" conclusion in Rilley is dicta. It argues that we held that the email contacts that MoneyMutual made with Minnesota residents were sufficient by themselves to satisfy the minimum contacts question. See Rilley , 884 N.W.2d at 337. If this assertion is true, Ford reasons, then the ad analysis was not necessary to the holding and is therefore dicta that may be reconsidered without upsetting precedent. Even if our articulation of a \\\"relating to\\\" standard in Rilley is dicta, it is a correct application of Supreme Court precedent.\\nThe Supreme Court most recently addressed the minimum contacts test in its Bristol-Myers Squibb decision, which concerned whether California could exercise personal jurisdiction over a pharmaceutical company in a suit for injuries from medications sold by the defendant. - U.S. -, 137 S. Ct. at 1777. The Supreme Court held that California did not have personal jurisdiction over the company regarding claims by out-of-state (that is, out-of-California) plaintiffs because no connection existed between those out-of-state plaintiffs' claims and the defendant's contacts with California. Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781-82. The Court determined that sales to California residents of the drug at issue and research the defendant conducted in California on an unrelated drug were not sufficiently connected to the out-of-state plaintiffs' claims because \\\"[t]he relevant plaintiffs are not California residents and do not claim to have suffered harm in that State\\\" and \\\"all the conduct giving rise to the nonresidents' claims occurred elsewhere.\\\" Id. at -, 137 S. Ct. at 1781-82.\\nFord argues that Bristol-Myers Squibb shows that the Supreme Court applies a \\\"giving rise to\\\" standard in place of the \\\"arising out of or related to\\\" standard. Ford's reading of Bristol-Myers Squibb is unpersuasive for two reasons. First, the Court in Bristol-Myers Squibb stated that \\\"[o]ur settled principles regarding specific jurisdiction control this case,\\\" - U.S. -, 137 S. Ct. at 1781, which signals that the Court did not intend to depart from the \\\"arising out of or relating to\\\" standard it had previously applied in many cases. See, e.g. , Daimler AG v. Bauman , 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) ; Burger King Corp. , 471 U.S. at 472-73, 105 S.Ct. 2174 ; Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Indeed, the Court repeated the \\\"arising out of or related to\\\" standard in its opinion, which is hardly a repudiation of that standard. Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1780. Second, unlike here, the Court determined there were no connections between the alleged injury to the out-of-state plaintiffs and the forum. Id. at -, 137 S. Ct. at 1781. It is not likely that the Court applied a new, narrower standard in a case where the plaintiffs could not even meet the established, broader standard.\\nFord's next argument, that before Bristol-Myers Squibb the Court consistently applied a causal standard, is also unpersuasive. In the seminal case of International Shoe , for example, the Court described the connection standard. 326 U.S. at 319, 66 S.Ct. 154. It stated that \\\"to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state.\\\" Id. Those privileges come with obligations as well, and \\\"so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.\\\" Id. (emphasis added). The Court then held that the taxation obligation that the State of Washington sought to enforce was sufficiently connected to International Shoe's presence in the state for personal jurisdiction to exist. Id. at 320, 66 S.Ct. 154.\\nMore recently, in World-Wide Volkswagen , as in the current case, the plaintiffs alleged that a defect in an automobile led to severe injuries following an accident. 444 U.S. at 288, 100 S.Ct. 559. The car was sold in New York, and the accident happened in Oklahoma. Id. The Court rejected the proposition that the vehicle's mobility made it foreseeable that it might travel to Oklahoma, sufficing to establish personal jurisdiction in that state over the vehicle's distributor and retail dealer. Id. at 295, 100 S.Ct. 559. But before announcing its rejection of that proposition, the Court emphatically described the defendants' complete lack of contacts with Oklahoma:\\nPetitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market.\\nId. Were we to adopt Ford's position here, we would be reading out of the World-Wide Volkswagen decision everything the majority wrote about the defendant's lack of contacts with Oklahoma. If the particular vehicle was not designed, manufactured, or sold in Oklahoma, on Ford's theory, then it would not have mattered if the defendant sold millions of cars in Oklahoma. We decline to adopt a rule that would render irrelevant so much of the Court's reasoning.\\nThe Court in Bristol-Myers Squibb stated it was not departing from settled principles of specific personal jurisdiction. We believe it. Therefore, we decline to adopt Ford's causal standard.\\nC.\\nFord also argues that its contacts with Minnesota do not meet the \\\"relating to\\\" standard. It argues that \\\"[n]o part of Ford's allegedly tortious conduct-designing, manufacturing, warrantying, or warning about the 1994 Crown Victoria-occurred in Minnesota.\\\" Those contacts are only those that cause the claim, though. As we explained above, the requirements of due process are met so long as Ford's contacts relate to the claim. Rilley , 884 N.W.2d at 337.\\nThis is not a case where a 1994 Ford Grand Victoria fortuitously ended up in Minnesota. Ford has sold thousands of such Crown Victoria cars and hundreds of thousands of other types of cars to dealerships in Minnesota. Because the Crown Victoria is the very type of car that Bandemer alleges was defective, Ford's sales to the Minnesota dealerships are connected to the claims at issue here. Bandemer's claims are about the design of the Crown Victoria and therefore his claims are about more than one specific car. Ford also collected data on how its cars performed through Ford dealerships in Minnesota and used that data to inform improvements to its designs and to train mechanics. Part of Bandemer's claim is that Ford failed to detect a defect in its vehicle design. Those activities, and the failure to detect, likewise relate to the claims here. Ford directs marketing and advertisements directly to Minnesotans, with the hope that they will purchase and drive more Ford vehicles. A Minnesotan bought a Ford vehicle, and it is alleged that the vehicle did not live up to Ford's safety claims. \\\"In determining whether a defendant has sufficient 'minimum contacts,' we consider the contacts alleged by the plaintiff in the aggregate and not individually, by looking at the totality of the circumstances.\\\" Rilley , 884 N.W.2d at 337.\\nBeyond Ford's sales, marketing, and research contacts with Minnesota, there is an \\\" 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.' \\\" Bristol-Myers Squibb , - U.S. -, 137 S. Ct. at 1781 (quoting Goodyear , 564 U.S. at 919, 131 S.Ct. 2846 ). In Bristol-Myers Squibb , the Court considered the claims of non-forum residents who did not allege that any relevant facts relating to their claim occurred in the forum, and concluded that, absent such allegations, personal jurisdiction was lacking. Id . at -, 137 S. Ct. at 1782. In the current case, by contrast, the car crash and the injury to the plaintiff occurred in Minnesota, the car was registered in Minnesota, the plaintiff and the driving defendant are Minnesota residents, and the plaintiff was treated for the injuries in Minnesota.\\nFor these reasons, this case meets the requirement from Bristol-Myers Squibb that an \\\"activity or an occurrence . take[ ] place in\\\" Minnesota. The dissent disputes the relevance of a plaintiff's contacts with the forum. In fact, our analysis tracks the Court's analysis in Bristol-Myers Squibb. - U.S. -, 137 S. Ct. at 1781. After rejecting the Supreme Court of California's \\\"sliding scale\\\" approach as a \\\"loose and spurious form of general jurisdiction,\\\" the Court described the nonresident plaintiffs' lack of connection with the forum. Id. It specifically mentioned the lack of injury to these plaintiffs in California, and concluded that \\\"a connection between the forum and the specific claims at issue\\\" was \\\"missing.\\\" Id. The Court's discussion of the lack of plaintiffs' contacts with the forum demonstrates that the plaintiff's contacts are relevant to the analysis of the \\\"affiliation between the forum and the underlying controversy .\\\" Id. (citation omitted) (internal quotation marks omitted).\\nBecause there is a substantial connection between the defendant Ford, the forum Minnesota, and the claims brought by Bandemer, Ford's contacts with Minnesota suffice to establish specific personal jurisdiction over the company regarding Bandemer's claims.\\nII.\\nIf sufficient \\\"minimum contacts\\\" are established, we must consider the \\\"reasonableness\\\" of personal jurisdiction according to traditional notions of \\\"fair play and substantial justice,\\\" weighing factors such as the convenience of the parties and the interests of the forum state in adjudicating the dispute. Burger King Corp. , 471 U.S. at 476-77, 105 S.Ct. 2174 (citing World-Wide Volkswagen Corp. , 444 U.S. at 292, 100 S.Ct. 559 ). To establish specific personal jurisdiction, \\\"the facts of each case must [always] be weighed in determining whether personal jurisdiction would comport with fair play and substantial justice.\\\" Id. at 485-86, 105 S.Ct. 2174 (citation omitted) (internal quotation marks omitted). We examine these questions through factors four and five of our test: Minnesota's interest in the litigation, and the convenience of the parties. Rilley , 884 N.W.2d at 338.\\nFord concedes that these factors are established, and therefore support an exercise of jurisdiction. We agree. Minnesota has a strong interest in adjudicating this dispute regarding an accident involving a Minnesota county vehicle that occurred on a Minnesota road, between a Minnesota resident as plaintiff and both Ford-a corporation that does business regularly in Minnesota-and two Minnesota residents as defendants. Minnesota has a vital interest in protecting the safety and rights of its residents, in regulating the safety of its roadways, and in safeguarding Ford's co-defendants' rights. Minnesota's interest is expressed in its state constitution, which provides: \\\"Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.\\\" Minn. Const. art. I, \\u00a7 8. If complete, prompt, and economical justice are the goals, Minnesota is also the most convenient forum, as the site of the accident and treatment for the injury. Plainly, Minnesota has an interest in adjudicating this dispute and is the most convenient place to do it.\\nHere, we hold that Ford's contacts alone are sufficient to support specific personal jurisdiction and the reasonableness factors, which heavily favor jurisdiction, do not detract from the reasonableness of asserting jurisdiction over Ford here. After examining \\\"the relationship among the defendant, the forum, and the litigation,\\\" we hold that Minnesota's exercise of specific personal jurisdiction over Ford in this case does not violate due process. Walden , 571 U.S. at 287, 134 S.Ct. 1115 (citation omitted) (internal quotation marks omitted).\\nCONCLUSION\\nFor the foregoing reasons, we affirm the decision of the court of appeals.\\nAffirmed.\\nDissenting, Anderson, J., Gildea, C.J.\\nDISSENT\\nBandemer also argued below that Ford consented to personal jurisdiction by consenting to receive service of process through an agent in Minnesota. See Minn. Stat. \\u00a7 303.06 (2018) (requiring that a foreign corporation \\\"irrevocably consent[ ] to the service of process upon it\\\"); Minn. Stat. \\u00a7 303.13, subd. 1(1) (2018) (\\\"A foreign corporation shall be subject to service of process . by service on its registered agent .\\\"). Consent-based jurisdiction exists independently of specific personal jurisdiction, and federal courts have held that \\\"[o]ne of the most solidly established ways of giving such consent is to designate an agent for service of process within the State.\\\" Knowlton v. Allied Van Lines, Inc. , 900 F.2d 1196, 1199 (8th Cir. 1990). The court of appeals did not reach this question because it held that the exercise of jurisdiction was valid under the doctrine of specific personal jurisdiction. Because it was not decided by the court of appeals in the first instance, we similarly decline to address the question of consent-based jurisdiction in this case.\\nThe parties agree that Minnesota may not exercise general personal jurisdiction over Ford. Specific personal jurisdiction exists if the litigation \\\"arise[s] out of or relate[s]\\\" to the defendant's contacts with the forum. Burger King Corp. , 471 U.S. at 472, 473 n.15, 105 S.Ct. 2174.\\nThe dissent disputes this characterization of Ford's data collection. Ford describes its data collection as: \\\"Ford's design center collects some performance data from dealers nationally and Ford sometimes considers vehicle performance in the field to inform its overall design decisions.\\\" Ford further admitted \\\"that it receives information regarding vehicle performance across the United States, including in Minnesota, and that information may be used by Ford as it considers future designs.\\\" But, crucially, Ford's use of the word \\\"may\\\" is not a denial that it collects safety-related data in Minnesota, or that its safety-related data is relevant to Bandemer's causes of action. At the motion-to-dismiss stage, we are required to accept Bandemer's allegations as true unless Ford's discovery responses directly contradict Bandemer's claims. See Rilley , 884 N.W.2d at 336.\\nThe dissent treats the thousands of cars that Ford has sold into Minnesota as irrelevant, because \\\"[e]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.\\\" (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 930 n.6, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ). In our view, the dissent relies too heavily on Goodyear , a case in which the Court considered general jurisdiction. In Goodyear , the issue was whether foreign subsidiaries were subject to general personal jurisdiction in North Carolina. 564 U.S. at 919-20, 131 S.Ct. 2846. The quoted footnote was the Court's response to an allegation that the foreign subsidiaries sought to sell their tires in North Carolina, referring back to another section of the opinion in which it rejected \\\"the sprawling view of general jurisdiction urged by respondents . [that] any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed.\\\" Id. at 929, 131 S.Ct. 2846 (emphasis added). Regarding specific personal jurisdiction, however, the Court noted that the \\\"[f]low of a manufacturer's products into the forum . may bolster an affiliation germane to specific jurisdiction.\\\" Id. at 927, 131 S.Ct. 2846.\"}"
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+"{\"id\": \"128204\", \"name\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER\", \"name_abbreviation\": \"Chance v. Hawkinson\", \"decision_date\": \"1921-05-13\", \"docket_number\": \"No. 22,202\", \"first_page\": \"91\", \"last_page\": \"94\", \"citations\": \"149 Minn. 91\", \"volume\": \"149\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:49:55.467843+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER.\", \"head_matter\": \"ELIZABETH CHANCE v. CHARLES HAWKINSON AND ANOTHER.\\nMay 13, 1921.\\nNo. 22,202.\\nAppeal and error \\u2014 what renewable.\\n1. The record does not show a consolidation of two actions as claimed by plaintiff, and the appeal brings for review the judgment in one. i\\nSame.\\n2. In the absence of a settled case this court cannot review the action of the trial court in directing a verdict.\\nExclusion of evidence \\u2014 statute inapplicable.\\n3. There was no error under the facts stated in the opinion in ex- eluding evidence that a third person was in the naval service. The Soldiers\\u2019 and Sailors\\u2019 Civil Relief Act was without application.\\nFederal act does not apply.\\n4. The act of February 13, 1911 (36 St. 901), has no application to procedure in a state court.\\nState statute i\\u2014 adverse claims.\\n5. The plaintiff was deprived of no right given by Laws 1919 (Ex. S'ess.) c. 5.\\nAction of ejectment in the district court for Hennepin county and to recover $12,000 damages. The case was tried before Bardwell, J., who directed a verdict in favor of defendants. Plaintiff\\u2019s motion for judgment notwithstanding the verdict or for a new trial, was denied. From the judgment entered pursuant to the order for judgment, plaintiff appealed.\\nAffirmed.\\nE. K. Chance, for appellant.\\nC. M. Bleecker, for respondents.\\nReported in 182 N. W. 911.\", \"word_count\": \"1061\", \"char_count\": \"6135\", \"text\": \"Diberl, J.\\nElizabeth Chance brought an action to recover possession of real property in Minneapolis against the defendants Charles Hawkinson and wife. This action in the court below is No. 167,080. Harold 3L Chance was afterwards substituted as plaintiff. His name has not been carried into the title. Harold H. Chance later brought an action against the same defendants and others involving the same property. This action in the court below is No. 168,511. The appeal is from a judgment in favor of the- defendants.\\nThe first mentioned action resulted in a verdict directed for the defendants and judgment was entered on November 15, 1920. The appeal is from that judgment and assumes to reach all intermediate orders, findings and judgments in both actions.\\nThe plaintiff claims that the two actions were consolidated and that they are both for review. This is not the record. An examination of the papers returned shows that judgment was entered on June 18, 1919, in No. 168,511. The judgment in No. 167,080, entered November 15, 1920, -purports to be upon a verdict rendered under direction of the court. No mention of the additional parties in the other action is made. Both numbers are indorsed on the judgment and are written at the top. There is no order consolidating the cases. Neither the court nor the parties treated them as consolidated and they were not consolidated. This appeal reaches the judgment in No. 167,080, but not the judgment in No. 168,511.\\nThere is no settled case. Apparently the substantial issue was whether Elizabeth Chance was married to one Oliver K. Chance at the time he made a mortgage upon homestead property, under the foreclosure of which the defendants claim title. She did not join, and if she was then his wife the mortgage was void. Without a settled case bringing to us the evidence before the trial court, we are unable to review the contention of the plaintiff that there was error in directing .a verdict for the defendants. This is necessarily so, has been so held over 'and over, and there is nothing in the plaintiff's contention to discuss.\\nThe court settled a part of the transcript of the testimony as a bill of exceptions. It appears from it that proof was rejected that Horace C. Chance was in the naval service. There is nothing to indicate error in this. The Soldiers' and Sailors' Civil Relief Act of March 8, 1918 (40 St. 440), does not apply. The mortgage had been foreclosed long before the statute and before the war. Horace C. Chance is not a party. It does not appear by 'any competent evidence that Harold K. Chance took title from him. If he did it was before the statute and the war. There is nothing in the record to show the materiality or competency of the proof rejected.\\nWere it not that plaintiff urges as if in earnest that the act of February 13, 1911 (36 St. 901), relating to Federal appeals, has application here, we would not mention it. We dispose of the claim by saying that the statute has no application at all to procedure in a state court. That a Federal question, may be involved makes no difference. There is no room for argument.\\nNeither is there anything in the plaintiff's claim of a deprivation of a right given by Laws 1919 (Ex. Ses's) p. 6, c. 5. The action is ejectment. It is not to determine adverse claims. There are not two plaintiffs. It is not within the terms of the statute. Whatever the proper application of the statute is, it is clearly without application here.\\nWe have referred to all the points that need particular mention and to some which might well enough be passed without discussion. The plaintiff seems to -claim something by virtue of the decision in Chance v. Hawkinson, 140 Minn. 250, 167 N. W. 734. Even if that case were before us, the claim is groundless. The court there held, in accordance with a prior decision, that' the proper registration tax was paid and nothing else. The foreclosure was not held invalid.\\nThe plaintiff has not printed the paper book required by the rules. A mass of original records, including the judgment rolls in No. 167,080 and No. 168,511, 'and other original files in the court below, have been filed with the clerk of this court. Necessarily we have examined them to ascertain the real controversy and the actual questions presented for review. Counsel should not carry the impression that he is losing on a technicality. He had a trial below which resulted in the judgment. Just what occurred he has not chosen to present to this court for review. The trial court treated him with great patience and gave him every opportunity to procure a settled case. He persistently refused and relies wholly upon technical claims of.no substance or merit. Everything reviewable on the record has been examined and the plaintiff has nothing of which to complain.\\nJudgment affirmed.\"}"
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+"{\"id\": \"142949\", \"name\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION\", \"name_abbreviation\": \"Scott v. Lakewood Cemetery Ass'n\", \"decision_date\": \"1926-04-30\", \"docket_number\": \"No. 25,272\", \"first_page\": \"223\", \"last_page\": \"231\", \"citations\": \"167 Minn. 223\", \"volume\": \"167\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:44:23.874674+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, J., took no part.\", \"parties\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION.\", \"head_matter\": \"FRANK B. SCOTT v. LAKEWOOD CEMETERY ASSOCIATION.\\nApril 30, 1926.\\nNo. 25,272.\\nCobb, Wheelwright, Hole & Benson, for appellant.\\nSam J. Levy and Nathan H. Chase, for respondent.\\nReported in 208 N. W. 811.\", \"word_count\": \"2832\", \"char_count\": \"16458\", \"text\": \"Taylor, C.\\nDefendant was incorporated as a public cemetery association in 1871 and has some 200 acres of land within the city of Minneapolis devoted to cemetery purposes. It sells and conveys burial lots to private persons. Thirty-eight thousand interments have been made in the cemetery and interments are being made at the rate of about 1,500 per year. Defendant has provided a permanent improvement fund of several hundred thousand dollars, the income from which is devoted to the maintenance, care and improvement of the cemetery as a whole but not to the ornamentation or decoration of individual lots or single graves. It laid out and is improving and beautifying the cemetery according to a fixed plan; and to secure conformity to this plan requires that all trees or shrubs planted therein shall be planted by its own employes of such varieties and in such locations as shall be approved by the superintendent.\\nFor many years defendant has maintained and operated extensive greenhouses where lotowners at all times can secure at reasonable prices flowers, trees and shrubs for the purpose of decorating their lots, and keeps in its employ a sufficient number of skilled men to care for all lots and furnishes their services to all lotowners at reasonable prices. The planting of flowers on graves is not permitted, and many lotowners put them in vases or urns placed on their lots for that purpose. Many lotowners also thatch the graves on their lots with evergreen in the winter season.\\nIn the spring of 1924, defendant adopted and put into force, the following rules or regulations:\\n\\\"Florists.\\n\\\"No outside florist or gardener will be allowed to do any work within the cemetery, and florists' wagons will not be allowed to enter the gates except by special permission from the superintendent.\\\"\\n\\\"Thatching Graves.\\n\\\"It is customary with a large number of people to have the graves on their lots thatched with evergreens each fall. This work is done exclusively byi the cemetery association at the following rates: Grave of person under 5 years of age $1.50. Grave of person over 5 years of age $2.00.\\\"\\nIn 1919 plaintiff purchased a lot from defendant and buried his daughter thereon. Early in 1924 plaintiff employed Richard Wess-ling, a florist of the city of Minneapolis, to take care of an urn and its contents which he had placed on his lot and to thatch the grave of his daughter at Christmas time, the service to continue from year to year until the order was countermanded. Defendant cited the above rules and refused to permit Wessling to do this work. Thereupon plaintiff, asserting that the rules are arbitrary, unreasonable and an unlawful restriction upon his rights, brought this suit to enjoin defendant from enforcing them. The trial court held that the rules constituted an unlawful invasion of plaintiff's property rights and decreed that an injunction issue as requested. Defendant appealed.\\nIt is conceded that Wessling is a skilled florist fully competent to do the work, and that he would do it in conformity to and as required by the rules and regulations of the association. The sole question presented is whether a lotowner who wishes to decorate and beautify his lot in a proper and permissible manner has the right to have the work done by a competent person of his own choosing, or whether the association has the right to prohibit him. from employing anyone except its own employes to do such work.\\nWhile all courts recognize that cemetery associations may impose and enforce reasonable rules and regulations in respect to tbe matter of caring for; improving and decorating the burial lots therein, the courts which have had occasion to consider the question are nearly unanimous in holding that a rule prohibiting a lotowner from having the work of decorating his lot done'byi a competent person of his own selection and requiring that such work be done by employes of the association is unreasonable and void.\\nIn Chariton Cemetery Co. v. Chariton Granite Works, 197 Iowa, 403, 197 N. W. 457, 32. A. L. R. 1402, a rule providing that the work of grading and improving the lots and constructing the foundations for monuments should be done only by employes of the company was declared unreasonable and void. In the absence of any showing as to the character of the conveyance to the lotowner, the court assumed that he did not acquire the absolute fee but merely an exclusive right of sepulture subject to \\\"reasonable rules as to the improvement and adornment of their lots.\\\"\\nAmong other things the court said:\\n\\\"Any rule of the company that would deprive him of the right to personally care for, beautify, adorn and improve the burial place of his dead would be abhorrent to many of the finer instincts of mankind. A rule that required that the work be of a certain character, conform to certain standards, or be done in a certain manner would not deprive him of that right, and would not, on that account, be unreasonable; but one that obliged him to forego the right of personal attendance or labor in marking or beautifying the spot that he had provided as the last resting place of those near to him in life, so long as he conformed to proper regulations, would be unreasonable. What he might do himself, he might rightfully do by another of his own choosing whom he might regard as more competent or capable. Any regulation that prohibited him from so doing would, we think, be unreasonable.\\\"\\nWhile the precise point here in question was not involved in Manswer v. Astoria, 100 Ore. 435, 198 Pac. 199, the authorities defining the regulatory powers of cemetery associations over their cemeteries and the rights of those who acquire burial lots therein are exhaustively reviewed by the Oregon court and the conclusions deducible therefrom are carefully and clearly set forth. The court said, among other thing, that:\\n\\\"A cemetery is not only a place where the living may bury their dead, but it is also a place where they may express their affection and respect for those dead by marking and decorating the place of interment.\\\"\\nAfter saying that the rights granted are subject to all reasonable rules and regulations established for the government of the cemetery, and that the authorities do not always agree as to what regulations are reasonable, the court said:\\n\\\"The majority of the courts dealing with the question have ruled that a cemetery proprietor cannot by a rule, adopted after the sale of a lot for burial purposes, say to the purchaser that all improvements must be made by or under the supervision of the superintendent of the cemetery and that the purchaser cannot make the improvements in person or by his own agent.\\\"\\nIn Ex parte Adlof, 86 Tex. Or. 13, 215 S. W. 222, it is said:\\n\\\"All expressions from the courts, as far as they have come to our notice, seem to recognize the fact that a cemetery is not only a place where the dead may be buried, but it is also one in which the living may give expression to their affection and respect of the dead by marking and decorating the place of interment and beautifying its surroundings. In other words, the right to enter .the grounds for the purpose of burying the dead under reasonable restrictions and regulations is accompanied by the right to care for the grave subject to like reasonable regulations. We believe that one having the right of sepulture, desiring to mark or beautify the grave may exercise the privilege either in person or through the agency of another of his own selection.\\\"\\nAn ordinance prohibiting any person other than the lot owner or a relative of a person buried therein from doing such work was held unreasonable and void.\\nIn Nicolson v. Daffin, 142 Ga. 729, 83 S. E. 658, L. R. A. 1915A, 168, the Evergreen Cemetery Company had conveyed a lot solely as a place for the interment of the dead and subject to all the rules and regulations then or thereafter adopted for the government of the cemetery. Thereafter the city of Savannah purchased the cemetery and placed it under the control of its park and tree commissioners who prohibited plaintiff from having work done on the lot by a florist and from placing fertilizer thereon unless purchased from the commision. The court said:\\n\\\"The park and tree commission would have the right to pass any reasonable rule affecting the improvements in the lots; but it would seem to pass beyond the region of legitimate regulation to require of a lot-owner that she buy her fertilizer from the park and tree commission, and that no work would be permitted by a gardener of her selection, however capable, and however properly the work may be done. Of course they could impose reasonable regulations respecting the time of work, and such other requirements as would tend to the protection of the cemetery and other lot-owners. In their resolution the commissioners arbitrarily refused to allow the plaintiff to employ any person for hire, irrespective of his competency to do the work and of the nature of the work to be done, and they undertook further to require that all material be furnished by them, as well as the necessary labor, and based their refusal on their ability to furnish cheaper service. We think the action of the board, as contained in their resolution, amounted to an arbitrary refusal to consent to the employment of any agent by the plaintiff to work upon her lot, or to the use of any material not purchased from the park and tree commission.\\\"\\nThe commission was enjoined from enforcing the regulation.\\nCity Council of Augusta v. Bredenburg, 146 Ga. 459, 91 S. E. 486, is cited as holding otherwise. The city owned and maintained a cemetery, and appointed a \\\"cemetery brickmason and gravedigger.\\\" By ordinance all other persons were excluded from digging graves or constructing vaults. The court cited Nicolson v. Daffin, supra, as authority for the proposition that the certificates issued to lotowners did not convey the fee but merely an easement which was subject to reasonable control and regulation, and held that the easement was subject to the above regulation and that the lower court erred in enjoining its enforcement. The court did not express any intention of departing from the holding in the Nicolson case in respect to work of the character involved in that case.\\nRoanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769, is also mentioned as holding otherwise. The plaintiff, a private cemetery association, did not execute formal deeds but issued a certificate to the purchaser entitling him \\\"to own and occupy the lot specified, but only upon the terms and conditions prescribed by the company.\\\"\\nIt was held that a regulation that all graves should be dug and refilled by the superintendent was valid and enforceable against one who purchased with knowledge of that regulation. The question of the right to beautify the grave was not involved or considered.\\nState v. Scoville, 78 Conn. 90, 61 Atl. 63, is also sometimes cited as holding otherwise. But the rule there in question simply prohibited the planting, cutting or trimming of herbage, or the doing of any other work for the improvement or adornment of the lots, \\\"except by the consent and direction of the president or superintendent of said association.\\\"\\nIt contained no provision that the work should be done by employes of the association or forbidding the lotowner from having it done by a person of his own selection. The court held the regulation valid saying that it \\\"was presumably intended to serve the lawful purpose of enabling the association to secure the proper care and management of burial lots;\\\" and saying further that it was not a case of an arbitrary refusal \\\"to permit a lotowner, or one acting under his authority\\\" to do the work, as it did not appear that any request for permission to do it had ever been made.\\nIn Cedar Hill Cemetery Co. v. Lees, 22 Pa. Super. Ct. 405, a rule prohibiting all persons from \\\"cutting grass, planting flowers, sodding and grading lots\\\" for lotowners and reserving to the company \\\"the right to do all such work\\\" was sustained. But in Benson v. Laurel Hill Cemetery Co. 68 Pa. Super. Ct. 242, a similar rule adopted after lotowners had long been permitted to employ persons of their own choosing to do such work was held to be unreasonable and its enforcement was enjoined. The opinion distinguishes the prior case, or attempts to do so, on the ground that the restrictions in the deed were different.\\nOther decisions showing the general trend of the authorities are Silverwood v. Latrobe, 68 Md. 620, 13 Atl. 161; Johnstown Cem. Assn. v. Parker, 28 Misc. 280, 59 N. Y. Supp. 821; Ritchey v. City of Canton, 46 Ill. App. 185; Graves v. City of Bloomington, 67 Ill. App. 493; Brown v. Hill, 284 Ill. 286, 119 N. E. 977.\\nThe statute authorizes cemetery associations to \\\"acquire and manage all real or personal property necessary or proper for the establishment, embellishment, care and management of a cemetery.\\\" G. S. 1923, \\u00a7 7558. It also authorizes the trustees to sell and convey burial lots \\\"upon such terms and subject to such conditions and restrictions as they shall prescribe;\\\" and requires that, \\\"every conveyance of any such lot shall be expressly for burial purposes and no other.\\\" G. S. 1923, \\u00a7 7562.\\nThe deed to plaintiff conveys the lot for burial purposes only and subject to the condition, \\\"that the said premises and the use thereof shall, at ail times, be subject to the rules, regulations, limitations and restrictions prescribed by said association.\\\"\\nDefendant insists that the powers conferred by the statute and the restrictions in the deed gave it the right to require that the work of decorating the lot should be done only by its own employes, and that the rule applied in other jurisdictions is not applicable here for that reason. We find no ground for such a distinction. In many of the cases cited the conveyance was subject to conditions which limited and restricted the rights of the lotholder to fully as great an extent as those imposed upon plaintiff.\\nCedar Hill Cemetery Co. v. Lees, supra, is the only case to which our attention has been called in which a rule denying a lotowner the right to have his lot decorated and beautified by a person of his own selection has been sustained, and the same court in the later case of Benson v. Laurel Hill Cemetery Co. supra, held that rule unreasonable and enjoined its enforcement. In the Virginia and Georgia cases, a rule requiring that the digging and refilling of graves shall be done only by employes of the association was sustained. In Ritchey v. City of Canton, 46 Ill. App. 185, however, it was held that such a rule could not be enforced against one who had purchased his lot before the rule was adopted.\\nThe duty to maintain the cemetery in a sanitary condition may justify a requirement that graves be dug and refilled only by employes of the association, but that question is not involved in this case.\\nThe work of digging and refilling the grave is done because necessary; the work of adorning it is done as an expression of regard and affection for the one there buried. Taking away the right to do the work of digging and refilling the grave would not violate the sensibilities of the lotowner like taking away the right to do the work of adorning it in after years. The right to bury his dead in the ground purchased for and devoted to that purpose has carried with it from time immemorial the right to give expression to his regard and affection for them by caring for, marking and decorating their final resting place, including the right to do such work either personally or through those selected by himself.\\nOf course the association may require that such work be of a character and be performed in a manner to conform to the general plan for improving and beautifying the cemetery, and may adopt and enforce such reasonable rules as may be necessary or proper to accomplish that object and to protect the cemetery and the lots, graves and decorations therein from injury. It may regulate the exercise of the rights possessed by the lotowner, but it cannot prohibit him from exercising the right to have his lot cared for and decorated by persons of his own choosing.\\nJudgment affirmed.\\nHolt, J., took no part.\"}"
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+"{\"id\": \"147505\", \"name\": \"IN RE ESTATE OF MARY L. MORGAN\", \"name_abbreviation\": \"In re Estate of Morgan\", \"decision_date\": \"1927-01-07\", \"docket_number\": \"No. 25,267\", \"first_page\": \"425\", \"last_page\": \"426\", \"citations\": \"169 Minn. 425\", \"volume\": \"169\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:44:58.170400+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wilson, C. J.\", \"parties\": \"IN RE ESTATE OF MARY L. MORGAN.\", \"head_matter\": \"IN RE ESTATE OF MARY L. MORGAN.\\nJanuary 7, 1927.\\nNo. 25,267.\\nClifford L. Hilton, Attorney General, and Albert F. Pratt, Assistant Attorney General, for relator.\\nReported in 211 N. W. 823.\", \"word_count\": \"331\", \"char_count\": \"1800\", \"text\": \"Dobell, J.\\nCertiorari on the relation of the attorney general to review the order of the probate court of Wabasha county determining the inheritance tax in the estate of Mary L. Morgan deceased.\\nMrs. Morgan died testate. She left surviving her two sons and one daughter. By the terms of the will Alexander Morgan, a son, was the residuary devisee and took the homestead in fee, which was valued at $6,000. The probate court, in addition to the statutory exemption of $10,000, allowed Alexander Morgan the value of the homestead as exempt. The homestead was never set apart.\\nThe contention of the state is that Alexander Morgan, if there had been no will, would have received one-third of the homestead, and therefore should not be allowed more than one-third of its value as exempt. It does not insist that one-third is not exempt.\\nThe members of the court have not been in entire accord as to the proper tax when the heir takes the fee of the homestead by the will. In re Murphy, 146 Minn. 418, 178 N. W. 1003, 179 N. W. 728; In re Eckstrum, 159 Minn. 231, 198 N. W. 459; In re McDougall, 160 Minn. 393, 200 N. W. 353. We have not held, and it has not been our view, that an heir who would receive a share of the fee by descent, free of an inheritance tax, gets more than such share as exempt when he takes a greater portion under the will. Since the state does not object to the allowance of an exemption upon one-third of the estate, we need go no further. The order should be modified by imposing a tax upon two-thirds of the homestead value, or $4,000.\\nOrder modified.\\nWilson, C. J.\\nI concur in the result.\"}"
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+"{\"id\": \"162726\", \"name\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY\", \"name_abbreviation\": \"George B. Higgins & Co. v. Chicago, Burlington & Quincy Railroad\", \"decision_date\": \"1917-01-26\", \"docket_number\": \"Nos. 20,006, 20,007\\u2014(156, 157)\", \"first_page\": \"402\", \"last_page\": \"408\", \"citations\": \"135 Minn. 402\", \"volume\": \"135\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:47:42.671715+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.\", \"head_matter\": \"GEORGE B. HIGGINS & COMPANY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.\\nJanuary 26, 1917.\\nNos. 20,006, 20,007\\u2014(156, 157).\\nCarrier \\u2014 perishable freight \\u2014 burden on carrier, when.\\n1. A common carrier, of perishable freight is not an insurer of its delivery at destination in an undamaged condition. The rule in this state is that, when the shipper has shown that the damage occurred while the 'goods were in the carrier\\u2019s possession, a prima facie case of liability is made out, and the burden of proof is on the carrier to show that the damage was not caused by its negligence. Such a showing is a good defense, and it is not necessary to prove that the loss was caused by the natural tendency to decay.\\nCarrier \\u2014 receiving shipment from connecting carrier \\u2014 undiscoverable defect.\\n2. It was admitted that the damage was caused from the freight, potar toes in sacks, being loaded in cars in which the wood of the bottoms was permeated with salt. These cars were furnished by a prior carrier, and the potatoes transported in them over the line of such carrier and delivered, to defendant, a connecting carrier, which continued the shipment to its destination on its line. The unsuitable character of the cars was not discoverable by defendant on any reasonable inspection. It is held that the duty of defendant when it received the cars from the connecting carrier was to use due care, skill and diligence in inspecting them, that it would be liable for a breach of such duty, but not for a defect which was unknown to. it and not discoverable by the exercise of due care, skill and diligence.\\nVerdict sustained by evidence.\\n3. The evidence was sufficient to sustain the verdict in one of the two cases on the question of the extent of the damages, and there was no error in receiving the evidence bearing on that question.\\nTwo actions in the district court for Hennepin county, one to recover $1,032.61 for damage to a shipment of potatoes over defendant\\u2019s road to New Orleans, Louisiana, and the other to recover for damage to two shipments to St. Louis, Missouri. The actions were tried together before Molyneaux, J., who at the close of the testimony denied defendant\\u2019s motions for directed verdicts, and directed a verdict in one case for the plaintiff, and a jury which returned verdicts aggregating $1,630.74. From an order denying its motions for judgment notwithstanding the verdict or for new trials, defendant appealed.\\nReversed and judgment for defendant ordered in one case. Affirmed in the second case.\\nBarrows, Stewart & Ordway, for appellant.\\nH. R. Hewitt, for respondent.\\nReported in 161 N. W. 145.\", \"word_count\": \"2590\", \"char_count\": \"14661\", \"text\": \"Bunn, J.\\nThese eases, tried together in the court below, originally involved 18 causes of action, each for damages to a carload of potatoes. Only three of the'causes of action are involved on this appeal, the others having been disposed of. Two of the three causes of action concern shipments of potatoes from St. Paul to St. Louis, the other a shipment from St. Paul to New Orleans. The St. Louis shipments involve the same questions, the New Orleans shipment different questions.\\nFirst, as to the facts in regard to the St. Louis shipments. Plaintiff buys potatoes in Minnesota and ships in carload lots to points out of the state. The two shipments in question originated at Mora, Minnesota, on the line of the Great Northern Railway Company. The potatoes were loaded by plaintiff in two cars furnished by the Great Northern Company. They were sacked, and each car contained 240 sacks. The cars were consigned to plaintiff at Chicago, with instructions to hold at St. Paul. On arrival at St. Paul, new bills of lading were issued by defendant, and the cars consigned to St. Louis. The potatoes were not unloaded at St. Paul, but were inspected there by plaintiff. This was in accord with the established custom observed by plaintiff in its extensive business. On the arrival of these two cars at St. Louis, it was found that the potatoes had started to decay. After they were unloaded it was discovered that the cause was that the cars had salty bottoms, due to their having been used before for shipping hides or other articles where salt or brine was used. The testimony was conclusive that this condition could not be discovered until the potatoes were unloaded, and was not observable even then on casual inspection, as the salt or brine had worked into the wood of the car floor or sides. It was stipulated between counsel on the trial that the damage to these two cars was all due to the fact that the potatoes were loaded and shipped in cars with salty bottoms. \\u00a1\\nThe trial court, though at first taking the view that defendant was not liable for the damage to these cars, finally directed a verdict for the plaintiff on these causes of action, the amount of the -damage being admitted. Defendant moved for judgment notwithstanding the verdict, or for a new trial. The motion was denied, and this appeal taken.\\nIt was apparently the position of the trial court, and the position is insisted on by plaintiff on this appeal, that defendant, though not responsible for the salty condition of the cars furnished by the Great Northern Company to plaintiff, and not negligent, is nevertheless liable as an insurer, and responsible for all damages, there being proof that the potatoes were in good condition when entrusted to its care, and in bad condition on arrival at destination, and the damage not being due to the inherent nature of potatoes to decay. Defendant claims that this proof only makes a prima facie case of negligence, which may be rebutted by proof that the damage was not caused by any negligence of the car rier, and that in the present ease the presumption raised was conclusively rebutted.\\nIs it the law, as claimed by plaintiff, that a common carrier of perishable freight is an insurer of its delivery at destination in an undamaged condition, and can only escape liability by proving that the damage was caused by the act of God or the public enemy, or that the damage arose out of the inherent nature of the property to decay? Plaintiff insists that this is the common-law rule, and cites Minnesota cases that are claimed to declare it to be the law in this state. 1 Dunnell, Minn. Dig. \\u00a7 1323, and cases cited; Presley Fruit Co. v. St. Louis, I. M. & S. Ry. Co. 130 Minn. 121, 153 N. W. 115. In contending that these cases or any cases in this state apply the comimon-law rule that the carrier is an insurer to shipments of perishable freight, we think plaintiff is mistaken. Our reports are replete with eases announcing and applying the rule that proof of no negligence is a good defense in cases of injury to perishable freight, such as fruit and vegetables. Defendant need not prove that the damage was caused by the natural tendency to decay. It is sufficient to prove that it was not caused by its negligence. The rule that proof of injury while in the carrier's possession makes a prima facie case of negligence, which may be rebutted, like any other prima facie case, by proof that the damage was not caused by negligence of the carrier, has been often distinctly stated by this court. 1 Dunnell, Minn. Dig. \\u00a7 1333, and cases cited. Dunnell, Minn. Dig. 1916 Supp. \\u00a7 1333, and cases cited. Some of the eases cited state in so many words that the carrier is not an insurer in the shipment of perishable freight. Brennisen v. Pennsylvania R. Co. 100 Minn. 102, 110 N. W. 362, 10 Ann. Cas. 169; B. Presley Co. v. Illinois Central R. Co. 117 Minn. 399, 136 N. W. 11. All of them proceed on the theory that the liability rests on proof of negligence, and that the prima facie ease made by showing that the injury occurred while the goods were in the carrier's possession may be rebutted by proof that the carrier was not at fault. We hol'd that this rule, and not the rule that the carrier is liable as an insurer, applies to the facts in the instant case.\\nWas the presumption rebutted? Does the evidence establish the want of negligence on the part of defendant? There is no doubt that defendant was in no way negligent in furnishing these cars, as it ad mittedly had nothing to do with that. They were furnished plaintiff at Mora by the Great Northern Company. That they were in fact unsuitable for shipping potatoes because of the salty bottoms is mlade plain by the evidence, but was defendant responsible for this condition ? Plaintiff makes the claim that defendant is liable because it adopted the cars as its own and used them on its line to continue the shipments. This argument is based on the law that it is the duty of the carrier to furnish proper equipment, and the rule that when a carrier uses the cars of another connecting carrier it is responsible for their condition. If this rule \\\"creates a liability in this case, it is. a liability not based on negligence, or on any breach of duty, unless it be a nqminal one. Plaintiff expected the potatoes to proceed to their destination without unloading. It was impossible to discover the salty condition of the car bottoms. This is plain, both from the direct evidence, and from the fact that plaintiff's employees did not discover their condition either when \\u00bfhe potatoes were loaded at Mora, or when they were inspected at St. Paul. We notice a claim that the cars were Burlington cars, but we find no evidence to support such a claim. It is clear, in our opinion, that if defendant is liable for the condition of these cars, it must be on the theory that there is an absolute liability, irrespective of actual negligence or fault, arising from continuing the shipments on defendant's line in the cars in which they arrived at St. Paul. The claim that this is the law is largely based upon the case of Shea v. Chicago, R. I. & Pac. Ry. Co. 66 Minn. 102, 68 N. W. 608. The facts in the Shea case were that the defendant carrier knew that the car was unfit for the shipment of lemons when it received it from the connecting carrier. It was negligent in using such a car. While this is not made prominent in the opinion, and while some expressions therein seem to support a rule of absolute liability, it is nevertheless plain, taking- the opinion as a whole, that the liability of defendant is predicated upon its actual negligence in the care of the lemons while in its custody. There is no doubt that it is generally correct to say that it is the duty of a carrier to provide safe and suitable vehicles for the transportation of goods entrusted to its care, and that he is not excused from this duty when the goods are received and carried by him in vehicles furnished by a connecting carrier. He adopts and makes such vehicles his own for the purpose of conveying the goods. 2 Hutchinson, Carriers, \\u00a7 498-501. The statement of the author in one part of the text that the carrier will be liable for any damage arising from the unfitness of the vehicles for the carriage of the goods should be read in connection with the statement that, if the carrier fails to make reasonable inspection of the vehicles, he will be deemed guilty of such negligence as will render him liable for any resulting loss. It seems to us that the liability of the carrier who continues a shipment received from a connecting carrier in the cars of the latter should rest on negligence, some fault on its part, as its failure to properly inspect the vehicles before continuing the shipment. It will doubtless he true except in rare instances that the unsuitable character of the car is discoverable on inspection, and this was the fact in the Shea ease and in all the cases we have found that concern the liability of carriers for failure to furnish suitable cars or accepting from other carriers shipments in cars that are defective. In the case at bar the condition that caused the damage was not discoverable. We have been able to find no ease like it among the many decisions. We think that the authorities generally recognize that the liability of the carrier for failure to furnish suitable cars, whether the cars be its own or the cars of a connecting carrier which come to it with their freight, is not an absolute liability, but only results in case of its failure to exercise due care, skill or diligence. 5 Thompson, Negligence, \\u00a7 6591; Moon v. Northern Pacific R. Co. 46 Minn. 106, 48 N. W. 679, 24 Am. St. 194. See note to Louisville & N. R. Co. v. Church, 130 Am. St. 47, where the authorities are collected. The duty of the carrier is that of properly inspecting the cars of other roads that are received by it for transportation. If this duty is performed, or if the defect is one that a proper inspection will not disclose, there is no liability.\\nWe have not considered it necessary to refer to the language of the Carmack amendment, but will say that it makes a carrier liable for the loss or damage caused by it or by the carrier which continues the transportation. It does not make the carrier liable for damage caused by a prior carrier. We have assumed, without so deciding, that the evidence is sufficient to show that the damage occurred after the cars were received by defendant.\\nOur conclusion in the ease involving the two St. Louis cars is that there should be judgment for the defendant notwithstanding the verdict.\\nAs to the action involving the New Orleans shipment it is conceded that plaintiff made a case for the jury. It is the claim of defendant that there was no competent evidence as to the extent of the damage to the potatoes while they were in transit. The car arrived at New Orleans \\u2022on Sunday, October 5, and notice of its arrival was given the consignee on the sixth. Thq consignee refused to receive the potatoes, which were found to be \\\"more or less decayed.\\\" They were unloaded from the car and piled upon the unloading platform, where they remained until October 11, when they were inspected by an employee of a commission firm who reported that they were \\\"more or less decayed.\\\" The commission man to whom the potatoes were consigned was permitted to give his opinion that the condition of the potatoes on the eleventh was the same as on the sixth, and the extent of the loss was estimated on the basis of their condition at the later date. While the evidence is not very satisfactory, we do not feel justified in saying either that it was error to receive it, or that it is conclusive that part of the loss was caused while the potatoes were on the unloading platform, in defendant's possession as a warehouseman.\\nThe order in the case involving the two St. Louis' cars is reversed, and judgment for defendant notwithstanding the verdict ordered.\\nThe order in the ease involving the New Orleans shipment is affirmed.\"}"
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+"{\"id\": \"1635570\", \"name\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant\", \"name_abbreviation\": \"St. Martin v. Desnoyer\", \"decision_date\": \"1854-01\", \"docket_number\": \"\", \"first_page\": \"156\", \"last_page\": \"161\", \"citations\": \"1 Minn. 156\", \"volume\": \"1\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:32:09.573288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant.\", \"head_matter\": \"Paschal St. Martin, Respondent, vs. Stephen Desnoyer, Appellant.\\nWords charging the commission of an act which, if committed, would subject the person charged therewith to indictment at common law, are actionable per se, and the words, \\u201cYou have stolen my belt,\\u201d are therefore actionable in themselves.\\nWhere words alleged to be slanderous are of equivocal import, it is not error to submit to the Jury the question of the intent with which the words were spoken.\\nA verdict will be set aside which is the quotient arising from the division by twelve of the aggegate of twelve different sums specified by each individual juror, but it is incompetent to prove such facts, or any facts impeaching the verdict, by jurors them selves, or by third persons upon hearsay from jurors.\\nIs it error for Counsel in addressing the Jury to comment upon the amount of a former verdict in the same action? If it be, it stands upon a footing with the introduction of improper evidence, and, unless objection is made on the trial, cannot be assigned as error.\\nThe question of damages is the peculiar province of Juries; and unless they are so excessive as to warrant the inference of prejudice, partiality or corruption, a verdict will not be disturbed on the ground of excessive damages. ,\\nUpon an Appeal from an order refusing to award a new trial, this Court has no power to affirm the judgment with twelve per cent, damages and double costs.\\nThis was an action of Slander, tried at the April Term of the District Court, in the County of Ramsey. The Declaration charged, among others, the utterance of the following slanderous words : \\u201c You stole my belt! \\u201d \\u201c You have stolen my belt. You might as well have stolen my belt, as you broke open my. two cassets (trunks) two years ago!\\u201d The Defendant pleaded the general issue. After the testimony was closed, the Defendant\\u2019s counsel asked the Court to charge the jury, that the words \\u201cYou have stolen my belt\\u201d were not actionable, andnorecovery couldbehadwithoutproof of special damage; and that the words, \\u201cYou have stolen my belt, as you broke open my two cassets (trunks) two years ago,\\u201d were not actionable, and the Defendant was not liable without proof of special damage. His Honor, the Judge, refused so to charge, and instructed the jury that, if they believed the Defendant intended to charge the Plaintiff with stealing, the words were actionable. To all of which the Defendant\\u2019s counsel excepted. The Jury found a verdict for the Plaintiff for $212 50.\\nOn the 11th day of May, 1852, the Defendant moved for a new trial, upon the exceptions taken to the charge.\\nAnd farther, because the jury made up their verdict by agreeing each to specify a sum as due to the Plaintiff, to divide the aggregate of the sums so specified, by twelve, and to take the quotient as the result.\\nAlso, because the Counsel of the Plaintiff, in his address to the jury, commented upon the amount of a verdict rendered upon a former trial of the same action.\\nAlso, because the damages were excessive.\\nThe affidavits of three jurors were introduced to show the manner in which the verdict was made up, and of one of the Defendant\\u2019s Attorneys to show the objectionable matter of the address of Plaintiff\\u2019s Counsel to the jury.\\nA new trial was denied, and the cause came into this Court upon an Appeal from the order denying a new trial.\\nRice, Hollinshead & Becker, for Appellant.\\nI.' Atwater, for Appellee.\", \"word_count\": \"2157\", \"char_count\": \"12343\", \"text\": \"By the Cov/ct.\\nChateield, J.\\nThis is an action on the case for verbal Slander, and it is brought into this Court by Appeal from an order made therein overruling the Defendant's motion for a new trial.\\nThe causes urged for a new trial will be considered in the order in which they are stated in the motion.\\nThe first point is, that \\\" the Judge (before whom the cause was tried) erred, in charging the jury that the words 'You Time stolen my beltf are actionable.\\\"\\nThe rule is: that words charging a person with having committed an act for which, if the charge were true, he would be punishable criminally by indictment, are actionable per se. Young vs. Miller, 3 Hill's Rep. 21, and the cases there referred to by the Court. Stealing or larceny is an act \\u2014 a crime, thus .punishable. All larcenies were, at common law, felonies. The words \\\"You have stolen my belt\\\" contain a direct and unequivocal accusation of the crime of larceny, and are therefore actionable. This instruction to the jury, given as it was in the abstract, and without assuming that the words were proved, was correct.\\nThe second point is, that \\\"the Judge erred in charging the jury that the words i You have stolen my belt; you might as well steal my belt, as you broke open my cassets two years ago,' are actionable.\\\"\\nThis point is not accurately stated according to the instruction given by the Judge, as contained in the bill of exceptions. It is there stated that upon these words the Judge charged the jury, \\\" that if they believed the Defendant intended to charge the Plaintiff with stealing, the words were actionable, lie thus left it to the jury to ascertain and determine the moaning and intent of the words \\u2014 to give them construction and application \\u2014 and, in effect, instructed them, as a matter of law, that the words were actionable,\\\" or not, as they should or should not find that the Defendant intended thereby to charge the Plaintiff with the crime of stealing \\u2014 that if the Defendant did so intend, the words were actionable: otherwise, not. The question of intent was properly left to the jury, and the rule of law thereon was correctly given to them.\\nThe third point is, that \\\" the jury made up their verdict by agreeing each to specify a sum as due to the Plaintiff, and divide the aggregate of the sums so specified by 12, and to take the quotient as the result.\\\"\\nIf this point, in the form in which it is stated, is sustained by competent proof, it is conclusive against the verdict. The evidence adduced in support of it is,\\u2014\\nFirst. The affidavit of Mr. Hollinshead, one of the Counsel for the Defendant, \\u2014 that two of the jurors of the said jury informed him that the verdict \\\"was made up by agreeing that each juror should specify a sum as due to the Plaintiff: that the sums so specified should be added together, and the aggregate amount divided by 12, and that the quotient should be their verdict; that the agreement thus made was carried out, and the verdict rendered by the jury was the result thereof.\\\"\\nSecond. The affidavits of two of the said jurors to the same effect and extent: one of whom was one of the informants of Mr. llollinshead.\\nThe Plaintiff objects, that these affidavits are neither admissable nor competent evidence to prove the fact sought tobe established thereby. Are they ?\\nIt is now quite conclusively settled that the affidavits of jurors will not be received when offered to prove misbehavior in the jury with regard to tire verdict. 1 Greenleaf's Ev. Sec. 252, A. This rule is stated in very strong language in Graham's Practice, second edition, p. 315: \\\"In no case will the affidavits of jurors be received to impeach their verdict: the fact must be established by other evidence.\\\" The affidavits of tire jurors offered in this case, to show misconduct on their part, and thus impeach and avoid the verdict, must be excluded.\\nThe policy and reasons which exclude, in such cases, the affidavits of jurors, apply with increased force against their declarations without oath to third persons. If it is not properly allowable to put a verdict within the power of the affidavits of jurors, how much less allowable it must be to place the same verdict at the mercy of their mere declarations. It would be to receive, as competent evidence, hearsay, \\u2014 the acknowledged source of which is incompetent. The proposition palpably exposes its own error and impropriety. The affidavit of Mr. llollinshead must also be excluded.\\nThe affidavits upon which this allegation against the verdict is founded being excluded, the point is without support, and must be disregarded. And it would seem to be unnecessary to refer to the joint affidavit of three members of the jury, produced by the Plaintiffs to controvert it. It may, however,, be proper to say that this affidavit was admissible to support the verdict, had the evidence to impeach it been competent. It shows that the amount of the verdict was arrived at in the manner alleged by the Defendant, but it very explicitly denies that there was any agreement among the jurors by which they were to be bound by the result or precluded from objecting to it. It states, substantially, that each juror was at perfect liberty to obj ect to the result \\u2014 and they did object \\u2014 if not satisfied : and that the operation was several times repeated; that it was proposed as a means of arriving at a fair measure of damages,\\u2014 and that the verdict, as finally rendered, was agreed to by discussion among the jurors -as to its justice and cor redness which took place after the sum had been so found.\\nThe facts stated in this affidavit do not vitiate the verdict. To have that effect, it should appear that the jury, before ascertaining the quotient, agreed among themselves to abide at all events by the contingent result as their verdict, and that it was made up and rendered accordingly. Graham's Pr. second ed. 315. Such seems to be the rule.\\nThe fourth point is, \\\"that the Attorney for the Plaintiff, in addressing the jury, referred to, and urged, in support of his case, the amount of the verdict given on the former trial.\\\"\\nThis point rests solely upon an affidavit stating the fact urged as error. The point is not of that kind or character that ought to be allowed to stand upon ex jpcurtc affidavits. The fact alleged must have transpired in the course of the proceedings upon the trial in Court, and in the presence of the Counsel for the opposite party. Errors thus occurring are the proper subjects to be included in a bill of exceptions or case, to be settled by the Judge upon notice to the opposite party.\\nTo make this allegation of- error \\u2014 -if good at all \\u2014 effectual however presented, it should appear that the act complained of was objected to at the time, the objection overruled, and exception taken.\\nThe rules governing the admission of evidence apply to and control the question made by this point; and it cannot be contended that the admission of improper evidence to the jury, without objection, can bo alleged as error upon affidavit after verdict.\\nThe fifth point is, that \\\"the damages allowed by the jury are excessive,\\\"\\nThe action is for Slander. The damages assessed by the verdict are, $212 50. It does not appear that there was any evidence in the case to show what was the Defendant's personal or j>ecuniary rank and influence in society at the time when the slanderous words are alleged to have been spoken. The words were therefore given to the jury without any detraction from or aggravation to the injury of the Plaintiff, which their common and ordinary meaning and effect would naturally produce. It was exclusively the right and duty of the jury to determine the extent of such injury, and the amount of damages which the Plaintiff had sustained thereby; and in this, as in all kindred cases, the liquidation by the jury is conclusive: unless the sum be so excessively large and disproportionate as to warrant the inference that they wore, in making up their verdict, improperly swayed by prejudice, preference, partiality, passion or corruption. The circumstances of this case will not warrant this Court in drawing any such inference.\\nThe order from which the Appeal in this case was taken must be affirmed with costs.\\nThe Plaintiff asks that the judgment be affirmed with twelve per cent, damages and double costs. If this Court was disposed to grant this request, it has not the power to do it.\\nFirst. Because the Appeal is not from the judgmmt> but \\u2022from the order refusing a new trial; and,\\nSecond. Because the section of the Statute under which the Plaintiff claims these allowances (R. S. 416, Sec. 26) does not apply to appeals. Double costs may, in the discretion of the Court, be awarded to \\\"the party prevailing on a writ of Error\\\" \\u2014 not on an Appeal.\\nThat section of the Statute has been so amended as to preclude the recovery of damages by the prevailing party on a writ of Error. Amendments, p. 13, Sec. 52.\"}"
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diff --git a/minn/1650211.json b/minn/1650211.json
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+"{\"id\": \"1650211\", \"name\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY\", \"name_abbreviation\": \"Macomb Sewer-Pipe Co. v. Hanley\", \"decision_date\": \"1895-06-11\", \"docket_number\": \"Nos. 9363\\u2014(178)\", \"first_page\": \"350\", \"last_page\": \"352\", \"citations\": \"61 Minn. 350\", \"volume\": \"61\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:06:27.956526+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY.\", \"head_matter\": \"MACOMB SEWER-PIPE COMPANY v. MARY A. HANLEY.\\nJune 11, 1895.\\nNos. 9363\\u2014(178).\\nSeparate Actions on Note and Mortgage.\\nWhere A. and B. jointly made a mortgage, in which A. alone covenanted to pay the debt thereby secured, and B. alone executed the note secured by said mortgage, held, the party to whom the promise in each is made does not waive his right to sue on one instrument to recover personal judgment by reason of having brought suit on the other instrument to recover personal judgment.\\n33.es Judicata.\\nWhen an issue of fact litigated by the parties in a former action was not one necessarily involved in the determination of that action, held, the judgment in that action does not estop the parties as to such issue of fact, when raised in another action for a different cause of action.\\nAppeal by defendant from a judgment of the district court for Kamsey county entered pursuant to an order for judgment by Kelly, -J.\\nAffirmed.\\nJ. G. Mcwigan, for appellant.\\nS. G. Olmstead, for respondent.\\nReported in 63 N. W. 744.\", \"word_count\": \"1154\", \"char_count\": \"6500\", \"text\": \"CANTY, J.\\nTbis is an appeal from a judgment granted on the pleadings in favor of the plaintiff, a corporation. The action is brought to recover from defendant the sum of $636.63, which it is Alleged she agreed, by a covenant in a mortgage made by her, to pay. The mortgage is set out as an exhibit to the complaint, and purports to be made by defendant and her husband to plaintiff, and mortgages certain real estate to secure the payment of that sum '\\\"according to the conditions of a note payable in six months, at eight per cent, per annum, bearing even date herewith.\\\" She alone made the covenants of warranty, and covenants that she is lawfully seised of the land. She also covenants to pay said sum. No foreclosure is prayed for.\\nIn her answer, defendant admits that she made and delivered the mortgage to plaintiff. But she alleges as a defense: That said mort gage and the note therein described \\\"were made, executed, and delivered to said plaintiff at one and the same time, and were given tor one and the same debt, and together form one entire contract, and constitute one and the same cause of action.\\\" That in March, 1893, plaintiff .commenced an action on said note against her and her said husband, in the complaint in which plaintiff alleged that she and her said husband made and delivered to it said note, and \\u2022demanded judgment for the amount of the same. That in her separate answer to the complaint in that action she \\\"denied each and every allegation therein contained, and demanded judgment that the plaintiff therein take nothing by that action, as against her. That said action was thereafter tried on its merits. That at said trial it was claimed by said defendant, Mary A. Hanley, as a defense to said action, and that the same was duly litigated and determined therein, that she never signed, made, or executed said note, or authorized any one to make, sign, or execute the same for her; that the words 'Mary A. Hanley,' on said note, were not the signature of said defendant, but were a forgery; and that said note was altered by said plaintiff, or its agents, after the delivery thereof, by adding thereto the name 'Mary A. Hanley,' and changing the word T,' in said note, to the word 'we.'\\\" That on said trial the jury \\\"returned into said court their verdict therein in favor of said defendant, Mary A. Hanley.\\\" That thereupon judgment was duly made and given in her favor, and against plaintiff, \\\"whereby it was adjudged that said plaintiff is not entitled to any relief in said action, as against said defendant, Mary A. Hanley, and that it take nothing thereby, and that said defendant recover of said plaintiff, Macomb Sewer-Pipe Company, her costs and disbursements.\\\" There was a reply to this answer, which is not here material.\\nIt is true, as contended by appellant, that both the promise in the covenant and the promise in the note are to pay the same indebtedness. But it is contended by appellant that both these promises constitute but one cause of action, and th'at, by bringing suit on one instrument, plaintiff waived its right to bring suit on the other; that it should have set up all its grounds of action in one suit.\\nWe cannot agree with counsel. Defendant and her husband gave these separate instruments, each containing a promise to pay the debt for the purpose, among others, of allowing the plaintiff to bring .suit on one, without reference to the other, to recover personal judgment. Besides, she alone made the covenant; he alone made the note. The liability of each is on a separate instrument, and they could not be joined in one action. But even if she had in fact signed the note, as claimed, the same objection would lie, as he was not liable on the covenant, and could demur to that cause of action, and compel its dismissal. But, while separate suits may and must be maintained on these instruments, yet for many purposes they must be considered as one transaction; and we are not prepared to say that such an alteration of the note in the hands of the plaintiff as would make it guilty of forgery would merely avoid the note itself, and not also avoid the covenant in the mortgage.\\n' But it is not necessary to decide that question. The defendant has not, in this action, pleaded such an alteration of the note. She has. pleaded that the question of such alteration was litigated in the former action, but she does not state how it was decided, or that it was decided at all. The decision of that question was not necessarily involved in the result arrived at in the former action. In that action this defendant merely denied that she made the note. The jury returned a verdict for her, and judgment was thereupon entered in her favor. It does not appear from this that there was any such a fraudulent alteration of the note while in the hands of the plaintiff. The name of this defendant may have been thus added to the note before plaintiff received it, and plaintiff may have-honestly supposed that it was in fact her signature. \\\"A judgment is conclusive, by way of estoppel, only as to facts without the existence and proof or admission of which it could not have been rendered.\\\" Leonard v. Whitney, 109 Mass. 265, 268. To the same effect, see Hunter v. Davis, 19 Ga. 413; Bergeron v. Richardott, 55. Wis. 129, 12 N. W. 384; Irish-American Bank v. Ludlum, 56 Mirnn. 317, 57 N. W. 927.\\nThis disposes of the case, and the judgment appealed from is affirmed.\\nCollins, J., absent, took no part.\"}"
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+"{\"id\": \"1655345\", \"name\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others\", \"name_abbreviation\": \"Washington Loan & Trust Co. v. McKenzie\", \"decision_date\": \"1896-04-27\", \"docket_number\": \"Nos. 9983-(268)\", \"first_page\": \"273\", \"last_page\": \"276\", \"citations\": \"64 Minn. 273\", \"volume\": \"64\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:30:22.258505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others.\", \"head_matter\": \"WASHINGTON LOAN AND TRUST COMPANY, Administrator, v. JOHANNA McKENZIE and Others.\\nApril 27, 1896.\\nNos. 9983\\u2014(268).\\nTax Title \\u2014 Acquisition by Grantee of Mortgagor.\\nA mortgagor cannot, as against the mortgagee, acquire a tax title to the mortgaged premises through a breach of his own covenant to pay the taxes. And in that respect his grantee stands in no better position than the mortgagor himself.\\nSame \\u2014 Acquisition of Tax Title by Stranger \\u2014 Subsequent Purchase from Mortgagor.\\nM. executed a mortgage to W., in which he covenanted to pay all taxes on the mortgaged premises. M. having defaulted in the performance of this covenant, the premises were sold for taxes, and purchased by L. Subsequently, but before the time of redemption from the tax sale had expired, L. obtained a quitclaim deed of the premises from M., under which he immediately went into possession, and thereafter took steps to perfect his tax title by causing notice to be given of the expiration of the time of redemption. No redemption having been made, L., in an action by W. to foreclose his mortgage, set up his tax title, claiming that it had extinguished the lien of the mortgage. Hel\\u00e9 that, after purchasing from the mortgagor, L. was disqualified from acquiring, as against the mortgagee, any new or additional rights under his inchoate tax title.\\nSame \\u2014 Lien of Holder of Tax Certificate.\\nWhether, in view of the fact that he acquired his tax-sale certificate before he owed the mortgagee any duty to protect the land from taxes and tax sales, equity would not keep it alive, as a lien superior to plaintiff\\u2019s mortgage, for the amount required to redeem from the tax sale, qusere.\\nAppeal by defendants Lynott and Ballard from a judgment of the district court for St. Louis county in favor of plaintiff, entered in pursuance of the findings and order of Morris, J.\\nAfSrmed.\\nWilT\\u00c1am G. White, for appellants.\\nStanford <& Arbury and S. T. <& Wm. Harrison, for respondent.\\nReported in 66 N. W. 976.\", \"word_count\": \"1588\", \"char_count\": \"9257\", \"text\": \"MITCHELL, J.\\nIn February, 1889, the defendants McKenzie, as security for the payment of $1,200 and interest, executed to plaintiff a real-estate mortgage containing a covenant, among others, that the mortgagors would pay all taxes on the mortgaged premises. They failed to pay the taxes for 1889, and by reason of such default the premises were sold therefor in May, 1891, and bid in for the state. In April, 1898, one Speyers paid into the county treasury the amount for which the premises had been sold, together with all subsequent taxes, penalties, etc., and obtained from the county auditor an assignment of the interest of the state, as authorized by statute. In May, 1894, Speyers assigned the auditor's certificate to other parties, who, in turn, assigned it to defendant Lynott, in August, 1894. On November 26, 1894, the McKenzies, the mortgagors, for the consideration of $100, executed to defendant Lynott a quitclaim deed of the premises, under which he imruediately entered into, and still continues in, possession. It does not appear that this quitclaim deed contained any exceptions or covenants, or made any mention of either the mortgage, or the taxes on the land. Almost immediately after the execution of this quitclaim, Lynott caused notice to be given of the expiration of the time of redemption from the tax sale; the notice being served on the defendant Johanna McKenzie, in whose name the premises were assessed. No redemption was made, and, a few days after the expiration of the period for redemption, Lynott executed a mortgage to the defendant Ballard to secure payment of $2,000. All the conveyances and instruments above referred to were duly recorded in the order of their execution.\\nIn this suit to foreclose plaintiff's mortgage, the defendants Lynott and Ballard insist that it is no longer a lien on the premises, having been extinguished by the tax title. Ballard's rights as mortgagee are, of course, dependent upon Lynott's title; and the question is whether, under the circumstances, Lynott was in a position to acquire a tax title, so as to defeat plaintiff's mortgage.\\nThere are certain classes of persons, who, from their connection with the title to real estate, or in consequence of their relations to others having an interest in the property, are disqualified from purchasing the land at a tax sale. This rests, not on anything peculiar to the law of tax sales, but upon certain broad and general principles of equity, the fundamental one being that a person will not be permitted to acquire any right founded on his own default or neglect of duty. In supposed accordance with this principle, it had been frequently, if not generally, held that the owner in possession, and who therefore owed to the state the duty of paying the taxes, could not fortify his existing title, or acquire a better one, by allowing the land to be sold for taxes, and buying it at the sale. As this duty is one due only to the state, it is difficult to see why it is against equity to allow the owner of the land to acquire a tax title to it, as against one to whom he owes no such duty. This question has been set at rest by our statute, which provides that, \\\"if the owner purchase, the sale shall have the effect to pass to him every right, title and interest of any and every person, company or corporation, free from any claim, lien or incumbrance except such right, title, interest, lien or incumbrance as the owner so purchasing may be legally or equitably bound to protect against such sale or the taxes for which such sale was made.\\\" G-. S. 1894, \\u00a7 1599. While the owner, merely as such, is no longer disqualified from purchasing at a tax sale, the question whom and what interests he is legally or equitably bound to protect against taxes and tax sales remains to be determined by the same principles of equity as before the enactment of the statute.\\nWhether there are any circumstances under which the mortgagor can acquire a tax title, as against his mortgagee, it is not now necessary to consider, but it is elementary that he cannot acquire or build up a tax title upon a default in or breach of the conditions or covenants of his own mortgage. Allison v. Armstrong, 28 Minn. 276, 9 N. W. 806. Hence the McKenzies, who covenanted to pay the taxes, could not themselves have acquired a tax title, so as to defeat plaintiff's mortgage. It is equally well' settled that, where the mortgagor cannot do so, no one claiming under him can do it. His grantee will stand in no better position than the mortgagor himself. MacEwen v. Beard, 58 Minn. 176, 59 N. W. 942. The fact that he may not have expressly covenanted to pay the taxes, and may not be personally liable for their payment, would make no difference.\\nDefendants' counsel concede that, if Lynott's tax title had had its inception after he purchased from the mortgagors, the case last cited would be decisive of the present: but they seek to distin guish the cases, in that Lynott obtained an assignment of the auditor's certificate while he was still a stranger to the title of the mortgagors and mortgagee, and owed no duty to either to protect their interests against taxes and tax sales. Undoubtedly Lynott was at that time qualified to acquire a tax title, as against the plaintiff; and, if his relations to the parties and their title had remained unchanged, he could unquestionably have perfected his inchoate tax title, so as to extinguish plaintiff's mortgage. But the vital and pivotal fact in the case is that before the tax title had become absolute, and while certain steps remained to be taken to make it such, and while the auditor's certificate constituted a mere lien on the land, Lynott changed his relations to the title and to the plaintiff, by purchasing from, and going into possession under, the mortgagors. From that moment he became disqualified to acquire a tax title, as against the plaintiff. In accepting a quitclaim deed, he purchased the land subject to the existing lien for taxes. As between him and his grantors, the duty of paying these taxes devolved on him. By thus relieving the mortgagors from their payment he assumed the duty himself. If, at the time of this purchase, the tax-sale certificate had been outstanding in a third party, he could not, by purchasing it, have acquired a tax title, as against plaintiff. His purchase would, as to plaintiff, have been held to operate as a redemption. But there is no difference in principle between buying in an outstanding tax title, and perfecting an inchoate one which he already held. From the moment he became the grantee of the mortgagors, he became disqualified from acquiring any new or additional rights under any tax title. He was thereafter equitably bound to protect plaintiff's mortgage from taxes and tax sales.\\nWhether, in view of the fact that he acquired the tax certificate before he owed any such duty, equity would not keep it alive as a lien, superior to plaintiff's mortgage, for the amount required to redeem the land from the tax sale, is a question which has not been raised or discussed, and which we therefore do not consider. But, after defendants' purchase from the mortgagors, he could acquire no new or additional rights, as against the plaintiff.\\nJudgment affirmed.\"}"
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+"{\"id\": \"1701699\", \"name\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER\", \"name_abbreviation\": \"Humphreys v. Shellenberger\", \"decision_date\": \"1903-05-22\", \"docket_number\": \"Nos. 13,389\\u2014(94)\", \"first_page\": \"327\", \"last_page\": \"330\", \"citations\": \"89 Minn. 327\", \"volume\": \"89\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:06:59.582133+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER.\", \"head_matter\": \"EMMA HUMPHREYS v. GEORGE H. SHELLENBERGER.\\nMay 22, 1903.\\nNos. 13,389\\u2014(94).\\nYalue of Land.\\nWhere it becomes necessary to establish the value of land in an action for failure to convey, and the value has been estimated by parcels in the terms of a contract, such estimation is prima facie evidence thereof, and sufficient to support a finding based thereon in the absence of other proof.\\nEvidence \\u2014 Written Contract.\\nEvidence in this case considered, and held, that it reasonably tends to support the findings of the trial court to the effect that a written contract expressed .the intention of the parties, and that there was no material omission therein through mutual mistake.\\nReformation of Instrument.\\nHeld, further, that the findings of the court are sufficiently sustained by the evidence to justify the conclusions of law that the relief asked in defendant\\u2019s counterclaim seeking a reformation of a written agreement was properly denied, and that plaintiff was entitled to the damages claimed in the complaint.\\nAppeal by defendant from an order of tbe district court for Ramsey county, Nelly, J., denying a motion for a new trial.\\nAffirmed.\\nShellenberger & Bryan, for appellant.\\nKeith, Evans, Thompson & Fairchild, for respondent.\\nReported in 94 N. W. 1083.\", \"word_count\": \"1104\", \"char_count\": \"6445\", \"text\": \"LOYELY, J.\\nAction to recover damages for the alleged failure of defendant to fully execute a contract to convey real estate. The cause was tried to the court, who made findings and ordered judgment for the plaintiff for the amount claimed in the complaint. A new trial was refused, and defendant appeals. ,\\nThe complaint substantially shows that, under a written contract executed by both parties, the plaintiff, for the sum of $15,000, was to convey to defendant by deed of warranty within fifteen days thereafter a number of parcels of land in Anoka county. Defendant agreed to pay plaintiff $1,000 in cash at the time of the delivery of the deed, also to convey to her certain parcels of land in Norman county and lands in North Dakota at an estimated price per acre, with the further choice of other lands described in the contract, at the option and selection of the plaintiff, to be made within ten days from the date of the contract, to be accepted at a specified price named in the same, which, together with the Norman county land, would make up in the aggregate the sum of $14,000. Then follows a description of the lands from which the plaintiff might exercise her choice, with the estimated value thereof per acre.\\nPlaintiff performed her part of the contract, and made the deed of the Anoka county land to defendant. Defendant accepted the deed, and paid $1,000 in cash to plaintiff, conveying to her the Norman CQUiity land and land in North Dakota sufficient in all, with the cash received by her, to amount to $12,908.64 at the values stipulated, but declined to convey any other land because none of the pieces at the prices named in the contract could be made to correspond with any quarter or other governmental subdivision' at its agreed value as estimated in the contract for that purpose,, unless plaintiff would give a mortgage back for the excess. Plaintiff then demanded that defendant convey to her 72.7 acres by metes and bounds from one of the quarter sections which was designated as the subject of her choice in the contract, at the fixed value therein of $15 per acre, which would amount to the sum of $1,091.36, thus making up the sum agreed as the total value of the lands to be conveyed to plaintiff. Upon refusal to comply with this demand, plaintiff commenced this action.\\nDefendant admitted the contract, but set forth by way of counterclaim that through mistake of the parties a provision was omitted therefrom providing for the contingency that arose here, viz., the- necessity of subdividing a designated parcel of the lands named in the contract from which plaintiff might exercise her choice, if she demanded enough of it to make up the balance of. the $14,000, unless plaintiff would give security by first mortgage thereon for the difference between it and the value of the tract she desired, and asked for a reformation of the contract in that, respect, with a denial of other allegations in the complaint.. The new matter pleaded wa& denied, and the first material question before us on this review is whether there was such a mutual \\u2022mistake between the parties as required reformation of this agreement.\\nThe trial court, having heard the evidence to support these issues, made findings of fact to the effect that the allegations of the complaint were true, and that the allegations of fact upon which the claim for reformation of the contract had been based had not been sustained; holding, as a conclusion of law, that plaintiff was entitled to judgment for the sum of $1,090.50, with interest thereon.\\nA review of the evidence at the trial satisfies us that there was. no such clear and convincing proof of a mistake by the parties in the respect claimed by the defendant under the rules of law as required a reformation of the contract; hence this conclusion of law was not so palpably against the weight of evidence as to justify our interference in this respect.\\nIn the contract, which was pleaded in the complaint and admitted in the answer, the estimated value per acre of certain sections, of land and other government subdivisions was specifically designated and agreed to, which was the only proof at the trial of their value. It is contended by defendant that the court had no right to treat such estimation of values as evidence of the same, for the purpose of fixing the damages, which would, if so adopted, amount to the sum for which judgment was ordered, and which by the agreement defendant was bound to pay after having refused to. convey. It must be admitted that the damages in such a case-would be the value of the land plaintiff was entitled to select, and for which defendant refused a conveyance, and would be open to proof, yet in the absence of any other showing in that regard we-have no doubt that the court might treat the values fixed in the contract as competent evidence to establish the same prima facie;: and it follows, since the finding, by which such amount was estimated accurately, upon the agreed price per acre of the portion properly selected, was the only evidence of damages, it was sufficient for that purpose. Bennett v. Phelps, 12 Minn. 216 (326).\\nOrder of the trial court is affirmed.\"}"
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+"{\"id\": \"1720418\", \"name\": \"GEORGE F. LONG v. CHARLES A. LONG and Others\", \"name_abbreviation\": \"Long v. Long\", \"decision_date\": \"1910-11-18\", \"docket_number\": \"Nos. 16,743\\u2014(58)\", \"first_page\": \"400\", \"last_page\": \"403\", \"citations\": \"112 Minn. 400\", \"volume\": \"112\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:21:55.254731+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE F. LONG v. CHARLES A. LONG and Others.\", \"head_matter\": \"GEORGE F. LONG v. CHARLES A. LONG and Others.\\nNovember 18, 1910.\\nNos. 16,743\\u2014(58).\\nVacating judgment \\u2014 application hy purchaser.\\nOne who, after a judgment against a defendant in an action to quiet title, purchases defendant\\u2019s title, succeeds to all his interest and rights,-and may properly apply for a vacation of the judgment.\\nSame.\\nIn such case the applicant\\u2019s rights are those the original defendant would have had, if the application had been made by him.\\nDefendant\\u2019s right to defend.\\nWhere judgment is entered by default upon substituted service of summons, a defendant is entitled as a matter of right to have the judgment opened and be allowed to defend upon application, if made within one year, unless by his laches he has lost such right.\\nReview of question of loss of right.\\nThe claim that defendant\\u2019s right has been bo lost is addressed to the discretion of the court in which the judgment was entered.\\n[Note] Who may have judgment against other parties set aside, see note in 54 L.R.A. 758.\\nAction in tbe district court for Itasca county to quiet title to certain land. Defendant Charles A. Long gave notice of motion, to be made on February 3, 1909, to open tbe judgment entered in tbe action and permit bim to appear and defend tbe action on tbe ground the summons was not personally served upon him; that he had no notice of the action and had a good and substantial defense. After the submission of the motion but before its determination, on November 5, 1909, L. W. Huntley obtained an order to show cause why he should not be allowed to appear and defend. The plaintiff moved that Charles A. Long and L. W. Huntley be compelled to elect whether they would proceed under the motion of Long or the application of Huntley, and the motion was denied, Wright, J. The judgment was vacated, L. W. Huntley was substituted in place of Long and permitted to- interpose his proposed answer. From this order, plaintiff appealed.\\nAffirmed.\\nSavage & Purdy, for appellant.\\nThwing '& Bossmwn, for respondents.\\nReported in 128 N. W. 464.\", \"word_count\": \"1068\", \"char_count\": \"6093\", \"text\": \"O'Brien, J.\\nPlaintiff brought this action to quiet title. The complaint was filed June 24, 1908. Defendant Charles A. Long was a nonresident, and service was made upon him by publication; the last publication September 17, 1908. Findings wei'e made and judgment in favor of plaintiff was entered November 5, 1908. During this time L. W. Huntley secured tbe address of defendant Charles A. Long and entered into negotiations with him for the purchase of his interest in certain portions of the land involved in the action. On December 2, 1908, Huntley wrote a letter to the plaintiff's attorneys which contained the following: \\\"I have just purchased of Charles A. Long certain lots in the Syndicate division of Grand Bapids, list attached, all or a major portion your client, Mr. George F. Long, purchased at November, 1907, tax sale. \\\" Then follows a suggestion for some settlement of their claims.\\nOn January 25, 1909, taking the date from one of the affidavits in the record, a motion in the name of defendant Long was made to open the judgment, and supported by his affidavit. The affidavit was dated December 23, 1908, and on the-same day defendant Long executed a deed to Huntley of his interest in the property. The motion does not appear to have been brought on for hearing, and on November 5, 1909, there was issued an order to show cause why Huntley should not be substituted for defendant Long, and the judgment opened, and he allowed to answer. The record shows that, at the time of the purchase by Huntley and the making of the affidavit by Long, they both had knowledge of the judgment. Upon the hearing of this order plaintiff moved that Huntley.he required to elect whether to proceed upon the motion of Charles A. Long or upon his present application. This motion was denied, and an order made vacating the judgment as to Charles A. Long, substituting L. W. Huntley as defendant in place of Long, 'and permitting him to answer.\\nIt is contended by plaintiff that Huntley was a stranger to the judgment and that the subsequent purchase by him of Long's interest in the land gave him no standing or right to apply for a vacation of the judgment, and that defendant Long, having parted with his title December 23, 1908, had no longer any interest in the subject-matter of the suit, and therefore could not be heard. Counsel has cited decisions of other states which support his position. Powell v. McDowell, 16 Neb. 424, 20 N. W. 271; Browne v. Palmer, 66 Neb. 287, 92 N. W. 315; Ward v. Montclair, 26 N. J. Eq. 260; 1 Freeman, Judgments, \\u00a7 91.\\nThis, however, is a question which involves the construction of the statutes of this state, and we think the question is foreclosed by the previous decisions of this court to the effect that one who purchases from the defendant in an action affecting the title to real property, after the entry of judgment against such defendant, acquires his interest and rights as they are, and may make an application under the statute to have the judgment opened, and, if the application is granted, defend upon the merits. Boeing v. McKinley, 44 Minn. 392, 46 N. W. 766; Kipp v. Clinger, 97 Minn. 135, 106 N. W. 108. In the Kipp case it was held that such purchaser occupied the same position as would the original defendant, had the application been made in his name.\\nWe have only, therefore, to consider what would have been defendant Long's rights, had no conveyance been made by him, and- had the application to vacate the judgment been made by him. If such had been the case, there can be no doubt that the order vacating the judgment would be sustained. The trial court expressed the opinion that under all the circumstances of the case proper diligence was shown.\\nUnder section 4113, R. L. 1905, the granting of such relief is a matter of right, unless it is shown that the applicant has been guilty of laches. The claim that laches were shown was addressed to the discretion of the court, and we feel we would not be justified in setting aside the finding upon that question.\\nOrder affirmed.\"}"
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--- /dev/null
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+"{\"id\": \"1729717\", \"name\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM\", \"name_abbreviation\": \"Jennison v. Priem\", \"decision_date\": \"1938-03-23\", \"docket_number\": \"No. 31,750\", \"first_page\": \"338\", \"last_page\": \"342\", \"citations\": \"202 Minn. 338\", \"volume\": \"202\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:59:37.173031+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Gallagher and Mr. Justice Stone took no part in the consideration or decision of this case.\", \"parties\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM.\", \"head_matter\": \"J. W. JENNISON AND OTHERS v. ALBERT F. PRIEM.\\nMarch 23, 1938.\\nNo. 31,750.\\nW. E. Eottmger, for appellant.\\nWilson \\u00e9 Bleihen> for respondents.\\nReported in 278 N. W. 517.\", \"word_count\": \"1444\", \"char_count\": \"8151\", \"text\": \"Julius J. Olson, Justice.\\nDefendant appeals from a judgment entered in an action brought by plaintiffs against him to recover possession of a farm near Man-kato under the provisions of the unlawful detainer statute.\\nIn the late summer of 1935 plaintiffs, owners of the farm, entered into a written lease with defendant whereby he leased it upon a cash rental basis for a term of five years commencing in November of that year. The farm was for sale by the owners. Accordingly, in preparing the lease, there was employed a printed form of lease, commonly used in this state, containing a sale clause, which, as far as here material, reads:\\n\\\"That if the said first party [owner] sells said premises during the life of this lease and before the crop is in the ground, and desires to give possession to the purchaser, that the second party will forthwith surrender possession of said leased premises upon the payment to him of $ no/100 per acre for each acre of said premises newly plowed by said second party at the time said possession is demanded; if sold after the crop is in, then said second party shall have the right to remove such crop when ready to be harvested.\\\" (Italics supplied.)\\nIn December, 1937, plaintiffs entered into a contract for the sale of the farm to one Timm. Defendant was immediately notified of the sale and possession demanded effective as of March 1, 1938, that being the date when the purchaser was to have possession. Defendant refused to surrender possession, hence this action was brought.\\nThe complaint is in the usual form. Its adequacy is not questioned. Defendant tendered the general issue of \\\"not guilty\\\" and further, \\\"That under the lease described in plaintiffs' complaint, defendant has sown a crop on said described premises and under said lease he has the right to harvest and remove said crop, and under the terms of said lease, to remain in possession thereof until such crops are harvested and removed.\\\"\\nThe trial developed that defendant had planted 23 acres of winter wheat in the fall of 1937 and had also done some plowing.\\nAs will be observed, the real issue raised relates to the effect to be given the sale clause in view of defendant's fall planting of winter wheat in 1937. His claim is that the clause was intended to and does mean that he Avas to have the right of possession of the entire farm if any part of it was sown to crop when the sale was made; that, by so interpreting it, the winter wheat having been soAvn in the fall of 1937, he cannot now be dispossessed and that the court erred holding otherwise. If this theory is correct the result logically follows that he can plant to crop during the present spring the remainder of the farm and, before that crop is removed, plant another Avinter wheat crop, and thus continue from year to year until the five-year rental period expires. Such result Avas obviously not the intent or purpose of the clause: \\\"if sold after the crop is in, then said second party shall have the right to remove such crop when ready to be harvested.\\\" The contract engagement is that in event of sale by the owners defendant \\\"will forthwith surrender possession,\\\" but with the right reserved to him \\\"to remove such crop when ready to be harvested.\\\" If the intention was what defendant now claims it to be the parties could readily have said that no sale could be made after the crop or any part of it Avas planted. But they did nothing of the kind. They went much further and in plain language said (neither fraud nor mistake is here claimed), if the land is sold \\\"after the crop is in\\\" defendant shall \\\"have the right to remove such crop.\\\"\\nThe meaning of the writing is plain. There is nothing uncertain about it. Hence extrinsic evidence, parol or otherwise (absent as we have seen fraud or mistake), was inadmissible, and the court properly refused to permit defendant to show that the words used had some other and different meaning than the writing itself portrays.\\nWe think this case is governed by Carlson v. Wenzel, 127 Minn. 460, 461, 149 N. W. 937. The sale clause there involved was in substance and effect the same as the one we have here. There the tenant had sown fall rye. The court said:\\n\\\"In Minnesota the usual cropping season is the spring season. Farm leases are made with reference to the spring crop. It cannot be held that the planting of the rye in the fall saved the defendant's right of possession for the purpose of planting the spring crop of the following season or his right of occupancy of the premises. The defendant does not lose his crop of rye. By the terms of the lease he has a right of removal and that carries with it whatever right of possession is necessary to make the removal effective.\\\"\\nDefendant relies upon Johnson v. Carlin, 115 Minn. 430, 132 N. W. 750. There the sale clause was much the same as here, but in the portion thereof relating to payment for land newly plowed there were left blank spaces with regard to whom the payment should be made as well as the amount to be paid therefor by the owner in event of sale. The tenant's possession was secure until \\\"payment to . of $........per acre\\\" was made. Clearly, the court was right in holding that this presented an ambiguity. In such cases, the court said (115 Minn. 132, 132 N. W. 751) : \\\"if the meaning of a writing, T)y itself, is affected by uncertainty, extrinsic evidence, parol or otherwise, is admissible to show the situation of the parties thereto at the time it was executed, \\\" (Italics supplied.) That case is unlike the present in that there are no blank spaces here. Instead, in the space regarding payment, \\\"no/100 dollars\\\" was inserted; hence the foundation for the claimed similarity of facts disappears. As the court appropriately said (115 Minn. 133,132 N. W. 752) : \\\"If the intention was to eliminate the proviso as to payment for plowing in case a demand was made for a surrender of the farm before the expiration of the term, the obvious and certain way to express such intention would have been to have continued the ink line through the whole of the condition.\\\"\\nThe defense here pleaded and the means adopted at the trial to sustain it establish that defendant relied upon what was contained in the written contract. No reformation was suggested, and no claim was made that he was attempting to vary the terms of the lease. He was \\\"trying to explain\\\" it. \\\"We claim there is an ambiguity in the contract and that under the parol evidence rule we have a right to explain an ambiguity \\\" Defendant's line of questioning in seeking to introduce Ms proof went \\\"to the intention of the parties\\\" under the contract.\\nDefendant, apparently in desperation, then sought to show by parol proof that at the time the contract was signed one of plaintiffs, at defendant's request, \\\"explained\\\" the meaning of this clause. The trouble with that claim is apparent. An oral \\\"explanation\\\" of that which is concededly within the terms of a written contract might well be made the means of effectively destroying that which is written, thereby destroying the rule itself. This cannot be done.\\nWe are not to be understood as going beyond what was held in Carlson v. Wenzel, 127 Minn. 460, 149 N. W. 937. If the tenant in the usual course of good husbandry has prepared the ground for crop and thereby commenced the cropping of the land for that reason (in our state \\\"the spring season\\\"), it might well be held that if a sale is then made by the owner, pursuant to such contract as we have here, the tenant cannot be dispossessed of the farm until the end of that cropping season. But that question is not before us, nor was it before the court in the cited case. The facts here presented are substantially the same as in the Carlson case, hence the same result must follow.\\nWe think the court correctly disposed of the case, and the judgment is affirmed.\\nMr. Chief Justice Gallagher and Mr. Justice Stone took no part in the consideration or decision of this case.\"}"
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+"{\"id\": \"1734004\", \"name\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS\", \"name_abbreviation\": \"Marty v. Nordby\", \"decision_date\": \"1937-12-24\", \"docket_number\": \"No. 31,476\", \"first_page\": \"469\", \"last_page\": \"472\", \"citations\": \"201 Minn. 469\", \"volume\": \"201\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:24:03.531225+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS.\", \"head_matter\": \"EDITH MARTY v. RICHARD NORDBY AND OTHERS.\\nDecember 24, 1937.\\nNo. 31,476.\\nOppenheimer, Dickson, Hodgson, Brown & Donnelly, for appellants.\\nG. P. Mahoney, for respondent.\\nReported in 276 N. W. 739.\", \"word_count\": \"1100\", \"char_count\": \"6212\", \"text\": \"Peterson, Justice.\\nPlaintiff, as administratrix, recovered a verdict for $2,700 for her husband's wrongful death, which was caused by defendant George Swanson driving the automobile of the defendants Nordby and moving it to make room in an alley crowded with cars so he could pass Avith the truck of the defendants EAvald, of Avhich he was the driver. Plaintiff moved on the minutes for a new trial on the issue of dam-' ages only, upon the grounds that the damages were inadequate. Notice of the motion for neAv trial Avas served upon all defendants. The motion was granted, and there Avas no appeal therefrom. Then defendants Nordby moved for an order vacating the order granting plaintiff's motion for a new trial on the issue of damages only and for a neAv trial of all the issues on the grounds that the verdict is not justified by the evidence and is contrary to laAV, and error of law occurring at the trial. They appeal from the order denying their motion.\\nThe order denying defendants' motion below to vacate the order granting plaintiff's motion for a neAv trial on the issue of damages is not appealable. The statute, 3 Mason Minn. St. 1936 Supp. \\u00a7 9498(4), provides that an order granting a neAv trial is appealable if it is based exclusively on errors of law occurring at the trial, so stated by the court in its order or in a memorandum made part of the order. The order granting plaintiff's motion for new trial on the issue of damages does not come within the statute because it is not for error of law occurring at the trial. In the case of Roelofs v. Baber, 194 Minn. 166, 259 N. W. 808, We held that an order granting a new trial upon the ground of inadequate damages Avas not for errors of law occurring at the trial even if the trial court stated in a memorandum made part of the order that it was granted for errors of law occurring at the trial, and hence is not appealable. Reliance is placed upon Lundblad v. Erickson, 180 Minn. 185, 230 N. W. 473. That such an order is not appealable is definitely settled by Roelofs v. Baber, supra, against defendants' contention. An appeal does not lie from an order denying a motion to vacate a nonappealable order. 1 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934, 1937) \\u00a7 304; Davis v. Royce, 174 Minn. 611, 219 N. W. 928; Thompson v. C. & N. W. Ry. Co. 178 Minn. 232, 226 N. W. 700. Therefore, an appeal does not lie from the order denying defendants' motion to vacate the order made on plaintiff's motion.\\nThe statute authorizes an appeal from an order denying a motion for new trial. Defendants' appeal brings up only that part of the order denying their motion for new trial. A nonappealable order is not rendered appealable because it is coupled with an appealable order. An order appealable in part and nonappealable in part will present for revieAV only that part which is appealable. In such a case the nonappealable order or the part of the order which is nonappealable will be disregarded, and only the appeal from the appealable order or the part which is appealable Avill be considered. Schaedler v. New York L. Ins. Co. 201 Minn. 327, 276 N. W. 235; Nash v. Kirschoff, 161 Minn. 409, 201 N. W. 617; Worrlein v. Maier, 177 Minn. 474, 225 N. W. 399; Louis F. Dow Co. v. Bittner, 185 Minn. 499, 241 N. W. 569. The appeal, therefore, is good only as to that part of the order denying defendants' motion for new trial.\\nThe notice of motion, is for a neAv trial of all the issues upon the grounds (1) that the verdict Avas not justified by the evidence and is contrary to law and (2.) that the court erred in denying defendants' motion for a directed verdict in their favor. No other grounds for neAv trial are assigned. Only errors assigned beloAV can be considered on appeal from an order denying a motion for new trial. 1 Dunnell, Minn. Dig. (2 ed. & Supps. 1932, 1934, 1937) \\u00a7 395. The appeal from the order denying defendants' motion for new trial therefore does not present the question whether it was error for the court beloAV to grant plaintiff's motion for new trial on the issue of damages only.\\nThe only question raised by the appeal is whether defendants authorized Swanson to operate their automobile. Swanson was not their employe, and they could be held liable only if such consent was given. By L. 1933, c. 351, \\u00a7 4, 3 Mason Minn. St. 1936 Supp. \\u00a7 2720-104, the owner of an automobile is liable for injuries caused by the negligence of one operating his automobile upon a public street or highAvay with his permission. The alley is a public high way. Patterson-Stocking, Inc. v. Dunn Bros. Storage Warehouses, Inc. 201 Minn. 308, 276 N. W. 737; Miller v. J. A. Tyrholm & Co. Inc. 196 Minn. 438, 265 N. W. 324; Steinle v. Beckwith, 198 Minn. 424, 270 N. W. 139. The evidence whether defendants Nordby consented that Swanson could operate their automobile is conflicting. Plaintiff's evidence consisted of the testimony of Swanson himself, who said that he had such consent from Richard Nordby, Sr., given to him in the presence of Richard Nordby, Jr., who remained silent, and admissions made by Mr. Nordby to three other witnesses that he had given Swanson consent, and a written statement given to the insurance company on the day the accident occurred in which he stated in writing that he had given such consent. Swanson's statement is impeached by a statement which he gave the insurance company in which he stated that he requested consent from Nordby which the latter gave, but that he could not positively swear that Nordby expressly stated that he could move the car. Defendants' testimony consisted of denials that such consent was either requested by Swanson or given by either of the Nordbys. Nordby, Sr. was impeached by the statement which he gave his insurance company and by the statements which he made to plaintiff's witnesses which he first denied as a witness and which he later admitted, changing his testimony. The weight of this evidence was for the jury. It sustains the verdict.\\nThe order is affirmed.\"}"
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+"{\"id\": \"175055\", \"name\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION\", \"name_abbreviation\": \"City of St. Paul v. Oakland Cemetery Ass'n\", \"decision_date\": \"1916-11-17\", \"docket_number\": \"Nos. 20,186\\u2014(83)\", \"first_page\": \"441\", \"last_page\": \"445\", \"citations\": \"134 Minn. 441\", \"volume\": \"134\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:04:19.564677+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION.\", \"head_matter\": \"CITY OF ST. PAUL v. OAKLAND CEMETERY ASSOCIATION.\\nNovember 17, 1916.\\nNos. 20,186\\u2014(83).\\nConstitution \\u2014 exemption of cemetery from local assessments.\\nSection 6286, G. S. 1913, exempting public cemetery associations from assessments for local improvements, does not contravene any constitutional provision.\\nNote. \\u2014 For authorities discussing tbe question of liability of cemeteries to assessment for local improvements, see notes in 35 L.R.A. 36; 44 L.R.A. (N.S.) 57.\\nApplication to the district court for Ramsey county for confirmation of an assessment for the construction of a sewer on Magnolia street in the city of St. Paul. Defendant in its answer set up that it was organized in the year 1853 by virtue of the laws of the territory of Minne sota for the purpose of holding lands exclusively for the purposes of a public cemetery, and was authorized by law to hold not exceeding 300 acres exclusively for such purposes; that it actually owned 100 acres and no more; that in State v. City of St. Paul, 36 Minn. 529, this court held that its lands are exempt from assessments for local improvements. The matter was tried before Michael, J., who denied the application. From an order denying a motion to set aside the decision, the city of St. Paul appealed.\\nAffirmed.\\nO. II. O\\u2019Neill and J. P. Kyle, for appellant.\\nLighiner & Young, for respondents.\\nReported in 159 N. W. 962.\", \"word_count\": \"1515\", \"char_count\": \"9179\", \"text\": \"Holt, J.\\nSection 6286, G. S. 1913, which provides that the lands of a cemetery association organized under the laws of this state \\\"shall be exempt from all public taxes and assessments,\\\" is attacked as unconstitutional on this appeal.\\nThe city contends that the Constitution specifies what property may be exempt from public burdens and the extent thereof, and that it is beyond the power of the legislature to add thereto. Section 1 of article 9 of the Constitution so far as pertinent to this case reads: \\\"The power of taxation shall never be surrendered, suspended or contracted away. Taxes shall be uniform upon the same class of subjects, and shall be levied and collected for public purposes, but public burying grounds, public school houses institutions of purely public charity shall be exempt from taxation Provided, that the legislature may authorize municipal corporations to levy and collect asssessments for local improvements upon property benefited thereby without regard to a cash valuation .\\\" Previous to the amendment of 1906 the subject matters of section 1 were found under three sections of the same article. In some respects the amendment of 1906 was a fundamental modification of the former three sections. But the exemption of public burying grounds and institutions of purely public charity remained as before. At the time of the adoption of this amended section 1 of article 9, this court had held that, in virtue of section 6286, G. S. 1913, cemetery associations were exempt from assessments for public improvements (State v. City of St. Paul, 36 Minn. 529, 32 N. W. 781); and had also decided that institutions of purely public charity were not exempt from like assessments. Washburn M. O. Asylum v. State, 73 Minn. 343, 76 N. W. 204. By not making any change in the wording of the exemption either for public burying grounds or for institutions of purely public charity, it is fair to assume that the people, when section 1 in its present form was adopted, were satisfied with the interpretation given by this court to the existing statutes and Constitution with regard to the exemption and nonexemption of these organizations from local assessments.\\nWe also think that public policy, from territorial times to the present day, has always favored the exemption of public burying grounds from taxes and assessments. Section 15, e. 37, p. 161, Laws 1851, was to that effect. This section, unless repugnant to the Constitution of 1857, was continued in force and effect by section 3 of the Schedule. Since the Constitution itself provided for an exemption of public burying grounds from general taxes, it is not easy to find a statute repugnant thereto where it grants a like exemption from local assessments. The construction of the statute (the same as section 6386, G. S. 1913) was before this court in State v. City of St. Paul, supra, and the word \\\"assessments,\\\" as used therein, was held to designate impositions made by municipalities for local improvements, as contradistinguished from funds raised for general revenue. It is true, the constitutionality of the statute was not directly challenged in that case. However, it was there held that the cemetery was exempt from local assessments. After that decision has now for nearly 30 years been recognized as established law, the statute supporting it should not be lightly brushed aside as unconstitutional. We think public policy, as well as the reluctance which courts should properly entertain against disturbing what has apparently been for a long time accepted as settled law, prohibit us from declaring the statute invalid at this late day.\\nBut, even unhampered by the foregoing considerations, it is by no means clear that any constitutional objections may be found to the statute. The proviso in section 1, article 9, recognizes a power in the legislature over the assessments for local improvements. This court has held that municipalities do not inherently possess the power to levy such assessment. \\\"The authority of municipalities to impose burdens of any character upon persons or property, is wholly statutory.\\\" Sewall v. City of St. Paul, 20 Minn. 459 (511). See also State v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B, 189. Assessments for public improvements are based upon benefits conferred upon the property assessed, and cannot exceed such benefits. The legislature may prescribe how benefits shall be determined; and it would seem to follow that it may also determine whether or not a certain class of property will be benefited by local improvements. By the statute under consideration we may say, that the legislature determined that local improvements do not bestow, benefits upon public cemeteries, hence such property is exempt from assessments therefor.\\nAgain, it would appear to be in consonance with sound reasoning to say that the Constitution, by exempting certain property from general taxation, has invited rather than forbidden the legislature to exempt the same property from assessment for local improvements. The Constitution of Ohio provided that \\\"laws shall be passed taxing by uniform rule all real and personal property according to its true money value, but burying grounds may be exempted from taxation.\\\" No statute had been passed exempting cemeteries from the burden of local improvements, hence the court properly held the cemetery liable \\u00a3ot assessments in Lima v. Cemetery Assn. 42 Oh. St. 128, 51 Am. St. 807. But speaking of the bearing of the Constitution in this respect upon the authority of the legislature the court says: \\\"There is nothing then in the Constitution forbidding either the assessments of such property or its exemption from assessments.\\\" And decisions generally recognize the existence of statutory as well as constitutional exemptions. City Street Imp. Co. v. Regents of University, 153 Cal. 776, 96 Pac. 801, 18 L.R.A. (N.S.) 451.\\nAppellant cites cases holding cemetery associations liable for assessments of the character here in question: Bloomington Cemetery Assn. v. People, 139 Ill. 16, 28 N. E. 1076; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506; City of Baltimore v. Proprietors of Green Mt. Cemetery, 7 Md. 517; Mullins v. Mt. St. Mary's Cemetery Assn. 239 Mo. 681, 144 S. W. 109; Lima v. Cemetery Assn. supra, and others. In- these cases there was either a lack of express statutory exemption, or the exemption was from taxation merely which the court construed as not exempting from assessments, or else a construction was given to the word \\\"assessments\\\" in the exemption statute different from that given by this court in State v. City of St. Paul, supra. After the decision in Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506, the legislature of New York passed a statute specifically exempting cemeteries from assessments for local improvements. This statute was sustained in Buffalo Cemetery Assn. v. City of Buffalo, 118 N. Y. 61, 22 N. E. 962; Oakland Cemetery v. City of Yonkers, 63 App. Div. 448, 71 N. Y. Supp. 783 (affirmed in 182 N. Y. 564, 75 N. E. 1132); Matter of City of New York, 192 N. Y. 459, 85 N. E. 755.\\nThe learned court below denied the city the right ,to assess relator for benefits, on the ground that relator was incorporated prior to the adoption of the Constitution, so that Laws 1851, p. 161, c. 31, \\u00a7 15, became a part of its charter, and the exemption also covered land acquired subsequent to the adoption of the Constitution, whenever statutes were passed enlarging the quantity of land which a cemetery association may hold. This may also be correct; but we prefer to base our decision upon the constitutionality of the statute, thereby placing all public cemetery associations in the same class with respect to local assessments.\\nAffirmed.\"}"
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--- /dev/null
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+"{\"id\": \"1758816\", \"name\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\", \"name_abbreviation\": \"Hastings v. F. W. Woolworth Co.\", \"decision_date\": \"1933-10-06\", \"docket_number\": \"No. 29,382\", \"first_page\": \"523\", \"last_page\": \"525\", \"citations\": \"189 Minn. 523\", \"volume\": \"189\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:32:00.658062+00:00\", \"provenance\": \"CAP\", \"judges\": \"LORING, Justice, took no part.\", \"parties\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\", \"head_matter\": \"THEODOSIA HASTINGS v. F. W. WOOLWORTH COMPANY, INC.\\nOctober 6, 1933.\\nNo. 29,382.\\nSarah Gensler Schwarts, for appellant.\\nCobb, Hoke, Benson, Krause & Faegre and Bradshaw Mintener, for respondent.\\nReported in 250 N. W. 362.\", \"word_count\": \"635\", \"char_count\": \"3463\", \"text\": \"DIBELL, Justice.\\nAction to recover for personal injuries sustained by the plaintiff, a customer in the store of the defendant, through its negligence. The court directed a verdict for the defendant, pursuant to which judgment was entered. The plaintiff appeals from the judgment.\\nThere is no mystery in the law relative to the duty of a shopkeeper or merchant to his customers in his store. In Ober v. The Golden Rule, 146 Minn. 347, 178 N. W. 586, the rule is stated by Judge Lees in this way:\\n\\\"A shopkeeper is under legal obligation to keep and maintain his premises in reasonably safe condition for use as to all whom he expressly or impliedly invites to enter the premises.\\\"\\nThe merchant is not an insurer of the safety of his premises. Ordinary care in respect of them is owing his customers. It is hardly worth the time to discuss the cases. The following, though not parallel in their facts, are of illustrative value: Corrigan v. Elsinger, 81 Minn. 42, 83 N. W. 492; Albachten v. The Golden Rule, 135 Minn. 381, 160 N. W. 1012; Duffy v. Stratton, 169 Minn. 136, 210 N. W. 866; Landy v. Olson & Serley S. & D. Co. 171 Minn. 440, 214 N. W. 659; Poppleston v. Pantages M. T. Co. 175 Minn. 153, 220 N. W. 418; Tierney v. Graves Motor Co. 185 Minn. 114, 239 N. W. 905. The Minnesota cases are gathered in 4 Dunnell, Minn. Dig. (2 ed. & Supp.) \\u00a7 6984-6987. The cases over the country are col lected in a note in 33 A. L. R. 181-231; and in Am. Dig. Negligence, \\u00a7 32(1).\\nThe defendant operates a five-and-ten-cent store in Minneapolis. The plaintiff .claims that when she was in the store, walking in an aisle, she stepped on a waxy paper, that the floor was slippery, that the heel of one of her shoes caught in a small hole in the floor, causing her to fall, and that her ankle was wrenched. She sustained an injury. On the present record it cannot be said that the presence of the paper or the slipperiness of the floor was ascribable to the negligence of the defendant. At the most they were conditions or circumstances attending the injury and in no sense the sole cause of it. It could be found by a jury that the hole in the floor was the result of the defendant's negligence and that its negligence in this respect was a proximate cause of the injury.\\nThere is evidence that the hole to which the plaintiff testified, when it was examined the next day, did not appear to be a fresh one. Just its nature is not shown. It was large enough to admit the heel of a shoe. It is true that the testimony offered by the plaintiff as to its condition the next day did not certainly identify it as the one which caused the injury; but there was some evidence that it was. The issue of negligence was for the jury, and a verdict should not have been directed for the defendant.\\nWe note that the motion to direct a verdict was made when the plaintiff rested. The defendant did not rest; nor did it offer testimony. The fact is not important now, but we mention it so that it may be understood that it was not overlooked. See 6 Dunnell, Minn. Dig. (2 ed. & Supp.) \\u00a7 9765, 9766.\\nThe judgment is reversed with directions to grant a new trial.\\nJudgment reversed.\"}"
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+"{\"id\": \"182523\", \"name\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM\", \"name_abbreviation\": \"Wolff v. Lerum\", \"decision_date\": \"1950-10-27\", \"docket_number\": \"No. 35,323\", \"first_page\": \"144\", \"last_page\": \"148\", \"citations\": \"232 Minn. 144\", \"volume\": \"232\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:09:05.381712+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM.\", \"head_matter\": \"IN RE GUARDIANSHIP OF ALBERT R. WOLFF. ALBERT R. WOLFF v. ELSIE LERUM.\\nOctober 27, 1950.\\nNo. 35,323.\\nEdward A. Nierengarten and J. E. Hendrickson, for appellant.\\nLauerman & Pfeiffer, for respondent.\\nReported in 44 N. W. (2d) 465.\", \"word_count\": \"1300\", \"char_count\": \"7372\", \"text\": \"Knutson, Justice.\\nOn the petition of Elsie Lerum, respondent here, the probate court of Renville county made and filed its order on December 30, 1948, appointing one Paul Kolbe as guardian of the estate of Albert R. Wolff. Respondent is a daughter of Albert R. Wolff. An appeal was taken to the district court, and the decision of the probate court was affirmed. The case is here on appeal from an order of the district court denying appellant's motion for amended findings or a new trial. The only question raised by the appeal is the sufficiency of the evidence to warrant the appointment of a guardian for Mr. Wolff as an incompetent.\\nM. S. A. 525.54, so far as here material, provides that the probate court may appoint a guardian of the person or estate, or both, of any person \\\"who because of old age, or imperfection or deterioration of mentality is incompetent to manage his person or estate.\\\"\\nAt the time of the appointment of the guardian Mr. Wolff was 80 years of age. His first wife died on December 24, 1947. They had been happily married for 57 years and during that time had accumulated considerable property by their industry and thrift, including a 200-acre farm estimated to be worth some 830,000. By this marriage they had three children, the daughter, Elsie, now Mrs. Lerum, a son Allen, and a son, Herbert, who died. The relationship between the father and the mother and Elsie was ideal. Allen apparently had not been so fortunate, but had trouble domestically as well as financially. As a consequence of his domestic trouble, it appears that the Lerums had cared for Allen's daughter, Barbara, since she was a baby, she being some 10 or 11 years of age at the time of the trial. Prior to the death of the first Mrs. Wolff, she and her husband had executed joint wills, stated to be irrevocable, in which they had provided for Elsie and, out of Allen's share of the estate, had provided that Elsie should be paid for taking care of Barbara. It was also understood between them that when the first of the parents died the survivor would go to live with Elsie.\\nWhen Mrs. Wolff died Mr. Wolff chose to stay on the farm. With the help of Elsie, he procured a number of housekeepers between December 1947 and July 1948. On July 15, 1948, Mrs. Percival appeared on the scene as the new housekeeper, and almost immediately things began to change. Mr. Wolff's attitude toward Elsie became cool and distant. Although he admitted that she had always been honest and truthful, he now accused her of stealing his silverware. Mrs. Percival, within a matter of days, knew about the joint will that had been executed by Mr. Wolff and his former wife and the joint disposition they had made of their property, and she criticized the provisions of this will as silly. Mr. Wolff's attitude toward Barbara also changed. Prior to the appearance of Mrs. Percival he had manifested the kindliest of affection toward Barbara. He now became cold and did not care to see either Elsie or his granddaughter. Believing that Mrs. Percival was exercising complete domination over her father, Elsie petitioned for the appointment of a guardian. Mr. Wolff thereafter went to see Elsie at her home in Minneapolis to talk the matter over with her, and it was then arranged that Elsie and her husband would go to the farm the following Thursday to discuss the matter further. They drove to the farm, but when they arrived there they found no one at home and, instead, found a note from tlie father on each door stating that he would not be at home that day or the next and that he would see Elsie in court on Saturday. On October 21, 1948, while the matter was pending- in probate court, Mrs. Percival became Mrs. Wolff by marriage. Prior to coming to keep house for Mr. Wolff in July, she was a complete stranger.\\nThere is no evidence that Mr. Wolff squandered his money or his property. Up to the time of the appointment of the guardian, he had always taken care of his routine business and had managed and looked after his farm and his other affairs. He apparently was in good health for a man of his age.\\nThe appointment of a guardian over a person who, because of old age or other mental imperfections, is unable to manage his own affairs is intended for the purpose of protecting the person or estate of such ward, not for the purpose of depriving Mm of the right to manage his own affairs. It is always difficult to determine when it has become necessary to provide such protection for an aged person who has shown no disposition to squander his estate. It is, however, largely a question of fact based upon the opinion of the trier of facts before whom the proceeding comes, Parrish v. Peoples, 214 Minn. 589, 9 N. W. (2d) 225, and we should not disturb such finding on appeal unless it is obvious that there is no evidence reasonably tending to support it. In re Restoration to Capacity of Masters, 216 Minn. 553, 13 N. W. (2d) 487; In re Guardianship of Hudson, 220 Minn. 493, 20 N. W. (2d) 330.\\nUnder our statute, the ultimate test is incompetence to manage his person or estate. In Keiser v. Keiser, 113 Neb. 645, 204 N. W. 394, the facts are quite similar to those we now have before us. The statute in Nebraska appears to be more restrictive than ours. On an appeal from the appointment of a guardian in that case, the Nebraska court said (113 Neb. 651, 204 N. W. 396):\\n\\\"The descriptive words, 'mentally incompetent,' 'incompetent,' and 'incapable,' as used in sections 1589, 1590, Comp. St. 1922, mean any one who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause or causes, unable or incapable, unassisted, of properly taking care of himself or managing his property, and by reason thereof would be liable to be deceived or imposed upon by artful or designing persons. Mental incompetency or incapacity is established when there is found to exist an essential privation of reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life. Where a person has insufficient mental capacity for the just protection of his property and his mental condition is such that he is guided by the will of others instead of his own in its disposition, a guardian should be appointed.\\\"\\nThe above statement is applicable to the facts in the instant case. Taking the evidence most favorable to the prevailing party, as we must on appeal, we are convinced that the trial court was fully justified in coming to the conclusion that Mr. Wolff was so completely under the dominating influence of his new wife that the appointment of a guardian was necessary in order to preserve his estate.\\nOn the petition of appellant in the above matter, we issued our alternative writ of prohibition, which was returnable on August 11, 1950, restraining the district court from proceeding herein subsequent to the appeal. The matters set forth in the petition for a writ of prohibition having now become moot, the writ is hereby quashed without costs or disbursements to either party insofar as the petition for a writ of prohibition is concerned.\\nOrder affirmed.\"}"
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+"{\"id\": \"191396\", \"name\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS\", \"name_abbreviation\": \"State Bank v. Pangerl\", \"decision_date\": \"1917-12-14\", \"docket_number\": \"No. 20,576\", \"first_page\": \"19\", \"last_page\": \"21\", \"citations\": \"139 Minn. 19\", \"volume\": \"139\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:36:34.865019+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS.\", \"head_matter\": \"STATE BANK OF WILLOW RIVER v. PAUL PANGERL AND OTHERS.\\nDecember 14, 1917.\\nNo. 20,576.\\nBills and notes \\u2014 liability of accommodation indorser.\\n1. In an action on a promissory note made by defendant makers\\nat tbe request of tbe plaintiff bank to tbe defendant payee without consideration passing from him to them, and indorsed by the defendant payee to the plaintiff at its request and without consideration, the evidence is held to show as a matter of law that the indorsement was for the accommodation of the ' plaintiff'\\u25a0 and it cannot recover thereon. '\\nSame \\u2014 parol evidence of want of consideration.\\n2. The rule that upon the transfer of a promissory note the effect of the payee\\u2019s indorsement cannot be varied by parol does not prevent the showing of want of consideration or that paper is accommodation.\\nAction in the district court for Pine county against Paul Pangerl, Marie Pangerl and E. C. Townsend, to recover $352 upon a promissory note. E. C. Townsend, in his separate answer, alleged that there was no consideration for the note as between himself and the other defendants and no consideration for the indorsement to plaintiff, which facts were known to plaintiff, and that the note was procured by the cashier of plaintiff, acting for plaintiff, and was indorsed by defendant at his request, without consideration, and upon the express agreement that the answering defendant should not be held liable thereon. The case was tried before Nethaway, J., who made findings and ordered judg ment for the amount demanded. From the judgment entered pursuant to the order for judgment, E. C. Townsend appealed. Reversed.\\nWilliam M. Lamson, for appellant.\\nOttocar Sobotha, for respondent.\\nReported in 165 N. W. 479.\", \"word_count\": \"967\", \"char_count\": \"5520\", \"text\": \"Dibell, C.\\nThis is an action by the State Bank of Willow River against Paul Pangerl, Marie Pangerl, his wife, and E. C. Townsend upon a promissory note. There were findings and judgment for the plaintiff. The defendant Townsend appeals. The defendants Pangerl did not answer and have no defense..\\nOn October 7, 1912, the Pangerls made a note to the plaintiff bank for $1,178.60 due in six months. On March 27, 1913, the Pangerls made to Townsend a note for $352. This note was indorsed by Townsend and is the one in suit. The facts attending its execution are about these: Peter Praxel was the cashier of the bank. A day or two before the making of the note he went to'Rutledge, a few miles from Willow River, where Townsend and the Pangerls lived. He arranged either with Townsend to get the Pangerls- to make a new note, or with Paul Pangerl personally. He later made out the note at the bank and sent it by mail to Townsend and the Pangerls signed it. Pangerl did not know that the note ran to Townsend. Townsend's explanation of his indorsement is that he had the note among some cheeks for deposit, that Praxel called in a few days and was to take the checks to the bank, and that in indorsing the checks he inadvertently indorsed the note. He then refused to deliver it until Praxel gave him what he calls a \\\"clearance.\\\" This was furnished a few days later in the form of a memorandum signed by Praxel agreeing to reimburse him if he had to pay the note and it was then delivered to Praxel for the bank and was credited upon the $1,178.60 note. The Pangerls got the benefit of it. Townsend got nothing. It was never a subsisting obligation between him and the Pangerls. He was on it as an accommodation either for the Pangerls or for the bank. The Pangerls never heard of his connection with it until suit brought. He was not accommodating them. The evidence is conclusive that Townsend indorsed and delivered the note at the request of Praxel and as an accommodation to the bank. Townsend says that Praxel suggested that this would avoid the necessity of getting a new note from the Pangerls. Whatever Praxel did in connection with the transaction was done for the bank. It was wholly a bank transaction. The giving of the so-called \\\"clearance\\\" was as much a bank act as the taking of the note. If Townsend had indorsed the note as an inducement to the bank to give the Pangerls an extension there would have been a consideration. This was not the arrangement. Why the bank wanted a note from the Pangerls for $352, or for any amount, is a matter of conjecture. Praxel was not a witness. Prom the statements of counsel at the trial we take it that he is not available. Perhaps he could explain the transaction. Townsend's explanation is not very satisfactory and all of the transaction has not been explained. Upon the evidence before us the controlling fact is that Townsend's indorsement was for the bank's accommodation. He is not liable to the bank upon it.\\nEvidence of a parol contemporaneous agreement varying the effect of an- indorsement made upon the sale and transfer of a promissory note is- inadmissible. Giltner v. Quirk, 131 Minn. 472, 155 N. W. 760, and cases cited; 1 Dunnell, Minn. Dig. \\u00a7 3368. Knoblauch v. Foglesong, 38 Minn. 352, 37 N. W. 586, is a leading case. This rule does not trench upon the equally well settled one that want of consideration and that paper was given for accommodation may be shown by parol. These two, the accommodation character of paper and want of consideration, are inseparably connected and may be shown by parol. 1 Dunnell, Minn. Dig. \\u00a7 977, 3373; National Citizens Bank of Mankato v. Bowen, 109 Minn. 473, 124 N. W. 241; Shalleck v. Munzer, 121 Minn. 65, 140 N. W. 111; Kragnes v. Kragnes, 125 Minn. 115, 145 N. W. 785.\\nJudgment reversed.\"}"
\ No newline at end of file
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+"{\"id\": \"206175\", \"name\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION\", \"name_abbreviation\": \"Mann v. Employers Liability Assurance Corp.\", \"decision_date\": \"1913-11-07\", \"docket_number\": \"Nos. 18,205\\u2014(34)\", \"first_page\": \"305\", \"last_page\": \"308\", \"citations\": \"123 Minn. 305\", \"volume\": \"123\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:34:56.822331+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION.\", \"head_matter\": \"JOHN MANN and Others v. EMPLOYERS LIABILITY ASSURANCE CORPORATION.\\nNovember 7, 1913.\\nNos. 18,205 \\u2014 (34).\\nEstoppel and waiver.\\n1. Plaintiffs in an action upon an employers\\u2019 liability insurance policy held, precluded by their conduct from asserting that defendant was estopped or had waived its right to defend on the ground that the loss was not covered by the terms of the policy.\\nDirected verdict.\\n2. Direction of verdict for defendant held proper.\\nAction in the district court for Ramsey county to recover $3,-114.15', under defendant\\u2019s policy of insurance. Among other matters the answer alleged that it was agreed between these plaintiffs and defendant that defendant might appear, through its attorney, for plaintiffs and defend the action for them without prejudice to the rights of defendant to deny any and all liability upon its part to plaintiffs under said policy of insurance. The case was tried before Brill, J., who granted defendant\\u2019s motion for a directed verdict. Erom an order denying plaintiffs\\u2019 motion for a new trial, they appealed.\\nAffirmed.\\nC. D. O\\u2019Brien, F. G. Ingersoll and M. J. Doherty, for appellants.\\nButler & Mitchell, for respondent.\\nReported in 143 N. W. 794.\", \"word_count\": \"1077\", \"char_count\": \"6640\", \"text\": \"Philip E. Brown, J.\\nAction on an employers' liability insurance policy issued by defendant to plaintiffs as copartners, to recover the amount of a judgment rendered against them for the death of an employee.\\nPlaintiffs gave defendant immediate notice of the accident, and thereupon defendant investigated and became conversant with all the facts. Thereafter, on November 2, 1910, the action was commenced, \\u2022which resulted in judgment against plaintiffs and, they having immediately transmitted the summons and complaint to defendant company, its attorney took charge of the case, interposed an answer, and subsequently conducted the defense on the trial, which terminated in a verdict for plaintiffs therein. An appeal to this court, with defendant's attorney as counsel, followed and resulted in a reversal, defendant paying the costs, and upon retrial in the district court, the same attorney acting as before, plaintiff therein prevailed and these plaintiffs were compelled to pay the judgment. About a year after the bringing of the action plaintiffs dissolved partnership, but plaintiff IVlann continued to represent them in the matter of the litigation. Defendant claimed that 41 days after the action was commenced, and more than six weeks before the first trial, it notified plaintiffs that their policy did not cover certain specifically excepted risks, and if judgment was awarded against them, upon a liability within the exceptions mentioned, it would not be responsible therefor, and advised them that such notice was given so they could be in a position to thoroughly protect their interests. Defendant further claimed that plaintiffs then consented to its conducting the litigation with the understanding that, if damages were awarded upon facts bringing the accident within the exceptions of the policy, defendant company would not be liable to reimburse them, and all subsequent acts of defendant in connection with the litigation were pursuant thereto. The recovery against plaintiffs proved to be within the exceptions, and the court, holding defendant's claims established, directed a verdict in its favor. Plaintiffs appealed from an order denying a new trial.\\nWe must start with the proposition that there was no express contractual liability on defendant's part to pay plaintiffs any sum under the policy because of the judgment obtained against them. Consequently the burden rested on plaintiffs to establish a state of facts from which a liability might be implied by law. There are numerous cases holding that where an insurance company takes up the defense of an action, knowing the facts bring it within a risk exception, and, under the general agreements of the policy authorizing it to control litigation, conducts the case to the end, and nothing fur ther appears, it will be deemed precluded, by way of either estoppel or waiver, from taking a position inconsistent with the one previously assumed and denying liability. Empire State Surety Co. v. Pacific Nat. Lumber Co. 118 C. C. A. 410, 200 Fed. 224; Employers' Liability Ass. Corp. v. Chicago & B. M. Coal & C. Co. 73 C. C. A. 278, 141 Fed. 962; Boyle Mining Co. v. Fidelity & C. Co. 126 Mo. App. 104, 103 S. W. 1098. So also, under like circumstances, the company has been held estopped where it conducted the defense down to the trial and then withdrew, leaving assured no reasonable opportunity to prepare his own defense. Glens Falls P. C. Co. v. Traveler's Ins. Co. 162 N. J. 399, 56 N. E. 897. And our decisions are in line with the general holding. Tozer v. Ocean Accident G. Corp. 94 Minn. 478, 103 N. W. 509, 99 Minn. 290, 109 N. W. 410, If, however, the trial court's conclusion upon defendant's contentions is sustainable in point of fact, which we will consider later, the cases cited are clearly distinguishable from the present one; for plaintiffs' assent to the status assumed by defendant with regard to the litigar tion by the notice of nonliability referred to and thereafter, when measured by the same legal standard of responsibility for acts indicated by the grounds of the decisions cited and which they seek to apply as against defendant, would equally estop them from doing the identical thing which they deny defendant's right to do, namely, repudiation of the effect of conduct. The doctrine of equitable estoppel prevents this, and in effect we have an estoppel against an alleged estoppel, which sets the matter at large. Tappan v. Huntington, 97 Minn. 31, 106 N. W. 98; 16 Cyc. 748. Plaintiffs are thus relegated to the provisions of the policy, which concededly give no right of recovery. Nor is this result affected by the dissolution of the partnership.\\nDoes the evidence sustain the court's position upon the facts ? We hold it does, for after an attentive consideration of the record we are satisfied that no other conclusion could fairly be reached. Plaintiffs' claims rest substantially upon the testimony of a single witness, whose recollection of the transactions involved was so vague and his accounts thereof so contradictory as to be of slight probative value except as corroborative of defendant's version. His claim that be did not understand defendant's repudiation of liability bas not been overlooked, but cannot be sustained in view of tbe fact that be was conversant witb our language and experienced in business. Taken as a whole tbe evidence was insufficient to warrant a verdict for plaintiffs.\\nOrder affirmed.\"}"
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+"{\"id\": \"219883\", \"name\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD\", \"name_abbreviation\": \"State ex rel. Butters v. Elston\", \"decision_date\": \"1943-01-22\", \"docket_number\": \"No. 33,247\", \"first_page\": \"205\", \"last_page\": \"212\", \"citations\": \"214 Minn. 205\", \"volume\": \"214\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:34:46.228957+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD.\", \"head_matter\": \"STATE EX REL. J. H. BUTTERS v. WILBUR ELSTON AND OTHERS, AS STATE CIVIL SERVICE BOARD.\\nJanuary 22, 1943.\\nNo. 33,247.\\nSee 209 Minn. 530, 296 N. W. 906.\\nBriggs & Briggs and John D. Jenswold, for appellant.\\nJ. A. A. Burnquist, Attorney General, and John A. Weeks and George B. Sjoselius, Assistant Attorneys General, for respondents.\\nReported in 7 N. W. (2d) 750.\", \"word_count\": \"2044\", \"char_count\": \"11749\", \"text\": \"Julius J. Olson, Justice.\\nThis is an appeal by J. H. Butters from an order of the district court of Ramsey county discharging a writ of certiorari and af firming \\\"the decision and order of respondents as the State Civil Service Board whereby it was declared that relator [Butters] had no status under the State Civil Service Act and denied\\\" his application to have such status determined.\\nAppellant's case has been here before, although upon a different theory. State ex rel. Butters v. Railroad & Warehouse Comm. 209 Minn. 580, 296 N. W. 906, where the facts necessary to that decision are found at page 532. We there reversed the order of the district court of St. Louis county denying the motion of the commission for a new trial after findings had been made granting Butters (relator in that proceeding) the right of reinstatement to his former employment. The conclusion there reached was that (209 Minn. 534, 296 N. W. 908):\\n\\\"Relator's rights under the veterans preference law are gone. He was deprived of them by the civil service law. Whether he is now entitled to a 'permanent classified civil service status' as provided by \\u00a7 38 of the state civil service act is not for us to determine. To that question, this decision is without prejudice.\\\"\\nSome additional facts should now be stated. After the decision in the former case had been made and pursuant to the suggestion quoted above, appellant brought this proceeding, which is an application for a declaration of his status under the civil service act. L. 1939, c. 441. He avers the facts in respect to his military service in World War I; his honorable discharge as a veteran; that he was employed by the railroad and warehouse commission; that he was removed on December 31, 1938, \\\"without charges being preferred against him, without hearing, and without opportunity given to be heard\\\"; that in the department where he was employed other men \\\"not honorably discharged veterans of past wars\\\" continued to be employed and that these men \\\"are performing the same or similar work and duties to those performed by petitioner before his said removal.\\\" Lengthy reference is made to our prior decision and to the findings made by the district court in that case. His prayer for relief is that the civil service board cause \\\"an investigation to be made, and hear and determine the matters presented hereby, and determine petitioner's permanent classified civil service status in accordance with the facts and his claims\\\" as stated in his application, and that he \\\"be given an opportunity to present\\\" these to the board.\\nThe board, without ordering or having any hearing upon his application, certified in its return to the district court in the instant proceeding that it had \\\"considered the application for declaration of status submitted on behalf of J. H. Butters\\\"; that the members of the board had discussed his request and had concluded that, as they construed the holding in the Kane case (State ex rel. Kane v. Stassen, 208 Minn. 523, 294 N. W. 647), the board was not possessed of \\\"power to grant permanent civil service status to veterans other than those included in the sections of the act\\\" to which they refer, namely, \\u00a738 and 34(3). Lack of power to consider his application in the instant case is apparently founded upon the theory that, since the act took effect April 22, 1939, some four months subsequent to appellant's discharge, therefore he was not one of those \\\"holding offices or employments in the classified service on the effective date of this act.\\\" L. 1939, c. 441, \\u00a7 34(3), Minn. St. 1941, \\u00a7 43.01, subd. 4 (Mason St. 1940 Supp. \\u00a7 254-82[3]). If that theory is right Mr. Butters is left without a remedy.\\nAs we pointed out in the Kane case, 208 Minn. 527, 294 N. W. 649:\\n\\\"Belator [whose rights were the same as those of the present appellant] is not without right, however. If he was wrongfully discharged, he must show it. Our only concern is relator's present position, assuming his discharge was wrongful.\\n\\\"As a state employe relator did not have a vested right in his employment. Veterans, like others, could have been deprived of their positions by legislative abolition, and even if this were done after January 31, 1939, there would be no cause for relator to complain. But the fact cannot be escaped that by the civil service law the veteranas employment was expressly recognized and pre served by granting a permanent civil service status without a probationary period. Had relator not been discharged he would have been blanketed into the civil service on April 22, 1989, by virtue of \\u00a7 254-86. By the simplest concept of justice, he is entitled to be placed in the same position as he would have been had he not been discharged improperly. Despite his lack of vested right in his employment, after January 31, 1939, he had an accrued right to contest the discharge. We find nothing in the civil service law which indicates that the preference act was to be a nullity prior to the effective date of the civil service law or that rights accrued under it were to be annihilated by the repeal.\\\"\\nThe conclusion there reached was that (208 Minn. 528, 294 N. W. 649):\\n\\\"The proper procedure is to make application to the state civil service board for a declaration of status. We do not pass upon the merits in any respect.\\\"\\nIn their brief respondents emphasize that \\\"The Issue\\\" to be decided depends upon the answer to be made to their question: \\\"Can the civil service board grant status to a person who was not in the employ of the state on April 22, 1939, the effective date of the act?\\\" To that question, they of course think that only a negative answer is possible, pointing to \\u00a7 10 of the act as authority for their answer. As to \\u00a7 38, they say that this \\\"also limits the granting of status to those who are employed on the effective date of the act.\\\" They argue that \\\"nowhere in the act is there any provision authorizing the granting of status to any person\\\" situated as was appellant.\\nWhat we said in the Kane case respondents have either overlooked or entirely ignored. In this situation, it may be well again to refer to that case for additional light. In addition to what has been quoted, we there distinctly referred to several sections of the act (208 Minn. 528, 294 N. W. 650) as \\\"comprehensive grants\\\" of power given to the director and the civil service board in matters of this kind; and the opinion significantly concludes: \\\"In addition, the civil service hoard, by the very nature of its purpose and function, has the power to determine the status of an individual claiming to be entitled to a permanent civil service status.\\\"\\nAs we have seen, what this court was discussing in that case was Kane's \\\"present position, assuming his discharge was wrongful.\\\" This vital question was never considered by the board in this proceeding. It washed its hands by saying that it was without authority to act. Its reason obviously is founded upon the theory that, since the employe was not on the state's payroll, therefore he was not an employe. But being on the payroll is not the decisive factor. Bather, and only, the precise question is whether he was in fact a de jure employe on the determinative date. His claim is that he was unlawfully discharged and for that reason his employment continued unabated and uninterrupted. He has consistently and persistently stuck to this claim. In his former case the trial court sustained him, but that result came to naught because the statute under which he there sought relief had been superseded by the civil service act. State ex rel. Butters v. Railroad & Warehouse Comm. 209 Minn. 530, 296 N. W. 906.\\nWe think the Kane case, 208 Minn. 523, 527, 294 N. W. 647; Larsen v. City of St. Paul, 83 Minn. 473, 86 N. W. 459; and Markus v. City of Duluth, 138 Minn. 225, 164 N. W. 906, sustain appellant's contentions. Helpful, too, are O'Donnell v. Liquor Control Comm. 288 Mich. 377, 284 N. W. 915, and Sullivan v. State Bd. of Tax Adm. 290 Mich. 664, 288 N. W. 300. In State ex rel. Tracy v. Levitan, 228 Wis. 136, 139, 279 N. W. 620, 622, the holding was:\\n\\\"The status of an accused person is that of an employee until the effective date of the discharge. While he continues in that status he may answer the charges, thus securing a hearing before he loses the economic security which is guaranteed by the civil-service law.\\\"\\nRespondents next suggest, as an alleged additional reason why we should not overturn its decision, that appellant \\\"never worked for the state as a regular or permanent employe in any capacity\\\"; that his regular term of employment \\\"terminated December 31, 1938,\\\" and hence that he is not in a position to complain. They say that they \\\"considered\\\" his present application and that this \\\"fully set forth all of the facts regarding his employment\\\"; that they had before them not only the facts stated in the petition but also \\\"had available the printed record in the case tried in District Court [of St. Louis county] which contained all available evidence regarding the facts concerning his employment.\\\" Therefore, so it is claimed, \\\"it was not necessary to take further testimony.\\\" Upon these facts and \\\"its own investigation,\\\" their conclusion was that Mr. \\\"Butters had no status under the civil service act.\\\" In respect to the findings made by the trial court of St. Louis county, since there was a reversal here, they say that that decision is no longer of any force; and, furthermore, they submit \\\"that the board would be in a better position and more qualified to determine this question than the District Court.\\\" The board may be right in its assertion of being \\\"in a better position and more qualified\\\" than are the courts in matters of this nature. But neither this court nor the district court may escape the legal duties going with judicial office. This case is but one of many of similar types having their source in some bureau or board. As yet, in this jurisdiction at least, courts are still functioning within their granted constitutional powers.\\nWe cannot agree that this belated additional reason for sustaining the board has any place or that it finds any support in the record. As we have already said, all that the trial court had before it was appellant's application and the board's return thereto. And that, too, is all we have. These two documents, and these alone, so the board certified, constitute \\\"all the records of the proceedings in the above entitled matter.\\\" (See record pp. 25 to 34, inclusive.)\\nOur scope of review in certiorari proceedings is limited to and determined by the record made by the officers whose action is sought to be reviewed. As an appellate court, we cannot make findings of fact or determine questions of fact. But appellant, as a party to this proceeding, \\\"has a right to have considered and determined all questions properly presented by the reeord.\\\" 1 Dun-nell, Dig. & Supp. \\u00a7 1402, and cases cited under note 67.\\nWe conclude that there was here a complete failure by the board to act upon appellant's application, and that its refusal to hear his claims, especially its failure to give him an opportunity to present his proof on the vital subject of his claimed wrongful discharge, cannot be ignored. Bights cannot be so thwarted.\\nOrder reversed and cause remanded for further proceedings in harmony with the views expressed in this opinion.\\nSo ordered.\"}"
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+"{\"id\": \"223232\", \"name\": \"STATE v. CONTINENTAL OIL COMPANY; STATE v. MID-CONTINENT PETROLEUM CORPORATION; STATE v. SINCLAIR REFINING COMPANY; STATE v. PHILLIPS PETROLEUM COMPANY; STATE v. SKELLY OIL COMPANY; STATE v. THE TEXAS COMPANY; STATE v. CITIES SERVICE OIL COMPANY; STATE v. BARECO OIL COMPANY\", \"name_abbreviation\": \"State v. Continental Oil Co.\", \"decision_date\": \"1944-07-14\", \"docket_number\": \"No. 33,607\", \"first_page\": \"123\", \"last_page\": \"148\", \"citations\": \"218 Minn. 123\", \"volume\": \"218\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:05:18.885759+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Streissguth took no part in- the consideration or decision of this case.\", \"parties\": \"STATE v. CONTINENTAL OIL COMPANY. STATE v. MID-CONTINENT PETROLEUM CORPORATION. STATE v. SINCLAIR REFINING COMPANY. STATE v. PHILLIPS PETROLEUM COMPANY. STATE v. SKELLY OIL COMPANY. STATE v. THE TEXAS COMPANY. STATE v. CITIES SERVICE OIL COMPANY. STATE v. BARECO OIL COMPANY. ,\", \"head_matter\": \"STATE v. CONTINENTAL OIL COMPANY. STATE v. MID-CONTINENT PETROLEUM CORPORATION. STATE v. SINCLAIR REFINING COMPANY. STATE v. PHILLIPS PETROLEUM COMPANY. STATE v. SKELLY OIL COMPANY. STATE v. THE TEXAS COMPANY. STATE v. CITIES SERVICE OIL COMPANY. STATE v. BARECO OIL COMPANY. ,\\nJuly 14, 1944.\\nNo. 33,607.\\nJ. A. A. Burnquist, Attorney General, George B. Sjoselms, Assistant Attorney General, James F. Lynch, County Attorney, and Andrew R. Bratter, Assistant County Attorney, for the State.\\nHayner N. Larson, Raymond A. 8callen, and Faegre <6 Benson, for respondents.\\nReported in 15 N. W. (2d) 542.\\nCertiorari denied by United States Supreme Court January 29, 1945.\", \"word_count\": \"9399\", \"char_count\": \"53906\", \"text\": \"Peterson, Justice.\\nThis appeal by the state from the judgments in separate proceedings against each defendant to enforce payment of personal property taxes for the years 1933 to 1910, inclusive, involves the question whether gasoline belonging to them in the tanks of a pipeline company is subject to taxation by the state where the gasoline was transported in interstate commerce by pipe line from points outside the state to the tanks located in the state for processing, storage pending receipt of orders for its sale and distribution, and reshipment by rail to defendants' stations and customers within and without the state to fill the orders received pending the storage. In the case of the Phillips Petroleum Company, a separate question is raised as to the taxability of certain high volatile gasoline used at the tank farm in connection with blending the gasoline shipped by pipe line to prepare it for use. It has been assumed that if the first question is answered in the affirmative the decision will be determinative of this second one also.\\nThe defendants are producers, refiners, and marketers of gasoline and other petroleum products, having their refineries in Texas and in the so-called mid-continent field, which includes parts of Oklahoma, Kansas, and Missouri. They produce six or. seven basic grades of gasoline, which is transported interstate from the refineries by the Great Lakes Pipe Line Company, a stock-owned-and- controlled corporation of the defendants and certain others in the same business, through its pipe lines to a so-called tank farm located at the Minnesota Transfer in Ramsey county, this state. The tank farm is a terminal consisting of numerous large tanks with capacities ranging upwards to 82,000 barrels each, with suitable connections and equipment to receive gasoline shipped by pipe line, to process and store it in the manner herein mentioned, and to reship it by rail. At the time of trial, the tank farm had a capacity of 621,000 barrels or about 26,000,000 gallons.\\nAt the time of delivery to the pipe line and receipt at the tank farm the gasoline is not suitable for the market. The octane count for the market must be at least 70. That of all gasoline shipped is much less than 70, most of it being in a low 60, and some of it as low as 58. Consequently, all gasoline shipped must be raised to the required octane count. This is done by adding tetraethyl lead to each shipment after determining by chemical analysis the amount to be added. In addition, such ingredients as coloring, oils, and, in the case of some defendants, solvents and high volatile gasoline are added. This processing requires several hours. Coloring is added simply by dumping a handful of coloring matter into a tank car of gasoline. The addition of the other ingredients requires some mixing and the use of special devices designed for the purpose. The tetraethyl lead is added by running the gasoline through a \\\"spider\\\" which mixes the lead with the gasoline as it passes through. This operation requires about 6y2 hours. By means of the processing, the six or seven basic grades shipped by pipe line are changed into 26 different kinds of gasoline ultimately to be sold to the trade. The pipe-line company furnishes the facilities, except for certain tanks of two of the defendants, and the labor in connection Avith the processing. The defendants furnish the lead, coloring, oils, solvents, and high volatile gasoline.\\nThe shipment is made from the refineries to the tank farm under bills of lading in which the shipper is named as consignor and consignee and the destination is given as the Minnesota Transfer. The pipe-line company is an interstate common carrier. It has filed regular tariffs and charges the shippers regular tariff rates. While the pipe-line company is regarded by the interstate commerce commission as a common carrier, its processing and storage of gasoline and its property used for such purposes is not, because the commission determined:\\n\\\"This extra handling of the gasoline is a manufacturing or trade service rather than a transportation service.\\n\\\"Accordingly, all property owned by the carriers and used in blending gasoline has been classified in this report as owned but used for purposes other than those of a common carrier.\\\"\\nThe gasoline of a particular shipper may be commingled with the gasoline of the same grade of other shippers. Tenders of shipments are made in such amounts and at such times as to insure an adequate supply of gasoline to meet each shipper's trade needs. When the gasoline arrives at the tank farm it is allocated! to the defendants by the pipe-line company. A stock on hand to meet the trade requirements of at least 35 days is carried by each defendant.\\nThe gasoline is reshipped by rail from the tank farm to bulk stations owned either by the defendants, their contract customers, or \\\"spot\\\" customers. The latter are purchasers who have had no previous contracts with the defendants. Their purchases amount to less than one percent of the gasoline handled at the tank farm. Experience has shown that about 75 percent of the gasoline is delivered to points in Minnesota and 25 percent to points in Wisconsin, North Dakota, and South Dakota. The four states comprise what defendants call the \\\"northern area.\\\" On the average, gasoline is reshipped from the tank farm 35 days after its arrival. This period is necessitated by the processing and awaiting of orders from bulk stations and spot customers. The rail reshipment is made as a, separate shipment under a regular rail bill of lading in which the shipper is named as consignor and either itself or its customer to whom shipment is made as consignee. The bill of lading contains a statement of the state of origin of the gasoline shipped under it.\\nThe tariff rates include a charge not only for the transportation of the gasoline, but for the services rendered by the pipe-line company in processing, storing, loading rail cars, and further ' transportation by rail from the \\\"terminal point [the tank farm] to ultimate destination.\\\" The processing, storage, and loading rail cars are characterized in the tariffs as rendered \\\"in transit\\\" \\u2014 that is, while the gasoline is en route from the refineries to its ultimate destination by rail shipment from the tank farm. The railroads are not parties to the arrangement. The rate established by pipe line from the refineries to the tank farm and by rail from the tank farm to the \\\"ultimate destination\\\" is the same as the all-rail rate from the refineries to the place of ultimate destination. Apparently, the rail rate from the tank farm to the ultimate destination is higher than the proportional rate for the same distance on an all-rail basis. ,To equalize the pipe-line-rail rate from refinery to ultimate destination with that actually charged under the separate pipe-line and rail tariffs, the pipe-line company rebates to shippers the difference between the rail rate and the proportional rate for the actual rail transportation. Apparently this practice is sanctioned.\\nEach defendant has what is called a traffic department, which receives orders for the gasoline while it is in storage and allots it to various bulk stations and customers in approximately 200-barrel lots. After the gasoline is allotted, the pipe-line company is directed to make the proper rail shipment for which the shipper has paid the railroad in advance.\\nWhen the gasoline is delivered to the pipe line outside the state, it is destined ultimately for the consignor's trade throughout' the northern area, but neither the defendants nor the pipe-line company know at that time the particular bulk stations or customers or the particular places to which the gasoline is to be reshipped from the tank farm. In fact, the only destination known at that time is the tank farm. The ultimate destination is to be determined by the traffic, department of each shipper as and when orders for gasoline are received by it.\\nDefendants claim that the storage and processing at the tank farm are necessary to insure safe transportation of the gasoline by the pipe line, because tetraethyl lead is dangerous to human beings. The evidence is that it is a dangerous substance when handled as a separate one, but there was no evidence that it was dangerous to handle when mixed with gasoline. On the contrary, the evidence tends to show that there is no particular danger from handling gasoline containing tetraethyl lead. Defendants offered evidence to the effect that it is uncertain whether it is dangerous to handle gasoline containing tetraethyl lead and that, for that reason, the lead is added at the tank farm rather than at the refineries.\\nThere is no substantial conflict in the evidence. The dispute revolves around the conclusions to be drawn therefrom.\\nAmong other things, the trial court found that gasoline ivas stored in the terminal tanks to await orders from the shippers' own bulk plants and contract customers. As a conclusion of law, it determined that the gasoline while at the tank farm was in interstate transit and not subject to state taxation. Judgments were entered in favor of the defendants, and the state appeals.\\nOn the appeal only the sixth finding stands unchallenged. The others are assailed as unsupported by the evidence and as being in the nature of conclusions resulting from the application of what the trial court conceived to be the governing rules of law to the undisputed facts of the case.\\nAt the outset it is important to bear in mind that we are dealing with a nondiscriminatory state property tax. Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 84, 78 L. ed. 131.\\nThis being a case arising under the constitution of the United States, it is our plain duty to apply the rules laid down by the Supreme Court of the United States. Glover v. Minneapolis Bldg. Trades Council, 215 Minn. 533, 10 N. W. (2d) 481, 147 A. L. R. 1071. In determining what its rules are and in applying them we are bound by that court's appraisal of its decisions.\\nIt is always to be remembered that state taxes upon interstate commerce are invalid, because they conflict with the power of congress to regulate commerce among the states. Interstate commerce is under the control of congress and free from restriction by the states save as it may constitutionally ordain. In determining whether a state property tax is in conflict with the regulatory power of congress over interstate commerce, certain rules have been well established. The states may not tax property in transit in interstate commerce. This is true because the flow of goods in interstate commerce is under the control of congress and free from restrictions which it has not ordained. It is equally true that exemption from state taxation of goods transported in interstate commerce depends upon continuity of transit.\\n\\\" But, by reason of a break in the transit, the property may come to rest within a State and become subject to .the power of the State to impose a non-discriminatory property tax. Such an exertion of state power belongs to that class of cases in which, by virtue of the nature and importance of local concerns, the State may act until Congress, if it has paramount authority over the subject, substitutes its own regulation.\\\" Minnesota v. Blasius, 290 U. S. 1, 9, 54 S. Ct. 34, 37, 78 L. ed. 131, 135.\\nThe necessary consequence is as held in numerous decisions and as said in General Oil Co. v. Crain, 209 U. S. 211, 229, 28 S. Ct. 475, 482, 52 L. ed. 754, 765: \\\"Property, therefore, at an intermediate point between the place of shipment and ultimate destination may cease to be a subject of interstate commerce\\\" and consequently become subject to state taxation.\\nThe question, then, is: What is continuity of transit? Plainly, it means that the transportation is proceeding and that the goods are being moved. But, in order to afford protection from state restriction upon interstate commerce and hence immunity from state taxation, the interstate movement is regarded as continuing despite temporary interruptions (1) because of the necessities of the journey, or (2) for the purpose of safety and convenience in the course of the movement. Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. ed. 309, 25 A. L. R. 1195 (logs held during high Avater to insure safety of the journey); Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626 (oil held to accumulate a cargo and aAvait a ship to transport it). Where, however, the goods have come to rest for causes serving the purposes of the OAvner of the goods, they have ceased to be the subject of interstate commerce and are subject to nondiscriminatory state taxation. Property transported in interstate commerce and ultimately destined for points beyond that at which the journey is interrupted, which has \\\"come to rest within a State, being held there at the pleasure of the OAvner, for disposal or use, so that he may dispose of it either within the State, or for shipment elseAvhere, as his interest dictates,\\\" is not in interstate commerce and is to be \\\"deemed to be a part of the general mass of property Avithin the State,\\\" and as such is subject to state taxation. Minnesota v. Blasius, 290 U. S. 1, 10, 54 S. Ct. 34, 37, 78 L. ed. 131, 136, supra.\\nIn the instant case, the gasoline Avas at rest in the tanks; it Avas not in actual transit. It cannot be held to be in transit because of a temporary interruption of the journey due to the necessities of the journey or for the purpose of convenience and safety. A concession that there might be, as defendants claim, an uncertainty whether transportation by pipe line of gasoline containing tetra-ethyl lead is dangerous does not establish that the processing, storage, and distribution at the tank farm were due to such fact. It appears Avithout dispute that other ingredients were abided to some of the gasoline. The ultimate destination of the gasoline was unknown at the time of shipment from the refineries and delivery at the tank farm and was to be determined, while it was being held in storage at the tank farm, by orders for shipment to bulk stations and other customers, depending on where they were located. The gasoline was held for shipment and disposition as the interests of the OAvners dictated. In Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 269, 48 S. Ct. 107, 110, 72 L. ed. 270, 275, where oil transported in ships was unloaded into tanks for ultimate delivery to unascertained customers in the interior of the state (as the gasoline here was to be delivered to unascertained bulk stations and customers in the so-called northern area), Mr. Chief Justice Taft said:\\n\\\"The important controlling fact in the present controversy, and what characterizes the nature of the commerce involved, is that the plaintiff's whole plan is to arrange deliveries of all of its oil purchases on the seaboard of Florida so that they may all ,be there stored for convenient distribution in the state to the . 123 bulk stations and to fuel oil plants in varying quantities according to the demand of the plaintiff's customers, and thence be distributed to subordinate centers and delivery stations, and this plan is being carried out daily. There is neither necessity nor purpose to send the oil through these seaboard storage stations to interior points by immediate continuity of transportation. The seaboard storage stations are the natural places for a change from interstate and foreign transportation to that which is intrastate, and there is nothing in the history of the whole transaction which makes them otherwise, either in intent or in fact. There is nothing to indicate that the destination of the oil is arranged for or fixed in the minds of the sellers beyond the primary seaboard storages o\\u00ed the plaintiff company at Tampa, Port Tampa, Jacksonville or the St. Johns River Terminal. Everything that is done after the oil is deposited in the storage tanks at the Tampa destinations, or at the Jacksonville destinations, is done in the distribution of the oil to serve the purposes -of the plaintiff company that imported it. Neither the sellers who deliver the oil, nor the railroad company that aids the delivery of the oil to the storage tanks and tank cars at the seaboard, has anything to do with determining what the ultimate destination of the oil is, or has any interest in it, or has any duty to discharge in respect to it, except that the railroad company, after the storage in Florida has been established for the purposes' of the plaintiff company, accepts the duty of transporting it in Florida to the places designated by the plaintiff company.\\\"\\nIn numerous cases the rule has been settled that property transported in interstate commerce, which has come to rest and is held in storage either for sale or for use or for distribution, is not in transit, but is part of the mass of the property within the state and as such is subject to state taxation, although it was intended at the inception of the interstate movement to reship the property from the point where the interstate movement was interrupted to a point beyond as its ultimate destination. Southern Pac. Co. v. Gallagher, 306 U. S. 167, 59. S. Ct. 389, 83 L. ed. 586; Federal. C. & W. Co. v. McLean, 291 U. S. 17, 54 S. Ct. 267, 78 L. ed. 622; Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131; Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A. L. R. 1191; Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270; Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co. 249 U. S. 134, 39 S. Ct. 237, 63 L. ed. 517; Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299, 57 L. ed. 615; General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754; American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. ed. 538, 100 A. S. R. 827; Pittsburg & So. Coal Co. v. Bates, 156 U. S. 577, 15 S. Ct. 415, 39 L. ed. 538; Brown v. Houston, 114 U. S. 622, 5 S. Ct. 1091, 29 L. ed. 257; Missouri Pac. B. Co. v. Schnipper (D. C.) 51 F. (2d) 749, affirmed (7 Cir.) 56 F. (2d) 30; State v. Bartles Oil Co. 132 Minn. 138, 155 N. W. 1035, L. R. A. 1916D, 193; State v. Maxwell Motor Sales Corp. 142 Minn. 226, 171 N. W. 566; State ex rel. Burr v. Seaboard A. L. Ry. Co. 92 Fla. 61, 109 So. 656. Reference to but a few of the cited cases will show, if that is necessary, in view of the decision in the Standard Oil case (275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270), that the gasoline here in question was part of the mass of the property within the state and subject to state taxation.\\nIn Bacon v. Illinois, 227 U. S. 504, 516, 33 S. Ct. 299, 303, 57 L. ed. 615, 620, supra, the court said that the intention of the owner to reship grain after stoppage in transitu for the purpose of inspecting, weighing, grading, mixing, etc., \\\"did not alter the fact that it [the grain] had ceased to he transported\\\" and that the shipper \\\"had established a local facility- in Chicago for his own benefit and while, through its employment, the grain was there at rest, there was no reason why it should not be included with his other property within the State in an assessment for taxation which was made in the usual way without discrimination.\\\" (Italics supplied.)\\nIn Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 668, 33 S. Ct. 712, 714, 57 L. ed. 1015, 1016, supra, it was said of the storage of coal in the yards for the purpose of keeping a supply on hand to fill anticipated orders that \\\"there was something more than the submission to delay in transportation and the acceptance of its consequences. The situation was made a facility of business, a business conducted [as here] through agents and employes.\\\"\\nAs pointed out in the Blasius case, 290 U. S. at p. 12, 54 S. Ct. 38, 78 L. ed. 137, it was said in Champlain Realty Co. v. Town of Brattleboro, in distinguishing Bacon v. Illinois, supra: \\\"His storing of the grain was not to facilitate interstate shipment of the grain, or save it from the danger of the journey \\\" (Italics supplied.) Nor did the processing, storage, and distribution of the gasoline at the tank farm in the instant case have that result. State v. Phillips Pipe Line Co. 339 Mo. 459, 97 S. W. (2d) 109, affirmed, 302 U. S. 642, 58 S. Ct. 53, 82 L. ed. 499.\\nIn General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754, supra, oil shipped in interstate commerce to a warehouse where it was stored pending reshipment to fill orders in other states for which it was ultimately destined was held to be subject to state taxation.\\nIn American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 S. Ct. 365, 48 L. ed. 538, 100 A. S. R. 827, supra, the court held that property shipped in interstate movement to a transfer company, which was to take charge of it upon arrival and sort, store, and deliver it in the original packages either as generally or specifically directed by the shipper to its recognized and approved customers for whom the goods were ultimately destined, was when stored in the warehouse no longer in transit, but had reached its destination and was subject to state taxation.\\nIn State v. Bartles Oil Co. 132 Minn. 138, 155 N. W. 1035, L. R. A. 1916D, 193, supra, we held that gasoline shipped into the state in tank cars and unloaded into tanks, where it was mixed with other gasoline, and there held for sale to customers in and outside the state, ceased to be the subject of interstate commerce and had become a part of the mass of the property within the state so as to be subject to state inspection and the fees charged therefor. We there reviewed and followed the decisions of the Supreme Court of the United States, including such cases as General Oil Co. v. Crain, 209 U. S. 211, 28 S. Ct. 475, 52 L. ed. 754; Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015; Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299, 57 L. ed. 615; and C. M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334, 34 S. Ct. 592, 58 L. ed. 988.\\nThe determination of the interstate commerce commission that the handling of the gasoline at the tank farm was not a transportation, but a manufacturing or trade service, and that its property used for such service was for a purpose other than as a common carrier is but a logical application of the governing rules of law to the facts of the case. Such a determination by that authority is entitled to great weight.\\nIt is immaterial that the pipe-line company undertook, as part of the shipping arrangement, not only the transportation by itself by pipe line from the refineries to the tank farm, but also that by rail from the tank farm to the point of ultimate destination. Since the rail carriers were not parties to the arrangement, the transportation was not by through pipe-line-rail transportation. Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270. But, if it were assumed that there was through pipe-line-rail transportation, it would make no difference. Where a shipment is made under a through bill of lading on a through rate with, right of stoppage in transitu, stoppage of the transportation by the owner of the goods renders them subject to state taxation if the stoppage is not due to necessities of the journey or for the purposes of safety and convenience in the course of the movement, but for the owner's purposes, either to process, to sell, or to distribute the same. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co. 249 U. S. 134, 39 S. Ct. 237, 63 L. ed. 517, supra (stoppage of timber at a mill for purposes of manufacturing it into lumber, storage pending receipt of orders from customers in other states, and reshipment to them under the original bill of lading upon receipt of orders); Bacon v. Illinois, 227 U. S. 501, 33 S. Ct. 299, 57 L. ed. 615, supra (withdrawal of grain shipped from southern and western states to New York at Chicago for purposes of inspecting, weighing, cleaning, clipping, drying, sacking, grading or mixing, or changing the consignee).\\nThe fact that the gasoline was part of a flow of commerce otherwise subject to congressional regulation, which in this case was simply a regulation of the rates charged by the pipe-line company and by the railroads for transportation, does not affect the right of the state to impose nondiscriminatory property taxes. Federal C. & W. Co. v. McLean, 291 U. S. 17, 51 S. Ct. 267, 78 L. ed. 622 (Federal Warehousing Act, 7 USCA, \\u00a7 211, et seq.); Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131 (Sherman Anti-Trust Act, 15 USCA, \\u00a7 1-7, 15 note, and Packers and Stockyards Act, 7 USCA, \\u00a7 181, et seq.); Chicago Board of Trade v. Olsen, 262 U. S. 1, 43 S. Ct. 470, 67 L. ed. 839 (Grain Futures Act, 7 USCA, \\u00a7 1, et seq.).\\nThe fact that here the gasoline was in the possession of the pipeline company on the taxing day is of no importance. See, Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131 (cattle in, stockyards); Susquehanna Coal Co. v. City of South Amboy, 228 U. S. 665, 33 S. Ct. 712, 57 L. ed. 1015 (coal in piles in railroad yards).\\nNor was the gasoline m transit while being processed, stored, distributed, and loaded onto cars at the tank farm because of! the fact that the pipe-line company's tariffs provided for a charge for these services upon that basis. Parties cannot by contract make a transaction interstate commerce which is essentially intrastate in its nature. Mr. Justice Stone, the present Chief Justice, in Federal C. & W. Co. v. McLean, 291 U. S. 17, 22, 54 S. Ct. 267, 269, 78 L. ed. 622, 627, said:\\n\\\"The fact that appellant's contract with the interstate rail carrier has designated appellant as the carrier's agent and appellant's warehouse as the carrier's depot cannot alter the legal consequences of what is:actually done with the cotton by its owners of of their power of control over it, or of the actual course of dealing with it by appellant. It is not within the power of the parties, by the descriptive terms of their contract, to convert a local business into an interstate commerce business protected by the interstate commerce clause.\\\"\\nWe have examined the cases cited by defendants, but none of them are in point. Because they are numerous, we shall refer to but a few of them out of regard for space. Some involve a tax on property in actual interstate transit or in the carrier's possession for immediate movement as soon as its facilities (a pipe line) will permit, as in Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. ed. 227. Here, the transit was ended. Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626, and Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 33 S. Ct. 229, 57 L. ed. 442, were distinguished in Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 266-267, 53 S. Ct. 345, 349-350, 77 L. ed. 730, 737-738, 87 A. L. R. 1191, 1198-1200, upon the ground that in those cases the whole shipment was destined for foreign countries and consequently they were not applicable where, as here, no \\\"ascertainable part of the gasoline\\\" had a destination beyond the state. The instant case is stronger for state taxation, because not only no ascertainable part of the gasoline was destined for reshipment beyond the state of Minnesota, but no destination for any part thereof was known or had been ascertained. Furthermore, in the cited cases storage was due to necessary delay while accumulating a cargo and waiting for ships, whereas here there was no delay for either purpose; rail transportation was at all times available. Some of the cited cases, like Southern Pac. Terminal Co. v. I. C. C. 219 U. S. 498, 31 S. Ct. 279, 55. L. ed. 310, involve the extent of the power of congress to regulate interstate commerce. The cited case involved the question of the right of congress to prohibit a carrier from granting a shipper a preference by leasing to him a pier and improvements thereon to manufacture cottonr seed into cake for foreign shipment. The Supreme Court of the United States has emphasized that cases involving the reach of federal power are of no particular value as precedents in determining whether a particular business apart from the statutory regulation constitutes interstate commerce. A. B. Kirschbaum Co. v. Walling, 316 U. S. 517, 62 S. Ct. 1116, 86 L. ed. 1638. As said in Chicago Board of Trade v. Olsen, 262 U. S. 1, 34, 43 S. Ct. 470, 476, 67 L. ed. 839, 849: \\\"It was held that this [regulation under the Packers and Stockyards Act] could be done even though the sales and purchases by commission men and by dealers were in and of themselves intrastate eo-mmerce, the parties to sales and purchases and the cattle all being at the time within the city of Chicago.\\\" (Italics supplied.) Substantially the same observation was made in Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270.\\nFurthermore, most of the cases cited by the defendants, such as Southern Pac. Terminal Co. v. I. C. C. 219 U. S. 498, 31 S. Ct. 279, 55 L. ed. 310; Eureka Pipe Line Co. v. Hallanan, 257 U. S. 265, 42 S. Ct. 101, 66 L. ed. 227; Champlain Realty Co. v. Town of Brattleboro, 260 U. S. 366, 43 S. Ct. 146, 67 L. ed, 309, 25 A. L. R. 1195; Carson Petroleum Co. v. Vial, 279 U. S. 95, 49 S. Ct. 292, 73 L. ed. 626; and Texas & N. O. R. Co. v. Sabine Tram Co. 227 U. S. 111, 33 S. Ct. 229, 57 L. ed. 442, are cited and classified in such decisions as Southern Pac. Co. v. Gallagher, 306 U. S. 167, 59 S. Ct. 389, 83 L. ed. 586; Minnesota v. Blasius, 290 U. S. 1, 54 S. Ct. 34, 78 L. ed. 131; and Nashville, C. & St. L. Ry. Co. v. Wallace, 288 U. S. 249, 53 S. Ct. 345, 77 L. ed. 730, 87 A. L. R. 1191, where it is pointed out that the cases cited by defendants have no application in a fact situation such as is here involved.\\nOur conclusion is that the gasoline came to rest at the tank farm so as to become a part of the mass of the property within the state and subject to state taxation. Under the circumstances, reshipment of the gasoline by rail to other points in the so-called northern area did not establish a continuity of' movement, and consequently the gasoline was not in transit at the time the tax in' question was imposed.\\nThere is no room here for a finding that the processing and storage at the tank farm and subsequent distribution facilitated the interstate movement or constituted a temporary interruption of the interstate movement due to the necessities of the journey or for purposes of safety and convenience ill the course of the movement. The plain fact is that processing, storage, and distribution neither facilitate nor impede transportation, but are separate local activities engaged in by the shippers to suit their convenience and necessities. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 55 S. Ct. 837, 79 L. ed. 1570, 97 A. L. R. 947; Federal C. & W. Co. v. McLean, 291 U. S. 17, 54 S. Ct. 267, 78 L. ed. 622; Atlantic Coast Line R. Co. v. Standard Oil Co. 275 U. S. 257, 48 S. Ct. 107, 72 L. ed. 270. The only intent which the court may consider is an objective one disclosed by the ultimate facts which are not in dispute. As said in Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 349, 37 S. Ct. 623, 624, 61 L. ed. 1181, 1184: \\\"Ordinarily the question whether particular. commerce is interstate or intrastate is determined by what is actually done .\\\"\\nThe findings that the processing and storage facilitated interstate transportation are opposed to the undisputed facts and are but inferences in the nature of conclusions made by the trial cofirt by applying to them what it conceived to be applicable! rules of law. Such findings of fact are not entitled to any more weight than a conclusion of law made by a trial court. As said in Country Club D. S. Co. v. Village of Edina, 214 Minn. 26, 32, 8 N. W. (2d) 321, 325:\\n\\\"*\\u2022 When findings of fact are couched in general terms that anticipate the' result and disclose that they are colored by an erroneous conception of the law applicable, this court will not givfe them the weight to which they are ordinarily entitled.\\\"\\nWhat we said concerning a similar conclusion which the trial court stated was a finding of fact in the case of S. R. A., Inc. v. State, 213 Minn. 487, 500, 7 N. W. (2d) 484, 490, applies here:\\n\\\"Finding No. 13, so-called, was not within the stipulated facts. It was inserted by the court on its own motion. It is without support as a finding of fact and amounts to no more than a conclusion of law. The facts being without dispute otherwise, it may be stricken as irrelevant to the issues.\\\"\\nThe state is entitled to judgment for the taxes in question.\\nReversed with directions to enter judgment in favor of the state in accordance with the views stated herein.\\nIn Baumgartner v. United States, 322 U. S. 665, 671, 64 S. Ct. 1240, 1243, the Supreme Court of the United States said:\\n\\\" Finding so-called ultimate 'facts' more clearly implies the application of standards of law. And so the 'finding of fact' even if made by two courts may go beyond the determination that should not be set aside here. Though labeled 'finding of fact,' it may involve the very basis on which judgment of fallible evidence is to be made. Thus, the conclusion that may appropriately be drawn from the whole mass of evidence is not always the ascertainment of the kind of 'fact' that precludes consideration by this Court.\\\"\"}"
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+"{\"id\": \"227290\", \"name\": \"STATE v. RAILWAY EXPRESS AGENCY, INC.\", \"name_abbreviation\": \"State v. Railway Express Agency, Inc.\", \"decision_date\": \"1941-07-03\", \"docket_number\": \"No. 32,720\", \"first_page\": \"556\", \"last_page\": \"575\", \"citations\": \"210 Minn. 556\", \"volume\": \"210\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:41:00.498370+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. RAILWAY EXPRESS AGENCY, INC.\", \"head_matter\": \"STATE v. RAILWAY EXPRESS AGENCY, INC.\\nJuly 3, 1941.\\nNo. 32,720.\\nKellogg, Morgan, Chase, Carter & Headley, H. S. Marx, and J. C. Greenway, for appellant.\\nJ. A. A. Burnquist, Attorney General, and John A. Weeks, Assistant Attorney General, for the State.\\nReported in 299 N. W. 657.\", \"word_count\": \"6780\", \"char_count\": \"38667\", \"text\": \"Peterson, Justice.\\nThis action was brought to recover $4,653 alleged to be due as gross earnings taxes during the year 1938 on certain of defendant's receipts from railroads for services rendered. The case comes here on appeal from an order sustaining plaintiff's demurrer to the amended answer.\\nThe facts are stated in the complaint and the amended ansiver.\\nDefendant is an express company within the meaning of the express company gross earnings tax law, 1 Mason Minn. St. 1927, \\u00a7 2261-2269, as amended by 3 Mason Minn. St. 1940 Supp. \\u00a7 2268, which imposes a tax on express companies measured by nine per cent of their gross earnings.\\nThe receipts in question were in payment of the contract price of certain hauling of freight in less-than-carload lot by motor vehicle over public highways. During the year 1938 the railroads paid defendant $16,999.18 for such services.\\nThe services were of two types. One, which consisted of conveying freight from the shipper to the railroad and from the railroad to the consignee, was called pick-up and delivery service. The other, which consisted of transferring freight from one railroad to another for through movement and certain hauling from St. Paul to Minneapolis for a railroad, was known as transfer service.\\nDefendant performed these services with its employes, equipment, and tractive power. Incident thereto it took possession of the property which it transported. Except where the volume of freight was light, the loading and unloading of merchandise received from and delivered to railroads was done by their employes. To perform these services, defendant purchased 10 trucks, 7 tractors, and 27 trailers. It paid the motor vehicle tax on this equipment imposed by 3 Mason Minn. St. 1910 Supp. \\u00a7 2672-2671.\\nThe freight which defendant hauled was received by the railroads from shippers for transportation under railroad bills of lading. The railroads collected the entire transportation charges from the shipper. Defendant had no dealings with shippers or consignees concerning the freight hauled by it. It did not issue any express receipt or waybill for any freight which it moved. Its dealings were exclusively with the railroads.\\nThe railroads included the freight receipts from the shippers in their gross earnings. They were taxed \\u00f1ve per cent of their gross earnings under 1 Mason Minn. St. 1927, \\u00a7 2216-2260, in lieu of all taxes.\\nThe express company gross earnings tax law, 1 Mason Minn. St. 1927, \\u00a7 2261, provides that:\\n\\\"Every person, company, joint-stock association, or corporation, wherever organized or incorporated, engaged in the business of conveying to, from, or through this state, or any part thereof, money, packages, gold, silver plate, or other articles, by express, shall be deemed to be an express company.\\\"\\nThe gross earnings of express companies are subject to a tax of nine per cent under 3 Mason Minn. St. 1940 Supp. \\u00a7 2268, which reads:\\n\\\"Every such express company shall be assessed a tax equal to nine per cent of its gross earnings as defined in subdivision 6 of Section 1013, Revised Laws of 1905 [\\u00a7 2262], after deducting payments to railroads for the transportation of freight as defined in subdivision 7 of said section, and the same shall become due and payable to the State of Minnesota on March 1st thereafter; and the payment of such sum at said time shall be in full and in lieu of all ad valorem taxes upon its property.\\\"\\nEarnings are defined by 1 Mason Minn. St. 1927, \\u00a7 2262(6), as:\\n\\\"The entire receipts, including all sums earned or charged, whether actually received or not, for business done within this state, including its proportion of gross receipts for business done by . such company within this state in connection with other companies.\\\"\\nDefendant's contentions here, which are the same as those made below, are: (1) That the receipts from the railroads for the services mentioned are earnings derived from conducting a \\\"dray-age,\\\" not the express, business and hence are not subject to the express company gross earnings tax law; (2) that the compensation paid to defendant was part of the receipts of the railroads for the transportation of which defendant's services were part and that the railroads' receipts having been taxed as part of the gross earnings of the railroads under the railroad gross earnings tax law \\\"cannot be made the basis of a second tax under the Express Companies Gross Earnings Tax Law;\\\" (3) that the taxation of such receipts is double taxation; (4) that such double taxation is violative of the uniformity clause of the state constitution and the equal protection clauses of the state and federal constitutions; and (5) that, since the statute does not authorize the imposition of a gross earnings tax on such receipts, the tax in question involves a taking of defendant's property without due process of law in violation of the due process clauses of the state and federal constitutions.\\nThe services in question were not mere drayage. One who transports goods for a common carrier under its contracts of carriage as an essential part of the freight movement'renders a common carrier service, although he has no dealings directly with consignors or consignees and issues no bills of lading, receipts, or waybills covering his part of the transportation. State v. Rock Island M. T. Co. 209 Minn. 105, 295 N. W. 519. There is authority for the view that the services in question Avere \\\"express business.\\\" American Ry. Exp. Co. v. Wright, 128 Miss. 593, 91 So. 342, 23 A. L. R. 127; Alsop v. Southern Exp. Co. 104 N. C. 278, 10 S. E. 297, 6 L. R. A. 271. We do not need to decide whether or not such services technically constituted \\\"express\\\" business.\\nWhile the claim is made that the services constitute a business different and separate from the express business, no claim is made that rendering such services by defendant Avas unlawful or ultra vires. Whatever the nature of the services, the compensation therefor constitutes receipts and earnings of defendant \\u2014 of an express company.\\nThe construction of the express company gross earnings tax laAv Avas settled in State v. U. S. Exp. Co. 114 Minn. 346, 131 N. W. 489, 493, 37 L.R.A.(N.S.) 1127, affirmed, 223 U. S. 335, 32 S. Ct. 211, 56 L. ed. 459, in Avhich the question was Avhether or not the receipts of an express company from the sale and redemption of money orders issued by it within this state Avere part of its gross earnings upon which the gross earnings tax was payable. We held that the sale and redemption of money orders Avas \\\"banking business.\\\" There the contention was made that an express company is taxable only on its receipts from the express forwarding business and that receipts from other lines of business conducted by an express company are not part of its gross earnings as an express company. Disposing of that contention and holding the receipts taxable, we said [114 Minn. 855]:\\n\\\"It is argued by defendant that, to the extent that defendant is engaged in business other than the express forwarding business, it cannot be regarded as an express company within the meaning of the statute. The statute defines an express company as a corporation that is engaged in the business of conveying articles by express; but it by no means follows that a corporation that is also engaged in other business is not still an express company, and liable to pay taxes on the property used in such other business. It was and is a well-known fact that express companies sell and redeem money orders. Defendant's charter authorized it to do a banking and exchange business. No reason is apparent why the legislature should exempt from taxation the property employed in such business. The statute does not confute the tax to earnings from transportation. It says that the compcuty shall return a statement of its 'entire receipts for business done within this statef\\\" (Italics supplied.)\\nThe contention here is like that in the cited case. The fact is that the receipts in question are those of an express company from services which it is authorized to render. It uses its property and facilities in the rendition of such services. In the cited case the receipts taxed were not derived from transportation. Here they were.\\nThe defendant's contention that the definition of an express company by implication limits the receipts to be taxed to those received from express operations cannot be sustained. The definition designates the companies and not the operations to be taxed. The tax is upon the entire receipts of such companies. In State v. United E. L. & W. Co. 90 Conn. 452, 457, 97 A. 857, 858, in holding that electric and water companies' receipts from the sale of apples and hay grown upon their land, for the right to take ice from their ponds, and from the sale of coke, tar, and other residual products under a statute similar to ours, were properly included in their gross earnings, the court said:\\n\\\"The clear intention of the legislature, from the language used, was that companies of the class designated should pay a tax measured by a percentage of the gross earnings from all their operations. This would have been no clearer had the words 'from all sources' been inserted between the words 'gross earnings' and 'from operations in this State,' as is done in part one, which refers to railroad and street-railway corporations.\\\"\\nIn State v. N. W. Tel. Exch. Co. 107 Minn. 390, 120 N. W. 534, receipts from special messenger service rendered by a telephone company to its patrons were held to constitute part of the taxable income of the company.\\nIn City of Lancaster v. Briggs & Melvin, 118 Mo. App. 570, 96 S. W. 314, receipts of a telephone company from other telephone companies such as toll line business and the reasonable value of services rendered by its exchange in the transmission of long-distance business were held to be part of the gross receipts of the payee company, although all telephone companies paid a gross earnings tax on receipts from business transacted. In Commonwealth v. Philadelphia Elec. Co. 312 Pa. 528, 168 A. 318, receipts of an electric company from sales of lamps and other electrical devices, from the rental of motors, sweepers, and appliances, and from labor in connection with its jobbing and installation business were held part of the company's gross receipts under a gross receipts tax law. Many of the cases cited infra strongly support these views.\\nDefendant urges that our railroad gross earnings tax cases are decisive that the tax is limited to receipts from \\\"express\\\" business only and does not include those from other sources. The railroad gross earnings tax statute imposes a tax upon railroads measured by a percentage of the \\\"gross earnings derived from the operation of such line of railway within this state.\\\" 1 Mason Minn. St. 1927, \\u00a7 2246. The tax on express companies is measured by a percentage of \\\"the entire receipts for business done within this state.\\\" 1 Mason Minn. St. 1927, \\u00a7 2262(6). In the case of a railroad company the taxable receipts are limited to those derived from the operation of its railroad, and in the case of an express company the entire receipts for business done in the ' state are taxable. The difference is that in the one case receipts from a particular part of the business \\u2014 that is, railroad operation, are taxed; in the other the entire receipts from all business transacted in the state are taxed. Hence cases holding that railroads are taxable on earnings derived from railroad operations such as State v. St. P. M. & M. Ry. Co. 30 Minn. 311, 15 N. W. 307; State v. N. P. R. Co. 32 Minn. 294, 20 N. W. 234, and others cited herein, are not in point under the statute here involved. The language of the express company gross earnings law is broader and more comprehensive than the railroad gross earnings act. Its scope is such as to include all the earnings of an express company. State v. U. S. Exp. Co. 114 Minn. 346, 131 N. W. 489, 37 L.R.A.(N.S.) 1127, supra.\\nFurthermore, our early decisions in the railroad gross earnings tax cases have been limited by our decisions in State v. M. & I. Ry. Co. 106 Minn. 176, 118 N. W. 679, 1007, 16 Ann. Cas. 426, and later cases so that our cases involving the railroad gross earnings tax law are not authority for the rule that only receipts from the operations of a corporation's principal business are taxable. In that case we pointed out that the authorities in other jurisdictions sustain the view that all income of whatever nature received by a railroad should be included within the term gross earnings, citing Detroit G. R. & W. R. Co. v. Commissioner, 119 Mich. 132, 77 N. W. 631; People ex rel. N. Y. C. & H. R. R. Co. v. Roberts, 32 App. Div. 113, 52 N. Y. S. 859 (affirmed, 157 N. Y. 677, 51 N. E. 1093); State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140. After our decision in the case of State v. St. P. M. & M. Ry. Co. supra, the people adopted a constitutional amendment for a tax of four per cent on the gross earnings of railroads derived from the operation of such line of railway within this state. We held that the prior construction of the statute was adopted, but that such construction was limited to the holding of the St. P. M. & M. Ry. Co. case that rent received by one railroad from another for operating trains on its tracks was not income derived from the operation of the railroad, but that the case was not conclusive upon the broader questions not involved in the prior decision. We said [106 Minn. 181, 118 N. W. 680]:\\n\\\"We believe the proper meaning of the act under consideration to be that, when a railroad company is engaged in work reasonably within its charter powers, the receipts from such sources constitute gross earnings in the operation of the railroad.\\\"\\nApplying the rule, we held to be taxable as gross earnings income not derived from the operation of trains such as receipts from lumber companies for switching ears, from other railroad companies for the use of work trains employed in construction work, and rentals received from other railroads in excess of the amount due to them for the use of cars. The rule thus limited and explained has been applied in such recent cases as State v. Illinois Cent. R. Co. 200 Minn. 583, 274 N. W. 828, 275 N. W. 854; 205 Minn. 1, 621, 284 N. W. 360, 286 N. W. 359, affirmed, 309 U. S. 157, 695, 60 S. Ct. 419, 585, 84 L. ed. 670, 1035; and State v. M. & St. L. R. Co. 204 Minn. 250, 283 N. W. 244.\\nThe express company gross earnings tax law shows that the legislature fully considered what deductions were permissible in determining gross earnings. Broad and comprehensive language admitting of no exclusions was used to include the entire income of such companies from business done in this state. Absent a clause authorizing the deduction of payments to railroads for transportation of freight, no such deduction was permissible. Commonwealth v. U. S. Exp. Co. 157 Pa. 579, 27 A. 396. Section 2268 authorizes such a deduction. By expressly providing for one de duction and using language admitting of no others, all other deductions are excluded.\\nThe receipts from the services rendered by defendant to the railroads were part of its gross earnings and hence subject to the tax in question.\\nInclusion in each instance of the receipts for the entire freight movement in the gross earnings of the railroads for purposes of computing their gross earnings taxes does not prevent the inclusion of defendant's receipts from the railroads for services rendered as part of such movement in its gross earnings for purposes of computing its tax; Defendant's argument to the contrary is in effect that the railroad gross earnings tax is a tax on receipts and that the tax on a receipt covers all taxes for the transportation service for which the receipt was paid against the railroad and others participating in such service. Therefore it is argued that including receipts for the entire freight movement in the railroad's gross earnings for taxation covered the tax on the entire freight movement as to the railroads and defendant.\\nThe fundamental error in this argument is the baseless assumption that the tax in question is on receipts or income. It is settled beyond argument that the gross earnings taxes on railroads and express companies are not taxes upon the earnings of the companies, or upon the companies, or their franchises, but are taxes upon the property of the companies within the state which are measured by their gross earnings. State v. U. S. Exp. Co. 114 Minn. 346, 131 N. W. 489, 37 L.R.A. (N.S.) 1127, affirmed, 223 U. S. 335, 32 S. Ct. 211, 56 L. ed. 459. (See criticism of the rule in Blakey, Taxation in Minnesota, p. 326.)\\nA tax on a railroad's property measured by a percentage of its gross earnings is not the same as a tax on the earnings themselves. The former is a property tax. A tax on a railroad's earnings as such is an income tax, which is unconstitutional since the property tax measured by a percentage of the gross earnings is, under the constitution, in lieu of all taxes against a railroad. State v. D. M. & N. Ry. Co. 207 Minn. 618, 292 N. W. 401. For like reasons, the receipts or earnings o\\u00ed an express company are not taxable as such, since under \\u00a7 2268 the payment of the gross earnings tax by an express company is in full and in lieu of all taxes and assessments upon its property, except the motor vehicle tax under 3 Mason Minn. St. 1940 Supp. \\u00a7 2672-2674, enacted pursuant to authorization under Minn. Const, art. 16, \\u00a7 8, as amended in 1932, which tax we recently sustained in State ex rel. Ry. Exp. Agency, Inc. v. Holm, 209 Minn. 9, 295 N. W. 297. State v. U. S. Exp. Co. supra. The freight receipts in question were not taxed as such. Neither the railroad nor defendant paid a tax on such receipts. Hence the payment of the railroad gross earnings tax did not cover all taxes on the receipts from the entire freight movement as to both the railroads and defendant.\\nIt necessarily follows that payment by a railroad of its gross earnings tax operates only as payment of its property tax. In County of Martin v. Drake, 40 Minn. 137, 41 N. W. 942, a railroad which paid the gross earnings tax for the years 1885 and 1886 conveyed certain lands on April 15, 1885, and June 17, 1886. The grantee in each case claimed that the payment of the gross earnings tax was payment of the tax on his land. The statute then, as now, fixed May 1 as the date for determining the taxability of property and its ownership and value for purposes of taxation for the year. Mr. Justice Mitchell said in disposing of the contention [40 Minn. 138]:\\n\\\"The percentage of gross earnings paid by the company is merely the equivalent of the tax it would have to pay had a tax in specie been assessed. In other words, it is a commuted payment of its own tax, and not that of somebody else.\\\" (Italics supplied.)\\nConsequently we held that the payment of the gross earnings tax operated as payment of the tax on the property owned by the railroad on May 1 \\u2014 that is, the land conveyed on June 17, but not on the land of its grantee conveyed on April 15. The only importance of the railroad's earnings is that they afford the basis upon which the percentage is computed which measures its property tax. For all practical purposes, the case is no different than the payment of property taxes assessed against tangible property in specie. No one would contend that a disbursement by an ordinary property owner would have any bearing whatever on the property or income taxes of the recipient of the disbursement. Such an argument would be manifestly absurd. The necessary consequence is that an operating earning received by a gross earnings taxpayer from another gross earnings taxpayer is the same as an earning received from any other source. As to the paying company, such a payment is an operating expense. State v. M. & St. L. R. Co. 204 Minn. 250, 283 N. W. 244.\\nDefendant's argument encounters other difficulties for which no answer has been attempted. The rate of the tax is five per cent on railroads and nine per cent on express companies. The statutes clearly require each company's tax to be measured at the stated rate. Just how a tax at the rate of five per cent can operate as payment of a tax at nine per cent has not been, and it cannot be, shown.\\nDouble taxation is objectionable in a legal sense only when the same property or person is taxed twice for the same purpose for the same taxing period by the same taxing authority without taxing all property and persons in the same class a second time. Klemm v. Davenport, 100 Fla. 627, 129 So. 904, 70 A. L. R. 156; C. F. Smith Co. v. Fitzgerald, 270 Mich. 659, 259 N. W. 352; Commonwealth v. Westinghouse Air Brake Co. 151 Pa. 276, 24 A. 1111, 1113; 1 Cooley, Taxation (4 ed.) \\u00a7 223.\\nThe claim that the receipts were twice taxed \\u2014 once against the railroads and again against the defendant \\u2014 is without any basis, since the receipts were not taxed at all either against the railroads or defendant. We are dealing with property taxes measured by a percentage of gross receipts. The railroads and the defendant paid their property taxes by such lieu taxes. There can be no double taxation, where each taxpayer pays only his own tax. County of Martin v. Drake, 40 Minn. 137, 41 N. W. 942.\\nA gross earnings taxpayer's income from another gross earnings taxpayer is not doubly taxed where each of them derives income in respect to the same commodity or service, since neither the same earning nor the same taxpayer is thereby taxed twice. 1 Cooley, Taxation (4 ed.) \\u00a7 243, note 41. For example, the taxation of car rentals \\u2014 that is, the excess due from one railroad to another on the exchange of use of cars \\u2014 is included in the gross earnings of the railroad receiving the rentals although the paying road included the earnings from its use of the cars in its gross earnings. State v. Illinois Cent. R. Co. 200 Minn. 583, 274 N. W. 828, 275 N. W. 854; 205 Minn. 1, 621, 284 N. W. 360, 286 N. W. 359, affirmed, 309 U. S. 157, 695, 60 S. Ct. 419, 585, 84 L. ed. 670, 1035; State v. M. & St. L. R. Co. 204 Minn. 250, 283 N. W. 244; State v. M. & I. Ry. Co. 106 Minn. 176, 118 N. W. 679, 1007, 16 Ann. Cas. 426. Likewise, the receipts of a freight line company of rental from a railroad for the use of its cars are included in its gross earnings although the railroad includes the revenues from the use of such cars in its gross earnings for purposes of taxation. State v. Cudahy Packing Co. 129 Minn. 30, 151 N. W. 410, affirmed, 246 U. S. 450, 38 S. Ct. 373, 62 L. ed. 827.\\nThe rule is illustrated where the tax relates to receipts from the sales of commodities. In In re Merchants Refrigerating Co. v. Taylor, 275 N. Y. 113, 9 N. E. (2d) 799, the city of New York imposed a gross earnings tax on public utilities and a general sales tax, which were authorized under a general statute with a proviso that there should not be more than one tax on such gross earnings. The sales tax local law contained a provision that the seller shall be liable for the amount of the taxes on all its sales. The question was whether imposing liability on the utility for the gross earnings tax and the sales taxes on refrigeration sold by it as a utility constituted double taxation. The court held that the utility was not taxed twice on its gross receipts, once by the utility and again by the sales tax, since the taxes were imposed on different taxpayers, the utility tax on the utility and the sales tax on the purchasers of refrigeration. Here the railroad gross earnings tax is a tax on its property, and the express company gross earnings tax is a tax on its property.\\nThere is no double taxation of the receipts from the sale of electricity by a gross earnings tax on electric companies under which the receipts of the manufacturing company from the sale of electricity to a 'distributing company and the distributor's receipts from the sale of the same electricity to its customers are included in the gross earnings of the respective companies for taxation purposes, since neither the same taxpayer nor the same earning is twice taxed. People ex rel. Genesee L. & P. Co. v. Saxe, 179 App. Div. 486, 165 N. Y. S. 938 (affirmed, 223 N. Y. 690, 119 N. E. 1069); People ex rel. Genesee L. & P. Co. v. Sohmer, 162 App. Div. 207, 147 N. Y. S. 726 (affirmed, 212 N. Y. 598, 106 N. E. 1040).\\nIn Commonwealth v. N. Y. P. & O. R. Co. 145 Pa. 38, 22 A. 212, it was held that there was no double taxation of the receipts of a canal company under a statute taxing railroads and canal companies at a percentage of their gross receipts for toll and transportation, where the receipts of the canal company for transportation were included in its gross receipts and tolls paid by the canal company to the railroad for the use of its tracks were included in the railroad's gross receipts, since there was neither identity of the subject or the person taxed.\\nConversely, a gross earnings taxpayer is not entitled to deduct from its gross earnings payments made to another gross earnings taxpayer in respect to the subject matter out of which the earnings of each arise. C. M. & L. Traction Co. v. State, 94 Ohio St. 24, 113 N. E. 654; Commonwealth v. U. S. Exp. Co. 157 Pa. 579, 27 A. 396; Peninsula Transit Corp. v. Commonwealth, 165 Va. 614, 183 S. E. 446.\\nThe cases in which we have held that certain receipts should not be included in the gross earnings of railroads for purposes of computing the gross earnings tax are not in point. In State v. St. P. M. & M. Ry. Co. 30 Minn. 311, 15 N. W. 307, we held that double taxation resulted from including in a railroad's gross earnings rentals received from another railroad for running trains over its tracks for the reasons that a railroad's gross earnings included only income derived from the operation of the railroad and did not include such track rentals and that, since the payment of the gross earnings tax on gross earnings thus defined was in lieu of all taxes, the inclusion in gross earnings of the nongross earnings item of track rental unlawfully increased the tax and was pro tanto double taxation. Here the items in question are part of the defendant's gross earnings. Consequently there is' no inclusion of nontaxable items therein and no double taxation.\\nIn State v. St. P. Union Depot Co. 42 Minn. 142, 146, 43 N. W. 840, 842, 6 L. R. A. 234, a union depot company incorporated under special laws as an agency of the railroads owning its stock and using its facilities was held not liable for the railroad gross earnings tax upon the ground that the payment of their gross earnings taxes by the railroads constituted payment of the taxes on the property of the depot company. We said:\\n\\\"If the railway companies had owned and used this depot as tenants in common, the percentage on their gross earnings payable to the state would have been the same as now, and yet that percentage would have paid the taxes on the depot the same as on any other property held and used by them for railway purposes. We cannot see what difference it can make whether they hold the depot property as tenants in common, or put it in the name of a trustee to hold and manage for their common use, or, as in this case, organize a corporation for the same purpose, as a more economical and convenient method of holding the property, managing the business and apportioning the expenses among themselves. The state plants itself on the technical ground that defendant is a separate and independent legal entity, and that we have no right to consider the functions which it performs, or the relations which it bears to the railway companies who own its stock and use its depot. We think this is too narrow and technical a view of the case. When evasions have been resorted to by railway companies or others to escape taxation, we have unhesitatingly looked through the external form or dress to the substance of the transaction, and the same rule should be applied against the state.\\\"\\nDefendant's stock is not owned by nor is it an agency of the railroads which employ it. Its property is not their property. The relationship between the railroads and defendant in this respect is no different than that between them and any other motor carrier whom they might hire to perform a service for them.\\nReceipts from services performed by one railroad for another at cost with no intention of gaining revenue or making profit, such as payment for repairs of cars at actual cost under reciprocal arrangements between railroad companies involved in State v. M. & I. Ry. Co. 106 Minn. 176, 118 N. W. 679, 1007, 16 Ann. Cas. 426, and performing certain freight-house and stevedoring services for other carriers at actual cost involved in State v. N. P. Ry. Co. 180 Minn. 877, 153 N. W. 850, 851, are entirely different from those which defendant received from the railroads for the services in question. Defendant did not render such services at cost. It contracted to render such services for a price. The receipts in the cited cases were simply reimbursement for outlay on account of the payor. The payee derived no income therefrom. In State v. N. P. Ry. Co. supra, we said \\\"that the moneys by it [the railroad] received represent the actual cost of the service rendered and no more and that in effect it is merely the hiring and disbursing agent for the other roads.\\\" It would be idle to contend that defendant was acting as the hiring and disbursing agent of the railroads.\\nIn State v. C. R. I. & P. Ry. Co. 181 Minn. 615, 232 N. W. 105, 107, 238 N. W. 866, it was held that including certain excess Pullman fares received by the railroad from the sleeping car company under contract in the railroad's gross earnings would be double taxation. The Pullman company and the railroad together rendered passenger transportation service. The former furnished and serviced sleeping and parlor cars. The railroad transported passengers in such cars. The Pullman company charged passengers a regularly established fare for the use of its cars. The railroad charged passengers the regular passenger fare plus a surcharge of one-half of the Pullman carfare. The contract between the railroad and the Pullman company provided that the latter would pay to the former as excess Pullman fares all gross earnings from its sleeping cars operated over the railroad in excess of $7,250 up to $8,750 per year and one-half of the excess over $8,750. Sleeping car and railroad companies were taxed at the same rate, viz., five per cent, under separate laws. Each company reported the fares which it charged and collected as part of its gross earnings and paid the gross earnings tax thereon. The amount of the Pullman excess fares was included in the gross earnings of that company. The railroad did not include them in its gross earnings.\\nP>y a process of statutory construction we held that payment by the railroad and the sleeping car company of the gross earnings taxes constituted full payment of their respective property taxes measured by a percentage of such gross earnings and that any further tax after such payment of taxes in full constituted fro tanto double taxation of the property. This result was reached by construing the two statutes to be practically the same and supplementary and that each company's earnings for measuring its property tax by the gross earnings method consisted of the amounts charged to and coilected from passengers by each company. Thus, it was stated, the entire receipts of both companies for the transportation service were apportioned to each company according to what it charged and earned. We said [181 Minn. 620]:\\n\\\"When the railroad company paid the gross earnings tax upon all its gross earnings, except these earnings [the excess Pullman earnings] of the Pullman cars, and the Pullman Company paid the gross earnings tax upon all its earnings, including that part of the earnings thereafter paid to the railroad company, the state then had received full payment of taxes for the period covered, upon all the property, both of the railroad company and the Pullman Company, subject to taxation in this state.\\\"\\nWe held that the excess Pullman earnings should not be included in the railroad's gross earnings not because such earnings had been once taxed in the hands of the Pullman company and could not be again taxed in the hands of the railroad, but because the property taxes of each company had been paid in \\\"full\\\" in the manner described and there was therefore no further tax to be paid by the railroad.\\nThe question of statutory construction here arises from entirely different facts with respect to which our decisions prior and subsequent to the Bock Island case [209 Minn. 105, 295 N. W. 519] have settled the rule that such income is part of defendant's gross earnings. Here the income is not excess earnings as in the cited case. There each company earned its separate income from the passenger by rendering its own service, for which it charged and collected its own fare. In the instant case, there was only one service rendered to the shipper, which was the freight movement by the railroads. Defendant rendered no service to shippers, its service was to the railroads. One charge for a single service, not two for two separate services, at the regular tariff freight rates, was made and collected by the railroads. Defendant's income from the railroads is no different in principle than that of one railroad from another, which are part of the gross earnings of the railroad receiving the same under our settled rule.\\nIn the Bock Island case the applicable statutes in effect apportioned the separate revenues from the separate business to the sleeping car and railroad company in accordance with their business practice. Such revenues were held to represent the earnings of the properties of the respective companies for gross earnings tax purposes. There is no basis for such a construction here for lack of separate services and separate charges collected therefor by defendant and the railroads. The income involved here is part of defendant's gross earnings under the rule established in State v. M. & I. Ry. Co. 106 Minn. 176, 118 N. W. 679, 1007, 16 Ann. Cas. 426, decided prior to the Rock Island case, and followed in State v. Illinois Cent. R. Co. 200 Minn. 588, 274 N. W. 828, 275 N. W. 854; 205 Minn. 1, 621, 284 N. W. 360, 286 N. W. 359, affirmed, 309 U. S. 157, 695, 60 S. Ct. 419, 585, 84 L. ed. 670, 1035; and State v. M. & St. L. R. Co. 204 Minn. 250, 283 N. W. 244, decided subsequent thereto. The Bock Island decision is confined to the peculiar facts of that case and has not overturned the well settled rule applicable to the instant case.\\nOnce Ave concede, as Ave held in the Bock Island case, that the gross earnings taxes based upon the separate earnings of each company according to the business practice of the companies sanctioned by the statutes Avere in full of all taxes of both companies, any further tax on revenues was pro tanto double taxation and unauthorized. There is no basis here \\u2014 no matter Avhat view Ave adopt \\u2014 for saying that the express company's gross earnings tax could be paid in full unless it included its earnings from the railroads. The cases differ so radically in point both of law and fact that the cited case cannot be deemed to be in point.\\nThe employment of the express company by the railroad Avas a fortuitous and not a determinative circumstance. Had the railroads employed other than the express company to do the involved trucking, there Avould have been no resulting change in the tax liability of either employers or employes. So here, the express company is entitled to no reduction in the tax upon its property simply because it is hired to do work for the railroad companies. The amounts received by the express company from the railroads are just as much taxable gross earnings as they Avould have' been had the service been performed for others Avho Avere not taxed under the gross earnings system.\\nIn the last analysis, defendant's argument assumes that a railroad's earnings are taxed in specie and that payment of the railroad's tax renders money expended by it immune from further taxation. The fallacy of these assumptions has been sufficiently explored. The dollar spent by a gross earnings taxpayer is not stamped as tax-free thereafter. Tax laws exact from property wherever it may be found a contribution for the support of government without respect to the owner or his occupation, Finley v. City of Philadelphia, 82 Pa. 381, or the prior exaction of a tax in respect to it in the hands of a former owner, C. M. & L. Traction Co. v. State, 94 Ohio St. 24, 113 N. E. 654. See People ex rel. Genesee L. & P. Co. v. Saxe, 179 App. Div. 486, 165 N. Y. S. 938 (affirmed, 223 N. Y. 690, 119 N. E. 1069) and People ex rel. Genesee L. & P. Co. v. Sohmer, 162 App. Div. 207, 147 N. Y. S. 726 (affirmed, 212 N. Y. 598, 106 N. E. 1040).\\nThere was no double taxation.\\nThe contention that .including the receipts in question in defendant's gross earnings for purposes of taxation results in violation of the uniformity clause of the state constitution and the denial of equal protection of the law in violation of the due process clauses of the state and federal constitutions is bottomed upon claimed double taxation. Since there is no double taxation here, there is no basis for the contention. See C. Thomas Stores Sales System, Inc. v. Spaeth, 209 Minn. 504, 297 N. W. 9.\\nTaking of defendant's property without due process of law is claimed to result from the fact that the statute does not require the inclusion of the receipts in question in defendant's gross earnings; that taxation based upon such inclusion is without legal authorization; and that if the tax thus asserted is enforced defendant's property is taken to pay the tax without authority of law. The claim is disposed of by our holding that the statute requires the inclusion and authorizes such taxation. The question of due process was considered at length in State v. U. S. Exp. Co. 114 Minn. 346, 131 N. W. 489, 37 L.R.A. (N.S.) 1127, affirmed 223 U. S. 335, 32 S. Ct. 211, 56 L. ed. 459, with decision adverse to defendant's claim.\\nThe receipts in question were part of defendant's gross earnings for purpose of the gross earnings tax.\\nAffirmed.\"}"
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+"{\"id\": \"236808\", \"name\": \"IN RE ESTATE OF MAY COOKE. HENRY M. KALSCHEUER v. CLAUDE H. ALLEN AND OTHERS\", \"name_abbreviation\": \"Kalscheuer v. Allen\", \"decision_date\": \"1940-05-10\", \"docket_number\": \"No. 32,283\", \"first_page\": \"437\", \"last_page\": \"451\", \"citations\": \"207 Minn. 437\", \"volume\": \"207\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:45:20.764538+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Chief Justice Gallagher, being engaged on the pardon board when this case was argued, took no part in the consideration or decision of this case.\", \"parties\": \"IN RE ESTATE OF MAY COOKE. HENRY M. KALSCHEUER v. CLAUDE H. ALLEN AND OTHERS.\", \"head_matter\": \"IN RE ESTATE OF MAY COOKE. HENRY M. KALSCHEUER v. CLAUDE H. ALLEN AND OTHERS.\\nMay 10, 1940.\\nNo. 32,283.\\nKyle & Kyle and Glande H. Allen, for appellants.\\nKennedy & Kennedy, for respondent.\\nReported in 292 N. W. 96.\", \"word_count\": \"5407\", \"char_count\": \"30216\", \"text\": \"Loring, Justice.\\nThis appeal relates to a claim against the estate of May Cooke, deceased, which Kalscheuer filed in probate court for the sum of $10,825, all but $25 of which was alleged to be for services rendered the deceased between September 9, 1931, and September 9, 1937. The probate court disallowed the claim, and on appeal to the district court issues were framed for a jury, which allowed the claim at $2,125. The case comes here upon appeal on behalf of the estate and the residuary legatees, who claim that the verdict was excessive and not justified by the evidence as well as that there ivas error in the charge.\\nMay Cooke and her husband, Urban Cooke, were, prior to 1919, residents of South Dakota, where they were acquainted with Kalscheuer, who was then a young boy. Kalscheuer moved to St. Paul in 1897 and ever since 1917 has been in the banking business as an employe of the Commercial State Bank or City Bank of St. Paul. The Cookes were substantial depositors in the Commercial State Bank, carrying a balance Avhich was usually $5,000 or more. At the time of her death (September 9, 1937) Mrs. Cooke held certificates of deposit in that bank amounting to $4,500 and had an open checking account of $3,200. Urban Cooke died November 11, 1936. At that time most of the Cooke property was held in joint tenancy with right of survivorship and was valued at approximately $53,000, the largest item of which was invested in 176 shares of Northern States Power Company stock which paid a six per cent dividend. There was a 720-acre farm in Spink county, South Dakota, a homestead residence at 1015 Van Slyke avenue in St. Paul, and a house at 1009 on the same avenue. After her husband's death Mrs. Cooke transferred the Northern States Power Company stock and other properties so that her estate ivas appraised at $25,005.14.\\nWhile there is little dispute that the Commercial State Bank invited the customers to consult its officers with reference to their investments, for which consultation no charge Avas to be made, it was conceded by appellants on the oral argument that there is sufficient evidence in the record to sustain a finding that services of that character Avere rendered by Kalscheuer to the Cookes and, after her husband's death, to Mrs. Cooke upon assurances that such services Avould be compensated for by a testamentary disposition by the surviving spouse. In fact it Avas contended that the record compelled such a finding. In her will Mrs. Cooke bequeathed to Kalscheuer a note secured by first mortgage on certain property in St. Paul, \\\"said Henry Kalscheuer having been a close friend of both my late husband and myself.\\\" The amount of the note was $2,000, which was subsequently paid. She also left $1,000 cash to Kalscheuer's wife, \\\"in recognition of her valued friendship and many acts of kindness.\\\" Altogether she left $12,600 in cash bequests, including the $1,000 to Mrs. Kalscheuer, and by specific devise she also disposed of all her real property, giving to Walter A. Peterson, a foster child, the 720 acres in Spink county as well as a cash bequest of $1,000. She acquitted Arnold Sidmore and her husband's brothers Nelson Cooke and Frank Cooke of any indebtedness which they might be owing her on contracts for deed or otherwise. She named two residuary legatees. She named Kalscheuer as one of her executors, whom she charged with the duty of seeing that her body was buried beside that of her late husband at Maneno, Illinois.\\n1. It is argued by the appellants that the legacy to the claimant was, as a matter of law, a payment either in full or in part of any claim he might have against the estate for services rendered. In his statement of the claim Kalscheuer asserted that it was agreed that he should be paid by the survivor or from the estate of the survivor. Claimant himself could not testify as to any conversations with either of the decedents, but his wife and Arnold Sidmore, who also made claim for services against the estate, testified in his behalf. Sidmore testified that Mrs. Cooke and her husband had previously said that Kalscheuer would be well paid for what he had done when she was through with her property and that she was going to make a will, that Kalscheuer and Sid-more were the ones who had stood by them and were to be well paid. On one occasion the Cookes had shown Sidmore a slip or memorandum on which there was a statement as to hoAv they Avere going to have the Avill prepared to dispose of their property and that on this statement there was an item of $8,000 to $12,000 in the bank that Avas to go to Kalscheuer for the services he had rendered. Mrs. Sidmore corroborated her husband to some extent. Mrs. Kalscheuer testified on behalf of her husband that both of the Cookes had stated to her or in her presence that they wanted her husband to have the bulk of their estate, and that in the last week in April, 1937, Mrs. Cooke said to her: \\\"Urb and I have always agreed that Henry should share in the bequest of our estate, and I wanted it that way.\\\" Mr. Edward Bremer testified that the Cookes had told him that they intended to leave Kalscheuer $10,000 in their will. Shortly after the conversation with Mrs. Cooke in April, Kalscheuer engaged a lawyer to draw a will for Mrs. Cooke in which he was made residuary legatee. This will was executed, and Kalscheuer paid the lawyer's fee with his own personal check. We are convinced by the record that the evidence compels a finding that Mrs. Cooke and her husband promised to compensate Kalscheuer by testamentary disposition and that he so understood and consented to the arrangement. This raises a question not heretofore passed upon in this state by this court, namely, whether under such circumstances the so-called pro tanto rule should be applied. That rule is to the effect that where services are rendered upon the understanding that they are to be compensated for by testamentary disposition, the value of a legacy, unless otherwise stated in the will, shall be applied upon the reasonable value of such services either in full satisfaction or pro tanto as the case may be.\\nWe think the rule is a just one and adopt it. Reynolds v. Robinson, 64 N. Y. 589, 593; In re Mason's Will, 134 Misc. 902, 236 N. Y. S. 720; Kujawski v. Sobelewski, 72 Pa. Sup. 326. If anything Avere needed to compel the conclusion that both Kalscheuer and Mrs. Cooke clearly understood that Kalscheuer was to be compensated by testamentary disposition, the arrangement made by Kalscheuer for the drafting and execution of the will which made him a residuary legatee of her estate would have supplied the lack. We discover no contrary intent in the language of the 'will. Not without interest is the fact that in his petition to admit the will to probate he stated that there were no debts. The trial court erred iu not charging the jury in conformance with the rule we adopt. It was requested to do so by the appellants.\\n2. It is the further contention of the appellants that the verdict is excessive and not justified by the evidence. Kalscheuer's claim for services was on the basis of $150 per month for the six-year period. At no time did the income of the Cookes aggregate more than $250 a month. It must be conceded that the investment in Northern States Power Company stock needed no attention whatever. As we have seen, the bank invited customers to confer with its officers about their investments. Kalscheuer kept no record of the services rendered and could segregate no items for which he could make a charge. He attended five or six meetings in connection with the Savage Company receivership and wrote as many letters in that connection; he arranged the sale of the South Dakota farms to their foster son, Walter Peterson, but would not say or could not say what would be a reasonable charge therefor. He collected the rent on the residence property near the Cooke's homestead for the period of one year. There is no satisfactory evidence that he performed any services in connection with the Schneider contract. He looked after five or six mortgages and probably deserves more compensation for this service than for anything else he did for the estate, but their aggregate amount was only about $10,500. The normal charge of a trust company for such service would not exceed $65 per year. The Home Owners Loan Corporation bonds required no effort whatever on his part. The property which was transferred by Mrs. Cooke does not seem to have required any special attention. It is true that he testified that he conferred with the Cookes or one of them on an average of a couple of times a week and that he investigated various proposed investments, but on this record we deem the verdict excessive and could not sustain any amount in excess of the legacy left to Kalscheuer. The motion in the lower court was for a new trial only. The order denying it must be and is reversed.\\nReversed.\"}"
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diff --git a/minn/244502.json b/minn/244502.json
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+"{\"id\": \"244502\", \"name\": \"STATE v. GEORGE A. CODE AND ANOTHER\", \"name_abbreviation\": \"State v. Code\", \"decision_date\": \"1929-11-22\", \"docket_number\": \"No. 27,740\", \"first_page\": \"492\", \"last_page\": \"494\", \"citations\": \"178 Minn. 492\", \"volume\": \"178\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:36:36.283144+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. GEORGE A. CODE AND ANOTHER.\", \"head_matter\": \"STATE v. GEORGE A. CODE AND ANOTHER.\\nNovember 22, 1929.\\nNo. 27,740.\\nG. A. Youngquist, Attorney General, James E. Markham,, Deputy Attorney General, Floyd B. Olson, County Attorney, and William G. Compton, Assistant County Attorney, for the state.\\nRobertson & Rerat, for defendants.\\nReported in 227 N. W. 652.\", \"word_count\": \"792\", \"char_count\": \"4518\", \"text\": \"Stone, J.\\nIndicted for \\\"the crime of selling unregistered interests in and under a profit sharing and participating agreement,\\\" defendants demurred. The demurrer was overruled and the case certified on the question whether the indictment charges a public offense.\\nThe \\\"profit sharing and participating agreement\\\" set out in the indictment is as follows:\\n\\\"Minneapolis, Minn., Oct. 5, 1928.\\n\\\"No. 875\\n\\\"$225.00\\n\\\"Received of George H. Taylor $225.00 as a contribution to assist me in bringing to completion a metallurgical discovery which is destined to be of incalculable benefit to mankind in obtaining a better understanding of life.\\n\\\"Geo. A. Code.\\n\\\"This discovery has progressed to a point where Truth has clearly demonstrated that its main purpose is to advance the Kingdom of God on earth.\\n\\\"When this discovery is put in operation it is proposed to place in a separate fund 51% of the net profits to be devoted to this branch of the work.\\n\\\"It is also proposed that before actual operations are begun an organization shall be perfected to utilize this discovery, the control and management of the organization to be placed in the hands of a board of trustees, acting either by itself or through officers and various boards appointed by it.\\n\\\"This board will assign to all those who have contributed either financially or otherwise to the success of the discovery such an undivided interest in the remaining 49% of the net profits as to them shall seem just and equitable.\\n\\\"I hereby undertake to carry the above propositions into effect at the proper time and before the beginning of actual operations.\\n\\\"Geo. A. Code.\\\"\\nBy subd. 3 of \\u00a7 1 of the blue sky law (L. 1925, p. 197, c. 192) a \\\"security,\\\" within the meaning of the act, is declared to include any \\\"interest in or under a profit sharing or participating agreement or scheme;\\\" and \\\"any interest in any se'curity shall be deemed a security.\\\" The document which we have quoted and which the indictment charges was sold to Taylor \\\"in the course of repeated and successive offers and sales of like interests\\\" is an agreement. That it lacks the degree of definition and certainty necessary to make it a contract does not prevent its being an agreement. On its face it is. Moreover, although it is not explicitly so charged in the indictment, it is plain, if the allegations of the indictment are true, that it was sold in furtherance of a \\\"scheme\\\" of the kind forbidden by the statute. It speaks in terms of \\\"net profits\\\" and promises the purchaser an interest therein. And \\\"the placing of capital or laying out of money in a way intended to secure income or profit from its employment is an investment\\\" within the meaning of the statute. State v. Gopher T. & R. Co. 146 Minn. 52, 58, 177 N. W. 937. An interest in an invention or in the profits expected therefrom is a \\\"security\\\" under this law. State v. Swenson, 172 Minn. 277, 215 N. W. 177, 54 A. L. A. 490. See also State v. Summerland, 150 Minn. 266, 185 N. W. 255; State v. Evans, 154 Minn. 95, 191 N. W. 425, 27 A. L. R. 1165; State v. Ogden, 154 Minn. 425, 191 N. W. 916; State v. Bushard, 164 Minn. 455, 205 N. W. 370; Kerst v. Nelson, 171 Minn. 191, 213 N. W. 904, 54 A. L. R. 495.\\nThere is nothing in Hanneman v. Gratz, 170 Minn. 38, 42, 211 N. W. 961, 963, of assistance-to defendants. That was a civil case wherein plaintiff was denied recovery. The decision, so far as we are presently concerned with it, was that \\\"the blue sky law cannot be construed in such manner as to prohibit persons from associating for the purchase of lands or interests therein as partners or otherwise.\\\" Neither is there anything in Planters Warehouse Co. v. Sentelle, 148 Tenn. 353, 357, 255 S. W. 589, 590, material to the present inquiry. The subscription there involved \\\"was not a sale of stock by an investment company\\\" as defined by the applicable statute of Tennessee. We are not concerned now with the definition of an investment company, and \\\"security\\\" is defined for us by statute so as to include the curious agreement with the sale of which defendants are charged.\\nThe question certified is answered in the affirmative, and the order overruling the demurrer to the indictment must be affirmed.\\nSo ordered.\"}"
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+"{\"id\": \"245590\", \"name\": \"NEESE ANNA HOLLANDER v. WILLIAM F. DIETRICH\", \"name_abbreviation\": \"Hollander v. Dietrich\", \"decision_date\": \"1930-10-17\", \"docket_number\": \"No. 28,087\", \"first_page\": \"376\", \"last_page\": \"379\", \"citations\": \"181 Minn. 376\", \"volume\": \"181\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:20:06.050819+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NEESE ANNA HOLLANDER v. WILLIAM F. DIETRICH.\", \"head_matter\": \"NEESE ANNA HOLLANDER v. WILLIAM F. DIETRICH.\\nOctober 17, 1930.\\nNo. 28,087.\\nAnson B. Jackson, Jr. for appellant.\\nFrank D. Larrabee and Thomas Hessian, for respondent.\\nReported in 232 N. W. 630.\", \"word_count\": \"1065\", \"char_count\": \"5775\", \"text\": \"Dibell, J.\\nAction to recover for injuries sustained by the plaintiff, a minor, when struck by the auto of the defendant. There was a verdict for the plaintiff. The defendant appeals from an order denying his alternative motion for judgment or a new trial.\\nThe plaintiff, a girl eight and one-half years old, was crossing the main highway in the city of Le Sueur on August 27, 1928, going from the east to the west, and was struck by an auto owned by the defendant and driven by one in his employ and received serious injuries. The auto came from the north. The street was 75 feet wide and the traveled portion of the highway 50 feet in width. The accident occurred in a residential part of the city and some blocks from the business section to the south.\\nTwo corn wagons going north to the canning factory a few blocks away had stopped on the east side of the street. The drivers were resting their horses. The plaintiff got upon the rear of one of the wagons and threw off some corn. She took an armload to the west side of the street. She lived on that side and perhaps a block south of the place Avhere the Avagons Avere stopped. She returned and got another armload, which she had previously thrown off, and in returning to the west side of the street Avas run into by the auto approaching from the north. This auto had been sent from the canning factory by the defendant, its owner, to the business section to be repaired. The defendant Avas liable for the negligence of the driver. The wagon racks Avere about eight feet wide and were at the east side of the highway and well beyond the center, probably 11 feet beyond. The defendant's auto was driven at the west side of the center of the highway and Avas going south. There Avas no other traffic upon the highway except the auto and the two corn wagons though the highway carried on the whole considerable traffic. The auto as it came around a curve at the north had a clear view of several hundred feet. Witnesses estimated its speed at 25, 30, or 40 miles per hour. Twenty-five miles Avas the lowest estimate and 40 miles the highest. No signal was given. The auto Avas somewhere between the center and the west side of the highway when it struck the plaintiff. Witnesses saw the accident differently. It is unnecessary to reconcile or explain their testimony. It is of no great importance whether the plaintiff was struck by the left or right fender. Anyway she was struck and carried some considerable distance and thrown to the right and injured. She did' not recover consciousness for three weeks.\\nThe question of negligence needs no particular discussion. It was the duty of the driver to exercise ordinary care under all the circumstances, to be on the lookout, and speed was an element to be considered. Whether he was negligent was for the jury.\\nThe defendant urges that the plaintiff was contributorily negligent. The plaintiff was not negligent as a matter of law because she crossed at a point other than a street crossing. Tobisch v. Villaume, 164 Minn. 126, 204 N. W. 568; Johnson v. Schuler, 152 Minn. 137, 188 N. W. 271; Bolstad v. Armour & Co. 124 Minn. 155, 144 N. W. 462; Stallman v. Shea, 99 Minn. 422, 109 N. W. 824. In such case the pedestrian should yield the right of way. L. 1927, p. 563, c. 412, \\u00a7 18(c), 1 Mason, 1927, \\u00a7 2720-18(c).\\nThe plaintiff was eight and one-half years old at the time of the accident. She had been warned of the danger. The question of her negligence was submitted to the jury in a correct and clear charge. It strikes us as one particularly helpful to.a jury. Neither party made objection to it at the time.\\nThe defendant cites Hannula v. D. & I. R. R. Co. 130 Minn. 3, 153 N. W. 250, where this court hesitatingly sustained the submission of the negligence of a boy \\u00f1ve years and three and one-half months of age. The question was submitted to the jury by the trial court with great caution, and the jury Avas told that it must require of him only such care as could be required of one of his age, and the question of negligence was left to be determined on the basis of mental capacity. It Avas not sought to have him declared negligent as a matter of law as it is here. In Decker v. Itasca Paper Co. 111 Minn. 439, 127 N. W. 183, it was held that a boy five years and three months old was not negligent as a matter of law. In Converse v. Adleman, 153 Minn. 306, 190 N. W. 340, it Aims held that the evidence did not require the jury to find a child four and one-half years old guilty of contributory negligence in crossing a street. In Olesen v. Noren, 161 Minn. 113, 201 N. W. 296, it was held that whether a boy eight years old was negligent in crossing a street was for the jury. Here the claim is that as a matter of law this girl of eight and one-half years of age was guilty of contributory negligence. Clearly the court could not have so held. The first three cases cited go quite far enough in considering children of tender years subject to a charge of negligence, even as a matter of fact, and perhaps under ordinary circumstances it would not be held so \\u2022 now. It is quite clear that plaintiff cannot be held negligent as a matter of law.\\nCounsel for defendant has analyzed the facts of the case and has presented the law thoroughly and at length. We have read his brief and the record and the cases and find nothing making a further discussion worth while. A different finding would be sustained. The real point is that the defendant had a fair trial, and nothing for the defendant survived the verdict and its approval by the trial court.\\nOrder affirmed.\"}"
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+"{\"id\": \"249467\", \"name\": \"NELS LUND v. BIESANZ STONE COMPANY AND ANOTHER\", \"name_abbreviation\": \"Lund v. Biesanz Stone Co.\", \"decision_date\": \"1931-04-17\", \"docket_number\": \"No. 28,401\", \"first_page\": \"247\", \"last_page\": \"251\", \"citations\": \"183 Minn. 247\", \"volume\": \"183\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:17:30.655504+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stone, J. took no part.\", \"parties\": \"NELS LUND v. BIESANZ STONE COMPANY AND ANOTHER.\", \"head_matter\": \"NELS LUND v. BIESANZ STONE COMPANY AND ANOTHER.\\nApril 17, 1931.\\nNo. 28,401.\\nDenegre, McDermott, Stearns, Stone & Mackey, for relators.\\nWebber, George \\u00e9 Owen, for respondent.\\nReported in 236 N. W. 215.\", \"word_count\": \"1430\", \"char_count\": \"8235\", \"text\": \"Holt, J.\\nCertiorari to review a decision of the industrial commission.\\nIt is conceded that respondent was accidentally injured Avhile in the employ of the relator Biesanz Stone Company whereby he became entitled to compensation under the workmen's compensation act. The accidental injury was received May 11, 1926. His weekly wage was $22.20. Since the injury respondent has received medical, surgical, and hospital benefits in the sum of $2,839.85 and has been paid weekly $14.80, amounting to $2,289.60 in all. But on June 4, 1929, relators on notice discontinued further payments. A hearing upon the right to discontinue was had before a referee on April 25, 1930. Dissatisfied with his decision, relators appealed to the industrial commission, whose decision is noiv questioned.\\nThe commission found:\\n\\\"That since the date of said accidental injury on May 11, 1926, to April 25, 1930, the date of the hearing herein, the said employe was actually totally disabled, and that said actual disability was not terminated at the date of said hearing but will probably continue as total or partial disability for a considerable period of time after said date, and that said injury is likely to result in some permanent partial disability of the left arm, as well as some permanent partial disability of the leg, the extent of which permanent disabilities is not yet definitely determined.\\\"\\nThe finding is challenged as unsustained except as to the disability of the left arm, which the parties stipulate is permanently disabled to the extent of five per cent. The total temporary disability referred to is the result of the leg injury. Both bones were fractured in the right leg somewhat more than nine inches below the knee joint. Several operations were made on the leg at a hospital in Winona, the place of the qccident, and at a hospital in Minneapolis where the respondent was kept by relators for more than a year. Still the leg is in such condition that the surgeons who testified are in accord that amputation is the treatment most likely to reduce the disability now existing, which is practically total\\u2014the leg being in such condition that he cannot walk without crutches, cannot bear his weight on the leg for any appreciable time, and cannot even sit in the ordinary way with the leg flexed, but must have it extended or supported to obtain relief from pain.\\nBespondent is an ordinary laborer, and some of relators' experts think he might do such labor as can be done in a sitting posture. But the evidence on this point is such that the finding above quoted, to the effect that respondent is still temporarily totally disabled, cannot be disturbed by us.\\nThe respondent's condition presents a troublesome problem under the compensation act. While all the medical experts are agreed that amputation will remove disability in a marked degree, they are not agreed as to whether the amputation should be above or below the knee. But the opinion is that in either' event there will be a good stump for attaching an artificial limb.\\nIt is common knowledge, which the record substantiates, that men with an efficient artificial leg engage in different remunerative occupations. . Respondent has submitted to several operations. The law is silent as to the power of the industrial commission to require one within the act to submit to amputation. Nor is there any provision indicating that in case an injured employe declines to have a worse than useless limb amputated the commission should limit compensation to the schedule rate for the loss or the loss of the use of the limb. Had the amputation instead of setting the fractures been resorted to in the first instance, the hospital charges already paid would more than have sufficed to pay for an artificial limb and the healing period expenses, including surgical and hospital costs, and left enough over to pay compensation for the balance of the 175 weeks, which under G. S. 1923, \\u00a7 4274(c), subds. 18 and 40, as amended, 1 Mason, 1927, id. (schedule) is the amount fixed for the loss or the loss of the use of a leg\\u2014respondent having already received compensation for 134 weeks. But we have here a man. who has not lost his leg, yet is temporarily totally disabled because of the fact that though useless the leg, is still a part of the body, causing pain and preventing by its condition the ability to labor. Relators have made commendable efforts to effect a cure. They have kept him for over a year in a hospital, attended by a surgeon of their own selection in the hope of partly or wholly removing the disability. So far as this record indicates respondent has co-operated. It does not appear that he has refused to permit amputation. Upon the finding quoted we think the case is ruled by State ex rel. Albert Lea P. Co. v. District Court, 146 Minn. 283, 178 N. W. 594.\\nA case decided by the court of appeals of New Jersey, Simpson v. New Jersey S. & T. Co. 93 N. J. L. 250, 107 A. 36, is much like the case at bar. However we find difficulty in harmonizing that decision with others from the same state rendered by its supreme court. Rakiec v. D. L. & W. R. Co. (N. J.) 88 A. 953; Bateman Mfg. Co. v. Smith, 85 N. J. L. 409, 89 A. 979; Feldman v. Braunstein, 87 N. J. L. 20, 93 A. 679. It should also be noted that the compensation act of that state differs somewhat from ours.\\nTwo cases from Nebraska are cited by relators for their position that compensation should be awarded as for the loss of the use of the leg. Hull v. U. S. F. & G. Co. 102 Neb. 246, 166 N. W. 628; Schroeder v. Holt County, 113 Neb. 736, 204 N. W. 815. The only distinction between those cases and the one at bar is that the findings in the former were final as to disability, here they are that \\\"the extent of which permanent disabilities is not yet definitely determined.\\\" One other feature of distinction is the pain here present unless the leg is kept in an extended position, which probably will remain unless removed by treatment or amputation.\\nIt must be conceded that relators' theory is to a certain extent supported by State ex rel. Globe Ind. Co. v. District Court, 136 Minn. 147, 161 N. W. 391.\\nError is also assigned upon the conclusion of law which awarded compensation of $14.80 a week from May 11, 1926, to April 25, 1930, \\\"less compensation heretofore paid, and thereafter as such actual disability may exist, either total or partial as provided by the compensation law; together with medical, hospital, and surgical benefits necessary to cure and relieve from the effects of said accidental injury, together with compensation in excess of such compensation for actual disability, if any, which may arise under the schedule of permanent partial disabilities that may result and 25 weeks healing period,, as provided in permanent partial disability schedules of the compensation law.\\\"\\nThe commission in its decision further ordered relators to designate a competent surgeon to treat respondent, to notify respondent thereof, and further that if respondent refuses to submit himself for treatment to the surgeon designated upon tender of expenses involved in submitting himself thereto, further compensation shall be suspended until such time as he shall comply. We think the conclusion of law is proper upon the finding of fact above quoted. As yet relators have not paid the schedule rate of compensation if this be a case of the loss of the use of a leg. It is apparent that the commission has not determined that this case comes under (d) or (e) of \\u00a7 4274, and it is not perceived how it can. Neither has the commission as yet placed it under (a) of that section or under subd. 44 of (c): Upon the findings of fact we think the conclusion of law or conditional award the only one that could now be made.\\nThe endeavor of relators to effect a cure and reduce the disability has been long-continued and expensive; therefore the usual attorney's fee .to respondent in this court should be quite moderate and is allowed at $75.\\nThe decision is affirmed.\\nStone, J. took no part.\"}"
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+"{\"id\": \"249503\", \"name\": \"EDWARD FANNING AND OTHERS v. UNIVERSITY OF MINNESOTA AND OTHERS\", \"name_abbreviation\": \"Fanning v. University of Minnesota\", \"decision_date\": \"1931-04-17\", \"docket_number\": \"No. 28,247\", \"first_page\": \"222\", \"last_page\": \"230\", \"citations\": \"183 Minn. 222\", \"volume\": \"183\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:17:30.655504+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDWARD FANNING AND OTHERS v. UNIVERSITY OF MINNESOTA AND OTHERS.\", \"head_matter\": \"EDWARD FANNING AND OTHERS v. UNIVERSITY OF MINNESOTA AND OTHERS.\\nApril 17, 1931.\\nNo. 28,247.\\nHarris Richardson, for appellants.\\nHenry N. Benson, Attorney General, Charles E. Phillips and John F. Bonner, Assistant Attorneys General, andj Everett Fraser, for respondents.\\nReported in 236 N. W. 217.\", \"word_count\": \"2383\", \"char_count\": \"13925\", \"text\": \"Dibell, J.\\nTaxpayers' suit to enjoin the defendants from erecting a dormitory on the campus of the University of Minnesota. There were findings and judgment for the defendants. The plaintiffs appeal from the judgment.\\nThe status of the board of regents and of the university and their relation to the state were considered in State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N. W. 951, 954. The question arose upon a controversy between the board and the commission of administration and finance created by L. 1925, p. 756, c. 426, 1 Mason, 1927, c. 3A, a body appointed by the governor and subject to executive control, over the power of the board to establish a plan of group insurance for members of the faculty and employes and incur expense in doing so; and the result was a holding that the board charged with the government of the university had power to establish such plan and in respect of it was immune from legislative interference or executive control.\\nBy L. 1851, p. 9, c. 3, entitled \\\"An act to incorporate the University of Minnesota, at the Falls of St. Anthony,\\\" there was \\\"established in this territory an institution, under the name and style of the University of Minnesota.\\\" The government was vested in the regents. . They Avere made a body corporate. It Avas made their duty to enact laAvs for the government of the university. They were directed to procure a suitable site for buildings and proceed to erect them as soon as funds Avere provided. The last section of the act, \\u00a7 20, provided: \\\"The legislative assembly may at any time, alter, amend, modify or repeal this act.\\\" It was in form repealed by L. 1860, p. 264, c. 80, \\u00a7 17.\\nIn State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N. W. 951, it Avas held that the board and the university had the poAvers granted by the territorial assembly, L. 1851, p. 9, c. 3, Avhich Avere perpetuated in the university by art. 8, \\u00a7 4, of the constitution adopted in 1858 in language as foIIoavs :\\n\\\"The location of the University of Minnesota, as established by existing laws, is hereby confirmed, and said institution is hereby declared to be the 'University of the State of Minnesota.' All the rights, immunities, franchises and endowments heretofore granted or conferred are hereby perpetuated unto the said university; and all lands which may be granted hereafter by Congress, or other donations for said university purposes, shall vest in the institution referred to in this section.\\\"\\nIt was suggested at argument that the provision for repeal, \\u00a7 20, quoted above, was not considered in the Chase case. An examination of the record shows that the provision for repeal was noted in the brief of the university. The opinion expressly mentions it and says [175 Minn. 265] :\\n\\\"So the university, in respect to its corporate status and government, was put beyond the powers of the legislature by paramount law, the right to amend or repeal which exists only in the people themselves.\\\"\\nIn State ex rel. Smith v. Van Reed, 125 Minn. 194, 145 N. W. 967, 968, involving the exercise of the power of eminent domain in taking private property for a right of way to connect by street railway the university campus and the university farm, reference was had to \\u00a7 20; and Judge Taylor, referring to the territorial statute of 1851 and to the constitution of 1858, said [125 Minn. 198] that \\\"this constitutional provision did not change the character of the university, nor make it a private or independent corporation; but perpetuated it as a public institution, and took from the legislature the power to discontinue, or abolish it, or to convert it into a private corporation. But it has always been recognized as a public institution, forming a part of the educational system of the state, and no attempt has ever been made to give it any other or different character.\\\"\\nOf the effect of the adoption of the constitution there is no doubt. The people by their constitution chose to perpetuate the government of the university which had been created by their territorial legislature in a board of regents, and the powers they gave are not subject to legislative or executive control; nor can the courts at the suit of a taxpayer interfere with the board while governing the university in the exercise of its granted powers. This does not mean that the people created a corporation or institution which is above the law. The board must keep within the limits of its grant. It is charged with the duty of maintaining a university for the purpose of higher education. This does not mean that the university must have the limitations of colleges of 1851 or 1858. The statute and constitution intended a university -which would grow and develop and undertake activities in the way of research and in other respects not then visualized in the dreams of its founders. There are many things which -the board may not do. It does not claim otherwise. In a real sense the property of the university is the property of the state, which through its taxpayers is its chief supporter. The board cannot divert it to other than university purposes. It must govern a university which the territorial statute and the constitution established and perpetuated. The people gave it in charge of the board and may take it away as they gave it; for, after all, when the theorizing as to the relationship of the board and the university and the state is at an end, the university is the people's university. It does not rule; it serves.\\nThe power to construct buildings is given by the territorial act. The power to govern a university implies the power to construct buildings. It is not urged that dormitories do not serve a public use. They afford housing. Aside from physical housing, educators think that they play a valuable part in university training. The legislature might appropriate money for their construction. It has not done so. The university may build, but it must have money. If it has money not otherwise appropriated it may use it for dormitory purposes. Whether it shall build is a question of policy with which the board is concerned and in the determination of which we have no voice. The policy is for the university authorities, and the university authorities are the regents.\\nIn the enlargement of its campus the university acquired property upon which there were houses. Rentals accrue from them. By L. 1927, p. 670, c. 442, \\u00a7 2, the legislature in making an appropriation for the partial support of the university, there being many other sources of income not mentioned here, attached a proviso noted below:\\n\\\"1. For maintenance and special equipment, available for the year ending June 30, 1928, .$3,275,000.\\n\\\" Provided, that the money derived from rents when and as collected from the buildings on the campus is hereby appropriated for the maintenance and improvements of the University campus.\\\"\\nThe board proposes to use the accrued rentals and those to accrue in building a dormitory to cost $300,000. It is conceded that if the university accepts a donation or appropriation it must take it with the conditions attached. State ex rel. Black v. Board of Education, 33 Idaho, 415, 196 P. 201; Board of Regents v. Auditor General, 167 Mich. 444, 132 N. W. 1037. It may take it with the conditions, or it may leave it alone. The plaintiffs urge that the Avords of the proviso constitute a condition and do not permit the use of the campus rentals for the construction of a dormitory. Assuming that the proviso is a condition to the taking of the $3,275,000, though we do not decide that it is, it fairly may be said that a dormitory is an improvement within the meaning of the statute. It was not the legislative intention to restrict the maintenance and improvement of the campus to the construction of driveways, walks, the planting and care of trees and shrubbery, the erection of memorials, and other uses proper in themselves. The construction is liberal in support of legitimate university groAvth. There is nothing anomalous in considering a dormitory an improvement of the campus, though likely the legislature did not have such an improvement specifically in mind.\\nBesides, the campus rentals all the time were subject to the disposition of the board for university purposes. The legislature by the proviso assumed to give the university that which was its OAvn. The board, so far as we are advised, had not asserted a right to the full exercise of its powers until about the time of the Chase case. The practical construction preceding we held not sufficient to affect the meaning of the constitution. And, having the right of disposition, the board could use campus rentals for the building of a dormitory without a legislative appropriation for such purpose and in spite of an appropriation for a different one. See State Board of Agriculture v. Auditor General, 226 Mich. 417, 197 N. W. 160; McClain v. Regents of University, 124 Or. 629, 265 P. 412; State v. Regents of University, 32 N. M. 428, 258 P. 571. This disposition of campus rentals had been made for many years. The act of 1927 is typical. The legislature of 1929 recognized that it was without authority over them by omitting a similar proviso. L. 1929, p. 587, c. 409.\\nThe university has a so-called university press' intended primarily for its own publications and incidental university uses. It prints for the departments and charges them. This is a matter of accounting. It does work not connected with university purposes at not less than current rates. These earnings it puts in the dormitory fund. The earnings are incidental to the use of the plant for university purposes. The board has not established a printing plant in competition with private plants and does not contemplate doing so; It is only this, that earnings accrue for work conveniently done by its press but wholly incidental to its main use for proper university purposes, and it chooses to use them in building a dormitory. There is no legal objection.\\nThe board proposes to finance the building of the dormitory by using the net earnings of the dormitory, the campus rentals, and the earnings of the press, and to anticipate earnings to the extent of $215,000 by undertaking to apply them as received for money now to be advanced. It is its plan to issue under a trust agreement ivhat it terms \\\"4yz% Dormitory Serial Gold Bonds\\\" engraved or lithographed like other bonds. Externally these writings have the appearance of bonds with which the public are familiar. Inwardly they are a pledge of the income stated and an undertaking to apply it. No debt is created. It is specified in detail and with some repetition that neither the dormitory, nor the land upon which it is built, nor other property of the university or the state, saving the income mentioned, shall be security; and no personal or debt liability rests upon the state, the board, the university, or an officer. A clause in the trust agreement which is termed an \\\"immunity\\\" clause is as follows:\\n\\\"Neither the dormitory, or the land upon which it is built, or any other property of the University excepting only the 'net proceeds' (and 'rentals') as defined in Section 5 Article Three hereof shall be security for, or be ever levied upon and sold to satisfy this bond and no recourse under or upon any obligation, covenant, stipulation or agreement contained in this Agreement or in any bond or coupon issued hereunder or because of the creation of any indebtedness hereby authorized shall be had against the State of Minnesota, the Regents of the University of Minnesota, or any member or officer of its Board of Regents, or any of their, successors, by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any constitution, statute or rule of law however established; it being expressly agreed and understood that the bonds and this Agreement and the obligations hereby created are solely the obligations of the Regents of the University as a corporation secured by and payable only out of said 'net proceeds' (and 'rentals') as defined in Section 5, Article Nine hereof, and that no personal liability whatever shall attach to or be incurred by the State of Minnesota, the Regents of the University, or any member or officer of its Board of Regents or their successors and that any and all personal liability of any name1 and nature and any and all rights and claims against the State of Minnesota, the Regents of the University of Minnesota, and the members and officers of its Board of Regents growing out of or founded on said bonds and this trust agreement, arising on any covenant, stipulation or agreement contained in this trust agreement or otherwise whether at common law or in equity or created by any constitution, statute or other rule of law, howsoever established, are hereby expressly Avaived and released as a condition and as a part of the consideration for the execution and delivery of this agreement and the issue of the bonds and coupons.\\\"\\nThere can be no assertion of a right by the holders of the bonds against university property except the specified income. Otherwise there is no attempt to pledge university or state property. There is no individual liability or state or board or .university money obligation sought to be created. If the board finds this a convenient way of dealing with money coming to it and subject to its disposal, it may make use of it. Thereby it does not create or contract a debt of the state or pledge its credit within the inhibitions of art. 9, \\u00a7 5-9, of the constitution.\\nJudgment affirmed.\"}"
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+"{\"id\": \"254374\", \"name\": \"INDEPENDENT SCHOOL DISTRICT NO. 68, FARIBAULT COUNTY, AND ANOTHER v. W. F. ROSENOW AND OTHERS\", \"name_abbreviation\": \"Independent School District No. 68 v. Rosenow\", \"decision_date\": \"1932-02-05\", \"docket_number\": \"No. 28,651\", \"first_page\": \"261\", \"last_page\": \"265\", \"citations\": \"185 Minn. 261\", \"volume\": \"185\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:35:01.845605+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"INDEPENDENT SCHOOL DISTRICT NO. 68, FARIBAULT COUNTY, AND ANOTHER v. W. F. ROSENOW AND OTHERS.\", \"head_matter\": \"INDEPENDENT SCHOOL DISTRICT NO. 68, FARIBAULT COUNTY, AND ANOTHER v. W. F. ROSENOW AND OTHERS.\\nFebruary 5, 1932.\\nNo. 28,651.\\nMeighen, Knudson & Sturts, for appellants.\\nFrundt & Morse, for respondents.\\nReported in 240 N. W. 649'.\", \"word_count\": \"1391\", \"char_count\": \"8146\", \"text\": \"Stone, J.\\nPlaintiffs, independent school district No. 68 of Faribault county and W. H. Barr, one of its resident taxpayers, seek an injunction to prevent the calling by defendants of a special election in the school district for the purpose of rescinding the authority given by a former election for the issue of bonds. The trial without a jury resulted in a decision for plaintiffs. There was a motion by defendants for amended findings or a new trial, which was denied. They appeal both from the order denying that motion and the resulting judgment for plaintiffs for the permanent injunction prayed for in the complaint.\\nNovember 20, 1930, at a special meeting, the voters of the school district authorized the issuance of bonds to the state of Minnesota in the sum of $120,000 for the erection and equipping of a new school building. Pursuant to that action and soon thereafter, the school board, acting under L. 1907, p. 133, c. 122, G. S. 1923 (1 Mason, 1927) \\u00a7 1959 to 1968, applied to the state board of investment for the desired loan. The application was granted December 17, 1930. The bonds were executed on behalf of the district January 22, 1931, and promptly delivered to the board of investment, where they remain. No money has been paid on the bonds. The state is withholding payment, according to the findings, \\\"until this case and allied litigation is finally determined.\\\"\\nJuly 5, 1930, the school board retained architects to prepare plans and specifications and superintend construction of the proposed building, under an agreement \\\"conditioned upon said bonds being authorized by the voters of said district.\\\" The architects have gone so far with their work that their services in the matter are about 85 per cent complete. The school board is said to have become obligated to the architects possibly to the extent of $5,000. The proposed building will cost, with its equipment, close to $130,000, the district apparently having in its treasury enough money to pay the excess of that cost over the proceeds of the bond issue.\\nJanuary 27, 1931, the defendants, all voters and freeholders of the school district, filed and served upon the clerk of the school board a written demand (under Gr. S. 1923 [1 Mason, 1927] \\u00a7 2794) for the calling of a special election to vote upon three propositions. The first and controlling question ivas whether the authority previously given for the bond issue should be rescinded. The other two were incidental and subsidiary to the first. The election so proposed is the one enjoined by the judgment under review. The decision below, adverse to defendants, was put upon the ground \\\"that said election, if held, will be abortive\\\" and \\\"upon propositions unauthorized by law.\\\"\\nIt may be assumed for present purposes, as argued for plaintiffs, that ordinarily, once a municipality such as a school district, by vote of its electors, has authorized the issue of bonds, it cannot rescind that action by a subsequent election called for that purpose. That rule may be modified or wholly abrogated by statute. In its application to this case ive think it has been. The powers of a Minnesota school district are the same whether exercised through an annual or a special meeting. Sanborn v. School Dist. No. 10, 12 Minn. 1 (17); School Dist. No. 40 v. Bolstad, 121 Minn. 376, 141 N. W. 801. Under Gr. S. 1923 (1 Mason, 1927) \\u00a7 2798, the voters, regularly convened in a school meeting, may (subd. 4) designate a schoolhouse site and provide for the erection of a building thereon, and (subd. 5) may \\\"repeal and modify their proceedings from time to time.\\\" There is nothing in the context modifying or limiting that power to \\\"repeal and modify\\\" or creating exceptions therefrom.\\nWe hold therefore that the voters of a school district may, in properly called meeting, rescind the action taken at an earlier election authorizing a bond issue; provided of course that the bonds have not been issued in such fashion as to bind the district contractually and beyond its power to withdraw. Had the proposed bond issue now under consideration gone that far, doubtless an injunction against the holding of an election to rescind the author ity therefor would have been inescapable. But the state board of investment, acting within its statutory power, has declined to issue the bonds. That is, it has refused to accept final delivery thereof for the very purpose of being at liberty to return them to the district without obligation upon the latter if the proposed election shall be held and the authority first given for the bond issue- is thereby rescinded.\\nThere is nothing in the cases cited for plaintiffs that in any way opposes our conclusion. An issue of road bonds by a village was involved in People ex rel. Osborn v. Board of Trustees, 119 Misc. 357, 196 N. Y. S. 459, 460. There could be no resubmission of the question, it was held, because \\\"no provision is found in the village law for the resubmission of a proposition already adopted.\\\" The subject matter qf People ex rel. I. M. Ry. Co. v. Town of Waynesville, 88 Ill. 469, 475, was a municipal subscription in aid of a railroad. It was held that the conditions of the subscription, once authorized, could not be changed by subsequent vote, the reason being that \\\"there is no provision in this charter authorizing an election to change the terms or conditions upon which a subscription has been already voted. Nor are we aware of any general law that confers the power.\\\" In the instant case we have such a general law. Municipal subscriptions were involved in Illinois Midland Ry. Co. v. Town of Barnett, 85 Ill. 313, and Madison County Court v. R. I. & T. F. R. Co. 80 Ky. 16. Both cases are plainly distinguishable from this.\\nWe cannot conclude that the authority given by statute to the voters of a school district to ^repeal and modify\\\" their proceedings has been limited by L. 1907, p. 133, c. 122. That is the law under which the district proceeded in authorizing and applying for the bond issue and under which the bonds would have been purchased by the state if they had been accepted. That chapter is the law controlling the issue of municipal bonds and their direct purchase by the state. But it contains nothing to indicate that it was the legislative intention to abrogate the general statutory power of a school district to amend and repeal previous proceedings. Had this matter gotten to the point where the bonds had actually been accepted by the state and the money paid to the school district, a very different situation would have been presented.\\nWe need not consider the argument for plaintiffs which assumes that the district is bound by contract with the architects and that it may have to respond to them either in compensation or damages. The point is that the proposed special election was for the purpose of rescinding the authority for the bond issue. The existence and scope of that power are in no wise affected by the fact that its exercise may result in a collateral and incidental liability against the district. That is a matter for the voters to consider and not a question for us to dispose of now. That in any event the district will have in exchange for whatever it pays the architects the benefit of the plans and specifications prepared by them is a circumstance that is interesting but not especially helpful one way or the other. Equally irrelevant is the possibility, under our construction of the statute, that a disgruntled minority may conceivably proceed to unconscionable and bothersome lengths in calling elections to rescind previous proceedings. That argument but raises questions of practical expediency rather than of law. They are for the voters first, and then if the predicted evils result it is for the legislature to forestall them. After all, there is no vested right to be protected until the going into effect of the authorized contract.\\nJudgment reversed.\"}"
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+"{\"id\": \"263614\", \"name\": \"B. CARL SVERKERSON v. CITY OF MINNEAPOLIS AND OTHERS\", \"name_abbreviation\": \"Sverkerson v. City of Minneapolis\", \"decision_date\": \"1939-02-03\", \"docket_number\": \"No. 31,727\", \"first_page\": \"388\", \"last_page\": \"394\", \"citations\": \"204 Minn. 388\", \"volume\": \"204\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:19:47.263725+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"B. CARL SVERKERSON v. CITY OF MINNEAPOLIS AND OTHERS.\", \"head_matter\": \"B. CARL SVERKERSON v. CITY OF MINNEAPOLIS AND OTHERS.\\nFebruary 3, 1939.\\nNo. 31,727.\\nR. F. Merriam, for appellant.\\nR. \\u00a13. Wig gin, City Attorney, and John F. Bonner, Assistant City Attorney, for respondents.\\nStanley B. Houck, amicus curiae, on behalf of Northwestern Fuel Company, Flour City Coal & Oil Company, Campbell Coal & Oil Company, Hart Fuel Company, Reeves Coal & Dock Corporation, and Hartzell Coal & Oil Company.\\nReported in 283 N. W. 555.\", \"word_count\": \"1965\", \"char_count\": \"11567\", \"text\": \"Losing, Justice.\\nThis was a proceeding in which a declaratory judgment was sought as to the validity of a provision in an ordinance enacted by the city council of Minneapolis. The appeal is from a denial of the plaintiff's motion for a new trial. Plaintiff, Carl Sverkerson, is and has been engaged in the fuel business in Minneapolis for about 18 years, conducting it from Ms residence. He owns and operates a truck which he uses to deliver fuel within the city.\\nAs a condition precedent to engaging in the fuel business in Minneapolis, an ordinance, enacted in 1933, requires that a license must be obtained from the city. Prior to 1937 plaintiff was a licensed fuel dealer. In 1937 the city council amended the ordinance of 1933 and provided that no license should be issued or renewed unless the applicant first filed with the proper officer a certificate of insurance, issued by a company authorized to do business in the state, stating that the applicant was insured for $10,000, against liability imposed by law on account of death or injuries to any person, and in the sum of $5,000, against such liability on account of property damage. Plaintiff has been unable to secure a license to operate as a fuel dealer since he does not carry the requisite insurance on his truck.\\nIn June, 1937,'plaintiff, for himself and others similarly situated, instituted this declaratory judgment proceeding. The trial court made findings of fact and conclusions of law sustaining the assailed portion of the ordinance.\\nThe first point urged is that the charter of Minneapolis does not empower the city to require a fuel dealer to obtain such an insurance policy as a condition precedent to his conducting business.\\nBy chapter 4, \\u00a7 5, the city council of Minneapolis is given \\\"full power and authority to make, ordain, publish, enforce, alter, amend or repeal all such ordinances for the government and good order of the city as it shall deem expedient.\\\" It is this clause which is often referred to as the \\\"general welfare clause.\\\" There are other provisions granting power over streets and regulating the selling of firewood and coal. However, we think the validity of the ordinance in question must stand or fall upon the general welfare clause.\\nIt formerly was the rule in this state that a narrow construction should be given to the legislative powers conferred by the so-called general welfare clause. City of Virginia v. Erickson, 141 Minn. 21, 168 N. W. 821; cf. State v. Sugarman, 126 Minn. 477, 148 N. W. 466, 52 L.R.A.(N.S.) 999. Recently a more liberal view has been adopted, and the clause has been relied upon to sustain ordinances reasonably related to the good order of the city, although there was no enumerated grant of power relating to the subject of the legislation. State v. Dirnberger, 152 Minn. 44, 187 N. W. 972 (the right of the city of Minneapolis to license laundries sustained under the general welfare clause although the charter did not grant specifically the power to regulate laundries); Crescent Oil Co. v. City of Minneapolis, 175 Minn. 276, 221 N. W. 6 (this same clause held to justify licensing of gasoline filling stations on private property although there was no specific grant of power, the court stating, p. 278: \\\"There is however a tendency to permit the common council to legislate for the accomplishment of the objects mentioned in the general welfare clause though a specific grant is wanting.\\\"); State v. Morrow, 175 Minn. 386, 387, 221 N. W. 423 (\\\"Such a general welfare clause as that found in the charter of Minneapolis is intended to make the powers of the council sufficiently expansive to enable them to meet and provide for new conditions as they arise.\\\"); State v. Sugarman, 126 Minn. 477, 148 N. W. 466, 52 L.R.A.(N.S.) 999 (general welfare clause held to authorize an ordinance intended to prevent the obstruction of the street).\\nThe general welfare clause found in the charter is sufficient to justify the ordinance before us. The protection of personal and property rights on the streets of the city is a part of the power of the council in the maintenance of good order. The lawmaking body has a wide latitude in considering what is an evil and what is necessary for the good order of the community. \\\"It is largely a matter of discretion with the legislature to determine the subjects of police regulation, and the mode and extent of such regulation. It is not for the courts to determine the wisdom or expediency of police legislation.\\\" 1 Dunnell, Minn. Dig. (2 ed. & Supps.) \\u00a7 1605. Coal and other fuels generally are sold during the winter months. Delivery is made by the use of trucks upon the streets of the city. The loads are of necessity bulky and heavy. The transportation occurs at a time of the year when ice is prevalent upon the streets and travel in general hazardous. Consequently we do not find a basis upon which to say that the action of the council is unrelated to' the good order of the city. Since we believe it was, assault upon this ground must fail.\\nNor do we think the ordinance is arbitrary and unreasonable so as to violate the constitutional limitations imposed by U. S. Const. Amend. XIV, or Minn. Const, art. 1, \\u00a7 7. There is a presumption in favor of constitutionality. City of St. Paul v. Clark, 194 Minn. 183, 259 N. W. 824. Nothing in the record indicates the action was capricious or unreasonable in light of the evil which the legislative body of the city considered to exist. \\\"It is presumed that the legislative body investigated and found conditions such that the legislation which it enacted was appropriate.\\\" 1 Dunnell, Minn. Dig. (2 ed. & Supps.) \\u00a7 1605. Vehicles present an ever increasingly difficult problem to every city of the nation. The ordinance herein contested attempts to meet a problem which all are aware exists. The mere fact that it is difficult to produce evidence to show the law is unreasonable .is a factor favoring constitutionality rather than the reverse. As matters now stand, we cannot say the council invaded the cloak of protection cast by the constitutional limitations before mentioned.\\nIt is further contended that the ordinance is violative of Minn. Const. art. 4, \\u00a7 27, which provides that no law shall embrace more than one subject which shall be expressed in its title, and of chapter 4, \\u00a7 8, of the Minneapolis charter, which contains a similar provision.\\nThe ordinance as first enacted in 1933 was entitled: \\\"An ordinance providing for and relating to the appointment and duties of weighers of fuel, and to license and regulate the sale, advertisement for sale and delivery of fuel within the city of Minneapolis, and to provide penalties for violations.\\\" The amendment of 1937 read: \\\"An ordinance amending an ordinance entitled [herein was inserted the title of the original ordinance as quoted above] passed January 27, 1933, as subsequently amended.\\\" The amendment of 1937 made the assailed provisions relating to insurance (\\u00a7 6) a part of this ordinance.\\nThe appellant's argument is that the ordinance deals with the regulation of sale and delivery of fuel and also with financial responsibility of the seller of fuel to another user of the streets.\\nTo constitute duplicity of subject matter, an act must embrace two or more dissimilar and discordant subjects which cannot reasonably be said to have any legitimate connection. Johnson v. Harrison, 47 Minn. 575, 50 N. W. 923, 28 A. S. R. 382; 6 Dunnell, Minn. Dig. (2 ed. & Supps.) \\u00a7 8910. An amendatory act, as here, must remain not only within the title but also germane to the subject matter of the amended act. State ex rel. Rice v. Smith, 35 Minn. 257, 28 N. W. 241; Egekvist Bakeries, Inc. v. Benson, 186 Minn. 520, 243 N. W. 853. It is the settled rule that an enactment of a legislative body should be liberally construed in favor of constitutionality. 6 Dunnell, Minn. Dig. (2 ed. & Supps.) \\u00a7 8907. One of the reasons for the constitutional provision is to prevent surprise and fraud on the people. Johnson v. Harrison, 47 Minn. 575, 577, 50 N. W. 923, 28 A. S. R. 382. Consequently when the parties are well aware of the provision, the objection partakes somewhat of the technical and reason for liberal construction exists.\\nApplying these principles, we do not think the ordinance is unconstitutional or contrary to the charter. Since the title is not an index to the law a fair suggestion of the subject matter is all that is necessary. The title indicates the purpose is to regulate delivery of fuel. The requirement of insurance is not without the pale of regulation of delivery and therefore within the title of the ordinance. The next question is whether the amendment is germane to the subject matter of the amended act. Here a more doubtful question is presented, but a constitutional construction must be adopted if reasonable. There appears a sufficiently close connection in subject matter to sustain the amendment. The original ordinance embodied detailed regulatory provisions dealing with the various aspects of the sale and delivery of fuel. The insurance requirement found in the amendment is not so foreign to the subject matter of the amended enactment as to justify holding the ordinance unconstitutional or contrary to the charter on this ground. The matters are connected in popular significance, and that is sufficient.\\nError is assigned on the ground that the trial judge excluded evidence of certain persons engaged in the fuel business that they never had an accident wherein liability accrued because of damage to person or property. The reasonableness and need of this ordinance cannot be attacked by testimony of selected individuals that they had not had accidents on previous occasions. It is entirely unreliable as a basis upon which to predicate a determination that the council is legislating in a field where it is not needed either as to the present or the future.\\nEvidence was received to show that it was possible to obtain an insurance policy which permitted the insured vehicle to be laid up during the summer months and the policy suspended, together with the payments. The ordinance provides that\\u00bb the insurance must cover the vehicle during all the time the license is in force. While the council might have made provisions which permitted such a suspension, failure to do so does not render the ordinance unconstitutional. The mere fact that a less burdensome course might have been adopted to accomplish the end does not invalidate an ordinance. Hauge v. Chicago, 299 U. S. 387, 392, 57 S. Ct. 241, 81 L. ed. 297. The city authorities may act within proper legislative discretion. The means chosen are not so arbitrary as would justify holding the ordinance unconstitutional.\\nWe find nothing in the ordinance which conflicts with the provisions of the highway traffic regulation act, 3 Mason Minn. St. 1938 Supp. \\u00a7 2720-157, 2720-158. The ordinance fundamentally is not a traffic regulation but is enacted for the welfare of the people of the city.\\nSince there was no error below, the order of the trial court in the premises should be, and hereby is, affirmed.\\nAffirmed.\"}"
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diff --git a/minn/271033.json b/minn/271033.json
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+"{\"id\": \"271033\", \"name\": \"C. S. DEAVER v. MILLARD NELSON\", \"name_abbreviation\": \"Deaver v. Nelson\", \"decision_date\": \"1930-03-28\", \"docket_number\": \"No. 27,825\", \"first_page\": \"36\", \"last_page\": \"39\", \"citations\": \"180 Minn. 36\", \"volume\": \"180\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:08:26.647094+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"C. S. DEAVER v. MILLARD NELSON.\", \"head_matter\": \"C. S. DEAVER v. MILLARD NELSON.\\nMarch 28, 1930.\\nNo. 27,825.\\nC. A. Youngquist and Albert Running, for appellant.\\nPaul C. Cooper and C. O. Dailey, for respondent.\\nReported in 230 N. W. 122.\", \"word_count\": \"946\", \"char_count\": \"5573\", \"text\": \"Stone, J.\\nPlaintiff appeals from an order denying his motion to vacate a default judgment.\\nThe original plaintiff, I. C. Gilman, departed this life February 3, 1929. The action was commenced in February, 1928. Counsel say that it might have been noticed for trial in May but that, the plaintiff failing to do so, defendant noticed- it for trial at the October term, 1928. For some reason not shown by the record, plaintiff's original attorney dropped out of the case, and another made a motion for a continuance on the ground of the illness of the plaintiff. That motion was denied, and defendant brought the action on for trial October 3, 1928, without any further appearance for plaintiff, and procured on his counterclaims judgment against the plaintiff for $2,524.90, which was entered November 10, 1928. A writ of execution was issued. Certain land of the plaintiff was levied upon and sale thereof was had April 17, 1929.\\nWe think the record so far makes out a case for relief upon the ground of excusable neglect that it was an abuse of discretion to deny the motion. When the case was tried the plaintiff was 71 years old. The affidavit of the physician who attended him shows conclusively that he was then a very sick man. Some time before he had suffered a paralytic stroke. September 4, a month before the trial, the doctor \\\"found him in a state of physical collapse and exhaustion, half conscious and unable to stand, suffering from hardening of the arteries, high blood pressure and gangrene of his right foot.\\\" He was then removed to a hospital and kept there until September 20\\u2014confined to his bed. The doctor says that while he permitted his patient to make about three trips out of the village of Madelia during the last part of September, 1928, for the purpose of giving attention to some cases on the calendar of the October, 1928, general term, he also warned him \\\"that it would be dangerous to his life for him to go into court and take part in the trial of his cases . His general condition was such that the stress and nervous excitement of a lawsuit would be apt to bring on a cerebral hemorrhage at any time, and affiant so informed said Gilman.\\\" The doctor further says that \\\"his mental condition was such that he could not give his business affairs such consideration and attention as a normally prudent man would have given them in a normal state of mind. His mental condition was such that he necessarily was incapable of giving them proper attention, although he himself may have thought that he was capable of so doing, He was in fact incapacitated from understanding and fully appreciating his rights, and fully appreciating the necessity of placing his own affairs in the hands of others for attention.\\\"\\nWith the plaintiff in that condition the case was tried by default and judgment taken against him. But that is not all. The complaint declared upon three causes of action for rent and other demands arising out of a farm lease, wherein the plaintiff had been the lessor and defendant the lessee. The total amount demanded was $1,793.86. The answer first alleged payment generally and then sets up some counterclaims. To an extent we cannot ascertain the items used by defendant as the substance of counterclaim must probably be used by way of agreed offset to support his plea of payment. With all his counterclaims in the case defendant's prayer for judgment against plaintiff was for only $826.17. But at the trial the court dismissed a counterclaim which was for $1,600. Yet defendant had judgment for $2,521.90. It is difficult if not impossible so to construe the pleadings as to support any such result. That is an important circumstance suggesting that plaintiff is entitled to relief.\\nThe power of the district court to \\\"relieve a party from any judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect\\\" is inherent. The statute (G. S. 1923 [2 Mason, 1927] \\u00a7 9283) limits its exercise to one year after notice. Even though a party seeking relief moves within, the year permitted by statute, his application should be denied if he has been guilty of laches. On the record plaintiff cannot be convicted of that charge. The illness of the original plaintiff, beginning some time before the trial, continued in constantly aggravated form until February 3, 1929, when it resulted in his death. Letters of administration were issued to the present plaintiff April 6, 1929, and May 17, 1929, he was substituted as the plaintiff in this case. Immediately he made the motion now before us. We cannot escape the conclusions that the neglect of plaintiff which resulted in the judgment's being taken against him by default was plainly excusable, and that the-present plaintiff, the administrator of his estate, has moved with due diligence.\\nHowever the judgment should not be vacated without the imposition of terms which will give defendant indemnity for his actual outlay in attending the trial, procuring the judgment and making the levy and sale thereunder. He was put to some traveling expense in order to be present at the trial. Under these circumstances the order is reversed with directions to vacate the judgment in question and all proceedings thereunder upon the payment of $100 by plaintiff to defendant within 20 days from the going down of the remittitur.\\nSo ordered.\"}"
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+"{\"id\": \"271157\", \"name\": \"IN RE ESTATE OF HERMAN F. SKARP. EILEEN ANDERSON v. JOHN A. MATTINEN\", \"name_abbreviation\": \"Anderson v. Mattinen\", \"decision_date\": \"1930-04-11\", \"docket_number\": \"No. 27,886\", \"first_page\": \"122\", \"last_page\": \"123\", \"citations\": \"180 Minn. 122\", \"volume\": \"180\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:08:26.647094+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IN RE ESTATE OF HERMAN F. SKARP. EILEEN ANDERSON v. JOHN A. MATTINEN.\", \"head_matter\": \"IN RE ESTATE OF HERMAN F. SKARP. EILEEN ANDERSON v. JOHN A. MATTINEN.\\nApril 11, 1930.\\nNo. 27,886.\\nVictor H. Gran, Warner IE. Whipple and George W. Atmore, Jr. for appellant.\\nTheodore Hollister and Lathers & Hoag, for respondent.\\nReported in 230 N. W. 273.\", \"word_count\": \"593\", \"char_count\": \"3381\", \"text\": \"Dibell, J.\\nThe claim of Eileen Anderson against the estate of her father, Herman F. Sharp, was disallowed by the probate court of Carlton county. She appealed to the district court, issues were framed, and upon a trial de novo she had a finding against the estate for $1,102.12 with interest from November 1, 1924, at six per cent, upon which judgment was entered. John A. Mattinen, the executor, appeals from the judgment.\\nUnder date of September 1, 1923, achnowledged April 19, 1924, Sharp and his daughter, the plaintiff, Mrs. Eileen Anderson, made a written contract for the purchase by the latter from the former of a small country store, including the land and the merchandise, fixtures and appurtenances, for $5,700, of which $895.12 was to be paid in cash and $50 on the first of each month commencing April 25, 1924. Mrs. Anderson continued the business until in October, 1924. She paid the sum of $895.12 in cash and seven payments of $50 each. In October, 1924, her father took possession of the property. The plaintiff claims there was a sale. The executor claims there was a cancelation and that the plaintiff was to get nothing. Whatever it was in its details, it is certain that the father got back the property and the additions put upon it by his daughter and that the daughter did not get back the money which she had paid-nor payments for additions put upon the property.\\nThe rule excluding the conversation of an interested party with a party since deceased keeps from us oral testimony which might be helpful and -aid or harm one party or the other. Such testimony as there is, in connection with exhibits B and C, memoranda made by the parties in October, 1924, and reframed ivith resultant clearness by the parties in their briefs, indicate that the plaintiff paid $895.12 in cash and $50 in cash for seven months, and improved the buildings and grounds and annexed fixtures, so that the plaintiff then had a claimed investment of $1,278. There was an item of bills receivable of $171 credited to the daughter which it seems to be admitted the father did not get; and she was credited with a cash payment of $900, a difference of $4.88 in her favor. Deducting these two items of $171 and $4.88 from the $1,278 there is left $1,102.12, the amount awarded the plaintiff. In exhibit C there were classed items as bills payable amounting to $1,405.17. If the father took everything that he transferred to his daughter, and the additions to the store and other property bought, and retained the money which his daughter paid him on the purchase price, she lost a considerable sum; and he gained though he paid the bills payable \\u2014a matter which need not trouble us further.\\nIt is not unreasonable to hold that the transaction of October, 1924, was a sale. The books and accounts of the parties are crude. The two exhibits furnish the best available evidence of the arrangement of the parties. It is not for us to demonstrate that the amount awarded is correct. The result may not be entirely accurate. It may be right to a penny. It is quite certainly nearer right than one we could make.\\nJudgment affirmed.\"}"
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diff --git a/minn/293267.json b/minn/293267.json
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index 0000000000000000000000000000000000000000..5d9a0a4a0d5becabbba86d9d92f2e340cc7165d2
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+"{\"id\": \"293267\", \"name\": \"ROY CHARD, SPECIAL ADMINISTRATOR OF ESTATE OF ELLIOTT B. VARNER, v. MARSHALL B. DARLINGTON AND OTHERS\", \"name_abbreviation\": \"Chard v. Darlington\", \"decision_date\": \"1955-01-28\", \"docket_number\": \"No. 36,412\", \"first_page\": \"489\", \"last_page\": \"501\", \"citations\": \"243 Minn. 489\", \"volume\": \"243\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:34:50.637158+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROY CHARD, SPECIAL ADMINISTRATOR OF ESTATE OF ELLIOTT B. VARNER, v. MARSHALL B. DARLINGTON AND OTHERS.\", \"head_matter\": \"ROY CHARD, SPECIAL ADMINISTRATOR OF ESTATE OF ELLIOTT B. VARNER, v. MARSHALL B. DARLINGTON AND OTHERS.\\nJanuary 28, 1955.\\nNo. 36,412.\\nR. J. Leonard and Doherty, Rumble & Butler, for appellants.\\nTheodore Arlander, for appellant William H. Darlington.\\nM. J. Daly, for respondent.\\nReported in 68 N. W. (2d) 405.\", \"word_count\": \"4343\", \"char_count\": \"24596\", \"text\": \"Knutson, Justice.\\nElliott B. Varner, who had been a lifetime resident of the area of Jordan, Minnesota, died on September 17, 1950. He left surviving him two sisters, Rowena V. Darlington, who was then 90 years of age and who died in January 1951, and Hannah V. Scott, 86 years of age; a brother, Harold C. Varner, 66 years of age; and the following children of deceased brothers and sisters: Ethel Chard, Lulu Burling, Beatrice Chard Wolfram, Roy Chard, Stella Chard Wolfram, and Edith C. Haag, who were children of Lulia Chard, a deceased sister; Lloyd W. Odenwald, Ralph B. Odenwald, John B. Odenwald, Lee E. Odenwald, Marjorie Odenwald McCauley, and Dorothy Odenwald Joslyn, who were children of Ada Odenwald, a deceased sister; William A. Varner and Ruth Varner Hart, who were children of William A. Varner, a deceased brother; and Harlan E. Varner, child of Leo Varner, a deceased brother.\\nMarshall' B. Darlington is the son of Rowena V. Darlington, as is William H. Darlington. William went to work in Minneapolis. Marshall stayed at home and ran the farm occupied by his invalided mother. The farm was across the road from the farm owned and occupied by Elliott. Elliott's farmhouse was about a quarter of a mile from the Darlington residence. Marshall is a man in his early fifties and is single. Elliott was a bachelor and had lived alone on his farm since about 1926.\\nIt is undisputed that, during his lifetime and up to a few days prior to his death, Elliott B. Varner was the owner of some treasury bonds which are involved in this action. He kept these bonds, his cash, and other personal property in a metal bos in the basement of his home.\\nIn June 1943, Elliott, who then was about 75 years of age, became ill and entered a hospital, where he remained until August of that year. Before he left for the hospital he showed Marshall where he kept his bonds and money. Marshall was given the key to the box, and while Elliott was in the hospital he would have Marshall procure money from the box and send it to him so that he could pay his hospital bill. After leaving the hospital, Elliott spent three months at the Darlington home, and when he had recovered sufficiently, he returned to his own home. In 1946 or 1947 Elliott again became ill and returned to the Darlington home. About this time he transferred his bonds and currency, which he kept in a package, to the Darlington home. In the spring of 1949, Elliott entered St. Mary's Hospital in Minneapolis. He requested Marshall to bring him some of his cash, and this money was used by the wife of William Darling-ton to pay Elliott's hospital bills. After leaving the hospital, Elliott went to William's home, where he remained for about two months, and then returned to the Rowena Darlington home where Marshall lived. He remained there until he died.\\nIt is the claim of defendants that, prior to his death, Elliott made a gift of negotiable bonds, having a face value of $40,000, to certain of his relatives, defendants herein. Marshall testified that a short time before Elliott's death the bonds were taken from a dresser drawer in his room where they were kept and placed on a card table before Elliott, together with some envelopes; that Elliott then took bonds having a value of $12,500 and placed them in an envelope and laid it down; and that Marshall then wrote on it the name of the person to whom it was to go and from whom. The same procedure was followed as to the other bonds allegedly given to the other defendants. The bonds in these envelopes were then placed in the same dresser drawer from which they had been taken, and they remained there until after Elliott's death.\\nIt is undisputed that about two o'clock in the morning of September 17, 1950, Elliott fell dead from a cardiac decompensation or heart failure. Marshall called Harold C. Varner and William Darlington, and they arrived at his home a few hours later. Marshall then took the envelopes containing the bonds, and the testimony of Harold Varner is that he handed him an envelope containing $6,000 in bonds and said to him: \\\"Harold, Elliott wanted me to do this, and I want to do it right now.\\\" According to his brother William, Marshall then turned over to him an envelope containing $6,000 in bonds and stated: \\\"Elliott wanted it that way.\\\" At the same time he said in the presence of others: \\\"In this envelope, now, there is Twelve Thousand Five Hundred ($12,500.00) Dollars, [referring to his own] and in this envelope there is Twelve Thousand Five Hundred ($12,500.00) Dollars for mother, Eowena Darlington.\\\" At the same time he showed William Darlington an envelope for Jane Breimhorst. Jane acknowledged that the bonds were delivered to her on the day of Elliott's death or very shortly thereafter.\\nAda Scott, a daughter of Hannah Scott who was a sister of Elliott, is employed by the Prudential Insurance Company and is a resident of Minnesota. Her mother, who is past 85 years of age, lives in Gilby, North Dakota. Ada Scott testified that during the month of October 1949 she and her mother visited with Elliott while he was in St. Mary's Hospital in Minneapolis and that her mother then said to him: \\\"I think you should make a will,\\\" and that he answered: \\\"I don't need to make a will; I have everything taken care of,\\\" and that he said: \\\"I am going to let the farm go into my estate, but the bonds are not going into the estate,\\\" and that \\\"Marshy [who is Marshall Darlington] has the bonds and knows what to do with them.\\\" Ada then stated that she said to Elliott: \\\"Don't they have to be assigned to somebody?\\\" and that he answered: \\\"No, they were the kind of bonds which belong to whoever has them,\\\" and that she said: \\\"I didn't know there were any bonds like that,\\\" and he said \\\"Marshy has them.\\\" She testified further that he said: \\\"I don't want the Chards to have any of the bonds,\\\" and that he said: \\\"Marshy has the bonds and he knows what to do with them.\\\"\\nEllen Darlington, wife of William, attempted to testify to a conversation which she said took place between Elliott and herself sometime during the period when he stayed at their home. The objection to this testimony was sustained, and an offer of proof was then made to show that Elliott had told her that he had made arrangements for the distribution of the bonds and that Marshall had received instruc tions as to how they were to he distributed upon his death. The trial court sustained plaintiff's objection to this testimony on the ground that Ellen had a \\\"pecuniary interest\\\" in the outcome of the lawsuit.\\nElliott Varner left no will. Marshall Darlington was appointed administrator of his estate in October 1950. Thereafter he reported to his attorney the alleged transfer of these bonds and to whom they had been transferred. An inheritance tax report was then made showing the transfer of these bonds to the various recipients as follows: Rowena Darlington, his sister, $12,500; Harold Varner, a brother, $6,000; Marshall Darlington, a nephew, $12,500; William Darlington, a nephew, $6,000; and Jane Varner Breimhorst, a niece, $3,000.\\nIn addition to these bonds, the estate, according to the inventory, consisted of the homestead appraised at $6,000; cash in the amount of $3,000; and treasury bonds registered in the name of the deceased valued at $4,700.\\nPlaintiff was appointed special administrator on August 11, 1953, and this action was brought originally for the recovery of the bonds or the value thereof. At the commencement of the trial plaintiff was permitted to amend his complaint so as to sue for twice the value of the bonds on the ground that they had been converted.\\nThe trial court instructed the jury, in effect, that, if they failed to find that decedent had made a gift of the bonds, they must return a verdict against all defendants for $80,000. The jury so found. This appeal is from an order denying defendants' motion for judgment notwithstanding the verdict or a new trial.\\nWhile there are a number of assignments of error, the questions presented for our determination here are:\\n(1) On whom does the burden of proof rest in a case of this kind?\\n(2) Is M. S. A. 525.392 applicable, and, if so, is good faith on the part of defendants a defense to the action for double liability ?\\n(3) Was the testimony of Ellen Darlington admissible under \\u00a7 595.04?\\n(4) Were the envelopes in which the bonds allegedly were placed admissible in evidence?\\nThe trial court's instruction on the burden of proof is far from clear. The court instructed the jury:\\n\\\"In the instant case the burden is upon the plaintiff to prove by a fair preponderance of the evidence that there was a conversion of the Treasury Bonds involved in this action and that said conversion was made on the part of the defendant named in the action and that the burden remains with the plaintiff throughout the trial.\\n\\\"On the other hand, the burden of proof rests upon the defendant to prove that there was an actual gift of the United States Treasury Bonds involved in this particular action to the defendant Marshall B. Darlington for the purpose testified to on his part; and therefore, before the defendants can recover a verdict in this case they must prove to you by clear and convincing evidence that the deceased did make a valid gift to them of the Treasury Bonds and that at the time he intended to vest the title of these bonds in the defendants without reserving any right on his part to reclaim the property at any time in the future. If the defendants have failed to prove by clear and convincing evidence that the deceased intended to make a valid gift to them of his bonds that ends the case and your verdict would be for the plaintiff, if the plaintiff has proved his case by a fair preponderance of the evidence; but if, on the other hand, the defendants have proved to you by clear and convincing evidence that the deceased Elliot B. Varner did intend to and did, in fact, make a valid gift by and through Marshall B. Darlington of the Treasury Bonds, then the defendants are entitled to a verdict against the plaintiff as special Administrator of the estate of Elliot B. Varner.\\\"\\nIt is difficult to see how a jury could apply this instruction. The applicable rule is that, when plaintiff had established that the bonds were the property of decedent immediately or shortly prior to his death, that made out a prima facie case of ownership, and the burden then rested on defendants to establish a gift. While the answer is simply a general denial, the defense consists of defendants' claim that decedent made a gift inter vivos and the proof of that defense rests on the one who asserts it.\\nSection 525.392 reads as follows:\\n\\\"If any person embezzles, alienates, or converts to his own use any of the personal estate of a decedent or ward before the appointment of a representative, such person shall be liable for double the value of the property so embezzled, alienated, or converted.\\\"\\nIt is the contention of defendants that good faith is a defense to imposition of double liability. Prior to the adoption of our revised probate code by L. 1935, c. 72, our statute read as follows (Mason St. 1927, \\u00a7 8806):\\n\\\"If any person, before the granting of letters testamentary or of administration, embezzles or alienates any of the personal estate of a decedent, such person shall be liable, in an action by the executor or administrator for the benefit of such estate, for double the value of the property so embezzled or alienated.\\\"\\nIt had remained substantially as it was in the 1927 statute since territorial days. R. S. 1851, c. 55, \\u00a7 10.\\nUnder statutes such as ours prior to 1935, the great weight of authority is that good faith is a defense to imposition of double liability. Some of the decisions are based on a determination that such statutes are penal in nature, and others have come to this conclusion by the application of the principles of executor de son tort.\\nIn Owens v. Owens, 207 Minn. 489, 499, 292 N. W. 89, 94, we held, in determining whether the statute of limitations applied, that \\u00a7 525.392 is not penal, \\\"since it gives the same right as existed at common law and merely increases the damages payable to the party aggrieved.\\\"\\nIt is not easy to determine from the decisions what are penal statutes. Sometimes it is said that statutes are both remedial and penal. Strictly speaking, a penal statute is one which is intended to enforce obedience to the mandates of the law by punishing those who disobey it.\\nHowever, we think that it is not essential to reconsider whether the statute is penal or not. Decision in this case can be placed on a determination of the legislative purpose in enacting the statute.\\nUnder statutes such as ours prior to 1935, many courts have held that, before the double liability can be exacted, it must appear that the property was wrongfully alienated or embezzled. The word \\\"embezzles\\\" denotes a wrongful appropriation of the property, so in statutes limited to embezzling or alienating the difficulty lies only with the proper interpretation of the word \\\"alienates.\\\" In Jahns v. Nolting, 29 Cal. 508, 512, the California court said, in connection with a statute similar to ours prior to 1935:\\n\\\"To embezzle, as the term is employed in section one hundred and sixteen, is to fraudulently appropriate to one's own use, or conceal the effects of the estate which such person has in his possession; and to alienate, signifies to wrongfully transfer such property to another. Such embezzlement or alienation is a wrongful conversion of the property, for which an action of trover was maintainable at common law.\\\"\\nIn Nicholas & Shepard Co. v. Dunnington, 118 Okl. 231, 233, 247 P. 353, 355, the Oklahoma court said with respect to a similar statute:\\n\\\" The term 'alienate,' as used in section 1220, C. O. S. 1921, signifies the wrongful transfer of such property to another.\\\"\\nThe general rule is stated in 33 C. J. S., Executors and Administrators, \\u00a7 170, as follows:\\n\\\"One who embezzles, alienates, or converts to his own use the property of decedent before the appointment of an executor or administrator is liable for double the value of the property under a statute expressly so providing, but some bad faith or wrongful conduct on the part of defendant is necessary to subject him to such penalty, and the term 'alienate' as used in the statute signifies a wrongful transfer to another.\\\" (Italics supplied.)\\nWhile the cases cited in support of this text involve statutes similar to ours prior to 1935, the text apparently includes the word \\\"converts\\\" in the same category as embezzle or alienate insofar as good faith as a defense is concerned.\\nThe case of Springer v. Jenkins, 47 Ore. 502, 84 P. 479, dealt with a statute very similar to our present statute. In deciding that good faith was a defense, the Oregon court said (47 Ore. 508, 84 P. 481):\\n\\\" we are of the opinion that Section 1152 does not apply to a case where the defendant acted in good faith under color of legal right, supposing he had title to the property or a right to enforce a lien thereon, though he should subsequently be unable to establish such title or right. The statute is highly penal in its consequences, and was evidently intended to punish those who might wrongfully or in bad faith interfere with, convert to their own use, or dispose of the property of a deceased person, by mulcting them in double damages ; and its language should, we think, be so construed. To subject a defendant to the penalty given by the statute, it should appear that he was an intermeddler, and acted from wrong motives or in bad faith; otherwise, the executor or administrator should be satisfied with the ordinary remedies given him by law: They [the defendants] may have been ill advised, or may have mistaken their rights; but, until it is made to appear that they acted from wrongful motives or in bad faith, the plaintiff is not entitled to recover double damages from them.\\\"\\nIn our case of Owens v. Owens, 207 Minn. 489, 498, 292 N. W. 89, 94, we stated with respect to the purpose of the statute:\\n\\\"The apparent purpose of the statute is to give to those persons subsequently declared the legal owners of a decedent's estate a remedy against persons attempting to deprive them of their heritage and to double the damages recoverable because of the likelihood that the wrongdoer can in such cases successfully conceal his malfeasance.\\\"\\nIt would seem to us that the evident purpose of the statute is to subject to double liability anyone who wrongfully interferes with or appropriates property belonging to a decedent before a representative is appointed who lawfully can take possession of it. The double liability is intended to deter anyone from so interfering with such property. Where there is an honest belief that the property belongs to the one charged with the conversion of it or where he honestly believes that he has a right to possession of it, he should not be subjected to double liability merely because he is unable ulti mately to establish such ownership or right of possession. Cases do arise in which there is a genuine question of ownership. The establishment of a gift often involves complicated legal questions, the determination of which may necessitate the opinion of a court of last resort before it finally is settled. A party who believes that he is the owner of property should not be subjected to double liability merely because he asserts his right and happens to lose in the end, if he acts in good faith.\\nIn this case, as far as the record shows, with the exception of Marshall Darlington, all that the defendants did was to accept an envelope with their names on it, enclosing the bonds in various amounts, which they were told was given to them by decedent. As to them, there is no other evidence of embezzlement, alienation, or conversion. There is neither allegation nor proof of any conspiracy or joint action on the part of the defendants to convert the whole of the property involved. It must have been a rude awakening for those defendants who received from $3,000 to $6,000 worth of bonds to learn, after litigation, that they were subjected to a judgment not only for double the amount of the bonds they had received but for $80,000, double the total amount of all the bonds involved. We believe that no legislature could have intended such an unjust result. At the very most, under the evidence in this case, the liability of the defendants who did nothing more than accept the bonds given to them could not exceed double the value of the property which they converted even if it were found that they acted in bad faith, and there is no evidence of that in this case.\\nThe testimony of Ellen Darlington, wife of William Darlington who was one of the recipients of bonds, was excluded on the theory apparently that she and her husband had a joint bank account. There was no showing that any of the bonds received by William would ever reach Ellen. It was error to exclude that testimony. We have held on a number of occasions that a spouse is not incompetent, under \\u00a7 595.04, to testify in an action involving personal property where it is not shown that she has any interest in the outcome of the litigation. In In re Estate of Arnt, 237 Minn. 245, 248, 54 N. W. (2d) 333, 336, we recently stated the principles which will disqualify a person from testifying under this statute. We there said:\\n\\\"To render a person incompetent as a witness under \\u00a7 595.04, he must have some legal, certain, and immediate interest in the event of the action with respect to the issue to which his testimony relates. The interest must be pecuniary, certain, direct, and immediate, and not an uncertain, contingent, remote, or merely possible interest.\\\"\\nThe opposite holding is to be found in cases involving the recovery or ownership of real estate in which the spouse has an inchoate interest.\\nMarshall B. Darlington testified that, on the occasion in September 1950 when the gift was consummated, he brought the package containing the bonds to decedent and placed them on a card table in front of him, together with some envelopes; that decedent then took various amounts of bonds and placed them in the envelopes; and that he, Marshall, wrote on each envelope for whom it was and from whom. When the envelopes were offered in evidence, objection was sustained on the ground that \\\"it is an attempt to evade the dead-man's act and introduce inferences or results of conversations with a deceased person.\\\"\\nOur statute (\\u00a7 595.04) does not forbid testimony of acts of the decedent. In Chadwick v. Cornish, 26 Minn. 28, 31, 1 N. W. 55, 57, we said:\\nThe language of the act, Any conversation with, or admission of,' refers, strictly, only to spoken words. it does not exclude testimony of the acts of the deceased although they may in law have the same effect as oral admissions.\\\"\\nThat case has been followed in many subsequent cases.\\nWe have held that letters of a decedent are admissible. We likewise have held that oral proof of the contents of lost letters is admissible.\\nIf decedent himself had written on the envelopes the names of those who were to receive the bonds, clearly they would be admissible as an act of his. Where Marshall wrote on the envelopes in the presence of the deceased, the decedent placing the bonds in such envelopes, it is no less an act that may be shown. The credibility of the testimony, of course, was for the jury, but we think that the envelopes clearly were admissible and that it was error to exclude them.\\nEeversed and new trial granted.\\nGale v. Gale, 70 Vt. 540, 41 A. 969; Denver & Salt Lake Ry. Co. v. Equipment Co. 87 Colo. 169, 285 P. 941; Mosteller v. Holborn, 20 S. D. 545, 108 N. W. 13; Lang v. Harwood (Tex. Civ. App.) 145 S. W. (2d) 945; see, also, Derby v. Gallup, 5 Minn. 85 (119); Amick v. Exchange State Bank, 164 Minn. 136, 204 N. W. 639.\\nWhile the question has not been raised here and we do not determine it, it should be noted that the words \\\"in an action by the executor or administrator for the benefit of such estate\\\" found in the statute prior to the 1935 amendment were eliminated. In Owens v. Owens, 207 Minn. 489, 498, 292 N. W. 89, 94, we said:\\n\\\"The apparent purpose of the statute is to give to those persons subsequently declared the legal owners of a decedent's estate a remedy against persons attempting to deprive them of their heritage .\\\" (Italics supplied.)\\nLarson v. Quanrud, Brink & Reibold, 78 N. D. 70, 47 N. W. (2d) 743, 29 A. L. R. (2d) 230; Regional Agricultural Credit Corp. v. Chapman (9 Cir.) 129 F. (2d) 435; Delfelder v. Poston, 42 Wyo. 176, 293 P. 354; Jackson v. Lamar, 67 Wash. 385, 121 P. 857; Batchelder v. Tenney, 27 Vt. 578; Roys v. Roys, 13 Vt. 543; see, Beckman v. McKay, 14 Cal. 251; but cf. Jahns v. Nolting, 29 Cal. 508; Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313; see, also, Annotation, 29 A. L. R. (2d) 252; 36 Minn. L. Rev. 277.\\nWe have abolished by statute the action against a person as executor de son tort. M. S. A. 573.04.\\nSee, Sedgwick, Construction of Statutory and Constitutional Law (2 ed.) p. 333; 3 Sutherland, Statutory Construction (3 ed.) \\u00a7 5602 and 5603.\\n3 Sutherland, Statutory Construction (3 ed.) \\u00a7 5703.\\n3 Sutherland, Statutory Construction (3 ed.) \\u00a7 5602; Huntington v. Attrill, 146 U. S. 657, 13 S. Ct. 224, 36 L. ed. 1123.\\n\\\"If any person shall, before administration is granted, embezzle, alien, or in any way convert to his own use any of the property of a deceased person, he is liable to the executor or administrator in double the amount of damages which may be assessed therefor.\\\"\\nCf. Connell v. Bauer, 240 Minn. 280, 61 N. W. (2d) 177.\\nSee, Johnson v. Whitney, 217 Minn. 468, 14 N. W. (2d) 765; Anderson v. Anderson, 197 Minn. 252, 266 N. W. 841; In re Estate of Mollan, 181 Minn. 217, 232 N. W. 1.\\nSee, Cocker v. Cocker, 215 Minn. 565, 10 N. W. (2d) 734. For a general annotation on the subject of the admissibility of the testimony of a spouse in an action in which the other spouse is interested in personalty, see Annotation, 27 A. L. R. (2d) 538.\\nChadwick v. Cornish, 26 Minn. 28, 1 N. W. 55; Larson v. Lund, 109 Minn. 372, 123 N. W. 1070.\\nNewton v. Newton, 46 Minn. 33, 48 N. W. 450.\\nIn re Estate of Berdell, 143 Minn. 328, 173 N. W. 665.\"}"
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+"{\"id\": \"305698\", \"name\": \"T. EUGENE THOMPSON v. STATE. DONALD JOHN GIESE, APPELLANT\", \"name_abbreviation\": \"Thompson v. State\", \"decision_date\": \"1969-08-01\", \"docket_number\": \"No. 41893\", \"first_page\": \"274\", \"last_page\": \"278\", \"citations\": \"284 Minn. 274\", \"volume\": \"284\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:39:15.427796+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"T. EUGENE THOMPSON v. STATE. DONALD JOHN GIESE, APPELLANT.\", \"head_matter\": \"T. EUGENE THOMPSON v. STATE. DONALD JOHN GIESE, APPELLANT.\\n170 N. W. (2d) 101.\\nAugust 1, 1969\\nNo. 41893.\\nSidney P. Abramson, Theodore J. Collins, and O\\u2019Connor, Collins & Abramson, for appellant.\\nRobins, Meshbesher, Singer & Spence, Ronald I. Meshbesher, and Morley Friedman, for petitioner.\\nFrancis X. Helgesen, Helgesen, Peterson, Engberg & Spector, for Newspaper Guild of the Twin Cities, amicus curiae.\", \"word_count\": \"1397\", \"char_count\": \"8216\", \"text\": \"Murphy, Justice.\\nWe are presented with certification of a question which the trial court considered doubtful or important (Minn. St. 632.10), arising out of a postconviction proceeding (\\u00a7\\u00a7 590.01 to 590.06), instituted by petition of T. Eugene Thompson, who is now serving a sentence for the offense of first-degree murder. State v. Thompson, 273 Minn. 1, 139 N. W. (2d) 490.\\nIn the proceeding, Donald John Giese, a newspaper reporter, was called as a witness, presumably to give testimony relating to Thompson's claim that he was \\\"denied his Constitutional right to a fair and impartial trial because the prosecutor, police and their agents stimulated some of the adverse publicity, which contaminated the jurors, by releasing information and making prejudicial pretrial statements to the news media that were improper, unethical and calculated to persuade those exposed to such statements of petitioner's guilt.\\\" From the skeletal record it appears that Giese was merely asked by petitioner's counsel, \\\"And who were the sources of your information for the news articles that you wrote in connection with the murder of Carol Thompson?\\\" Giese refused to answer, saying, \\\"I think that this deprives me of my right to confidential news sources and my right to keep those confidential news sources; and two, it tends to violate the basic ethics of the profession of journalism; and three, it tends to deprive me of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution.\\\" The trial court accordingly found the witness in contempt and sentenced him to 90 days in the county jail.\\nOn this record we are asked to rule on the question of whether a newspaper reporter is protected by a privilege so that he may legally refuse to answer questions put to him which might require him to divulge the name of confidential informants; whether the question called for an answer which would be violative of journalistic ethics; and whether the question called for an answer which, if given, \\\"might tend to deprive said witness of a valuable property right in violation of the due process clause of the United States Constitution.\\\"\\nWe are of the view that the certification is contrived and presents nothing more than a speculative question which counsel and the court below would like to have us explore. There is nothing in the record to indicate an attempt by the petitioner to direct the inquiry to a particular newspaper article or articles, to identify their contents, or to relate them to a denial of a basic constitutional right. There is no attempt made to determine dates involved nor does the question relate to any of the innumerable facets involved in the prosecution of the petitioner. We agree with the observation expressed in the amicus curiae brief of the Newspaper Guild of the Twin Cities, American Newspaper Guild, Local No. 2 \\u2014 AFL-CIO-CCL., that it is not apparent from the \\\"scattergun\\\" question whether the \\\"information sought was either relevant, material or involved the identification of individuals whose identity might not have already been known or could have been easily identified in another way.\\\"\\nNo authority has been cited which would establish a basis for a finding of contempt of court for failure to answer a question with respect to sources as vague and imprecise as the one contained in the record. We are asked to assume that Giese did in fact cause to be published certain relevant information which was prejudicial and that the petitioner is entitled to know the source of such information so that he might use it in proving that his conviction resulted from a denial of his rights. There is nothing in the record to warrant such an assumption.\\nThe function of the statute authorizing certification by the trial court is not to present a hypothetical question or to secure an advisory opinion. The certification should be carefully and precisely framed so as to present distinctly and clearly the question of law involved and should not be presented until the record is developed to the point where the question is relevant and presents a substantive issue. An appellate court will not consider abstract or unnecessarily general questions which might result in one answer to one set of circumstances but another answer to a different set of circumstances. State v. Moller, 276 Minn. 185, 149 N. W. (2d) 274; Powers v. State Highway Board, 123 Vt. 1, 178 A. (2d) 390; Lowden v. Northwestern Nat. Bank & Trust Co. 298 U. S. 160, 56 S. Ct. 696, 80 L. ed. 1114; 5 Am. Jur. (2d) Appeal and Error, \\u00a7 1027.\\nThe record before us prompts certain observations as to the appropriate uses of postconviction proceedings provided for by Minn. St. 590.01 to 590.06. These procedures were not devised to permit parties to engage in legal games or to permit a petitioner to embark upon unlimited and undefined discovery proceedings. Following Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L. ed. (2d) 837, and Townsend v. Sain, 372 U. S. 293, 83 S. Ct. 745, 9 L. ed. (2d) 770, which held that a convicted defendant was entitled to a habeas corpus hearing where denial of a funda mental right was alleged, \\u00a7 590.01 to 590.06 were enacted to provide a postconviction remedy by which a defendant may attack the judgment of conviction. In such proceedings petitioner's proof must establish that he has been denied a protection guaranteed by the Bill of Rights or that he was deprived of fair treatment amounting to a violation of fundamental rights of due process. Minn. St. 590.04, subd. 3, provides in part:\\n\\\"Unless otherwise ordered by the court the burden of proof of the facts alleged in the petition shall be upon the petitioner to establish such facts by a fair preponderance of the evidence.\\\"\\nState ex rel. Gray v. Tahash, 279 Minn. 248, 156 N. W. (2d) 228; Cable v. State, 284 Minn. 89, 169 N. W. (2d) 391.\\nIn postconviction proceedings there must be a real basis for the examination of witnesses, and the examination must focus upon a concrete claim of prejudice or denial of a constitutional right.\\nJudgment of contempt is reversed and the case remanded for further proceedings.\\nIt may be added as an aside that there is no paucity of authority on this issue. State v. Kasherman, 177 Minn. 200, 224 N. W. 838; Blair v. United States, 250 U. S. 273, 39 S. Ct. 468, 63 L. ed. 979; Garland v. Torre (2 Cir.) 259 F. (2d) 545, certiorari denied, 358 U. S. 910, 79 S. Ct. 237, 3 L. ed. (2d) 231; In re Goodfader's Appeal, 45 Hawaii 317, 367 P. (2d) 472; 58 Am. Jur., Witnesses, \\u00a7 546; 97 C. J. S., Witnesses, \\u00a7 27, 259; 8 Wigmore, Evidence (McNaughton Rev. 1961) \\u00a7 2190; Minn. Const, art. 1, \\u00a7 6; 7 A. L. R. (3d) 591. No statute in Minnesota protects the asserted privilege.\\nMinn. St. 590.01 provides: \\\"Subdivision 1. Except at a time when direct appellate relief is available, a person convicted of a crime, who claims that the conviction was obtained, or that the sentence or other disposition made violated his rights under the constitution or laws of the United States or of the state, may commence a proceeding to secure relief therefrom by filing a petition in the district court in the county wherein the conviction was had to vacate and set aside the judgment and to discharge the petitioner or to resentence him or grant a new trial or correct the sentence or make such other disposition as may be appropriate. Such proceeding shall conform with sections 590.01 to 590.06.\\n\\\"Subd. 2. This remedy takes the place of any other common law, statutory or other remedies which may have been available for challenging the validity of a conviction, sentence, or other disposition and must be used exclusively in place of them unless it is inadequate or ineffective to test the legality of the conviction, sentence or other disposition.\\\"\"}"
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+"{\"id\": \"308949\", \"name\": \"SHERMAN L. TROUP AND ANOTHER v. JACK ROZMAN, INDIVIDUALLY AND AS COPARTNER d. b. a. GOPHER BAG COMPANY\", \"name_abbreviation\": \"Troup v. Rozman\", \"decision_date\": \"1970-01-30\", \"docket_number\": \"No. 41709\", \"first_page\": \"88\", \"last_page\": \"92\", \"citations\": \"286 Minn. 88\", \"volume\": \"286\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:59:25.490864+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Knutson, C. J., and Otis, Rogosheske, Sheran, and Graff, JJ.\", \"parties\": \"SHERMAN L. TROUP AND ANOTHER v. JACK ROZMAN, INDIVIDUALLY AND AS COPARTNER d. b. a. GOPHER BAG COMPANY.\", \"head_matter\": \"SHERMAN L. TROUP AND ANOTHER v. JACK ROZMAN, INDIVIDUALLY AND AS COPARTNER d. b. a. GOPHER BAG COMPANY.\\n174 N. W. (2d) 694.\\nJanuary 30, 1970\\nNo. 41709.\\nCharles Rubenstein and Robert J. Milavetz, for appellants.\\nIrwin Ketroser, for respondent.\\nHeard before Knutson, C. J., and Otis, Rogosheske, Sheran, and Graff, JJ.\", \"word_count\": \"1262\", \"char_count\": \"7394\", \"text\": \"Rogosheske, Justice.\\nPlaintiffs appeal from a judgment in favor of defendant and from a denial of their motion for a new trial.\\nThe issue presented is whether defendant's obligation under a non-negotiable promissory note to pay a percentage of profits in lieu of interest is barred by the statute of limitations where full payment of the principal of the note occurred more than 6 years prior to the commencement of this action to recover unpaid profits. The trial court held plaintiffs' claim barred, and we affirm.\\nOn January 2,1953, defendant, Jack Rozman, and his partner, now deceased, executed a promissory note, individually and as copartners in Gopher Bag Company, in the amount of $5,144 payable on demand to plaintiffs, Sherman L. Troup and Arnold Dobrin. In addition to payment of principal and in lieu of interest, the note called for payment of 20 percent of the net profits of the business operated under the trade name of \\\"Gopher Bag Company\\\" for \\\"so long as any part of\\\" the principal debt \\\"or any share of the profits to which the payees [were] entitled remain [ed] unpaid.\\\" Although both obligations to pay the principal and to pay a percentage of the net profits were payable on demand, the makers made periodic payments in varying amounts on the principal commencing on August 15, 1956. After five such payments during 1956 and 1957, a final payment paid the principal debt in full on July 15, 1958. No payments of a percentage of the profits were ever made, and up until a few months before the commencement of this action on April 29, 1966, plaintiffs made no demand for payment of profits. This action seeks recovery of over $6,000 claimed owing as plaintiffs' share of the net profits from April 30, 1960, to February 28, 1964, when the partnership went out of business.\\nThe statute of limitations runs from the date the cause of action accrues. Minn. St. 541.01. A cause of action against the maker of a demand note accrues on the date of the note unless a contrary intention is shown on the face of the note, In re Estate of Nygren, 188 Minn. 612, 248 N. W. 215, and an action on the note is barred unless brought within 6 years of its date. Minn. St. 541.05. However, voluntary part payment of a subsisting debt sets the statute of limitations, running afresh as to the balance. Bernloehr v. Fredrickson, 213 Minn. 505, 7 N. W. (2d) 328.\\nSince more than 6 years elapsed between July 15, 1958, the date of the last payment on the note, and April 29, 1966, the date of the commencement of this action, a claim for the principal debt, if plaintiffs had any, would clearly be barred \\u2014 as plaintiffs concede. Plaintiffs also concede that although profits were earned and not paid for the fiscal years commencing February 28, 1958, and ending February 28, 1964, all claims for profits accruing more than 6 years prior to the commencement of this action are also barred.\\nThe question thus narrows to whether the statutory bar to any action to recover the principal debt also bars claims to a percentage of profits earned and unpaid from April 80, 1960, to February 28, 1964.\\nPlaintiffs argue that the promise to pay the principal and the promise to pay a percentage of the profits were intended by the parties to be separate and distinct promises, and that the latter obligation continued after the principal indebtedness was paid and so long in the future as the business of the makers continued to operate and earn a net profit. We believe that such a construction of the note is strained and unreasonable, for it disregards the language which made a percentage of the profits a substitute for the payment of any interest. Except for plaintiffs' argument, based solely upon their interpretation of the language of the note which was drafted by them, there is no evidence which would support a finding that the parties intended separate and distinct obligations in the sense that the obligation to pay profits continued to accrue for as long as the business of the makers continued to operate without regard to the length of time or to when the principal was paid. In our opinion, because the provision concerning profits was in lieu of interest, a more reasonable construction is that the parties intended the obligation to pay profits to accrue only during the period that any part of the principal debt remained unpaid. Indeed, the utter failure to specify a time or period for the payment of profits could support an argument by the makers that, absent any demand, the obligation to pay profits did not accrue until the day upon which the principal debt was paid. Like an ordinary provision for the payment of interest on the principal, and perhaps even more than such a provision, the obligation to pay profits was incidental to the obligation to pay the principal and was intended to serve as an inducement to accelerate the payment of the principal.\\nAccordingly, we hold that the trial court correctly concluded that the running of the statute of limitations against any claim for principal barred plaintiffs' suit for profits. Cf. Yeadon v. Farmers' Elevator, 224 Iowa 829, 277 N. W. 709, 115 A. L. R. 725.\\nAffirmed.\\n\\\"$5,144.00 January 2,1953\\n\\\"For Valuable Consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned, Jack Rozman and Leo Ketroser, individually and as co-partners doing business as Gopher Bag Company, hereby promise to pay on demand to the order of Sherman L. Troup and Arnold Dobrin at 1822 Plymouth Avenue, North, Minneapolis, Minnesota, the sum of $5,144.00.\\n\\\"The undersigned further agree to use the money advanced by the payee, which advance is evidenced by this promissory note, in the business conducted by the undersigned as partners doing business as Gopher Bag Company, and that in lieu of interest on the aforesaid indebtedness but in addition to payment of the principal sum aforesaid, they shall pay to the order of said Sherman L. Troup and Arnold Dobrin twenty per cent (20%) of the net profits of the business operated by them as partners under the trade name Gopher Bag Company for so' long as any part of said indebtedness of $5,144.00 or any share of the profits to which payees are entitled hereunder remains unpaid. Net profits shall be computed after deducting salaries of $100.00 per week to each of said Jack Rozman and Leo Ketroser. Said share of profits shall also be payable on demand for the period from the date hereof to the date of such demand.\\n\\\"Nothing herein contained shall render the payees, or any holder hereof, partners of the undersigned, not constitute the undersigned agents of the payees, or any holder hereof, for any purpose. This note shall be construed to conform with the provisions of M. S. A. Section 334.06.\\n\\\"This promissory note is secured by a chattel mortgage of even date herewith covering certain fixtures and equipment located at the premises of Gopher Bag Company at 114 North Second Street, Minneapolis, Minnesota.\\n\\\"/s/ Jack Rozman\\nJackRozman\\n/s/ Leo Ketroser\\nLeo Ketroser\\nindividually and as co-partners\\nd. b. a. Gopher Bag Company.\\\"\"}"
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diff --git a/minn/314118.json b/minn/314118.json
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--- /dev/null
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+"{\"id\": \"314118\", \"name\": \"LLOYD ENGELSMA, d.b.a. McCARRON HILLS SHOPPING CENTER, v. SUPERIOR PRODUCTS MANUFACTURING COMPANY\", \"name_abbreviation\": \"Engelsma v. Superior Products Manufacturing Co.\", \"decision_date\": \"1973-11-30\", \"docket_number\": \"No. 43810\", \"first_page\": \"77\", \"last_page\": \"81\", \"citations\": \"298 Minn. 77\", \"volume\": \"298\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:43:22.284760+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Knutson, C. J., and Otis, Rogosheske, and Kelly, JJ.\", \"parties\": \"LLOYD ENGELSMA, d.b.a. McCARRON HILLS SHOPPING CENTER, v. SUPERIOR PRODUCTS MANUFACTURING COMPANY.\", \"head_matter\": \"LLOYD ENGELSMA, d.b.a. McCARRON HILLS SHOPPING CENTER, v. SUPERIOR PRODUCTS MANUFACTURING COMPANY.\\n212 N. W. 2d 884.\\nNovember 30, 1973\\nNo. 43810.\\nGainsley, Squier & Gainsley and Phillip Gainsley, for appellant.\\nFredrikson, Byron, Colbom, Bisbee, Hansen & Perlman and James L. Baillie, for respondent.\\nHeard before Knutson, C. J., and Otis, Rogosheske, and Kelly, JJ.\", \"word_count\": \"1044\", \"char_count\": \"6508\", \"text\": \"Per Curiam.\\nThe issue raised on this appeal is whether a landlord's so-called floating lien or a contract vendor's conditional sales contract has priority with respect to the property of a bankrupt tenant. The trial court held that the vendor's purchase money security interest prevails and we affirm.\\nThe case was presented on a stipulation of facts without taking testimony. On August 19, 1965, plaintiff Lloyd Engelsma's predecessor in interest as landlord executed a lease with Carl Hillesland and Irene Hillesland as tenants of a restaurant known as Tony's Night Club, located in McCarron Hills Shopping Center. The relevant section of that lease is as follows:\\n\\\"Article XVI.\\nRemedies \\u2021 \\u2021 \\u2021 \\u2021\\n\\\"Section 5. Landlord is hereby given a first lien upon all property of Tenant which shall come in or be placed upon the leased premises and whether acquired by Tenant before or after the date hereof to secure the payment of rent and the performance of each and every other covenant herein contained to be performed by Tenant; upon such default, and failure to cure as aforesaid, Landlord, without notice or demand, may take possession of and sell such property without legal process of any kind, at public or private sale after one publication of a notice thereof in a daily newspaper published in the county where the leased premises are situated, not less than ten (10) days before such sale; the proceeds of such sale shall be applied first to the payment of expenses thereof, second to the discharge of the rent or other liability hereunder unpaid, and the balance, if any, to be held for the account of Tenant.\\\"\\nOn July 1, 1966, the Uniform Commercial Code went into effect in Minnesota. On July 18, 1966, defendant, Superior Products Manufacturing Company (Superior), entered a conditional sales contract with the Hilleslands for the sale of bar equipment. That contract, together with a financing statement, was recorded with the register of deeds under the name of \\\"Tony's Night Club\\\" on August 22,1966. On July 25,1969, Superior filed a copy of its conditional sales contract and a financing statement with the secretary of state under the name of \\\"Tony's Night Club.\\\" Plaintiff's lease was filed with the register of deeds on December 26, 1969. Superior repossessed property covered by its conditional sales contract on August 3, 1970, and realized $4,800 from the sale of that property. On December 14,1970, plaintiff brought this action against Superior for conversion. The trial court found in favor of Superior.\\nPlaintiff's principal argument focuses on the inadequacy of notice afforded by Superior's filing its contract in the name of \\\"Tony's Night Club\\\" rather than in the name of Mr. and Mrs. Hillesland. For reasons set forth in the trial court's memorandum, the court did not find it necessary to pass on this issue, nor do we. We find the trial court's memorandum persuasive and adopt its reasoning.\\nUnder Minn. St. 336.10 \\u2014 102(2), transactions entered before July 1, 1966, are governed by the preCode provisions of the law. The prior statute, therefore, establishes plaintiff's rights under his lease. Under Minn. St. 1961, \\u00a7 511.01, plaintiff's security interest as mortgagee was valid as against third parties without notice only if the mortgage was filed before such third party's interest attached. Since plaintiff's lease was not recorded when Superior entered its initial sales contract with the Hilleslands, Superior's contract had priority over plaintiff's mortgage.\\nIf priority were to be determined by the Uniform Commercial Code, the same result would be required. Superior's contract is a purchase money security interest as defined by \\u00a7 836.9\\u2014 107(a). Because Superior failed to attach a financing statement as required by \\u00a7 336.9 \\u2014 302(1), in that the statement did not include the signatures of the parties specified by \\u00a7 336.9\\u2014 402(1), its contract constituted an unperfected security interest.\\nAlthough plaintiff's lien under his lease was valid under \\u00a7 336.9 \\u2014 204(3), his failure to file a financing statement with the secretary of state as required by \\u00a7 336.9 \\u2014 401(l)(c) prevented plaintiff from perfecting his security interest.\\nWhere neither party has perfected his security interest, \\u00a7 336.9 \\u2014 312(5) determines priority between conflicting interests in the same collateral. The trial court held that paragraph (c) of subsection (5), which gives priority \\\"[i]n the order of attachment,\\\" applied. Superior argues that paragraph (b), which provides priority \\\"[i]n the order of perfection,\\\" should apply. Having repossessed by replevin proceedings and having sold the property in question, Superior has perfected its security interest by the terms of \\u00a7 336.9 \\u2014 305. Although the court was of the opinion that Superior's security interest attached when the conditional sales contract was entered, and plaintiff's interest did not attach until the property was actually on the premises, under either theory Superior was entitled to priority. The judgment of the trial court is accordingly affirmed.\\nAffirmed.\\nMr. Justice Yetka and Mr. Justice Scott, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.\\nMinn. St. 1961, \\u00a7 511.01, provides as follows: \\\"Every mortgage of personal property shall be void, as against the creditors of the mortgagor and subsequent purchasers and encumbrancers of the property in good faith, unless it appears that such mortgage was executed in good faith, and not for the purpose of hindering, delaying, or defrauding any creditor of the mortgagor, and unless, in addition thereto, the giving of such mortgage is accompanied by immediate delivery, and followed by actual and continued change of possession of the mortgaged property, or, in lieu thereof, the mortgage is filed as hereinafter provided.\\\"\\nWe are not to be understood as construing Minn. St. 336.9 \\u2014 305 of the Uniform Commercial Code to permit a secured party to perfect his security interest by taking possession of his collateral wrongfully. The taking obviously must be by lawful means, as it was in the instant case.\"}"
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diff --git a/minn/317277.json b/minn/317277.json
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--- /dev/null
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+"{\"id\": \"317277\", \"name\": \"STATE v. GERALD COLLINS\", \"name_abbreviation\": \"State v. Collins\", \"decision_date\": \"1964-12-24\", \"docket_number\": \"Nos. 39,516, 39,517, 39,555\", \"first_page\": \"581\", \"last_page\": \"584\", \"citations\": \"270 Minn. 581\", \"volume\": \"270\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:00:11.321115+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. GERALD COLLINS.\", \"head_matter\": \"STATE v. GERALD COLLINS.\\n132 N. W. (2d) 802.\\nDecember 24, 1964\\nNos. 39,516, 39,517, 39,555.\\nJoseph Robbie, for appellant.\\nWalter F. Mondale, Attorney General, George M. Scott, County Attorney, and Gerard W. Snell, Assistant County Attorney, for respondent.\", \"word_count\": \"1302\", \"char_count\": \"7552\", \"text\": \"Per Curiam.\\nDefendant is presently confined in the State Prison at Stillwater pending an appeal from an order denying his motion for a new trial made after he was convicted of the crime of aggravated robbery which occurred on December 8, 1963. The appeal in that case (No. 39691) is not affected by the disposition of the matter now before us.\\nAlthough defendant has been charged with being a participant in a supermarket robbery which occurred March 1, 1963, there has been no trial for this offense. In State v. Collins, 267 Minn. 550, 125 N. W. (2d) 587, defendant's appeal from a bind-over order made at the conclusion of his preliminary hearing was dismissed as nonappealable. He then moved in the district court for an order suppressing certain evidence obtained as the product of a search of an automobile, owned by his mother but in his possession with her permission when he was taken into custody near the scene of the March 1 robbery. In addition, he twice petitioned the District Court of Hennepin County for habeas corpus, once on the theory that but for the seized evidence the state has no basis for involving him in the supermarket robbery and again on the theory that an indictment returned after appeals were taken to this court was a nullity. This latter theory also motivated a motion to quash the indictment.\\nFrom the printed record it appears that there are three appeals pending in this court. One is from an order denying a motion to suppress evidence (No. 39516). Another is from an order denying a motion to dismiss and discharging a writ of habeas corpus (No. 39517). The third is from an order denying a motion to dismiss and quash an indictment and discharging a writ of habeas corpus (No. 39555). We construe a motion filed by the state on July 29, 1964, as being for dismissal of all three of the appeals or, in the alternative, for dismissal of such of the appeals as do not involve habeas corpus and a disposition of the orders discharging the writs. Defendant, in responding to this motion, gives similar interpretation to the position of the state.\\n1. Except for the orders discharging the writs of habeas corpus, the orders from which appeals have been taken are nonappealable. See, Minn. St. 632.01 and cases cited in State v. Collins, supra.\\n2. The orders of the district court discharging defendant's application for a writ of habeas corpus are appealable. Minn. St. 589.29. We are able to dispose of these matters without the necessity of oral argument.\\n2a. The record before the district court in connection with the habeas corpus proceedings includes testimony taken from officers of the Minneapolis Police Department in proceedings before the municipal court in the city of Minneapolis conducted on and after March 21, 1963, from which the following facts appear:\\nAt about 11:15 a. m., on March 1, 1963, defendant Collins, accompanied by one Gittelson, was halted at Lyndale Avenue near 24th Street by Officers Clifford Revak and Jerry Torrey of the Minneapolis Police Department, who had been notified of the robbery by police radio. The officers stopped the two men in part because their appearance, and that of the Chevrolet automobile in which they were riding, conformed to a limited degree to the broadcast description of the suspects; in part because the place where and the time when they were observed was proximate to the place and time of the robbery; and in part because of the manner in which they reacted to the appearance of the police car before being stopped.\\nPreliminary interrogation of the suspects produced answers which were evasive and inconsistent. The two were taken to the nearby supermarket where the robbery had occurred and Gittelson was positively identified by the store manager as being one of the robbers. The record is vague as to whether any identification was made of Collins at this time, but we assume that positive identification was not secured. In any event, both Collins and Gittelson were then taken to police headquarters where they were booked at about 12:15 p.m.\\nAt the place where the Chevrolet was stopped, Collins claimed that he had no key for the trunk. The Chevrolet vehicle remained at Lyndale Avenue and 24th Street until approximately 1 p.m., at which time the trank was opened by a Minneapolis police officer using a key made at his request by a locksmith. At the time the trunk was opened Collins was incarcerated. He did not affirmatively consent to the search of the trunk, although the police officers were seeking to gain entry to it from about the time that the car was first stopped until access was secured about 2 hours later.\\nThe Chevrolet automobile in question was owned by Mrs. Judith Collins, the mother of the defendant. She authorized the Minneapolis Police Department to open the trank, but the record is not clear as to whether the authorization was given just before or just after entry was obtained. In either event, it is clear that the authorization had not been communicated to the particular police officer who opened the trank before he did so.\\nThe evidence located in the trank consisted of the loot which had been taken from the supermarket at the time of the robbery and a weapon.\\nUnder the circumstances, Collins is not being deprived of any constitutional right by being required to stand trial. We, therefore, affirm the orders of the district court discharging the writs of habeas corpus. For recent Minnesota cases involving evidence secured as the result of a search of an automobile, see State v. Harris, 265 Minn. 260, 121 N. W. (2d) 327, decided April 19, 1963, and State ex rel. Branchaud v. Hedman, 269 Minn. 375, 130 N. W. (2d) 628, decided September 25, 1964. Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. ed. (2d) 777, is not controlling because there the owner of the vehicle did not consent to entry of the trank and because here the attempt to search, temporarily delayed only because of the difficulty of getting a key, was coincident with the arrest.\\nOur affirmance of the orders of the district court discharging the petitions for habeas corpus, in so far as based on the claim of illegal search and seizure, is without prejudice to any claims which may be made by the defendant when and if the disputed evidence is offered against him at trial and is without any attempt to forecast what the ultimate determination of the problem will be should the matter eventually come to this court on an appeal taken pursuant to \\u00a7 632.01.\\n2b. Defendant also has asserted that his present confinement is without justification because he was indicted by the Hennepin County grand jury while an appeal was pending in this court. In our judgment this claim is not well founded.\\n3. The appeals in the proceedings based on the March 1, 1963, robbery are dismissed. The orders of the district court discharging the writs of habeas corpus are affirmed. The case is remanded to the District Court of Hennepin County for further proceedings.\\nAppeals dismissed and orders discharging writs of habeas corpus affirmed.\\nSee, People v. Friedman, 205 N. Y. 161, 98 N. E. 471, 45 L. R. A. (N.S.) 55; State v. Uglum, 175 Minn. 607, 222 N. W. 280. Compare State v. Barnes, 249 Minn. 301, 81 N. W. (2d) 864, and Euziere v. United States (10 Cir.) 266 F. (2d) 88.\"}"
\ No newline at end of file
diff --git a/minn/329418.json b/minn/329418.json
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index 0000000000000000000000000000000000000000..e7fff5905ddfc2908ed1f6eebb8b5003db5bd9ce
--- /dev/null
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+"{\"id\": \"329418\", \"name\": \"IN RE ESTATE OF EDWARD A. MEYER. STATE, DEPARTMENT OF PUBLIC WELFARE, v. BETTY ZUTZ, ADMINISTRATRIX OF ESTATE OF EDWARD A. MEYER\", \"name_abbreviation\": \"State, Department of Public Welfare v. Zutz\", \"decision_date\": \"1971-04-09\", \"docket_number\": \"No. 42440\", \"first_page\": \"83\", \"last_page\": \"88\", \"citations\": \"290 Minn. 83\", \"volume\": \"290\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:49:52.140733+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Knutson, C. J., and Murphy, Peterson, Kelly, and Odden, JJ.\", \"parties\": \"IN RE ESTATE OF EDWARD A. MEYER. STATE, DEPARTMENT OF PUBLIC WELFARE, v. BETTY ZUTZ, ADMINISTRATRIX OF ESTATE OF EDWARD A. MEYER.\", \"head_matter\": \"IN RE ESTATE OF EDWARD A. MEYER. STATE, DEPARTMENT OF PUBLIC WELFARE, v. BETTY ZUTZ, ADMINISTRATRIX OF ESTATE OF EDWARD A. MEYER.\\n186 N. W. (2d) 535.\\nApril 9, 1971\\nNo. 42440.\\nWarren Spannaus, Attorney General, and Jerome D. Truhn and Craig R. Anderson, Assistant Attorneys General, for appellant.\\nMyhre & Huddleson, Charles R. Huddleson, and Larry G. Jorgenson, for respondent.\\nHeard before Knutson, C. J., and Murphy, Peterson, Kelly, and Odden, JJ.\", \"word_count\": \"1521\", \"char_count\": \"8855\", \"text\": \"Donald c. Odden, Justice.\\nThis is an appeal from an order of the District Court of Marshall County dismissing the state's appeal from an order of the probate court denying a petition that that court receive, hear, and allow, after time limited, a claim against the estate of Edward A. Meyer, deceased.\\nEdward A. Meyer died in August 1968 while a patient at the Fergus Falls State Hospital. A petition for the administration of his estate was filed in the probate court of Marshall County, and that court issued an order pursuant to Minn. St. 525.41 setting January 3, 1969, as the deadline for filing claims against said estate.\\nOn March 25, 1969, well after the January 3 deadline, the Department of Public Welfare petitioned the probate court to receive, hear, and allow, after time limited, its claim for hospital care and treatment given decedent during his lifetime at the Fergus Falls State Hospital. The state's claim is authorized under Minn. St. 246.53, and the petition to receive, hear, and allow a claim after time limited is permitted under \\u00a7 525.411, subd. 1.\\nThe probate court issued an order setting April 9, 1969, as the time of hearing on the petition. Copies were mailed to the petitioner and to the attorney for the administratrix of the estate. At the request of the administratrix, the time for hearing the claim was rescheduled to April 30. Copies of this order were mailed to the same parties.\\nOn April 30, 1969, at the scheduled time, Betty Zutz, the administratrix ; her attorney; and Paul C. Meyer, one of the heirs, appeared to object to the claim and the allowance of the state's petition. There was no appearance by, or on behalf of, the State of Minnesota in support of the petition and claim. The probate court, without supporting evidence from the state, considered the claim and determined that the state had notice of the death of Edward A. Meyer; that the reasons for failure to file its claim on time, set forth in the state's petition, did not constitute sufficient cause to excuse that failure; and that the petition must therefore be denied.\\nThe state then petitioned the court to reopen the matter, claiming it had never received notice of the rescheduled April 30 hearing. After a final hearing on July 9, 1969, the probate judge determined that the evidence on the part of the state failed to establish sufficient cause for its failure to file its claim within the time allowed and ordered that such claim be forever barred pursuant to \\u00a7 525.411.\\nOn July 24, 1969, the state appealed from that order to the district court, serving notice of appeal only upon Betty Zutz, administratrix of the estate, and her husband. On October 15, 1969, Betty Zutz personally, as administratrix of Meyer's estate, and in behalf of his other heirs moved the district court to dismiss the appeal on the grounds that the district court lacked jurisdiction in that the state had failed to make proper service of notice of said appeal as provided for under \\u00a7 525.712. In re Estate of Dean, 180 Minn. 195, 230 N. W. 584.\\nThe district court heard the matter and on January 7, 1970, issued its order dismissing the state's appeal.\\nThe sole question to be resolved here is whether Minn. St. 525.712 requires that an appellant in an appeal from probate to district court serve notice of appeal on all heirs of the estate, regardless of whether they took an active part in the probate court proceedings.\\nMinn. St. 525.712 provides in part:\\n\\\" t0 render the appeal effective (1), the appellant shall serve a notice of appeal, specifying the order, judgment, or decree appealed from upon the adverse party who appeared or upon his attorney, personally, and upon each adverse party of record who did not appear by mail at his last address as the same appears in the court's file of the case and upon the probate judge or clerk, personally, for the adverse party who did not appear and whose address is unknown and shall file in the probate court such notice, together with proof of service thereof.\\\"\\nAlthough the record is unclear as to whether Edward Meyer died testate or intestate, both parties agree that Betty Zutz, Paul Meyer, Ellie Lucian, and Margaret Meyer are the sole heirs to the estate and that their names are listed as such in the probate court file. Although the record is also unclear as to who appeared at the July 9, 1969, hearing in probate court, both parties agree that Betty Zutz, as administratrix and individually, and Paul Meyer did appear to contest the state's claim at the April 30, 1969, hearing. Betty Zutz and her husband were served personally with notice of appeal, but the remaining three heirs were neither served personally nor by substituted service. Thus, if the heirs not served are \\\"adverse parties\\\" within the meaning of the statute, failure to serve them would deny the district court jurisdiction. In re Estate of Dean, supra.\\nAppellant contends that the three remaining heirs are not adverse parties within the meaning of \\u00a7 525.712 and therefore need not be served because they did not appear in the probate proceedings. It cites, in support of its contention, In re Will of Brown, 32 Minn. 443, 21 N. W. 474; Rong v. Haller, 106 Minn. 454, 119 N. W. 405; In re Estate of Nelson, 195 Minn. 144, 262 N. W. 145.\\nWhen these cases were decided, the pertinent appeal statutes did not require notice of appeal to be served upon adverse parties who did not appear in the lower court to contest. The legislature, however, by amending \\u00a7 525.712 in 1953 added an additional requirement with which an appellant must comply to perfect an appeal from probate court. L. 1953, c. 476. Unlike the procedure under the earlier statutes, the appellant must now serve notice of appeal \\\"upon each adverse party of record who does not appear by mail at his last address as the same appears in the court's file of the case\\\" if that address is known. Appellant contends that the 1953 statutory change in no way modified the meaning of \\\"adverse party\\\" as construed in the cases cited above. However, we feel that to give full effect to what was the obvious intent of the legislative change we must now find that \\\"adverse party\\\" within the context of this statute means \\\"the party whose interest in relation to the subject of the appeal is in direct conflict with a reversal or modification of the order or judgment appealed from.\\\" IB Dunnell, Dig. (3 ed.) \\u00a7 320. Stated another way, the \\\"[t]est usually applied in determining whether one is an 'adverse party' who must be given notice of appeal is whether he will be prejudiced or adversely affected by reversal or modification of judgment appealed from.\\\" 2A Wd. & Phr. (Perm, ed.) Cumulative Annual Pocket Part, p. 17. Such an interpretation of \\\"adverse party\\\" under \\u00a7 525.712 seems to be consistent with comparable appeal statutes and consistent with the intent of the legislature to protect the rights of parties adverse to those of the claimant by simply requiring service of the notice of appeal in probate matters. No undue hardship is imposed on claimants by this requirement nor does it unduly restrict appeals.\\nThe state's claim against the estate was substantial and, if allowed, would have reduced the distributive share to each of the four heirs by one fourth of that sum. This establishes that the heirs would be prejudiced or adversely affected by a reversal or modification of the probate court's order. The fact that they joined with the administratrix in her motion to dismiss appellant's appeal to the district court confirms that their interests are in direct conflict with a reversal or modification of the order. We therefore conclude that, applying the above definition of \\\"adverse party\\\" to the fact situation here presented, Paul Meyer, Ellie Lucian, and Margaret Meyer are adverse parties within the meaning of Minn. St. 525.712. They are heirs of the decedent and were so listed, with their addresses, in the petition for administration in the probate court. It would apparently have been a simple matter for appellant to serve them by mail with notice of appeal to perfect its cause. Since notice of appeal is jurisdictional, the failure to serve the same denied the district court jurisdiction. In re Estate of Dean, swpra; IB Dunnell, Dig. (3 ed.) \\u00a7 318b.\\nAffirmed.\\nActing as Justice of the Supreme Court by appointment pursuant to Minn. Const. art. 6, \\u00a7 2, and Minn. St. 2.724, subd. 2.\"}"
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+"{\"id\": \"351972\", \"name\": \"LAURA JOHNSON AND ANOTHER v. R. E. TAPLEY, INC., AND ANOTHER\", \"name_abbreviation\": \"Johnson v. R. E. Tapley, Inc.\", \"decision_date\": \"1965-07-23\", \"docket_number\": \"No. 39,654\", \"first_page\": \"19\", \"last_page\": \"24\", \"citations\": \"272 Minn. 19\", \"volume\": \"272\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:09:03.354374+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LAURA JOHNSON AND ANOTHER v. R. E. TAPLEY, INC., AND ANOTHER.\", \"head_matter\": \"LAURA JOHNSON AND ANOTHER v. R. E. TAPLEY, INC., AND ANOTHER.\\n136 N. W. (2d) 538.\\nJuly 23, 1965\\nNo. 39,654.\\nDonohue & Donohue, for appellants.\\nField, Arvesen, Donoho & Lundeen and A. C. Carmichael, for respondents.\", \"word_count\": \"1495\", \"char_count\": \"8589\", \"text\": \"Otis, Justice.\\nPlaintiffs have recovered damages against defendants for injuries sustained by Mrs. Johnson when she fell while leaving defendants' store in the village of Wadena. Defendants appeal from the judgment.\\nOn June 16, 1962, shortly before noon, Mrs. Johnson entered defendants' store and bought one or two small items in the period of approximately one-half hour. She departed by the same door she had used to enter, carrying a handbag and one package containing her purchases. As she reached the sidewalk, she missed a 514 -inch step and fell from a cement slab constructed in such a manner that its surface extended 2 feet from one of the double doors and 3 feet from the other, tapering in a V shape from the doorway in either direction to the end of the display windows facing the sidewalk. The entrance is depicted in the accompanying cut.\\nThere are two issues for consideration, first, whether the evidence sustains plaintiffs' theory of where the accident occurred; and second, whether the display windows at the entrance constituted a distraction which excused Mrs. Johnson's failure to see the step from which she fell.\\nThe theory advanced by plaintiffs and adopted by the trial court would permit the jury to find Mrs. Johnson was not injured while departing directly through the door to the sidewalk, but that she walked along the elevated slab of cement, which tapered to the corner of the window, while distracted by the display facing the street. In denying the defendants' motion for a directed verdict, the trial court observed that the \\\"illegitimate construction existing in front of the doors, plus the display windows placed there by defendants\\\" combined to create a jury question as to defendants' negligence. In a postverdict memorandum, the court stated that the question of liability hinged on the concurrent effect of three factors: The step from the public sidewalk; the unusual tapering design of the concrete platform; and the distraction of the window displays.\\nWe have scrutinized the record and hold that the evidence does not support a finding that Mrs. Johnson fell from the tapered portion of the elevated walkway. Testimony on the part of one of the defendants that Mrs. Johnson was found on the sidewalk directly in front of the door, corroborated by her own statements, compels this conclusion. At various times during the trial, plaintiff testified as follows:\\n\\\"A. Well, I just walked out and was looking at the business display in the window like, as I just left right straight out.\\n\\\"Q. I see. And did you continue to walk out toward the sidewalk from the door of the store?\\n\\\"A. Yes.\\n\\\"Q. What was the next thing that happened?\\n\\\"A. I fell.\\n\\\"Q. And when you left did you come out the same door?\\n\\\"A. Well, I thought I did.\\n\\\"Q. Was the door open or closed as you approached it from the inside?\\n\\\"A. I thought it was open.\\n\\\"Q. And you walked directly toward the sidewalk?\\n\\\"A. I thought I did.\\n\\\"Q. Yes. So that would be you walked right straight out from the door?\\n\\\"A. I was looking at the display window so I\\u2014\\n\\\"Q. I understand, but my question was, isn't it a fact that you walked straight out the door towards the walk?\\n\\\"A. Well, I couldn't say for certain.\\n\\\"Q. Do you have any recollection, Mrs. Johnson, of doing anything other than walking straight out from the door towards the walk?\\n\\\"A. I was looking at the display windows. I don't know whether I walk directly \\u2014 the other door looked just level \\u2014 right straight out.\\n\\\"Q. You don't know just exactly what you did, is that it?\\n\\\"A. Well, I wouldn't know.\\n\\u2021 # \\u2021 # #\\n\\\"Q. And you don't know on what part of the approach that you were walking?\\n\\\"A. I was walking close to the window.\\\"\\nThe fact that Mrs. Johnson testified she was walking \\\"close to the window\\\" as she left the store is not inconsistent with her testimony that she walked \\\"right straight out,\\\" since the display windows were immediately adjacent to and on either side of the doorway. There is no evidence whatever that she fell while walking parallel to the windows which faced the street. The conclusion is inescapable that she did indeed walk straight out the front door without seeing the step. We therefore hold as a matter of law that plaintiffs have failed to prove by a fair preponderance of evidence that the tapering design of the entranceway caused her injury.\\nThe remaining issue is whether, in the absence of faulty design which proximately caused the accident, there was evidence from which the jury could otherwise find defendants liable.\\nIt is undisputed that Mrs. Johnson left by the same route she entered. The elevated slab was painted maroon or red and contrasted sharply with the color of the public sidewalk. When Mrs. Johnson departed, she said the door was open and that she looked straight ahead toward the sidewalk. It was about the hour of noon, and the day was clear and bright. There is no question but that she would have seen the step had she looked. The issue narrows then to whether or not the display window constituted a distraction which relieved Mrs. Johnson of fault.\\nAbsent other factors, such as poor illumination or noncontrasting colors, ordinary changes in elevation do not excuse the failure to see what is in plain sight. Two cases dealing with the problem deserve comment. In Lincoln v. Cambridge-Radisson Co. 235 Minn. 20, 23, 49 N. W. (2d) 1, 3, the plaintiff was injured when she fell from a step adjacent to a cashier's stand in a coffeeshop at a moment when she extended her hand to pay the check. In sustaining a verdict against the property owner, we held that a jury could find plaintiff had been distracted by her concentration on the cashier; that a warning sign was not visible as she approached; and her view of the steps was obstructed by an abutment in the wall and by plants bordering the passageway. The Radisson case may be distinguished from the case at hand by the proximity of the step to the place where plaintiff was expected to transact her business and by the obscured visibility of the change in elevation.\\nMore nearly in point is the case of Anderson v. Sears, Roebuck & Co. 223 Minn. 1, 26 N. W. (2d) 355. Anderson was a business invitee who was injured in a fall from a 6-inch step in defendant's automobile accessory department. There, as here, the change in floor levels was visible and was indicated by a discernible change in color pattern which gave plaintiff no trouble when he first entered the area. While there was no merchandise of a distracting character to absorb plaintiff's attention, there was an automobile standing on the service floor, a merchandise truck, and a trash box on wheels in plaintiff's line of vision as he approached the step. What we there said has equal application to the instant case. Defendants were not obliged to anticipate that the mere fact Mrs. Johnson had to pass display windows as she left defendants' store would \\\"excite anything more than an indifferent interest on the part of plaintiff.\\\" 223 Minn. 6, 26 N. W. (2d) 358. In Anderson we quoted with approval the rule that the presence of counters and display platforms does not in itself give rise to liability on the part of a merchant for accidents which result from carelessness and inattention to surroundings.\\nWhere, as here, plaintiff enters and leaves by the same doorway and a change in elevation of 5Vz inches is in plain sight and conspicuously marked by distinguishing colors under natural illumination on a clear day at the hour of noon, and plaintiff is neither burdened by packages nor preoccupied with opening or shutting the door, her inattention to where she is proceeding cannot be excused by such a relatively trivial distraction as the existence of display windows which she passes as she leaves, more particularly when she has already finished her shopping on the premises from which she is departing. It was therefore error to deny the defendants' motion for a directed verdict.\\nReversed and judgment ordered for defendants.\\nOber v. The Golden Rule, 146 Minn. 347, 349, 178 N. W. 586; Johnson v. Brand Stores, Inc. 241 Minn. 388, 393, 63 N. W. (2d) 370, 373; Dukek v. Farwell, Ozmun, Kirk & Co. 248 Minn. 374, 379, 80 N. W. (2d) 53, 56.\\nFlynn v. Arcade Investment Co. 253 Minn. 107, 110, 91 N. W. (2d) 113, 115.\\nCates v. Evans (Mo. App.) 142 S. W. (2d) 654; see, Smith v. Epstein Realty Co. 133 Neb. 842, 277 N. W. 427.\"}"
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+"{\"id\": \"360255\", \"name\": \"AMERICAN TOBACCO COMPANY v. MORRIS CHALFEN\", \"name_abbreviation\": \"American Tobacco Co. v. Chalfen\", \"decision_date\": \"1961-04-21\", \"docket_number\": \"No. 38,092\", \"first_page\": \"79\", \"last_page\": \"83\", \"citations\": \"260 Minn. 79\", \"volume\": \"260\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:37:54.001435+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Otis, not having been a member of the court at the time of argument and submission, took no part in the consideration or decision of this case.\", \"parties\": \"AMERICAN TOBACCO COMPANY v. MORRIS CHALFEN.\", \"head_matter\": \"AMERICAN TOBACCO COMPANY v. MORRIS CHALFEN.\\n108 N. W. (2d) 702.\\nApril 21, 1961\\nNo. 38,092.\\nJoe A. Walters, L. T. Merrigan, and O\\u2019Connor, Green, Thomas & Walters, for appellant.\\nHenderson & Halpern and Rubenstein & Weisberg, for respondent.\", \"word_count\": \"1328\", \"char_count\": \"7896\", \"text\": \"Dell, Chief Justice.\\nThis is an action to recover on a contract of guaranty. Defendant appeals from a summary judgment in favor of plaintiff in the sum of $20,000, together with interest, costs, and disbursements.\\nFor some time prior to the execution of the guaranty here involved, plaintiff had been supplying merchandise daily to the Nathanson Cigar & Tobacco Company, hereafter referred to as Nathanson, a wholesale distributor of tobacco products. On February 1, 1958, defendant executed a guaranty on behalf of Nathanson and in favor of plaintiff providing, in part, as follows:\\n\\\"Now, Therefore, in consideration of the sum of One Dollar, and other valuable consideration in hand paid by the Creditor to the Guarantor, and in consideration of the Creditor extending credit to the Debtor, Guarantor agrees as follows, to-wit:\\n\\\"(1) That the Guarantor will pay to the Creditor such sum or sums of money as shall from time to time, during the continuance of this Guaranty, become due to the Creditor from the Debtor, for goods, wares and merchandise sold, furnished and delivered by the Creditor to the Debtor on ten days worth of credit, regardless of the amount which has not been paid by the Debtor when due; not to exceed $20,000.00.\\n\\\"That the liability of the Guarantor hereunder shall not, at any time, exceed ten days worth of credit of merchandise sold by the Creditor to the Debtor, regardless of amount, and shall be subject to this Guaranty and the whole of said sum or sums.\\n\\\"(2) This Guaranty hereby given shall be a continuing Guaranty, but the Guarantor shall not, at any time, be responsible or liable to pay to the Creditor more than the amount of ten days worth of credit and/or the balance which may, from time to time, be due to the Creditor from the Debtor for said ten days worth of credit; .\\n$\\n\\\"That the liability of the Guarantor shall not be affected by any time or other indulgence given to the Debtor or by the acceptance by the Creditor of any negotiable or other securities from the Debtor or others in respect of any sum for the time being due and owing from the Debtor to the Creditor.\\n\\u2021 #\\n\\\"That this Guaranty may be terminated at any time by the Guarantor by a written notice in writing furnished to the Creditor, by first-class mail, to that effect, and payment to the Creditor by the Guarantor of the amount, if any, due and owing by the Debtor to the Creditor for ten days worth of credit, as herein specified.\\n\\\"That it is intended by this Guaranty that the maximum liability of the Guarantor to the Creditor for merchandise sold by the Creditor to the Debtor shall cover ten days worth of credit, not to exceed $20,000.00; that as to maximum liability, this paragraph shall govern over any other terms and provisions in this Guaranty, notwithstanding any provision herein to the contrary.\\\"\\nDuring the 10-day period from May 5, 1958, to May 15, 1958, plaintiff sold and delivered merchandise to Nathanson of an agreed value of $22,106.60. Nathanson was subsequently adjudged a bankrupt and the sum was never paid.\\nPlaintiffs sales records, which were before the trial court, bear the notations \\\"Hold 12 days\\\" and \\\"Hold 13 strictly,\\\" admittedly referring to the credit terms extended by plaintiff to Nathanson. Defendant contends that since his guaranty was conditioned upon the merchandise being sold on \\\"ten days worth of credit\\\" he is relieved from any liability for Nathanson's default.\\nIf the reference to \\\"ten days worth of credit\\\" was intended by the parties to place a limit on the amount of credit that could be extended by plaintiff to Nathanson, defendant's liability would clearly be conditioned upon compliance with this provision. On the other hand, if the provision merely constitutes a limitation on the amount of defendant's liability, the guaranty is absolute and not affected by the credit terms involved.\\nNumerous authorities have been cited to the effect that a contract of guaranty is strictissimi juris, implying that it must be strictly construed in favor of the guarantor. It is settled in this jurisdiction that a guaranty is construed the same as any other contract, the intent of the parties being derived from the commonly accepted meaning of the words and clauses used, taken as a whole. The guaranty is not to be unduly restricted by technical interpretation nor enlarged beyond the fair and natural import of its terms. However, once the intent of the parties has been ascertained, the guarantor has the right to insist upon strict compliance with the terms of his obligation.\\nReading paragraph (1) of the guaranty without reference to the remainder of the instrument, the phrase \\\"on ten days worth of credit\\\" could reasonably be construed to be a provision limiting the amount of credit to be extended. Such a provision would have the obvious advantage to the defendant of requiring Nathanson and the plaintiff to be on a pay-as-you-go basis, thereby reducing defendant's risk. However, each subsequent use of the phrase \\\"ten days worth of credit\\\" clearly and plainly refers to the amount of defendant's liability rather than credit terms. For example, it is provided that \\\"the liability of the Guarantor hereunder shall not, at any time, exceed ten days worth of credit of merchandise sold.\\\" Again in paragraph (2) it is provided that \\\"the Guarantor shall not, at any time, be responsible or liable to pay to the Creditor more than the amount of ten days worth of credit.\\\" The phrase is finally employed in a provision that \\\"it is intended by this Guaranty that the maximum liability of the Guarantor to the Creditor for merchandise sold by the Creditor to the Debtor shall cover ten days worth of credit, not to exceed $20,000.00.\\\" Construing the instrument as a whole, the manifest intent of the parties was to make the guaranty an absolute one with defendant's liability being limited alternatively by the amount of credit extended during any 10-day period or $20,000, whichever was less.\\nThis conclusion is further supported by the provision referring to extensions of \\\"time or other indulgence given to the Debtor.\\\" This provision would be meaningless if the parties intended that credit could be extended only on a 10-day basis. Defendant's suggestion that this paragraph has reference only to sums which were due and owing at the time of the execution of the guaranty is wholly without merit. The guaranty expressly applies only to sums becoming due after its execution. Since the defendant had no obligation for any indebtedness existing prior to the agreement, the provision regarding extension of time for payment must necessarily refer to future sales.\\nDefendant also argues that the guaranty was not accepted by plaintiff; that the notification of default was inadequate; and that the presence of a factual dispute precludes the granting of summary judgment. Each of these contentions, however, rests upon the premise that the guaranty was conditional. Having concluded otherwise, further discussion is unnecessary.\\nAffirmed.\\nMr. Justice Otis, not having been a member of the court at the time of argument and submission, took no part in the consideration or decision of this case.\\nSee exhaustive Annotation, 57 A. L. R. (2d) 1209; cf. Historical Publishing Co. v. LaVaque, 64 Minn. 282, 66 N. W. 1150.\\nSee, Tolerton & Stetson Co. v. Barck, 81 Minn. 470, 84 N. W. 330.\\nSee, e. g., Pioneer Sav. & Loan Co. v. Freeburg, 59 Minn. 230, 61 N. W. 25.\\nBradshaw v. Sibert, 134 Minn. 186, 158 N. W. 830; Bradshaw v. Barber, 125 Minn. 479, 147 N. W. 650.\\nSchmidt v. McKenzie, 215 Minn. 1, 9 N. W. (2d) 1; J. R. Watkins Medical Co. v. McCall, 116 Minn. 389, 133 N. W. 966.\"}"
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+"{\"id\": \"380298\", \"name\": \"TED LaNASA v. HOWARD PIERRE\", \"name_abbreviation\": \"LaNasa v. Pierre\", \"decision_date\": \"1947-12-19\", \"docket_number\": \"No. 34,482\", \"first_page\": \"189\", \"last_page\": \"190\", \"citations\": \"225 Minn. 189\", \"volume\": \"225\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:49:52.139293+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TED LaNASA v. HOWARD PIERRE.\", \"head_matter\": \"TED LaNASA v. HOWARD PIERRE.\\nDecember 19, 1947.\\nNo. 34,482.\\nAlfred It. Sundberg, for appellant.\\nHofmann & Donahue, for respondent.\\nReported in 30 N. W. (2d) 32.\", \"word_count\": \"355\", \"char_count\": \"2066\", \"text\": \"Coring, Chief Justice.\\nThis is an action for assault and battery. The jury found for plaintiff and assessed his damages at $1,250. Defendant made no motion for a directed verdict at the close of the testimony, but, after verdict was rendered, moved for judgment notwithstanding the verdict or a new trial. The ground on which the motion for new trial was based was that the verdict was not justified by the evidence and was contrary to law.\\nSuch being the state of the record, the only question presented to this court is whether any verdict against defendant was justified by the evidence. M. S. A. 605.06 authorizes an alternative motion for judgment notwithstanding the verdict or a new trial only when a motion is made at the close, of the testimony for a directed verdict in favor of the moving party. Raspler v. Seng, 215 Minn. 596, 11 N. W. (2d) 440.\\nThe motion for a new triial having been made only on the ground above stated, neither errors of law nor excessive damages may be assigned as error in this court, for the reason that fundamentally this court is an appellate court. Where questions of jurisdiction are not involved, it reviews on appeal only questions which have been previously presented to the trial courts. Johnson v. Howard, 25 Minn. 558; Searles v. Thompson, 18 Minn. 285 (316). Therefore, the court's charge, not being challenged in the motion for new trial, is not reviewable here. It has become the law of the case. The question of excessive damages cannot be raised here, because the motion for a new trial did not raise that point.\\nWe have carefully examined the record and have found that there was evidence tending to prove that defendant was the aggressor in the altercation which occurred between the parties hereto, both in the matter of the exchange of opprobrious terms and of fisticuffs. The verdict against him is fully justified by the testimony.\\nOrder affirmed.\"}"
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+"{\"id\": \"384196\", \"name\": \"JORGEN A. BURKE AND ANOTHER v. FRED JOHNSON\", \"name_abbreviation\": \"Burke v. Johnson\", \"decision_date\": \"1946-02-15\", \"docket_number\": \"No. 34,114\", \"first_page\": \"274\", \"last_page\": \"278\", \"citations\": \"221 Minn. 274\", \"volume\": \"221\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:28:40.981297+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JORGEN A. BURKE AND ANOTHER v. FRED JOHNSON.\", \"head_matter\": \"JORGEN A. BURKE AND ANOTHER v. FRED JOHNSON.\\nFebruary 15, 1946.\\nNo. 34,114.\\nDrake <& Drake, for appellant.\\nCarl F. Granrud and Arthur C. Wangaard, for respondents.\\nReported in 21 N. W. (2d) 805.\", \"word_count\": \"1266\", \"char_count\": \"7297\", \"text\": \"Youngdahl, Justice.\\nIn an action for damages based on fraud and misrepresentation in connection with the sale of a house and acre of ground in Crystal Village, Hennepin county, plaintiffs recovered a verdict for $700. Defendant appeals from an order denying his alternative motion for judgment or a new trial.\\n. The several assignments of error may be grouped conveniently into three main questions.\\n(1) Is the evidence sufficient to justify the verdict as to the claim of fraud? ;\\n(2) Did plaintiffs have the right to affirm the contract and sue for damages?\\n(3) ' Are plaintiffs barred from recovery because of the acceptance of favors and the modification of the contract after the discovery of the fraud ?\\nPlaintiffs purchased the property under a contract for deed on April 10, 1943. They inspected the premises twice before the contract was signed and observed that the basement floor was wet and that water stood around the floor drain. The. premises were first inspected on April 4, 1943. On April 10, 1943, plaintiffs again made an inspection and found the water condition substantially the same as; before. There, was a \\\"puddle of water under the, basement stairs,\\\" and a big rug on the basement floor was \\\"soaking wet.\\\" The evidence in behalf of plaintiffs indicates that defendant represented-that the basement always had been dry; that the water condition was due to the fact that the cesspool was plugged up; that he was having the obstruction removed and that as soon as the cesspool was repaired and the frost left the ground the basement would be dry. In reliance upon these representations, plaintiffs purchased the property. Shortly after entering into possession thereof, in the first week of May 1943, the water condition was worse, even though the cesspool had been fixed and the frost was out of the ground. From that time on, every time there was a rain the basement floor was covered with water varying in depth from one inch to two feet. The water in the basement was the result of a \\\"waterlogged condition of the general subsoil\\\" in the vicinity. One of the witnesses for plaintiffs, a contractor, described the condition, a possible remedy, and-its cost, as follows:\\n\\\"Witness: That the building- might possibly be raised several feet. I may state first that there is a waterlogged condition of the general subsoil there and no doubt unless the house was raised up considerably there you would have more or less seepage in wet weather because of a general sump condition. That area there is lower than the surrounding area, and water just generally seeps through the soil to the lower portions.\\n\\\"By Mr. Wangaard:\\n\\\"Q. What would have-to be done in order to raise the building?\\n\\\"A. It would require the equipment of a house mover to raise the building. You would have to jack it up and brace it properly, it is quite an engineering feat.\\n'\\n\\\"Q. In your opinion might that remedy be satisfactory?\\n\\\"A. Well, it might. I wouldn't want to guarantee it, but I would think it might remedy the situation.\\n\\\"Q. Have you an opinion as to what the cost would be to do that?\\n\\\"A. I have a rough idea that it would cost around a thousand dollars to do it.\\n\\\"Q. That is all.\\\"\\nThere is the usual conflict in the testimony in this case. Defendant denied that he represented that the basement had been dry or that the water was caused by the clogging of the cesspool. He testified that he fully informed plaintiffs of the water condition and that they purchased the premises with full knowledge of the facts.\\nHowever, the jury decided otherwise, and we are required here to take that view of the evidence most favorable to plaintiffs. So considered, we are of the opinion that a fact issue was presented whether defendant misrepresented the facts to plaintiffs as to what caused the water to accumulate in the basement. Humphrey v. Sievers, 137 Minn. 373, 163 N. W. 737; Forsberg v. Baker, 211 Minn. 59, 300 N. W. 371.\\nWe come, then, to the second contention of defendant. He asserts that, in any event, plaintiffs discovered the facts upon which the fraud is based while the contract for sale was w'holly executory, or at least while it was partly executory and partly executed, so as to bring the case within the rule of Defiel v. Kosenberg, 144 Minn. 166, 174 N. W. 838.\\nThe facts in the instant case are clearly distinguishable from those in the Defiel case. That case involved a long-term lease, and as we pointed out in Kohanik v. Beckman, 212 Minn. 11, 13, 2 N. W. (2d) 125, 126, the court in the Defiel case stated that the part performance therein was but a \\\"trifle of the whole.\\\"\\nIn the Kohanik case we limited the Defiel case to the facts therein involved and reaffirmed the rule stated in Humphrey v. Sievers, 137 Minn. 373, 163 N. W. 737, supra, and other cases, that, under an executory contract where substantial part performance has occurred before discovery of the fraud, the performance of the contract does not ratify the fraud by which it was obtained and does not preclude an action for damages.\\nIn the case at bar, plaintiffs purchased the property for $4,900. Under the terms of the contract, they were required to pay $800 in cash, assume and agree to pay a mortgage in the sum of $3,400, and pay a deferred balance of $700 at the rate'.of $10 per month beginning May 15, 1913. Plaintiffs paid only $550 in cash and executed a note for $250, payable April 21, 1913. This note was paid shortly after plaintiffs went.into possession the first week in May 1913. Thus, the fraud was not discovered until plaintiffs had paid $800 in cash, assumed and. agreed to pay a $3,100 mortgage, and had entered into possession of the premises. This, we believe, constituted sufficient part performance of the executory contract to bring this case within the rule of Kohanik v. Beckman, 212 Minn. 11, 2 N. W. (2d) 125; Humphrey v. Sievers, 137 Minn. 373, 163 N. W. 737, supra, and similar cases. Plaintiffs were therefore justified in affirming and completing the contract and suing for damages for the fraud.\\nThe contention of defendant that plaintiffs waived their right to sue for damages by accepting favors and because of modification of the contract cannot be sustained. After plaintiffs took possession of the property, defendant purchased and installed a septic tank and an electric pump. The acceptance thereof by plaintiffs does not constitute acceptance of favors or a modification of the contract within the meaning of the rule approved in Humphrey v. Sievers, 137 Minn. 376, 163 N. W. 738, supra, that the party deceived, after discovery of the fraud, \\\"must stand towards the other party at arm's length, must comply with the terms of the contract on his part, must not ask favors of the other party or offer to perform the contract on conditions .which he has no right to exact, and must not make any new agreement or engagement respecting it. If he does so he waives the fraud.\\\" There was no waiver of the fraud in this cas\\u00e9, because plaintiffs accepted only that to which they were entitled under the contact as made before, the discovery of the fraud.\\nAffirmed.\"}"
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+"{\"id\": \"567165\", \"name\": \"City of Duluth vs. Peter Krupp and another\", \"name_abbreviation\": \"City of Duluth v. Krupp\", \"decision_date\": \"1891-07-01\", \"docket_number\": \"\", \"first_page\": \"435\", \"last_page\": \"439\", \"citations\": \"46 Minn. 435\", \"volume\": \"46\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:06:40.297784+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"City of Duluth vs. Peter Krupp and another.\", \"head_matter\": \"City of Duluth vs. Peter Krupp and another.\\nJuly 1, 1891.\\nCity Ordinance \\u2014 Presumption of Legality in Enactment. \\u2014 The same presumptions obtain that a city ordinance was legally passed as in the1 case of an act of the legislature.\\nSame \\u2014 Ordinance Invalid in Part. \\u2014 The fact that an ordinance, contrary to a prohibition in the city charter, contains provisions upon an independent subject, not connected with that expressed in the title, does not invalidate the remainder of the ordinance.\\nSame \\u2014 Reasonableness of License Pee. \\u2014 A license fee of $100 for one year, $60 for six months, $15 for one month, and $5 for one day for peddling within the city of Duluth, cannot be held unreasonable.\\nSame \\u2014 License Pee for Peddling. \\u2014 Where an occupation, like hawking or peddling, is liable to become a public nuisance if not restrained, it is a legitimate exercise of the police power to impose a license fee large enough to act as a restraint upon the number of persons who might otherwise engage in it, even although the sum exacted is greater than the expense of issuing the license, and of police supervision of the business.\\nSame \\u2014 Evidence of Acts of Peddling. \\u2014 Evidence considered, and held that the acts of the defendants constituted \\u201cpeddling,\\u201d within the meaning of the ordinance.\\nAppeal by defendants from an order of the municipal court of Duluth, refusing a new trial in a prosecution for violating the ordinance considered in the opinion.\\nH. S. Lord, for appellants.\\nS. D. Allen, for respondent.\", \"word_count\": \"1812\", \"char_count\": \"10289\", \"text\": \"Mitchell, J.\\nThe defendants were convicted of peddling without a license, contrary to the provisions of a city ordinance entitled \\\"Ordinance No. 19. Peddlers, how Licensed,\\\" passed by the city council in the assumed exercise of the power granted them by the city charter \\\"to license and regulate all peddlers doing business within the city.\\\" Section 1 of the ordinance forbids peddling within the city without a license. Section 2 provides for the issuing of licenses, and fixes the amount of the fee at $100 for a year, $60 for six months, $15 for a month, and $5 for one day. Section 3 defines the term \\\"peddling\\\" as including all persons who go about the city selling or offering to sell personal property; but provides that it shall not include persons selling at wholesale to dealers, or to the acts of merchants or their employes in taking orders for goods in stock at their places of business, at the houses of their customers. Section 4 prohibits any one, \\\"whether licensed under this ordinance or not,\\\" from calling attention to their business or the wares which they have to sell by crying them out, blowing a horn, ringing a bell, or by any other l.oud or unusual noise. Section 5 affixes the penalty for the violation of the ordinance. The defendants claim that the ordinance is invalid on three grounds, viz.: (1) That it was never legally passed; (2) that it embraces more than one subject, one of which is not expressed in the title; and (3) that it is not a legitimate exercise of the police power to regulate peddling, but a mere tax for revenue purposes, as demonstrated by the unreasonable amount of the license fee exacted, and the fact that its provisions in no way look to the regulation or control of the business.\\n1. The charter provides that \\\"no ordinance shall be passed at the same meeting at which it was presented, except by the unanimous consent of all the members present, which shall be noted on the records; but this shall not preclude the passage of ordinances reported by any committee of the council to whom the subject of such ordinance shall have been referred at any previous meeting.\\\" The records introduced in evidence show that at a certain meeting an ordinance entitled, \\\"Peddlers of Meat and Vegetables, how Licensed,\\\" was referred to a committee of the council, who at a subsequent meeting reported that in lieu of such ordinance they recommended the passage of the ordinance under which this prosecution was had, whereupon this ordinance was taken up, and put on its second and third reading, and passed; and it is admitted that at this last meeting the records do not show that unanimous consent was given for its passage. Assuming that it was not the case of \\\"an ordinance reported by a committee to whom the subject of an ordinance had been referred at a previous meeting,\\\" still these records do not affirma tively show that the ordinance in question was first introduced at the meeting at which it was passed; and, as every presumption obtains in favor of the validity of an ordinance that there is in favor of the validity of an act of the legislature, the presumption, in the absence of proof to the contrary, is that it was introduced at some prior meeting. State v. City of Hastings, 24 Minn. 78.\\n2. The city charter provides that \\\"the subject of every ordinance shall be expressed in the title, and no ordinance shall embrace more than one subject.\\\" It is urged that section 4 is repugnant to, this requirement, inasmuch as its provisions are made applicable to all dealers, whether peddlers or not. If this criticism is well founded, still it would only go to the validity of that section, and only so far as its provisions apply to others than peddlers. State v. Kinsella, 14 Minn. 395, (524;) Miss., etc., Boom Co. v. Prince, 34 Minn. 79, 85, (24 N. W. Rep. 344.) The validity of this section is not involved in the present case.\\n3. The license fee exacted is somewhat large, and the provisions of the ordinance looking to the regulation of the business of peddling are somewhat meagre. But the fourth section certainly contains provisions tending to secure the orderly pursuit of the business; and the mere fact of exacting a license fee is one method of restricting it, which is itself a legitimate method of regulating some kinds of business. The latitude that is given to municipal bodies in fixing the amount of license fees, and the duty of courts not to declare the amount thus fixed unreasonable, except in very plain cases, have been fully considered by us in former cases. See City of Mankato v. Fowler, 32 Minn. 364, (20 N. W. Rep. 361;) In re White, 43 Minn. 250, (45 N. W. Rep. 232.) If this was a case of one of the ordinary legitimate kinds of business, like that of butcher, baker, auctioneer, or the like, which are not liable to become public nuisances, and consequently no occasion or right existed to restrict the number of persons who shall engage in it, it might be a question whether the fee exacted would not be unreasonable. But the evils liable to grow out of some occupations may be such that their suppression can only be attained to an appreciable'degree by the imposition of some restraint upon the pursuit of such callings or kinds of busi ness. In respect to the great majority of occupations, no such evils are likely to follow; and consequently it would not be competent to attempt to restrain the number of those engaging in them by the imposition of a large license fee. All that could be required would be an amount sufficient to pay the cost of issuing the license, and to defray the expense of necessary police supervision. But where the business is of such a nature that its prosecution will do damage to the public, or that it is liable to degenerate into a public nuisance, then it is a legitimate exercise of the police power to impose a license fee large enough to act as a restraint upon the number of persons who might otherwise engage in such business. Tied. Lim. 274 et seq. It is upon this principle that very high license fees are exacted from those vending intoxicating liquors. Peddling, although in itself a moral and lawful pursuit, is one of the kinds of business which, if not thus restrained, is very liable to become a great nuisance, especially in cities, as almost every one knows by actual experience; and in view of that fact it was a legitimate exercise of the police power vested in the city of Duluth to exact a license fee large enough to restrict the number of persons engaging in peddling, even although the sum was larger than enough to pay the cost of license and the expense of any police surveillance which the city might exercise over the business. In view of all the circumstances, we cannot say that the fee exacted is unreasonable.\\n4. It is further urged that the evidence did not justify the conviction; in other words that the acts complained of did not constitute peddling. The evidence showed that the defendants were butchers who had a meat-shop in the city of Duluth; that they had a \\\"delivery wagon,\\\" which they sent out in charge of an employe with meat to be delivered to fill orders previously given by their customers, but that at the same time they were accustomed to send out in the wagon other meat, also knives for cutting it, and scales for weighing it, and that the employe in charge of the wagon was accustomed to drive from place to place soliciting business, and selling to such as desired to buy from him, cutting up the meat, and weighing it out to the purchaser from the wagon. He solicited purchasers for the meat not only from the wagon, but by going from house to house when inmates did not see him and come out to the street. The defendants may not have belonged to the class of peddlers at which the ordinance was primarily aimed, but this mode of doing business constituted \\\"peddling,\\\" not only within the definition given in the ordinance, but also according to the general and accepted definition of that term. The fact that the person in charge of the wagon may have, as he testified, only solicited those whom he calls \\\"customers,\\\" \\u2014 that is, persons who had been accustomed to buy from him, \\u2014 did not mate it any the less \\\"peddling. \\\" City of Chicago v. Bartee, 100 Ill. 57; Graffty v. City of Rushville, 107 Ind. 502, (8 N. E. Rep. 609.)\\nThe exclusion of the evidence complained of in the sixth assignment of error was at most error without prejudice, as the whole-matter sought to be inquired of was afterwards fully gone into without objection.\\nWe find no error in the record, and the result is that the order appealed from must be affirmed.\\nDickinson, J.\\nI am not prepared to concur in the views expressed in the third division of the foregoing opinion.\\nCollins, J., was absent and took no part in this case.\"}"
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+"{\"id\": \"6791458\", \"name\": \"Daniel J. MOULTON, Petitioner, v. Steve SIMON, in his official capacity as Secretary of the State of Minnesota, and Lori Swanson, in her official capacity as Attorney General of the State of Minnesota, Respondents\", \"name_abbreviation\": \"Moulton v. Simon\", \"decision_date\": \"2016-08-17\", \"docket_number\": \"No. A16-0925\", \"first_page\": \"819\", \"last_page\": \"826\", \"citations\": \"883 N.W.2d 819\", \"volume\": \"883\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:14:53.962689+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daniel J. MOULTON, Petitioner, v. Steve SIMON, in his official capacity as Secretary of the State of Minnesota, and Lori Swanson, in her official capacity as Attorney General of the State of Minnesota, Respondents.\", \"head_matter\": \"Daniel J. MOULTON, Petitioner, v. Steve SIMON, in his official capacity as Secretary of the State of Minnesota, and Lori Swanson, in her official capacity as Attorney General of the State of Minnesota, Respondents.\\nNo. A16-0925.\\nSupreme Court of Minnesota.\\nAug. 17, 2016.\\nDaniel J. Moulton, Rochester, MN, pro se.\\nLori Swanson, Attorney General, Nathan J. Hartshorn, Assistant Attorney General, Saint Paul, MN, for respondents.\\nBrett A. Corson, Fillmore County Attorney, Melissa W. Hammell, Assistant Fillmore County Attorney, Preston, MN, for the Fillmore County Auditor.\", \"word_count\": \"3901\", \"char_count\": \"24376\", \"text\": \"OPINION\\nPER CURIAM.\\nDaniel J. Moulton filed a petition pursuant to Minn. Stat. \\u00a7 204B.44 (2014), requesting an order requiring respondents Secretary of State Steve Simon and Attorney General Lori Swanson to include Moulton's name on the 2016 primary election ballot as a candidate for Third Judicial District Seat 16, which is located in Houston County. Moulton contends the respondents erred in allowing a county auditor to strike his name from the 2016 primary election ballot despite -his timely filing of an affidavit of candidacy that included proof that he is licensed to practice law in Minnesota, see Minn.Stat. \\u00a7 204B.06, subd. 8 (2014). Because we agreed that Moulton complied with the statutory requirements for filing as a candidate for judicial office, we filed an order on June 14, 2016 that granted the petition and noted that this opinion would follow.\\nThe facts are largely undisputed, Moul-ton's petition concerns the 2016 election for a judicial seat in Houston County. A candidate for election to a judicial office must file an affidavit of candidacy that, among other things, states that the candidate is an \\\"eligible voter\\\" who \\\"will have maintained residence in the district from which the candidate seeks- election.\\\" Minn.Stat. \\u00a7 204B.06, subd. 1 (2014). In addition, a candidate for judicial office must \\\"submit with the affidavit .of candidacy proof that the candidate is licensed to practice law in\\\" Minnesota, which \\\"means providing a copy of a current attorney license.\\\" Id., subd. 8.\\nOn May 19, 2016, Moulton filed an affidavit of candidacy for Third Judicial District Seat 16 with the Fillmore \\u2022 County Auditor. With his affidavit of candidacy, Moulton submitted the required filing fee, listed his Minnesota attorney license number, and presented his Minnesota driver's license and the attorney license card issued to him by the Lawyer Registration Office. See Rule 3(A), Rules .of . the Supreme Court on Lawyer Registration (requiring the office to issue to a lawyer who demonstrates compliance with the requirements to practice law a \\\"license\\\" that shows \\\"the license status of the lawyer\\\"). Later that same day, after noticing that Moulton had requested on his affidavit that his personal residence address remain private, the Fillmore County Auditor contacted Moulton and asked him to return to the Auditor's office to prepare a new affidavit that did not include his personal address. See Minn.Stat. \\u00a7 204B.06, subd. lb(c) (2014) (\\\"If the candidate requests that the candidate's address of residence be classified as private data, the candidate must list [that information] on a separate form to be attached to the affidavit.\\\"). Moulton returned to the Auditor's office that same day and, when executing the revised affidavit of candidacy, he again presented his Minnesota attorney license card. Respondents and ' the Fillmore County Auditor do not dispute that when submitting his affidavit of candidacy on May 19, 2016, Moulton presented his attorney license card twice to personnel in the Auditor's office.\\n. The 2016 election-filing period closed on May 81, 2016. On.June 2, 2016, after noticing that a copy of Moulton's attorney license was not attached to his affidavit of candidacy, the Fillmore County Auditor contacted Moulton and asked him to provide a copy of his.-license. Moulton returned to the Auditor's office that same day, explained that he had presented his attorney license card on May 19, and allowed -the Auditors office to make a copy of the license card.\\nThe Fillmore County Auditor notified the Secretary of State, on June 2, 2016, that she had rejected Moulton's affidavit of candidacy. The Fillmore County Auditor decided Moulton had failed to comply with the requirements of Minn.Stat. \\u00a7 204B.06, subd. 8, because he did not provide a copy of his attorney license during the filing period. The Auditor explained the decision to Moulton as follows:\\n[A]t this time your name will not . be on the election ballot as a candidate for Judge in the Third District Court 16. Your affidavit of candidacy did not have attached to it a copy of' your current attorney license and*'a copy of your current attorney license was not provided within the filing period.... The Fillmore County Attorney's Office, the Secretary of State's Office, and the Attorney General's Office have been consulted in making this determination.\\nThe Secretary of State notified election officials in the Third Judicial District that Fillmore County had rejected a judicial candidate for Seat 16. As a result, the Secretary explained, Moulton would not be included on the certification of candidates for the state primary election, and Seat'16 would not be included on the primary ballot. See MinmStat. \\u00a7 204D.07, subd. 3 (2014) (\\\"If not more than twice-the number of individuals to be elected to a nonpartisan office file for the nomination, their names and the name of the office shall be omitted from the .-.. primary ballot...:\\\").\\nOn June 8, 2016, Moulton filed a petition under MinmStat. \\u00a7 204B.44, asking us to direct the Secretary of State to include his name on the primary election ballot for Third Judicial District Seat 16. We ordered Moulton to serve his petition and our scheduling order on the other, candidates for the Houston County judicial seat and on the Houston and Fillmore County Auditors. The Secretary of State and the Attorney General, in a joint response, request dismissal from this proceeding, arguing that they are not proper parties to the proceeding because the Fillmore County Auditor, not their offices, decided to reject Moulton's affidavit of candidacy. The Secretary of State and the Attorney General also contend that the affidavit of candidacy form made available by the Secretary of State's office, which directs the filer to \\\"attach[ ]\\\" a copy of an attorney license, \\\"correctly reflects the legal requirement\\\" of the statute.. The Fillmore County Auditor cont\\u00e9nds Moulton failed to comply with the statute because he did not provide a copy of his attorney license until June 2, 2016, after the filing period had closed.\\nI.\\nThe first issue we address is the motion by the Secretary of State and the Attorney General for dismissal. In naming Secretary Simon as a respondent, Moulton alleged that the Secretary of State is \\\"the chief elections official in Minnesota,\\\" responsible for \\\"administering Minnesota's election laws\\\" and overseeing the \\\"preparation of election ballots.\\\" With respect to Attorney General Swanson, Moulton alleged that she is the chief legal officer for the State and in that capacity, approves \\\"the actions of the Secretary of State.\\\" The Secretary of State and the Attorney General argue that they are improperly named because they did not reject Moul-ton's- affidavit of candidacy or remove Moulton's name from the primary ballot in the Third Judicial District. They therefore ask to be dismissed from this proceeding.\\nMinnesota Statutes \\u00a7 204B.44 allows a person to seek correction of any error or omission committed by a \\\"county auditor, canvassing board ., the secretary of state, or any other individual charged with any duty concerning an election.\\\" Minn. Stat. \\u00a7 204B.44(d). The petition must \\\"describe the error, omission, or wrongful act,\\\" and be served \\\"on the officer, board or individual charged with the error, omission, or wrongful act.\\\" Id. The proceeding authorized by section 204B.44 thus allows potential candidates to seek relief from the errors and omissions \\\"of those enumerated persons charged with properly completing the procedural and mechanical duties attendant to the election process.\\\" Schroeder v. Johnson, 311 Minn. 144, 145, 252 N.W.2d 851, 852 (1976).\\nThe Secretary of State, it is true, did not reject Moulton's affidavit of candidacy and does not place the candidates on the primary ballot for the Third Judicial District seat at issue. Nevertheless, the Secretary of State is the chief election official for the State, Clark v. Pawlenty, 755 N.W.2d 293, 299 (Minn.2008), and in that role administers election procedures, issues rules and instructions regarding election laws, and adopts rules for the format and' preparation of the primary election ballot. See, e.g., MinmStat. \\u00a7 204B.27, subd. 2 (2014); 204D.08, subd. 1 (2014). We have held that the Secretary of State is properly named as a respondent to a petition filed pursuant to MinmStat. \\u00a7 204B.44, even when the Secretary takes no direct action regarding a particular candidate on the ballot, based on the Secretary of State's statutory election-related duties. See Martin v. Dicklich, 823 N.W.2d 336, 339-40 (Minn.2012) (denying the Secretary of State's motion to be dismissed as a respondent based on the Secretary's \\\"interests in ballot preparation and election administration\\\" that are implicated by a petition requesting relief concerning a particular ballot).\\nIn addition, we do not agree that the Secretary of State had no relevant role in the events that led to Moulton's petition. The Secretary of State prepared the 2016 Guide for Candidates, which directed candidates for judicial office to \\\"submit a copy of a current Minnesota law license.\\\" The Secretary also made available a form affidavit of candidacy that directed candidates for judicial office to \\\"attach[ ]\\\" a copy of their attorney license. The Fillmore County Auditor consulted with the Secretary of State, among others, in deciding to reject Moulton's affidavit of candidacy because a copy of his attorney license was not attached to the affidavit. Martin, 823 N.W.2d at 340 (\\\"[I]t is logical to assume that county election officials who are required to prepare ballots subject to the Secretary's rules would turn to the Secretary of State for guidance_\\\"). The Secretary of State notified election officials in the Third Judicial District that Seat 16 would not be included on the primary ballot. In light of these facts, we conclude that Secretary Simon is properly named as a respondent in this proceeding.\\nWe do not reach the same conclusion regarding the Attorney General. The petition identifies no role the Attorney General played in the events surrounding Moulton's candidacy for Seat 16, nor does it identify any \\\"duty\\\" she holds concerning this election. Se,e MinmStat. \\u00a7 204B,44(d) (permitting a petition to be filed that challenges \\\"any wrongful act, omission, , or error\\\" by \\\"any . individual charged with any duty concerning an election\\\"). Further, there is no allegation that the Attorney General can implement the relief that Moulton requested in his petition.- See Clark, 755 N.W.2d at. 299 (noting that the Governor is not responsible for ballot preparation and therefore cannot implement the relief requested). Finally, we do not agree with Moulton's argument that the Attorney General's statutory obligation to appear as the State's legal representative, see MinmStat. \\u00a7 8.01 (2014), confers on her an election-related duty over the Secretary of State, who is a separate constitutional officer. See Carlson v. Ritchie, 830 N.W.2d 887, 894 (Minn.2013) (recognizing that the remedy provided by section 204B.44 to address \\\"directly related election procedures\\\" does not encompass official duties that are only tangentially related to an election); see also Minn. Const, art., V, \\u00a7 1 (identifying the separate officers of the executive branch). We therefore dismiss Attorney General Swanson from this proceeding.\\nII\\nNext, we consider whether Moulton complied with the statutory requirements for a candidate for judicial office when he presented his attorney license card to personnel in the Fillmore County Auditor's Office with his affidavit of candidacy. If he did so, then the Fillmore County Auditor erred when she r\\u00e9jected Moulton's affidavit of candidacy. Moulton bears the burden of demonstrating that election officials erred by striking his affidavit-of can didacy. See Weiler v. Ritchie, 788 N.W.2d 879, 882 (Minn.2010).\\nStatutory interpretation is a question of law that we review de novo. Reiter v. Kiffmeyer, 721 N.W.2d 908, 910 (Minn.2006). The object of statutory interpretation is to \\\"ascertain and effectuate -the intent of the legislature,\\\" State v. Gaiovnik, 794 N.W.2d 643, 647 (Minn.2011), We begin'with the language of the statute, which we construe according to its plain and ordinary'meaning. Weiler, 788 N.W.2d at 884, If a statute is not ambiguous, we apply its plain meaning' and engage in no further construction. Reiter, 721 N.W.2d at 910.\\nA candidate for state judicial office must \\\"submit with the affidavit of candidacy proof that the candidate is licensed tb practice law\\\" in Minnesota, which means \\\"providing a copy of a current attorney license.\\\" Minn.Stat. \\u00a7 204B.06, subd. 8 (emphasis added). The Fillmore County Auditor identified two reasons for her deci-s sion to reject Moulton's affidavit of candidacy: he \\\"did not have attached to it a copy of [his] current attorney license\\\" and \\\"a copy of [his] current attorney license was not provided within the filing-period.\\\" We consider each reason separately.\\nThe first reason for rejecting Moul-ton's affidavit is plainly inconsistent with the statutory language. The word \\\"attached\\\" does not appear in subdivision 8 of section 204B.06. Further, the plain meaning of the word used in the statute, \\\"providing,\\\" has a broader scope than the word \\\"attached.\\\" Compare Oxford Dictionary of English 1430 (3d ed. 2010) (\\\"provide: make available for use\\\"), and Webster's Third New International Dictionary 1827 (2002) (\\\"provide: . 2b: to supply for use\\\"), with Oxford Dictionary of English, supra, at 101 (\\\"attach: add or fasten (a related document) to another\\\"). Although attaching a copy of a required item to an affidavit of candidacy may fulfill the statutory requirement to \\\"provid[e]\\\" the item, supplying, without attaching, a copy of the item also satisfies the plain language of the statute. Minn,Stat, \\u00a7 204B.06, subd. 8. We also note that the Legislature used \\\"attached\\\" in the same.statute to describe documents that must be included with a candidate's affidavit. See Minn.Stat. \\u00a7 204B.06, subd. lb(c) (stating that a candidate must list an \\\"address of residence on a separate form to be attached to the affidavit\\\" (emphasis added)). When the Legislature makes a deliberate choice to use the word \\\"attached\\\" with respect to some documents and \\\"providfed]\\\" with respect to others, we will not assume the two words have the same meaning. In re Stadsvold, 754 N.W.2d 323, 328-29 (Minn.2008) (stating that \\\"distinctions in language in the same context are presumed to be intentional\\\"). Thus, the Fillmore County Auditor erred in rejecting Moulton's affidavit of candidacy on the ground that he did not attach a copy of his current attorney license to the affidavit.\\nSecond, the Fillmore County Auditor rejected Moulton's affidavit of candidacy because \\\"a copy of [his] current attorney license was not provided within the filing period.\\\" In contrast to the first reason the Auditor offered for rejecting the affidavit, the plain language of Minn. Stat. \\u00a7 204B.06 requires a candidate for judicial office to \\\"provid[e] a copy of a current attorney license.\\\" As noted above, the plain.and ordinary meaning of the verb \\\"provide\\\" is to make available for use. See Oxford Dictionary of English 1430 (3d ed.2010) (\\\"provide: to make available for use\\\"); Webster's Third New International Dictionary 1827 (2002) (\\\"provide: , 2b: to supply for use\\\"). There appears to be no dispute that Moulton \\\"provided\\\" his attorney license card to personnel in the Fillmore County Auditor's office when he filed his affidavit of candidacy on May 19, 2016. Moulton's petition alleges that he \\\"presented\\\" and \\\"submitted\\\"' his attorney license card to the Auditor's office, and the Auditor agrees that Moulton \\\"showed\\\" his attorney license card on May 19, Any of these actions made Moulton's license card \\\"available for use,\\\" and he therefore \\\"pro-vid[ed]\\\" the license card as the statute requires. Minn.Stat. \\u00a7 204B.06, subd. 8.\\nThe remaining question is whether the card Moulton provided is \\\"a copy of [his] current attorney license.\\\" Minn.Stat. \\u00a7 204B.06, subd. 8. The Fillmore County Auditor argues that Moulton provided \\\"his original law license,\\\" not \\\"a copy\\\" of that license. Thus, to state it more specifically, the question is whether the attorney license card that Moulton presented to the Auditor's office on May 19 is Moulton's original license to practice law or a copy of his license to practice law. See Minn.Stat. \\u00a7 204B.06, subd. 8 (requiring the candidate to submit \\\"proof' that the candidate \\\"is licensed to practice law\\\" by \\\"providing a copy of a current attorney license\\\"). We conclude that the attorney license card is a copy of Moulton's license to practice law.\\nWe establish the qualifications for admission to the practice of law in Minneso-ta, Minn.Stat. \\u00a7 481,01 (2014), and once admitted, the rules that govern the conduct of lawyers in the practice of law. Minn;Stat. \\u00a7 480.05 (2014). For those lawyers who demonstrate they have met these standards' and rules, we confer the privilege, or license, to practice law. See In re Smith, 220 Minn. 197, 199, 19 N.W.2d 324, 325 (1945) (stating that \\\"[t]he right to practice law is a matter of license\\\" rather than an \\\"absolute right\\\" and \\\"is in the nature of a franchise, to .,. which one is admitted only upon proof of fitness and qualification\\\"); In re Petition for Integration of the Bar of Minn., 216 Minn. 195, 200, 12 N.W.2d 515, 518 (1943) (\\\"The practice of law . is a privilege conferred on the individual by the [supreme] court to further the administration of justice.\\\"). Without the privilege to practice law conferred by this court, a person that protects, defends, or enforces the legal rights of another engages in the unauthorized practice of law. See In re Grigsby, 815 N.W.2d 836, 842 (Minn.2012) (stating that \\\"an unlicensed person\\\" engages in the \\\"unauthorized practice of law\\\" by acting in a representative capacity); License, Black's Law Dictionary (10th ed. 2014) (\\\"A privilege granted by a state or city upon .the payment of a fee, the recipient of the privilege then being authorized to do some act . that would otherwise be impermissible.\\\"). '\\nThe State Board of Law Examiners recommends to the court the \\\"admission and licensure of applicants to practice law in Minnesota.\\\" Rule 3(B)(7), Rules for Admission to the Bar. Thereafter, on an annual basis, a Minnesota lawyer who reports compliance with court rules and pays a registration fee receives from the Lawyer Registration Office a \\\"license in such form as may be provided by this court, showing the license status of the lawyer.\\\" Rule 3(A), Rules of the Supreme Court on Lawyer Registration. A lawyer's license status can be \\\"active,\\\" meaning \\\"in good standing and . authorized to practice law\\\"; \\\"inactive,\\\" meaning \\\"in good standing but . not authorized to practice law\\\"; or \\\"non-compliant,\\\" meaning \\\"not in good standing and . not authorized to practice law.\\\" Rule 1(A)-(B), (P), Rules of the Supreme Court on Lawyer Registration.\\nThe card issued by the Lawyer Registration Office is not the attorney's \\\"original\\\" license to practice law. Minnesota attorneys are licensed to practice law by our court, not by the Lawyer Registration Office. Further, the license card that attorneys receive on an annual basis simply confirms the attorney's authorized or unauthorized status based on compliance (or lack thereof) with the rules that we establish. The license card is, in other words, \\\"a copy of a current attorney license\\\" because it reproduces in tangible form the intangible privilege we initially conferred and annually renew. See, e.g., Copy,. Black's Law Dictionary (10th ed. 2014) (\\\"An imitation or reproduction of an original.\\\").\\nBased on this analysis, we conclude that Moulton complied with the requirement to \\\"submit\\\" proof that he is licensed to practice law by \\\"providing a copy of [his] current attorney license.\\\" Minn.Stat. \\u00a7 204B.06, subd. 8. Moulton presented evidence in his petition that he provided a copy of his current attorney license to the Fillmore County Auditor's office, twice, on May 19. And, as shown in Moulton's exhibit, the attorney license card he presented to the Auditor's office listed his license type as \\\"authorized\\\" to practice law. Moulton therefore complied with the requirement in Minn.Stat. \\u00a7 204B.06, subd. 8, to \\\"submit with the affidavit of candidacy proof that [he] is licensed to practice law\\\" in Minnesota, and the Fillmore County Auditor erred when she rejected his timely affidavit of candidacy. Because he filed a timely affidavit of candidacy with proof that he is licensed to practice law in Minnesota, we hold that Daniel J. Moulton must be included as a candidate for Third Judicial District Seat 16 on the primary election ballot.\\nPetition granted.\\n. The requirement to provide a \\\"copy of a current attorney license\\\" was added to section 204B.06, subdivision 8, by the 2008 Leg islature. Act of Apr. 25, 2008, ch. 244, art. 2, \\u00a7 16, 2008 Minn. Laws 631, 647.\\n. Moulton filed his affidavit of candidacy with ' the Fillmore County Auditor, his county of residence. See Minn. Stat. \\u00a7 204B.09, subd. 1(d) (2014) .(\\\"Affidavits and petitions for state offices must be filed with the secretary of state or with the county auditor of the county in which the candidate resides.\\\"). Both Fillmore County and Houston County are in the Third Judicial District, and no one contends that Moulton does, not reside in the Third Judicial. District. See Minn. Const, art. VI, \\u00a7 4 (\\\"Each judge of the district court in any district shall be a resident of that district at the time of his Selection.,..\\\"). ,\\n. The form affidavit of candidacy made av\\u00e1ilable by-the Secretary of State directs candidates to affirm that they are \\\"licensed to practice law,\\\" provide an attorney license number, and \\\"attach []\\\" a \\\"copy of [the] license\\\" to the affidavit. (Emphasis added.) In his response to Moulton's petition, the Secre-taiy of,State argued that the \\\"affidavit form correctly reflects the legal requirement.\\\" We disagree. If the statute does not require a candidate to \\\"attach\\\" the proof of license to practice to the affidavit, then the Secretary's form misstates the law because \\\"[t]he Secre-taiy of State's office has no authority to change - state law.\\\" Paquin v. Mack, 788 N.W.2d 899, 906 (Minn.2010).\\n. Even if the Fillmore County Auditor is correct, and the license Moulton presented on May 19 is his original attorney license, the Auditor does not explain why presentation of the license itself, rather than- a copy, would be a basis to reject an affidavit of candidacy. See, e.g., Sardeson v. Menage, 41 Minn. 314, 316, 43 N.W. 66, 66 (1889) (noting that \\\"production of the original records,\\\" rather than certified copies, was sufficient for purposes of redemption).\\n. Pursuant to our rules, failure to comply with the requirements for active-license status \\\"automatically suspend[s]\\\" the lawyer's license to practice law in Minnesota. Rule 2(H), Rules of the Supreme Court on Lawyer Registration.\\n. The Lawyer Registration Office was established, in part, because the court had \\\"no current list of those who are authorized to practice law\\\" in Minnesota. Rules Regarding Registration of Attorneys, 260 Minn, vii (Oct. 5, 1961). In order to have \\\"on file annually a current list of all those authorized to practice law,\\\" we promulgated a rule that required \\\"the clerk of the supreme court\\\" to deliver a certificate to an attorney admitted to practice law, and each year thereafter upon payment of the registration fee, the clerk sent to attorneys \\\"a suitable sticker or certificate showing the current good standing of such attorney.\\\" Id. at viii. The current license card is simply a more practical form of the past sticker or certificate practice.\"}"
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+"{\"id\": \"6881834\", \"name\": \"STATE of Minnesota, Respondent, v. Dakari Michael COLES, Appellant\", \"name_abbreviation\": \"State v. Coles\", \"decision_date\": \"2015-04-15\", \"docket_number\": \"No. A13-0789\", \"first_page\": \"477\", \"last_page\": \"487\", \"citations\": \"862 N.W.2d 477\", \"volume\": \"862\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:34:45.341334+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Dakari Michael COLES, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Dakari Michael COLES, Appellant.\\nNo. A13-0789.\\nSupreme Court of Minnesota.\\nApril 15, 2015.\\nLori Swanson, Attorney General, Saint Paul, MN; and Michael O. Freeman, Hen-nepin County Attorney, Jean Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.\\nCathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant State Public Defender, Saint Paul, MN, for appellant.\", \"word_count\": \"5669\", \"char_count\": \"35017\", \"text\": \"OPINION\\nGILDEA, Chief Justice.\\nAppellant Dakari Michael Coles brought a motion challenging his sentence. The district court sentenced Coles pursuant to the terms of a plea agreement in which the State agreed to dismiss several charges, and Coles agreed to receive a sentence for a lesser charge that was an upward dura-tional departure. The question presented is whether Coles may challenge his sentence in a motion to correct his sentence, see Minn. R.Crim. P. 27.03, subd. 9 (Rule 27.03), or whether his challenge must be brought in a petition for postconviction relief, see Minn.Stat. \\u00a7 590.01, subd. 1 (2014). The district court held that Coles' challenge must be brought as a petition for postconviction relief and that his motion was time-barred by MinmStat. \\u00a7 590.01, subd. 4(a) (2014). The court of appeals affirmed. Because we conclude that Coles' challenge to his sentence must be brought in a petition for postconviction relief, we affirm.\\nIn 2008, Coles, who was then 16, was at a residence along with an 11-year-old and a 9-year-old. The younger child saw Coles with his penis in the other child's mouth. Coles offered the younger child $10 to keep what she saw to herself, but she told an adult about the incident.\\nRespondent the State of Minnesota filed a delinquency petition charging Coles with first-degree criminal sexual conduct under Minn.Stat. \\u00a7 609.342, subds. 1(a), 2 (2014), Minn. Stat. \\u00a7 609.109, subd. 7 (2002). In a separate delinquency petition, the State charged Coles with first-degree aggravated robbery under Minn.Stat. \\u00a7 609.245, subd. 1, 609.11, 609.05 (2014), and two counts of simple robbery under Minn.Stat. \\u00a7 609.24 (2014) for another incident. The State filed motions seeking to certify Coles as an adult for prosecution.\\nAssuming that Coles was certified as an adult, the presumptive sentence for the first-degree criminal sexual conduct charge was 144 months and the presumptive sentence for first-degree aggravated robbery was 48 months. MinmStat. \\u00a7 609.342, subd. 2(b); Minn. Sent. Guidelines IV & n. 2 (2003). Consecutive sentencing for these offenses would not have been considered a departure under the guidelines. Minn. Sent. Guidelines II.F. (2003). As a result, Coles could have received a presumptive, aggregate sentence of 192 months for the . charges.\\nOn August 28, 2003, Coles and the State reached a plea agreement. They agreed that Coles would plead guilty to an amended charge of second-degree criminal sexual conduct and to first-degree aggravated robbery in exchange for the State dismissing the first-degree criminal sexual conduct and simple robbery charges. In addition, the parties agreed that Coles would be placed on extended jurisdiction juvenile (EJJ) status, so he could receive treatment, and that he would receive a stayed, 96-month aggregate sentence. This sentence was based on two 48-month, consecutive sentences. The 48-month sentence for second-degree criminal sexual conduct was an upward durational departure from the presumptive guidelines sentence of 21 months. Minn. Sent. Guidelines IV (2003). The imposition of consecutive sentences was also an upward departure. Id., II.F.\\nColes pleaded guilty to second-degree criminal sexual conduct and first-degree aggravated robbery. The district court accepted his guilty plea, placed him on EJJ status, and sentenced him according to the terms of the plea agreement. During the sentencing, the court stated that it based the upward durational departure on the agreement of the parties and the age difference between Coles and the victim, which the court said made the victim vulnerable.\\nThe basis for the departure is one, this is a negotiation between the parties.... I would also find another part of this negotiation besides admission also had to do with the matter being handled as Extended Jurisdiction Juvenile rather than going forward as adult certification. Given the age of the child, of the victim in this matter, that I think [a] very strong argument can be made for the fact that the age difference given the child's develop \\u2014 stage of child development being what they are, that there was some level of vulnerability for the younger child to being taken advantage of by Mr. Coles and would justify the upward departure.\\nIn a subsequent order, the court also noted that Coles \\\"attempted to manipulate\\\" the younger child \\\"by offering her cash not to tell anyone what she had seen.\\\"\\nIn 2005, the district court found that Coles violated the terms of his EJJ probation by failing to complete, and being discharged from, his juvenile sex offender program. Consequently, the district court revoked Coles' EJJ status and executed his consecutive, 48-month sentences.\\nIn 2012, Coles filed a pro se petition for postconviction relief arguing that the court had impermissibly sentenced him. While represented by counsel, Coles later filed a supplemental petition labeled as a petition for postconviction relief, but requesting relief under Minn. R.Crim. P. 27.03, subd. 9. Coles argued that the district court relied on improper justifications to support a departure from the presumptive criminal sexual conduct sentence. The district court denied relief, concluding that Coles' request was time-barred under the 2-year posteonviction statute of limitations, Minn. Stat. \\u00a7 590.01, subd. 4(a). The court determined that the petition for relief was a challenge to Coles' plea agreement, not just his sentence. The court of appeals affirmed, holding that Coles could not use Rule 27.03 \\\"to ignore the substance of his petition.\\\" State v. Coles, No. A13-0789, 2013 WL 6570058, at *3 (Minn.App. Dec. 16, 2013). Because Coles' challenge implicated his conviction, the court of appeals concluded that the district court properly construed his request as a time-barred petition for postconviction relief. Id. at *3-4. We granted Coles' petition for review.\\nColes argues that his sentence is \\\"not authorized by law\\\" and must be corrected under Minn. R.Crim. P. 27.03, subd. 9. Coles contends that his sentence is illegal because the district court imposed an upward durational departure for his criminal sexual conduct sentence without citing any valid \\\"substantial and compelling reasons for departure.\\\" Coles asks our court to correct his sentence by reducing \\\"his consecutive 48-month sentence for criminal sexual conduct to a 21-month concurrent term.\\\" The State contends that Coles' request had to be filed under the postcon-viction statute and that the request is time-barred under that statute. The parties' arguments present issues regarding the interpretation of a procedural rule and statute, questions subject to de novo review. Christianson v. Henke, 831 N.W.2d 532, 535 (Minn.2013); Johnson v. State, 801 N.W.2d 173, 176 (Minn.2011).\\nI.\\nThe parties disagree over whether Coles' request for correction of his sentence was brought under the postconviction statute or under the rules of criminal procedure. Minnesota's postconviction statute allows a person convicted of a crime to petition the court to correct a sentence when the sentence \\\"violate[s] the person's rights under the Constitution or laws of the United States or of the state.\\\" Minn.Stat. \\u00a7 590.01, subd. 1. The statute imposes a 2-year time limit on petitions for postconviction relief from \\\"the entry of judgment of conviction or sentence if no direct appeal is filed.\\\" Id., subd. 4(a)(1). Our rules of criminal procedure also give the court authority to correct a sentence in Rule 27.08. The rule provides that \\\"[t]he court may at any time correct a sentence not authorized by law.\\\" Minn. R.Crim. P. 27.08, subd. 9 (emphasis added).\\nColes labeled his supplemental petition as a petition for postconviction relief. But he requested relief pursuant to Rule 27.03. We typically look to the pleadings and the relief sought in order to determine the nature of a claim. See Abraham v. Cnty. of Hennepin, 639 N.W.2d 342, 350 (Minn.2002). But the pleadings in this case are not dispositive because Coles arguably invoked both the postconviction statute and our procedural rule.\\nWhile Coles' pleading could be read as invoking both the postconviction statute and Rule 27.03, the language of the statute and the rule, together with our precedent, confirm that Coles' request falls under the postconviction statute. The language of Minn.Stat. \\u00a7 590.01 is broad and plainly encompasses a motion seeking correction of a sentence. See Minn.Stat. \\u00a7 590.01, subd. 1(1). Based on the statutory language, we have recognized that courts in some circumstances have the authority to treat a request to correct a sentence purportedly brought under Rule 27.03 as a petition for postconviction relief. See Bonga v. State, 765 N.W.2d 639, 642-43 (Minn.2009).\\nIn contrast to the comprehensive language of section 590.01, the plain language of Rule 27.03 is limited to sentences, and the court's authority under the rule is restricted to modifying a sentence. Minn. R.Crim. P. 27.03, subd. 9 (\\\"The court may at any time correct a sentence not authorized by law.\\\" (emphasis added)). We have interpreted Rule 27.03 narrowly, consistent with its language. See State v. Schnagl, 859 N.W.2d 297, 298 (Minn.2015) (holding that Rule 27.03 \\\"is not the proper procedure to obtain judicial review of' an administrative decision \\\"implementing the sentence imposed\\\"). Our decision in Johnson v. State, 801 N.W.2d 173 (Minn.2011), illustrates this point.\\nIn Johnson, the defendant filed a motion challenging the sentence the district court imposed as a result of the defendant's guilty plea. Id. at 175. The defendant also challenged the validity of his guilty plea. Id. Because the defendant's challenge went beyond the sentence, we held that Rule 27.03 did not apply. See id. at 176. Instead, we held that the defendant had to seek relief under the postconviction statute. Id. We reach the same conclusion in this case.\\nThe district court imposed the sentence at issue as part of the court's acceptance of the parties' negotiated plea agreement. See Minn. R.Crim. P. 15.04, subd. 3(1) (noting that \\\"the trial court judge must reject or accept the plea of guilty on the terms of the plea agreement\\\"). If, as Coles requests, his sentence is modified, \\\"the terms of the plea agreement\\\" the parties reached will, in effect, have been rejected. Id. In such a circumstance, our criminal rule requires that the defendant be given a chance to withdraw his plea of guilty. Id. (\\\"If the court rejects the plea agreement, it must advise the parties in open court and then call upon the defen dant to either affirm or withdraw the plea.\\\"); State v. Garcia, 582 N.W.2d 879, 882 (Minn.1998) (recognizing that if a court corrects a sentence that was part of a plea agreement, the defendant \\\"must be allowed to withdraw from, the plea agreement if he so chooses\\\"). Accordingly, where the sentence at issue is imposed as part of a plea agreement, a motion to change that sentence impacts more than simply the sentence, and Rule 27.08 does not apply.\\nBut, Coles argues, he is challenging only his sentence, not his plea agreement or conviction, and therefore, he has brought a proper Rule 27.03 motion. We have recognized, however, that a challenge to a sentence imposed as part of a plea agreement involves more than simply the sentence. See State v. Lewis, 656 N.W.2d 535, 539 (Minn.2003). In some plea agreements, the conviction component and the sentence component are \\\"interrelated.\\\" Id. For example, the parties may have agreed that the defendant would be convicted of a reduced criminal charge but only if the defendant received a sentence longer than the presumptive sentence for the reduced charge. Id. at 536. ' If the defendant succeeds in reducing his or her sentence, he or she retains the benefit of the reduced criminal charge but the State, no longer receives the benefit of the longer sentence. See id. at 539.\\nFaced with such a situation, we held in Lewis that \\\"where the district court finds no compelling or substantial circumstances supporting an upward departure in the sentence that was agreed upon in a plea agreement, it may consider motions to vacate the conviction and the plea agreement.\\\" Id. The basis for the challenge to the sentence in Lewis was the same as Coles' challenge to his sentence. Id. at 537. Moreover, just like the defendant in Lewis Coles received the benefit of a reduced criminal sexual conduct charge in exchange for agreeing to an upward dura-tional departure on his sentence for that reduced charge. See id. at 536. Under Lewis, if the district court reduced Coles' sentence due to improper departure justifications, which is the relief Coles seeks, the court would be \\\"free to consider the effect that changes in the s\\u00e9ntence have on the entire plea agreement.\\\" Id. at 539.\\nBased on our precedent, it is clear that Coles' request involves more than simply the sentence the district court imposed; it involves the plea agreement itself. The State and Coles recognized at the plea hearing that Coles' sentence and conviction were part of a negotiated package in which both Coles and the State received a signifi cant benefit. Coles' lawyer noted that Coles agreed to a longer sentence for second-degree criminal sexual conduct because it was \\\"part of the negotiation to go from first degree\\\" criminal sexual conduct to second-degree criminal sexual conduct and that it was \\\"a substantial benefit to go from crim sex one to crim sex two.\\\" The prosecutor highlighted the importance of the sentence length and that the agreed-to 96-month sentence was \\\"significantly less\\\" than the sentence for the dismissed charge because \\\"crim sex one would be 144 [months] on its own.\\\" Although Justice Page is correct that \\\"there are any number of reasons why the State enters into plea agreements,\\\" the parties made it clear that in this particular plea agreement, the sentence with an upward departure was a crucial reason.\\nBecause Coles' challenge to his sentence implicates more than simply his sentence, we conclude that it is properly viewed as a petition for postconviction relief under Minn.Stat. \\u00a7 590.01, not as a motion to correct a sentence under Rule 27.03.\\nII.\\nColes filed his pleading seeking relief on May 12, 2012, more than 2 years after his conviction was final. Having decided that Coles' request must be construed as a petition for postconviction relief, we hold that Coles' request is time-barred by Minn.Stat. \\u00a7 590.01, subd. 4(a).\\nAffirmed.\\n. Coles was subject to a presumption of certification for prosecution as an adult for the first-degree criminal sexual conduct and aggravated robbery charges. Minn.Stat. \\u00a7 260B.125, subd. 3 (2014).\\n. Coles is now on supervised release. His sentence expiration date is December 8, 2017.\\n. Because Rule 27.03 does not provide a time limit for challenges to a sentence unauthorized by law, but Minn.Stat. \\u00a7 590.01 does include such a limitation, an argument could be made that the rule and the statute conflict, thereby raising separation-of-powers concerns. Cf. State v. Losh, 721 N.W.2d 886, 890-92 (Minn.2006). Coles, however, does not argue that applying the statute of limitations provided in Minn.Stat. \\u00a7 590.01, subd. 4(a), to his motion to correct his sentence violates the separation-of-powers doctrine, and therefore, we will not address the possible conflict. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (stating that an issue \\\"riot argued in the briefs\\\" is waived).\\n. In State v. Maurstad, we ordered the district court to correct a sentence agreed upon in a plea agreement, relying, in part, on Rule 27.03. 733 N.W.2d 141, 147 (Minn.2007) (holding that a \\\"sentence based on an incorrect criminal history score is an illegal sentence\\\" and is correctable at any time under Rule 27.03). The plea agreement in Maur-stad, however, stated that the defendant would \\\"be sentenced according to the Minnesota sentencing guidelines.\\\" Id. at 143. Unlike Coles' requested relief, adjusting Maurstad's sentence to the correct sentence under the guidelines did not deprive either side of the benefit of the bargain reached in the plea agreement. See id. The same is not true here. If the district court reduced Coles' criminal sexual conduct sentence, the State would no longer get the benefit of a longer sentence for agreeing to a reduced criminal sexual conduct charge.\\n. Justice Page's dissent argues that \\\"had Coles been convicted after trial and given an illegal sentence, his sentence would be correctable under Rule 27.03 at any time without regard to his conviction.\\\" In that case, however, the conviction and sentence would not be interrelated in the way they are in Coles' case. See Lewis, 656 N.W.2d at 539.\\n. Justice Page argues that the State will retain \\\"the vast majority of the sentence-related benefits it received\\\" from the plea agreement even if Coles' sentence is corrected. This argument hinges on the fact that Coles already served his prison sentence. As a result, the dissent claims that even if Coles' sentence were shortened, the State would not lose the benefit of the sentence agreed to in the plea agreement. This analysis, however, ignores that its legal conclusion \\u2014 that an offender who pleads guilty to a reduced charge in exchange for agreeing to an upward departure on his or her sentence may challenge that upward departure in a Rule 27.03 motion \\u2014 would apply to an offender who still had years to go on his or her sentence. Moreover, even though Coles fully served his prison sentence, he is currently on supervised release. While on supervised release, he is in the legal custody of the commissioner of corrections and is \\\"subject to re-incarceration for breach of a condition of release.\\\" See State v. Schwartz, 628 N.W.2d 134, 139 (Minn.2001). If the district court reduced Coles' sentence, the State would lose the benefit of almost 3 years of his supervised release term.\\n. The State offers an alternative argument for why Rule 27.03 does not apply, arguing that the scope of the rule is narrow and allows challenges only to sentences that are contrary to the statutory maximum provided in the criminal statute. Given our conclusion that Rule 27.03 does not apply to Coles' request, it is not necessary for us to reach this alternative argument.\\n.Justice Page argues that under our holding \\\"there is in effect no remedy for the imposition of an illegal sentence.\\\" If Coles' sentence were, in fact, illegal, a point we do not decide today, the postconviction statute provides a remedy. Instead of waiting nearly 9 years to bring his postconviction petition, Coles could have brought a timely postconviction petition challenging his sentence within 2 years of his conviction. See Minn.Stat. \\u00a7 590.01, subd. 4(a). Moreover, the time-bar in the postconviction statute has several exceptions that may allow a court to hear a challenge to a sentence that implicates a plea agreement and conviction in an appropriate case. See Minn.Stat. \\u00a7 590.01, subd. 4(b). Coles does not contend that he has satisfied any of these exceptions. In addition, Minn. Stat. \\u00a7 590.01 is the exclusive remedy for challenging the validity of a conviction \\\"unless it is inadequate or ineffective.\\\" Minn. Stat. \\u00a7 590.01, subd. 2 (2014). Coles, however, does not argue that the postconviction statute would not be adequate or effective and as such we do not address this provision. See Johnson, 801 N.W.2d at 176 (stating that because the defendant had not argued that a petition for postconviction relief would be inadequate or ineffective, his exclusive remedy was a petition for postconviction relief, not a Rule 27.03 motion).\"}"
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+"{\"id\": \"6907911\", \"name\": \"In re Petition for DISCIPLINARY ACTION AGAINST Jason William McGEE, a Minnesota Attorney, Registration No. 387360\", \"name_abbreviation\": \"In re Disciplinary Action Against McGee\", \"decision_date\": \"2014-11-17\", \"docket_number\": \"No. A14-0211\", \"first_page\": \"97\", \"last_page\": \"98\", \"citations\": \"856 N.W.2d 97\", \"volume\": \"856\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:18:42.079304+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Petition for DISCIPLINARY ACTION AGAINST Jason William McGEE, a Minnesota Attorney, Registration No. 387360.\", \"head_matter\": \"In re Petition for DISCIPLINARY ACTION AGAINST Jason William McGEE, a Minnesota Attorney, Registration No. 387360.\\nNo. A14-0211.\\nSupreme Court of Minnesota.\\nNov. 17, 2014.\", \"word_count\": \"366\", \"char_count\": \"2305\", \"text\": \"ORDER\\nThe Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Jason William McGee committed professional misconduct warranting public discipline, namely, failing to timely file his 2008-2011 state income taxes, in violation of Minn. R. Prof. Conduct 8.4(d), being convicted of felony failure to pay income taxes, in violation of Minn. R. Prof. Conduct 8.4(b), failing to appear at court hearings in two matters, in violation of Minn. R. Prof. Conduct 1.8, 3.2, and 8.4(d), and failing to cooperate -with the Director, in violation of Minn. R. Prof. Conduct 8.1(b) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). On May 1, 2014, we deemed the allegations in the petition admitted. See Rule 13(b), RLPR.\\nThe parties have now entered into a stipulation for discipline. In it, respondent unconditionally admits the allegations in the petition and waives his rights under Rule 14, RLPR. The parties jointly recommend that the appropriate discipline is suspension from the practice of law for a minimum of 1 year with the right to petition for reinstatement after 10 months.\\nThis court has independently reviewed the file and approves the jointly recommended disposition.\\nBased upon all the files, records, and proceedings herein,\\nIT IS HEREBY ORDERED that:\\n1. Respondent Jason William McGee is suspended from the practice of law for a minimum of 1 year, effective 14 days from the date of the filing of this order, with leave to file a petition for reinstatement 10 months after the effective date of his suspension;\\n2. Respondent may petition for reinstatement pursuant to Rule 18(a)-(d), RLPR. Reinstatement is conditioned on successful completion of the professional responsibility portion of the state bar examination and satisfaction of continuing legal education requirements pursuant to Rule 18(e), RLPR; and\\n3.Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs pursuant to Rule 24, RLPR.\\nBY THE COURT:\\n/s/_\\nAlan C. Page Associate Justice\"}"
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+"{\"id\": \"7073248\", \"name\": \"Oscar CALDAS, et al., Appellants, v. AFFORDABLE GRANITE & STONE, INC., Respondent, Dean Soltis, Defendant\", \"name_abbreviation\": \"Caldas v. Affordable Granite & Stone, Inc.\", \"decision_date\": \"2012-09-26\", \"docket_number\": \"No. A10-2173\", \"first_page\": \"826\", \"last_page\": \"843\", \"citations\": \"820 N.W.2d 826\", \"volume\": \"820\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T01:35:43.052335+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oscar CALDAS, et al., Appellants, v. AFFORDABLE GRANITE & STONE, INC., Respondent, Dean Soltis, Defendant.\", \"head_matter\": \"Oscar CALDAS, et al., Appellants, v. AFFORDABLE GRANITE & STONE, INC., Respondent, Dean Soltis, Defendant.\\nNo. A10-2173.\\nSupreme Court of Minnesota.\\nSept. 26, 2012.\\nJustin D. Cummins, Brendan D. Cum-mins, Miller O\\u2019Brien Cummins, PLLP, Minneapolis, MN, for appellants.\\nDavid M. Wilk, Paula Duggan Vraa, Jennifer L. Young, Larson King, LLP, St. Paul, MN, for respondent.\\nLori Swanson, Attorney General, Alan I. Gilbert, Solicitor General, Kelly S. Kemp, Assistant Attorney General, Angela Beh-rens, Assistant Attorney General, St. Paul, MN, for amicus curiae State of Minnesota.\\nSusan L. Segal, City Attorney, Peter W. Ginder, Deputy City Attorney, Minneapolis, MN, for amicus curiae City of Minneapolis.\\nMichael O. Freeman, Martin D. Munic, Daniel D. Kaczor, Minneapolis, MN, for amicus curiae Hennepin County Attorney Michael O. Freeman.\\nMike L. Wilde, Kelly K. Francis, St. Paul, MN, for amicus curiae Fair Contracting Foundation.\\nLeslie L. Lienemann, Culberth & Liene-mann, LLP, St. Paul, MN, Stephen L. Smith, The Law Firm of Stephen L. Smith, Dorene R. Sarnoski, Dorene R. Sarnoski Law Office, Minneapolis, MN, for amicus curiae National Employment Lawyers Association, Minnesota Chapter.\\nDean B. Thomson, Jesse R. Orman, Fa-byanske, Westra, Hart & Thomson, P.A., Minneapolis, MN, for amici curiae Carpentry Contractors Association, Minnesota Drywall and Plaster Association, Minnesota Environmental Contractors Association, Minnesota Mechanical Contractors Association, Minnesota Painting and Wallcover-ing Employers Association, Sheet Metal, Air Conditioning, & Roofing Contractors Association, Inc., and Thermal Insulation Contractors Association.\", \"word_count\": \"8035\", \"char_count\": \"50927\", \"text\": \"OPINION\\nDIETZEN, Justice.\\nThe issue before us is whether appellants, who were employees of a contractor that performed work pursuant to a municipal contract with the City of Minneapolis (City), may recover for the contractor's alleged breach of a prevailing wage provision in the contract. Appellants Oscar Caldas, et al., were employed by respondent Affordable Granite & Stone, Inc. (AGS), to perform work at the Minneapolis Convention Center pursuant to a contract between AGS and the City. After completion of the project, appellants brought this action against AGS, alleging (1) that AGS failed to pay them the prevailing wage in breach of the contract with the City and that they are entitled to enforce the contract as third-party beneficiaries, (2) that the breach of the contract by AGS violated state wage statutes, and (3) that AGS was unjustly enriched as a result. The district court granted AGS's motion for summary judgment, concluding that appellants were not intended third-party beneficiaries and that without a viable claim for breach of contract, appellants' other claims failed. The court of appeals affirmed, and we granted review. Because we conclude that appellants are not intended third-party beneficiaries of the contract and that appellants' other claims lack merit, we affirm.\\nThe material facts of this case are undisputed. In June 2007 the City issued a Request for Proposal (RFP) to repair and restore \\\"terrazzo flooring, granite wainscoting, restroom floor and wall tile, and exhibition hall concrete flooring\\\" at the Minneapolis Convention Center. The RFP stated that the selected contractor \\\"will be asked to provide an action plan and timeline to completely repair all imperfections and polish approximately 130,-000 square feet of terrazzo flooring.\\\"\\nIn July 2007 AGS filed a Submittal Request for Proposal with the City. The proposal stated, among other things, that the terrazzo tile \\\"could be repaired and did not need to be replaced,\\\" and that \\\"cost savings\\\" would result by restoring existing terrazzo rather than replacing the entire terrazzo floor. AGS proposed to utilize \\\"a team of ten Floor Technicians led by three Onsite Foremen\\\" to \\\"effectively carry out the scope of the work.\\\" The proposal also contained a prevailing wage certificate signed by AGS President Dean Soltis. The prevailing wage certificate explicitly incorporated the Contracts for Public Works Ordinance of the Minneapolis Code of Ordinances, which includes the prevailing wage ordinance. Minneapolis, Minn., Code of Ordinances tit. 2, eh. 24, art. IV, \\u00a7 24.200-.260. The prevailing wage certificate provides:\\nLaborers and Mechanics shall be paid according to the [Public Works Ordinance], as amended, and the minimum wage rates and fringe benefits paid to the various classes shall be as determined by the Secretary of Labor of the United States for work in the City. Subject to and upon compliance with all requirements provided in the Rules of the Office of the Secretary of Labor of the United States.\\nSubsequently, the City chose AGS to perform the work at the Convention Center.\\nIn December 2007 the City and AGS entered into a contract to perform the agreed-upon repair work at the Convention Center. The contract expressly incorporated the RFP and the proposal from AGS, including the prevailing wage certificate that Soltis had executed on behalf of AGS.\\nThe AGS portion of the project commenced in December 2007 and continued through approximately August 2008. Following consultation with the Service Em ployees International Union (SEIU) Local 26 and review of a collective bargaining agreement, AGS determined that appellants' work should be classified as repair persons/specialty crew, and that the prevailing wage for the work was $16.28 per hour. All parties agree that AGS paid appellants at this hourly rate throughout the project.\\nSeveral unions, however, complained to the City that appellants should have been classified as terrazzo mechanics and paid the higher prevailing wage of $44.31 per hour. Following an investigation, the Director of the City's Department of Civil Rights sent a letter dated September 12, 2008, to AGS and the unions, concluding that AGS was \\\"paying the laborers in question an appropriate wage for the work that was being done and that there was no violation of the prevailing wage standards.\\\" According to the Director, the critical issue was whether the work performed at the Convention Center should be classified as \\\"construction\\\" or \\\"janitorial or maintenance.\\\" He concluded that the work was \\\"janitorial or maintenance\\\" in nature and that AGS had paid appellants the appropriate prevailing wage of $16.28 per hour. A union official contacted the Hennepin County Attorney's Office and requested that it investigate the matter. As a result, a county prevailing wage specialist assisted the City's Department of Civil Rights in conducting a further investigation. Following the additional investigation, the prevailing wage specialist drafted a letter that reaffirmed the Director's previous determination and forwarded it to the Director for his signature. The letter, however, was never distributed to appellants or AGS. The Director then sent a letter to AGS's attorney requesting \\\"complete payroll documentation,\\\" but the City did not further pursue the matter.\\nSubsequently, appellants sued AGS for breach of contract; alleged violations of the Payment of Wages Act, Minn.Stat. \\u00a7 181.01-.171 (2010) and alleged violations of the Minnesota Fair Labor Standards Act, Minn.Stat. \\u00a7 177.21-.35 (2010); and unjust enrichment. Appellants alleged that they were intended third-party beneficiaries under the contract between AGS and the City, that AGS breached the contract by failing to pay them as terrazzo mechanics, tile layers, and/or cement masons, and therefore the appellants were entitled to recover the prevailing wage from AGS. As a result of AGS's failure to pay them as terrazzo mechanics, appellants also argued that AGS violated the Payment of Wages Act and the Minnesota Fair Labor Standards Act, and that AGS was unjustly enriched.\\nFollowing discovery, both parties moved for summary judgment. The district court granted AGS's motion for summary judgment and dismissed appellants' breach of contract claim because appellants failed to establish they were intended third-party beneficiaries of the contract. Additionally, the court dismissed appellants' other causes of action because they lacked merit. The court of appeals affirmed. Caldas v. Affordable Granite & Stone, Inc., A10-2173, 2011 WL 1938307, at *5 (Minn.App. May 23, 2011). We granted review.\\nI.\\nAppellants argue that the district court erred in granting summary judgment in favor of AGS. We review decisions granting summary judgment to determine whether there are any genuine issues of material fact that would preclude summary judgment, and whether the district court erred in its application of the law. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 581 (Minn.2010). In doing so, we view the evidence in the light most favorable to the party against whom judgment was granted. Valspar Refinish, Inc. v. Gaylord's, Inc., 764 N.W.2d 359, 364 (Minn.2009). We review the district court's application of the law de novo. Dykes, 781 N.W.2d at 581.\\nAppellants raise three issues on appeal. First, appellants argue that they have a legal right to enforce the contract between AGS and the City because they are intended third-party beneficiaries of the contract. According to appellants, the contract between AGS and the City requires AGS to pay the appellants the prevailing wage for terrazzo mechanics, and therefore they are entitled to the difference between the prevailing wage of $16.38 actually paid per hour for janitorial or maintenance workers and the prevailing wage of $44.31 per hour for terrazzo mechanics. Essentially, appellants contend that AGS misclassified their work as janitorial or maintenance work and that they have a right under the contract between AGS and the City to challenge that classification.\\nContract interpretation is a question of law that we review de novo. Valspar, 764 N.W.2d at 364. We review the language of a contract to determine the intent of the parties. Dykes, 781 N.W.2d at 582. When the language of a contract is clear and unambiguous, we enforce the agreement of the parties as expressed in the contract. Id. But if the language is ambiguous \\u2014 that is, susceptible to more than one reasonable interpretation \\u2014 parol evidence may be considered to determine the intent of the parties. Id.; Hickman v. SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn.2005). \\\"Whether a contract is ambiguous is a question of law that we review de novo.\\\" Dykes, 781 N.W.2d at 582.\\nGenerally, one who is not a party to a contract has no rights under the contract, but a third party \\\"may enforce a promise made for his benefit even though he is a stranger both to the contract and the consideration.\\\" N. Natl Bank of Bemidji v. N. Minn. Nat'l Bank of Duluth, 244 Minn. 202, 208-09, 70 N.W.2d 118, 123 (1955). \\\"[T]he contractual right which third-party beneficiaries acquire under the doctrine is to enforce a promise made for their benefit which they otherwise would not be able to enforce.\\\" Id. at 209, 70 N.W.2d at 123.\\nWe have adopted the Restatement (Second) of Contracts \\u00a7 302 (1981) to determine whether a beneficiary of a promise is an intended beneficiary with legal rights under a contract or merely an incidental beneficiary with no legal rights. Cretex Cos. v. Constr. Leaders, Inc., 342 N.W.2d 135, 139 (Minn.1984); see also Hickman, 695 N.W.2d at 369-70 (stating that an intended beneficiary under a section 302 analysis has a contractual right to enforce a promise); Duluth Lumber & Plywood Co. v. Delta Dev., Inc., 281 N.W.2d 377, 384-86 (Minn.1979) (applying incidental, intended beneficiary analysis). The Restatement provides:\\n(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either\\n(a) the performance of the promise will satisfy an obligation of the prom-isee to pay money to the beneficiary; or\\n(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.\\n(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.\\nRestatement (Second) of Contracts \\u00a7 302. Under section 302, a third party is an intended beneficiary under a contract when it is appropriate to recognize third-party beneficiary rights to effectuate the intent of the parties to the contract, and either the duty owed or the intent-to-benefit test is satisfied. Cretex Cos., 342 N.W.2d at 139. A third party to the contract who does not meet this standard is merely an incidental beneficiary and has no right to enforce the contract. See id.\\nIn this case, appellants argue that there is an intent to benefit them under section 302, subpart 1(b). Accordingly, we must determine whether the promisee (City) intended to give the beneficiary (appellants) the benefit of the promisor's (AGS) performance and whether recognizing a right to performance in appellants is appropriate to effectuate the intent of the City and AGS in making the contract. In determining the parties' intent, we look to the language of the contract. See Cretex Cos., 342 N.W.2d at 140; see also Hickman, 695 N.W.2d at 370 n. 7 (noting that \\\"the objective manifestation of intent controls\\\").\\nIn Hickman, we considered the question of whether a borrower under a note was a subpart 1(b) intended third-party beneficiary of a fire and windstorm insurance policy issued to a mortgage company. 695 N.W.2d at 366. We answered that question in the affirmative on the basis that the insurance policy recognized, among other things, the class of persons of borrowers, provided for coverage in excess of the mortgage company's interest and for loss of personal property, and provided for payment directly to the borrower. Id. at 370-71. Importantly, we observed that under the intent-to-benefit test, the circumstances indicated that the promisee intended to give the beneficiary the benefit of the promise. Id. In doing so, we looked to the language of the policy to make that determination. Id. at 171 (declining to rely on extrinsic evidence because the contract language clearly indicated that the borrower was an intended beneficiary of the policy).\\nAppellants rely on the contract language to argue that the City intended to benefit them. Specifically, the contract provides:\\n[I]t is agreed that payment of wages to employees or agents of the Contractor or any Subcontractor shall be no less than the amounts set forth in the current U.S. Department of Labor, General Wage Decision for the State of Minnesota-Hennepin County.\\nAccording to appellants, this provision of the contract clearly manifests an intent to benefit them.\\nWe examine the contract as a whole to ascertain the intent of AGS and the City. See Halla Nursery, Inc. v. City of Chanhassen, 781 N.W.2d 880, 884 (Minn.2010). The contract contemplates that AGS will classify the work performed by appellants in accordance with existing U.S. Department of Labor criteria and that AGS will pay appellants the prevailing wage for that classification. The promise at issue is the promise of AGS that employees will be properly classified and paid the prevailing wage for that classification.\\nIn determining whether there is an intent to benefit a third party through a promise in a government contract, we consider whether the contract provides a remedy for enforcement of the promise. See 9 J. Murray, Corbin on Contracts \\u00a7 45.6 (rev. ed. 2007) (\\\"The distinction between an intention to benefit a third party and an intention that the third party should have the right to enforce that intention is emphasized where the promisee is a governmental entity.\\\"). As the Restatement recognizes, \\\"Government contracts often benefit the public, but individual members of the public are treated as inci dental beneficiaries unless a different intention is manifested.\\\" Restatement (Second) Contracts \\u00a7 313 cmt. a (1981); see Speleos v. BAC Home Loans Servicing, L.P., 755 F.Supp.2d 304, 310 (D.Mass.2010) (noting the \\\"general proposition\\\" that \\\"public citizens are not intended third-party beneficiaries to government contracts despite the fact that such contracts are usually intended to benefit the public in some way\\\"). Therefore, because of \\\"the complications that would ensue from private enforcement of government contracts by members of the general public,\\\" courts require a showing that the parties clearly intended that third parties be permitted to enforce the contract. Edwards v. Aurora Loan Servs., LLC, 791 F.Supp.2d 144, 151 (D.D.C.2011).\\nIn this case, the contract does not manifest an intention that the employees of AGS have the right to enforce the prevailing wage provision. Rather, the contract gives only the City the right of enforcement. The contract specifically grants to the City the right to enforce the promise against AGS, either through the prevailing wage certificate, the Public Works Ordinance, or at common law. The prevailing wage certificate states:\\nFailure to comply with [the Public Works Ordinance] shall mean the City may, by written notice' to the Contractor, terminate the Contractor's right to proceed with the work and the Contractor and the Contractor's Sureties shall be liable to the City for any excess cost occasioned to the City for the completion of the work.\\nSimilarly, the Public Works Ordinance, which is incorporated by reference into the prevailing wage certificate, allows the City to challenge misclassification or underpayment of wages paid under a public contract. Minneapolis, Minn., Code of Ordinances tit. 2, ch. 24, art. IV, \\u00a7 24.200-.260. The Ordinance requires a prospective contractor to submit to the City, before the contract is awarded, a list of the various classes of laborers and mechanics to be employed on the project, \\\"together with a schedule of wage rates and fringe benefits to be paid to such employees.\\\" Id. \\u00a7 24.230. Once the contract has been awarded, the contractor is required to cooperate with any City investigation regarding compliance with the prevailing wage requirements. Id. \\u00a7 24.240. If the City finds that the contractor is paying its employees less than the required wage, the City may terminate the contract and complete the work with a different contractor, suspend or disbar the contractor from future work for the City, and seek damages from the contractor for any costs incurred. Id. \\u00a7 24.250. Additionally, the City may withhold payments under the contract to the extent of the underpayment of required wages. Id.\\nAppellants concede that they have no private right of action to enforce the prevailing wage requirements of the Public Works Ordinance. Further, appellants concede that the Ordinance and contract \\\"provide administrative remedies only.\\\"\\nThe City exercised its right under the contract to investigate the alleged prevailing wage violations and made a finding that there had not been a violation. The City then voluntarily abandoned its administrative remedies.\\nWe conclude that appellants have failed to show that recognition of intended third-party beneficiary rights is appropriate to effectuate the intention of the parties to the contract. The promise of AGS to properly classify work in accordance with U.S. Department of Labor criteria and to pay the prevailing wage to employees was a general promise to comply with the law, which does not confer upon AGS employees the right to enforce the law. For example, the Supreme Court recently rejected third-party beneficiary status for health care facilities that alleged they were overcharged for certain drugs purchased from manufacturers that had entered into pharmaceutical pricing agreements with the federal government. Astra USA, Inc. v. Santa Clara Cnty., \\u2014 U.S.-, 131 S.Ct. 1342, 1348, 179 L.Ed.2d 457 (2011). The Supreme Court ruled that the healthcare facilities could not sue the drug manufacturers as third-party beneficiaries when the agreements simply \\\"incorporate^] statutory obligations and recorded] the manufacturers' agreement to abide by them.\\\" Id.; see also D Amato v. Wis. Gas Co., 760 F.2d 1474, 1479-80 (7th Cir.1985) (concluding that employee of a government contractor could not maintain third-party beneficiary action against contractor on basis of affirmative-action clauses required in government contracts by the Rehabilitation Act). Therefore, appellants do not have a right to enforce the prevailing wage requirements when the contract merely confirmed that AGS would comply with the prevailing wage requirements of the City ordinance and did not otherwise demonstrate any intention to allow the affected employees to enforce those requirements.\\nAmicus City asserts that it intended to give appellants the benefit of the contract, and therefore we should treat appellants as intended beneficiaries under the contract. To determine intent, however, we must examine \\\"the objective manifestation of intent\\\" that appears in the terms of the contract, \\\"not the parties' subjective intent.\\\" Hickman, 695 N.W.2d at 370 n. 7. As we have explained, the contract clearly expresses the intent that the City, not appellants, has the right to enforce the promised performance. We recognize that appellants do derive some incidental benefit from the proper classification of their work under the Public Works Ordinance and the prevailing wage certificate. Because the contract does not evidence an intent by the City and AGS that appellants are the intended beneficiaries of that promise, we conclude that it is not appropriate to recognize appellants as intended third-party beneficiaries.\\nII.\\nSecond, appellants argue that the district court erred in granting summary judgment in favor of AGS and dismissing their payment of wage claims brought under Minn.Stat. \\u00a7 181.01-.171, which decision was affirmed by the court of appeals. Specifically, appellants contend that their wage claim should be allowed to proceed because wages were \\\"mandatory\\\" and \\\"actually earned\\\" under section 181.13.\\nStatutory interpretation is a question of law that we review de novo. Engquist v. Loyas, 803 N.W.2d 400, 403 (Minn.2011). The goal of all statutory interpretation is to \\\"ascertain and effectuate the intention of the legislature.\\\" Minn. Stat. \\u00a7 645.16 (2010); accord Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn.2010). If the language of the statute is clear and free from ambiguity, the court's role is to enforce the language of the statute and not explore the spirit or purpose of the law. Minn.Stat. \\u00a7 645.16. Additionally, when we have interpreted a statute, that interpretation guides us in reviewing subsequent disputes over the meaning of the statute. See Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 172 (Minn.2010). Specifically, judicial construction of a statute becomes part of the statute as though written therein. Sandal v. Tollman Oil Co., 298 Minn. 264, 268, 214 N.W.2d 691, 693 (1974) (citing Roos v. City of Mankato, 199 Minn. 284, 288, 271 N.W. 582, 584 (1937)).\\nTo determine whether appellants have a viable payment of wage claim, we must examine the statute and applicable case law, and then apply the law to appellants' claim. Generally, the Payment of Wages Act sets forth requirements and restrictions respecting the method, timing, and procedures by which wages are paid in Minnesota. Minn.Stat. \\u00a7 181.01-171. The purpose of the Payment of Wages Act is to penalize employers that fail to promptly pay their employees' wages. Hansen v. Remer, 160 Minn. 453, 462, 200 N.W. 839, 843 (1924). An individual may bring a civil action against a former employer at the end of the individual's employment to redress violations of the employer's obligation to promptly pay wages to the individual. Minn.Stat. \\u00a7 181.171. The payment requirements vary somewhat depending upon whether the employer discharged the employee, or the employee quit or resigned. See Minn.Stat. \\u00a7 181.13-14. We have concluded that sections 181.13 and .14, the provisions governing payment requirements, must be read together. Chatfield v. Henderson, 252 Minn. 404, 410, 90 N.W.2d 227, 232 (1958).\\nIt is undisputed that section 181.13(a) is applicable in this case. It provides:\\nWhen any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee's earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default . until full payment or other settlement . is made.\\nMinn.Stat. \\u00a7 181.13(a). The statute, however, does not define the term \\\"wages,\\\" or the phrases \\\"actually earned\\\" or \\\"earned and unpaid.\\\"\\nInitially, appellants argue that the Payment of Wages Act provides an independent cause of action to recover wages. In Lee v. Fresenius Medical Care, Inc., 741 N.W.2d 117, 125-26 (Minn.2007), we considered the meaning of the phrase \\\"actually earned\\\" in section 181.13. We held that \\\"section 181.13(a) is a timing statute, mandating not what an employer must pay a discharged employee, but when an employer must pay a discharged employee.\\\" Id. at 125. Specifically, we stated that the \\\"wages that an employee has actually earned are defined by the employment contract between the employer and the employee and cannot be determined through a claim brought under section 181.13(a).\\\" Id. at 127-28.\\nConsequently, we conclude that the Payment of Wages Act does not create a substantive right to the recovery of a particular wage. Instead, section 181.13 is a timing statute that requires prompt payment of wages actually earned. To recover under the statute the employee must establish an independent, substantive legal right, separate and distinct from section 181.13 to the particular wage claimed. Thus, we must determine whether appellants have established a separate substantive legal right to the prevailing wage claimed.\\nAppellants point to the contract between the City and AGS, and the Public Works Ordinance as providing the separate substantive legal right to bring their payment of wages claim. They argue that AGS had a legal obligation to pay them the prevailing wage, and therefore their unpaid wages were \\\"actually earned\\\" within the meaning of section 181.13.\\nWe conclude that appellants' payment of wages claim fails. Specifically, appellants were employees of AGS, and were paid wages in accordance with that employment relationship. Appellants' claim for the higher prevailing wage is predicated upon the contract between the City and AGS, and the Public Works Ordinance incorporated into the contract. Because we conclude appellants are not intended third-party beneficiaries under the contract, they are not entitled to enforce the contract, or the Public Works Ordinance against AGS. Appellants therefore have not \\\"actually earned\\\" the higher prevailing wage within the meaning of section 181.13(a). Consequently, appellants have failed to establish a separate substantive legal right to recover wages that is separate and distinct from section 181.13, and therefore appellants' statutory claim fails.\\nIII.\\nFinally, appellants argue that AGS was unjustly enriched by not paying them the terrazzo mechanic's prevailing wage. Appellants urge the court to apply the doctrine of unjust enrichment to require AGS to pay them $44.31 per hour instead of the $16.28 they actually received.\\nIn SCI Minnesota Funeral Services, Inc. v. Washburn-McReavy Funeral Corp., we discussed the standard of review on appeal from a grant of summary judgment involving claims for equitable relief. 795 N.W.2d 855 (Minn.2011). We concluded that when the relevant facts are undisputed the standard of review is de novo, but a more deferential abuse of discretion standard of review might be applicable where the district court, after balancing the equities, determines not to award equitable relief. Id. at 860; Citizens State Bank v. Raven Trading Partners, Inc., 786 N.W.2d 274, 277 n. 2 (Minn.2010). Because we conclude that the claim fails under either a de novo or the more deferential abuse of discretion standard, we decline to resolve the standard of review question in this case.\\nUnjust enrichment is an equitable doctrine that allows a plaintiff to recover a benefit conferred upon a defendant when retention of the benefit is not legally justifiable. It is commonly referred to as a quasi-contract or a contract implied-in-law claim. It does not apply when there is an enforceable contract that is applicable. In ServiceMaster of St. Cloud v. GAB Business Services, Inc., we explained:\\nTo establish an unjust enrichment claim, the claimant must show that the defendant has knowingly received or obtained something of value for which the defendant in equity and good conscience should pay. [UJnjust enrichment claims do not lie simply because one party benefits from the efforts or obligations of others, but instead it must be shown that a party was unjustly enriched in the sense that the term unjustly could mean illegally or unlawfully.\\n544 N.W.2d 302, 306 (Minn.1996) (internal quotation marks omitted) (citations omitted). We have limited the application of unjust enrichment to claims premised on an implied or quasi-contract between the claimant and the party alleged to be unjustly enriched. See, e.g., id. at 306-07 (concluding that home restoration contractor that repaired fire damage to an insured home could not recover on theory of unjust enrichment from insurer for failure to include its name on a settlement check); First Nat'l Bank of St. Paul v. Ramier, 311 N.W.2d 502, 504 (Minn.1981) (concluding that constructive trust was inappropriate when a bank did not require security for a loan or obtain a potential joint tenant's signature on the promissory note); Klass v. Twin City Fed. Savs. & Loan Ass'n, 291 Minn. 68, 69, 190 N.W.2d 493, 493 (1971) (concluding that lessee could recover on theory of unjust enrichment a portion of condemnation award from lessor intended to reimburse for real estate taxes); Cady v. Bush, 283 Minn. 105, 110, 166 N.W.2d 358, 361-62 (1969) (concluding that unjust enrichment did not apply when purchasers of motel attempted to recover, upon cancellation of the contract, cash payments made to seller); Georgopolis v. George, 237 Minn. 176, 185-86, 54 N.W.2d 137, 142-43 (1952) (concluding that findings supported denying establishment of a constructive trust on the theory that defendant owner of residence was unjustly enriched by plaintiffs contribution to the property).\\nThus, to prevail on a claim of unjust enrichment, a claimant must establish an implied-in-law or quasi-contract in which the defendant received a benefit of value that unjustly enriched the defendant in a manner that is illegal or unlawful. First Nat'l Bank, 311 N.W.2d at 504. In this case, appellants' unjust enrichment claim is predicated on the theory that they have a right to be classified as terrazzo mechanics at the corresponding pay rate of $44.31 per hour. For this proposition, they rely on the prevailing wage certificate in the contract between AGS and the City, to which they are only incidental third-party beneficiaries with no rights of enforcement.\\nWe conclude that because appellants are not intended third-party beneficiaries of the contract, their unjust enrichment claim is not legally supportable. Essentially, appellants are attempting to bring an unjust enrichment claim to avoid the result that they lack third-party beneficiary status to enforce the contract. Cf. U.S. Fire Ins. Co. v. Minn. State Zoological Bd., 307 N.W.2d 490, 497 (Minn.1981) (stating that \\\"equitable relief cannot be granted where the rights of the parties are governed by a valid contract\\\"). Previously, we have not extended the theory of unjust enrichment to allow an incidental third-party beneficiary to enforce a contract, and we decline to do so in this case. Accordingly, we hold that appellants' unjust enrichment claim fails as a matter of law.\\nAffirmed.\\n. Appellants dispute the project's end date, but that dispute is immaterial to this appeal.\\n. Appellants and some amici rely on the Davis-Bacon Act, 40 U.S.C. \\u00a7 3141-48 (2006), and the prevailing wage statutes of other states to argue that we should recognize them as intended third-party beneficiaries of the contract. Appellants' claim, however, is a common-law, third-party beneficiary claim for breach of contract; their claim is not predicated on the Davis-Bacon Act or any other statute. As a result, cases deciding whether private statutory causes of action exist under federal or state statutes are not relevant to the question of whether the City intended appellants to benefit from the prevailing wage provision in the contract. We observe that the United States Supreme Court has not ruled on whether the Davis-Bacon Act creates an implied private cause of action, and there is a circuit split on the issue among the United States Courts of Appeal. See, e.g., Univs. Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 769 n. 19, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981) (declining to reach issue of whether the Davis-Bacon Act creates an implied right of action). Compare McDaniel v. Univ. of Chi., 548 F.2d 689, 695 (7th Cir.1977) (finding implied private right of action in Davis-Bacon Act), with U.S. ex rel. Glynn v. Capeletti Bros., Inc., 621 F.2d 1309, 1317 (5th Cir.1980) (finding no implied private right of action in Davis-Bacon Act). It is not necessary for us to reach the issue of whether the presence or absence of an implied cause of action under the Davis-Bacon Act suggests something about the City's intent with regard to the contract and therefore we decline to reach the issue. We rest our conclusion on the ground that appellants' common law breach of contract claim fails because they have not established they are intended third-party beneficiaries of the contract.\\n. Appellants did not appeal the dismissal of their claim under the Minnesota Fair Labor Standards Act, and therefore that claim is not before us.\\n. Appellants rely on Kvidera v. Rotation Engineering & Manufacturing Co., 705 N.W.2d 416 (Minn.App.2005), to support their argument that they are not required to have a third-party right under the contract between AGS and the City. But Kvidera is a court of appeals opinion and is inapposite. In Kvidera, the court of appeals distinguished between a \\\"mandatory\\\" bonus given pursuant to an employee's achievement of contractually-specified criteria \\u2014 which would support a claim under the Payment of Wages Act \\u2014 and a \\\"discretionary\\\" bonus that has no such contractual basis and therefore would not support a claim under the Payment of Wages Act. 705 N.W.2d at 422-23. Thus, Kvidera provides no support for appellants' argument that they do not need a contractual or statutory right to recover under the Prevailing Wage Act.\"}"
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+"{\"id\": \"7085564\", \"name\": \"David FOSS, (as parent and natural guardian of David Gerald Warren Foss, minor child, and David Foss, individually), Appellant, v. Jeremy KINCADE and Stephanie Kincade, Defendants and Third-Party Plaintiffs, Respondents/Appellants, v. Peggy Foss, Third-Party Defendant/Respondent\", \"name_abbreviation\": \"Foss v. Kincade\", \"decision_date\": \"2009-05-14\", \"docket_number\": \"No. A07-0313\", \"first_page\": \"317\", \"last_page\": \"324\", \"citations\": \"766 N.W.2d 317\", \"volume\": \"766\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:07:46.418339+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David FOSS, (as parent and natural guardian of David Gerald Warren Foss, minor child, and David Foss, individually), Appellant, v. Jeremy KINCADE and Stephanie Kincade, Defendants and Third-Party Plaintiffs, Respondents/Appellants, v. Peggy Foss, Third-Party Defendant/Respondent.\", \"head_matter\": \"David FOSS, (as parent and natural guardian of David Gerald Warren Foss, minor child, and David Foss, individually), Appellant, v. Jeremy KINCADE and Stephanie Kincade, Defendants and Third-Party Plaintiffs, Respondents/Appellants, v. Peggy Foss, Third-Party Defendant/Respondent.\\nNo. A07-0313.\\nSupreme Court of Minnesota.\\nMay 14, 2009.\\nThomas G. Johnson, Todd M. Kleinhuizen, Johnson, Moody, Schmidt & Kleinhuizen, P.A., Willmar, Minnesota, for appellant.\\nJohn M. Bjorkman, Mark A. Solheim, Larson King, LLP, St. Paul, Minnesota, for third-party plaintiffs, respondents/appellants.\\nPeggy Foss, Lonsdale, Minnesota, pro se, third-party defendant/respondent.\", \"word_count\": \"3565\", \"char_count\": \"21539\", \"text\": \"OPINION\\nANDERSON, PAUL H, Justice.\\nOn October 15, 2003, three-year-old David Foss, Jr., was seriously injured by a falling bookcase while he was a guest in the home of respondents Stephanie and Jeremy Kincade. David Foss, Sr., on behalf of himself and his son, brought this action against the Kincades alleging that the Kincades' negligent failure to secure the bookcase to a wall was the cause of David's injuries. The Rice County District Court granted summary judgment in favor of the Kincades, and the Minnesota Court of Appeals affirmed. We conclude that the Kincades did not owe a legal duty to affix a typical household object because the harm that occurred was not foreseeable. Therefore, we affirm.\\nOn the afternoon of October 15, 2003, Peggy Foss, David's mother and Stephanie Kincade's longtime friend, had taken David and his nine-year-old sister on a visit to the Kincade home. The Kincade family had moved into the Foss's neighborhood a few weeks earlier and, as a result of the move, there were boxes around the house and some of the rooms were relatively empty of furniture. On that afternoon, the two women were visiting as their children played. While talking in the dining room, Peggy Foss and Stephanie Kin-cade heard a loud bang. They proceeded quickly to discover the source of the noise. The two women went to where they believed the sound had originated-a small spare bedroom located a few steps from the dining room. Upon entering the room, the women saw that a bookshelf, approximately six feet tall by three feet wide, had fallen over onto the carpeted floor.\\nPeggy Foss and Stephanie Kincade promptly lifted the bookcase and discovered three-year-old David underneath it. According to his mother, David was bleeding and turning blue. Stephanie Kincade quickly called 911, and an ambulance arrived to take David to the hospital. Because of the accident, David suffered serious injuries to his head, was hospitalized, and underwent several invasive surgical procedures. David's injuries caused permanent disfigurement to the left side of his face and possible future eye complications.\\nDavid's father, David Foss, Sr. (Foss), commenced this action against Jeremy and Stephanie Kincade in September 2005, claiming the Kincades' negligence caused David's injuries. Specifically, Foss claims that the Kincades were negligent in failing to secure the empty bookcase to the wall to prevent it from tipping over.\\nPeggy Foss gave deposition testimony that she had seen David climb shelves and furniture in her own home before the accident and had warned David not to do so. Peggy Foss said she was unaware of the bookcase in the Kincades' spare bedroom, but admitted she had probably been in the room at some point. While Peggy Foss acknowledges that she never specifically told the Kincades that David climbed furniture, she claims they were aware that David was a very active child.\\nThe Kincades gave deposition testimony acknowledging that a bookcase could tip over, but said they did not consider the bookcase in the spare bedroom to be a hazard to their own children. After the accident, the Kincades remodeled the spare bedroom, and moved the bookcase to the garage. Although the Kincades were contacted by an insurance representative about possible claims on David's behalf, the Kincades threw the bookcase away in the spring of 2004.\\nThe Kineades moved for summary judgment. The district court granted the motion, concluding that the Kineades owed no duty to David because the accident was not foreseeable. The court of appeals affirmed the district court, holding that because of the presence of Peggy Foss, the harm that occurred was not foreseeable, and therefore, the Kineades did not owe David a duty as matter of law. Foss ex rel. Foss v. Kincade, 746 N.W.2d 912, 916 (Minn.App.2008). The court also concluded that Foss was not prejudiced by the Kineades' disposal of the bookcase. Id. at 918. Foss appealed to our court, arguing that a landowner owes a duty of care to children invited on the premises and that the presence of the child's parent does not eliminate the duty owed by the landowner. Foss also sought review on the court of appeals' decision on the disposal of the bookcase.\\nI.\\nSummary judgment is appropriate when a district court concludes that \\\"there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.\\\" Minn. R. Civ. P. 56.03. We review the district court's grant of summary judgment for genuine issues of material fact and to determine whether the court erred in its application of law. Louis v. Louis, 636 N.W.2d 314, 318 (Minn.2001). We view the evidence in the light most favorable to the party against whom summary judgment was granted. Id. The existence of a legal duty in a negligence case, however, is a question of law that is reviewed de novo. Id.\\nFoss argues that the Kineades' negligence was the cause of the injuries David sustained at the Kineades' residence. In order to establish a prima facie case of negligence, Foss must show the following elements: (1) that the Kineades owed a duty to David; (2) that the Kin-cades breached that duty; (3) that the breach of duty was the proximate cause of David's injury; and (4) that David did in fact suffer an injury. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn.1982). The Kineades are entitled to summary judgment if the record reflects a complete lack of proof on any of the four elements of a prima facie case. Louis, 636 N.W.2d at 318.\\nAnalyzing an action brought against a landowner alleging negligence begins \\\"with an inquiry into whether the landowner owed the entrant a duty.\\\" Id. (citing Baber v. Dill, 531 N.W.2d 493, 495 (Minn.1995)). Historically in landowner cases, the duty owed to an entrant varied depending on the entrant's status on the land. Peterson ex rel. Peterson v. Balach, 294 Minn. 161, 163-64, 199 N.W.2d 639, 641-42 (1972). A landowner owed a greater duty to a licensee than a trespasser and an even greater duty to a business invitee than to a licensee. Id. at 163-175, 199 N.W.2d at 641-646. But in Peterson v. Balach we \\\"abolish[ed] the traditional distinctions governing licensees and invitees\\\" in determining a landowner's duty. Id. at 164, 199 N.W.2d at 642.\\nPeterson arose from the death of a child who, while an overnight guest in the defendant's cabin, was killed by carbon monoxide poisoning from a faulty propane refrigerator. Id. at 162-163, 199 N.W.2d at 641. As part of our analysis in Peterson, we held that a landowner owed a duty \\\"to use reasonable care for the safety of all such persons invited upon the premises, regardless of the status of the individuals.\\\" Id. at 174, 199 N.W.2d at 647. Under the rule announced in Peterson, \\\"the extent of the duty of the owner to inspect, repair, or warn those who come upon the land as licensees or invitees will be decided by the test of reasonable care.\\\" Id. According to Peterson, among the factors that might be considered in determining liability are \\\"the circumstances under which the entrant enters the land (licensee or invitee); foreseeability or possibility of harm; duty to inspect, repair, or warn; reasonableness of inspection or repair; and opportunity and ease of repair or correction.\\\" Id. at 174, 199 N.W.2d at 648 n. 7.\\nFoss argues for application of the child trespasser standard as the minimum standard of care of this case. Before Peterson, landowner negligence cases involving injuries to children were decided using the standard on child trespassers, regardless of \\\"whether the child is an invitee, licensee, or trespasser.\\\" Meagher ex rel. Meagher v. Hirt, 232 Minn. 336, 339, 45 N.W.2d 563, 565 (1951) (citing Restatement Torts (Tent. Draft No. 4) \\u00a7 209 which was later adopted in Restatement (Second) Torts \\u00a7 339). Cases decided after Peterson clarified that the child trespasser standard is the minimum standard of care and that child licensees and invitees have greater protection than a trespasser. See Szyplinski ex rel. Szyplinski v. Midwest Mobile Home Supply Co., 308 Minn. 152, 155-56, 241 N.W.2d 306, 309 (1976). Therefore, although the child trespasser standard may set the minimum standard of care, the standard of care applicable to a child injured on a landowner's premises is the general duty of reasonable care. E.g., Canada ex rel. Landy v. McCarthy, 567 N.W.2d 496, 504-05 (Minn.1997).\\nThe result of this approach, as in any premises liability negligence case, is that the \\\"landowner's duty of reasonable care is modified according to the expected use of the land.\\\" Olmanson v. LeSueur County, 693 N.W.2d 876, 880-81 (Minn.2005). Here, we must determine whether the harm to David implicated the Kin-cades' duty \\\"to use reasonable care for the safety of all such persons invited upon the premises, regardless of the status of the individuals.\\\" Peterson, 294 Minn. at 174, 199 N.W.2d at 647.\\nThe Kincades urge us to adopt the rationale articulated by the court of appeals, which would limit their liability for David's injuries based on the presence of Peggy Foss at the time of the accident. Foss, 746 N.W.2d at 916-17. The argument is premised on our language in Sirek v. Department of Natural Resources, 496 N.W.2d 807 (Minn.1993). \\u2022 Sirek involved a child who was injured at a state-owned recreational area, which she was visiting with her parents. Id. at 808. Because the area was publicly-owned, we concluded that the state had limited statutory immunity under the Minnesota Tort Claims Act and could not be held liable unless a trespasser could recover for the injuries sustained. Id. at 809 (applying Minn.Stat. \\u00a7 3.736 subd. 3(h) (1992)). We therefore had to determine which standard of care applied: the standard applicable to an adult trespasser or the standard applicable to a child trespasser.\\nIn Sirek, we distinguished cases in which an injured child had recovered damages for injuries suffered in the presence of his or her parents. 496 N.W.2d at 811 (referring to Peterson ex rel. Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 89 N.W.2d 712 (1958)). We explained that in those previous cases involving the presence or absence of parents the injured children were invitees or licensees \\\"who wandered away from their parents in business places\\\" where the children's \\\"unsupervised presence could reasonably be anticipated.\\\" 496 N.W.2d at 811. Because Sirek concerned a child injured while visiting a nature reserve, we said that it was expected that young children present at the reserve would be supervised. Id. at 810-11. Ultimately, we chose to apply the adult-trespasser standard in Sirek, in part because \\\"if a child is too young chronologically or mentally to be 'at large,' the duty to supervise that child as to obvious risks lies primarily with the accompanying parent.\\\" Id. (quoting Salinas v. Chicago Park Disk, 189 Ill.App.3d 55, 136 Ill.Dec. 660, 545 N.E.2d 184, 188 (1989)).\\nWe have only applied Sirek to cases decided within the context of statutory immunity. See, e.g., Johnson ex rel. Johnson v. Washington County, 518 N.W.2d 594, 599 (Minn.1994). Further, we have found Sirek inapplicable to premises-liability-negligence cases when the injured child was invited onto the premises and was not a trespasser, noting that the \\\" 'rule of law in trespass cases contrasts sharply from the duty of reasonable care owed by most landowners.' \\\" Canada, 567 N.W.2d at 504 (quoting Sirek, 496 N.W.2d at 809).\\nWe find this case to be similar to the situation presented in Canada. Canada concerned allegations that a child had become ill after the defendant \\u2014 the landlord of an apartment where the injured child was frequently a guest of the tenant\\u2014 failed to properly remove lead paint. Id. at 504. The landlord relied on Sirek to argue that even if he owed a duty to the child, he was relieved of liability because the child was under the care of an adult who was aware of the lead removal dangers. Id. at 505. In rejecting the landlord's argument, we said that the adults, including the landlord, each \\\"owed an independent duty of care to [the child], and no duty was extinguished by the negligence of another.\\\" Id.\\nWe have never extended the rationale of Sirek to other premises liability cases, and we decline to so here. As we expressed in Canada, whether an invitee child's injuries might also be causally linked to a parent's failure to supervise is a question of comparative negligence, not a ground on which to extinguish the landowner's duty to maintain a safe premises for social guests. See id.\\nAlthough we do not, as the court of appeals did, premise our holding here on the presence of Peggy Foss, we nonetheless conclude that the harm to David was not reasonably foreseeable. When determining whether a danger is foreseeable, we \\\"look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.\\\" Whiteford ex rel. Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn.1998). A harm which is not objectively reasonable to expect is too remote to create liability. Id. Although in most cases the question of foreseeability is an issue for the jury, the foreseeability of harm can be decided by the court as a matter of law when the issue is clear. Id.\\nFoss argues that because the Kin-cades, in their deposition testimony, admitted to being aware that a bookcase that is not secured to the wall could fall, the harm that occurred was sufficiently foreseeable to create an issue of fact for the jury. We disagree. When dealing with a three-year-old child, the realm of possible harm is much larger than the realm of reasonably foreseeable harm. It is not difficult to make a laundry list of common household items with which a three-year-old could conceivably injure himself, but negligence law does not require a homeowner to take every precaution to guard against every possible eventuality. For example, we would not expect homeowners to bolt down their table lamps before inviting a three-year-old into their house, even though it is possible that such a child could be injured by pulling the lamp onto himself.\\nHere, David was injured by a similar common household item-a freestanding bookcase. Such bookcases are a common feature in homes, yet homeowners do not expect their guests to climb on them. The Kincades' admission that it is within the \\\"realm of conceivable possibility\\\" that a bookcase could tip over, therefore, does not create an issue of fact. It is not objectively reasonable to expect a homeowner to foresee that a guest \\u2014 even a child \\u2014 will climb on a bookcase nor is it objectively reasonable to expect the homeowner to guard against that possibility.\\nFoss argues that the harm to David was foreseeable because the Kincades' bookcase was not secured to the wall, on a carpeted floor, and left empty. It is not difficult to imagine a different set of facts in which a jury question as to foreseeability would arise. For example, if the Kin-cades had actual knowledge that David had a tendency to climb bookcases, the Kincades may have had a duty to secure the bookcase or at least to warn Peggy Foss of its unsecured condition. But those are not the facts before us. Here, the mere fact that the Kincades' bookcase was in a condition that made it more prone to tipping if climbed is unpersuasive because it was simply not reasonably foreseeable that David would try to climb on the bookcase.\\nII.\\nFoss also argues that because the Kincades disposed of the bookcase after being contacted by an insurance representative, the court should draw an inference as to the condition of the bookcase that is unfavorable to the Kincades. In particular, Foss asserts that the bookcase may have had warning stickers that would prove that the Kincades were on notice that the bookcase could tip over. As the court of appeals noted, the issue of spoliation of evidence was raised, but not resolved, at the district court level. Foss, 746 N.W.2d at 918. Although appellate courts generally do not resolve issues not addressed by the district court, the court of appeals, in the interest of judicial economy, determined that the disposal of the bookcase did not warrant the sanction Foss requested. Id.\\nWe agree with the court of appeal's resolution of this issue. A discovery sanction is only appropriate if the unavailability of the evidence results in prejudice to the opposing party. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn.1995) (citing Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir.1993)). \\\"Implicit in that standard is the need to examine the nature of the item lost in the context of the claims asserted and the potential for remediation of the prejudice.\\\" Id. at 119. Applying the foregoing standard to this case, the loss of the bookcase is not significant to Foss's case. The warning sought by Foss would only demonstrate that the Kincades were on notice that the bookcase could tip over. But the Kincades admit to knowing the bookcase was capable of tipping over, and therefore the disposal of the bookcase did not prejudice Foss.\\nBecause we conclude that the harm that occurred to David Foss was not legally foreseeable, we hold that the Kincades had no duty to prevent the harm that occurred to him while at the Kincades' home. Therefore, we affirm the decision of the district court.\\nAffirmed.\\n. The standard set for child trespassers in \\u00a7 339 is as follows:\\nA possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:\\n(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and\\n(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,\\n(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and\\n(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and\\n(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.\"}"
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+"{\"id\": \"7090246\", \"name\": \"STATE of Minnesota, Respondent, v. Revelle LOVING, Appellant\", \"name_abbreviation\": \"State v. Loving\", \"decision_date\": \"2009-12-17\", \"docket_number\": \"No. A08-1492\", \"first_page\": \"872\", \"last_page\": \"882\", \"citations\": \"775 N.W.2d 872\", \"volume\": \"775\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T22:01:41.801578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Revelle LOVING, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Revelle LOVING, Appellant.\\nNo. A08-1492.\\nSupreme Court of Minnesota.\\nDec. 17, 2009.\\nLori Swanson, Attorney General, St. Paul, MN; and Michael 0. Freeman, Hen-nepin County Attorney, Thomas A. Weist, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.\\nMarie Wolf, Assistant State Public Defender, St. Paul, MN, for appellant.\", \"word_count\": \"4876\", \"char_count\": \"29903\", \"text\": \"OPINION\\nANDERSON, G. BARRY, Justice.\\nA Hennepin County jury found appellant Revelle Loving guilty of first-degree premeditated murder for the January 16, 2007, shooting deaths of Mosetta Peters and Ja'Naurri Allen. On appeal, Loving argues that the district court abused its discretion by admitting (1) gunshot residue evidence, and (2) relationship evidence. He also raises eight arguments in a pro se supplemental brief. We affirm.\\nIn the fall of 2002 Loving began dating Mosetta Peters. In July 2003, Peters had a baby, M., and Loving was the father. Loving was released from a juvenile facility in April 2004 and visited his child even though he and Peters had an argumentative relationship. Loving and Peters periodically lived together beginning in the fall of 2004.\\nThe conflicts between Loving and Peters escalated and, in some instances, included police involvement. In 2005 Loving and Peters had an altercation at the apartment of Peters's foster sister. During the argument, Loving picked up Peters and threw her on the floor. Loving told Peters's foster sister to \\\"get her before If*** her up.\\\" In July 2006 a police officer went to Peters's apartment after a 911 hang-up call. The officer noticed that there was a broken doorway frame, and issued a pickup and hold order for Loving for 911 interference. Later that month, another police officer responded to a disturbance call at Peters's apartment. Peters had a red mark on her face and red marks on her right arm. Loving was present and told the officer that he and Peters had had an argument. Loving was cited for misdemeanor domestic assault.\\nAround September 2006, Peters began dating Ja'Naurri Allen and he eventually moved in with her, but Peters maintained contact with Loving. One of Peters's coworkers at a Montessori school testified that in December 2006 Loving went to the school and got into an argument with Peters. The co-worker heard Loving say the word \\\"kill.\\\" After Loving left, Peters was crying and shaking, and told her co-worker that Loving said that if he ever saw Peters and his child get into Allen's car again, he would kill Allen and Peters. Peters's sister also testified that Peters told her that Loving had threatened to kill Allen and Peters.\\nIn late December 2006 Loving and his grandmother picked up M. and did not return her to Peters. Loving testified that M. made allegations that Allen had touched her on her private area. Peters's foster sister testified that she heard Loving say to Peters over a speakerphone, \\\"I know ain't nobody touched my daughter. I just want to make your life miserable.\\\"\\nAllen's stepfather testified that around January 6, 2007, he noticed that Allen had a black eye. Allen told his stepfather that he had been in a fight with \\\"his girl's baby daddy\\\" at the apartment complex where he had been staying with Peters. The \\\"girl's baby daddy\\\" had tried to swing a bat at Allen and Allen told his stepfather that \\\"the motherf says he's going to kill me.\\\" Allen also told his stepfather that because of the incident, he wanted to move. A few days later, Allen's stepfather noticed the windows on Allen's car were broken, and Allen again referenced \\\"his girl's baby father.\\\"\\nAround January 12, Peters moved out of her New Brighton apartment with Allen, and they moved in with Peters's foster sister at Villa Del Coronado Apartments in Brooklyn Park. On January 16, 2007, at about 10:16 p.m., several people saw two men in the parking lot of Villa Del Coronado Apartments. The two men had arrived in what appeared to be a silver sport utility vehicle (SUV). They were wearing black clothes; one was carrying a long rifle and was wearing gloves and a dark coat. The two men approached a parked car and fired gunshots into it. Police arrived several minutes later and found Allen and Peters dead inside the parked car. Allen died from 14 gunshot wounds and Peters died from multiple gunshot wounds.\\nCourtney Saffold, a codefendant who pled guilty to two counts of accomplice after the fact to aiding and abetting murder, testified that he had been driving with Loving and Loving's brother Ronelle in a tan Santa Fe SUV the evening of January 16. Saffold testified that Loving was wearing a large coat and had an AK-47 and 9 millimeter gun in the back seat. While Saffold was driving the SUV, Loving told him to turn into the Villa Del Coronado Apartments parking lot. Loving and Ronelle got out of the SUV; Loving had the AK-47 and Ronelle had the 9 millimeter gun. Saffold heard the two guns fire. Saffold testified that after Loving and Ro-nelle returned to the SUV, Loving seemed relieved and as they drove away, Loving said \\\"I got him.\\\" At trial, Saffold identified a photo of the SUV he had driven. The SUV had been leased to T.H. from January 11 to January 21, 2007. T.H. had loaned it to her roommate, A.W., whose boyfriend was Ronelle (a.k.a., \\\"Midnight\\\"). Police found a red hat containing DNA consistent with Saffold's DNA in the parking lot shortly after the shooting.\\nAround 3 a.m. on January 17, Loving went to the home of James Salter wearing a black hooded sweatshirt and jacket. Salter testified that Loving took a shower at Salter's apartment and talked about an AK-47, a 9 millimeter gun, and a shooting. Salter said that Loving bought clothes from him, and Loving put the clothes he had been wearing into a Cub Foods bag. Salter also testified that as Loving was leaving, Loving said, \\\"Man, I got \\u2014 I wanted to change. I got gunpowder on my clothing.\\\"\\nIn the early afternoon of January 17, Loving voluntarily went to the police and gave a taped statement. He denied knowing Allen, claimed he did not possess guns, had never shot or held a gun, and had last been in proximity to a fired gun when he was 12 or 13 years old. Police arrested Loving on January 22 and conducted a search of his car. In the trunk they found a dark coat and a plastic Cub Foods bag that had a black pair of pants and one glove in it. A latent print examiner identified Loving's fingerprint on the bag.\\nD.D., who shared a jail cell with Loving in March 2007, testified that Loving told him that Loving and his younger brother Ronelle used an AK-47 and a 9 millimeter gun to shoot Loving's girlfriend and her boyfriend in a car. Cell phone records indicated that Loving, Ronelle, and Saffold had been in the Brooklyn Park area on January 16, although they did not use their cell phones from 9:49 p.m. to 10:29 p.m. Loving testified at trial and denied being in Brooklyn Park on January 16, denied seeing Saffold that evening, and denied admitting to D.D. any involvement in the shooting.\\nA forensic expert performed gunshot residue (GSR) testing on the coat, pants, and glove from Loving's car. The expert used a scanning electron microscope with an energy dispersive X-ray system (SEM/EDX) and found GSR (three-element particles of antimony, barium, and lead) on the coat, and particles consistent with GSR (two-element particles) on the coat, pants, and glove. Loving's expert agreed with the findings concerning the coat and glove. The district court held a pretrial hearing on the admissibility of the GSR evidence and determined that testimony about the GSR from the coat was admissible, but testimony about the two-element particles from the pants and glove was not admissible. Later, the district court ruled that the relationship evidence with respect to Loving, Peters, and Allen was admissible to show evidence of a strained relationship between Loving and the decedents, but did not permit evidence about the decedents' fear of Loving. The jury found Loving guilty of two counts of first-degree premeditated murder, Minn. Stat. \\u00a7 609.185(a)(1) (2008). The district court sentenced Loving to two concurrent terms of life in prison without possibility of release. Loving appealed his convictions.\\nI.\\nLoving argues that the district court abused its discretion when, after a Fry e-Mack hearing, it ruled that testimony about gunshot residue found on the coat from Loving's ear was admissible. Novel scientific evidence is evaluated using a two-pronged Frye-Mock standard: \\\"The district court must first determine whether the novel scientific evidence offered is generally accepted in the relevant scientific community. Second, the court must determine whether the novel scientific evidence offered is shown to have foundational reliability.\\\" State v. MacLennan, 702 N.W.2d 219, 230 (Minn.2005) (citing Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000)) (citations omitted). If the scientific technique that produced the evidence is no longer considered novel or emerging, the focus should be on the second part of the test. State v. Roman Nose, 649 N.W.2d 815, 819 (Minn.2002). Further, the evidence must meet the requirements of Minn. R. Evid. 402 and 702 by being relevant, given by a qualified expert, and helpful to the trier of fact. Goeb, 615 N.W.2d at 814.\\nLoving does not contest the district court's determinations under the first prong. Instead, he contests the court's findings under the second prong: the foundational reliability of SEM/EDX analysis and of the GSR evidence, findings we review for abuse of discretion. See id. at 815.\\nLoving challenges the district court's conclusion that SEM/EDX analysis and the GSR evidence are reliable. He concedes that SEM/EDX analysis is accurate in identifying GSR and that the State's forensic expert accurately identified GSR on the coat. But Loving argues that SEM/EDX testing of clothing is unreliable because of the inadequacy of the meaning of SEM/EDX testing results: \\\"[T]he fact that the SEM/EDX test is effective at revealing particles of some combination of barium, lead, or antimony is not sufficient.\\\" Loving's claim is that even though SEM/EDX testing can detect GSR, there is no way to determine how or when GSR lands on clothing because GSR can be transferred in a number of ways, does not disintegrate, and can remain on clothing even after washing. Essentially, Loving asserts that the test's inability to determine how or when GSR got on the clothing indicates that the meaning of the test is unreliable.\\nFurther, Loving argues that the test results are unreliable in this instance given the many ways that the GSR could have landed on the coat, the impossibility of determining what the actual cause of transfer was, whether primary transfer (from a discharging gun) or secondary transfer (from contact with someone or something already containing GSR), and the uncertainty about whether the coat that was tested matched the description of one of the coats worn by the shooters.\\nWe disagree with Loving's claims. The district court did not abuse its discretion in concluding that SEM/EDX testing for GSR on clothing is reliable in general, and that the evidence in this instance is reliable. At the Fryer-Mack hearing, the experts for the State and for Loving agreed that the SEM/EDX method was reliable in testing for GSR on clothing. In addition, both experts agreed that the test had accurately identified GSR on the coat. Lastly, the expert performing the test followed approved procedures while testing for GSR. Thus, there was sufficient foundational reliability for the evidence. Loving's argument about the inadequacy of the test's meaning is an argument about the weight of the evidence, not the reliability of the evidence. The multiple possibilities of how or when GSR could have been transferred to the coat do not make SEM/ EDX analysis or the GSR evidence unreliable or unreliable as to him.\\nLoving also argues that the district court should not have admitted the GSR evidence because it failed to meet the helpv fulness requirement under Minn. R. Evid. 702, and under Minn. R. Evid. 403 its probative value was substantially outweighed by the possibility of unfair prejudice. Loving's claim is that the GSR evidence was confusing and not helpful to the jury since the import of the State's expert testimony was merely that Loving may or may not have discharged or handled a gun, may or may not have been in close proximity to a discharging gun, or the coat may or may not have touched or been touched by something or someone with GSR. Loving further contends that the prejudicial effect of the evidence was great since juries potentially accord more weight to scientific testimony, and the State emphasized the evidence in closing argument.\\nWe have previously said that it is not acceptable for an expert to state as a definitive conclusion of a GSR test that a person fired a gun, but that it is acceptable to state that the person \\\"may\\\" have done so. State v. Spencer, 298 Minn. 456, 461, 216 N.W.2d 131, 134 (1974). Loving has not provided and we are not aware of any authority that requires an expert's testimony about the meaning of GSR test results to definitively link a person to a specific shooting in order for the evidence to be reliable and helpful to the trier of fact.\\nThe district court did not abuse its discretion in concluding that the evidence was helpful to the jury. Even though the GSR evidence could not be tied to a specific shooting, Loving was reportedly concerned about GSR being on his clothing a few hours after the shooting, attempted to change his clothing that night, and the coat was found in Loving's car, which was in his control from the time of the shooting until the coat was discovered. Further, Loving had stated in an interview with the police that he did not possess guns, had never shot or held a gun, and had not been close to a discharged gun since he was 12 or 13 years old. Although the GSR evidence did not definitively establish that Loving fired a gun, the evidence made that possibility appear more likely than if the test had been negative.\\nIn addition, the record does not sustain the claim that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The jury was informed of evidentiary limitations and what conclusions could and could not be drawn from it (i.e., that there are a number of ways that GSR can be transferred, and that no priorities should be given to the various possibilities).\\nThe district court therefore did not abuse its discretion in admitting the GSR evidence concerning the coat.\\nII.\\nLoving also argues that the district court abused its discretion in allowing relationship evidence because its probative value was outweighed by its prejudicial effect. We review a district court's evi-dentiary ruling for an abuse of discretion. State v. Graham, 764 N.W.2d 340, 351 (Minn.2009). Absent a clear abuse of discretion, we will not reverse a district court's evidentiary ruling. State v. Moua, 678 N.W.2d 29, 37 (Minn.2004). For a reversal of a district court's evidentiary ruling, Loving must prove that the admission of evidence was erroneous and prejudicial. See State v. Rhodes, 627 N.W.2d 74, 84 (Minn.2001). We will reverse the district court's ruling if the error substantially influenced the jury's decision. Moua, 678 N.W.2d at 37.\\nLoving contends that the district court should not have allowed relationship evidence in the form of testimony from six people; three testified about Loving threatening to kill one or both of the decedents, and three testified about Loving engaging in violent or abusive behavior against the decedents. Specifically, Loving argues that because the court ruled prior to trial that there was insufficient evidence of a pattern of domestic abuse for the first-degree domestic-abuse murder charge, there was no need for relationship evidence.\\nLoving also argues that the evidence was not needed to establish motive since there was a second theoretical motive: Loving's accusation that Allen sexually assaulted his daughter. Further, Loving claims that the primary effect of the relationship evidence was to prejudicially characterize him as a violent and angry person in the eyes of the jury. Thus, he argues that the evidence had a low probative value that was outweighed by its prejudicial effect. Loving contends that this was not a harmless error since the State repeatedly referred to this evidence and it unfairly influenced the way the jury evaluated the rest of the evidence. The State argues that Loving's recent threats to kill the decedents and his assaultive behavior are probative in showing motive, identity, intent, and premeditation.\\nMinnesota Rule of Evidence 404(b) provides that \\\"[e]vidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith.\\\" But such evidence may be admitted if offered to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id. Nevertheless, Minn. R. Evid. 404(b) states that\\nsuch evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence .; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor's case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.\\nConsistent with Minn. R. Evid. 404(b), relationship evidence is character evidence that may be offered \\\"to show the 'strained relationship' between the accused and the victim [and] is relevant to establishing motive and intent and is therefore admissible.\\\" State v. Mills, 562 N.W.2d 276, 285 (Minn.1997). Relationship evidence is treated differently than other evidence offered under Minn. R. Evid. 404(b). State v. McCoy, 682 N.W.2d 153, 159 (Minn.2004). The notice requirement under Minn. R. Evid. 404(b) is not a condition for admissibility of evidence directly pertaining to the relationship history between the defendant and the victim. Id.\\nPreliminarily, however, we note that Loving does not contest the admissibility of the evidence under the first four requirements of Minn. R. Evid. 404(b): notice, purpose, proof of the acts by clear and convincing evidence, and relevance. He only argues that the evidence should not have been admitted because the probative value of the evidence was outweighed by its potential for unfair prejudice.\\nWe conclude that the district court did not abuse its discretion in admitting the relationship evidence. We have previously held that \\\"[wjhere relevant to show a strained relationship . evidence of past abuse of or threats against the victim or her family by the defendant has generally been deemed admissible against 404(b) challenges.\\\" State v. Bauer, 598 N.W.2d 352, 365 (Minn.1999). In addition, such evidence has further probative value when it serves \\\"to place the incident for which appellant was charged into proper context.\\\" See id. at 364.\\nHere, Loving had denied meeting or knowing Allen. The relationship evidence helped to show that there was a relationship between Loving and Allen, and further, that the relationship between Loving and both of the decedents was strained. Loving's multiple threats and assaultive behavior toward Allen and Peters as a result of Loving's tumultuous relationship with Peters helped provide context to the incident. Therefore, the relationship evidence helped establish motive, intent, identity, and premeditation. Loving's assertion that the State had no need of the evidence or that it was cumulative is unconvincing. Further, the district court instructed the jury prior to the relationship testimony and prior to final deliberations that Loving was not being tried for and could not be convicted of any offenses other than those charged. Therefore, the district court did not abuse its discretion in admitting the relationship evidence.\\nIII.\\nLoving also raises eight arguments in his pro se supplemental brief. First, he contends that the district court abused its discretion in denying his motion to dismiss due to lack of probable cause for his arrest. With respect to this claim, we must independently review the facts to determine the reasonableness of the actions of the police. State v. Camp, 590 N.W.2d 115, 118 (Minn.1999). A district court's finding that police had probable cause to make an arrest will not be set aside unless it is clearly erroneous. Id. \\\"Probable cause to arrest exists when 'the objective facts are such that under the circumstances \\\"a person of ordinary care and prudence (would) entertain an honest and strong suspicion\\\" that a crime has been committed.' \\\" Id. (quoting State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982)). When more than one officer is involved in an investigation, the \\\"entire knowledge of the police force is pooled and imputed to the arresting officer for the purpose of determining if sufficient probable cause exist[ed] for an arrest.\\\" State v. Conaway, 319 N.W.2d 35, 40 (Minn.1982). Having reviewed the record, we conclude that the district court's finding of sufficient probable cause for the police to arrest Loving was not clearly erroneous based on the statements concerning harassment, motive, rocky relationship, deterioration of an alibi, and collective knowledge of the police.\\nNext, Loving argues that the district court abused its discretion in denying his motion to suppress evidence because of alleged Minn. R.Crim. P. 4.02 and 4.03 violations based on the theory that there were insufficient reasons for extending the time before which he had to appear before a judge, and the 36-hour advisory statement used for a probable cause determination for his arrest contained an intentional error. We conclude there was no violation of Minn. R.Crim. P. 4.02 because there was cause to enlarge the time before which Loving was to first appear before a judge. See Minn. R.Crim. P. 34.02. Further, there was no violation of Minn. R.Crim. P. 4.03 because the record does not establish that there was an intentional fabrication in the 36-hour advisory statement, and there was sufficient evidence for a finding of probable cause independent of the misplaced statement. See n. 7, supra.\\nLoving also claims that the district court abused its discretion in denying his motion to suppress evidence as a result of an illegal search and seizure. Because we conclude that there was probable cause to arrest Loving, and the search of the car was conducted based on a valid search warrant, the evidence obtained as a result of the search and seizure was admissible.\\nNext, Loving contends that the district court abused its discretion in denying his motion to suppress evidence of threats to kill Allen and Peters, prior bad acts evidence and relationship evidence because the probative value of the evidence was outweighed by its prejudicial nature, and admitting the evidence violated the Confrontation Clause. We disagree based on the reasons already stated in Section II of this opinion, and because the evidence admitted was non-testimonial. See Crawford v. Washington, 541 U.S. 36, 51-52, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).\\nLoving additionally alleges ineffective assistance of counsel because he contends that his trial attorney failed to call defense witnesses who had information relevant to Loving's trial theory, thereby violating his right to a fair trial and right to call witnesses. To prove ineffective assistance of counsel, a defendant \\\"must affirmatively prove that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Gates v. State, 398 N.W.2d 558, 561 (Minn.1987) (citation omitted) (internal quotation marks omitted). In addition, there is a strong presumption that an attorney's representation is within the range of reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).\\nWe conclude that the record is sufficient for review and that the appellant did not receive ineffective assistance of counsel or have his right to call witnesses violated. Counsel has discretion to make decisions to determine which witnesses to call. See State v. Mems, 708 N.W.2d 526, 534 (Minn.2006) (\\\"What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel.\\\"). Further, Loving has failed to indicate who should have been called to testify, what evidence would have been presented through witness testimony, or how the result of the proceedings would have been different because of the witness testimony.\\nLoving also asserts that the district court abused its discretion in sentencing him to life without possibility of release when he had no prior convictions. Loving, however, was properly sentenced to life in prison without possibility of release because of his conviction of first-degree premeditated murder under Minn.Stat. \\u00a7 609.185(a)(1). See Minn.Stat. \\u00a7 609.106, subd. 2(1) (2008).\\nNext, Loving contends that the jury erred in finding him guilty of two counts of first-degree murder because there was insufficient evidence. When reviewing a claim for sufficiency of the evidence, \\\" 'we are limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.' \\\" Bernhardt v. State, 684 N.W.2d 465, 476 (Minn.2004) (quoting State v. Merrill, 274 N.W.2d 99, 111 (Minn.1978)). In reviewing a jury verdict, \\\"we view the evidence in a light most favorable to the verdict and assume that the jury believed the state's witnesses and disbelieved contrary evidence.\\\" State v. Brocks, 587 N.W.2d 37, 42 (Minn.1998). Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, we conclude that the jury could have reasonably found Loving guilty of first-degree premeditated murder.\\nLastly, Loving argues that the district court abused its discretion in denying his request for a hearing challenging items of restitution. But the district court found that the proper amount of restitution to the claimants was established by a preponderance of the evidence and that there was no factual dispute about the restitution items or the dollar amounts. Loving has not provided us with sufficient material to establish that a hearing is warranted or that we should question the broad discretion afforded to the district court in awarding restitution. See State v. Tenerelli, 598 N.W.2d 668, 671 (Minn.1999).\\nWe have carefully considered Loving's pro se claims and conclude that they are without merit.\\nAffirmed.\\n. Minnesota Rule of Evidence 702 requires that all expert witness testimony have foundational reliability, regardless of whether a 'novel'' scientific theory is involved.\\n. Under the first prong, the district court found that there was a general acceptance within the relevant scientific community of the following items: (1) using SEM/EDX to test for GSR; (2) classifying the residue found on the coat as GSR because there were four three-element particles of antimony, barium, and lead; and (3) stating that a positive test for GSR on clothing means that the clothing (a) was worn by a person who discharged a firearm; (b) was in close proximity to a discharging firearm or recently discharged firearm; or (c) touched or was touched by something or someone that had GSR. The court referred to the first two meanings as primary transfer and the third as secondary transfer. The court also concluded that there is no agreement in the scientific community on which possibility of transfer is most likely, and therefore did not allow testimony on whether one possibility of transfer was more likely than another.\\n. Although the State's forensic expert misidentified a two-element particle as a three-element particle and was later corrected by Loving's expert, it was essentially a clerical error and ultimately had no bearing on the admissibility of the GSR evidence on the coat.\\n. Minnesota Rule of Evidence 702 states that \\\"[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\\\"\\n. In Spencer, the method of testing for GSR was neutron activation analysis, not SEM/ EDX, and the testing was performed on skin, not clothing. Spencer, 298. Minn, at 459-60, 216 N.W.2d at 133-34. Nevertheless, our statement in Spencer concerning the limits of permissible testimony about the results of GSR testing is applicable to SEM/EDX testing for GSR on clothing.\\n. The district court admitted the evidence under Minn. R. Evid. 404(b), not Minn.Stat. \\u00a7 634.20 (2008) (which allows evidence of similar domestic abuse).\\n. Part of Loving's argument relies on a chronological error in the 36-hour advisory statement of probable cause to detain Loving. Page two of the statement indicates that James Salter gave a statement to police and that Loving was arrested after Salter's statement. The statement should have said that Loving was arrested and then Salter gave his statement 10 hours later. As noted by the district court, the chronological error in the 36-hour advisory statement does not affect the conclusion that there was probable cause to arrest and detain Loving independent of Salter's statement.\"}"
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+"{\"id\": \"7093129\", \"name\": \"Richard E. BRINK, Plaintiff, v. SMITH COMPANIES CONSTRUCTION, INC., defendant and third party plaintiff, Appellant, v. D.A. Distribution, Inc., d/b/a Coronado Stone, third party defendant, Respondent, Northwest Builders, Inc., et al., Third Party Defendants, Station 19 Architects, third party defendant, Respondent\", \"name_abbreviation\": \"Brink v. Smith Companies Construction, Inc.\", \"decision_date\": \"2005-09-27\", \"docket_number\": \"No. A05-5\", \"first_page\": \"871\", \"last_page\": \"879\", \"citations\": \"703 N.W.2d 871\", \"volume\": \"703\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:23:15.912021+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by STONEBURNER, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.\", \"parties\": \"Richard E. BRINK, Plaintiff, v. SMITH COMPANIES CONSTRUCTION, INC., defendant and third party plaintiff, Appellant, v. D.A. Distribution, Inc., d/b/a Coronado Stone, third party defendant, Respondent, Northwest Builders, Inc., et al., Third Party Defendants, Station 19 Architects, third party defendant, Respondent.\", \"head_matter\": \"Richard E. BRINK, Plaintiff, v. SMITH COMPANIES CONSTRUCTION, INC., defendant and third party plaintiff, Appellant, v. D.A. Distribution, Inc., d/b/a Coronado Stone, third party defendant, Respondent, Northwest Builders, Inc., et al., Third Party Defendants, Station 19 Architects, third party defendant, Respondent.\\nNo. A05-5.\\nCourt of Appeals of Minnesota.\\nSept. 27, 2005.\\nTimothy P. Tobin, Kathleen M. Loucks, Timothy J. Crocker, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.\\nRichard M. Schultz, Circle Pines, MN, for respondent D.A. Distribution, Inc.\\nMark Bloomquist, Kristine A. Kubes, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., Minneapolis, MN, for respondent Station 19 Architects.\\nConsidered and decided by STONEBURNER, Presiding Judge; WILLIS, Judge; and HUDSON, Judge.\", \"word_count\": \"3504\", \"char_count\": \"22317\", \"text\": \"OPINION\\nHUDSON, Judge.\\nAppellant, a general contractor, challenges the district court's grant of summary judgment for respondents, who are subcontractors, which dismissed appellant's third-party claims for contribution and indemnity asserted against respondents. Appellant brought its third-party claims in February 2003 after it was sued for breach of warranty in December 2002. The district court concluded that the statute of repose in Minn.Stat. \\u00a7 541.051, subd. 1(a) (2002), barred appellant's third-party claims. Appellant argues that application of the statute to bar its third-party claims is a violation of its constitutional rights to due process and a remedy. Because we conclude that the statute of repose, as applied to the facts of this case, unconstitutionally violates appellant's rights to due process and a remedy, we reverse.\\nFACTS\\nThe facts in this case are undisputed. On June 2, 1989, the City of White Bear Lake issued a certificate of occupancy for a townhouse owned by appellant Smith Companies Construction, Inc. (Smith) and subsequently purchased by plaintiff Richard Brink. On December 27, 2002, plaintiff sued Smith under Minn.Stat. \\u00a7 327A.02 (2002), alleging that the townhouse was not constructed in a workmanlike manner and was in violation of statutory warranties because of water intrusion. On February 3, 2003, Smith filed third-party actions for contribution and indemnity against various subcontractors, including respondents D.A. Distribution, Inc., d/b/a Coronado Stone, and Station 19 Architects. Respondents moved for summary judgment, arguing that Smith's claims were barred by the statute of re pose contained in Minn.Stat. \\u00a7 541.051, subd. 1(a) (2002). Smith opposed the motions for summary judgment on the ground that subdivision 1(a) is unconstitutional as applied.\\nThe district court granted respondents' motions for summary judgment. This appeal follows. Respondents have also made a joint motion to strike portions of Smith's reply brief.\\nISSUES\\n1. Does Minn.Stat. \\u00a7 541.051, subd. 1(a) (2002), unconstitutionally infringe on Smith's due-process rights and its right to a remedy?\\n2. Should respondents' joint motion to strike portions of Smith's reply brief be granted?\\nANALYSIS\\nSummary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. In an appeal from a grant of summary judgment, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law. N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004).\\nI\\nSmith contends that Minn.Stat. \\u00a7 541.051 (2002) is unconstitutional as applied to the facts of this case, and specifically that Minn.Stat. \\u00a7 541.051, subd. 1(a), violates its due-process rights under the United States and Minnesota constitutions and its right to a remedy under the Minnesota constitution. Our evaluation of a statute's constitutionality is a question of law subject to de novo review. Hamilton v. Comm'r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). We presume that Minnesota statutes are constitutional, and \\\"our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.\\\" In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). \\\"A party who challenges a Minnesota statute as unconstitutional bears the burden of establishing beyond a reasonable doubt that the statute violates some constitutional provision.\\\" Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn.1988). In addition, \\\"[s]trict construction is appropriate in interpreting this statute.\\\" Ritter v. Abbey-Etna Mach. Co., 483 N.W.2d 91, 93 (Minn.App.1992), review denied (Minn. Jun. 10, 1992).\\nFurther, the state and federal due-process clauses provide that no person shall be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV, \\u00a7 1; Minn. Const. art. I, \\u00a7 7. Minnesota's due-process clause is identical in scope with the federal clause. Sartori, 432 N.W.2d at 453. Additionally, the Minnesota Constitution provides that \\\"[ejvery person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character.\\\" Minn. Const. art. I, \\u00a7 8.\\nMinn.Stat. \\u00a7 541.051 applies a two-year statute of limitations and a ten-year statute of repose on claims seeking damages based on services or construction to improve real property. Id., subd. 1. The provision provides that claims may not be brought \\\"more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.\\\" Id. Construction is substantially completed on the date the owner \\\"can occupy or use the improvement for the intended purpose.\\\" Id. For purposes of the statute of limitations and statute of repose, \\\"a cause of action accrues upon discovery of the injury or, in the case of an action for contribution or indemnity, upon payment of a final judgment, arbitration award, or settlement arising out of the defective and unsafe condition.\\\" Id., subd. 1(b). We have concluded that Minn.Stat. \\u00a7 541.051 applies to contribution and indemnity claims. Weston v. McWilliams & Assocs., 694 N.W.2d 558, 564 (Minn.App.2005), review granted sub nom. McWilliams v. Tappe Constr. (Minn. June 28, 2005).\\nIf a cause of action accrues in the ninth or tenth year after substantial completion of the construction, the action may be brought within two years from the date the action accrued, \\\"but in no event may an action be brought more than 12 years after substantial completion of the construction.\\\" Id., subd. 2. In other words, the statute provides a 10- to 12-year statute of repose for most construction-related claims.\\nPlaintiff sued Smith for breach of statutory warranties under Minn.Stat. \\u00a7 327A.02 (2002). At the time of the lawsuit, Minn.Stat. \\u00a7 541.051, subd. 4, exempted actions brought under section 327A.02 from the 10- to 12-year statute of repose. See Minn.Stat. \\u00a7 541.051, subd. 4 (\\\"This section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02 . provided such actions shall be brought within two years of the discovery of the breach.\\\"). Therefore, although plaintiff sued Smith under section 327A.02 more than 13 years after the certificate of occupancy was issued, plaintiffs cause of action was not barred by the statute of repose. See id.; see also Koes v. Advanced Design, Inc., 636 N.W.2d 352, 359 (Minn.App.2001) (\\\"[T]here is no other reference to any statute of repose that limits the time in which a cause of action must be brought for breach of warranty under \\u00a7 327A.02.\\\"), review denied (Minn. Feb. 19, 2002). But because Smith's third-party claims against respondents were for contribution and indemnity, the actions were subject to both the two-year statute of limitations and the 10- to 12-year statute of repose, which served to bar the claims See Minn.Stat. \\u00a7 541.051, subd. 1(a); Weston, 694 N.W.2d at 564. Accordingly, Smith argues that because the statute of repose as applied foreclosed its third-party claims before they accrued, Minn.Stat. \\u00a7 541.051, subd. 1(a), violates its due-process rights under the state and federal constitutions and its right to a remedy under the state constitution.\\nSmith relies on Calder v. City of Crystal, 318 N.W.2d 838 (Minn.1982). Colder involved a lawsuit by city residents against the City of Crystal because of a defective water drainage system. Id. at 839. Fifteen months after it was sued, and one month after an amended version of Minn.Stat. \\u00a7 541.051 took effect, the city brought contribution and indemnity claims against the designers and installers of the sewer system. Id. at 839-40. The supreme court concluded that the amended statute did not violate the equal-protection clause. Id. at 843. The supreme court also determined that the city's due-process rights and its right to a remedy were not violated because it had 14 months to sue third parties for contribution and indemnity before the statute of repose became effective to bar the third-party suit. Id. at 844.\\nAlthough the Calder court did not find Minn.Stat. \\u00a7 541.051 to be unconstitutional, it observed that the statute could be invalid under a different fact pattern:\\nIf the city were barred by the statute of limitations from having a reasonable time to join third parties for contribution or indemnity, the statute would not fulfill due process requirements under our constitution. We are not required, in deciding this case, to indicate what such a reasonable time limitation should be, but a statute which does not allow any time whatever is clearly unconstitutional. However, in this case, the city was aware of the injury long before it was sued. It had 14 months after being sued in which to join these third parties . Thus, it cannot be said that the city was denied an effective remedy by a procedural statute.\\nId. (emphasis added) (citation omitted). Here, Smith had no opportunity to assert its contribution and indemnity claims against respondents because of the statute of repose, and therefore, Smith argues, Minn.Stat. \\u00a7 541.051 is unconstitutional as applied. See also Bulau v. Hector Plumbing & Heating Co., 402 N.W.2d 528, 530-31 (Minn.1987) (citing Calder but holding that then-effective version of Minn.Stat. \\u00a7 541.051 lawfully barred subcontractor's contribution claim against contractor because subcontractor had approximately six months to bring claim before statute of limitations expired); Minn. Landmarks v. M.A. Mortenson Co., 466 N.W.2d 413, 415 (Minn.App.1991) (stating that \\\"[t]he legislative purpose of [MinmStat. \\u00a7 541.051] would commonly be frustrated if third-party defendants could then bar the contribution and indemnity claim by raising a statute of limitations defense against plaintiff which was unavailable to third-party plaintiff'), review denied (Minn. May 10, 1991).\\nOn the other hand, respondents contend that: (1) the supreme court's decision in Sartori \\u2014 concluding that Minn.Stat. \\u00a7 541.051 does not violate the due-process or remedies clauses \\u2014 is dispositive; and (2) Colder and its progeny uniformly hold that Minn.Stat. \\u00a7 541.051 is constitutional and any language to the contrary is dictum, which is not binding on this court. See Pecinovsky v. AMCO Ins. Co., 613 N.W.2d 804, 808 (Minn.App.2000) (\\\"Dicta are expressions in a court's opinion that go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.\\\" (quotation omitted)), review denied (Minn. Sept. 26, 2000).\\nAfter careful review of the statute and the unique circumstances of this case, we find appellant's position to be the more persuasive. We first note that respondents' reliance on Sartori is misplaced. In Sarto-ri, two plaintiffs working in a mine facility were seriously injured by the operation of an overhead rail crane. 432 N.W.2d at 450. The crane was installed at the mine facility more than 18 years before the plaintiffs were injured. Id. at 451. The plaintiffs sued the crane's manufacturer for damages and the supreme court concluded that the statute of limitations and statute of repose in Minn.Stat. \\u00a7 541.051 (1980) applied to bar the claims. Id. at 453. The supreme court also concluded that the statute did not violate the state constitution's remedies clause because the plaintiffs had a remedy: they could bring an action against the owners of the mine facility on a negligent-inspection theory. Id. at 454. The court also noted that the plaintiffs could seek workers' compensation benefits. Id.\\nThe supreme court further concluded that the statute did not violate due process because the legislature pursued legitimate objectives when it enacted the statute of repose, such as ensuring that subcontractors will not be sued long after they design and install improvements to real property and protecting against the unavailability of witnesses and a lack of adequate records surrounding a stale claim. Id.\\nAlthough respondents correctly observe that Sartori interpreted Minn.Stat. \\u00a7 541.051 in the specific context of a constitutional challenge on due-process and remedies-clause grounds, just as we are called upon to do here, the facts in Sartori are materially different from those presented in this case. Significantly, the supreme court in Sartori only considered a claim for damages by injured plaintiffs against a crane manufacturer; this case additionally involves third-party contribution and indemnity claims. Moreover, Calder makes clear that a statute of limitations or repose that provides no time for a third-party claim for contribution or indemnity would violate the due-process and remedies clauses. 318 N.W.2d at 844.\\nWe further observe that application of the statute of repose to bar Smith's third-party claims would not fulfill the reasonable legislative objective enunciated in Sartori because the result would be to allow a stale claim to be asserted against Smith, while simultaneously precluding Smith from seeking contribution and indemnity against those it asserts are actually responsible for plaintiff's damages. Accordingly, we do not read Sartori as precluding a holding that the statute of repose is unconstitutional as applied to Smith.\\nWe similarly reject respondent's position that Calder is inapplicable here. To the contrary, we believe that Calder is entitled to considerable weight because post-Sartori cases, such as Minnesota Landmarks, have cited Calder favorably. See Minn. Landmarks, 466 N.W.2d at 416; see also Brua v. Olson, 621 N.W.2d 472, 475 (Minn.App.2001) (\\\" 'We do not believe the legislature can pass a statute allowing a substantive remedy and yet, by adopting a procedural statute of limitations, make the remedy impossible to achieve and meaningless by barring the suit from being brought before it has matured.' \\\" (quoting Calder, 318 N.W.2d at 843)), review denied (Minn. Mar. 27, 2001).\\nMoreover, the Calder language describing fact situations in which \\u00a7 541.051 would be unconstitutional, although dictum, is particularly compelling, if not dispositive, in this case. It is well settled that \\\"dictum, if it contains an expression of the opinion of the court, is entitled to considerable weight.\\\" In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974). Dictum is divided into two categories: judicial dictum and obiter dictum. Judicial dictum involves a court's expression of its \\\"opinion on a question directly involved and argued by counsel though not entirely necessary to the decision.\\\" State v. Rainer, 258 Minn. 168, 177, 103 N.W.2d 389, 396 (1960). Put another way, judicial dictum constitutes \\\"an expression emanating from the judicial conscience.\\\" Id. at 178, 103 N.W.2d at 396. Obiter dictum is simply Latin for \\\"something said in passing.\\\" Black's Law Dictionary 1100 (7th ed.1999). Judicial dictum is entitled \\\"to much greater weight than mere obiter dictum and should not be lightly disregarded.\\\" Rainer, 258 Minn. at 177, 103 N.W.2d at 396.\\nThe supreme court in Calder dealt with two issues: (1) whether Minn.Stat. \\u00a7 541.051 applied to bar the City of Crystal's contribution and indemnity actions; and (2) if so, whether the statute was unconstitutional as a denial of equal protection, due process, or remedies. 318 N.W.2d at 840, 843. There can be no dispute that the issue of the constitutionality of section 541.051 was specifically raised and argued by counsel in Calder. Id. at 843-44 (\\\"The city urges that Minn.Stat. \\u00a7 541.051 (1980) contravenes Minn. Const. art. 1, \\u00a7 8, as well as the due process clause of the Fifth and Fourteenth Amendments of the United States Constitution because the statute abrogates a common law right of action without providing a reasonable substitute.\\\"). Thus the dictum expressed the supreme court's opinion on a question directly involved and argued by counsel. The dictum was not absolutely necessary to the supreme court's decision only because the city had 14 months to assert its contribution and indemnity claims before running afoul of the statute of repose. Id. at 844. Because the supreme court stated its view in unequivocal language, and post-Sartori cases have cited this language, we give considerable weight to Calder's judicial dictum.\\nFinally, respondents contend that, like the plaintiffs in Sartori, Smith possessed an effective remedy: it could have negotiated express warranties with subcontractors extending or abolishing the statute of repose before commencement of the project. According to respondents, if Smith had negotiated these express warranties, it could have brought its third-party contribution and indemnity claims. But respondents' argument does not specifically address the application of the remedies clause. We acknowledge that an ounce of prevention may be worth a pound of cure, but there is a difference between a preventative measure and a remedy under the state constitution. While it is true that demanding warranties from the subcontractors may have prevented Smith from being in its current position, the opportunity for such prevention is not a remedy. Additionally, we observe that Smith's predicament \\u2014 being unable to enforce its third-party rights despite promptly moving to protect those rights in February 2003, a mere two months after plaintiffs initial lawsuit in December 2002 \\u2014 violates traditional notions of fairness and equity.\\nFollowing the rationale and judicial dictum in Calder and based on the unique facts of this case, we conclude that the statute of repose contained in Minn.Stat. \\u00a7 541.051, subd. 1(a), as applied to Smith's third-party claims, unconstitutionally deprives Smith of its due-process rights under the federal and state constitutions and its right to a remedy under the state constitution.\\nBecause of a recent legislative amendment, the fact scenario presented by this case will likely not be repeated in the future. In 2004, the legislature amended Minn.Stat. \\u00a7 541.051, subd. 4, which previously provided that the 10- to 12-year statute of repose did not apply to actions based on Minn.Stat. \\u00a7 327A.02. See 2004 Minn. Laws ch. 196, \\u00a7 1. Thus, actions for breach of warranties provided under section 327A.02 that are commenced after the effective date of the 2004 amendment are subject both to the two-year statute of limitations \\u2014 beginning at the point when the breach was discovered \\u2014 and the stat ute of repose in subdivisions 1 and 2. See Minn.Stat. \\u00a7 541.051, subd. 4 (2004). As a result of the 2004 amendment, general contractors sued for breach of statutory warranties in the future will not face Smith's conundrum because the initial lawsuit, if brought more than 12 years after substantial completion of the construction, will be barred by the statute of repose.\\nII\\nSmith's reply brief contains a section arguing that Minn.Stat. \\u00a7 541.051 is unconstitutional on equal-protection grounds. Respondents filed a joint motion to strike this portion of the brief on the grounds that appellant raised this argument for the first time on appeal and in a reply brief. Generally, this court will not consider matters not argued and considered in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Additionally, a \\\"reply brief must be confined to new matter raised in the brief of the respondent.\\\" Minn. R. Civ.App. P. 128.02, subd. 3. There is no evidence in the record that appellant raised an equal-protection challenge to the statute before the district court, and respondents did not affirmatively raise the issue in their briefs. We therefore grant the motion to strike and decline to address Smith's equal-protection argument.\\nDECISION\\nBecause application of the statute of repose in Minn.Stat. \\u00a7 541.051, subd. 1(a) (2002), violates Smith's due-process rights and its right to a remedy, we reverse the district court's grant of summary judgment to respondents. We emphasize that the statute of repose found in Minn.Stat. \\u00a7 541.051, subd. 1(a), is unconstitutional only as applied to Smith's third-party contribution and indemnity claims. We grant respondents' joint motion to strike portions of Smith's reply brief.\\nReversed: motion granted.\\n. Minn.Stat. \\u00a7 541.051, subd. 4, was amended in 2004. 2004 Minn. Laws ch. 196, \\u00a7 1. Because the dispute leading to this appeal arose before the amendment was operative, and because the amendment would impact this appeal, we apply the 2002 version of the statute in this appeal. See Interstate Power Co. v. Nobles County Bd. of Comm'rs, 617 N.W.2d 566, 575 (Minn.2000) (observing that appellate courts are to apply the law in effect at the time of judgment, with the exception of \\\"when rights affected by the amended law were vested before the change in the law\\\").\\n. The supreme court had previously concluded that an earlier version of Minn.Stat. \\u00a7 541.051 violated the equal-protection clause. Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 555 (Minn.1977). The legislature then amended the statute in 1980 to cure that constitutional defect. Calder, 318 N.W.2d at 843.\\n. At the time of the lawsuit, Minn.Stat. \\u00a7 541.051 (1980) contained a statute of repose of 15 years. Sartori, 432 N.W.2d at 451.\"}"
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+"{\"id\": \"732893\", \"name\": \"Levering and Morton, Plaintiffs in Error, vs. P. G. Washington, Defendant in Error\", \"name_abbreviation\": \"Levering & Morton v. Washington\", \"decision_date\": \"1859-12\", \"docket_number\": \"\", \"first_page\": \"323\", \"last_page\": \"331\", \"citations\": \"3 Minn. 323\", \"volume\": \"3\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:13:50.402097+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Levering and Morton, Plaintiffs in Error, vs. P. G. Washington, Defendant in Error.\", \"head_matter\": \"Levering and Morton, Plaintiffs in Error, vs. P. G. Washington, Defendant in Error.\\nERROR TO THE DISTRICT COURT OR RAMSEY COUNTY.\\nOne Randall made Ms note payable to the order of Andrew Levering and William II. Morton, assignees, the* payees endorsed it, and Randall delivered it so endorsed to the holder. R\\u00a9 seeks to charge them as makers as well as endorsers. Held \\u2014 That they cannot be held as makers, and parol testimony cannot be introduced to show that they made a contract by which they might be held other than as endorsers. Their contract is the ordinary one of endorsers of commercial paper.\\nThe repeal of the act allowing notices of protest to be deposited in the Rost Office at the place of residence of the endorser, left the protest of notes to be governed by the rules prevailing at Common Law. These required personal notices to endorsers residing at the place of payment, and notices through tho Post Office would not bind such endorsers. The repeal of the act did not impair the obligation of tho endorsers, and imposed no restriction upon the holder. The law in existence at the date of the contract did not become a part of it, and the protest should be in accordance with the laws in force at the date of protest.\\nThe following are the points and authorities relied upon by the Counsel for the Plaintiffs in Error:\\nThere is no better settled principle in the commercial law, than that as between the original parties to a note or its transfer, a party apparently liable on the face of the instrument to the holder, may, for any cause, show by parol that in point of fact he is not so liable.\\nThus, it is a familiar principle that a party may show by \\u2022way of defence, want, failure, or illegality of consideration. It is also a principle equally familiar that a party may show as a defence that he was an accommodation maker or endorser for the Plaintiff, of the note or bill sued on, although appearing otherwise on the face of the instrument, and this upon the ground that he entered into no contract to pay him, but the reverse, which fact may also be shown by parol. And it is precisely upon the same principle that our defence is based in the case before the Court. This species of proof is considered as no more altering or varying the written instrument than proof of want of consideration, and so well settled is the law upon this point, that it may seem superfluous to cite authorities. Stackpole vs. Arnold, 11 Mass. 32; Susquehanna Bridge & Bank Co. vs. Evans, 4 Wash. C. C. 480; Brouck vs. Thompson, 1 Bail. 322; Wright vs. Latham, 3 Murph. 298; Hill vs. Ely, 5 Ser. & Rawle, 363; Pike vs. Street, 1 Wood & Walk. 226-7, and note; Goupy vs. Harden, 7 Taunt. 163; Butler vs. Suddeth, 6 Monroe, 641; Daniels vs. McRae, 2 Hawks, 590; Perkins vs. Gatlin, 11 Conn. 213; Barker vs. Prentiss, 6 Mass. 430-3-4; Smith vs. Barber, 1 Boot, 207 ; Lonsdale vs. Brown, 3 Wash. C. C. 404; Dean vs. Hall, 17 Wendell, 214-15, et sequ.; Brent\\u2019s Ex\\u2019rs vs. Metropolis Bank, 1 Peters, 89; Barrows vs. Lane, 5 Verm. 161; Fuller vs. McDonald, 3 Greenleaf, 213.\\nIt is a well settled principle that where a writing has been executed by way of part performance merely of a contract, or ytheip the writing only in part expresses the contract, leaving the law to imply the balance, as in case of a blank endorsement upon a note, parol evidence is admissible, to prove collateral and independent facts, about which the writing is silent. Shepherd vs. Temple, 3 N. H. 455; Reub vs. McAllister, 8 Wend. 116; McCulloch vs. Girard, 4 Wash. C. C. P. 289; Gerrish vs. Washburn, 9 Pick. 338; Mall vs. Macubbim,, 6 Gill & John. 107-110; McCrearry vs. McCreary 5 Gill & John. 147-156; Kelsey vs. Dickson, 2 Blackf. 236; 3 Id. 189; Hunt vs. Adams, 6 Mass. 519-524; Maker vs. Prentiss, Id. 434.\\nFurthermore, it is a fraud in the Plaintiff to attempt to charge the Defendants Levering and Morton upon their endorsement, under the circumstances and understanding as set forth in the answer, and parol evidence is admissible to show it. O\\u2019Hara vs. Hall, 4 Dall. Pa. 341; Baring vs. Shippen, 2 Bin. 162; Jackson vs. Bowers, 1 Caine\\u2019s Rep. 359; Mageehan vs. Adams\\u2019 lessee, 2 Binn. 109; Vroom vs. Phelps, 2 John. 177; McFarren vs. Powers, 1 Berg. & Rawle, 102; Barndollar vs. Tate, Ibid. 160; Wallace vs. Baker, 1 Binn. 616; 5 Binn. 469; Oxley vs. Biddle, 2 Dall. Pa. 171; Christ vs. Diffenbach, 1 Berg. & Rawle, 464; Herrick vs. Garma/n, 10 John. 224; Woodhull vs. Holmes, 10 John. 231; Shelding vs. Haight, 14 John. 274; Baker vs. Prentiss, 6 Mass. 434.\\nThe following are the points and authorities relied upon by the Defendant in Error.\\nfirst. \\u2014 The Notary\\u2019s certificate attached to the note upon which this action is founded is sufficient evidence to show prima facie a demand and notice to the Defendants within the rule of commercial law; for a notice through the post office is sufficient, where the party to be charged lives at a City, but without the business limits thereof, and the fact of a residence actually within the limits that would acquire personal notice is a matter of defence. Bank of Columbia vs. Lawrence, 1 Peters S. C. R. 578; Bank of the United States vs. Carneal. 2 ib. 543; See note to first case cited in 1st Am. Leading cases, p. 400.\\nSecond. \\u2014 The pleadings in the case show that the Defend ants Levering and Morton wrote their names on the back of said note, at its inception and before its delivery to the Plaintiff, and that the Plaintiff took the same on the faith and credit of their promise to pay, made and expressed by the writing of their names theron; that the defendants never had any interest in said note subject to transfer by endorsement, and never did transfer or undertake to transfer the same by endorsement; and the undertaking and promise of the Defendants, was the undertaking and promise of original makers ; and the Defendants are chargeable on the pleadings in the case as original makers of the said note ; and were not entitled to the notice requisite to be given to a commercial endorser. Marienthal, Lehman & Co. vs. H. J. Taylor, decided January term, this Court; Thompson vs. McComb, Simpson & Co., decided January term of this Court; Pierce vs. Irvine, Stone & McCormick, 1st Min. R. 370; Joselyn vs. Ames, 3 Mass. 273.\\nThird. \\u2014 It apjxears from the answer of the Defendants that when they endorsed the note in question, they were assignees of \\u00a5m. \\u00d1. Bandall, the maker, under a general assignment, for the benefit of creditors, and held all the property of said Eandall under their control in trust for the payment of this as well as the other debts of said Kandall; and they must have endorsed the note, relying on their ability to meet it at maturity, out of the assetts so under their control; and from these facts so set forth the presumption of their secondary liability only is changed into a presumption of primary liability, and like the drawers of Bills of Exchange, who draw without expectation of assetts in the drawee, they are not entitled to notice of dishonor. Story on Bills of Exchange \\u00a7 311 and note a/nd authority cited.\\nFowrth. \\u2014 The law relating to protest of notes, allowing the service of notice of protest, by mail, through the post office, in force when the note in question was made and endorsed, became a part and parcel of the contract, the same as though the principles and provisions of the law had been x-educed to writing, and incorporated in the contract, when the same was made; and as to tlvis contract, the law so in force, and not the law of July 26, 1858, applies and governs. Any law subse quent to the time of the contract, changing the essentials of demand and notice required by the law when the contract was made, or disallowing any of the methods of protest, and means to charge the endorsers, that then were good and valid and sufficient, and imposing additional requirements and burdens to effect that purpose, impairs the obligation of the contract, and is of no effect as to contracts made and existing prior to its enactment. See R. S., p. 43, and amendments in Laws of 1856,p. 9; also, Brunson vs. Kenzie, 1 Row. Sup. C. R. 311; Grantley's lessee vs. Ewing, 3 do. 707; 8 Black. (Ind. R.) 58; Green vs. Biddle, 3 Wheat. 844; McCracken vs. Heyward, 2 How. S. C. R. 608.\\nFifth. \\u2014 The Notarial Act of July 26, 1858, repealing the prior acts of 1851 and the amendments of 1856, had not on the 14th August, 1858, the time of the protest of the note in question, been published in due form, and was not then a law of the State. R. S. of Min., Ch. 2, See. 2, p. 33 and 34.\\nSixth. \\u2014 The fact that the Defendants levering and Morton endorsed the note as assignees of \\\"Wm. 31. Bandall, and were then such assignees under a general assignment for the benefit of creditors, does not relieve them in any respect from a personal and individual liability thereon. Assignees for the benefit of creditors have not authority by virtue of their power under the trust to use the name of the assignor on negotiable paper, and the rule is well settled that a person who assumes to contract for another, must see to it that ,his principal is legally bound by his act; for if he does not give a right of action against his principal, the law holds him personally. The contract being the contract of some one, it can be the contract of themselves only. 8 Cow. 32; 9 John. 334; Randall, vs. Van Detchin, 19 John. 63; Mann vs. Heffeman, 13 John. 58; Skinner vs. Dayton, 19 John. 558; Mott vs. Hicks, 1 Cow. 536; Arfridson vs. Ladd, 12 Mass. 174.\\nSeventh.- \\u2014 The new matter in the answer, setting forth that the Defendants endorsed the note, \\u201cthat it might be considered in the distribution of assetts of \\\"Wm. H. Bandall,\\u201d and \\u201cnot for the purpose of mating themselves liable,\\u201d is no defence ; for their contract, whatever it was, was in writing, endorsed on the note, and they are bound by that written contract, and so far as their liability on that written contract is concerned, it is wholly immaterial what was or might have been their intention or purpose m foot. Their purpose and intention was a matter of law, and is a part of the legal effect of the written agreement, and by it they are conclusively bound. No parol agreement or understanding made at the time, can vary or change the contract in writing. A party cannot say that he made a promise to pay with am, intention not to pay. The law fixes the purpose, object and intention of the act to the act, and they cannot be separated. 3 Phillip\\u2019s Lv. (Cowan & Hill\\u2019s Notes) p. 1460 amd cases cited, also p. 1466; 1 Ross\\u2019 Leading Cases, p. 172, which is the case of Woodbridge vs. Spooner; 3 B. c& Al. 233, Eng. Com. Law Rep., Vol. 5, Sec.-; Bank of United States vs. Bunn, 6 Peters\\u2019 Sup. Court Rep., 55 {overruling the principle of case 4 Wash. C. C. R. 480, referred to in Pl\\u2019ffs Brief;) Barry vs. Morse, 3 N. & C. Rep. 132; Sightown vs. Joy, 2 Porters\\u2019 Rep. 308.\\nEighth. \\u2014 The law allowing parol evidence to show that a party apparently liable on a promissory note was really an agent in the transaction referred to by the Plaintiffs in Error, is of very doubtful authority, and is rejected by most of the States. Stackpole vs. Arnold, 11 Mass. 27; Shankland vs. Arnold 5 Peters 390, 394.\\nStill, conceding it to be law, it has no application to our case, for it is not pretended that Levering and Morton promised any one but themselves, or had am/y authority to bi/nd any one as principal. They concede, they bound themselves, if any one.\\nNinth.- \\u2014 The defence of fraud is not interposed in the answer of Defendants. If there is any fraud it must arise out of the facts flone as stated in the answer, a/nd must be expressly charged th&reim,.\\nThe attempt to charge the Defendants on their endorsement, is no fraud. If so, we might with more propriety urge that their attempted defence was a fraud in the Defendant on us. But there is no fraud in the case. It is purely a question of evidence, whether a pretended contemporaneous under standing can annul the written contract. All the cases cited by Plaintiffs in Error, that touch the point they raise, are Pennsylvania authorities, and depend for their sanction solely on the peculiar jurisprudence of that State, which had no Count of chancery, or Court authorized to exercise equity jurisdiction, and the peculiar rules of evidence on this subject grew out of that fact as the cases themselves admit. See Hill vs. Ely, 5 Sergeant & Rawle 363, cited by Plaintiffs in Error, and 6 Peters 55, cited above. Eight of the cases cited are Pennsylvania, and none of the others are in point at all.\\nTenth. \\u2014 There is no ambiguity in the contract of the Defendants Levering and Morton. The contract itself shows no patent ambiguity, and the whole averments of the answer show no latent ambiguity. The agreement admits of but one construction, and is not double or uncertain, whatever be the law as to the liability] of Defendants. 1 Green\\u2019s Evidence, See. 297.\\nSmith & Gilman, Counsel for Plaintiffs in Error.\\nGeo. L. & E. A. Otis, Counsel for Defendant in Error.\", \"word_count\": \"3285\", \"char_count\": \"18402\", \"text\": \"By the Court\\n\\u2014 Atwater, J.\\nThis case comes up.on Writ of Error to the District Court of Pamsey County, -the Plaintiffs in Error being Defendants below. The cause of action arose upon a promissory note, reading as follows, viz:\\n$202,00. St. Paul, Aug. 27, 1857.\\nTwelve months after date I promise to pay to the order of Andrew Levering and William H. Morton, assignees, two hundred and two dollars, with interest at three per cent, per month, value received.\\nWM. II. EANDALL.\\nThe amended complaint alleges in substance, that on or about the 12th of October, 1857, the Plaintiff had owned and was seized and possessed of a valid claim against said Eandall for money loaned, amounting to the sum specified in said note, and that for the purpose of securing to the Plaintiff the aforesaid claim and indebtedness, the Defendant Eandall made, and the Defendants Levering and Morton endorsed, said note, at tbe time of the making thereof, for the purpose aforesaid; the endorsement being' as follows, to wit; \\\" Andrew Levering, William LL Morton, assignees of Wm. LI. Randall: \\\" that after said note was so made and endorsed, for the purpose of securing to the Plaintiff the claim aforesaid, the Defendant Eandall delivered said note to the Plaintiff, &o. The further-usual allegations in like cases are made, with statement of demand and notice of protest.\\nThe answer sets up want of consideration on the part of Defendants Levering and Morton, with denial of due notice of protest. The cause was tried by the Court and judgment rendered in favor of the Plaintiff.\\nThe Plaintiff attempts to charge the Defendants on two grounds \\u2014 as original makers and endorsers. In support of the first, we are cited to Marienthal, Lehman & Co. vs. H. J. Taylor, 2 Min., 147; Thompson vs. McComb, Simpson & Co., id. 139; Pierce vs. Irvine, Stone & McCormick, 1 Min. 370; Josselyn vs. Ames, 3 Mass, 373. None of these cases support the position taken by the counsel for the Defendants in Error. The first three hold that a stranger endorsing a note in blank, at the time of its inception and before delivery, for the purpose of securing the note, may be held as an original maker. The Massachusetts case was that of a guarantee by the Defendant of a non-negotiable note. The reason for the rule established in the Minnesota cases above cited, does not apply to the case at bar. As the party writing his name on the back of the note in those circumstances, could not be held as endorser of the payees, his liability as maker is recognized to prevent an entire failure of his contract.\\nBut no such necessity exists in the present case, in order to hold the Defendants responsible. Their contract is the ordinary one of endorsers of commercial paper. Their written agreement goes to that extent, and they must be held as such, if at all. We find no authority which holds that parol testimony may be introduced to show that the Defendants made a contract, by which they may be held other than as endorsers. The rule of law on this subject is well settled, oh principles of reason and justice, and should not be disturbed.\\nThis brings ns to the question, whether the Defendants can be made liable as endorsers. The Defendants resided in St. Paul. The notice of protest was deposited in the Post Office at St. Paul, and directed to them at that place. The statute in force at the time of the making of the note, permitted of service of notice of protest in that manner. Session Laws, 1856, p. 9, See. J>. ' This Act was repealed July 26, 1858. {Stat. Min., p. 133.) The repeal of that Act left the protest of notes to be governed by the same rules as prevailed at common law. These required, that where the endorsers resided in the same town where the note was payable, the notice to the endorsers must be personal and not through the Post Office. Sheldon vs. Behram, 4 Mill, 129; Ransom vs. Mack, 2 Hill, 587; Cayuga Bank vs. Bennett, 5 Hill, 236; Ireland vs. Kip, 10 John. R. 490; 18 Martin's Rep., 506; 3 Kent, p. 107, 4th ed.\\nBut the counsel for the Defendant in Error claims that the law in existence at the time of the making and endorsing the note must govern, as to the manner of serving notice of protest, \\u2014 that it became a part and parcel of the contract, the same as though the principles and provisions of the law had been reduced to writing and incorporated in the contract \\u2014 in other words, that the law was unconstitutional as to existing contracts of this kind when the law was passed. This position cannot be sustained. The repeal of the Act does not in the slightest degree impair or affect the obligation of the Defendants upon their note. It releases them from no liability as to person or property on their contract, nor imposes any restriction upon the Plaintiff as to the time or manner of enforcing his claim against the Defendants. It can scarcely be said in any manner even to affect the remedy of the Plaintiff, and at all events, is much less open to objection on this score, than enactments to which the same objections have been urged, but which have been sustained both by this, and the Courts of other States. The principle is so fully discussed in the case of Grimes vs. Bryne, 2 Min., 87, that it is unnecessary to enlarge upon the point in this connection.\\nThe judgment of the Court below is reversed, and judgment ordered in favor of the Defendants.\"}"
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+"{\"id\": \"746916\", \"name\": \"The State of Minnesota vs. Alfred Hoyt\", \"name_abbreviation\": \"State v. Hoyt\", \"decision_date\": \"1868-01\", \"docket_number\": \"\", \"first_page\": \"132\", \"last_page\": \"150\", \"citations\": \"13 Minn. 132\", \"volume\": \"13\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:45:08.202571+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Minnesota vs. Alfred Hoyt.\", \"head_matter\": \"The State of Minnesota vs. Alfred Hoyt.\\n1. The defendant having been indicted for murder, was brought into Court and arraigned. Thereupon his counsel moved to quash the indictment on the ground that the defendant was confined in jail at the time the grand jury were impanneled, sworn, and engaged in finding the indiGtment, and had no opportunity to ahallenge the grand jury or any individual grand juror. Ho attempt was made to interposea challenge, though the prisoner\\u2019s counsel were in Court when the grand jury was impan neled and sworn, nor did it appear that any cause of challenge existed. Held: \\u2014 That the motion was properly denied.\\nS. The reception of evidence having no tendency to establish the charge contained in the indictment, and the natural effect of which is to prejudice the jury against the defendant, is ground for a new trial.\\n3. Upon the trial of an indictment for homicide, proof of wounds not mentioned in the indictment may properly be received, if such proof agree in substance and generic character with the allegations of the indictment.\\n4. To lay the proper foundation for previous statements of a witness contradictory to his testimony upon the stand, the general rule in regal'd to verbal statements is that such witness must first be asked as to the time, place and person involved in the supposed contradiction. The precise date need not be indicated. The object is, in justice to the witness and party calling him, to call the attention of the witness to the occasion referred to with reasonable certainty.\\n5. The evidence 'in this case tending to show a killing with an axe, by inflicting therewith blows upon the head and neck of the deceased, which are claimed to have been inflicted in resistance of a civil trespass upon the lands or cattle or both of defendant,- and there being no pretense that the weapon was used without a design to' effect the death which followed its use. Hdd: \\u2014 That to such a state of facts See. 13, page 598, Gen. Stat., has no application.\\n6. It is the province of the Court to define what would constitute a provocation, by informing the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render/\\u25a0 the average of men of fair average mind and disposition liable to act rashly, and without due deliberation or reflection, and from passion rather than judgment, and something which the jury are satisfied did so disturb and obscure the reason of the defendant in the case before them, so that the homicide was the result of the provocation. It is for the jury, under instruction of this general nature, to determine whether the provocation in th\\u00e9 particular case on trial is sufficient. The Court may properly elaborate and illustrate such general instruction, as circumstances may require, to bring the law clearly to the comprehension of the jury.\\n7. In case of killing in heat of passion, upon sudden provocation, to determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration; for if it was effected with a deadly weapon, the provocation must be great indeed to lower the grade of the crime from murder.\\n8. Where tlie intention to kill is formed and executed in the heat of passion, upon sudden provocation, or in sudden combat, the case falls within the meaning of Seo. 13, page 598, Gen. Stat., where it speaks of a killing \\u201c intentionally but without premeditation.\\u201d\\nIf the intention to kill is formed before the heat of passion, upon sudden provocation, or in sudden combat, or though formed in the heat of passion is executed after sufficient cooling time, or after the heat of passion has subsided, the killing is with a premeditated design to effect death.\\n9. Whore a homicide is committed in heat of passion, in sudden combat, the character of the weapon used is not to be taken into consideration in reference to a provocation, nor. in such case is it necessary that there should have been any legal provocation. But the character of the weapon may properly be considered in case of homicide in sudden combat, for the purpose of determining whether the party killing entered upon the combat with a premeditated design to kill, and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purposes of the combat, when his adversary was in possession of no deadly weapon, or other means of inflicting great bodily harm.\\nTbe defendant was indicted at tbe May term, 1867, of tbe District Court for Nice County, for tbe murder of Josiah E. Stamford, on the 30th day of April, 1867, and tbe defendant arraigned. A motion was made by his counsel to set aside tbe indictment, and denied, and defendant excepted; which sufficiently appears in the opinion of the Court. The canse was brought to trial at the October term, 1867, of said Court. The homicide was established by admissions of the defendant made soon after, and the wounds described in the indictment as \\u201c one mortal wound in and upon the back side of the head, and one mortal wound in and upon the left side of the neck of him the said Stamford,\\u201d and that the wounds were inflicted with an ax and caused Stamford\\u2019s death were proven. It appeared from the evidence and from the admissions of the defendant that the deceased and the defendant had an altercation about the cattle of the defendant; that defendant was driving or attempting to drive them in and along a pub- lie road or common highway in one direction, and the deceased endeavored to drive the cattle in another direction, and that the defendant then killed the deceased.\\nThe defenses were \\u2014 1st, insanity at the time of the commission of the homicide, and 2d, \\u201cthat the offense, if any, was committed in a heat of passion, upon sudden provocation and in sudden combat, but without premeditation, and that it was committed while resisting the deceased in doing the unlawful act of forcibly and violently driving the cattle along and out of the highway.\\u201d Testimony was given tending to establish both defenses. It was admitted that no quarrel had ever occurred between the defendant and the deceased previous to the time of the homicide. The first exception to the admission of evidence on the part of the prosecution, and the grounds of the objection thereto, and the evidence received, are fully stated in the opinion of the Court.\\nThe counsel for the State asked a witness to describe the wounds on the body of the deceased ; and defendant objected to any evidence of wounds not described nor mentioned in the indictment. The objection was overruled, and defendant excepted, and the testimony was taken.\\nThe counsel for the State asked Mrs. Maria Eoot, a witness called in behalf of the State to impeach the testimony of Emma Hoyt, a witness who had testified on the part of the defendant, the following question: \\u201c State what conversation you had with Emma Hoyt at the last time you conversed with her at your house, respecting what her father (the defendant) said about killing the deceased. \\u201d The defendant objected to the question, on the ground that no sufficient foundation was laid in the testimony given by Emma Hoyt in that her attention had not been called to the .conversation which it was proposed to prove by the witness. The witness Emma Hoyt during her cross-examination by the counsel for the State had testified to conversations with this witness (Mrs. Maria Eoot), but the questions put to her, or the language used by the counsel calling out her testimony, do not appear. The objection was overruled and the defendant excepted, and the testimony was taken.\\nThere are several exceptions by the defendant to the rulings of the Judge in refusing to charge as requested, and to the charge as given, which also fully appear in the opinion of the\\u2019 Court. The jury returned a verdict of guilty of murder in the first degree ; and a motion was made to set aside such verdict, and for a new trial, which was denied, and the Court pronounced its sentence. The defendant appeals to this Court.\\nBatchelder & Buckham and G-eor&e W. Baxter for Appellant.\\nI. \\u2014The Court below erred in refusing to set aside the indictment found by the grand jury'against said defendant upon the motion of defendant.\\nBecause that the defendant was confined in jail until after the finding of the said indictment, and had no opportunity to challenge the said grand jury.\\n, The fact that defendant\\u2019s counsel were in Court at the time of impannellirig the grand jury, and before they were sworn and retired, does not show any opportunity of challenging said jury. See Gen. Stat.,p. 63Y, See. 13.\\nII. \\u2014The Court below erred in allowing the witness, Mrs. Stamford, to testify about the assault which the defendant committed on her, because\\n1. The evidence tended to support a charge against defendant of which he was not advised by the indictment, and that in' point of fact there was another indictment pending against him for the very offense that the evidence objected to would tend to establish.\\n2. That said evidence did not tend to support any allegation of the indictment, and only tended to prejudice the jury against the defendant.\\n3. The said evidence tended to prove an offense unconnected with that charged in the indictment, which was committed at a different time, at a different place, and upon a different person. State vs. Hoberg, 3 Minn., 262; People vs. Thurston, 2 Park. C. Rep., 130; 2 Russ., Crimes, 712 to 775 ; Roscoe\\u2019s Cr. Ev., 81 to 84.\\nIII. \\u2014 The Court erred in permitting the State to prove wounds on the body not mentioned in the indictment, because the indictment charges the defendant with inflicting two mortal wounds, of which the said Stamford died.\\n. The State was permitted to show some wounds which might have been mortal, and which the jury may have inferred were made by the defendant, and were the cause of Stamford\\u2019s death.\\nIY. \\u2014 The Court erred in permitting witness, Maria Root, to testify to conversations with the witness, Emma Hoyt, because the attention of the witness, Emma Hoyt, had not been called to any conversation with the witness, Maria Root,' occurring at such times and places, 1st Green Ev., Sec. 462; Palmer vs. Knight, 2 Barb., 210; Kimball vs. Davis, 19th Wend.., 437\\nY. \\u2014 The Court erred in refusing to give, in charge to the jury, the 1st, 2d, and 3d instructions asked for by the defendant, because\\n1. The evidence showed beyond question that the offense was committed while defendant was resisting an attempt by deceased to commit a forcible and violent trespass upon the cattle of defendant.\\n2. An assault or trespass with, force and violence on such cattle at such time by driving or running, worrying or beating them in the highway, is an unlawful act, and the unnecessary killing of deceased by defendant while resisting such unlawful act, was not murder, but manslaughter in the second degree.\\n3. And if such killing was necessary to prevent such unlawful act, the killing was manslaughter in the fourth degree. Gen. Stat.,p. 598, See. 13.\\nVI. \\u2014The Court erred in charging the jury that they must take into consideration the weapon used by defendant.\\nThe killing of deceased in a heat of |>assion, in sudden combat, with a deadly weapon, (or intentionally, which is the same), and without premeditation, comes precisely within the definition of manslaughter in the second degree, see Sec. 12, and therefore cannot be murder in the first degree. Ros. Crim. Ev., 737, 738, 739, 721, 685; Com. vs. Drew, 4 Mass., 391, cited in 1st Archibald, 811; 1 Russ., 583 and 584; Rosc. Cr. Ev., 724, 728, 729; 1st Whar., 712 and 944.\\nVII. \\u2014The charge of the Court that if the homicide was committed in a heat of passion, in sudden combat, with a deadly weapon, the provocation must be great, indeed, to reduce the offense from murder to manslaughter, is contrary to all authority. People vs. Johnson, 1 Park. Crim. Rep. 298; Rosc., Cr. Ev. 681 and 684; 1st Russ., 587 and 588; 1st Whar., Sec. 987 mid 979.\\nVIII. \\u2014The Court erred in instructing the jury that it was a question for the jury to determine whether the provocation proved was ' sufficient in law to reduce the offense from murder to manslaughter. 2d Arch. C. Pl., 6th Ed., p. 226, note; Foster' 290 ; 1 Hawk., C. 31, Sec. 33 and 34.\\nIX. \\u2014The case shows unmistakably, that the offense was committed in a heat of passion, upon sudden provocation, intentionally, but without premeditation.\\nAnd, also, that it was committed while defendant was resisting an attempt by deceased to do an unlawful act.\\nThere is preponderating evidence that the offense was committed in a sudden combat between the defendant and deceased, which should have convinced the jury, and which must have raised reasonable and grave doubts in their minds if they were not prejudiced against defendant. Ryan's Case, 1st Arch., 813; 2d Wheel., C. C. 47; People vs. Ward, 2 Wheel., C. C. 122; People vs. Johnson, 1 Park., C. Rep. 291; People vs. Sullivan, 1 C. Rep. 349, 355 and 258; 16 N. Y. 66 ; 3 Gray, 463 ; Gen. Stat., 585, Sec. 3. * * * *\\nE. B. E. Cornell, Attorney General.\\nI. \\u2014The first point made by appellant has already been decided against him by this Court. It is res adjudieata. Mayo vs. State of Minnesota, 3 Minn. R., 444; The State vs. Hinckley, 4 ib., 363-4.\\nII. \\u2014There was no error in the reception of the testimony of Mrs. Stamford in regard to the conduct and declarations of defendant immediately after the commission of the offense charged.\\nOne of the defenses interposed by defendant was his insanity. Clearly they were competent upon this question, even though they tended to prove another offense for which he was in-dieted. Roscoe's Cr. Ev., 82, 83, 89, 95.\\nIII. \\u2014The appellant\\u2019s third point is too untenable for argument.\\nIY. \\u2014 There was a substantial compliance with the rule requiring a witness\\u2019 attention to be called to a particular conversation out of Court, before being permitted to prove statements made in such conversation, conflicting with those given in Court, and hence there was no error in this respect.\\nY. \\u2014 A mere trespass upon one\\u2019s property, not his dwelling house, is not a sufficient provocation to warrant the owner in using a deadly weapon in its defense; and if he do, and with it kill the trespasser, it will be murder, even though the killing was necessary to prevent the trespass. To extenuate the offense in such case, it must be shown that the intention was not to take life, but merely to chastise for the trespass, and deter from its repetition. Wheat. Cr. Law, Sec. 975; Com. vs. Drew, 4 Mass., 391,\\nHence the refusal of the Court to charge defendant\\u2019s first and third requests was correct.\\nSuch refusal was correct for the further reason, that those requests assume that the killing, under those circumstances, would be only manslaughter in the second degree, even though it was done with express malice, and a premeditated design to effect the death of the person killed.\\nYI. \\u2014 Defendant\\u2019s second request, taken alone, was irrelevant, and its refusal, whether the proposition was correct law or not, could not prejudice.\\nYII. \\u2014 In case of homicide in mutual combat, upon sudden provocation, the question as to the character of the weapon used, if any, whether deadly or not, and whether the parties thereto entered upon the combat upon equally advantageous terms, is always a proper subject of inquiry for the jury in determining the grade of the offense, and whether the killing was with'premeditated design or not. Slight or ordinary provocation will not warrant the use of a deadly weapon, and the charge of the Court that \\u201cif a deadly weapon was used, the provocation must have been great, indeed, to reduce the grade of the crime to manslaughter,\\u201d was correct. The State vs. Shippey, 10 Minn. R., 223; Wheat. Cr. Law, Secs. 971, 974-5 ; 3 Seld., 384 ; 4 Park &. Rep., 35; 1 Russell on Crinnes, 529, 580.\\na. The charge of the Court that it was a question for the jury to fin'd whether there was sufficient provocation in this case to reduce the grade of the offense, was not submitting to them a question of law, but one of fact, viz: was the provocation great? If the instruction was not sufficiently definite as to the degree, the defendant should have asked for specific instruction upon that point.\", \"word_count\": \"5837\", \"char_count\": \"33777\", \"text\": \"By the Court\\nBerry, J.\\u2014\\nI. \\u2014The defendant was indicted by a. grand jury of Rice County for murder. Upon being brought into Court and arraigned, his counsel moved to set aside the indictment upon the ground \\\" that he was confined in jail at the time that the grand jury- were impanneled, sworn and engaged in finding the said indictment, and had no opportunity to challenge the panel of the' grand jury, or any individual grand juror.\\\" The denial of this motion is the first alleged error. The case shows that no attempt was made to interpose a challenge, and, although the fact may not be important, that the defendant's counsel were in Court at the time when the grand -jury were impanneled and sworn.. It does not -appear that any cause of challenge existed.\\nThe point raised has already been settled adversely to the views of the defendant's counsel in Maher vs. State, 3 Minn., 445, and in State vs. Hinckley, 4 Minn., 363-4, and we see no reason for re-examining it. See also People vs. Jewett, 3 Wend., 313.\\nII. - \\u2014 -Mrs. Stamford, the wife of deceased, testified before the State rested, \\\" that when defendant came to her house on the morning of and after the homicide, he said to her that he had killed Mi'- Stamford, and was. going to kill her.\\\" The attorney for the State then asked the witness the following question: \\\" What did the defendant do then ? \\\"\\nThe counsel for the defendant objected. The objection being overruled, defendant excepting, the witness answered : \\\" He raised liis axe to strike me, and kept striking at me, and threw me upon the floor, but I caught hold of the axe and held to it until the boys came. He kept grinding his teeth and saying ' God damn you.' \\\" This testimony was improperly admitted. The transaction testified to took place some time after and at a distance of a half mile or more from the scene of the homicide. . The testimony had no tendency to establish the charge contained .in the indictment, and its natural effect was to prejudice the jury against the defendant. State vs. Hoberg, 3 Minn., 262; People vs. Thurston, 2 Park. Cr. R., 130; Roscoe Cr. Ev., 81.\\nIII. \\u2014The counsel for defendant contend that, the Court erred in permitting the State to prove wounds not mentioned in the indictment, wounds which might have been mortal, and which the jury may have inferred were made by the defendant, and were the cause of, Stamford's death.\\nThere is nothing in this point. \\\" It is sufficient if the proof agree with the allegation \\u00fa\\u00a1v its substance and generic character, without precise conformity in every particular.\\\" 3 Gr. Ev., Sec. 140; 1 Ibid, Sec. 65 ; Sanchez vs. People, 22 N. Y., 149 ; 1 Russell on Crimes, 560; Roscoe Cr. Ev., 108; 1 Archbold Pr. and Pl., 7th Ed., 888; 4 Parker's Cr. R. 552; Rex vs. Waters, 7 C. and P., 250; 2 Bishop Cr. Pro., Sec. 528.\\nIV. - \\u2014 -The defendant claims that the Court erred in permitting Maria Hoot to testify to statements made by' the witness Emma Hoyt, contradicting her testimony upon the stand, because a proper foundation had not been laid, by first calling the attention of Emma Hoyt to any conversations with Maria Root occurring at the times and places at which Maria Hoot testified that such statements were made.\\nIt appears from the ease that upon an examination by the State a question was addressed to Emma Hoyt \\\" concerning alleged conversations with Mrs. Maria Root.\\\" \\\"What the lan guage of the question was, we are ' not informed, and therefore we are not able to determine whether the requisite foundation referred to was laid or not. It does not, then, appear that there was error. To lay the proper foundation, \\\" it is generally held necessary, in the ease of verbal statements, first to ask as to the time, place and person involved in the supposed contradiction.\\\" 1 Or. Ev., Sec. 462.\\nThe precise date, however, need not be indicated. Pendelton vs. Empire Stone Dressing Co., 19 N. Y., 18. The object is, in justice to the witness proposed to be contradicted, as well as in justice to the party calling him, to point out the occasion referred to, with such reasonable certainty as to recall it to the mind of the witness, so that he may have an opportunity to correct his statement on the stand, or explain what he may be proved to have said elsewhere. See authorities svpra. 1 Starkie Ev., 213-14; State vs. Starr, 38 Mo., 279.\\nY. \\u2014 The counsel for the defendant asked the Court to instruct the jury \\\" that if they found that the defendant killed the deceased while resisting an attempt by deceased to commit any trespass upon the lands and cattle of the defendant, or to clo any unlawful act whatever, or after such attempt had failed, and that such killing was unnecessary, they must find the defendant guilty \\u00f3f manslaughter in the second degree.\\\"\\nThe counsel for defendant also requested the Court to charge \\\" that according to the laws of this State cattle have a right to run at large from the first day of April to the fifteenth day of October, in each year, and that any assault or trespass with force and violence .on such cattle at such time by driving or running, or worrying and beating them'in the highway, is an unlawful act.\\\"\\nThe counsel for the defendant also requested the Court to charge, \\\" that the driving of one man's cattle, by another out of the highway or along the highway where they have law fully a right to be and remain, violently, and with force, is an unlawful act, and if the jury find that the defendant hilled the deceased while resisting an attempt by the deceased to do such an unlawful act, and that such hilling was- unnecessary, they cannot convict the defendant of murder in the first degree, but of manslaughter in the second degree.\\\" Each of these requests was refused by the Court, and defendant excepted.\\nIt is claimed that the instructions ashed for were proper under See. 13, page 598, Gen. Stat., which reads as fohows: \\\" Whoever unnecessarily hills another, except by accident or misfortune, and except in cases mentioned in sub-division two of section five of this chapter, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, shall be guilty of manslaughter in the second degree.\\\"\\nThe evidence in this case tends to show that here was a hilling with an axe \\u2014 a deadly weapon \\u2014 by inflicting therewith blows upon the head and nech of the deceased. These blows are claimed to have been inflicted in resistance of a civil trespass upon the land or cattle or both of the defendant; and there is no pretense that the weapon was used without a design to effect the fatal result which followed .'its use, to wit: the death of Stamford. We are unanimously of opinion that to such a state of facts See. 13 has no application, and that the instructions before quoted were therefore properly refused. But after a very laborious and protracted examination of the points involved, we are compelled to.arrive at this conclusion by courses of reasoning in which we are not .unanimous ; we therefore forbear to enter upon an explanation of the grounds upon which we base our judgment; it is sufficient for all the practical purposes of this case to announce the result reached. In considering and expounding the law of homicide we desire to act with extreme caution, and if possible to lay down no position and adopt no line of. argument in which we cannot unanimously concur.\\nYI. \\u2014 It must be borne in mind that in this construction of See. 13 we are not considering the case of a killing in heat of passion, upon sudden provocation, or in sudden combat, under See. 12, to which we now come.\\nThe Court charged the jury \\\" that if they found that the homicide was committed in a heat of passion, upon sudden provocation, or in sudden combat, they must then take into consideration the character of the weapon used by defendant,* and if a deadly weapon was used, the .provocation given the defendant must have been great indeed to reduce the killing from murder in the first degree to manslaughter in the second degree. It is a question for the jury to find whether in this case there was sufficient provocation to reduce the crime from murder to manslaughter in the second degree.\\\" To this the defendant excepted.\\n\\\"What is a sufficient provocation is quite commonly spoken of by writers on criminal jurisprudence, as a question of law, not of fact, a question for the Court, not for the jury. But as Mr. Bishop remarks in 2 Or. Law, See. 735, in speaking of the question of what is a sufficient provocation and what is sufficient cooling time, \\\" they are found practically involved in inquiries concerning facts, and as such they must be passed upon by the jury.\\\" Ye are very well satisfied in general with the views expressed on this subject in Maher vs. The People, 10 Mich., 212. In that case Mr. Justice Christiancy says: \\\"It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable0 or adequate provocation, but not, I think, in ordinary cases to determine whether the provocation proved in the particular ease is sufficient or reasonable. This i's essentially a question of fact, and to be. decided with reference to. the peculiar facts of each particular case. As a general rule, the Court, after .informing the jury to what extent the passions must be aroused, and reason obscured, to render the homicide manslaughter, should inform; them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men ; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in rny opinion, much better qualified to judge of the sufficiency and tendency of \\u00e1 given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.\\\" \\u2022 And again says the same Judge: \\\"The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule \\u2014 that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment. To the question what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be anything, the natural tendency of which, would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them ; not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes ; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for -then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation, which would not be available to better men, and on .account of that very wickedness of heart, which in itself constitutes an aggravation in morals and in law. In determining whether the provocation is sufficient or reasonable, ordmary huma/n nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard.\\\"\\n\\\"We agree substantially with the views thus expressed by the Supreme Court of Michigan. It is the province of the Court to define what will constitute a provocation, by, in substance, informing the jury that it must be something, the natural tendency of which would be to disturb and obscure the reason to an extent which might render the average of men of fair average mind and disposition liable to act rashly or withoxit due deliberation or reflection, and from passion, rather than judgment, and something which the jury are satisfied did so disturb and obscure the reason of the defendant in the case before them, so that the homicide was the result of the provocation:\\nThe average of men of fair average mind and disposition should be taken as the standard. It is for the jury under in-' structions of this general nature to determine whether the provocation-proved in the particular case on trial is sufficient. We do not mean to say that it is' not proper for a Court to elaborate and illustrate the general instructions above indicated. That is a matter which calls for the exercise of a sound practical discretion, as circumstances may require, for the purpose of bringing the law clearly to the comprehension of the jury-\\nVIL \\u2014 So far as the instruction related to a heat of passion upon sudden provocation, it is in accordance with the following views heretofore' expressed by this Court in State vs. Shippey, 10 Minn., 229-230, to which we adhere. In that case it was said \\\" that to determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected, must be taken into consideration, for if it was effected with a deadly weapon, the provocation must be great, indeed, to lower the grade of the crime from murder.\\\"\\nAnd the reason why this is so is, because the presumption from the bare fact of the use of a deadly weapon in perpetrating homicide in heat of passion upon sudden provocation or in sudden combat, is that the killing was intentional, and where the killing is intentional, a great provocation is required to disturb or obscure reason \\\" by passion to an extent which might render ordinary men of fair average disposition liable to act rashly or without due deliberation or reflection, or from passion rather than judgment.\\\" And so whenever it is sought to bring a case within the terms and meaning of Section 12 the provocation must be great to give the homicide the character of manslaughter, because only intentional killing is covered by that section which reads in this wise : \\\" The killing of a human being by another, in a heat of passion, upon sudden provocation, or in sudden combat, intentionally, but without premeditation, is manslaughter in the second degree.\\\"\\nVIII. \\u2014 It is proper further to observe that, as remarked in State vs. Brown, 12 Minn., 543, \\\" 'intentionally, and 'with premeditated design,' do not seem to be used in our statute as synonymous expressions; the latter involving a greater degree of deliberation and forethought than the former.\\\" If the intention to kill is formed and executed \\\"m the heat of passion, upon sudden provocation, or in sudden combat,\\\" we are o\\u00ed opinion that the case falls within the meaning of Section 12, where it speaks of a killing \\\" intentionally, but without premeditation.\\\" If the intention to kill is formed before the \\\" heat of passion, upon sudden provocation, or in sudden combat,\\\" or though formed in the heat of passion is executed after sufficient cooling time,or after the heat of passion h'as subsided, we are of opinion that the case then comes within the meaning of a killing with a premeditated design to effect the death of the person killed.\\n'So far, then, as the charge of the Court related to a homicide committed in heat of passion, upon sudden provocation, it was correct.\\nIX. \\u2014 But the charge comprehended also the case of a homicide committed in sudden combat, and as to this we think it was inaccurate. Where a homicide is committed in heat of passion, in sudden combat, the character of the weapon used is not to be taken into consideration in reference to a provocation, nor in case of such sudden, combat is it necessary that there should have been any legal provocation to render the homicide manslaughter. The question of provocation can hardly be said to arise in case o\\u00ed homicide in sudden combat. But the character' of the weapon may properly be considered in case of homicide in sudden combat, for the purpose of determining whether the party killing entered upon the combat with a premeditated design to kill; and such intention might be inferred from his preparing himself with a deadly weapon previous to the combat, and for the purposes of the combat, when his adversary was in possession of no deadly weapon, \\u2022or other means of inflicting great bodily harm upon him. We believe that we have considered all the material points made on the . argument. Some questions of fact which were presented it is not necessary to determine in the direction which we give to the cas\\u00e9.\\nFor the errors which we have indicated a new trial must be awarded. .\\nOrdered accordingly.\"}"
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+"{\"id\": \"754185\", \"name\": \"Saint Paul, Stillwater & Taylor's Falls Railroad Company vs. First Division of the St. Paul & Pacific Railroad Company and others\", \"name_abbreviation\": \"Saint Paul, Stillwater & Taylor's Falls Railroad v. First Division of the St. Paul & Pacific Railroad\", \"decision_date\": \"1879-03-29\", \"docket_number\": \"\", \"first_page\": \"31\", \"last_page\": \"36\", \"citations\": \"26 Minn. 31\", \"volume\": \"26\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:56:39.239877+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Saint Paul, Stillwater & Taylor\\u2019s Falls Railroad Company vs. First Division of the St. Paul & Pacific Railroad Company and others.\", \"head_matter\": \"Saint Paul, Stillwater & Taylor\\u2019s Falls Railroad Company vs. First Division of the St. Paul & Pacific Railroad Company and others.\\nMarch 29, 1879.\\nPatents for Lanas on Navigable Rivers. \\u2014 Patents, by the general government, of public lands bordering on streams, are not limited by the meander lines. Following Schurmeier v. St. Paul & Pacific B. Oo., 10 Minn. 82, and 7 Wall. 272. Such patents of public lands bordering on streams navigable in' fact, issued under the acts of congress providing for the survey and sale of the public lands, do not take to the middle line of the stream, but stop at the stream; following in this, 7 Wall. 272.\\nSame \\u2014 Islands in River not shown on Flat. \\u2014 The official plat,of the survey of section 5, town 28, range 22, and of section 32, town 29, same range, showed that lot 1 of the former section, and lots 3 and 4 of the latter section, abut on the Mississippi river, showed no island between these lots and the body of the river, the main stream, andno island opposite those lots. Held, that the government issuing patents for the lots mentioned under the surveys, as shown by the plats, was bound by the plats, and that the patentees took to the body of the river, although in fact there lay opposite the lots, and between the main land and the body of the river, a strip of land which might in fact be an island, and that the title to such strip passed to the patentees.\\nSame \\u2014 Subsequent Survey and Pre-emption of Island. \\u2014 After patents for these-lots were issued, the strip was, under instructions from the general land-office, surveyed as an island. Held, that this survey was unauthorized. Also, that the land officers hud no jurisdiction to entertain a. claim of a person to pre-empt such strip under such survey.\\nAppeal by plaintiff from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial. The action was ejectment, and the case is stated in the opinion.\\nJohn B. \\u00e9 W. II. Sanborn and II. F. Masterson, for appellant.\\nBigelow, Flandrau, \\u00e9 Clark and Geo. L. \\u00e9 Chas. E. Otis,. for respondents.\", \"word_count\": \"1975\", \"char_count\": \"11158\", \"text\": \"Gileillan, C. J.\\nThe controversy in this case is concerning the title to a strip of land lying along the northerly shore-of the Mississippi river at St. Paul, and opposite lot one,, section five, town twenty-eight, range twenty-two, and lota three and four, section thirty-two, town twenty-nine, ranga twenty-two. Lot one was conveyed by patent to Louis-Robert, March 24, 1849, and lots three and four to Norman W. Kittson, the same date. The surveys were made in 1848, and approved, and the official plats of the townships were of course, at the date of the patents, on file in the land-office of the district. In 1852, the strip in question was, pursuant to-instructions from the general land-office, surveyed as an island, and inserted upon the plats as lot three, section five-above, and lot five of section thirty-two above, and, April 7, 1855, was conveyed by patent to John M. Lamb. Under the latter, this plaintiff claims title; the defendants under Robert- and Kittson. Lot one, section five, and lots three and four, section thirty-two, abut, according to the official plat, on the river. The plaintiff claims, as a fact, that at the date of the-patents to Robert a-nd Kittson, the strip in controversy was an island, surrounded at all stages of water by the waters of the river, with a channel and current between it and the main shore. The defendants claim, as a fact, that it was then a part of the main shore, although in high water entirely, and in medium and low water partly, separated from it by a slough, into which the waters of the river flowed. As a question of law, the defendants claim that the rule of the common law, that the grantee, in a grant bounded generally upon a non-navigable stream, takes to the middle of the stream, is in this state applicable to the Mississippi river and its tributaries, they being non-navigable in the common-law sense of the term as applied in the construction of grants, and that this rule controls in the construction of'patents of the public lands issued by the general government, as well as to conveyances between private persons. The plaintiff claims that the patentee of a governmental subdivision, bordering on a stream navigable in fact, takes only to the meandered line, or, at most, that he takes, only to low-water mark. On the trial below, the parties having given evidence of their respective claims as to the fact, and rested, the court held that the patentees, Robert and Kittson, took, under their patents, to the middle line of the river, and directed a verdict for the defendants. From an order denying a new trial, this appeal is taken.\\nThis court, in Schurmeier v. St. Paul & Pacific R. Co., 10 Minn. 59 (82,) decided that the meander lines of governmental subdivisions, bordering on navigable, rivers, do not limit the grant in a patent; and this decision was affirmed by the supreme court of the United States in the same case. Railroad Co. v. Schurmeir, 7 Wall. 272. The question is-therefore set at rest. In the same case, this court held that the common-la rule as to the construction of grants of land, bordering on streams is in force in this state, and is applicable to patents or grants of the public lands by the general, government. But patents and grants by the general governments may be controlled in this respect, as in others, by the-acts of congress regulating the survey and sale of the public, lands; and, in the case we have cited, the supreme court-of the United States decided that, under the various acts of congress providing for the survey and- sal\\u00e9 of the public land's, the- title -of the patentee of lands- bordering on streams navigable in fact stops at-the stream, and that the title to the beds of such streams is reserved to the government. This, being a construction of statutes of-the United States by the court of last resort, is binding, and-settles the rule applicable to patents of the public lands by the general government, issued pursuant to the statutes referred to. The-court below was therefore wrong' in its reason for directing a verdict.\\nIt remains to be considered whether, aside from this reason, the defendants, were entitled to a verdict. The record contains copies of the official plats of section five, town twenty-eight, and section thirty-two, town twenty-nine. Upon these plats the Mississippi river, through or opposite these sections, is delineated. The plats show no island in that part of the river, no land between which and the main land any channel runs. From them it appears that the lots granted to Robert and Kittson extend to. the body of the river, the main stream. By the survey, as shown on the plats, the strip in question was surveyed, not as an island,- but a part of the main land, and included in those lots. After the government has sold lands according to a survey and plat, it cannot,(as-a.general rule, at least,) dispute the -truth of such survey and plat. Bates v. Illinois Central R. Co., 1 Black, 204; Lindsey v. Hawes, 2 Black, 554; Railroad Co. v. Schurmeir, 7 Wall. 272. If there be any case in which, after a sale of the lands, the government may question the accuracy of the survey and plat by which it sold, it is not such a case as this.\\nThere is nothing to call in question -the good faith towards the government of the surveyors who made the first survey. The testimony makes it doubtful whether, at the time of that survey, the strip in controversy was an island or- part of the main land. In such case, the surveyors may determine, to the best of their judgment, whether such strip, should be surveyed as an island or a part of the main land'; and if their survey is approved, and the land sold according to it, the government is bound by their action. This being so, the title to the strip in question pass.ed under the patents to Bobert and Kittson, and, as a consequence, the subsequent survey and platting of it as an island was unauthorized, and the patent issued to Lamb, pursuant to it, passed no title. For the same reason, the proceedings of the officers of the land-office, upon Lamb's application to pre-empt under the subsequent survey, which plaintiff offered to prove, w'ere null. Those officers could have no jurisdiction to determine anything in relation to lands which the United States had already conveyed. There was no error in excluding evidence of those proceedings.\\nUnder the views we have expressed as to the effect of the original surveys and plats, and the grants to Bobert and Kith-son under them, the direction of the court to the jury to return a verdict in favor of defendants, was right.\\nOrder affirmed.\"}"
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+"{\"id\": \"754229\", \"name\": \"Frederick H. McIntosh vs. Emmett Lytle\", \"name_abbreviation\": \"McIntosh v. Lytle\", \"decision_date\": \"1880-01-03\", \"docket_number\": \"\", \"first_page\": \"336\", \"last_page\": \"337\", \"citations\": \"26 Minn. 336\", \"volume\": \"26\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:56:39.239877+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frederick H. McIntosh vs. Emmett Lytle.\", \"head_matter\": \"Frederick H. McIntosh vs. Emmett Lytle.\\nJanuary 3, 1880.\\nCheque \\u2014 Payee\\u2014Action against Drawer. \\u2014 A. writing in this form\\u2014 \\u201c $200. St. Paul, Minn., January 22, 1879. D. & Co., Bankers: Pay to the order of, on sight, two hundred dollars in current funds. 12. L.\\u201d is not a check, because no payee is indicated by it, and no action on it, can ho maintained against the drawer on its non-payment.\\nAppeal by plaintiff from a judgment of the district court for Ramsey county, the action having been tried before Wilkin, J., and dismissed on the defendant\\u2019s motion.\\nLamprey \\u00e9 James, for appellant.\\nGilman \\u00e9 Clough, for respondent.\", \"word_count\": \"480\", \"char_count\": \"2750\", \"text\": \"Gileillan, C. J.\\nAction on a writing as follows: \\\"$200. St. Paul, Minn., January 22, 1879.\\n\\\"Dawson & Co., Bankers : Pay to the order of, on sight, two hundred dollars, in current funds. E. Lytle.''\\nWhen presented to Dawson & Co., they refused payment, having been instructed so to do by the defendant.\\nA check must name or indicate a payee. Checks drawn payable to an impersonal payee, as to \\\"bills payable\\\" or order, or to a number or order, are held to be payable to bearer, on the ground that the use of the words \\\"or order\\\" indicates an intention that the paper shall be negotiable; and the mention of an impersonal payee, rendering an endorsement by the payee impossible, indicates an intention that it shall be negotiable without endorsement \\u2014 that is, that it shall be payable to bearer. So when a bill, note.or check is made payable to a blank or order, and actually delivered to take effect as commercial paper, the person to whom delivered may insert his name in the blank space as payee, and a bona-fide holder may then recover on it.\\nThese eases differ essentially from the one at bar. In the latter ease the person to whom delivered is presumed, in favor of a bona-fide holder, to have had authority to insert a name as payee. In the former cases the instrument is, when it passes from the hands of the ipaker, complete, in just the form the parties intend. But in this case there is neither a blank space for the name of the payee, indicating authority to insert the payee's name, nor is the instrument made payable to an impersonal payee, indicating a fully completed instrument. It is claimed that the words \\\"on sight\\\" are such impersonal payee. They were inserted, however, for another purpose \\u2014 to fix the time of payment, and not to indicate the payee. It is clearly the case of an inadvertent failure to complete the instrument intended by the parties. The drawer undoubtedly meant to draw a check; but having left out the payee's name, without inserting in lieU thereof words indicating the bearer as payee, it is as fatally defective as it would be if the drawee's name were omitted. '\\nJudgment affirmed.\"}"
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+"{\"id\": \"8156705\", \"name\": \"STATE of Minnesota, Respondent, v. John VANG, Defendant, Integrity Bonding Company, Appellant\", \"name_abbreviation\": \"State v. Vang\", \"decision_date\": \"2009-03-31\", \"docket_number\": \"No. A08-0425\", \"first_page\": \"354\", \"last_page\": \"359\", \"citations\": \"763 N.W.2d 354\", \"volume\": \"763\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:22:47.120797+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by HUDSON, Presiding Judge; WORKE, Judge; and CONNOLLY, Judge.\", \"parties\": \"STATE of Minnesota, Respondent, v. John VANG, Defendant, Integrity Bonding Company, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. John VANG, Defendant, Integrity Bonding Company, Appellant.\\nNo. A08-0425.\\nCourt of Appeals of Minnesota.\\nMarch 31, 2009.\\nLori Swanson, Attorney General, John S. Garry, Assistant Attorney General, St. Paul, MN, for respondent.\\nJustin L. Seurer, Seurer Law, LLC, Minneapolis, MN, for appellant.\\nConsidered and decided by HUDSON, Presiding Judge; WORKE, Judge; and CONNOLLY, Judge.\", \"word_count\": \"2349\", \"char_count\": \"14775\", \"text\": \"OPINION\\nHUDSON, Judge.\\nOn appeal from the district court's reinstatement and discharge of $500 of a $10,000 bail bond, appellant argues that the district court abused its discretion by failing to hold a hearing and by failing to reinstate the entire amount of the bail bond. We affirm.\\nFACTS\\nIn October 2006, defendant John Vang was charged with third-degree possession of a controlled substance. In May 2007, appellant Integrity Bonding Company posted a bail bond in the amount of $10,000 to guarantee defendant's appearance in court. Defendant pleaded guilty to the charges in June 2007 but failed to appear for sentencing in August 2007. Pursuant to Minn. R. Gen. Pract. 702, the district court ordered the bail bond posted by appellant forfeited for defendant's failure to appear for sentencing.\\nOn December 12, 2007, appellant petitioned the district court for a 90-day extension of the bail bond. In its supporting affidavit, appellant stated that it had contacted its recovery agent who was looking for defendant at Wisconsin addresses where defendant had been known to live. The district court granted a 60-day extension. On February 13, 2008, appellant petitioned the court for a 15-day extension, and, again, supported its request with an affidavit detailing its attempts to locate and apprehend defendant. Appellant detailed facts similar to those included in its December 12, 2007 petition, but added that a recovery agent was doing surveil lance on a new address in an attempt to apprehend defendant. The district court granted a 15-day extension. On February 27, 2008, appellant petitioned the district court for reinstatement and discharge of the bail bond. The supporting affidavit detailed appellant's various attempts to locate defendant, including re-interviewing defendant's parents in Wisconsin and interviewing other relatives of defendant in Wisconsin. Appellant stated that defendant's father informed the recovery agent that defendant was living in Toronto. The state opposed appellant's motion. Defendant was not apprehended, and on February 27, 2008, the district court forfeited $9,500 of the bond. This appeal follows.\\nISSUES\\nI. Did the district court err when it denied appellant's petition for full reinstatement and discharge of a forfeited bail bond without a hearing pursuant to Minn. R. Gen. Pract. 702(f)?\\nII. Did the district court abuse its discretion when it reinstated only $500 of appellant's $10,000 bail bond?\\nANALYSIS\\nI\\nAppellant argues that the district court abused its discretion when it forfeited $9,500 of the bail bond without holding a hearing pursuant to Minn. R. Gen. Pract. 702(f). Despite appellant's framing of the argument, construction of a court rule presents a question of law, which this court reviews de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996) (examining rule of civil procedure under de novo standard).\\nAlthough appellant did not specifically request a hearing, appellant argues that it was automatically entitled to a hearing regarding the reinstatement and discharge of the bail bond because, under Minn. R. Gen. Pract. 702(f), \\\"[a] petition for reinstatement . shall be heard and determined by the judge who ordered forfeiture, or the chief judge.\\\" (Emphasis added.) Appellant's position is unavailing for several reasons. First, we note that this provision concerns the assignment of a particular judge to the bail-reinstatement determination, not the particular procedure to be followed. Second, the comment to the rule states, \\\"[cjourts considering this action should give consideration to the appropriate procedure and the giving of notice and an opportunity to be heard if such process is due the bond person.\\\" Minn. R. Gen. Pract. 702(f) 1997 advisory comm. cmt. This comment indicates that the procedure for the bail-reinstatement determination, including the need for a hearing, is discretionary with the district court.\\nFurthermore, the supreme court established several factors that a reviewing court shall consider when determining whether the district court abused its discretion in denying a motion to reinstate a forfeited bail bond. Shetsky v. Hennepin County (In re Shetsky), 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953). One of those factors is the civil nature of the proceedings. Id.\\nAssuming the proceedings are civil in nature, as Shetsky and rule 702(f) indicate, rule 115 of the General Rules of Practice reflects the traditional practice for a civil action by implicitly placing the burden on the moving party to obtain a hearing date. Minn. R. Gen. Pract. 115.02 reads:\\nA hearing date and time shall be obtained from the court administrator or a designated motion calendar deputy. A party obtaining a date and time for a hearing on a motion or for any other calendar setting, shall promptly give no tice advising all other parties who have appeared in the action so that cross motions may, insofar as possible, be heard on a single hearing date.\\n(Emphasis added.) Application of this rule would appear to require that appellant move for a hearing. Additionally, in State v. Due, which also involved the forfeiture of a bail bond, this court noted that no evidentiary hearing was requested, which implied that the appellant was not automatically entitled to a hearing. 427 N.W.2d 276, 277 (Minn.App.1988), review denied (Minn. Sept. 28,1988).\\nMoreover, the phrase \\\"shall be heard\\\" does not necessarily mean that a party is entitled to an oral hearing. See, e.g., Sweet v. Comm'r of Human Servs., 702 N.W.2d 314, 321 (Minn.App.2005) (holding that counselor's opportunity to submit his written case to the commissioner, along with any supporting documents, satisfied his \\\"right to be heard\\\"). And the Minnesota Rules of Civil Procedure do not guarantee the right to a hearing on all motions. See Minn. R. Civ. P. 43.05 (stating that the court \\\"may direct that [a motion] be heard wholly or partly on oral testimony or depositions\\\"); see also Braith v. Fischer, 632 N.W.2d 716, 723 (Minn.App.2001) (holding no abuse of discretion when district court declined to hear oral testimony), review denied (Minn. Oct. 24, 2001).\\nHere, we are unable to find in the record a specific request by appellant for a hearing. Appellant submitted an affidavit, but it failed to specifically indicate that a hearing was necessary. This suggests that appellant affirmatively sought a decision based solely on its written submission. Moreover, appellant puts forth no argument on appeal as to what new factual or legal information it would have presented at a hearing. On this record, the district court did not err when it reinstated and discharged a fraction of the bond without first holding a hearing.\\nII\\nAppellant also argues that the district court abused its discretion by refusing to reinstate the entire amount of the bail bond. The district court's denial of a motion to reinstate, discharge, and refund forfeited bail bonds is reviewed for an abuse of discretion. Shetsky, 239 Minn, at 471, 60 N.W.2d at 46. A district court abuses its discretion when its ruling is based on an erroneous view of the law. Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 701 (Minn.1997).\\nIn determining whether the district court abused its discretion, this court considers: the purpose of bail; the civil nature of the proceedings and the burden of proof; as well as the cause, purpose, and length of the defendant's absence; the good faith efforts of the surety- \\u2014 if any \\u2014 to apprehend and produce the defendant; and the prejudice \\u2014 by way of delay or otherwise \\u2014 to the state, in its administration of justice. Shetsky, 239 Minn, at 471, 60 N.W.2d at 46. More recently, in State v. Storkamp, the Minnesota Supreme Court reiterated the Shetsky principles and stated:\\nIn releasing the accused upon the posting of a bond, a dual purpose is served: relieving the accused of imprisonment and relieving the state of the burden of detaining him pending his trial. This is accomplished by placing the accused in the \\\"custody\\\" of \\\"a jailer of his own choosing,\\\" the surety, who will ensure the accused's presence at trial without in any way impairing or delaying the administration of justice or prejudicing the state in its prosecution.\\n656 N.W.2d 539, 541 (Minn.2003) (citations omitted).\\nThe surety bears \\\"the burden of proof to establish a justification for a mitigation of forfeited bail.\\\" Shetsky, 239 Minn, at 472, 60 N.W.2d at 46. Appellant has not met its burden. We note first that appellant's brief focused solely on \\\"mitigating factors,\\\" by which we assume appellant means it made good faith efforts to apprehend and produce defendant. But appellant does not describe the nature of its efforts in any detail, relying instead on the eonclusory statement that \\\"[t]he [petition of the [ajppellant demonstrates significant mitigating factors taken to ensure the apprehension of the [defendant.\\\" Similarly, appellant's statement of the facts merely echoes the earlier district court petitions and details seven different occasions when a recovery agent attempted to locate defendant. Appellant's argument on this factor is thus not compelling. And application by this court of the other Shetsky factors leads us to conclude that the district court did not abuse its discretion when it reinstated and discharged only $500 of the bail bond.\\nPurpose of bail and civil nature of the proceedings\\nOne purpose of a bail bond is to encourage a surety to voluntarily pay the penalty for the failure to ensure the presence of the accused without requiring the state to undergo the expense of litigation to recover the defaulted amount. Id., 239 Minn, at 469, 60 N.W.2d at 45. Another is to encourage sureties to locate, arrest, and return defaulting defendants to the authorities to facilitate the timely administration of justice. Storkamp, 656 N.W.2d at 543. Here, appellant has not achieved or fostered any of the purposes of bail. Even though appellant believes defendant is in Toronto, appellant's belief about defendant's whereabouts does not demonstrate that appellant has in fact located defendant such that the government might be put in a position to secure his return.\\nCause, purpose, and length of the defendant's absence\\nDefendant's willfulness or bad faith is attributable to the surety. Shet-sky, 239 Minn, at 471, 60 N.W.2d at 46. Under Minnesota law, even an untimely apprehension and return of defendant would not require that the forfeited bail bond be fully reinstated and discharged. See State v. Williams, 568 N.W.2d 885, 888 (Minn.App.1997) (holding that a surety's assistance in a defendant's untimely return to custody does not mandate forgiveness of the penalty on a forfeited bail bond), review denied (Minn. Nov. 18, 1997). Moreover, this is not an instance when the bond should be discharged because the state has taken action making it impossible for appellant to produce defendant. See Due, 427 N.W.2d at 278 (citing State v. Liakas, 165 Neb. 503, 510, 86 N.W.2d 373, 378 (1957) (surety exonerated on bond obligation when state surrendered prisoner to another sovereign, thus preventing surety's performance)). The state has done nothing to impede appellant's efforts to produce defendant, and appellant has put forth no evidence that defendant's absence at the scheduled appearances was anything but willful and unjustifiable. Under these circumstances, defendant's absence is attributable solely to appellant.\\nGood-faith efforts of the surety to apprehend and produce defendant\\nAppellant states that \\\"[t]he [pjetition of the [a]ppellant demonstrates significant mitigating factors taken to ensure the apprehension of the [defendant.\\\" Appellant filed three separate petitions with supporting affidavits. Each subsequent affidavit echoed an earlier affidavit and added one or two new facts to the record. In our view, the district court acknowledged appellant's good-faith efforts to secure defendant's return by reinstating and discharging $500 of the forfeited bond. In addition, although appellant detailed the steps it took to regain custody of defendant, appellant never itemized its expenses in attempting to locate and apprehend defendant. In Storkamp, the bail bond company detailed the $1,200 it expended in apprehending the defendant. 656 N.W.2d at 541. The supreme court took this into account in holding that the bail bond should have been reinstated. Id. at 543. Here, it is difficult to tell how the district court arrived at the reinstatement and discharge figure of $500, because there are no findings of fact or conclusions of law in its order. But given that appellant never itemized its expenses, it cannot claim that its expenses were more than the $500 the district court forgave. Accordingly, the district court did not abuse its discretion in reinstating a fraction of the bail bond.\\nAppellant also argues that forfeiture of all but $500 of the bond would discourage bonding companies from locating and apprehending defendants in the future. This argument seems contrary to logic. If anything, potential forfeiture of a bond is a strong incentive for bonding companies to actually locate and apprehend absconding defendants.\\nPrejudice to the state\\nFinally, in agreeing to act as a surety for a defendant, a bonding company assures the district court that the defendant will personally appear to answer the charges against him. Due, 427 N.W.2d at 278. Here, defendant remains at large, and thus, the state was prejudiced because it was prevented from imposing a sentence on defendant for a felony offense. This case is distinguishable from Storkamp, in which the state eventually gained custody of the defendant, yet the district court still denied reinstatement of the bond. 656 N.W.2d at 542-43. The adverse effect on the prosecution because of the defendant's unexcused absence \\\"weights] heavily against the remittance of the forfeited bond.\\\" Id. at 542.\\nUnder the Shetsky factors, the district court did not abuse its discretion when it reinstated and discharged only $500 of the bail bond.\\nDECISION\\nThe district court did not err when it denied appellant's petition for reinstatement and discharge in full of a forfeited bail bond without a hearing because appellant failed to request a hearing. The district court did not abuse its discretion when it reinstated and discharged only $500 of the bail bond.\\nAffirmed.\"}"
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+"{\"id\": \"8304026\", \"name\": \"STATE of Minnesota, Respondent, v. Tavon Tarrel TIMBERLAKE, Appellant\", \"name_abbreviation\": \"State v. Timberlake\", \"decision_date\": \"2008-02-14\", \"docket_number\": \"No. A06-72\", \"first_page\": \"390\", \"last_page\": \"397\", \"citations\": \"744 N.W.2d 390\", \"volume\": \"744\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T01:20:02.907532+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Tavon Tarrel TIMBERLAKE, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Tavon Tarrel TIMBERLAKE, Appellant.\\nNo. A06-72.\\nSupreme Court of Minnesota.\\nFeb. 14, 2008.\", \"word_count\": \"3438\", \"char_count\": \"20804\", \"text\": \"OPINION\\nGILDEA, Justice.\\nAppellant Tavon Tarrel Timberlake was charged as a felon in possession of a firearm, in violation of Minn.Stat. \\u00a7 624.713, subd. 1(b) (2006). Timberlake moved to suppress the gun, arguing that the search was unlawful because police did not have a sufficient basis to stop the motor vehicle in which he was a passenger. The district court denied the motion, and the court of appeals reversed. Because we conclude that police had a sufficient basis to conduct an investigatory stop of the vehicle, we reverse.\\nWe begin with a brief discussion of the facts giving rise to this offense. While on routine patrol on May 30, 2004, St. Paul police officers Robert Jerue and Axel Henry monitored a dispatch call that came in at approximately 11:30 p.m. The dispatch informed squads in the area that the department had received a 911 call from an identified private citizen. The caller told police that a black male and black female were just seen leaving a gas station in a white Pontiac Grand Prix. The female was the driver and the male was the passenger. The caller further explained that while at the gas station \\\"[h]e saw the male get out,\\\" and \\\"[w]hen the male exited the vehicle, something fell off of his lap or out of his pocket, out of his hand.\\\" The caller saw \\\"what he described as a gun to the dispatcher, laying on the ground.\\\" He \\\"then saw the black male passenger quickly pick up the gun and get back into the car.\\\" The caller gave police his name and phone number and said that he would testify if necessary.\\nThe officers were in the area of the gas station, and within a half-minute of hearing the dispatch information, officers Jerue and Henry saw a black female driving a white Grand Prix with a black male riding in the passenger seat. Based on the information they received from the dispatch call, the officers stopped the Grand Prix. After removing the driver and the passenger, who was subsequently identified as Timberlake, police found a loaded semiautomatic handgun under the front passenger seat. Timberlake was then arrested and subsequently charged as a felon in possession of a firearm, in violation of Minn.Stat. \\u00a7 624.713, subd. 1(b) (prohibiting \\\"a person who has been convicted of a crime of violence\\\" from possessing a pistol or other firearm).\\nPrior to trial, Timberlake asked the district court to suppress the gun. The court denied the motion. Following a jury trial, Timberlake was found guilty of violating Minn.Stat. \\u00a7 624.713, subd. 1(b), convicted, and sentenced to 60 months in prison. On appeal, the court of appeals reversed, holding that the police did not have a sufficient basis to stop the vehicle. State v. Timberlake, 726 N.W.2d 509, 516 (Minn.App.2007). Specifically, the court concluded that \\\"mere suspicion that a person possesses a gun is insufficient to warrant a Terry stop, absent additional particular and objective facts which create a reason able suspicion that the possessor does not have a permit or is otherwise about to commit a crime.\\\" Id. at 514. We granted the State's petition for review.\\nWe are asked to determine whether the district court erred when it denied Timberlake's motion to suppress the gun. When we review a pretrial order on a motion to suppress where the facts are not in dispute, as here, we review the decision de novo and \\\"determine whether the police articulated an adequate basis for the search or seizure at issue.\\\" State v. Flowers, 734 N.W.2d 239, 247-48 (Minn.2007).\\nBoth the United States and Minnesota Constitutions protect against \\\"unreasonable searches and seizures.\\\" U.S. Const, amend. IV; Minn. Const, art. I, \\u00a7 10. To determine whether this constitutional prohibition has been violated, we examine the specific police conduct at issue. See State v. Davis, 732 N.W.2d 173, 178 (Minn.2007). The conduct at issue here is the investigatory stop of a motor vehicle. The United States Supreme Court has held that \\\"an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.\\\" Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). We have held that the \\\"principles and framework of Terry [apply when] evaluating the reasonableness of [searches and] seizures during traffic stops even when a minor law has been violated.\\\" State v. Askerooth, 681 N.W.2d 353, 363 (Minn.2004); see also State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002) (concluding that \\\"the Terry principles are appropriately applied when a motor vehicle is stopped\\\"). The question before us therefore is whether a report from an identified private citizen that a person is carrying a gun in a motor vehicle provides police with a reasonable, articulable suspicion of criminal activity sufficient to justify an investigatory stop of the motor vehicle.\\nWe have recognized that \\\"the reasonable suspicion standard is 'not high.' \\\" State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). While the standard is less demanding than probable cause or a preponderance of the evidence, it \\\"requires at least a minimal level of objective justification for making the stop.\\\" Wardlow, 528 U.S. at 123, 120 S.Ct. 673 (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Police \\\"must be able to articulate more than an 'inchoate and unparticularized suspicion or \\\"hunch\\\"' of criminal activity.\\\" Id. at 123-24, 120 S.Ct. 673 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). They must articulate a \\\"particularized and objective basis for suspecting the particular person stopped of criminal activity.\\\" United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). That standard is met when an officer \\\"observes unusual conduct that leads the officer to reasonably conclude in light of his or her experience that criminal activity may be afoot.\\\" In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn.1997).\\nThe reasonable suspicion standard can also be met based on information provided by a reliable informant. Id. But information given by an informant must bear indicia of reliability that make the alleged criminal conduct sufficiently likely to justify an investigatory stop by police. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (face-to-face information from a known informant \\\"carried enough indicia of reliability to justify the officer's forcible stop of [the defendant].\\\"). \\\"We presume that tips from private citizen informants are reliable.\\\" Davis, 732 N.W.2d at 182. This is especially the case \\\"when informants give information about their identity so that the police can locate them if necessary.\\\" Id. at 183 (citing City of Minnetonka v. Shepherd, 420 N.W.2d 887, 888, 890 (Minn.1988), for the proposition \\\"that a tip from an informant identifying himself as 'a station attendant at the Q Petroleum Station in Minnetonka' that he had 'observed an intoxicated driver leave the gas station' in a vehicle he identified by color and license plate was sufficient to give police reasonable suspicion that the driver was intoxicated\\\"). Timberlake does not dispute the caller's reliability in this case. Rather, his argument hinges on the legality of possessing a firearm in public.\\nTimberlake contends that because it is legal in Minnesota for a private citizen to carry a permitted gun in public, police may not conduct an investigatory stop without additional evidence that the possession itself is illegal. For example, Tim-berlake argues the police would need to suspect that the person carrying the gun does not have a valid permit or that some other criminal activity is afoot to warrant an investigatory stop. The State argues that police may conduct an investigatory stop of a motor vehicle without running afoul of the Constitution based on a report of gun possession inside the vehicle, because it is unlawful in Minnesota to possess a gun in a public place without a permit. Because the parties' arguments are based on Minnesota's firearm permit law, we turn first to an examination of that statute and our jurisprudence construing it.\\nMinnesota Statutes \\u00a7 624.714, subdivision la (2006), provides that \\\"[a] person who possesses a pistol in a motor vehicle * \\u215c * without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.\\\" We first construed this language in State v. Paige and concluded that \\\"[t]he statute is properly characterized as a 'general prohibition' \\\" on the possession of firearms in public because \\\"[a]nyone having a firearm in a public place may be prosecuted if he has no permit.\\\" 256 N.W.2d 298, 303 (Minn.1977); see also State v. Folstrom, 331 N.W.2d 231, 233 (Minn.1983) (\\\"[Possession of a pistol without a permit [is] a crime .\\\"). We determined in Paige that the \\\"without a permit\\\" language does not add another element to the crime of carrying a pistol in a public place. 256 N.W.2d at 203. Instead of an element of the crime, we said that the \\\"without a permit\\\" language creates an exception to criminal liability that places a burden on the defendant to come forward with some evidence of a permit. Id. at 303-04. Accordingly, we held that the State did not have to prove as part of its case-in-chief that the defendant did not have a permit. Id. at 303.\\nThe State argues that consistent with our determination in Paige that lack of a permit was not an element of the offense, the police in this case did not need to know whether Timberlake had a permit in order to have a reasonable suspicion that Tim-berlake was engaged in criminal activity. We agree that our analysis in Paige supports the conclusion that the officers had a reasonable basis to suspect that Timber-lake was engaged in criminal activity, even without knowing whether he had a permit, based on the caller's report that he saw Timberlake with a gun in the vehicle. But Timberlake notes that the statute has been amended since Paige, and he appears to suggest that these amendments overrule our construction of the statute in Paige.\\nTimberlake is correct that the legislature has amended the statute since Paige. Indeed, the legislature made extensive changes to the permitting provisions in the statute. Compare Minn.Stat. \\u00a7 624.714, subds. 2-5 (1976), with Minn.Stat. \\u00a7 624.714, subds. 2-4, 6-7 (2006). But the legislature did not change the permit language we construed in Paige as creating an exception to criminal responsibility and not an element of the crime. This language, while it has been recodified from subdivision 1 into subdivision la, is identical now to the language we construed in Paige, and it has been in the statute since it was enacted in 1975. Act of June 4, 1975, eh. 378, \\u00a7 4, 1975 Minn. Laws 1278, 1281-83. The original language stated, \\\"A person who carries, holds or possesses a pistol in a public place or public area without first having obtained a permit to carry the pistol is guilty of a gross misdemeanor.\\\" Id. at 1281. In 2003, section 624.714, subd. 1, was repealed by the Minnesota Citizens' Personal Protection Act and replaced by current subdivisions la (permit required; penalty) and lb (display of permit; penalty). Act of Apr. 28, 2003, ch. 28, art. 2, \\u00a7 4-5, 35, 2003 Minn. Laws 265, 274, 290. Current section 624.714, subd. la (2006), is identical in all material respects to section 624.714, subd. 1 (1976), and maintains the phrase \\\"without first having obtained a permit to carry the pistol.\\\" In short, the language used in the statute does not support Tim-berlake's argument that the legislature intended, with the 2003 amendments, to overrule Paige, and Timberlake has not brought to our attention any discussion by the legislature during the amendment process that would support the conclusion that the legislature intended to overrule Paige.\\nNot only is the operative language in the statute the same as it was when we decided Paige, but the legislature also added other provisions to the statute that reinforce our conclusion in Paige that the nonexistence of a permit is not an element of the crime, but that the permit holder has the obligation to provide evidence of his permit as a way to avoid criminal responsibility. For example, the legislature has placed the obligation on the permit holder to carry his permit card with him at all times when carrying the pistol and to \\\"display the permit card and identification document upon lawful demand by a peace officer.\\\" Minn.Stat. \\u00a7 624.714, subd. lb(a). In addition, the legislature also requires that \\\"[u]pon the request of a peace officer, a permit holder shall disclose to the officer whether or not the permit holder is currently carrying a firearm.\\\" Id., subd. lb(d). Finally, we said in Paige that a permit holder could avoid prosecution for carrying a firearm in public by presenting a valid permit and identification to police. 256 N.W.2d at 303. In the 2003 amendments, the legislature specifically included this affirmative defense in the statute. Minn.Stat. \\u00a7 624.714, subd. lb(b) (\\\"A citation issued for violating paragraph (a) must be dismissed if the person demonstrates, in court or in the office of the arresting officer, that the person was authorized to carry the pistol at the time of the alleged violation.\\\"). These recent provisions lend support to our construction of the statute in Paige.\\nWe conclude that the legislature did not intend to overrule Paige through the Minnesota Citizens' Personal Protection Act and in fact added provisions that buttress our analysis in Paige. See Minn. Stat. \\u00a7 645.17(4) (2006) (\\\"[W]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language .\\\").\\nIn addition to his argument about the effect of the statutory amendments, Tim-berlake also argues that Paige has been undermined because, subsequent to Paige, we have treated similar language in other criminal statutes as creating an element of the offense. See State v. Burg, 648 N.W.2d 673, 678-79 (Minn.2002) (interpreting the phrase \\\"without lawful excuse\\\" in the nonsupport of a child statute as an element of the offense and observing that \\\"[b]y embedding the phrase 'without lawful excuse' in the definition of the offense, the legislature demonstrated its intent to include the absence of a lawful excuse as one of the facts necessary for a conviction\\\"); State v. Brechon, 352 N.W.2d 745, 750 (Minn.1984) (holding that a claim of right in a criminal trespass case is not a defense but a basic element of the State's case that the State must prove beyond a reasonable doubt). But we have said that in distinguishing between an element of a crime and an exception to a statute, \\\"[i]n order to place the burden of proving the 'exception on the defendant, a court must decide that the act in itself, without the exception is 'ordinarily dangerous to society or involves moral turpitude' and that requiring the state to prove the acts would place an impossible burden on the prosecution.'\\\" Breehon, 352 N.W.2d at 749 (quoting Williams v. United States, 138 F.2d 81, 82 (D.C.Cir.1943)). Possession of a firearm is distinguishable from nonpayment of child support or criminal trespass in terms of its potential danger to society. For that reason, Burg and Breehon do not undermine our interpretation of the permit provision in Minn.Stat. \\u00a7 624.714, subd. 1, as an exception to \\u2014 rather than an element of\\u2014 the crime of carrying a pistol in a public place. See Paige, 256 N.W.2d at 303.\\nTimberlake finally relies on our decision in State v. Cripps, 533 N.W.2d 388 (Minn.1995), to support his argument that the investigatory stop in the present case was unlawful because officers had no reason to suspect that unlawful activity was afoot. In Cripps, an officer conducting a check for identification of bar patrons to enforce minimum alcohol consumption age requirements approached the defendant in a bar and asked for identification. Id. at 389-90. When the defendant gave police false identification, she was arrested. Id. at 390. We held that the seizure was unlawful because police failed to articulate \\\"a sufficient individualized suspicion of criminal activity.\\\" Id. at 392. In the case of underage drinking, however, age is an element of the offense. Minn.Stat. \\u00a7 340A.503, subd. 1(a) (2006) (\\\"It is unlawful for any (2) person under the age of 21 years to consume any alcoholic beverages.\\\"); see also Cripps, 533 N.W.2d at 392 (\\\"An officer can justify an investigative seizure of a person who is in a bar if that person appears to the officer to be under the legal age to consume alcohol.\\\"). Tim-berlake's reliance on Cripps is therefore misplaced.\\nIn sum, we reaffirm our interpretation of Minn.Stat. \\u00a7 624.714 set forth in Paige. Based on Paige, we hold that police had a reasonable, articulable suspicion that Tim-berlake was engaged in criminal activity-based on the reliable informant's report that Timberlake was carrying a gun in a motor vehicle. Accordingly, we reverse the court of appeals' decision and reinstate Timberlake's conviction.\\nReversed.\\n. The informant did not describe the gun in any way or identify it as a pistol.\\n. Because the only issue before us is whether the police had a sufficient basis to support a stop of the vehicle, we do not discuss or analyze their post-stop conduct.\\n. Timberlake does not argue that police needed probable cause to stop the vehicle. Rather, he assumes that reasonable, articulable suspicion is the applicable standard, and he contends that standard was not met here.\\n. Timberlake cites Florida v. J.L. as standing for the proposition that the United States Supreme Court rejected an \\\" 'automatic firearm exception' to the rule in Terry.\\\" United States v. Ubiles, 224 F.3d 213, 218 (3d Cir.2000) (quoting Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). But the issue in J.L. was whether the informant was reliable and the Court held that he was not. J.L., 529 U.S. at 274, 120 S.Ct. 1375. The Court \\\"did not consider under what circumstances a reliable tip that someone was carrying a gun would provide the police with reasonable suspicion.\\\" United States v. Valentine, 232 F.3d 350, 354 (3d Cir.2000). J.L. therefore does not inform the issue presented in this case.\\n. To support his position, Timberlake cites cases from other jurisdictions. See Ubiles, 224 F.3d 213; United States v. DeBerry, 76 F.3d 884 (7th Cir.1996). Cases from other jurisdictions are not particularly helpful because they depend on interpretation of a particular state's or territory's gun licensing statute. Here, we rely only on our own interpretation of Minnesota's statute.\\n. In Paige, we generally used the phrase \\\"without a permit\\\" rather than specifically referring to the \\\"without first having obtained a permit\\\" language contained in the statute. See 256 N.W.2d at 303.\\n. Timberlake contends that our discussion in Paige about whether the phrase \\\"without a permit\\\" is an element of the offense is dictum and therefore not binding. Dicta are generally \\\"considered to be expressions in a court's opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.\\\" State ex rel. Poster v. Naftalin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (1956). In Paige, we held that a conviction for carrying a pistol in a public place had to be reversed because the county attorney introduced the pistol at trial in contravention of a suppression order. 256 N.W.2d at 302. We interpreted the \\\"without a permit\\\" language in order to guide the defendant's retrial following our remand. Id. That discussion therefore is not dictum.\\n. We also noted that if the defendant presents evidence of a permit, the burden shifts back to the State to show that the permit is invalid or has been violated. Paige, 256 N.W.2d at 304.\\n. In the 2003 amendments, the legislature added the recognition and declaration \\\"that the second amendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms. The provisions of this section are declared to be necessary to accomplish compelling state interests in regulation of those rights.\\\" Minn. Stat. \\u00a7 624.714, subd. 22 (2006). Timberlake does not claim that his Second Amendment rights were violated. We therefore have no occasion to reach that issue in this case.\"}"
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+"{\"id\": \"8360961\", \"name\": \"In the Matter of the Application for PERA Retirement Benefits of Michael A. McGUIRE\", \"name_abbreviation\": \"In re the Pera Retirement Benefits of McGuire\", \"decision_date\": \"2008-10-07\", \"docket_number\": \"No. A07-2066\", \"first_page\": \"517\", \"last_page\": \"521\", \"citations\": \"756 N.W.2d 517\", \"volume\": \"756\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T02:01:14.623315+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by CONNOLLY, Presiding Judge; WORKE, Judge; and SCHELLHAS, Judge.\", \"parties\": \"In the Matter of the Application for PERA Retirement Benefits of Michael A. McGUIRE.\", \"head_matter\": \"In the Matter of the Application for PERA Retirement Benefits of Michael A. McGUIRE.\\nNo. A07-2066.\\nCourt of Appeals of Minnesota.\\nOct. 7, 2008.\\nLori Swanson, Attorney General, Jon K. Murphy, Assistant Attorney General, St. Paul, MN, for respondent Public Employees Retirement Association of Minnesota.\\nPatrick J. Kelly, Trevor S. Oliver, Christine Swanson, Kelly & Lemmons, P.A., St. Paul, MN, for appellant Michael A. McGuire.\\nConsidered and decided by CONNOLLY, Presiding Judge; WORKE, Judge; and SCHELLHAS, Judge.\", \"word_count\": \"1422\", \"char_count\": \"9386\", \"text\": \"OPINION\\nWORKE, Judge.\\nAppellant challenges a determination by respondent Public Employees Retirement Association of Minnesota (PERA) that he is ineligible for retirement benefits because he did not complete a \\\"continuous separation for 30 days from employment as a public employee\\\" as required by Minn.Stat. \\u00a7 358.01, subd. 28(a) (2006), and argues that PERA abused its discretion when it rescinded his annuity payments without considering his equitable-estoppel claim. Because appellant does not meet the statutory requirements for receiving PERA benefits and because PERA cannot be equitably estopped from rescinding unauthorized payments, we affirm.\\nFACTS\\nIn September 2004, appellant Michael A. McGuire notified his employer, the City of Bayport, that he intended to resign from his position as city administrator. The Bayport city council accepted appellant's resignation and agreed that the resignation would be effective April 30, 2005. Appellant was a member of the Public Employees Retirement Association of Minnesota (PERA) and, based on his years of service, PERA determined that he was eligible for unreduced early-retirement benefits. PERA began paying appellant retirement benefits on May 1, 2005. At that time, appellant's former wife also began receiving a portion of his PERA benefits pursuant to the terms of their dissolution decree.\\nIn July 2007, PERA notified appellant that it intended \\\"to cease the payment of PERA annuity benefits to you and your ex-spouse effective September 1, 2007\\\" and that it also intended \\\"to recover all PERA annuity payments paid to you and your ex-spouse,\\\" a total of $112,969.20. PERA explained that its reason for terminating and recovering benefits was that appellant had started working for Bayport as an independent contractor within 30 days after his resignation date. By providing paid services to Bayport within the 30-day period, appellant violated a statutory re quirement that he completely and continuously separate \\\"for 30 days from employment as a public employee and from the provision of paid services to [the public] employer.\\\" Minn.Stat. \\u00a7 353.01, subd. 28(a) (2006).\\nAppellant petitioned for review of the decision to terminate and rescind his benefits. In his petition, appellant explained that, despite his diligent efforts to prepare for retirement, he did not know that the 30-day separation requirement precluded work as an independent contractor. He explained that he was never \\\"told about the 30-day separation requirement\\\" even though he attended a PERA-sponsored pre-retirement session and met twice with PERA staff.\\nAppellant presented his case orally to the PERA board of trustees on September 13, 2007. At the meeting, the president of the board inquired whether appellant ever specifically asked PERA staff if his plan to work for Bayport as an independent contractor within a week of his retirement would create \\\"a problem with [his] 30-day break.\\\" Appellant answered, \\\"Actually, I did.\\\" Appellant further explained that he was confused by language in the PERA materials explaining that the separation requirement applied to \\\"PERA-covered employment.\\\" Because he did not consider independent-contract work to be \\\"PERA-covered employment,\\\" he assumed that he could begin work immediately as an independent contractor.\\nFollowing appellant's testimony, the board discussed the matter and determined that, because appellant did not completely and continuously separate for 30 days from his employment as a public employee, he was ineligible to receive retirement benefits and must repay all the PERA annuity payments he has received. The board did not address appellant's claim that PERA should be equitably es-topped from rescinding appellant's benefits. This appeal follows.\\nISSUE\\nDid PERA abuse its discretion by rescinding appellant's PERA annuity payments without addressing his equitable-estoppel claim?\\nANALYSIS\\nAppellant argues that PERA acted arbitrarily and capriciously by rescinding his PERA annuity payments without addressing his equitable-estoppel claim. We disagree.\\nThe PERA board of trustees administers a pension plan for public employees, and the board's decisions \\\"shall not be disturbed unless found to be arbitrary and capricious.\\\" Minn.Stat. \\u00a7 353.18 (2006). An agency's ruling is arbitrary and capricious if it\\n(a) relied on factors not intended by the legislature;\\n(b) entirely failed to consider an important aspect of the problem;\\n(c) offered an explanation that runs counter to the evidence; or\\n(d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency's expertise.\\nWhite v. Minn. Dep't. of Natural Res., 567 N.W.2d 724, 730 (Minn.App.1997) (quotation omitted), review denied (Minn. Oct. 31,1997).\\nMinnesota courts have long held that estoppel cannot be applied when doing so would cause an agency to act outside the bounds of its authority. See Bd. of Educ. of Minneapolis v. Sand, 227 Minn. 202, 211, 34 N.W.2d 689, 695 (1948) (declining to estop school board from denying tenure because governing statute did not authorize granting tenure). The supreme court adopted this rule out of concern that a contrary rule would lead to chaos: absent a prohibition against estop-pel, states and municipalities would repeatedly find themselves bound by the unauthorized acts of officers and agents possessing only limited authority. Alexander Co. v. City of Owatonna, 222 Minn. 312, 324, 24 N.W.2d 244, 251-52 (1946), overruled in part on other grounds by Johnson v. City of Plymouth, 263 N.W.2d 603 (Minn.1978).\\nOver the years, the supreme court has to some extent revised its position regarding the application of estoppel against the government. The supreme court's interest in avoiding chaos and preserving governmental integrity initially led it to adopt a broad rule that equitable estoppel is not available against the government \\\"when [it] acts in its prerogative of sovereignty[.]\\\" State v. Horr, 165 Minn. 1, 4, 205 N.W. 444, 445 (1925). By contrast, estoppel could be applied against the government when it acts in a proprietary capacity, such as when it undertakes a commercial or industrial enterprise. Id. But the supreme court later rejected this distinction between sovereign acts and proprietary acts. Mesaba Aviation Div. of Halvorson of Duluth, Inc. v. County of Itasca, 258 N.W.2d 877, 880 (Minn.1977). In Mesaba, the supreme court held that, in applying estoppel, the equities of the circumstances should be examined rather than the character of the government's actions. Id. Thus, the supreme court abandoned one limitation on estoppel claims against the government.\\nThe Mesaba court, however, explicitly retained the \\\"authorized-act\\\" limitation on estoppel claims against the government. Id. at 879. The court explained that an important consideration in determining whether the government should be estopped is- \\\"[w]hether an administrative officer is authorized to make a representation.\\\" Id. The supreme court later clarified its post-Mesaba position by emphasizing that \\\"where an agency has no authority to act, agency action cannot be made effective by estoppel.\\\" Axelson v. Minneapolis Teachers' Ret. Fund Ass'n, 544 N.W.2d 297, 299-300 (1996) (quotation omitted). Consequently, despite the supreme court's rejection of the sovereign-proprietor distinction in Mesa-ba and its emphasis on the equities of the circumstances, it did not alter the rule that, regardless of the equities involved, a government agency's unauthorized act cannot be made effective by es-toppel.\\nAppellant does not dispute that he failed to meet the statutory requirements for receiving PERA annuity benefits. He concedes that, by returning to work for Bayport within 30 days of retiring from his position as city administrator, he failed to comply with the statutory requirement that he separate completely and continuously \\\"for 30 days from employment as a public employee and from the provision of paid services to that employer.\\\" Minn. Stat. \\u00a7 353.01, subd. 28(a); see also Minn. Stat. \\u00a7 353.01, subd. 28(b) (2006) (\\\"An individual who separates from employment as a public employee and who, within 30 days of separation, returns to provide service to a governmental subdivision as an independent contractor or as an employee of an independent contractor, has not satisfied the separation requirements under paragraph (a).\\\"). Therefore, because appellant concedes that the payments he received were unauthorized and estoppel cannot be applied so as to cause an agency to make unauthorized payments, PERA cannot be estopped from rescinding the erroneous payments.\\nDECISION\\nBecause PERA cannot be equitably es-topped from rescinding unauthorized payments, it did not act arbitrarily and capriciously by rescinding appellant's retirement benefits without addressing his equitable-estoppel claim.\\nAffirmed.\"}"
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+"{\"id\": \"8875186\", \"name\": \"David M. Finlayson and others vs. Abram Crooks, impleaded, etc.\", \"name_abbreviation\": \"Finlayson v. Crooks\", \"decision_date\": \"1891-07-30\", \"docket_number\": \"\", \"first_page\": \"74\", \"last_page\": \"80\", \"citations\": \"47 Minn. 74\", \"volume\": \"47\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:06:45.632361+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David M. Finlayson and others vs. Abram Crooks, impleaded, etc.\", \"head_matter\": \"David M. Finlayson and others vs. Abram Crooks, impleaded, etc.\\nJuly 30, 1891.\\nOn motion for reargument, August 27, 1891.\\nMechanic\\u2019s Lien \\u2014 Action to Enforce \\u2014 Parties\\u2014Mortgagees.\\u2014 An action to enforce a mechanic\\u2019s lien under Laws 1889, c. 200, is not a special statutory proceeding, but an ordinary civil action, proceeding according to the usual course of the law, and governed by the same rules of procedure as other similar actions, except as otherwise expressly provided in the statute itself. A mortgagee or any other party claiming an interest in the premises may be made a party, and his rights adjudicated, whenever it might be done in an action to foreclose a mortgage.\\nSame \\u2014 Mortgage Intervening between Liens \\u2014 Distribution of Proceeds of Sale \\u2014 Priorities.\\u2014\\u201cWhen a mortgage lien intervenes, which is-subsequent to some of the liens under the statute, but prior to others, the proper method of distributing the proceeds of the sale of the-premises is to first set aside as applicable to the payment of statutory liens a sum equal to the amount of the liens prior to the mortgage, next, out of the remainder pay the mortgage, and then apply what is left, if anything, together with what was first set aside for that purpose, ratably among all the lien-claimants, without any priority among themselves.\\n(Modified on motion for reargument. See p. 79, infra. Rep.)\\nSame \\u2014 Mortgage for Future Advances. \\u2014 In case of a mortgage to secure future advances, the mortgagee cannot, as against a subsequent lien-claimant, claim the benefit of the security for optional advances made after actual notice of such lien.\\nAction to enforce a mechanic\\u2019s lien for $480.75, brought in the district court for Ramsey county against Hans E. Larson and August-Christianson, owners of the land; Louis L. Bondelli, a former owner, who conveyed to Larson and Christianson on February 13, 1890, in pursuance of an agreement made prior to December 6, 1889; Julius Bjornstad and Peter Omdabl, partners as Bjornstad & Omdahl, and others, claiming mechanics\\u2019 liens; the defendant Crooks, as holder of a mortgage for $3,000; made February 5, 1890, by Larson and Christianson, and against other mortgagees. The defendant Crooks appeals from an order refusing a new trial after a trial before Kerr, J., and judgment ordered subordinating the appellant\\u2019s mortgage to the liens of plaintiff, of Bjornstadt & Omdahl, and of other lien-claimants, and directing a sale, etc.\\nJames H. Foote, for appellant.\\nWilliam F. Carroll, for plaintiffs, respondents.\\nWilliams do Schoonmaker, for Bjornstadt & Omdahl, respondents.\", \"word_count\": \"2233\", \"char_count\": \"13432\", \"text\": \"Mitchell, J.\\nThis action was brought to enforce a lien claimed under Laws 1889, c. 200. Other lien-claimants, the owner of the premises, and several mortgagees, including appellant, Crooks, whose mortgages were alleged to be subsequent to the plaintiff's lien, were made parties defendant. The appellant, by motion to dismiss the action as to him, and by objection to the admission of any evidence affecting his rights, made the point that the court had no jurisdiction to adjudicate his rights, his contention then and now being that, in an action to enforce a mechanic's lien, only the rights of those claiming liens under the statute can be adjudicated, and only such lien-claimants can be made parties defendant.\\nIf such is the correct construction of the statute, it certainly furnishes a very inadequate and incomplete remedy; for, without an adjudication of the rights of incumbrancers and others claiming to have acquired an interest in the premises, lien-claimants would never know to a certainty what interest in the property was subject to their liens, nor purchasers at the sale what they were buying. Any such method of procedure as that contended for would be contrary to a fundamental principle and policy in all equity proceedings, to do complete justice by deciding upon and settling at once the rights of all persons included in the subject of the suit, for \\\"a court of equity, in all cases, delights to do complete justice, and not by halves.\\\" The chief fallacy of appellant consists in assuming that an action to enforce a mechanic's lien is a special statutory proceeding, in which the express provisions of the statute are at once the source, and a \\u2022definition of the extent, of the powers and jurisdiction of the court. But there is- nothing in the statute requiring or even looking to any such construction. While it is true that most of its provisions have reference to lien-claimants, as that is the subject of which it specially treats, yet it does not assume to prescribe any special code of practice or procedure, but leaves all such matters to be regulated by the general rules governing other actions of a similar nature. It expressly provides (\\u00a7 101 that a lien given by its provisions may be enforced \\\"in the same manner as in actions for the foreclosure of mortgages upon real estate, except as otherwise herein provided.\\\" Now, it is a very familiar rule that in foreclosure actions every person who has acquired any interest in the property subsequent to the lien of the mortgage is a proper party. In one sense they are necessary parties, because, in order to make a foreclosure complete, to transfer a perfect title by the sale, it is necessary that the holder of every such interest should be brought before the court. There is nothing in the subsequent provisions of the act either prohibiting or inconsistent with a similar practice in suits to enforce liens. On the contrary, section 10 not only clearly contemplates, but in terms provides for, bringing in as parties \\\"other persons\\\" besides \\\"lien-claimants.\\\" The argument, that because the statute expressly provides that all lien-claimants under the act shall be made parties, therefore no other persons can be, proceeds upon the same erroneous theory as to the nature of the action already referred to. Moreover, it proves altogether too much, for there is no express provision for making even the owner of the premises a party.\\nWhile undoubtedly the lien itself is purely the creature of the statute, yet an action to enforce it is an ordinary civil action, proceeding according to the usual course of the law, and governed by the same rules of practice and procedure as any other similar action, exceptas expressly modified by the statute itself. Consequently, a mortgagee, or any other person claiming an interest in the premises, may be joined as a party, and his rights adjudicated, whenever it might be-done in-an action to foreclose a mortgage. The eases cited by appellant are not at all in point, as they arose under statutes providing for a special statutory proceeding in rem, or for an action strictly at law against the debtor owner, the judgment in which was enforceable by scire facias or an ordinary execution.\\n2. In the present ease each of the liens under the statute arose under a separate and independent contract by the claimant directly with the owners of the property, some of them attaching before and some after the date of the lien of appellant's mortgage. The court divided them into two classes, viz., those which attached before the lien of the mortgage and those which attached subsequently, and directed that out of the proceeds of the sale of the premises-th6 first class should be first paid in full, then the mortgage, then the second class of liens, if enough remained. This mode of distribution seems to have been adopted upon the theory that the two-classes of liens attached to different interests, to wit, the first class-upon the unincumbered property, and the second class upon the property subject to the mortgage. This method of distribution is not-without authority under similar statutes. See Crowell v. Gilmore, 18 Cal. 370. But it seems to us to be based upon unsound reasoning', and in direct conflict with the express provision of the statute that the proceeds of sale should be distributed among all the lien-claimants ratably, and without priority among themselves. In cases-where, as in this case, a mortgage lien has intervened, we think the proper method is to first set aside, as applicable to the payment of liens under the statute, an amount of the proceeds of sale equal to the amount of the liens prior to the mortgage; then next, out of the remainder, if sufficient for that purpose, pay the mortgage in full, and. then apply whatever is left, if anything, together with what was first set aside for that purpose, ratably among all the lien-claimants in proportion to the amount due each, whether their liens attached prior or subsequently to the mortgage. This method fully protects the-legal rights of the mortgagee, and at the same time complies .with, the provision of the statute that all lien-claimants shall be paid, without priority among themselves.\\nBut appellant cannot complain of the error of the court in this regard, for, if he is not entitled to the money, it .is no concern of his- \\u2022how it is distributed. He contends, however, that his mortgage, at least to the extent of $1,250, is entitled to priority over all the liens under the statute, because the money paid by him to the mortgagors was advanced, to that amount, to pay the purchase-money of the \\u2022premises to the former owner, to defendant Bondelli. If Bondelli's claim for purchase-money had been entitled to a priority over the liens of those who performed labor and furnished material for the -construction of the building, appellant's contention would have had .at least strong equities to support it. But, under the facts found by the court, Bondelli had subjected his interest in the premises to all such liens, he having provided in his executory contract of sale to Larson and Christianson for the erection of the building by them. \\u2022Of course, appellant can stand in no better position than '\\u00bfBondelli did.\\nAppellant's mortgage, recorded February 13, 1.890, purported upon its face to secure a present indebtedness for the full sum of $3,000; but as a matter of fact no such amount was adyanced at the \\u2022time, the agreement being that it should stand as security for the amount paid in hand and for future advances, as follows: $1,250 cash down, $200 when the building, then in process of erection, was ready for plastering, and the remainder of the $3,000 when the building (which was to cost $4,000) was entirely completed, and all bills and lien-claims incurred in its erection fully paid. Down to March 5th there had been advanced by the appellant to the mortgagors the sum of $1,544.33. The lien of defendants Bjornstadt & Om-\\u2022dahl, for material, attached March 5th. Notwithstanding the fact that the building was never completed, nor the bills incurred in its construction paid, the appellant advanced to the mortgagors, between March 5 and July 19, 1890, the further sum of $308.75. Appellant, through his agents, had during this time \\\"actual notice and knowledge of the construction of the building as it progressed, and of the work and labor done and materials furnished therefor.\\\". While the court finds that a large amount of the money secured by the mortgage was in fact paid, as the work progressed on the building, to laborers and material-men for labor performed and material furnished in its construction, yet it is nowhere found that any part \\u2022of the $308.75, advanced subsequently to March 5th, was so applied or paid. The trial court held that the lien of Bjornstadt & Omdahl was junior to the lien of the mortgage to the extent and amount of $1,544.33, but prior to it to the extent of the remaining $308.75. This is also assigned as error. It is not necessary to \\u2022consider any of the controverted questions of priority between a first mortgage, to secure future advances, and subsequent incumbrances. Two facts, in substance found by the trial court, are, under all the authorities, decisive of this case, viz.: First, that the advances made by appellant after March 5th were optional, and not obligatory; and, second, that they were made with actual notice of the lien of Bjorn-stadt & Omdahl. This being the case, the appellant cannot, as against them, claim the benefit of the security for the advances, at least in the absence of any facts creating such an equity as would take the case out of the general rule. Hopkinson v. Ralt, 9 H. L. Cas. 514.\\nOrder affirmed.\\nThe following opinion on a motion for real'gument was filed August 27, 1891:\\nMitchell, J.\\nUpon the motion for reargument counsel have principally addressed themselves to the question of the proper method of distributing the proceeds of sale where a mortgage lien has intervened between the liens of different claimants for labor or material; that is, the distribution of the amount set apart equal to the liens prior to the mortgage. This is a question in which the appellant has no interest, and hence, even if the opinion suggests an erroneous method of distribution, it would constitute no ground for reargument. The question was not really before the court. Neither was the question fully argued by counsel. Moreover, it is one which presents some serious practical difficulties, whether the method of distribution followed by the trial court or that suggested in the opinion be adopted. For these reasons, while denying the application for a reargument, we shall consider the question still an open one, to be determined upon fuller argument and consideration, whenever it arises hereafter.\\nMotion denied.\"}"
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+"{\"id\": \"8876145\", \"name\": \"The City of Mankato vs. Thomas D. Warren\", \"name_abbreviation\": \"City of Mankato v. Warren\", \"decision_date\": \"1873-04\", \"docket_number\": \"\", \"first_page\": \"144\", \"last_page\": \"150\", \"citations\": \"20 Minn. 144\", \"volume\": \"20\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:12:23.129481+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Mankato vs. Thomas D. Warren.\", \"head_matter\": \"The City of Mankato vs. Thomas D. Warren.\\nThis action having been brought for the purpose of determining whether a certain tract of land in the city of Mankato is a public street or not. The following opinion is an examination of the facts found by the referee (by whom the action was tried) with reference to the inquiry whether they support his conclusion of law, which is that the tract in controversy is a public street by virtue of a common law dedication. The judgment entered in the district court in accordance with the referee\\u2019s conclusion affirmed.\\nThis is an appeal by defendant from a judgment of the dis trict court for Blue Eartb county, entered upon tbe report of a referee. Tbe case is fully stated in tbe opinion.\\nWilkinson & Pitcher, for Appellant.\\nD. A. Dickinson, and James Brown, for Respondent.\", \"word_count\": \"2228\", \"char_count\": \"12225\", \"text\": \"By the Court.\\nBerry, J.\\nUnder tbe pleadings and stipulation of tbe parties, this action is to be taken as brought for tbe purpose of determining whether a certain tract of land lying within tbe corporate limits of tbe city of Mankato, and occupied by defendant under a claim of title to tbe same, is or is not a public street, Tbe case was sent for trial to a referee, upon whose report a judgment was entered in favor of tbe plaintiff, from which this appeal is taken. As tbe judgment pursues the findings and tbe evidence is not returned here, we have only to consider whether tbe material findings of fact support tbe material findings of law. And in this view of tbe question presented tbe case offers but little difficulty.\\nTbe strip of land in controversy is a part of tbe town of Mankato, which was entered at the United States land office under tbe \\\" town site act \\\" so called, being an act of congress approved May 23d, 1844. As found by tbe referee, the entry was made on application and proof submitted March 21st, 1856.\\nIt is not claimed that there was any statutory dedication of tbe street in question under tbe statute relating to town plots, but tbe dedication (if any) was a,t common law. Now tbe referee finds: \\\" That tbe tract in controversy is shown and represented as a street upon tbe several maps of the town of Mankato, and was from tbe settlement and occupandy of tbe said town represented and regarded as a street by tbe original proprietors of tbe town and persons owning land adjoining, and that tbe tract was up to tbe fall of 1857, used and occupied as a street by tbe public and adjoining property holders, so much and so far as tbe necessity of tbe public and their convenience required, and that such use bad continued for such length of time that tbe public accommodation and private rights would be materially affected by tbe loss of tbe right of enjoyment. That it was a part of no thoroughfare over which travel passed, it having no outlet on the left, being a sort of cul de sac opening fronfFront street, or more properly speaking, a continuation of what is called Hickory street in the said town, extending westerly across Front street, between blocks 6 and 7 of said town, to the west line of said blocks where the land becomes low bottom, subject to overflow. That in the fall of 1857, the south side of the tract in question was obstructed by a barn, though it seems no objection was made to the use of the north side of the tract by the public, and the same continued to be used by the public as a street so far as the necessities and convenience of the public demanded or required until and up to the time the defendant obtained his deed from Judge Branson, trustee, on the 24th i day of March, 1860; since that time the defendant has uniformly asserted his right over the tract, and has since that time occupied the premises, either by himself or his tenants, to the exclusion of the public using it as a public street. I That such use and occupancy of the street was with the! knowledge and acquiescence of all the occupants upon the! town site up to the time of filing by Ayers, as hereinafter found,! (i. e. May 1st, 1858,) and by all occupants except Ayers andl his assigns, up to the time defendant received his deed froml trustee (March 24th, I860,) and without objection from anyl source until that of defendant. That it was the intention oil all the occupants upon the town site up to March 21st, 18561 to dedicate the land in question to the purposes of a streetl so far as they had any interest in the land to dedicate, and that such dedication was accepted by the public for the purpose for which it was the intention to dedicate the same. That the several town plats so far as the land in question is concerned are identical, covering the same ground; and that the town has been built up, occupied and improved in conformity with the Folsom and Bruner plats, the streets, lots and blocks being the same as indicated in these plats, so that these plats so far as that part of the town is concerned represent the town site as it was built and occupied.\\\"\\nThe referee further finds : \\\" That lot 5 in block 6, being the tract lying north of the land in dispute was occupied by John Frendhiser and a house built thereon in 1854, which he continued to occupy for three years himself and family, and for five years thereafter by tenants, that at the time he purchased the lot of Mr. Jackson, it was represented as a corner lot, and he always regarded the land lying upon the south, being the land in controversy, as a street, and used it as such. That lot 1 in block 7, adjoining the tract in question on the south was occupied by a house as early as the spring of 1856, by one Mr. Cummings and was sold by him as a corner lot, and buildings have been erected thereon with the view of using the tract in dispute as a street-. That Cummings purchased the said lot 1, block 7, of defendant July 2d, 1856. Defendant and wife gave quit-claim deed to Cummings therefor, describing it as lot 1, block 7, in Mankato, according to the recorded plat of said town * . * admitted to be the [Folsom plat.\\\"\\nFrom these findings of fact, the referee was amply warranted, we think, in finding as a conclusion of law, as he has done substantially, that the property in question is a public street [by virtue of a dedication of the same by the owners thereof [and acceptance and use of the same by the public for street uses. The evidence not being reported, there is nothing in the case so far as we can discover from which it can be shown that the referee is wrong in his opinion (it seems to be hardly more than his opinion,) that the Mankato Claim Company (by the members of which the Folsom and Bruner and some other plats were made) were the \\\" occupants\\\" and therefore owners of all land included in the town site not physically occupied by others, and therefore occupants and owners of the-street within the meaning of the \\\" town site act,\\\" at the time of the application for the entry March 21st, 1856, and therefore authorized to make a valid dedication of the same. Frendhiser and Cummings, the occupants of the lots adjoining it on either side, did not claim to occupy it, but recognized it as a street. But whether the referee was or was not warranted in this, his opinion as to the occupancy and ownership of the street is altogether unimportant. This is so because he finds that the use and occupancy of the premises, in dispute, by the public as a street, was with the knowledge and acquiesence of all the occupants upon the town site, up to the time of the application for entry, (March 21st, 1856,) as well as for some time after, with the intention upon the part of such occupants, to dedicate said premises for the purposes of a street, and that such dedication was accepted by the public for the purpose for which it was the intention to dedicate the same. Now the entry being made on the application and proof submitted March 21fet, 1856, as is held in Coy vs. Coy, 15 Minn. 123, and cases cited, \\\" the entry related back to that time (March 21st, 1856,) and the judge to whom the patent was issued, became thereby seized of said town site in trust for the then occupants thereof.\\\" Not only this, but having brought themselves within the terms of the \\\" town site act \\\" these occupants were equitable owners of the town site, that is to say, they had entitled themselves to the same, so that the United States might properly be said to hold the naked fee in trust for them, they being owners in equity of that which the United States was bound to convey to them or to the judge for them, upon proof of their compliance with the law. As such occupants and by virtue of their interest in and ownership of the town site both before and after their application to enter, and the entry, it was entirely competent to bind themselves by a dedication in some sense inchoate and to become absolute and complete upon the entry by the judge, yet, nevertheless a valid dedication, Village of Mankato vs. Willard, 13 Minn. 26 ; same vs. Meagher, 17 Minn. 271. In accordance with these views of the law referred to and recognized by the referee it seems to us that the dedication in this case was clearly established. The findings of fact show a designation and devotion of the premises in question by the occupants, i. e., the owners of the town site, for the use of the public as a public street,\\u2014 an intention (perhaps implied in such designation and devotion,) but at any rate an intention on the part of such owners, to dedicate the same to the public for such use \\u2014 an acceptance of such dedication by the public \\u2014 a use by the public of the premises as a public street and a use \\u2022 continued for such length of time that the public accommodation and private rights would be materially affected by an interruption of the enjoyment. That these facts constitute a valid dedication can hardly be questioned, village of Mankato vs. Willard, supra; 2 Gr. Ev. \\u00a7 662; Washburn on Easements, section V. \\u00a7 \\u00a7 11, 12, 26, b.\\nIt is contended by defendant that the finding, that the tract in dispute \\\"was used and occupied as a street by the public and ad-oining property holders, so much and so far as the necessity, of the public and their convenience required,\\\" is inconsistent with he finding that it was a part of no thoroughfare over which ravel passed, it having no outlet on the left, being a sort of cul de sac, &g., and that the former finding is so vague that it ought not to weigh against the latter. \\\" Thoroughfare \\\" is defined as \\\" a passage through, a street or way open at both ends and free from any obstruction.\\\" Worcester's Did.; Webster's Did. With this definition in view, there cannot be said to be an inconsistency in the findings; for while the tract in dispute might not be, as it perhaps was not practically a street open at both ends over which travel past, it still might be used and occupied as a street as found by the referee. If the finding is too vague in not designating what the use and occupation consisted of, it should have been made more definite' upon a proper application below. When the objection of vagueness is made for the first time in this court, it is to be presumed that the referee was not trifling with his duty, but that his meaning and intent is that there was an actual use and occupation by the public and adjoining property holders of the disputed tract as a public street. The finding that the defendant made the necessary proofs before the judge who entered the town site and thereupon received a deed for the same is no more, so far as the matter of proof is concerned, than a finding that he complied with the forms prescribed by law as to making such proof. It can hardly mean that Ayers as assignee of whom defendant made the proof and received the deed, was shown to be an \\\" occupant' for whom the judge was trustee, since it appears elsewhere that Ayers' occupancy commenced long after March 21st, 1856, to-wit: in the fall of 1857. At any rate, in view of the previous finding as to the dedication it could not be claimed that the language \\\"necessary proof\\\" meant anything more than proof necessary to show that defendant was entitled to a deed of the fee subject however to the public easement of a street.\\nThis disposes, we believe, substantially, of the points made by the defendant.\\nThe judgment is affirmed.\"}"
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+"{\"id\": \"8879071\", \"name\": \"F. J. Stevens and another vs. E. E. McMillin\", \"name_abbreviation\": \"Stevens v. McMillin\", \"decision_date\": \"1887-12-12\", \"docket_number\": \"\", \"first_page\": \"509\", \"last_page\": \"512\", \"citations\": \"37 Minn. 509\", \"volume\": \"37\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:44:05.888601+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"F. J. Stevens and another vs. E. E. McMillin.\", \"head_matter\": \"F. J. Stevens and another vs. E. E. McMillin.\\nDecember 12, 1887.\\nPleading \\u2014 Sham Answer. \\u2014 In an action by a mortgagee of personal property to recover the same, an answer denying the plaintiff\\u2019s alleged right, and setting up title in the defendant, held properly stricken out as sham;, it appearing by the defendant\\u2019s own showing that such defence was based upon the facts that the mortgage was made to avoid the claims of creditors of the mortgagor, and that the defendant thereafter purchased the-property from the mortgagor with notice of the facts.\\nSame \\u2014 General Denial. \\u2014 -An answer containing a general denial may be stricken out as sham.\\nReplevin \\u2014 Waiver of Finding as to Value. \\u2014 -In an action in the nature of replevin, the plaintiff may waive the right to have included in the judgment for the recovery of the property the usual alternative provision for the recovery of its value.\\nAppeal \\u2014 Review of Taxation of Costs. \\u2014 Alleged errors in the clerk\\u2019s-taxation of costs will not be reviewed here, where no relief has been sought, in the court below.\\nPlaintiff brought this action in the district court for \\\"Wilkin County, -to recover possession of certain personal property, alleging its value to be the sum of $600. After the service of the answer, the plaintiff obtained from the court commissioner an order to show cause why certain portions of the answer should not be stricken out as sham, and why the plaintiffs, waiving their claim for damages, should not have judgment \\u201cdecreeing them to be the owners of the property and directing a delivery thereof.\\u201d Upon the hearing an order was made by G. L. Brown, J., striking out the answer as irrelevant, and directing judgment for the plaintiffs as recited in the order to show cause. In accordance with this order judgment was entered in favor of the plaintiffs. Defendant appeals from both the order and the judgment.\\nHartshorn \\u00e9 Goppernoll, for appellant, cited\\nThompson v. Erie Ry. Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281; Farmers\\u2019 Nat. Bank v. Eeland, 50 N. Y. 673; Wooden Ware Co. v. Jensen, 27 N. W. Bep. 206; Fay v. Cobh, 51 Cal. 313; Newman v. Supervisors, 45 N. Y. 676, 601.\\nLyman B. Everdell, for respondents.\", \"word_count\": \"1066\", \"char_count\": \"6250\", \"text\": \"Dickinson, J.\\nThis action is for the recovery of personal property, the complaint alleging generally the plaintiffs' ownership and right of possession. This is denied by the answer, the defendant further alleging title in herself. Upon these pleadings, and upon affidavits presented upon a motion to strike out the answer as sham, the same was stricken out as irrelevant, and judgment was ordered for the plaintiffs. From the affidavits presented on the part of the plaintiffs .in support of the motion, it appeared that their asserted rights in the property were based upon a chattel mortgage executed to them by the former owners of it, as security for money loaned. By the opposing affidavits on the part of the defendant it was averred that she purchased the property from the mortgagors subsequent to the mortgage, and with actual notice thereof; but that she was informed by the person from whom she purchased, one of the mortgagors, that the mortgage was given without consideration, and for the purpose of protecting the property from the claims of creditors of the mortgagors, and that it would not be enforced contrary to their wishes; that she purchased believing such representations; and that she expected 'Upon the trial to establish the truth of these representations as to the .fraudulent character of the mortgage. The real nature of the defence was thus disclosed by the defendant, in resisting this motion; and, ifor the purposes of the motion, it may be considered that the facts upon which the defendant based her denial in the answer of the plaintiffs' asserted title and right of possession, and upon which her own claim of title rests, were such as are here disclosed.\\nThe facts thus alleged would not, if established, avail the defendant to avoid the effect of the mortgage, the execution of which is in effect admitted. The mortgagors could not have defeated the title of their mortgagees by proof that the mortgage had been given for the fraudulent purpose here disclosed, nor can this defendant, as purchaser from the mortgagors with notice of the mortgage, do so. Tolbert v. Horton, 31 Minn. 518, (18 N. W. Rep. 647;) Yallop De Groot Co. v. Minn. & St. Louis Ry. Co., 33 Minn. 482, (24 N. W. Rep. 185.)\\nSuch being the admitted facts of the ease, the legal conclusion follows that the plaintiffs were entitled to the property under their mortgage, and the answer of the defendant, denying the plaintiffs' asserted right, was not true. Its falsity is apparent and unquestionable upon the admitted facts, and, in view of these admitted facts, there was really no issue of fact between the parties to be tried, excepting as to the value of the property. The insufficiency of the facts relied upon .as a defence having been determined by the decisions above cited, the \\u2022defence was in this particular sham. The plaintiffs, having waived, as they might do, (Morrison v. Austin, 14 Wis. 601,) any right to recover the value of the property, were entitled to have the answer stricken out as sham, and to have judgment for the possession of the property. Although the court in its order designated the answer as irrelevant, instead of sham, yet this should not affect the result. At most, this' erroneous designation only indicated an untenable reason (for a conclusion which was right as a matter of law.\\nIt has been repeatedly considered in this court that a verified answer, upon its face constituting a defence, may be stricken out as sham. There is no reason, in our judgment, notwithstanding some decisions to the contrary, for excepting from this course of procedure .answers consisting of or including a general denial. Such an answer was held properly stricken out in C. N. Nelson Lumber Co. v. Richardson, 31 Minn. 267, (17 N. W. Rep. 388.)\\nThe point that no notice was given of the taxation of costs will not avail the appellant here, no remedy having been sought in the court below. Jensen v. Crevier, 33 Minn. 372, (23 N. W. Rep. 541,) and cases cited; Fay v. Davidson, 13 Minn. 275, (298.)\\nOrder and judgment affirmed.\"}"
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+"{\"id\": \"8888490\", \"name\": \"BETTY MARCUS and Another v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY\", \"name_abbreviation\": \"Marcus v. National Council of Knights & Ladies of Security\", \"decision_date\": \"1914-10-23\", \"docket_number\": \"Nos. 18,876-(22)\", \"first_page\": \"196\", \"last_page\": \"203\", \"citations\": \"127 Minn. 196\", \"volume\": \"127\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:58:27.328603+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BETTY MARCUS and Another v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY.\", \"head_matter\": \"BETTY MARCUS and Another v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY.\\nOctober 23, 1914.\\nNos. 18,876\\u2014(22).\\nMutual benefit, insurance \\u2014 issues involved.\\n1. The pleadings in this case raise the question, of waiver of nonpayment of assessments, of waiver of a law of the order requiring members of a dissolved council to take certain steps to preserve their membership, and waiver of proofs of death.\\nExpulsion of member \\u2014 burden of proof.\\n2. Defendant notified deceased that she was expelled from membership and her certificate cancelled, and that no further assessments would be received from her. The burden is on the defendant to prove that its repudiation of its contract was rightful. Its assertion of due expulsion in its notice of repudiation of membership furnishes no evidence of expulsion, even though the plaintiff offers the notice of repudiation in evidence.\\nSame \\u2014 tender of assessments.\\n3. After such notice, no further tender of assessments by deceased was necessary to keep her certificate in force. Her obligation to the defendant was not thereby discharged. The conduct of defendant simply waived payment of assessments at the time stipulated in the contract. Under such circumstances, if the member stands on the contract and seeks to enforce it, he must discharge his obligation of payment as a condition to such enforcement, and, should the society change its attitude and again recognize the contract, the member must continue to discharge the obligations of the contract if he would continue it in force.\\nWaiver by conduct.\\n4. The conduct of defendant in repudiating the contract of deceased relieved her from making application to join another council on dissolution of the council to which she belonged, and waived the requirement that plaintiffs make proofs of death and of their claim on blanks to be furnished by defendant.\\nAction by deceased not a bar to this action.\\n5. The bringing of an action by deceased for damages for breach of contract, in the absence of proof that judgment was entered or some benefit received by deceased or some detriment suffered by defendant, does not bar an action by the beneficiaries of deceased to recover under the term of the contract.\\nAction in the district court for Ramsey county to recover $2,000 upon defendant\\u2019s policy or certificate of insurance upon the life of Getal Segal. The case was tried before Olin B. Lewis, <L, and a jury which returned a verdict in favor of plaintiffs for the amount demanded. From an order denying its motion for judgment in its favor notwithstanding the verdict or for a new trial, defendant appealed.\\nAffirmed.\\nWilliam 0. White, for appellant.\\nA.'J. Hertz and James E. Markham, for respondents.\\nReported in 149 N. W. 197.\", \"word_count\": \"2498\", \"char_count\": \"14447\", \"text\": \"Hallam, J.\\nThis action is brought to recover the face of a beneficiary certificate issued by defendant to one Getal Segal. Defendant interposed an answer, an amended answer, and an amendment to the amended answer. The first amended answer alleged that in April, 1910, deceased was tried upon charges before the national executive committee of the order and was expelled from the order and her beneficiary certificate cancelled, and that she acquiesced in the judgment of expulsion. The amendment to the amended answer alleged that in April, 1910, the local council to which she belonged was dissolved and its charter forfeited; that the laws of the order provide that when a local council is dissolved, any member thereof desiring to retain his membership must within 60 days make application for a national council card, and present said card to some local council and be admitted as a member thereof; that deceased failed to do this; that after April, 1910, she paid no assessments; that the laws of the order provide for notice of proofs of death and of the claimant's rights upon blanks furnished by the national secretary of defendant, and that plaintiffs made no such proofs of death.\\nPlaintiffs replied, alleging that the charges preferred were false and were made for the purpose of avoiding defendant's obligation to deceased and to plaintiffs; that deceased was never permitted to answer said charges nor to be heard thereon, and that the alleged trial was arbitrary, unauthorized, oppressive and void; that defendant waived the provisions of the laws of the order requiring proofs of death or presentation of claim, and took and maintained the position that the contract of deceased was terminated by reason of the pretended expulsion.\\nThe laws of the order do require the prompt monthly payment of assessments. It is admitted deceased paid none between April and the time of her death in November, 1911. They require a member of a dissolved council to take the steps alleged to preserve his member ship. It is admitted that she did not do so. And they require proofs of death and of claimant's claim upon blanks furnished by defendant. It is admitted no proofs were made. Plaintiffs claim the facts alleged in the answer constitute a waiver of all of these provisions. Defendant contends that they are not pleaded as a waiver of any default, except that arising from failure to make proofs of death. We do not agree with this contention. The allegation of the unauthorized repudiation of the contract is general and may be regarded as responsive to all the defenses alleged in the answer.\\nThe failure of deceased to pay any assessments from April, 1910, to the time of her death, would naturally forfeit her membership unless excused. It appears, however, that after the alleged trial, and on April 22, 1910, the national secretary of the order notified deceased that she had been expelled and advised her that no further payments would be received from her. Although this alleged expulsion lay at the bottom of all the controversies between these parties, and was the only defense alleged in the original answer, strangely enough, no attempt was made to prove it on the trial.\\nDefendant contends the burden is on plaintiffs to show that its refusal to recognize the membership of deceased was wrongful. The law is otherwise. Forfeitures are never presumed and must be proved by the person asserting them. Cornfield v. Order Brith Abraham, 64 Minn. 261, 66 N. W. 970; Kulberg v. National Council of Knights and Ladies of Security, 124 Minn. 437, 145 N. W. 120.\\nDefendant further contends that inasmuch as the letters notifying deceased of the repudiation of her membership were offered in evidence by plaintiffs, plaintiffs are bound by the statements made in them that deceased was duly expelled from the order and her certificate cancelled. Clearly this is not the law. The expulsion of deceased cannot be proved by defendant's assertion of it. Where an insurance society repudiates the contract of one of its members and makes a declaration in writing of its repudiation, its own assertion in such writing that its conduct was rightful, furnishes no evidence in its favor to that effect.\\nThe result is, the court is obliged to regard the refusal of defend ant to accept further payments from deceased as wrongful, and as an inexcusable breach of the contract between them.\\nThe defendant having clearly indicated its intention to refuse to receive from deceased any further assessments or to recognize her membership in any manner, the subsequent tender of assessments was not necessary to keep her certificate in force. Ibs v. Hartford Life Ins. Co. 121 Minn. 310, 319, 141 N. W. 289; Kulberg v. National Council of Knights and Ladies of Security, 124 Minn. 437, 145 N. W. 120; Guetzkow v. Michigan Mut. Life Ins. Co. 105 Wis. 448, 81 N. W. 652; Byram v. Sovereign Camp, Woodmen of World, 108 Iowa, 430, 79 N. W. 144, 75 Am. St. 265.\\nDefendant's counsel argues at length that the governing body of the defendant society had no power to waive the payment of assessments by deceased. He predicates his argument on the assumption that the effect of such waiver was to permanently excuse deceased from future payment of assessments, and nevertheless keep her certificate in force. If the effect were as counsel assumes, then his argument would doubtless be well founded. But it is not. The action of the society did not relieve the deceased of her obligation to pay assessments. Even repeated tenders of all assessments as they became due would not affect this result. Tender never discharges an obligation. It simply excuses the person owing it from the consequences of failure to make payment at the time the contract requires. The declaration of a beneficiary society that it will not receive further payments from a member, simply excuses the member from payment at the time and in the manner required by his contract, but if he stands on his contract and seeks to enforce it, he must discharge his obligation of payment as a condition to such enforcement. If the member acquiesces in the repudiation of the contract by the society, then he loses all rights under it, for a repudiation of a contract by one party, acquiesced in by the other, is tantamount to a rescission. See Marcus v. National Council of Knights and Ladies of Security, 123 Minn. 145, 143 N. W. 265. On the other hand, should the society change its attitude and again recognize the contract as a valid and subsisting one, then the member must continue to discharge the obligations it imposes on him if he would have it continue in force. Langnecker v. Trustees of Grand Lodge A. O. U. W. of Wis. 111 Wis. 279, 283, 87 N. W. 293, 55 L.R.A. 185, 87 Am. St. 860. If tbe beneficiaries of tbe member sue on tbe contract after tbe member's death, they must make good tbe member's obligations by payment of all dues and assessments, or suffer a deduction of the amount thereof from their recovery. Kulberg v. National Council of Knights and Ladies of Security, 124 Minn. 437, 145 N. W. 120. In this view of tbe nature and effect of tbe conduct of defendant's officers as a waiver, there can be no more doubt of their power to waive prompt payment in such a case as this than in a case where payment is made one day after it becomes due.\\nThis conduct in attempting to terminate her membership likewise excused deceased from attempting to comply with the law of the-order which requires a member, when his council is dissolved, to make application within 60 days for a transfer card to some other council and obtain admittance as a member thereof.\\nThe conduct of defendant in repudiating the membership of deceased likewise excused the default of plaintiffs in failing to submit proofs of death. It is well settled that a disavowal of liability by the insurer, on other grounds, after death of the alleged member, dispenses with the necessity of making proofs of death. 2 Bacon, Ben. Soc. & Life Ins. \\u00a7 413; Alexander v. Grand Lodge, A. O. U. W. 119 Iowa, 519, 93 N. W. 508. It is likewise the law that, if the insurer during the lifetime of the insured declares a forfeiture of the insurance contract and continues its disavowal of the contract up to the time of death of the deceased, such action on its part amounts to a waiver of the provisions of the contract requiring proofs of death. Equitable Life Assur. Soc. v. Winning, 58 Fed. 541, 7 C. C. A. 359.\\nCopy of a summons and complaint was left with the insurance commissioner purporting to be in a suit brought by Getal Segal against this defendant to recover damages for breach of the insurance contract. Defendant contends that this conduct was an election by her to choose that particular remedy and to bar the right of recovery on the part of the plaintiffs in the present action. The jury, under instructions from the trial court, found that no action was ever in fact commenced. Whether the evidence sustains this finding we need not stop to inquire, for if such an action was commenced it was no bar to this one. We are not favored with the facts as to the disposition made of this action claimed to have been commenced over four years ago, but it is clear that we cannot assume either that it resulted in a judgment in favor of the plaintiff or that the plaintiff derived any benefit therefrom or defendant suffered any detriment. The rules governing cases of this sort are well settled. A person may have two courses open to him to redress a single wrong, but he can never have double redress. The two courses may be so inconsistent that the choice of one is an irrevocable waiver of the other as soon as the choice is made, as, where property is taken in proceedings instituted without jurisdiction, the owner may repudiate the proceeding or appear in it and assert his rights. The latter course waives beyond recall the right to question jurisdiction. Rheiner v. Union Depot, Street Ry. & T. Co. 31 Minn. 289, 17 N. W. 623. See Pederson v. Christofferson, 97 Minn. 491, 496, 106 N. W. 958. In order that the commencement of an action which is not prosecuted to judgment and which results in no benefit to plaintiff or detriment to defendant, shall have the effect to bar any other remedy the plaintiff may have, the remedies must proceed from opposite and irreconcilable claims of right, and must be so opposite or inconsistent that a party cannot logically assume to follow one without renouncing the other. Bowen v. Mandeville, 95 N. Y. 237; Mills v. Parkhurst, 126 N. Y. 89, 26 N. E. 1041, 13 L.R.A. 472; Stier v. Harms, 154 Ill. 476, 40 N. E. 296; Patterson v. Swan, 9 Serg. & R. (Pa.) 16; Morris v. Rexford, 18 N. Y. 552, 557. But a party may have alternative remedies which are not so inconsistent. An example of this is the alternative right to bring action for damages for breach of contract or demand full or specific performance. These remedies are both predicated on the existence of the contract, and the mere commencement of one will not be a bar to the other, Connihan v. Thompson, 111 Mass. 270; Slaughter v. La Campagnie Francaises Des Cables Tel. 119 Fed. 588, 57 C. C. A. 19; see Bitzer v. Bobo, 39 Minn. 18, 38 N. W. 609; Spurr v. Home Ins. Co. 40 Minn. 424, 42 N. W. 206; Johnson v. Town of Clontarf, 98 Minn. 281, 108 N. W. 521. This is tbe principle applicable to tbe facts of tbis case. Tbe remedy on tbe contract to recover tbe amount of tbe insurance and that for damages for the breach of tbe contract are both in affirmance of tbe contract. \\u2022 They are alternative remedies but not inconsistent. Both cannot be carried to judgment and satisfaction, but tbe mere commencement or pendency of one is not a plea in bar in tbe other.\\nOrder affirmed.\"}"
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+"{\"id\": \"8888658\", \"name\": \"DIANNE SANNA TRENBERTH v. WILLIAM EDE TRENBERTH\", \"name_abbreviation\": \"Trenberth v. Trenberth\", \"decision_date\": \"1973-04-20\", \"docket_number\": \"No. 43474\", \"first_page\": \"487\", \"last_page\": \"488\", \"citations\": \"296 Minn. 487\", \"volume\": \"296\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:07:33.460765+00:00\", \"provenance\": \"CAP\", \"judges\": \"Heard before Knutson, C. J., and Otis, Kelly, and Schultz, JJ.\", \"parties\": \"DIANNE SANNA TRENBERTH v. WILLIAM EDE TRENBERTH.\", \"head_matter\": \"DIANNE SANNA TRENBERTH v. WILLIAM EDE TRENBERTH.\\n206 N. W. 2d 555.\\nApril 20, 1973\\nNo. 43474.\\nStein & Stein and Manuel H. Stein, for appellant.\\nAbate, Wivoda & Ketola and Roland Wivoda, for respondent.\\nHeard before Knutson, C. J., and Otis, Kelly, and Schultz, JJ.\", \"word_count\": \"151\", \"char_count\": \"892\", \"text\": \"Per Curiam.\\nThis is an appeal by a mother from a decision of the District Court of St. Louis County in a divorce proceeding awarding the father custody of their son, William E. Trenberth, Jr., then 3 years old.\\nOn the basis of an investigation conducted by the Welfare Department and the testimony of the parties and other witnesses, the trial court concluded that the father was a fit and proper person to have custody, subject to limited supervision by the Welfare Department and visitation rights of the mother. We have examined the record and hold that the court's conclusions are fully supported by the evidence.\\nAffirmed.\"}"
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+"{\"id\": \"8889402\", \"name\": \"AXEL HAGSTROM v. ALEXANDER McDOUGALL\", \"name_abbreviation\": \"Hagstrom v. McDougall\", \"decision_date\": \"1915-12-17\", \"docket_number\": \"Nos. 19,460\\u2014(115)\", \"first_page\": \"389\", \"last_page\": \"392\", \"citations\": \"131 Minn. 389\", \"volume\": \"131\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:23:29.784505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AXEL HAGSTROM v. ALEXANDER McDOUGALL.\", \"head_matter\": \"AXEL HAGSTROM v. ALEXANDER McDOUGALL.\\nDecember 17, 1915.\\nNos. 19,460\\u2014(115).\\nContract \\u2014 parol modification of writing.\\n1. A written contract may be modified by parol; and it is held that the court was in error in striking from the record evidence having some tendency to prove that the contract involved was modified.\\nRulings on evidence.\\n2. Various rulings of the trial court as to conversations of the parties in connection with the written contract and not in the way of a valid modification of it held, correct.\\nNew trial \\u2014 limitation of issues to be tried.\\n3. When a new trial is granted it may, in a proper case, be limited to a trial of issues constituting less than an entire cause of action; and this is a proper case for the application of the rule, the only error being a denial of the right to offer evidence as to certain distinct claims, such error not otherwise affecting the verdict.\\nNote. \\u2014 As to parol modification of an original contract required to be in writing, see note in 4 L.R.A.(N.S.) 980.\\nAction in tbe district court for St. Louis county to recover $7,978.23 upon a logging contract. The case was tried before Eesler, J., and a jury which returned a verdict for $776.50. Plaintiff\\u2019s motion for a new trial upon the second cause of action was denied. From the judgment entered pursuant to the verdict, plaintiff appealed.\\nReversed.\\nJohn B. Samuelson, for appellant.\\nWilliam P. Harrison, for respondent.\\nReported In 155 N. W. 391.\", \"word_count\": \"1365\", \"char_count\": \"7704\", \"text\": \"Dibell, C.\\nAction by plaintiff to recover of defendant upon a contract for getting out the forest products on certain lands in Wisconsin and delivering them at McDougall's Spur on the Duluth, South Shore & Atlantic Railway at Winnebijou. There was a verdict for the defendant, who interposed a counterclaim claiming overpayment, and judgment rendered in his favor on the verdict for $851.73. Plaintiff appeals from the judgment.\\nThe case is before ns on a bill of exceptions.\\nThe contract was between the plaintiff and another, to whose rights plaintiff has succeeded, of the first part, and the defendant, of the second part, and bore date September 28, 1913. The portions necessary to be quoted for the purposes of this review are the following:\\n\\\"Said parties of the first part do hereby agree to cut, manufacture, produce, skid, safely transport and load on cars, as directed and ordered by party of the second part, all the timber on the lands above described at the following prices.\\n\\\"All of said timber products, herein mentioned, shall be cut, skidded, manufactured, produced and delivered by first parties to second party at McDougall Spur of the Duluth, South Shore & Atlantic Railroad, Winne-bijou, Wisconsin, subject to orders, sale and convenience of said party of the second part, prior to May 1st, 1914. Also to care for brush in compliance with the laws of the State of Wisconsin.\\n\\\"Second party agrees to furnish shipping orders and facilitate dispatch as rapidly as existing market and railroad conditions will permit. First parties agree to pile separately all timber products so that the same may be readily inspected, and to load each and all timber products separately, or collectively, as may be directed by party of the second part or his representative, and agree to load not less than the established railway minimum on any car of any product, said loading to be performed in a safe and thorough manner in accordance with the rules of the above mentioned railroad company.\\n\\\"Party of the second part is hereby given the right at any time to load said products or any part thereof on ears, and charge the cost of such loading to parties of the first part.\\\"\\nThe plaintiff claims, in effect, that on January 14, 1914, the contract was modified, so that the timber might remain until spring, and he was to be paid for constructing a landing, and the extra cost of reloading from the skids to the cars. A written contract may be modified by parol. Youngberg v. Lamberton, 91 Minn. 100, 97 N. W. 571.\\nIf in January, 1914, the plaintiff and defendant agreed that cars need not be furnished and that the shipment of the forest products might be delayed until spring, defendant being then under a subsisting obligation to expedite shipments, and being by the new arrangement released therefrom, and that the plaintiff should clear a landing so that the timber could be skidded at the spur, and should be paid the reasonable cost of it, and the additional expense of reloading from the skids to the cars in the spring, the surrender by the plaintiff of the obligation resting upon the defendant to expedite shipments would be a consideration for the defendant's promise to pay and a valid modification might be found. Such a situation would not be controlled by King v. Duluth, Missabe & N. Ry. Co. 61 Minn. 482, 63 N. W. 1105. The bill of exceptions shows these proceedings:\\n\\\"By Mr. Samuelson:\\n\\\"Q. Did you at that time demand that ears be furnished to you for the loading out of that timber product? A. Yes.\\n\\\"Q. Were ears furnished to you at that time? A. No.\\n\\\"Q. Was there any reason given by the defendant at that time for his failure to furnish you with ears ? A. Yes.\\n\\\"Q. What reasons were given by him at that time for his failure to furnish cars ? A. It was he couldn't sell the logs, and he couldn't sell the stuff what was cut in the woods, and he said that he\\u2014\\n\\\"Mr. Harrison: I object to the witness continuing; he has fully answered the question.\\n\\\"The Court: I don't know whether he has answered it fully, or not. You may proceed.\\n\\\"A. He said if he could hold it until in the spring of the year he would get a better price for it and told us to go ahead and he would pay for the clearing of the land and pay for the decking and pay for what extra men I had to load the logs out of skids again in the spring of the year.\\\"\\nThe last answer was stricken on motion of the defendant upon the grounds, among others, that the contract bound the plaintiff to do what he claimed the defendant promised to pay him for doing and that the promise was without consideration. It does not seem that Captain Mc-Dougall was in default in failing to furnish cars. Still, if the parties chose to modify their contract, in the Tespect before mentioned, they might do so; and the evidence stricken had some evidentiary force in proof of a modification. We think it was error to strike it.\\nThe plaintiff alleges some six or eight erroneous rulings upon the introduction of testimony. They relate to the rulings of the court upon plaintiff's offers of parol testimony of prior, contemporaneous and subsequent conversations in connection with the written contract, but not at all in the way of \\u00e1 valid modification of it. If we accepted his claim, little would be left of the familiar rule that resort cannot be had to parol evidence to change the terms of a written contract into which parties have put their meaning. The rulings of the trial court were correct, and we mention plaintiff's claim only to avoid possible confusion on a new trial.\\nIn a proper case, where a new trial is granted, it may be limited to a trial of issues constituting less than an entire cause of action. See 2 Dunnell, Minn. Dig. \\u00a7 7079, 7089. We see no necessity of a retrial of all the issues. The verdict in favor of the defendant,- with aecxuihg interest, should be taken as representing the rights of the parties, subject to a change upon a trial of the issues bearing upon the two items mentioned of which there has been no trial. There was no error except as to these two items. If a change is made by a trial of these two items, the court can make an adjustment, and if no change is made judgment can be entered upon the verdict.\\nJudgment reversed.\"}"
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+"{\"id\": \"8889566\", \"name\": \"STATE EX REL. J. J. MERGENS AND ANOTHER v. CHARLES M. BABCOCK AND OTHERS\", \"name_abbreviation\": \"State ex rel. Mergens v. Babcock\", \"decision_date\": \"1928-11-30\", \"docket_number\": \"No. 26,924\", \"first_page\": \"583\", \"last_page\": \"589\", \"citations\": \"175 Minn. 583\", \"volume\": \"175\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T23:21:53.271602+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hilton, J. took no part.\", \"parties\": \"STATE EX REL. J. J. MERGENS AND ANOTHER v. CHARLES M. BABCOCK AND OTHERS.\", \"head_matter\": \"STATE EX REL. J. J. MERGENS AND ANOTHER v. CHARLES M. BABCOCK AND OTHERS.\\nNovember 30, 1928.\\nNo. 26,924.\\nG. A. Yotmgquist, Attorney General, and William II. Gurnee, Assistant Attorney General, for appellants (respondents below).\\nWright & Wright and A. W. Bowen, for respondents (relators below).\\nReported in 222 N. W. 285.\", \"word_count\": \"1955\", \"char_count\": \"11437\", \"text\": \"TatloR, C.\\nThe commissioner of highways advertised for bids for constructing a section of trunk highway No. 5 and received several bids therefor. He awarded the work to the relators as the lowest bidders and executed a contract with them which he sent to the commission of administration and finance for approval. That commission disapproved the contract on the ground that one Martin Wunderlich was a lower bidder; and because of such disapproval the commissioner of highways refused to deliver or file the contract. Thereupon the relators procured an alternative writ of mandamus from the district court of Ramsey county directed to the commissioner of highways and to the members of the commission of administration and finance in their official capacity to compel the delivery of the contract. The trial resulted in a judgment directing the issuance of a peremptory writ. The members of the commission of administration and finance appealed therefrom.\\nThe controlling question presented is whether the commission of administration and finance is given power to disapprove, and thereby render of no effect, contracts for the construction of trunk highways executed by the commissioner of highways. No constitutional question is involved as the authority of both is conferred by and rests upon statute.\\nIn enacting statutes the legislature is presumed to know and have in mind all existing laws relating to the same subject matter or affected by the new enactment. If different statutes relating to the same subject matter may fairly be construed so as to give full effect to all, it is the duty of the court so to construe them. In so far as they are inconsistent, the latest expression of the legislative will controls. Where the language of a statute is plain and unambiguous and leads to no absurdity, there is no room for construction and it must be given effect according to its terms. 6 Dunnell, Minn. Dig. (2 ed.) \\u00a7 8927, 8938, 8939, 8940.\\nThe office of commissioner of highways was created and the powers and duties of the commissioner were declared and defined by L. 1921, p. 406, c. 323, known as the public highways act. This act, as amended in a few minor particulars not here material, is G-. S. 1923, \\u00a7 \\u00a7 2542-2620. It gave the commissioner of highways power to locate, construct, improve and maintain the trunk highways of the state and to let all necessary contracts therefor. It provided for receiving bids for construction work but gave him power to reject all bids if unsatisfactory, and either to readvertise or have the work performed by labor employed by himself. That it gave him ample power to make the contract in controversy is conceded. The question is whether the power so conferred has been limited by subsequent legislation.\\nL. 1925, p. 756, c. 426, was enacted for the purpose of reorganizing the state government and consists of 20 articles. Art. I creates and establishes 14 departments and agencies of the state government, including a department of administration and finance and a department of highways, and then declares that:\\n\\\"All of said departments and all officials and agencies of the state government shall be subject to the provisions and limitations of this act.\\\"\\nArt. XI reads:\\n\\\"The Department of Highways as now created under the title of the commissioner of highways is hereby continued in charge of the commissioner of highways, who shall have and exercise the rights and powers and perform the duties now prescribed by law, subject to the limitations of this act.\\\"\\nArt. Ill, \\u00a7 1, places the department of administration and finance under the supervision and control of the commission of administration and finance consisting of three members to be known respectively as the comptroller, the commissioner of the budget, and the commissioner of purchases. That body is designated in the act as the \\\"commission\\\" and will be intended by that term when used hereafter. Section 3 of the same article gives the commission power\\n\\\"to supervise and control the accounts and expenditures of the several officials, departments, and agencies of the state government and of the institutions under their control; the making of all contracts and the creation or incurrence of all financial or contractual obligations; .\\\"\\nSection 4 of the same article gives the commission power to purchase all\\n\\\"tools, machinery, and materials to be used by the state in the construction and maintenance of state highways.\\\"\\nSection 5 of the same article provides that no appropriation to \\\"any official, department, or agency of the state government shall become available for expenditure\\\" until an estimate in advance shall have been submitted to and approved by the commission.\\nArt. XX, \\u00a7 2, states:\\n\\\"All other acts or parts of acts now in effect inconsistent with the provisions of this act are hereby superseded, modified, or amended to conform to and give full force and effect to the provisions of this act.\\\"\\nChapter 426 continues the highway commissioner in charge of the highway department but expressly makes him subject to that act. It also supersedes, modifies and amends all other acts or parts of acts inconsistent therewith to the extent necessary to make them conform to that act and give full force and effect to its provisions. It continues the highway act in force, but only as so modified and amended. It is the plain purpose of the act to give the commission power to supervise and control the making of all contracts and the incurrence of all financial or contractual obligations by any of the several departments or agencies of the state. State ex rel. University of Minnesota v. Chase, 175 Minn. 259, 220 N. W. 951; State ex rel. Yapp v. Chase, 165 Minn. 268, 206 N. W. 896. This necessarily includes the power to prevent the making of a contract of which the commission disapproves. It was within the province of the legislature to place such limitations upon the power of the commissioner of highways and to provide for such supervision and control over his official acts as it deemed proper. It has used language so plain and explicit that there can be no doubt of the legislative intention, and that intention must be given effect. 6 Dunnell, Minn. Dig. (2 ed.) \\u00a7 8938, 8940, and cases there cited.\\nThe relators urge that the highway act is a special act Avhich completely covers the matter of the powers and duties of the commissioner of highways, and cite various decisions of this and other courts to the effect that a later general statute does not repeal or affect the special provisions of an earlier special statute unless it manifests an intention to do'so. The instant case does not come within the rule invoked, for here the iater statute expressly modifies and amends the earlier to conform thereto. State ex rel. Seng v. Peter, 101 Minn. 462, 112 N. W. 866; State v. Western Union Tel. Co. 111 Minn. 21, 124 N. W. 380, 126 N. W. 403.\\nGr. S. 1923, \\u00a7 2554, the section of the highway act defining the powers of the commissioner of highways, was amended by L. 1925, p. 430, c. 341, approved one day prior to the approval of c. 426. The amendment made no change in the substance of the section so far as it relates to the powers of the commissioner of highways. The relators argue that by re-enacting \\u00a7 2554 the legislature intended to give the commissioner of highways the powers specified therein free from the limitations of c. 426. In support of this claim they cite cases such as McMaster v. Gould, 240 N. Y. 379, 148 N. R. 566, 40 A. L. R. 792; People ex rel. Kell v. Kramer, 328 Ill. 512, 160 N. E. 60; and Commonwealth v. King, 202 Mass. 379, 88 N. E. 454, to the effect that statutes relating to the same subject passed at the same session by the same legislature should be construed together so as to give effect to all and form a harmonious whole. Their contention is not in accord with the rule they cite for it ignores the later act. The two must be construed together, and the later must be given effect as modifying, supplementing, and limiting the earlier in the respects and to the extent specified therein.\\nThe relators also cite State ex rel. Junk v. Herrick, 107 Ohio St. 611, 140 N. E. 314, in support of their contention. The Ohio administrative code there considered differs materially from our reorganization act. The Ohio court held that the director of finance created by the administrative code could not prevent the making of a contract for road improvements by the director of highways on the ground that the code did not give him power to control the making of such contracts, but the court recognized that the provisions of the code must be given effect according to their terms.\\nIn 1921 the state of Michigan created a state administrative board and gave it supervisory control over all administrative departments. None of the Michigan decisions to which our attention has been called involved the question here presented; but the Michigan court recognizes that the \\\"supervisory control\\\" given to the administrative board gives that board the right to control'the expenditures of the several departments except as otherwise provided by the constitution. Groesbeck v. Auditor General, 216 Mich. 243, 249, 189 N. W. 870, 21 A. L. R. 249; State Board of Agriculture v. Auditor General, 226 Mich. 417, 197 N. W. 160.\\nAlthough having no direct bearing on the present case, the decisions of the Pennsylvania court sustaining the constitutionality of the administrative code of that state and applying its provisions are of value. Commonwealth ex rel. Atty. Gen. v. Snyder, 279 Pa. 234, 123 A. 792; Commonwealth ex rel. Atty. Gen. v. Lewis, 282 Pa. 306, 127 A. 828; Piccirilli Bros. v. Lewis, 282 Pa. 328, 127 A. 832.\\nWhether the bid of the relators or that of Wunderlich was the lowest has been argued at length by both parties. The proposals contained a large number of items and named a specific price for each. Which bid was the lowest depends upon the interpretation placed on the bid of Wunderlich for \\\"excavation overhaul.\\\" The bid of the relators on this item was .01% per cubic yard, which all parties read as 1% cents per cubic yard. The bid of Wunderlich was 0.1 per cubic yard, which the highway department read as 10 cents per cubic yard. This brought the Wunderlich bid far above that of the relators. But the commission took the position that the decimal point had obviously been misplaced and that the bid intended was 1 cent per cubic yard, and Wunderlich claimed that such was the fact. Giving it that meaning his bid was more than $5,000 below that of the relators. We have no occasion to determine the controversy over this bid, for the commission in disapproving the letting of the contract to the relators was exercising the power given it by the statute, and we cannot say that it exceeded the power vested in it by the statute. When an executive or administrative body determines a matter involving the exercise of its discretionary power, the courts do not interfere. 4 Dunnell, Minn. Dig. (2 ed.) \\u00a7 5753, and cases cited; 38 C. J. 745, and cases cited.\\nJudgment reversed.\\nHilton, J. took no part.\"}"
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+"{\"id\": \"890887\", \"name\": \"STATE v. MICHAEL J. McDONOUGH\", \"name_abbreviation\": \"State v. McDonough\", \"decision_date\": \"1975-01-10\", \"docket_number\": \"No. 44796\", \"first_page\": \"468\", \"last_page\": \"471\", \"citations\": \"302 Minn. 468\", \"volume\": \"302\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:55:16.274222+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. MICHAEL J. McDONOUGH.\", \"head_matter\": \"STATE v. MICHAEL J. McDONOUGH.\\n225 N. W. 2d 259.\\nJanuary 10, 1975 \\u2014\\nNo. 44796.\\nJohn E. Daubney, for appellant.\\nR. Scott Davies, City Attorney, and A. Keith Hanzel and Stephen C. Aldrich, Assistant City Attorneys, for respondent.\", \"word_count\": \"682\", \"char_count\": \"4096\", \"text\": \"Per Curiam.\\nDefendant was convicted of speeding after a trial without a jury in St. Paul municipal court. The evidence against defendant consisted of testimony by the arresting officer that the radar speedmeter which he operated clocked defendant's car at 56 miles per hour in a 30-mile-per-hour zone, and that on the basis of his personal observation, he estimated defendant's speed in excess of 50 miles per hour. On this appeal from judgment of conviction, defendant contends that there was insufficient evidence that the officer had properly tested the accuracy of the radar speedmeter and that absent such testing, there was insufficient evidence to support the verdict. We affirm.\\nIn claiming that there was insufficient evidence that the radar speedmeter was properly tested for accuracy, defendant relies upon State v. Gerdes, 291 Minn. 353, 191 N. W. 2d 428 (1971). In that case this court, reversing a speeding conviction based solely upon a radar speedmeter reading, held that the court below had properly taken judicial notice of the reliability of radar speedmeters but that the court had erred in finding the defendant guilty because the prosecution had not sufficiently shown that the speedmeter reading upon which the conviction was based was accurate. This court stated that the requisite conditions for proving the accuracy of a radar speedmeter were:\\n\\\" (1) The officer reading the device must have adequate training and experience in its operation;\\n\\\"(2) The officer should testify to the manner in which the unit was set up and the conditions under which it was used;\\n\\\"(3) A showing must be made that the machine was operated with a minimum possibility of distortion from such external interference as noise, neon lights, high-tension powerlines, high power radio stations, and other similar influences; and\\n\\\"(4) On the occasion when the machine is set up, its accuracy must be tested in some external manner by a reliably calibrated tuning fork or by an actual test run, using another vehicle with an accurately calibrated speedometer.\\\" 291 Minn. 359, 191 N. W. 2d 432.\\nThe court held that in the case before it the prosecution had not met the fourth condition since the officer had tested the accuracy of the machine only with a tuning fork that was an integral part of the machine.\\nIn our case the officer, prior to using the machine on the night in question, checked the accuracy of the machine by using two tuning forks, one internal and one external, both calibrated by the manufacturer to register readings of 65 miles per hour on the radar speedmeter. Defendant contends that this was insufficient even though both forks produced readings of 65 miles per hour on the speedmeter because (a) Gerdes says one should not use an internal tuning fork to test a machine's accuracy, and (b) there was no evidence that the external tuning fork had been \\\"reliably calibrated.\\\"\\nAfter careful consideration, we hold that the internal tuning fork in this case, calibrated as it was to the same speed as the external tuning fork, served as an adquate check on the accuracy of the external tuning fork, and that therefore the prosecution did satisfy the requirement of showing that the external tuning fork used was reliably calibrated. This holding is not meant in any way to alter our holding in Gerdes. All that we are saying is that an internal tuning fork, while not an adequate check on the accuracy of the speedmeter, serves as an adequate check upon the accuracy of an external tuning fork where both the internal and external tuning forks are calibrated by the manufacturer to register (and in fact do register) the same speed on the speed-meter.\\nIn view of our holding, we do not need to reach defendant's contention that absent sufficient testing of the speedmeter's accuracy in this case, there was insufficient evidence to convict.\\nAffirmed.\"}"
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+"{\"id\": \"8922981\", \"name\": \"Leon PERRY, petitioner, Appellant, v. STATE of Minnesota, Respondent\", \"name_abbreviation\": \"Perry v. State\", \"decision_date\": \"2005-11-10\", \"docket_number\": \"No. A05-169\", \"first_page\": \"572\", \"last_page\": \"576\", \"citations\": \"705 N.W.2d 572\", \"volume\": \"705\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-11T00:49:00.393400+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by the court en banc without oral argument.\", \"parties\": \"Leon PERRY, petitioner, Appellant, v. STATE of Minnesota, Respondent.\", \"head_matter\": \"Leon PERRY, petitioner, Appellant, v. STATE of Minnesota, Respondent.\\nNo. A05-169.\\nSupreme Court of Minnesota.\\nNov. 10, 2005.\\nRehearing Denied Jan. 10, 2006.\\nLeon Perry, Bayport, MN, Pro Se Appellant.\\nMike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant Hennepin County Attorney, Minneapolis, MN, for Respondent.\\nConsidered and decided by the court en banc without oral argument.\", \"word_count\": \"1615\", \"char_count\": \"10139\", \"text\": \"OPINION\\nANDERSON, G. BARRY, Justice.\\nAppellant Leon Perry appeals from a summary denial of his petition for postcon-viction relief alleging a violation of his Fourteenth Amendment rights. He also raises a claim of ineffective assistance of trial counsel that he did not raise to the postconviction court. We affirm the post-conviction court's denial of Perry's petition and deny Perry's claim of ineffective assistance of trial counsel.\\nOn November 16, 1995, a Hennepin County jury convicted Perry of the first-degree premeditated murder of Brian Thomas under Minn.Stat. \\u00a7 609.185(a)(1) (2004). On the same day, the district court sentenced appellant to life in prison. This court's opinion issued in response to appellant's direct appeal provides a full statement of the facts in this case. State v. Perry, 561 N.W.2d 889, 891-93 (Minn.1997). This court affirmed appellant's conviction, holding that the district court did not err by admitting an incriminating out-of-court statement offered to rebut defense counsel's suggestion that the police lied to appellant during his interrogation. Id. at 894. Additionally, this court denied appellant's claim that he received ineffective assistance of counsel because his counsel opened the door to the incriminating statement. Id. at 894-95. Finally, this court denied appellant's claim that the state violated his Sixth Amendment rights when, as a person of color, he was indicted by a 23-person grand jury that included no persons of color. Id. at 895-97.\\nOn November 9, 2004, appellant filed a petition for postconviction relief claiming that the state violated his right to equal protection under the Fourteenth Amendment because there were no persons of color on the grand jury that indicted him. The postconviction court denied appellant's petition on the grounds that the claim was procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976) (\\\"Knaffla rule\\\") and failed on the merits even if not barred.\\nOn appeal to this court, appellant argues that his Fourteenth Amendment claim is not the same as his previously denied Sixth Amendment'claim, and further argues, inter alia, that it therefore should not be procedurally barred. Additionally, in his appeal to this court, appellant has raised for the first time a new ineffective assistance of counsel claim.\\nA postconviction court \\\"may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.\\\" Minn.Stat. \\u00a7 590.04, subd. 3 (2004). Further, this court held in Knaffla that once a direct appeal has been taken, \\\"all matters raised therein and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.\\\" 309 Minn, at 252, 243 N.W.2d at 741.\\nThere are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. Ives v. State, 655 N.W.2d 633, 636 (Minn.2003). The second exception may be applied if fairness requires it and the petitioner did not \\\"deliberately and inexcusably\\\" fail to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).\\nTaylor v. State, 691 N.W.2d 78, 79 (Minn.2005).\\nIt is clear that appellant knew ox-should have known about the equal protection claim prior to his direct appeal because the district court rejected the claim in a pretrial order. Although his pretrial motion to dismiss provided no specific legal basis for dismissal, citing only \\\"racial bias\\\" as the basis, the state's memorandum in response to the motion argued that appellant had failed to make the prima facie showing necessary for an equal protection challenge. The district court's order and memorandum denying appellant's \\\"racial bias\\\" claim determined that there was insufficient evidence that the racial composition of the grand jury violated appellant's \\\"constitutional rights.\\\" This broad ruling in response to appellant's broad claims, coupled with the state's understanding that appellant was making an equal protection claim, strongly indicates that appellant knew about the equal protection claim prior to his direct appeal to this court. Thus, the posteonviction court did not abuse its discretion when it determined that the Knaffla rule procedurally barred appellant from raising the claim in his petition for relief. See Hanley v. State, 534 N.W.2d 277, 279 (Minn.1995) (concluding that postconviction review is barred where appellant \\\"knew or should have known\\\" of claim at time of direct appeal).\\nWe further conclude that Perry's equal protection claim meets neither exception to the Knaffla rule. Although Perry did not argue in his briefs to this court that the exceptions apply, we address these exceptions in the interests of judicial economy.\\nAs to the first exception, his claim is not novel. In 1996 alone \\u2014 the year immediately preceding Perry's direct appeal \\u2014 two U.S. Courts of Appeals' opinions extensively analyzed equal protection claims very similar to his. United States v. Esquivel, 88 F.3d 722, 725 (9th Cir.1996); Ricketts v. City of Hartford, 74 F.3d 1397, 1407-09 (2d Cir.1996). We have held that a claim was not novel when there were \\\"several published cases\\\" regarding the claim that \\\"diligent criminal defense attorneys\\\" would have uncovered when making a direct appeal. Ademodi v. State, 616 N.W.2d 716, 718 (Minn.2000). As to the second exception to the Knaffla rule, fairness does not require that we review a claim that Perry should have known about more than nine years ago. We have previously declined to utilize the fairness exception when the petitioner did not argue that the exception applied and when the petitioner failed to articulate facts supporting the application of the exception. Jones v. State, 671 N.W.2d 743, 746 (Minn.2003). That analysis clearly applies here. Accordingly, we hold that the postconviction court did not abuse its discretion when it invoked the Knaffla rule to bar Perry's equal protection claim.\\nWe turn next to Perry's claim of ineffective assistance of counsel, an argument not made to the postconviction court. The -gist of Perry's ineffective assistance of counsel claim is that his trial counsel erred by failing to object to the jury's return of one signed verdict form and five unsigned forms. The district court instructed the jury on the crimes charged and then provided the jury with six possible verdict forms \\u2014 one form for each of the five separate charges indicating that Perry was guilty and one form indicating that he was not guilty. The district court instructed the jury to sign one of the verdict forms and return the others unsigned. Perry apparently contends that the jury's act of returning all of the unsigned verdict forms, in addition to returning the signed form reflecting a conviction for' premeditated murder, is the same as the jury \\\"returning\\\" a verdict finding Perry guilty of each of the crimes charged. He then argues that the jury therefore convicted him of two inconsistent crimes \\u2014 first-degree premeditated murd\\u00e9r and second-degree manslaughter. Finally, he argues that his trial counsel erred by not objecting to a sentence for first-degree murder \\\"in light of the convictions for the lesser included offenses as well.\\\"\\nIn his appeal from denial of post-conviction relief, Perry did not address the effect of.the Knaffla rule on his ineffective assistance of counsel claim. If he had, it would have been difficult for him to contend that he did not know that the jury had returned five unsigned verdict forms. Additionally, it is clear that he knew that he could raise an issue of ineffective assistance of counsel on direct appeal because he did raise such a claim. Perry, 561 N.W.2d at 894. The Knaffla rule therefore bars his claim.\\nNor are the exceptions to the Knaffla rule helpful to Perry. His claim is only novel because it is based on his misunderstanding that the return- of multiple unsigned verdict forms is the equivalent of inconsistent verdicts. Additionally, he articulates no reason why fairness dictates an exception to the Knaffla rule. We have declined to invoke the fairness exception to the Knaffla rule where the petitioner provides no adequate reasons for its application. E.g., Hale v. State, 566 N.W.2d 923, 926-27 (Minn.1997); Roby v. State, 531 N.W.2d 482, 484 (Minn.1995). Moreover, our own careful review of the record reveals no reason for invoking the fairness exception here.\\nWe conclude that the Knaffla rule bars Perry's ineffective assistance of counsel claim.\\nAffirmed.\\nBLATZ, C.J., took no part in the consideration or decision of this case.\\n. This court used the term \\\"persons of color\\\" to describe all potential jurors who did not self-id'entify as \\\"white\\\" on the jury questionnaire form.\\n. We note that Perry's equal protection claim relies on the same argument and statistics of minority underrepresentation as appellant's claim in State v. Willis, 559 N.W.2d 693, 700-01 (Minn.1997). We rejected Willis's claim in that case, and Perry provides no analysis articulating why that precedent should be overturned.\\n. Although issues not raised to the district court are generally waived, we analyze Perry's claim under the Knaffla rule in the interests of judicial economy. Roby v. State, 547 N.W.2d 354, 357 (Minn.1996); see Brookfield Trade Ctr., Inc. v. County of Ramsey, 609 N.W.2d 868, 873 n. 6 (Minn.2000) (noting that this court may address issues not otherwise ripe for appeal in the interest of justice and judicial economy).\\n.Appellant does not take his argument to its logical terminus \\u2014 that the jury returned a verdict of \\\"not guilty'' by returning that verdict form unsigned.\"}"
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+"{\"id\": \"893920\", \"name\": \"JUDY HENDRY v. WILLIAM CONNER\", \"name_abbreviation\": \"Hendry v. Conner\", \"decision_date\": \"1975-03-14\", \"docket_number\": \"No. 44777\", \"first_page\": \"317\", \"last_page\": \"319\", \"citations\": \"303 Minn. 317\", \"volume\": \"303\", \"reporter\": \"Minnesota Reports\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T20:43:54.050251+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JUDY HENDRY v. WILLIAM CONNER.\", \"head_matter\": \"JUDY HENDRY v. WILLIAM CONNER.\\n226 N. W. 2d 921.\\nMarch 14, 1975\\nNo. 44777.\\nConnolly & Heffernan and Donald J. Heffernan, for appellant.\\nJar dine, Logan & O\\u2019Brien and Gerald M. Linnihan, for respondent.\", \"word_count\": \"850\", \"char_count\": \"5059\", \"text\": \"Per Curiam.\\nPlaintiff brought this action alleging an invasion of privacy by defendant. As disclosed in her complaint and the answers to interrogatories, plaintiff alleges she took her minor child to St. Paul Ramsey Hospital for treatment. While waiting in the hos .pital to have her child admitted, she was told by defendant, an employee of the credit department of the hospital, that the child could not be admitted unless an outstanding bill for prior treatment was paid. Reference was further made to the fact that the debt had been included by plaintiff in a petition for bankruptcy which she had filed. The statement was alleged to have been made in a loud voice in the presence of a number of people waiting in the room. Plaintiff had, in fact, owed the hospital $1,500, and the debt had been discharged in bankruptcy. -,\\nThe trial court dismissed plaintiff's action on the ground that she had failed to state a cause of action for relief, and this appeal is from the judgment for defendant. We affirm.\\nProsser, Torts (4 ed.) pp. 802 to 818, states in an analysis of the subject that there are four separate kinds of invasion of privacy. The kinds included by Prosser are (1) appropriation for the defendant's benefit or advantages of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity which places the plaintiff in a false light in the public eye; and (4) public disclosure of private facts.\\nPlaintiff's claim falls into the category of public disclosure of private facts, sometimes referred to as a disclosure of indebtedness. See, Annotation, 33 A. L. R. 3d 154. The essentials of this offense are summarized as follows in the annotation (33 A. L. R. 3d 157):\\n\\\"Some oppressive or coercive conduct by the creditor is generally essential to the tort of invasion of privacy. While all but a few states recognize the tort, they are not in agreement as to what constitutes actionable conduct. In earlier cases, for example, recovery was denied for an oral telephone communication either on the ground that it gave no undue publicity or that it did not constitute an unwarranted invasion of the debtor's peace of mind. It now seems clear, however, that the extent of publicity or degree of harassment determines whether the right is invaded, rather than the character of the oral or written communication. To be actionable, the collector's conduct must generally constitute a continuous harassment of the debtor.\\\"\\nMinnesota has never recognized, either by legislative or court action, a cause of action for invasion of privacy, even though many other states have done so. Prosser, Torts (4 ed.) pp. 802 to 812; Annotation, 33 A. L. R. 3d 154. It is not necessary for the disposition of this case to decide whether a cause of action for invasion of privacy should be recognized in Minnesota. It is sufficient to hold that, even if we were to do so, the conduct of defendant in the single incident occurring in the hospital waiting room does not constitute a violation of plaintiff's privacy.\\nFirst of all, the record of bankruptcy is a public fact. Further, as evidenced by answers to interrogatories, plaintiff cannot establish that there was publicity except for a very small number of persons. There is no allegation that there were other occasions when the defendant made the same or similar statements.\\nWhile we do not condone the acts complained of, in our judgment they did not constitute undue or oppressive publicity and do not constitute an actionable violation of plaintiff's right of privacy. The order dismissing plaintiff's cause of action was properly entered, and the judgment is affirmed.\\nAffirmed.\\nIn Reed v. Ponton, 15 Mich. App. 423, 166 N. W. 2d 629 (1968), the plaintiff alleged that the store manager's statement made in the presence of clerks and customers that she had failed to pay for her layaway purchase was an inv\\u00e1sion of plaintiff's right of privacy. In affirming a dismissal of the plaintiff's action, the court stated (15 Mich. App. 426, 166 N. W. 2d 630): \\\"When there has .been no misappropriated use of, or physical intrusion into, the private life, employment, property, name, likeness, or other personal place or interest, so that the privacy action is premised solely upon a disclosure of secret or confidential matter or upon being put publicly in a 'false light', then if (without deciding) mere words of mouth can ever be actionable (except by a slander action) the oral communication must be broadcast to the public in general or publicized to a large number of people. Moreover, such publicity must lift the curtain of privacy on a subject matter that a reasonable man of ordinary sensibilities would find offensive and objectionable: supersensitiveness is not protected; Prosser, Torts (3d ed), \\u00a7 112, 77 CJS 396 et seq.; 19 ALR 3d 1318 et seq.\\\"\"}"
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+"{\"id\": \"8990655\", \"name\": \"STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, petitioner, Respondent, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Marlin Fitzner, et al., intervenor, Respondents\", \"name_abbreviation\": \"State ex rel. Swan Lake Area Wildlife Ass'n v. Nicollet County Board of County Commissioners\", \"decision_date\": \"2006-04-04\", \"docket_number\": \"No. A05-1001\", \"first_page\": \"522\", \"last_page\": \"526\", \"citations\": \"711 N.W.2d 522\", \"volume\": \"711\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T19:55:05.470306+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by WILLIS, Presiding Judge; KALITOWSKI, Judge; and STONEBURNER, Judge.\", \"parties\": \"STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, petitioner, Respondent, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Marlin Fitzner, et al., intervenor, Respondents.\", \"head_matter\": \"STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, petitioner, Respondent, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Marlin Fitzner, et al., intervenor, Respondents.\\nNo. A05-1001.\\nCourt of Appeals of Minnesota.\\nApril 4, 2006.\\nWilliam G. Peterson, Peterson Law Office, P.A., Bloomington, MN and Garry D. Barnett, Mankato, MN, for respondent Swan Lake Area Wildlife Association.\\nScott T. Anderson, Kimberley K. So-bieck, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for appellant.\\nKurt A. Deter, Gerald W. Von Korff, Rinke-Noonan, Ltd., St. Cloud, MN, for respondents Marlin Fitzner, et al.\\nConsidered and decided by WILLIS, Presiding Judge; KALITOWSKI, Judge; and STONEBURNER, Judge.\", \"word_count\": \"1481\", \"char_count\": \"9565\", \"text\": \"OPINION\\nKALITOWSKI, Judge.\\nAppellant Nicollet County Board' of County Commissioners contends that because the drainage authority is the proper arbiter of claims asserted under the drainage code, the district court erred in determining that it had subject matter jurisdiction over a drainage-related claim brought under the Minnesota Environmental Rights Act (MERA).\\nFACTS\\nCounty ditch 46A (CD46A) was established by appellant's approval in 1907. It runs from the northeast corner of Mud Lake to the southern portion of Little Lake in Nicollet County, Minnesota. In 1950, appellant ordered an improvement to CD46A in response to petitions claiming that the ditch was draining inadequately and causing flooding to surrounding areas. That order also approved the installation of a dam structure to maintain the elevation of Little Lake and Mud Lake. The structure was installed with a crest elevation of 973.2 feet above sea level. In 1972, the Commissioner of Natural Resources granted appellant a permit to construct a new and longer dam structure at an increased elevation of 973.8 feet above sea level.\\nThe new structure was never built. And the water-level problems persisted due to a leak in the existing dam structure. Over the next 30 years, appellant received notices urging it to address concerns that the dam structure was below the authorized elevation of 973.8 feet and that Little Lake was draining as a result. Appellant and the Department of Natural Resources (DNR) began discussing the issue again in the mid-1990s, but the parties continued to dispute, among other issues, the elevation of a new dam structure.\\nRespondent Swan Lake Area Wildlife Association became involved in the matter in 2002. Respondent offered to pay for construction of a dam, but the parties could not agree on the dam's elevation. Appellant maintained that it should remain at the level originally installed, 973.2 feet, while respondent asserted that the appropriate crest elevation was 973.8 feet.\\nRespondent filed suit against appellant, seeking declaratory and equitable relief under MERA. Respondent moved to amend the complaint, asking that appellant be directed, by mandamus, to restore the water levels of Little Lake and Mud Lake. Respondent also brought a motion to join the Minnesota DNR as a third-party defendant. Appellant opposed respondent's motions and moved to dismiss the complaint based on lack of subject matter jurisdiction. The district court denied appellant's motion to dismiss and granted respondent's motions to amend the complaint and to join the DNR. On appeal, appellant challenges the district court's determination that it had subject matter jurisdiction over respondent's MERA claim.\\nISSUE\\nDid the district court err in determining that it had subject matter jurisdiction over a MERA claim involving drainage issues?\\nANALYSIS\\nGenerally, an order denying a motion to dismiss is not appealable because it merely retains the action for trial, does not involve the merits of the claim, and is not a final order. County of Hennepin v. Decathlon Athletic Club, Inc., 559 N.W.2d 108, 108 n. 2 (Minn.1997). But an order denying a motion to dismiss for lack of jurisdiction is appealable as a matter of right, as it is not merely retention of the action for trial, but a determination compelling the defendant to take on the burden of litigation that it has a legal right to avoid. McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995) (holding dismissal based on lack of subject matter jurisdiction is appealable).\\nSubject matter jurisdiction involves a court's authority to decide a particular class of actions and its authority to decide the particular questions before it. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995), review denied (Minn. May 31, 1995). \\\"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.\\\" Minn. R. Civ. P. 12.08(c). Questions of subject matter jurisdiction are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).\\nMERA provides a civil remedy for those that seek to protect, preserve, and enhance the air, water, land, and other natural resources within the state. Minn. Stat. \\u00a7 116B.01 (2002). Under MERA,\\n[a]ny person residing within the state . may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction.\\nMinn.Stat. \\u00a7 116B.03, subd. 1 (2002). An association such as respondent qualifies as a \\\"person\\\" for MERA purposes. Minn. Stat. \\u00a7 116B.02, subd. 2 (2002). Moreover, MERA states that \\\"[t]he rights and remedies provided herein shall be in addition to any administrative, regulatory, statutory, or common law rights and remedies now or hereafter available.\\\" Minn.Stat. \\u00a7 116B.12 (2002).\\nAppellant argues that the availability of alternative administrative processes, specifically the drainage procedures laid out in Minn.Stat. \\u00a7 103E.005-.812, necessarily precludes the district court's jurisdiction over appellant's MERA claim. Unless and until the drainage authority considers a petition on the matter, appellant contends that the district court does not have jurisdiction. We disagree.\\nThe plain language of MERA provides that its remedies \\\"shall be in addition to any administrative . rights and remedies now or hereafter available.\\\" Id. (emphasis added). The legislature could have supplied an exception for MERA claims subject to drainage code proceedings. But it did not. And this court \\\"cannot supply that which the legislature purposely omits or inadvertently overlooks.\\\" Wallace v. Comm'r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).\\nThis court addressed a similar jurisdiction argument involving MERA in State by Fort Snelling State Park Ass'n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169 (Minn.App.2003), review denied (Minn. Mar. 16, 2004). In Fort Snelling, a park board planned to construct an outdoor athletic center on the Fort Snelling Polo Grounds, which the board had leased from the DNR. 673 N.W.2d at 172. The plan was subject to review by the Minnesota Historical Society (MHS) and the National Park Service (NPS) and both organizations approved the plan. Id. at 173. A state park association then brought a declaratory judgment action seeking to protect the polo grounds under MERA. Id. at 171-72. On appeal, the park board argued that the district court erroneously concluded that it had jurisdiction over the MERA claim because the administrative processes of the MHS and NPS precluded an action under MERA. Id. at 177. Citing Minn.Stat. \\u00a7 116B.12, this court concluded that there was no support for the park board's claim and that \\\"this civil action under MERA was authorized regardless of administrative processes.\\\" Id.\\nIn light of the broad language of Minn. Stat. \\u00a7 116B.12, we conclude that the district court has subject matter jurisdiction over respondent's MERA claim regardless of the administrative processes and remedies available under the drainage provisions of Minn.Stat. \\u00a7 103E.055-.812. Thus, the district court properly denied appellant's motion to dismiss for lack of subject matter jurisdiction.\\nAppellant also challenges the substance of respondent's MERA claim. But the scope of this appeal is limited to jurisdiction. Because this is an interlocutory appeal and the district court must first address claims before they appear before this court, we do not reach the merits of respondent's claim. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts generally do not consider matters that the district court did not consider).\\nFinally, appellant argues in its brief that the district court improperly granted respondent's motions to amend the complaint and to join the DNR. Appellant contends that because the district court lacked subject matter jurisdiction over the MERA claim, it also lacked jurisdiction to grant respondent's motions. Because we conclude the district court had subject matter jurisdiction over the MERA claim, we reject appellant's argument that the district court abused its discretion by granting respondent's motions.\\nDECISION\\nUnder the plain language of MinmStat. \\u00a7 116B.12, the district court has subject matter jurisdiction over a claim under the Minnesota Environmental Rights Act, even if that claim involves drainage and could have been asserted pursuant to the administrative processes set out in the drainage code.\\nAffirmed.\\n. The ditch was originally titled \\\"County Ditch 46\\\" but was renamed \\\"County Ditch 46A\\\" on or about 1971.\"}"
\ No newline at end of file
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+"{\"id\": \"9089744\", \"name\": \"In re the Marriage of Patricia L. ROONEY, Petitioner, Respondent, v. Michael T. ROONEY, Respondent, and Christ's Household of Faith, third-party Respondent, Appellant, and Ramsey County, Intervenor, Respondent\", \"name_abbreviation\": \"Rooney v. Rooney\", \"decision_date\": \"2003-09-16\", \"docket_number\": \"No. A03-53\", \"first_page\": \"362\", \"last_page\": \"379\", \"citations\": \"669 N.W.2d 362\", \"volume\": \"669\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T18:56:00.557976+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.\", \"parties\": \"In re the Marriage of Patricia L. ROONEY, Petitioner, Respondent, v. Michael T. ROONEY, Respondent, and Christ\\u2019s Household of Faith, third-party Respondent, Appellant, and Ramsey County, Intervenor, Respondent.\", \"head_matter\": \"In re the Marriage of Patricia L. ROONEY, Petitioner, Respondent, v. Michael T. ROONEY, Respondent, and Christ\\u2019s Household of Faith, third-party Respondent, Appellant, and Ramsey County, Intervenor, Respondent.\\nNo. A03-53.\\nCourt of Appeals of Minnesota.\\nSept. 16, 2003.\\nJoseph F. Schmidt, Minneapolis, MN, for Respondent Patricia L. Rooney.\\nMichael T. Rooney, St. Paul, MN, pro se.\\nChristopher D. Johnson, Rebecca A. Chaffee, Hazel J. Uy, Best & Flanagan LLP, Minneapolis, MN, for Appellant.\\nSusan Gaertner, Ramsey County Attorney, Amy A. Anderson, Assistant County Attorney, St. Paul, MN, for Respondent.\\nConsidered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and KALITOWSKI, Judge.\", \"word_count\": \"7864\", \"char_count\": \"49373\", \"text\": \"OPINION\\nROBERT H. SCHUMACHER, Judge.\\nAppellant Christ's Household of Faith (CHOF) challenges the district court's de termination that it is a \\\"payor of funds\\\" under Minn.Stat. \\u00a7 518.6111 (2002), for child support withholding purposes, contending that the application of that statute to CHOF results in excessive governmental entanglement in CHOF's religious affairs in violation of the federal and state constitutions. CHOF also challenges the district court's determinations that it could decide a remand under the statute replacing the statue under which the remand was ordered, that a religious institution providing in-kind benefits to a church member can be a \\\"payor of funds\\\" under Minn.Stat. \\u00a7 518.6111, that CHOF's withholding obligation commenced in 1990, and that laches does not apply to this case. CHOF further disputes the amount of the support and maintenance arrears for which it is responsible. We affirm in part, reverse in part, and remand.\\nFACTS\\nRespondents Patricia L. Rooney and Michael T. Rooney were married in 1964 and became members of CHOF in 1966. The church's doctrine requires that members devote themselves and any property they have to the church, sacrificing all rights to payment for services given and relinquishing rights to all material possessions. In return, the church supports its members.\\nIn 1987 Patricia Rooney left the church. The parties' marriage was dissolved in 1988. Patricia Rooney was awarded custody of four of the couple's minor children, and Michael Rooney (Rooney) was awarded custody of two of the couple's minor children. It is undisputed that Rooney performed and continues to perform services for CHOF and CHOF-relat-ed entities. In the dissolution judgment, the district court estimated Rooney's earning capacity to be $24,000. Rooney was ordered to pay monthly child support of $600.52 and monthly spousal maintenance of $250. At the time judgment was entered, Patricia Rooney was receiving welfare assistance from respondent Ramsey County. The judgment imposed on her no obligation to pay support to Rooney.\\nCHOF is a non-profit corporation operating a number of businesses, including Northstar Services. As a 501(d) corporation, CHOF is required by the IRS to provide each of its members with a partnership K-l tax form. The K-l form represents the division of the gross taxable income of CHOF by the number of its members. The record indicates that Rooney does not receive compensation from CHOF for his services other than room, board, certain in-kind benefits, and a $39.80 biweekly stipend that other CHOF members, even those not working, receive. Rooney's 1994 K-l tax form shows income of $4,342.\\nIn 1990, the district court ruled that CHOF was Rooney's \\\"employer\\\" under Minn.Stat. \\u00a7 518.611 (1990), and ordered CHOF to perform income withholding to pay Rooney's child support and spousal maintenance obligations. Rooney was in arrears immediately on the $850.52 per month that he was ordered to pay for child support and spousal maintenance. In August 1990, CHOF's attorney sent the county a letter stating that it could not comply with all aspects of the withholding order, that CHOF and other CHOF-related entities and persons named in the withholding order were not parties to the proceeding but were not objecting to the withholding order. Thereafter, CHOF made some payments on Rooney's behalf.\\nIn 1991, the district court affirmed a referee's order directing entry of judgment for support and maintenance arrears against CHOF and other CHOF-related entities and persons. CHOF appealed to this court and argued that it was not \\\"an employer\\\" under MinmStat. \\u00a7 518.611 (1990). This court reversed and remanded for a determination of whether CHOF had waived its right to an evidentiary hearing, whether CHOF was an employer, and what the total amount of CHOF's withholding obligations should be. Rooney v. Rooney, 478 N.W.2d 545 (Minn.App.1991) (Rooney I). No action was taken on the remand by the district court, CHOF, the parents, or the county until 2002.\\nIn 1996, Rooney brought a motion to amend his child support and spousal maintenance obligations on the grounds that his circumstances had changed. Patricia Rooney moved for contempt based on claimed arrearages and to increase both child support and spousal maintenance. Rooney's motion was denied without a determination of whether CHOF was his employer. In 1997, the legislature repealed Minn.Stat. \\u00a7 518.611 under which the remand had been ordered and replaced it with Minn. Stat. \\u00a7 518.6111 (Supp.1997).\\nThe evidentiary hearing ordered by this court in 1991 was held in June 2002. The child support magistrate found that CHOF was an employer as well as a \\\"payor of funds\\\" for purposes of Minn.Stat. \\u00a7 518.6111 (2002), and ordered judgment for arrearages against CHOF back to January 2002, when CHOF was purportedly \\\"joined\\\" as a party to the case. CHOF sought review of this decision by the district court. The district court affirmed the magistrate's \\\"employer\\\" and \\\"payor-of-funds\\\" rulings, ruled that CHOF was responsible for arrearages dating back to the date it was served with the 1990 order for income withholding, and remanded the matter to the child support magistrate for a calculation of all arrearages. The resulting order found that CHOF, as Rooney's \\\"employer\\\" and as a \\\"payor of funds\\\" was responsible for $100,976.82 in support ar-rearages, and an additional $38,955.00 in maintenance arrearages. All arrearages of child support and maintenance were calculated based on the amounts ordered in the 1988 dissolution. CHOF appeals.\\nISSUES\\n1. Can the district court exercise subject-matter jurisdiction over a claim against a church for compliance with a child-support withholding statute without violating the federal or state constitution?\\n2. Did the district court exceed the scope of its remand by addressing whether CHOF was a \\\"payor of funds\\\" under Minn. Stat. \\u00a7 518.6111 (2002)?\\n3. Did the district court err in ruling that CHOF was a \\\"payor of funds\\\" under MinmStat. \\u00a7 518.6111 (2002)?\\n4. Did the district court abuse its discretion by refusing to invoke laches?\\n5. Did the district court err in holding that CHOF's liability for withholding started in 1990?\\n6. Did the district court err in the calculation of Rooney's arrears and the amount to be prospectively withheld by CHOF?\\nANALYSIS\\n1. Whether subject-matter jurisdiction exists is a legal question that this court reviews de novo. Kellar v. Von Holtum, 605 N.W.2d 696, 700 (Minn.2000). CHOF argues that the application of the Minnesota child-support withholding statute in this case requires an unconstitutional inquiry into the relationship between the church and its members, and that the district court does not have subject-matter jurisdiction over such an inquiry. We disagree, and conclude that the district court may apply Minn.Stat. \\u00a7 518.6111 (2002), to CHOF without excessive entanglement in CHOF's religious affairs.\\nThe First Amendment to the United States Constitution provides that \\\"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; .\\\" U.S. Const. Amend. I. The First Amendment applies to the states by virtue of the Fourteenth Amendment. Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).\\nTo avoid violating the establishment clause, a state action must (1) have a secular purpose, (2) neither inhibit nor advance religion in its primary effect, and (3) not foster excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). It is undisputed that this case involves a state action, the imposition on CHOF of the withholding obligation, that has a secular purpose, securing the payment of Rooney's support and maintenance obligations, that is religiously neutral. At issue in this case is whether imposition of the withholding obligation on CHOF excessively entangles the county with religion where determining the propriety of imposing a withholding obligation requires an examination of Rooney's relationship with CHOF to determine whether CHOF is an \\\"employer\\\" or \\\"payor of funds\\\" for purposes of Minn. Stat. \\u00a7 518.6111 (2002). On this record, we conclude that there is no unconstitutional entanglement.\\nUnder the entanglement doctrine, the state must avoid inquiry into the internal decisionmaking and governance of the religious institution. Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 3025, 61 L.Ed.2d 775 (1979). There is no impermissible entanglement, however, when the dispute can be resolved according to \\\"neutral principles of law.\\\" Id. at 602-04, 99 S.Ct. at 3025; see Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 435 (Minn.2002) (applying neutral principles test to negligent counseling claim against member of clergy). These neutral principles of law must be developed and applied without particular regard to religious institutions or doctrine. Jones, 443 U.S. at 602-04, 99 S.Ct. at 3025-26.\\nHere, the withholding statute is a neutral law applying to all Minnesota employers. The withholding statute articulates a process by which a county may secure child support from an employer. As in J.M. v. Minn. Dist. Council of the Assemblies of God, whether the relationship between CHOF and Rooney makes CHOF subject to Minn.Stat. \\u00a7 518.6111 (2002), can be determined by religiously neutral factors. J.M. v. Minn. Dist. Council of the Assemblies of God, 658 N.W.2d 589, 595-96 (Minn.App.2003) (applying neutral factors of employment law to determine whether church was pastor's employer in sexual exploitation suit). CHOF argues that the state should not impose its secular view of CHOF's relationship on its members. But, as Jones demonstrates, the point of the neutral principles test is to apply a purely secular perspective to a dispute, without inquiring into religious doctrine or practice. Jones, 443 U.S. at 604, 99 S.Ct. at 3026. Because a determination of whether a payor/payee relationship exists between CHOF and Rooney can be accomplished by application of neutral factors and principles of law, we conclude that the court has subject-matter jurisdiction.\\nThe Minnesota Freedom of Conscience Clause provides:\\nThe enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own con science shall never be infringed; . nor shall any control of or interference with the rights of conscience be permitted.\\nMinn. Const, art. I, \\u00a7 16. The Minnesota Constitution affords religious protections broader than those contained in the federal constitution. State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990). To excuse a law's imposition on religious freedom under the Minnesota Constitution, the government's interest must be one of peace, safety or against an act of licentiousness. Murphy v. Murphy, 574 N.W.2d 77, 81 (Minn.App.1998).\\nMinnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the freedom of conscience clause of the Minnesota Constitution. Hill-Murray Fed'n of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865 (Minn.1992). The courts ask if (a) the objector's belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means to effectuate a compelling interest. Id. There is no dispute that CHOF's beliefs are sincerely held. We therefore limit our analysis to the remaining three factors, and conclude that applying Minn.Stat. \\u00a7 518.6111 (2002), to CHOF does not unduly impose on CHOF's religious freedom.\\nCHOF argues that the withholding statute compromises the church's faith, hinders religious practice and requires the church to act contrary to its doctrine. To determine the burden on CHOF, we must look at whether CHOF is forced to change its religious conduct or philosophy due to imposition of the statute.\\nIn Hill-Murray, the Minnesota Supreme Court found that application of the Labor Relations Act to secular employees of a parochial school did not violate the First Amendment because the terms and conditions of employment were not related to church doctrine and were negotiable. Id. at 866. Furthermore, interference with school authority was minimal, the school retained the power \\\"to require compliance with religious doctrine,\\\" and any person failing to follow the religious standards could be removed. Id. In Odenthal, the Minnesota Supreme Court held that a statute regulating unlicensed mental health care professionals did not force the church to change its religious conduct or philosophy because clergy members retained the right to practice counseling and the church continued to retain the power over the clergy's compliance with church doctrine. Odenthal, 649 N.W.2d at 442.\\nHere, CHOF requires that its members relinquish their possessions and most external sources of income. The church then provides support for those members. A consequence of doing so is that it may later be required to meet child-support obligations on behalf of a member. Indeed, the record shows that CHOF has made numerous child-support payments on behalf of Rooney, and continues to do so on behalf of other church members. CHOF does not contend that these payments were a burden on its right to free exercise of religion. CHOF remains free to require its members to give their possessions and income to the church. Further, because CHOF chooses to exist as a non-profit corporation, it is subject to tax and corporate law that may not apply if it existed as a church only. CHOF does not argue that requiring it to follow these laws is an excessive burden. We do not see that applying Minn.Stat. \\u00a7 518.6111 (2002), is any greater burden on CHOF than requiring it to provide its members with K-l tax forms. Withholding income from Rooney and forwarding this amount to Ramsey County is not a complicated bookkeep ing task. We conclude that applying the withholding statute to CHOF does not excessively burden CHOF's right to exercise its religious beliefs.\\nAs we have noted, the Minnesota Constitution provides greater protections to the practice of religion than the federal constitution. Hershberger, 462 N.W.2d at 397. Thus, if applying Minn. Stat. \\u00a7 518.6111 to CHOF does not violate the Minnesota Constitution, it also does not violate the lesser protections of the federal constitution. The Free Exercise Clause of the United States Constitution affords the absolute right to hold any religious belief, but it does not absolutely protect religiously-based conduct. Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877-79, 110 S.Ct. 1595, 1599-1600, 108 L.Ed.2d 876 (1990). An individual's religious beliefs may not excuse a failure to comply with otherwise valid laws concerning conduct subject to state regulation. Id. at 878-79, 110 S.Ct. at 1600. An individual cannot seek First Amendment exemption from a neutral law of general applicability. Id. We have observed that Minn.Stat. \\u00a7 518.6111 (2002), is applicable to all obli-gors and their employers, without respect to religion. This law applies generally; it is neither directed toward a religious entity, nor does it affect religious entities differently than others in similar economic relationships. We conclude that requiring CHOF to comply with Minn.Stat. \\u00a7 518.6111 does not infringe on CHOF's right to free exercise of religion under the federal constitution.\\nFollowing this court's decision in Murphy, the compelling nature of the state's interest in securing child support from Rooney cannot be challenged. Murphy, 574 N.W.2d at 82 (stating \\\"[w]e hold the state has a compelling interest in assuring parents provide primary support for their children\\\"). CHOF argues that this interest does not extend beyond Rooney to the church. We disagree. As Ramsey County notes, CHOF's argument would lead to the rather bizarre conclusion that the state has a compelling interest in ordering child support to be paid by an obligor, but not in collecting it. The state has a compelling interest in securing child support from Rooney, and this interest must extend to CHOF, or any other entity that can be required to perform income withholding for Rooney, if that interest is to have any meaning.\\nCHOF argues that the state did not use the least restrictive means by which to achieve its interest in securing child support for the Rooney children. The least restrictive means of securing child support is for the obligor to pay support voluntarily. Rooney's court-ordered obligations, however, have not been paid voluntarily. CHOF argues that the county and Patricia Rooney were under an obligation to pursue Michael Rooney's part-time employers and garnish his social security benefits before the church is approached. But the record indicates that there have been tax intercept and wage withholding actions against Rooney's part-time employers since 1996. As soon as Ramsey County knew that Rooney was collecting social security, it sent out a withholding notice. Ramsey County has garnished Rooney's \\\"other employers\\\" and has filed a withholding notice with the Social Security Administration. Rooney's driver's license was revoked in an attempt by Ramsey County to compel him to meet his child support obligation. None of these measures has succeeded.\\nRamsey County has attempted a number of ways to secure Rooney's child support payments without success, and on this record pursuing CHOF under Minn.Stat. \\u00a7 518.6111 (2002), is the least restrictive means remaining available to achieve this goal. Because there is no undue imposition on CHOF's right to religious freedom, we need not address whether Minn.Stat. \\u00a7 518.6111 falls into the \\\"peace, safety, or against licentiousness\\\" exception. Murphy, 574 N.W.2d at 81.\\n2. On remand from this court, the district court found that for purposes of Minn.Stat. \\u00a7 518.6111, CHOF was both Rooney's \\\"employer\\\" and a \\\"payor of funds.\\\" Noting that Rooney I remanded for a determination of whether CHOF was Rooney's \\\"employer,\\\" CHOF argues that the district court exceeded the scope of its remand by addressing whether CHOF was a \\\"payor of funds.\\\" We disagree.\\nOn remand, a district court must \\\"execute [a reviewing court's] mandate strictly according to its terms\\\" and lacks power to \\\"alter, amend, or modify [that] mandate.\\\" Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn.1982). There is, however, \\\"a well-recognized exception\\\" to this rule. McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn.App.1986), review denied (Minn. Nov. 17, 1986). Under that exception, courts apply an amended statute on remand if (a) the statute is amended between the time an appellate court remands a case and the time the district court renders its decision on remand; and (b) doing so will not alter rights that had matured or become unconditional, impose new and unanticipated obligations on a party, or work some other injustice. Id. at 226-27.\\nRooney I remanded for a determination of whether CHOF was Rooney's \\\"employer\\\" for purposes of the then-existing Minn. Stat. \\u00a7 518.611 (1990). Rooney I, 478 N.W.2d at 547. Before the remand was decided, however, the legislature repealed Minn.Stat. \\u00a7 518.611 and replaced it with Minn.Stat. \\u00a7 518.6111 (Supp.1997). See 1997 Minn. Laws ch. 203, art. 6, \\u00a7 93 (repealing Minn.Stat. \\u00a7 518.611 (1996)); 1997 Minn. Laws ch. 203, art. 6, \\u00a7 48 (enacting Minn.Stat. \\u00a7 518.6111 (Supp. 1997)). McClelland's change-in-the-law prong is satisfied here.\\nFor two reasons, we conclude that McClelland's lack-of-prejudice prong is also satisfied. First, \\\"[t]here is no vested right in an existing law nor in an action until final judgment has been entered therein.\\\" Holen v. Minneapolis-St. Paul Metro. Airports Comm'n, 250 Minn. 130, 136, 84 N.W.2d 282, 287 (1957) (emphasis in original); see McClelland, 393 N.W.2d at 226-27 (applying Holen in appeal after remand in family-law context). Here, Rooney I remanded the case. The \\\"reconsideration of a case on remand (and a subsequent appeal) is a continuation of the original proceeding.\\\" Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn.1987). No final judgment had been entered, and CHOF had no right to the resolution of the case under Minn. Stat. \\u00a7 518.611 (1990), and the Rooney I decision based on that law.\\nSecond, while Rooney I remanded for a determination of whether CHOF was Rooney's \\\"employer,\\\" that remand was ordered under Minn.Stat. \\u00a7 518.611 (1990), which required an \\\"employer or payor of funds\\\" to withhold the relevant amounts, but defined neither \\\"employer\\\" nor \\\"payor of funds.\\\" Minn.Stat. \\u00a7 518.611, subd. 2(b) (1990). The 1997 legislation included a definition of \\\"payor of funds\\\" which has not been altered since it was adopted. Compare Minn.Stat. \\u00a7 518.6111, subd. 1(b) (Supp.1997) (original definition of \\\"payor of funds\\\") with Minn.Stat. \\u00a7 518.6111, subd. 1(b) (2002) (current definition of \\\"payor of funds\\\"). Statutory amendments clarifying or defining previously undefined terms may be read into a statute retroactively. Carlson v. Lilyerd, 449 N.W.2d 185, 191 (Minn.App.1989), review denied (Minn. Mar. 8, 1990); see Rural Am. Bank of Greenwald v. Herickhoff 485 N.W.2d 702, 708 (Minn.1992) (stating while \\\"[o]rdinarily\\\" statutes are not applied retroactively, amendments seeking only to clarify \\\"may be applied retroactively\\\" because \\\"the legislature is not changing its mind but is only making clear the legislative intent that was always there\\\") (citations omitted); Nardini v. Nardini, 414 N.W.2d 184, 196 (Minn.1987) (stating \\\"a clarifying act is to be read into statutory law retrospectively\\\"). Comparing Minn.Stat. \\u00a7 518.611 (1990), and Minn.Stat. \\u00a7 518.6111 (2002), we find that for purposes of identifying who is obligated to perform income-withholding, the only relevant difference between the statutes is that Minn.Stat. \\u00a7 518.611 (1990), lacks the definition of \\\"payor of funds\\\" included in Minn.Stat. \\u00a7 518.6111 (2002). The results should have been the same under either statute, and the district court's use of the current statute could not have prejudiced CHOF. The district court did not exceed the scope of its authority on remand by addressing whether CHOF was a \\\"payor of funds\\\" under Minn.Stat. \\u00a7 518.6111 (2002).\\n3. CHOF challenges the determination that it is a \\\"payor of funds\\\" for purposes of Minn.Stat. \\u00a7 518.6111. A \\\"pay- or of funds\\\" is \\\"any person or entity that provides funds to an obligor, including an employer as defined under chapter 24 of the Internal Revenue Code, section 3401(d), an independent contractor, payor of worker's compensation benefits or unemployment benefits, or a financial institution as defined in section 13B.06.\\\" Minn. Stat. \\u00a7 518.6111, subd. 1(b). Because the statute refers to \\\"any person or entity\\\" providing funds \\\"including\\\" those listed in the statute, we reject CHOF's attempt to invoke Minn.Stat. \\u00a7 645.19 (2002), and the concept of inclusio unius est exdusio al-terius to argue that an entity not listed in the statute cannot be a \\\"payor of funds.\\\"\\nThe Internal Revenue Code provision referenced in the definition of \\\"payor of funds\\\" defines \\\"employer.\\\" It provides in part:\\n(d) Employer. \\u2014 For purposes of this chapter, the term \\\"employer\\\" means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that\\u2014\\n(1) if the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services, the term \\\"employer\\\" (except for purposes of subsection (a)) means the person having control of the payment of such wages[.]\\n26 USCA \\u00a7 3401(d) (West 2000). Under the Code, \\\"wages\\\" include both traditional cash-based pay and \\\"remuneration . paid in any medium other than cash.\\\" 26 U.S.C.A. \\u00a7 3401(a) (West 2000). Thus, for purposes of Minn.Stat. \\u00a7 518.6111, a \\\"pay- or of funds\\\" includes an entity for which a support obligor performs services and which provides the obligor with remuneration, cash-based or otherwise. Here, it is undisputed both that Rooney performs services for CHOF and CHOF-related entities, and that CHOF provides Rooney with a cash-based stipend, room and board, and other in-kind remuneration. The remuneration CHOF provides Rooney qualifies as \\\"wages\\\" under 26 U.S.C.A. \\u00a7 3401(a), which makes CHOF Rooney's employer for purposes of 26 U.S.C.A. \\u00a7 3401(d), which in turn makes CHOF a \\\"payor of funds\\\" for purposes of Minn. Stat. \\u00a7 518.6111. As a \\\"payor of funds,\\\" CHOF is subject to the statutory withholding requirements.\\nThe district court correctly ruled that CHOF was a \\\"payor of funds\\\" and because being a payor of funds is sufficient to impose a withholding obligation, we need not address the parties' disputes regarding whether CHOF is Rooney's \\\"employer\\\" for purposes of Minn.Stat. \\u00a7 518.6111.\\n4. Under the doctrine of laches, \\\"when one sits on one's rights for too long a time, that person's claim should be es-topped from continuing because it would be inequitable to require the defendant to fight the suit.\\\" Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999). Whether to apply laches \\\"depends upon the facts of the particular case and rests largely with the discretion of the trial court.\\\" Corah v. Corah, 246 Minn. 350, 357, 75 N.W.2d 465, 469 (1956). Here, CHOF admits that lach-es does not apply to child support obligations, but it argues that the delay in seeking a hearing on remand entitles CHOF to invoke laches against any withholding-related obligation arising out of the remand. We reject this argument because it incorrectly assumes that Patricia Rooney or the county had the primary burden of proceeding on remand.\\nGenerally, \\\"it is the trial court's duty to insure that a remand hearing is held.\\\" Grilli v. State, 378 N.W.2d 823, 825 (Minn.App.1985). This general rule, however, \\\"may be modified by the particular holding in an individual case[.]\\\" Id. Because the holding of Rooney I does not indicate that it was modifying the presumptively-applicable general rule, the primary duty of holding the hearing on remand was on the district court. When the district court did not set a hearing date, the Rooneys, CHOF, and the county all had numerous procedural options for seeking, and if necessary compelling, the setting of a hearing date. None of them did. As found by the district court in its order remanding the matter to the child support magistrate, there \\\"is plenty of blame to go around for the failure to more promptly initiate remand proceedings and to answer unresolved questions in this case.\\\" The record supports this finding.\\n5. The district court found that CHOF's liability for withholding dates back to August 20, 1990. On appeal, CHOF alleges this is wrong because Rooney I reversed the withholding order and no withholding obligation has been imposed since that time. This is incorrect. CHOF appealed an April 25, 1991 district court order affirming the referee's February 21, 1991 order which, among other things, (a) noted CHOF had been ordered to perform withholding on May 14, 1990, (b) found CHOF had made payments on support but not' maintenance or arrears, (c) awarded mother judgment against CHOF and CHOF-related entities and persons for support and maintenance arrears, and (d) directed that income withholding \\\"will continue ., pursuant to the [May 14, 1990 order].\\\" On appeal, this court reversed \\\"the trial court's judgment against [CHOF] as an ex-spouse's employer for payment of maintenance and child support obligations under Minn.Stat. \\u00a7 518.611 and 518.613.\\\" Rooney I, 478 N.W.2d at 547. Thus, this court reversed the portion of the 1991 judgment against CHOF for arrears. It did not address, reverse, or otherwise review the unap-pealed May 14, 1990 decision requiring CHOF to withhold. It is undisputed that CHOF received the May 14, 1990 withholding order and attempted to comply with it starting no later than August 1990. The district court correctly determined that CHOF's obligation to perform withholding dated from August 20,1990.\\n6. CHOF argues that because it gives stipends to its members who are nonworkers as well as members who are workers, the stipend should not be treated the same as amounts earned by child-support obligors working in a more traditional arrangement. But for purposes of child support, income includes \\\"any form of periodic payment[,]\\\" including \\\"unemployment benefits[,]\\\" which (like the CHOF stipends to nonworkers) are paid to nonworkers. Minn.Stat. \\u00a7 518.54, subd. 6 (2002). CHOF also appears to argue that because much of the remuneration it provides Rooney is in kind, to require it to perform withholding on Rooney's income, wages, or salary as required by MinmStat. \\u00a7 518.6111, subd. 5, is to impute income to CHOF and that there is no authority allowing a court to impute income to a payor of funds. Because CHOF's various in-kind disbursements to Rooney pay or reduce his living expenses, they can be considered when determining his income and ability to pay support. Cf. Minn.Stat. \\u00a7 518.551, subd. 5(b)(1) (2002) (noting \\\"net income\\\" for support purposes includes \\\"in-kind payments received by the obligor in the course of employment\\\" if those payments \\\"reduce the obligor's living expenses\\\"); Minn.Stat. \\u00a7 518.551, subd. 5(c)(1) (2002) (requiring district court to consider \\\"all earnings, income and resources of the parents\\\" when setting support); Darcy v. Darcy, 455 N.W.2d 518, 521 (MinmApp. 1990) (noting breadth of requirement that court consider earnings, income, and resources, and stating \\\"[t]he exact parameters of what may or may not be used to satisfy or set a support obligation have not been fully determined\\\").\\nOn this record, however, we cannot affirm the calculation of the arrears or the amount of the prospective withholding requirement. In setting the arrears and the withholding requirement, the child support magistrate denied CHOF's request to conduct additional discovery as well as CHOF's request for an evidentiary hearing on issues including the value of the services provided by Rooney and the value of the remuneration provided by CHOF. The child support magistrate did so citing First Amendment concerns, the scope of the remand ordered by the district court, the lack of evidence that the value of Rooney's services, as found to be $24,000 in the dissolution judgment, have changed, the fact that the remand was to enforce rather than modify the existing obligation, and because the child support magistrate believed he lacked jurisdiction to modify spousal maintenance. These concerns are rendered no longer applicable in light of our rejection of CHOF's First Amendment arguments, the 15 years that have passed since the judgment's $24,000 valuation of Rooney's services, our holding that any motion to modify maintenance or support either prospectively or retroactively shall be combined with the remand we order here, and the fact that we are remanding this case to the district court. Therefore, on remand, the parties may (a) conduct reasonable discovery; (b) conduct an evi-dentiary hearing; and (c) combine any motion to modify support or maintenance either prospectively or retroactively with the recalculation of arrears and the prospective withholding obligation.\\nBy notice of review, Patricia Rooney challenges the applicability of the withholding limits in Minn.Stat. \\u00a7 518.6111, subd. 9(a), which states: \\\"Amounts withheld from an employee's income must not exceed the maximum permitted under the Consumer Credit Protection Act, title 15 of the United States Code, section 1673(b).\\\" Rooney I holds that the \\\"income withholding procedure is analogous to a garnishment.\\\" Rooney I, 478 N.W.2d at 547. The limits provided in 15 U.S.C.A. \\u00a7 1673(b) (West 2000) address the amount that can be garnished for child-support purposes. The district court did not err in ruling that the garnishment limits in Minn. Stat. \\u00a7 518.6111, subd. 9(a), apply here.\\nDECISION\\nResolution of a question of income withholding under Minn.Stat. \\u00a7 518.6111 (2002), does not violate the Establishment Clause of the United States Constitution where application of the statute does not excessively entangle the court with religious doctrine or practices. The application of Minn.Stat. \\u00a7 518.6111 does not violate the right to free exercise of religion under the United States or Minnesota Constitutions where application of the statute is the least restrictive means available to vindicate the state's compelling interest in assuring adequate support of children. The district court did not err by deciding the remand under a statute replacing the statute under which the remand was originally ordered, by concluding that a religious institution providing in-kind benefits to a church member can be a \\\"payor of funds\\\" under Minn.Stat. \\u00a7 518.6111, or in determining the effective date of a withholding obligation under that provision. Nor did the district court abuse its discretion in ruling that, on the unique facts of this case, laches was not applicable. Because the district court's calculation of arrears and the amount to be withheld was impacted by our resolution of the First Amendment and other questions presented on appeal, we reverse and remand those aspects of the case.\\nAffirmed in part, reversed in part, and remanded.\\n. As exemplified by the child support magistrate's February 2002 order addressing the \\\"joinder\\\" of CHOF as a party to this proceeding, the record, the parties, and the court are less than clear about when CHOF became a party to these proceedings. It is clear howev er, that any objection CHOF had to the court exercising personal jurisdiction over it was waived when, in August 1990, its attorney sent a letter to the county stating that complying with all aspects of the May 1990 withholding order was not possible, that CHOF and others named in the withholding order were not parties to the proceeding, but not objecting to the existence of the withholding obligation and expressing CHOF's \\\"interest in fully complying with the Court's order.\\\" See Minn. R. Civ. P. 12.08 (addressing waiver of objection to lack of personal jurisdiction); Patterson v. Wu Family Corp., 608 N.W.2d 863, 867-68 (Minn.2000) (same). It was CHOF's lack of full compliance with the withholding order that prompted the 1991 proceedings and the appeal in Rooney I, which resulted in the remand from which this appeal is taken. \\\"The reconsideration of a case on remand (and a subsequent appeal) is a continuation of the original proceeding.\\\" Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn.1987). Because CHOF has been a party to this proceeding (at least for withholding purposes) since before the first appeal was taken, there was no need to \\\"join\\\" CHOF on remand.\"}"
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+"{\"id\": \"9312534\", \"name\": \"Carla THOMPSON, Relator, v. COUNTY OF HENNEPIN, Respondent, Commissioner of Economic Security, Respondent\", \"name_abbreviation\": \"Thompson v. County of Hennepin\", \"decision_date\": \"2003-05-06\", \"docket_number\": \"No. C9-02-1544\", \"first_page\": \"157\", \"last_page\": \"161\", \"citations\": \"660 N.W.2d 157\", \"volume\": \"660\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Court of Appeals\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:53:32.823648+00:00\", \"provenance\": \"CAP\", \"judges\": \"Considered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.\", \"parties\": \"Carla THOMPSON, Relator, v. COUNTY OF HENNEPIN, Respondent, Commissioner of Economic Security, Respondent.\", \"head_matter\": \"Carla THOMPSON, Relator, v. COUNTY OF HENNEPIN, Respondent, Commissioner of Economic Security, Respondent.\\nNo. C9-02-1544.\\nCourt of Appeals of Minnesota.\\nMay 6, 2003.\\nCarla R. Thompson, St. Paul, MN, pro se relator.\\nAmy Klobuchar, Hennepin County Attorney, Martin D. Munic, Assistant Henne-pin County Attorney, Minneapolis, MN, for respondent County of Hennepin.\\nM. Kate Chaffee, Lee B. Nelson, Minnesota Department of Economic Security, St. Paul, MN, for respondent commissioner.\\nConsidered and decided by SHUMAKER, Presiding Judge, RANDALL, Judge, and WRIGHT, Judge.\", \"word_count\": \"1399\", \"char_count\": \"9089\", \"text\": \"OPINION\\nGORDON W. SHUMAKER, Judge.\\nHennepin County Adult Services (HCAS) fired relator Carla Thompson for employment misconduct, alleging that she falsified rule 25 chemical-assessment forms.\\nThe Department of Economic Security (DES) denied Thompson's application for unemployment compensation. At two hearings before an unemployment law judge (ULJ), Thompson presented evidence that she had requested that material witnesses allegedly favorable to her be subpoenaed. Even though the witnesses did not attend the hearing, the ULJ found Thompson disqualified from unemployment benefits because of employment misconduct.\\nOn that record, the commissioner's representative upheld the ULJ's decision. Because it appears that Thompson was not accorded an opportunity to present evidence in her favor, we reverse and remand.\\nFACTS\\nBeginning in 1994, relator Carla Thompson was employed Ml time as a senior chemical-dependency counselor by HCAS and part time by the Salvation Army. For both employers she performed chemical-health assessments, known as rule 25s, for people who could not pay for chemical-treatment services. All rule 25 assessments are required to be submitted to HCAS for approval.\\nAfter finding a discrepancy in one of Thompson's rule 25 assessment reports, HCAS conducted a random sample of 40 of Thompson's assessments. In 32 reports, HCAS concluded that Thompson had stated that the clients were admitted into a detoxification program when there were no such admissions.\\nHCAS discharged Thompson on January 8, 2002, for violating the employer's policies as to conflicts of interest and accuracy of recording client information. The DES disqualified Thompson from eligibility for unemployment compensation because HCAS had discharged her for employment misconduct. She requested a hearing before a ULJ and asked the DES to subpoena her Salvation Army supervisor, June Sinnett.\\nSinnett did not appear for the hearing, and the ULJ continued the matter so that Thompson could subpoena both Sinnett and Lucy Quaintanee, her HCAS supervisor. Thompson represented that these witnesses would give evidence that Thompson had not violated HCAS policies.\\nOn the day of the second hearing, neither Sinnett nor Quaintanee appeared. Thompson told the ULJ that she had requested the DES to subpoena both. The ULJ then allowed Thompson to state what she believed Quaintance's testimony would be, but proceeded with the hearing without further inquiry into the witnesses' failure to attend. The ULJ found that Thompson had falsified records and thereby committed disqualifying employment misconduct.\\nThompson appealed to the DES commissioner. A commissioner's representative concluded that Thompson intentionally \\\"disregarded the standards the employer had a right to expect\\\" and therefore is disqualified from benefits because of employment misconduct. Thompson petitioned in this court for certiorari review.\\nISSUE\\nDid the commissioner's representative err when he failed to remand the case for the ULJ to determine the circumstances surrounding the issuance and service of the subpoenas for Thompson's material witnesses, who failed to appear and who allegedly would have provided favorable testimony?\\nANALYSIS\\nWe review the commissioner's representative's findings, not the unemployment law judge's findings. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn.1995). The current law places no burden of proof on either party. Minn.Stat. \\u00a7 268.105, subd. 1(b) (2002). The ULJ is required to fully develop the record. Minn. R. 3310.2921 (2001). The commissioner's representative on further appeal is required to evaluate the record based on evidence submitted at the hearing before the unemployment law judge. Minn. Minn.Stat. \\u00a7 268.105, subd. 2(c) (2002).\\nThe commissioner's representative's findings are a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn.1984). We must view the findings \\\"in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.\\\" White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983). The commissioner's representative determines \\\"whether an employee committed the specific act or acts alleged to be misconduct,\\\" which is a fact question. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). Although we exercise de novo review to determine whether an employee has engaged in employment misconduct, we do not reach the merits of this case. See Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).\\nThe DES has the power to issue subpoenas to compel witnesses to attend an unemployment-compensation hearing:\\n[T]he commissioner shall have power to issue subpoenas to compel the attendance of individuals and the production of documents and other personal property necessary in connection with the administration of the Minnesota unemployment insurance program and the job service.\\nMinn.Stat. \\u00a7 268.188(a) (2002). The legislature also provided the district court with the power to enforce the commissioner's subpoena. Minn.Stat. \\u00a7 268.188(c) (2002).\\nThe DES has also adopted its own rule regarding the subpoena process:\\nSubpoenas are available to a party to compel the attendance of witnesses, the production of documents or other exhibits upon a showing of necessity by the party applying for subpoenas. Subpoenas may be obtained by calling or writing the appellate office sufficiently in advance of the scheduled hearing to allow for the service of the subpoenas. The requesting party must identify the person or documents to be subpoenaed, the subject matter of the evidence requested, and their necessity. A request for a subpoena may be denied if the testimony or documents sought would be irrelevant, immaterial, or unduly cumulative or repetitious. A request for a subpoena may be renewed when a party finds an additional basis or need for evidence.\\nA party whose request for a subpoena has been denied may request at the time of the hearing that the referee who conducts the hearing issue the subpoena. If the referee grants the request for a subpoena, the referee may adjourn the hearing to allow a sufficient time for service of and compliance with the subpoena.\\nMinn. R. 3310.2914 (2001).\\nThompson argues that she was unable to present the testimony of witnesses who would have supported her contention that she did not commit employment misconduct because, although she requested subpoenas to compel the witnesses' attendance, they did not appear at the hearing.\\nThe record is scanty on the matter of the issuance and service of the subpoenas. It appears that Thompson did request one or more subpoenas and that the ULJ continued the first hearing to allow for the issuance, or perhaps the reissuance, of subpoenas. But we cannot ascertain from this limited record why the witnesses did not appear. We do not know whether Thompson's request for subpoenas was sufficiently specific or timely; whether the DES issued or declined to issue the subpoenas; how and by whom the subpoenas were to be served; what procedure the DES follows when a subpoenaed witness fails to appear; and what effect the witnesses' failure to testify had on the outcome of the case. The only conclusion we can reasonably draw from this incomplete record is that Thompson was not given a full opportunity to present her defense to the allegation of employment misconduct.\\nThe commissioner has the authority to remand cases to ULJs for additional evidence:\\nThe commissioner shall, on the basis of that evidence submitted at the hearing under subdivision 1, make findings of fact and decision, or remand the matter back to an unemployment law judge for the taking of additional evidence and the making of new findings and decision based on all the evidence.\\nMinn.Stat. \\u00a7 268.105, subd. 2(c) (2002) (emphasis added).\\nULJs have a duty to reasonably assist pro se parties with the presentation of the evidence and the proper development of the record. Minn. R. 8310.2921. Because this record should have alerted the commissioner's representative to a significant procedural defect regarding allegedly subpoenaed witnesses, a remand was appropriate and necessary to provide a full and fair hearing and to develop a complete record. It was error for the commissioner's representative not to have ordered a remand.\\nDECISION\\nThis matter is reversed and remanded to the commissioner for further proceedings not inconsistent with this opinion.\\nReversed and remanded.\"}"
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+"{\"id\": \"9409507\", \"name\": \"STATE of Minnesota, Respondent, v. Gerard J. COSTELLO, Petitioner, Appellant\", \"name_abbreviation\": \"State v. Costello\", \"decision_date\": \"2002-06-13\", \"docket_number\": \"No. C7-00-436\", \"first_page\": \"204\", \"last_page\": \"218\", \"citations\": \"646 N.W.2d 204\", \"volume\": \"646\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T17:46:11.375813+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Minnesota, Respondent, v. Gerard J. COSTELLO, Petitioner, Appellant.\", \"head_matter\": \"STATE of Minnesota, Respondent, v. Gerard J. COSTELLO, Petitioner, Appellant.\\nNo. C7-00-436.\\nSupreme Court of Minnesota.\\nJune 13, 2002.\\nTheodora Gaitas (#271810), Assistant State Public Defender, Minneapolis, MN, for Appellant.\\nMichael A. Hatch, Minnesota Attorney General, Eileen Wells, Mankato City Attorney, Christopher Cain (#223797), Assistant Mankato City Attorney, Mankato, MN, for Respondent.\", \"word_count\": \"7883\", \"char_count\": \"48854\", \"text\": \"OPINION\\nBLATZ, Chief Justice.\\nThis appeal arises from the conviction of appellant Gerard J. Costello for aggravated driving under, the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. We granted review to decide whether the district court erred by allowing jurors to question witnesses during Costello's trial. The court of appeals held that the practice of questioning by jurors is allowed under the district court's inherent trial-management power and affirmed the convictions. We reverse and remand to the district court for a new trial.\\nOn September 28, 1999, two Mankato police officers responded to reports of a disturbance in a boarding house. One of the officers, Officer Daniel Padilla, went to the back of the house to ensure that no one exited the house through the back door. As he came around the house, Officer Padilla observed appellant Costello backing a truck out of a parking space. He signaled for Costello to stop, and approached the vehicle to investigate. As he spoke with Costello, Officer Padilla noted an open, partially filled can of beer on the floor of the cab, and observed that CosteUo smehed of alcohol, his speech was slurred, and his eyes were bloodshot. When Officer PadUla asked for identification, Costello initiahy gave a false name and date of birth. After he was told that he would be charged for giving a false name to a peace officer, Costello gave his actual name and date of birth.\\nOfficer PadUla ran the correct identification through dispatch and discovered that Costello's Ucense had been cancelled as inimical to public safety. CosteUo was then arrested and ultimately charged with aggravated driving under the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. At trial, Costello asserted the defense of necessity, arguing that he was driving only because he was afraid of some other tenants in the boarding house who had threatened to assault him.\\nBefore trial began, the district court informed the parties of its intention to aUow jurors to question witnesses during the trial. Costello lodged a blanket objection to the practice, and the state said that it had \\\"[n]o objection to [Costello's] request.\\\" When the court noted, \\\"In other words, you join in [CosteUo's] request,\\\" the prosecutor merely responded, 'WeU, I don't want to be too cooperative The record reflects that the court noted the objection, but did not engage in any further discussion of the matter.\\nIn 'its preliminary instructions to the jury at CosteUo's trial, the court gave the following instruction:\\nQuestions by jurors. In this trial you Will be allowed to submit questions for the witnesses. This is a procedure that I'm applying on a case by case basis, so if you're in another trial, you may not be provided this opportunity. If you have a question for a particular witness, you must write it down. Unless your handwriting is very legible, please print. Don't sign the question. Signal the bailiff, who will bring your question to me. Now, keep in mind that your question must be submitted before the particular witness leaves the witness stand. In order to be sure that I'll not miss a question, before I excuse a witness I'll try to remember to make a general inquiry of you as to whether you have any questions. Sometimes I forget, so the final burden is on you if you have a question, to make sure that I see your hand. But I also want to stress that it's not necessary for you to ask any questions, and I've had more than one trial where not one question was asked by a juror. All right? So, just an opportunity, that's all it is. I'll apply the same rules of evidence to any of your questions that I apply to those asked by the attorneys. If I decide that a particular question cannot be asked, I'll tell you. You shouldn't speculate as to why your question was not asked. And if I decide not to ask a particular question, I hope you won't interpret it as some sort of an adverse reflection upon you or the person asking it. Like I say, it's an opportunity. You may avail yourself of it; a lot of folks don't. And if you do, then the same rules apply and I'll let you know.\\nDuring the course of the trial, jurors submitted at least five questions to the court. One question was redundant and one question was disallowed because of an objection by the state. Ultimately, the court posed three questions: one to Officer Padilla, one to Costello's girlfriend, and one to Costello himself.\\nThe first question was posed to Officer Padilla after re-cross examination by the defense. Jurors had submitted two questions during his testimony: \\\"When you first saw the pickup \\u2014 did it appear to be moving with any urgency, as if to get away in a hurry?\\\" and \\\"Did [Costello] appear eager [to] get out of there (the parking lot, etc.)?\\\" The court asked the first question:\\nQ: Officer, when you first saw the pickup, did it appear to be moving with any urgency as if to get away in a hurry?\\nA: No, it just appeared to be \\u2014 it just had completed, it looked like, back\\u2014 when I came around the corner of the house, the stalls are right in the back of the house. There's like three stalls, apparently, for parking at that house, and I just saw it backing, and then it stopped, and it was just going into gear to go forward, and I put my hand up. And no, it didn't seem to be moving in any urgency.\\nCostello was allowed to ask follow-up questions about whether the truck appeared to be in gear; the prosecutor declined to ask any follow-up questions.\\nThe second question was posed to Costello's girlfriend after cross examination by the state. Jurors had submitted two written questions during her testimony: \\\"Had either of the [other tenants] ever made any threats to you or [Costello] on any previous occasions?\\\" and \\\"Did you in any way inform [Costello] of [the other tenant's] threat to you and to him?\\\" The prosecutor objected to the question about previous threats, and the court sustained the objection, stating that the question \\\"gets a little too far afield on the issue at hand.\\\" The court did, however, ask the other question:\\nQ: I think you answered this question, but did you ever talk to Gerard Costello or warn him in regard to this threat from [other tenants]?\\nA: I warned him, yes.\\nSua sponte, the court followed the juror's question with another question:\\nQ: How did you do that?\\nA: Through his boss \\u215c .\\nQ: Oh, you talked to [his boss]?\\nA: Yeah.\\nAgain, Costello asked a follow-up question; the state declined to ask further questions.\\nThe third written juror question was posed to Costello after redirect examination by defense counsel: \\\"Mr. Costello, what was your intended destination when you attempted to leave the parking lot?\\\" The court asked:\\nQ: What was your intended destination when you were attempting to leave the parking lot before Officer Padilla stopped you?\\nA: I had told Padilla that I was only going to go down about a half a block and park the truck and walk from there.\\nNeither party asked any follow-up questions to the third juror question.\\nCostello was convicted of aggravated driving under the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. On appeal, the court of appeals affirmed the convictions, concluding that the practice of allowing juror questioning was within the district court's trial-management authority and would be reviewed on a case-by-case basis. State v. Costello, 620 N.W.2d 924, 927-28 (Minn.App.2001). Costello appealed to this court, arguing that juror questioning violated his right to a fair trial by an impartial jury under both the state and federal constitutions, and therefore resulted in reversible error.\\n' Costello's appeal turns on a legal question, which we review de novo. State v. Cheng, 623 N.W.2d 252, 257 (Minn.2001). While the issue of whether a district court can permit jurors to question witnesses during criminal trials is one of first impression, in State v. Crawford, 96 Minn. 95, 104 N.W. 822 (1905), this court analyzed the effect of a spontaneous juror question on \\\"the substantial rights of the defendant.\\\" Id. at 99, 104 N.W. at 823. While the conviction was upheld despite a question asked by a juror during trial, the facts in Crawford are distinguishable from the facts in this case both because the questioning in Crawford was not solicited by the court and the defendant in that case did not raise an objection. Id. at 100, 104 N.W. at 824. Moreover, the policies underlying the court's reasoning in Crawford \\u2014 suspicion that reversal based on technical court rules could cause \\\"peaceful and law-abiding citizens to become lawless, and to join in the barbarous method of punishing crime by a resort to the court of Judge Lynch\\\" \\u2014 are, thankfully, less apposite today. Id. at 102, 104 N.W. at 825. Therefore, the issues we must address are, first, whether. the district court's juror-questioning policy lay within its inherent trial-management authority; second, whether such a policy can be applied without upsetting the balance between the state and defendants that is guaranteed by an adversarial system; and, third, the effect of juror questioning on this particular defendant's case.\\nA district court clearly has the inherent power to \\\"govern[ ] that which is essential to [its] existence, dignity, and function,\\\" but that discretion is only properly exercised when it is a means to \\\"the disposition of individual cases 'conformable to the laws.' \\\" In re Clerk of Lyon County Courts' Compensation, 308 Minn. 172, 176-77, 241 N.W.2d 781, 784 (1976) (quoting Minn. Const, art. 1, \\u00a7 8). This court has not yet decided, however, whether allowing juror questioning is \\\"conformable to the laws.\\\"\\nWe turn then to the question of whether juror questioning undermines the adversarial system. The question is best analyzed against the historical background that gives us an appreciation of our current system of criminal justice. The process by which criminal matters have been handled has evolved from an inquisitorial system to an adversarial system. According to Blackstone, defendants charged at common law with capital crimes were not afforded counsel \\\"unless some point of law shall arise proper to be debated.\\\" 4 William Blackstone, Commentaries *356. Both the magistrate and the jurors were authorized to question witnesses, and very few rules governed the introduction of evidence. Stephen Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L.Rev. 497, 506 (1990). While most defendants could not retain counsel, challenge evidence, or even call witnesses who would be permitted to testify under oath, the common-law criminal judicial system emphasized law and order in a society that predated the evolution of the defense bar. Id. at 506-09.\\nOver time, British courts evolved toward a model characterized by greater respect for defendants' rights to fair procedure, more restrictive standards of evidence, and greater independence of the litigants. Although defense counsel were not allowed to take charge of felony defenses until 1696, they increasingly shaped the role of litigation and advocated changes that would benefit their clients. Id. at 508, 520-24. And while Blackstone describes a system characterized by questions from every participant in the action, these questions were asked increasingly by lawyers. Id. at 536-37. While defendants retained the power to question witnesses, they increasingly deferred to professional counsel. Id. at 557-64. Accordingly, the very manner in which evidence was proffered and accepted became shaped by defense counsel through the art of cross-examination and increasing emphasis on the quality of evidence, such as the creation of the hearsay rule. Id. at 539-42, 564-72. Thus, the American system developed from a model that was itself in the process of adopting the adversarial system we know today.\\nIn America, the spirit of the adversarial system became firmly rooted and constitutionally protected by the Sixth Amendment to the United States Constitution, which guarantees the right to counsel. Today, the modern adversarial system retains questioning by parties, but the role of jurors has evolved from active investigators to passive, neutral observers of the testimony elicited by the advocates for the state and the defendant. See Jeffrey S. Berkowitz, Breaking the Silence: Should Jurors be Allowed to Question Witnesses During Trial?, 44 Vand. L.Rev. 117, 124 (1991).\\nIn the late 1980s, however, some academics began proposing a return to the practice of juror questioning and the practice found its way into the courts. Supporters of such questioning tout its perceived advantages, including: (1) trials are a search for truth and juror questions facilitate that search; (2) jurors may need clarification in complex cases to understand the facts; (3) the jury is the finder of fact and these questions help the jury perform that function; (4) increased juror attentiveness; and (5) increased juror satisfaction. See, e.g., State v. Hays, 256 Kan. 48, 883 P.2d 1093, 1102 (1994); Berkowitz, 44 Vand. L.Rev. at 120-22; Steven D. Penrod & Larry Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol. Pub. Pol'y & L. 259, 274-76 (1997).\\nWhile the practice of juror questioning has not been without controversy, courts on the whole have not rejected it. Juror questioning is now supported by the American Bar Association and is allowed, in some form or another, in federal courts and in the majority of states. See generally Civil Trial Practice Standards 4, at 6 (1998); Kara Lundy, Note, Juror Questioning of Witnesses, 85 Minn. L.Rev.2007, 2021-22 n. 105 & 106 (2001).\\nThe apparent prevalence of juror questioning is misleading, however, because even when allowed, the practice is rarely encouraged. See, e.g., United States v. Thompson, 76 F.3d 442, 448 (2d Cir.1996) (stating \\\"we have strongly discouraged the practice except in extraordinary or compelling circumstances, because such questioning tends to impair juror neutrality during the trial and to encourage premature deliberations\\\"). Further, in addition to tepid support for juror questioning, many states place significant procedural limitations on juror questioning. See, e.g., Hays, 883 P.2d at 1102 (enumerating commonly recommended procedures). Therefore, it should be recognized that even though the practice is allowed in the majority of jurisdictions, most courts have been reluctant to unreservedly encourage it.\\nNonetheless, although support for juror questioning has been less than ardent, only four states have prohibited the practice completely in criminal trials. See Johnson v. State, 270 Ga. 234, 507 S.E.2d 737, 742 (1998) (\\\"Clearly, a juror is not permitted to question a witness.\\\"); Wharton v. State, 734 So.2d 985, 990 (Miss.1998) (holding that \\\"juror interrogation is no longer to be left to the discretion of the trial court, but rather is a practice that is condemned and outright forbidden by this Court\\\"); State v. Zima, 237 Neb. 952, 468 N.W.2d 377, 380 (1991) (noting \\\"[a] change in this sys- tern whereby jurors become advocates and possible antagonists of the witnesses does not on its face suggest a fairer or more reliable truth-seeking procedure;\\\" and \\\"the judicial process is better served by the time-honored practice of counsel eliciting evidence which is heard, evaluated, and acted upon by jurors who have no investment in obtaining answers to questions they have posed\\\"); Morrison v. State, 845 5.W.2d 882, 888-89 (Tex.Crim.App.1992). Finally, we note that seven states have apparently never addressed this issue. Lundy, 85 Minn. L.Rev. at 2022 n. 109.\\nThus, like the jurisdictions that have decided the issue before us, in this appeal we too must decide whether allowing jurors to question witnesses enhances or detracts from the fair administration of justice in Minnesota. We have jealously guarded the role of juries in our criminal justice system, and many cases reflect our concern with maintaining the impartiality and independence of the jury. In State v. Porter, 526 N.W.2d 359 (Minn.1995), we characterized juror independence as the \\\"heart of the jury system,\\\" and reversed a conviction when the prosecutor in closing argument attempted to impinge on juror independence by playing to jurors' emotions and fears. Id. at 364, 366. Similarly, we have stated that arguments that ask jurors to put themselves in the shoes of the victim are generally improper, State v. Johnson, 324 N.W.2d 199, 202 (Minn.1982), and we have condemned arguments that invite the jury to speculate about the facts, State v. Thompson, 578 N.W.2d 734, 742 (Minn.1998). Prosecutors also may not distort the burden of proof to the jury. State v. Thaggard, 527 N.W.2d 804, 812 (Minn.1995). Indeed, we have condemned a prosecutor's suggestion to the jury that its role was to determine if the evidence was sufficient to convict rather than whether the state had proved its case beyond a reasonable doubt \\u2014 -a distinction that laypeople may find subtle. Id. Each of these cases reflects a deep concern that jurors maintain independence from those involved in the case, objectivity with respect to the evidence, and a clear understanding of their role as deciding whether the state has met its burden of proof. Juror questioning must be evaluated in light of its effect on these principles.\\nTo maintain independence and objectivity, it is a tenet of our criminal justice system that adjudicators should \\\"postpone or suspend the final formation of opinion until the parties have 'had their day in court' and have presented all the information that they consider relevant in the context of adjudication.\\\" B\\u00f3stjan M. Zupancic, Truth and Impartiality in Criminal Process, 7 J. Contemp. L. 39, 70 (1982). This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence. Thus, in Minnesota, jurors are instructed: \\\"You should keep an open mind about all the evidence until the end of the trial, until you have heard the final arguments of the attorneys, and until I have instructed you in the law.\\\" 10 Minn. Dist. Judges Ass'n, Minnesota Practice \\u2014 Jury Instruction Guides, Criminal, CRIMJIG 1.02 (4th ed.1999). But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party's presentation of the case before the time to deliberate has arrived.\\nTo the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form \\\"at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.\\\" Zupancic, 7 J. Contemp. L. at 70. Therefore, with such encouragement, there is an increased risk that jurors will \\\"inevitably draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case.\\\" Morrison, 845 S.W.2d at 887. While the state argues that it is \\\"human nature to test one's hypothesis,\\\" the traditional system's procedures and instructions have been crafted to limit such activities until both sides have presented their arguments and the jury has been instructed on the relevant law. As the Texas Court of Criminal Appeals noted in Morrison, \\\"Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability.\\\" 845 S.W.2d at 886 (citing United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, J., concurring)).\\nIn addition to our concern about the impact that juror questioning will have on juror impartiality, we also are concerned that the practice may affect the burden of proof and production. Due process requires that the state prove beyond a reasonable doubt the existence of every element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Clausen, 493 N.W.2d 113, 116 (Minn.1992). A defendant's due process rights are violated if the burden to disprove the existence of any element of the crime charged is shifted to the defendant. Mullaney v. Wilbur, 421 U.S. 684, 701-02, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995); see also Williams v. Florida, 399 U.S. 78, 112, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Black, J., concurring in part and dissenting in part) (stating a defendant \\\"has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources\\\"). Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden.\\nThe assistance provided to the state by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when \\u2014 as the state approvingly exclaimed in its brief \\u2014 \\\"evidence could be revealed by a juror question!\\\" Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors. While surveys have indicated that assistance to the prosecution is not a common occurrence, Penrod & Heuer, 3 Psychol. Pub. Pol'y & L. at 278-79, that is, in fact, what occurred here. At oral argument, counsel for the state \\u2014 the prosecutor in Costello's trial \\u2014 described his experience with juror questions:\\nCounsel: I was ambivalent one way or the other. I said, \\\"This is a slam-dunk case. We're not going to have anything to worry about.\\\" And then when I saw the very first question, which was \\\"Was the Defendant attempting to leave or showing \\u2014 indicating that he was leaving with some form of urgency,\\\" right away, I thought, 'They're taking his affirmative defense \\u2014 uh, defense, very seriously, and now I have to respond to it.' So, from my standpoint it helped me and I think it helped the defense attorney because now he knows exactly that they're seriously considering this even despite the fact that he deliberately lied about his identity, now they're thinking\\u2014\\nCourt: Counsel, isn't that a problem? \\u215c You recognize that the jury was taking something either seriously or not seriously, and you respond to it as an advocate, it seems to me that that's changed the dynamic of the trial right there.\\nCounsel: Oh, it has, it has. The State's position on this, your Honor, is that\\u2014 \\u215d * \\u215c *\\nCourt: Maybe the prosecutor was asleep at the switch and was going to leave some essential element out. All of a sudden, you have the jury participating or helping the state more than the defendant [or] in this context, [help] the state meet its burden.\\nCounsel: You could look it that way. It's the state's position that fifty percent of the time it's going to assist the defense though, as well. It does change the dynamics.\\nThe state's candid admission that the jurors' questions convinced him to respond to the defendant's affirmative defense highlights how the practice of juror questioning can affect the parties' meeting the burden of proof and forces us to acknowledge that by allowing questioning, the role of the jury is changed. Whether one side is benefited more than the other is of secondary concern. Our concern is not in equalizing the number of notches in the belts of advocates but, rather, whether the jury is being lured into a role that is inconsistent with its responsibility to be an impartial arbiter of justice. As we have previously said:\\n[T]he jury's role is not to enforce the law or teach defendants lessons or make statements to the public or to \\\"let the word go forth\\\"; its role is limited to deciding dispassionately whether the state has met its burden in the case at hand of proving the defendant guilty beyond a reasonable doubt.\\nSalitros, 499 N.W.2d at 819. Because the practice of juror questioning can actively assist the state in meeting its burden, the jurors' role may be compromised.\\nIn sum, our concern about allowing jurors to question witnesses is two-fold. First, the opportunity to pose questions may prevent jurors from keeping an open mind until all the evidence has been presented. Second, the opportunity to pose questions may upset the burden of production and persuasion in a criminal trial. We believe the passive-juror system minimizes these problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from affecting the production of evidence.\\nNonetheless, we recognize that the primary reason advanced for juror questioning is that the practice enhances the factfinding function. Any process that enhances the factfinding ability of the jury should not be easily dismissed, as factfinding remains a primary function of the criminal justice system. However, the truth-finding goal is balanced against the rights of the accused and concerns about individual freedom. As Justice Black noted, \\\"A criminal trial is in part a search for truth. But it is also a system designed to protect 'freedom' by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.\\\" Williams, 399 U.S. at 113, 90 S.Ct. 1893 (concurring in part and dissenting in part). Specifically in the context of juror questioning, we agree with the Texas Court of Criminal Appeals, which noted in Morrison, \\\"Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.\\\" 845 S.W.2d at 884. Therefore, we conclude that maintaining the neutral role of jurors in an adversarial system outweighs whatever enhancement to the truthfinding function that juror questioning allows.\\nOur grave concerns regarding the effect juror questioning has on the rights of the parties are not abated by research on the effects of juror questioning on the truth-finding mission. Two surveys \\u2014 one national and one based in Wisconsin\\u2014 reached the same conclusion: While jurors are quite satisfied with their jury experiences, this assessment \\\"was not influenced by the presence or absence of juror questions.\\\" Penrod & Heuer, 3 Psychol. Pub. Pol'y & L. at 276. Further, survey questions revealed that \\\"jurors' satisfaction with their verdict and their attitudes toward jury service were unaffected by their opportunity to ask questions.\\\" Id.; see also Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials Through Note Taking and Question Asking, 79 Judicature 260, 256-61 (1996) (discussing the Wisconsin survey).\\nFinally, it is worth noting that the state advances few compelling arguments in support of taking such a risk with our traditional jury system. The state did not oppose Costello's objection at trial, and only defended the practice on appeal. In its briefs to this court, the state points to only the possibility that juror questioning \\\"provide[s] information and [insight] to juror concerns.\\\" In this way, the state argues, \\\"[b]oth the prosecution and defense can address a juror's concerns while the case is evolving\\\" \\u2014 an argument that underscores the fact that juror questioning can impact, in a very real way, the adversarial nature of our criminal justice system. The less-than \\u2014 enthusiastic tolerance of juror questioning by many of our sister states, and the limitations created in an attempt to harness the dangers implicit in such questioning, do not erase our doubts about the assertion that juror questioning is simply a matter of trial management. As Judge Lay implied in a concurring opinion, juror questioning goes to the very heart of our adversarial system of justice:\\nThe fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury as a neutral factfinder in the adversary process. Those who doubt the value of the adversary system or who question its continuance will not object to distortion of the jury's role. However, as long as we adhere to an adversary system of justice, the neutrality and objectivity of the juror must be sacrosanct.\\nJohnson, 892 F.2d at 718 (Lay, J., concurring).\\nWhile the debate over juror questioning will undoubtedly continue, we are persuaded that the exact effect of such questioning is not quantifiable, and the inherent risks so significant that the practice must be proscribed. See Morrison, 845 S.W.2d at 886-89; Zima, 468 N.W.2d at 379-80. Therefore, to protect the neutrality and impartiality of jurors \\u2014 both critical to the fair administration of justice \\u2014 we exercise our supervisory power and hold that no court shall permit jurors to question witnesses in a criminal trial. See Scales, 518 N.W.2d at 592 (recognizing supervisory power over criminal trials \\\"to insure the fair administration of justice\\\" (citing Borst, 278 Minn. at 397,154 N.W.2d at 894)); see also VanWagner, 504 N.W.2d at 750 (stating that we exercise our super- visory power to protect the \\\"integrity of the factfinding process itself').\\nFinally, having determined that the district court erred in allowing juror questioning, the state urges this court to adopt a harmless error standard, arguing that even if the district court erred in allowing questions, neither the procedure nor the particular questions posed in this case affected the verdict, and therefore a new trial is not warranted. See State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (\\\"If the verdict rendered is 'surely unattributable' to the error, then the error is harmless beyond a reasonable doubt and the conviction stands.\\\"). We disagree. Because a court rule allowing juror questions can affect the outcome of a criminal case in subtle ways that go directly to the neutrality and impartiality of a juror, the error here must be analyzed differently than in cases where jurors spontaneously ask to question witnesses. Cf. Crawford, 96 Minn. at 103, 104 N.W. at 825. In similarly rejecting a harmless error standard of review, the Texas Court of Criminal Appeals noted the difficulty of discerning the effect of jury questioning on a guilty verdict:\\nWhere the role of the jury as a neutral fact-finding body is significantly modified, the underpinnings of our system, designed to ensure trial by a fair and impartial jury are likewise compromised. A determination of harm in this context is virtually impossible. Accordingly, we hold that the practice of permitting jurors to become active participants in the solicitation of evidence by questioning witnesses is not subject to a harm analysis.\\nMorrison, 845 S.W.2d at 889.\\nThe rationale in Morrison illuminates why harmless error analysis is unsuited to this type of error: because juror questions may imperceptibly affect the production of evidence, the presentation of the state's case, and the jury's deliberations, it is impossible for an appellate court to infer from a record that the verdict rendered is \\\"surely unattributable\\\" to the error. See Juarez, 572 N.W.2d at 292. Juror questioning leads to \\\"unfairness of a subtle and psychological nature that is difficult to identify with particularity.\\\" Johnson, 892 F.2d at 711 n. 1 (Lay, J., concurring). Thus, harmless error analysis is inappropriate not because of the magnitude of the error, but because it is impossible to quantify the effects of the error.\\nAccordingly, as an exercise of our supervisory power, we hold that no court shall permit juror questioning during criminal trials. Further, because the effect of such questioning is not quantifiable and the appellant raised a timely objection to the district court's practice, thereby preserving the issue for appeal, the defendant must be given a new trial. This holding applies both to the instant case and prospectively to similar cases where the issue has been preserved.\\nReversed and remanded to the district court for a new trial.\\n. The court records contain evidence of an additional two written questions that were submitted by tire jurors but not asked by the court, although the record is not clear whether the questions were objected to by counsel or rejected, sua sponte, by the judge: \\\"Mr. Costello \\u2014 were you carrying anything from the house to the pick up? (I'm wondering where the opened beer can came from.)\\\" and \\\"Was the Budweiser beer the 'Bush' \\\\sic ] brand of Budweiser?\\\"\\n. This is not to suggest that every district court procedure on which this court has not ruled is in question. Many district court procedures are properly left to the discretion of the district court. The particular procedure at issue here has been the subject of debate and courts have reached different conclusions on its permissibility.\\n.Blackstone wrote, \\\"[T]he occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories .\\\" 3 Blackstone, Commentaries *373.\\n.The right to assistance of counsel is so fundamental to the American system of justice that the Sixth Amendment has been interpreted to guarantee the right to counsel for indigent defendants who face incarceration. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); see also, e.g., State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967) (exercising supervisory power to require the appointment of counsel to represent indigent misdemeanor defendants).\\n. To alleviate the serious concern surrounding this issue, many states have adopted procedural safeguards. For example, in a full analysis of the issue, the Kansas Supreme Court noted the following commonly recommended procedures: (1) the court should inform jurors at the beginning of the trial that they will be allowed to question the witnesses; (2) the court should not invite questions until a juror first asks for clarification; (3) questions should be allowed only on important points or for clarification; (4) questions should be submitted in writing; (5) jurors should not question witnesses directly; (6) questions should be submitted by individual jurors without discussion among the other jurors; (7) counsel should be able to make objections outside the presence of jurors; (8) the court should rule on objections and relevance before asking the questions; (9) the court should instruct the jury that no inference should be drawn if a submitted question is not asked; (10) only the court should ask the questions, although counsel may ask the question if there are no objections; and (11) counsel should have the opportunity to ask follow-up questions. Hays, 883 P.2d at 1100.\\n. As we recognized in State v. Salitros, 499 N.W.2d 815 (Minn.1993), improper arguments to the jury can and are made by both the state and the defense, and the fact that most of the case law in this area involves misconduct by prosecutors simply reflects that, generally speaking, only the defendant can appeal in a criminal case. Id. at 817.\\n.Because the Texas Court of' Criminal Appeals has final appellate jurisdiction over criminal cases in the state of Texas, Tex. Const. Art. 5, \\u00a7 5(a), its opinion is similarly persuasive as any other state court of final appellate review. See Thompson v. State, 384 N.W.2d 461, 463 (Minn.1986) (citing the Texas Court of Criminal Appeals for one interpretation of a United States Supreme Court case).\\n. In this case, the jurors' questions went to Costello's affirmative defense, but it is not difficult to imagine a scenario where juror questions help prove the state's case.\\n. In Morrison, for example, the defendant was accused of murdering the victim in a fight that broke out during a drug transaction. 845 S.W.2d at 883 n. 2. At trial, a detective testified about blood he found in the victim's house. Id. A juror submitted a question about whether any of the blood belonged to the defendant. Id. Defense counsel objected on hearsay grounds, and the question was never asked; but the court did allow the state to call the witness back to the stand to testify that the defendant did not have any visible wounds, scratches, or injuries. Id.\\n. Apparently the dissent is not bothered by the occasional shifting of burdens as long as the judge follows a \\\"safeguards\\\" protocol. This approach is troubling as it elevates form over substance and ignores the substance of the majority's concern. Protocols, as used in this very case, do not provide sufficient protection against the serious danger of jurors stepping into the important, albeit decidedly different, roles of the parties. Further, the protocols set forth by the dissent provide no guidance as to when questioning should be allowed. Indeed, the dissent would allow juror questioning in every trial if a trial judge would so allow \\u2014 even though the dissent too believes that such \\\"questioning should be the exception.\\\"\\n. Thus, some kinds of \\\"truth\\\" are kept from the factfinder. State v. VanWagner, 504 N.W.2d 746, 750 (Minn.1993) (noting that hearsay and Spreigl evidence are sometimes properly excluded despite impeding truth-finding). We stated in VanWagner that \\\"[t]he prosecutor is bound to seek that truth which is governed, by the rules of evidence.\\\" 504 N.W.2d at 750 (emphasis added); see also Minn. R. Evid. 403 (allowing the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of judicial efficiency). Similarly, the privilege against self-incrimination impedes the truth-finding function of criminal courts. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). And prophylactic rules to protect defendants' rights may inhibit them from speaking freely and exposing the truth. See State v. Scales, 518 N.W.2d 587, 592 (Minn.1994) (requiring peace officers to record interrogations). Additionally, privileges limit the production of evidence that could be helpful to a jury in determining the \\\"truth.\\\" See, e.g., Kobluk v. Univ. of Minnesota, 574 N.W.2d 436, 440 (Minn.1998) (attorney-client privilege); In re D.M.C., 331 N.W.2d 236, 238 (Minn.1983) (medical privilege); State v. Clark, 296 N.W.2d 372, 376 (Minn.1980) (marital-communications privilege); In re Swenson, 183 Minn. 602, 603, 237 N.W. 589, 590 (1931) (clergy privilege).\\n. After Costello stated he did not want the jurors to ask questions and placed a blanket objection on the record, the district court asked the state if it had \\\"[a]ny comments on that issue?\\\" The state replied, \\\"No objection to [Costello's] request, your Honor.\\\"\\n. In large part, the dissent bases its support of allowing juror questioning on the raw numbers \\u2014 that is, the fact that a majority of appellate courts that have addressed the issue have not barred district courts from allowing juror questioning. This narrow focus ignores the fact that while many appellate courts have begrudgingly allowed questioning in the name of discretion, the vast majority of trial judges do not allow the practice. And for good reason.\\n.Because juror questioning of witnesses is proscribed under our supervisory power, we need not reach Costello's constitutional claims.\"}"
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+"{\"id\": \"9414214\", \"name\": \"In re Petition for DISCIPLINARY ACTION AGAINST Michael J. HOOVER, an Attorney at Law of the State of Minnesota\", \"name_abbreviation\": \"In re Disciplinary Action Against Hoover\", \"decision_date\": \"2002-06-11\", \"docket_number\": \"No. C7-02-439\", \"first_page\": \"85\", \"last_page\": \"86\", \"citations\": \"645 N.W.2d 85\", \"volume\": \"645\", \"reporter\": \"North Western Reporter 2d\", \"court\": \"Minnesota Supreme Court\", \"jurisdiction\": \"Minnesota\", \"last_updated\": \"2021-08-10T21:59:37.746877+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Petition for DISCIPLINARY ACTION AGAINST Michael J. HOOVER, an Attorney at Law of the State of Minnesota.\", \"head_matter\": \"In re Petition for DISCIPLINARY ACTION AGAINST Michael J. HOOVER, an Attorney at Law of the State of Minnesota.\\nNo. C7-02-439.\\nSupreme Court of Minnesota.\\nJune 11, 2002.\", \"word_count\": \"496\", \"char_count\": \"3275\", \"text\": \"ORDER\\nThe Director of the Office of Lawyers Professional Responsibility has filed a petition and supplementary petition for disciplinary action alleging that respondent Michael J. Hoover has committed unprofessional conduct warranting public discipline, namely, improperly using his trust account as a business/personal account, failing to cooperate fully with the Director's investigation and failing to prepare proper fee agreements, in violation of Minn. R. Prof. Conduct 1.15(a) and 8.1(a)(3) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). See also In re Lochow, 469 N.W.2d 91, 98-99 (Minn.1991); In re Cartwright, 282 N.W.2d 548, 552 (Minn.1979).\\nRespondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand, payment of $900 in costs and $70 in disbursements under Rule 24, RLPR, and unsupervised probation for a period of two years subject to the following conditions:\\na. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with the probation and promptly respond to the Director's correspondence by the due date. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct that may come to the Director's attention. Upon the Director's request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of the probation.\\nb. Respondent shall abide by the Minnesota Rules of Professional Conduct.\\nc.Respondent shall (i) deposit all earned fees paid pursuant to hourly billing statements into a business or other non-trust account; (ii) make all disbursements to his own personal and business creditors from a business or other non-trust account; (iii) in accordance with LPRB Opinion No. 15, enter into proper fee agreements with all clients from whom he receives non-refundable fee retainers or advances; (iv) maintain law office and trust account books and records in compliance with [Minn. R. Prof. Conduct 1.15], and LPRB Opinion No. 9; and (v) comply with all other business and trust account requirements. Within 30 days of the Court's order, respondent shall make available to the Director all books and records and other materials the Director may request to verify respondent's compliance with these requirements. Thereafter, respondent shall make such materials available to the Director at such intervals as the Director deems necessary to verify compliance.\\nThis court has independently reviewed the file and approves the jointly recommended disposition.\\nBased upon all the files, records and proceedings herein,\\nIT IS HEREBY ORDERED that respondent Michael J. Hoover is publicly reprimanded and placed on unsupervised probation for two years subject to the agreed-upon conditions set forth above. Respondent shall pay $970 in costs and disbursements under Rule 24, RLPR.\\nBY THE COURT:\\n/s/ Paul H. Anderson Associate Justice\"}"
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