2. SAME-APPEAL TO JURY-Justice oF THE PEACE-CONSTITUTIONAL LAW.

The provisions of Gen. St. 1878, c. 13, providing for appeal to a jury, summoned by a justice of the peace, from the determination of town supervisors laying out, or refusing to lay out, a highway, are not in conflict with section 8, art. 6, of the state

constitution.

3. SAME-EMINENT DOMAIN-LEGISLATIVE POWER.

The propriety of the exercise of the right of eminent domain is a political or legislative and not a judicial question; and the manner of its exercise by the legislature, except as to the matter of compensation, is unrestricted.1

4. SAME-CIVIL ACTION-CONSTITUTIONAL LAW.

They are not bound to submit it to a judicial tribunal, but may exercise it themselves, or delegate it to a jury commission, or any other body they see fit. Condemnatory proceedings in the exercise of the right, and the assessment of damages incident to it, are not civil actions or causes within the meaning of the constitution, but special proceedings, only quasi judicial in their nature. Chapter 43, Gen. Laws 1887, is not in conflict with section 13, art. 1, of the constitution of the state. (Syllabus by the Court.)

Appeal from district court, Ramsey county; BRILL, Judge.
C. D. & Thos. D. O'Brien, for appellants.

J. Horn, for respondent.

O'Brien & O'Brien and Henry

MITCHELL, J. In 1885 the relator and others petitioned the supervisors of these two towns to lay out a highway on the town line pursuant to Gen. St. 1878, c. 13, § 42. Upon the hearing, the supervisors denied the prayer of the petition, and refused to lay out the road, from which determination the relator appealed, pursuant to the provisions of section 59 of the same chapter. The jury summoned by the justice of the peace reversed the decision of the supervisors, and ordered the road laid out. The supervisors still refusing to lay out the road, the relator obtained from the district court an alternative writ of mandamus against them, which, upon the hearing, was made peremptory, commanding the supervisors to proceed and lay out the road. From the order denying a new trial the supervisors appeal. Only three points are made by the appellants: (1) The first is that the original petition for the road was insufficient to confer jurisdiction on the supervisors, for the reason that it did not properly describe the line of the proposed highway. The description is: "A new road four rods wide on the line between said two towns [White Bear and Mounds View.] Beginning at a point where the section line between section eighteen, (18,) township thirty, (30,) of range twenty-two, (22,) in said town of White Bear, and section thirteen, (13,) in said town of Mounds View, in township thirty, (30,) of range twenty-three, (23,) intersects the White Bear, Minneapolis and Mounds View road, so called, and running thence north on said line between said sections eighteen (18) and thirteen, (13,) to Pleasant lake." For the purposes of information to those residing in and familiar with the neighborhood, it would be difficult to suggest a better description than this. It is not pretended that the road and lake referred to do not exist, or that the points of beginning and termination of the proposed highway cannot be readily ascertained. The description is perfectly good.

2. The second point is that the statute providing for appeals in such cases to justices of the peace, or, more properly speaking, to a jury summoned by a justice, is unconstitutional. Gen. St. 1878, c. 13, §§ 59-61. We understand appellants' contention to be that it is in conflict with section 8, art. 6, of the state constitution, relating to courts of justices of the peace, which provides that no justice of the peace shall have jurisdiction of any civil cause where the amount in controversy exceeds $100, * nor in any cause involving the

'That the state has no right to take private property for any but a public use, and as to what are such public uses as will justify the exercise of the right of eminent domain, see Johnston's Appeal, (Pa.) 7 Atl. Rep. 167; Heick v. Voight, (Ind.) 11 N. E. Rep. 306, and note; Sholl v. Coal Co., (Ill.) 10 N. E. Rep. 199; In re Railroad Co., (N. Y.) 8 N. E. Rep. 548, and note; Mining Co. v. Dewitt, (Cal.) 15 Pac. Rep. 74; Cherokee Nation v. Railroad Co., 33 Fed. Rep. 900; Forney v. Railroad Co., (Neb.) 36 N. W. Rep. 806.

title to real estate. We think this contention is founded upon an entire misapprehension of the nature of these proceedings, and of the functions performed by the justice in such appeals. Condemnatory proceedings in the exercise of the right of eminent domain are not civil actions or causes within the meaning of the constitution, but special proceedings, only quasi judicial in their nature, whether conducted by judicial or non-judicial officers or tribunals. The propriety of the exercise of the right of eminent domain is a political or legislative and not a judicial question. The manner of the exercise of this right is, except as to compensation, unrestricted by the constitution, and addresses itself to the legislature as a question of policy, propriety, or fitness, rather than of power. They are under no obligation to submit the question to a judicial tribunal, but inay determine it themselves, or delegate it to a municipal corporation, to a commission, or to any other body or tribunal they see fit. Neither are they bound to submit the question of compensation incident to the exercise of the right of eminent domain to a judicial tribunal. Provided it be an impartial tribunal, and the property owner has an opportunity to be heard before it, the legislature may refer the matter for determination to a jury, a court, a commission, or any other body it many designate. By the statute under consideration the question of the propriety or expediency of exercising the right of eminent domain, that is, of laying out a proposed road, and of the compensation incident to the exercise of the right, is, in the first instance, devolved upon the town supervisors, and, upon appeal from their decision, to six men, called a "jury," summoned in the manner prescribed by the statute. The appeal is really to the jury, and not to the justice, who acts, not strictly judicially, but as a sort of moderator and clerk, whose duties are only executive and clerical. He is merely the agency through whom the respondent is notified, the jury summoned, and their decision transmitted to the town clerk. The jury cannot entertain or consider any objections to the regularity of the anterior proceedings. This can only be done on certiorari to a court of competent jurisdiction. See Commissioners v. Judges, 13 Wend. 432. They can only entertain and determine the appeal on its merits,-that is, as to the necessity and propriety of laying out the road, and the amount of damages to be paid to the appellant, if that question is also included in the appeal; the amount to be awarded, however, being limited to $100, in analogy to the limit of the jurisdiction of justices of the peace in civil actions. reference of such questions as the propriety of laying out of a highway to such a tribunal on appeal from the decision of the supervisors of the town is a rather novel practice of doubtful policy; but, if the legislature see fit to do so, we can see no possible reason why they have not the power. The technical point is made that the sum issued by the justice was directed to the supervisors personally, and not in their representative capacity. If there was anything in this point, it was waived by the supervisors appearing generally, and contesting the appeal on its merits.

The

3. The last point made is that the statute governing these proceedings is rendered unconstitutional by reason of the amendment made by chapter 43, Gen. Laws, 1887. The point seems to be that payment of the damages is to be made by the persons petitioning for the road; and, as they may not be pecuniarily responsible, the result might be a taking of private property without just compensation being first paid or secured. It is sufficient answer to this

to say that, if this statute would apply to this case, (which does not appear,) it does not attempt to take the property before the compensation is paid. It merely makes the petitioners for the road, instead of the town, the paymaster. Until the compensation is paid or secured the property cannot be taken, notwithstanding the condemnation proceedings. Order affirmed.

END OF VOLUME 38.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

ACCORD AND SATISFAC-

TION.

See, also, Payment.

Effect of receipts.

not thereby debarred from seeking to recover
her interest in the property so bought by him.
-Bitzer v. Bobo, (Minn.) 609.

Adoption.

In an action on an account, defendant tes- Heirs at law, see Wills, 8.
tified that there was a settlement of all ac-
counts between him and plaintiff, and intro-
duced a receipt in full after the date of the

Adverse Possession.

account sued on. Plaintiff contradicted de- See Surface Water, 2.

fendant; and said that, if she signed such a
receipt, she did not know, when she signed it,
that it was meant for a settlement. The court
instructed that, if such a settlement had been

Affidavit.

made, it would be presumed to be of all ac- In attachment, see Attachment, 1, 2; Logs

counts to its date, but that receipts were not
conclusive evidence, and might be contra-
dicted. Held. that a verdict for plaintiff
would not be set aside as contrary to such in-

and Logging, 4-7.

Agency.

struction.-Thompson v. Maxwell, (Iowa,) 125. See Principal and Agent.

Accounting.

See Equity, 7, 8; Executors and Adminis-
trators, 1-6; Guardian and Ward, 1.

Acknowledgment.

Competency of witness, see Deed, 1.

Amendment.

Of information, see Indictment and Informa-
tion, 3.

judgment, see Judgment, 11.

Animals.

Of chattel mortgage, see Chattel Mort- Stock killing cases, see Railroad Companies,
gages, 5.

ACTION.

See Limitation of Actions; Parties; Plead-
ing; Practice in Civil Cases; Venue in
Civil Cases; Writs.

Misjoinder, see Creditors' Bill.

On contracts, see Contracts, 11, 12.

policies, see Insurance, 5.

promissory notes, see Negotiable Instru-

ments, 4-6.

Particular forms of action, see Assault and
Battery; Assumpsit; Breach of Marriage
Promise; Creditors' Bill; Deceit; Divorce;
False Imprisonment; Injunction; Libel
and Slander; Malicious Prosecution; Neg-
ligence; Partition; Quieting Title; Replev
in; Specific Performance; Trespass; Tro-
ver and Conversion.

Election.

Where plaintiff files a claim for money in-
vested in real estate by her guardian, against
his estate, but discontinues the proceeding
before any action has been had upon it, she is
v.38N.W.-59

19-24.

APPEAL.

I. APPELLATE JURISDICTION.

II. REQUISITES.

III. PRACTICE.
IV. REVIEW.
V. DECISION.

See, also, Certiorari; Error, Writ of; Excep-
tions, Bill of; New Trial.

Filing pleadings, see Practice in Civil
Cases, 1.

From decree on accounting, see Executors
and Administrators, 1, 2.
In criminal cases, see Criminal Law, 33-48.
I. APPELLATE JURISDICTION.

Appealable orders.

1. In Wisconsin an appeal does not lie from
an order adjudging defendant in criminal con-
tempt for violation of an injunction.-Town of
Williamstown v. Darge, (Wis.) 187.

2. No appeal lies to this court from the find-
(929)

3207, providing that an assignment of error
must, "in a way as specific as the case will
allow, point out the very error objected to
Among several points in a demurrer
it must designate which is relied on as an er-
ror, and the court will only regard errors
ness."-Town of Waukon v. Strouse, (Iowa,)
which are assigned with the required exact-

Records.

3. Where it appears from the pleadings that
defendant, subsequent to the filing of plain-408.
tiff's petition, claiming $125, made a tender of
$25, an appeal will be considered, without ref-
erence to the certificate of the trial judge, re-
quired by Code Iowa, § 3173, providing that no
appeal shall lie where the amount in contro-
versy, as shown by the pleadings, does not ex-
ceed $100, without the certificate of the trial
judge that the cause involves a question of
law. Griffin v. Harriman, (Iowa,) 139.

II. REQUISITES.

Certificate of judge.

10. Misconduct of counsel in argument to
the jury must be presented on appeal by a
proper certificate or bill of exceptions signed
by the court, and not by affidavit.-Fowler v.
Town of Strawberry Hill, (Iowa,) 521.

11. Where an abstract, on appeal, purports
to contain all the evidence of the opposing
party, but shows on its face that the claim is
not correct, the questions of fact in the cause
are not open to review.-Hart v. Hart, (Iowa)
375.

12. On appeal, evidence is not properly of
record when the bill of exceptions by which
it is sought to be preserved refers to the evi-
dence to be inserted as follows: "Here insert
plaintiff's evidence;" "Here insert evidence
of defendant, "-such mere general directions
not being sufficient to identify the evidence,
nor to indicate the source from which it is to
P. R. Co., (Iowa,) 425.
be obtained.-Wooster v. Chicago, M. & St.

4. Under Code Iowa, § 3173, providing that
the trial judge, in case of an appeal, where the
amount involved does not exceed $100, shall
certify that the cause involves the determina-
tion of a question of law upon which the opin-
ion of the supreme court is desired, the certifi-
cate is what confers jurisdiction; and, if it
fails to aver that the cause involved the de-
termination of certain questions of law, on
which the court should pass, no jurisdiction
will be acquired, although the questions in-
volved in the cause could be determined from ted upon packages of depositions flied at cer-
the pleadings or the evidence.-Beach v. Don-tain dates does not sufficiently identify the
ovan, (Iowa,) 404.

Notice.

5. Under Code Iowa, §§ 3178, 3179, an appeal
to the supreme court can be taken only by
serving a written notice upon the adverse
party or his attorney, and upon the clerk of
the court below; and where the record fails
to show such service the supreme court has
no jurisdiction.-Michel v. Michel, (Iowa,) 422.
Bond.

6. In an action of forcible entry and detain-
er, where, after judgment, a party desires to
appeal, and a bond is presented to such justice
in proper form, signed by at least two suffi-
cient sureties, it is the duty of the justice to
approve the same.-State v. Clark, (Neb.) 832.

13. A certificate that the cause was submit-

evidence to allow it to be considered on ap-
peal, under Code Iowa 1880, § 2742, providing
that in equitable actions all the evidence shall
be certified, and the cause, on appeal, be tried
anew.-Runge v. Hahn, (Iowa,) 359.

14. Where, upon an appeal from an order
granting a new trial for insufficiency of the
evidence, the settled case does not show, nor
the certificate of settlement state, that it con-
tains all the evidence, the court may send the
return back, with leave to apply to the judge
who settled the case to correct the certificate
so as to state that the settled case contains all

the evidence.-Chesley v. Mississippi & R. R.
Boom Co., (Minn.) 769.

15. Where a new trial is sought upon the
ground that one of the persons called as a
The sureties on an appeal-bond from a juror had expressed an opinion in regard to
justice need not sign the same in his presence. the merits of the case a short time before the
If he requires proof of the genuineness of the trial, and an affidavit is filed to that effect, the
signatures or of the sufficiency of the sure-examination of such person on his voir dire
ties, he should make it known when the bond
is received by him or soon thereafter; other
wise the objection will be waived.-Id.

III. PRACTICE.

Assignment of errors.

8. An assignment of error that the court
erred in finding certain facts raises only the
question of the sufficiency of the evidence to
support the findings, and not of alleged error
in admitting incompetent evidence to prove
these facts.-Ellison v. Fox, (Minn.) 358.

9. There being three distinct points in a de-
murrer, an assignment of error, as follows,
"that the court erred in sustaining defend-
ant's demurrer to the original petition, "is not
sufficiently specific under Code Iowa 1880, §

must be preserved in the record, so that it
may appear he was interrogated upon that
point. Everton v. Esgate, (Neb.) 794.

16. The filing of the abstract and argument
by the last day of the appeal term is a suffi-
cient compliance with Code Iowa, § 3181, pro-
and have the cause docketed, at least 15 days
viding that if appellant fails to file a transcript,
before the first day of the next term of the
copy of the judgment or order appealed from,
supreme court, appeilee may file a certified
and on motion have the appeal dismissed or
judgment affirmed.-Fowler v. Town of Straw-
berry Hill, (Iowa,) 521.
Hearing de novo.

17. On intervention in a suit to cancel a
note, and a mortgage to secure it, it was

agreed that plaintiff should pay intervenor a the finding was properly litigated, and sus-
certain sum as his liability on the note; that tained by competent testimony.-Olson v. St.
the same and the mortgage should be deliv- | Paul, M. & M. Ry. Co., (Minn.) 490.
ered up and canceled; and that intervenor 26. On an appeal from an order granting a
should pay defendant M. what the court should new trial for insufficiency of the evidence, if
decide was due him as a bona fide holder of the settled case does not show that it contains
the note. The amount was paid intervenor, all the evidence, it will not be presumed that
and the note and mortgage were ordered to the preponderance of evidence was manifest-
be delivered up and canceled. Held, that iy and palpably in favor of the verdict, so as
plaintiff's equitable action was put an end to to justify a reversal of the order. Henry v.
by the agreement; and, though the cause be- Hinman, 21 Minn. 378, overruled.-Chesley v.
tween intervenor and M. was not transferred Mississippi & R. R. Boom Co., (Minn.) 769.
from the equitable to the legal side, it must 27. All presumptions are in favor of the reg-
nevertheless be considered a legal action, and, ularity of the proceedings of the district court,
as such, not triable de novo on appeal.-Mc- and its judgments will not be reversed unless
Cormick v. Lundburg, (Iowa,) 409.
error affirmatively appears of record.
From inferior courts.
Bride v. Lathrop, (Neb.) 32.

- Mc-

18. On an appeal from a justice on questions Weight and sufficiency of evidence.
of law alone, the evidence being returned by
28. Where an affidavit, in support of a mo-
the justice as provided by statute, appellant tion for a new trial, states that during the
may make and avail himself of the point that progress of the trial affiant had a conversa-
there was no evidence to justify the judgment. tion with a juror in regard to the merits of
-Palmer v. St. Paul & D. R. Co., (Minn.) 100. the case, which affidavit is denied by the
19. Where, in an action against the princi-juror named, and the court below finds that
pal and sureties on a promissory note, as joint
makers, in the county court, judgment was
rendered in favor of plaintiff against all, and
the principal defendant removed the cause to
the district court by appeal, as the interests
29. In considering the sufficiency of the evi-
of defendants were separately connected, the dence to sustain the verdict or finding of fact,
appeal brought the entire case to the district the rule of decision is the same, whether the
court, and that court, on a trial resulting in cause was tried on oral or written evidence.
favor of plaintiff, had jurisdiction to render-McLachlan v. Branch, (Minn.) 703.
judgment against all the defendants.-Wilcox
v. Raben, (Neb.) 844.

In general.

IV. REVIEW.

there was no misconduct of the juror,-in ef-
fect, that the charge is not sustained,-the
supreme court ordinarily will not set aside the
verdict.-Everton v. Esgate, (Neb.) 794.

Rulings on evidence.

30. The refusal to allow a witness to an-
swer a question will not be reviewed when it
does not appear what evidence would have
20. One who appeals from an order setting been elicited, or that the witness could have
aside a verdict, and granting a new trial, can-made any response to the question.-Paddle-
not in the appellate court impeach the ver-
ford v. Cook, (Iowa,) 137.
dict, or be heard upon exceptions taken by
him to rulings on the trial which terminated
in such verdict.-Whitely v. Mississippi W.
P. & B. Co., (Minn.) 753.

21. The sufficiency of the evidence to sus-
tain a verdict will not be considered upon ap-
peal unless a motion for a new trial has been
passed upon in the court below. Following
Byrne v. Railway Co., 29 Minn. 200, 12 N. W.
Rep. 698.-Barringer v. Stoltz, (Minn.) 808.

22. The appellate court will not disturb a
judgment on the ground that the damages
therein awarded are excessive unless it ap-
pears that the jury were actuated by undue
motives.-Olson v. Solverson, (Wis.) 329.
Objections not raised below.

Matters not apparent on the record.
tions to a ruling by which the trial court has
31. To give a party the benefit of excep-
ord must show that he made and preserved
admitted evidence over his objection, the rec-
such exceptions in the manner required by
law.-Spelman v. Gill, (Iowa,) 168.

32. A new trial will not be granted on evi-
dence superinduced by extrajudicial state-
ments by the trial judge, not in accord with
Brooks v. Dutcher, (Neb.) 780.
the record of the proceedings of the trial.-
Objections waived.

33. Where complainants have voluntarily
gone to hearing on the bill and the answer of
and before the time for taking them has ex-
some of defendants, without taking proofs,

23. The appellant, on an appeal from an or-
der granting a new trial, cannot assign as er-
ror that the notice of the motion did not spec-pired, and appeal from the decree dismissing
ify any grounds for it, if he did not make the
objection below.-Chesley v. Mississippi & R.
R. Boom Co., (Minn.) 769.

24. Objections to a portion of the judge's
charge raised for the first time in the appel-

late court will not be considered.-Norris v.
Kipp, (Iowa,) 152.

Presumptions.

25. When the evidence used on a hearing by
stipulation is not preserved in the record, it
will be presumed that the fact embraced in

the bill, without objection to the decree or
proceedings of the court below on account of
all the defendants not being concluded there-
by, they must be considered as having waived
such objection.-Davenport v. Aplin, (Mich.)

211.

34. The district court has jurisdiction both
at law and in equity, and a defendant therein
in an action at law which was in fact brought
to establish and enforce a trust, who fails to
ask for the transfer of the case to the proper
docket permitted by Rev. Code Iowa, 1850, §