SEEGER et al. v. SMITH et al. (Supreme Court of Minnesota. Nov. 22, 1898.) TENANT HOLDING OVER-RESTITUTION - TENDER OF RENT.

1. Held, following Suchaneck v. Smith, 47 N. W. 397, 45 Minn. 26, that section 6118, Gen. St. 1894, gives the right of restitution against a tenant holding over after default in the payment of rent, whether the lease contains a reentry clause or not.

2. A tender of rent after the commencement of such an action must include costs, to be available for any purpose.

3. The evidence sustains the trial court's findings of fact.

(Syllabus by the Court.)

Appeal from municipal court of St. Paul; John Twohy, Judge.

Action by Robert Seeger and others against George P. Smith and Sarah Smith. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. Henry Hintermister, Jr., for appellants. D. E. Dwyer and Samuel Whaley, for respondents.

START, C. J. This action was brought in the municipal court of the city of St. Paul, under the provisions of Gen. St. 1894, § 6118, which provides, so far as here material, that when any person holds over any lands or tenements after any rent becomes due, according to the terms of the lease or agreement under which he holds, the landlord may have restitution upon complaint made. Judgment for the plaintiffs for restitution of the premises, from which the defendants appealed.

The defendants are husband and wife, and the complaint alleges that the plaintiffs leased to them the premises described in the complaint for one year from March 1, 1896, to March 1, 1897, for $96, payable monthly in advance, in equal installments of $8, to be paid on the 1st day of each and every month; that, on the expiration of this lease, the plaintiffs leased the premises to the defendant George P. Smith for one month from March 1, 1897, and from month to month thereafter, for the monthly rent of $8 per month, payable on the 1st day of each month in advance; that he has refused to pay such rent for the months of February, March, April, and May, 1898, respectively. This action was commenced May 24, 1898. The answer admitted the original lease and the terms thereof, as stated in the complaint, but denied that at the end of the year there was any new lease made, and alleges that, at the end of the year, the defendants, with the consent of the plaintiffs, continued to occupy the premises, and pay rent therefor, as provided for in the original lease; and, further, that the defendants tendered payment of the rent for the mouths of February, March, April, and May, 1898, and that no notice was ever given them to quit or surrender possession of the premises. The trial court found the premises were leased to the defendant

George P. Smith as alleged in the complaint, and that the rent for the months specified remained unpaid.

1. The contention of the defendants is that the plaintiffs are not entitled to a restitution of the premises, because no notice to them to quit was alleged or proven, and, further, that the lease contained no provision for a right of re-entry in case the rent was not paid. This action is not for restitution, on the ground that the defendants are holding over after the expiration of the lease, but for the nonpayment of rent. Therefore notice to quit was not necessary. See Radley v. O'Leary, 36 Minn. 173, 30 N. W. 457. The statute gives the right to restitution against a tenant holding over after default in the payment of rent, whether the lease contains a re-entry clause or not. Suchaneck v. Smith, 45 Minn. 26, 47 N. W. 397. It was immaterial whether the lease gave the right of re-entry or not for the nonpayment of rent, because the reentry action was not brought under the provisions of section 5865, but under section 6118, which gives the action for restitution for such cause independent of any contract right for re-entry. The case of Woodcock v. Carlson, 41 Minn. 542, 43 N. W. 479, relied on by the defendants, is in entire harmony with this conclusion.

2. The defendants further claim that the trial court erred in refusing their offers to prove a tender of the rent. The offers were to prove that on April 28, 1898, a tender was made of the rent then due to the plaintiff, and to prove that on or about May 26, and not later than May 28, 1898, a tender was made to the plaintiffs of the amount of the four months' rent then due. Proof of the first offer was immaterial, because the rent for the month of May became due on the 1st day of the month; and, if the rent for this month had not been paid or tendered, this action could not be defeated by proof that the rent for the previous months had been paid. The second offer was to prove a tender after the commencement of the action. If a tender could then be made, it would be necessary to tender, not only the rent then due, but all the costs of the action. George v. Mahoney, 62 Minn. 370, 64 N. W. 911. This was not done. It was not error to refuse the offered evidence.

3. It would seem to be immaterial whether the defendants were in possession under the original lease, as they claimed, or the new lease from month to month, as claimed by the plaintiffs; for it is admitted and alleged by all parties that the relation of landlord and tenant existed between them, and that the rent was unpaid. This was the gist of plaintiffs' cause of action. We have, however, examined the evidence, and find that it is sufficient to support the finding of the trial court as to the making of the new lease. The other assignments of error have been considered, and found to be without merit. Judgment affirmed.

BOELTER v. KLOSSNER et al. (Supreme Court of Minnesota. Nov. 22, 1898.) EXEMPTIONS-CLAIM BY WIFE-PROVISIONS.

Held, that where the husband and wife were living together with their children on her farm, and were supporting the family by their joint labors in cultivating the farm and caring for the household, and neither had any other farm or grain except such as was raised thereon, the wife was entitled, under the terms of Gen. St. 1894, § 5459, subd. 7, to claim therefrom provisions necessary for the support of the family for one year as exempt from sale on execution against her.

(Syllabus by the Court.)

Appeal from district court, Sibley county; Francis Cadwell, Judge.

Action by Mary Boelter against Henry Klossner and others. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.

Ed. H. Huebner, for appellants. W. H. Leeman, for respondent.

START, C. J. This action was brought to recover from the defendants the value of certain wheat claimed by the plaintiff as exempt from sale on execution, but which was levied upon and carried away by the defendant Osberg as constable, at the instance of the defendant Klossner, by virtue of an execution issued on a judgment in his favor against the plaintiff. Verdict for the plaintiff, and the defendants appealed from an order denying their motion for a new trial. The plaintiff claimed the wheat as exempt, under the provisions of Gen. St. 1894, § 5459, subd. 7, which are to the effect that "the provisions for the debtor and his family necessary for one year's support either provided or growing" shall not be liable to attachment or sale on any final process issued from any court in this state. The only question on this appeal is whether the wheat was so exempt. The defendants' contention is that she was not entitled to any exemption of provisions for the support of herself and family because she was a married woman, living at the time of the seizure with her husband, whose legal duty it was to provide for his wife and family. This exemption is not in favor of the head of the family, but to the debtor, and is intended to protect the family, and must be liberally construed, so as to effectuate its humane purpose.

Where husband and wife are living together, and both have provisions which may be appropriated for the support of the family, the wife is not entitled to the exemption, nor in a case where the husband is alone supporting the family, for in such case there would be no necessity to appropriate any provisions owned by her to the support of the family. But such is not this case. The undisputed evidence shows that the plaintiff's family, at the time of the levy, consisted of herself, husband, and seven children, and that they were living as one family on her farm; that the husband had no farm or grain; and that his occupation was

performing the labor, with the assistance of a minor son, necessary to carry on the farm and raise the crops. The necessary inference from the evidence is that the husband and wife were supporting the family by their joint labors in cultivating her farm and caring for the household, and that neither of them had any other farm or wheat. Under the special facts of this case, we hold that either the wife or the husband had a legal right to claim, as exempt from the provisions so raised on her farm, an amount necessary for the support of the family for one year. Order affirmed.

STATE v. GRIMES et al. (Supreme Court of Minnesota. Nov. 22, 1898.) GAMBLING-COMPLAINT EVIDENCE.

Held, that the complaint herein charges the appellants with the offense of keeping a gam bling house, resorted to for the purpose of gambling, contrary to the ordinance of the city of Minneapolis, and that the evidence on the trial was sufficient to sustain their conviction. (Syllabus by the Court.)

Appeal from municipal court of Minneapolis; Andrew Holt, Judge.

John Grimes and others were convicted of keeping a gambling house, and appeal. Affirmed,

Welch, Hayne & Hubachek, for appellants. Frank Healy and H. D. Dickinson, for the State.

START, C. J. An ordinance of the city of Minneapolis provides that "no person shall keep any house or place, or suffer or allow any house or place, to him or her belonging, or by him or by her occupied, or of which he or she has the control, to be kept, for the purpose of gambling, or gaming or fraudulent practices, or to be kept or resorted to for the purpose of betting or wagering any money or valuable thing on any game or device, or the happening of any event or the result of any event." The defendants were prosecuted in the municipal court of the city for a violation of this ordinance, upon a complaint which, after alleging the time and place, charged that the defendants did "willfully, unlawfully, and wrongfully keep, and aid and abet in keeping, a gambling housę, in that certain building, known as the 'Harmonia Building,' situated on the corner of Second avenue south and Third street, in said city, said place being then and there resorted to for the purpose of gambling and gaming, contrary," etc. They were convicted, and this is ab appeal from an order denying their motion for a new trial.

1. The appellants insist that their conviction was erroneous, because the complaint fails to charge a violation of the ordinance, in that it fails to allege that the house or place in question either belonged to or was occupied by or was under the control of the defendants. This claim rests upon a wrong

construction of the ordinance. It makes penal by its prohibitions, not one, but several, acts. Whoever keeps a house or place for the purpose of gambling commits an offense, without reference to the fact whether he is the owner of the house or not. So, too, any person who allows any house or place owned, occupied, or controlled by him to be used for the purpose of gambling violates the ordinance, without reference to the fact whether he is the keeper thereof. The ordinance is directed against both the keepers and the owners of gambling houses. The defendants were prosecuted for keeping a gambling house, and not as owners for allowing the house to be kept for gambling purposes. The complaint was sufficient, for it stated facts constituting all of the essential elements of the offense of keeping a gambling house, as defined by the ordinance. 9 Enc. Pl. & Prac. 772.

2. It is further claimed that the evidence which was undisputed did not warrant the conviction of the appellants. Their principal contention on this branch of the case is that the evidence did not show that the mechanism of their business constituted a gambling device. It is wholly immaterial whether it did or did not, for they were not charged with keeping a gambling device, but with keeping a gambling house. Gambling is the risking of money or anything of value between two or more persons on a contest of chance of any kind, where one must be the loser and the other the gainer. State v. Shaw, 39 Minn. 153, 39 N. W. 305; 9 Enc. Pl. & Prac. 766. Now, the evidence in this case conclusively establishes the fact that the appellants kept a house where parties were accustomed to bet on the rise or fall of certain supposed stocks. The rise or fall was determined by the position of certain letters representing the stocks, placed and repeated at random on a tape wound on a reel, and inclosed in a circular box. If a party bet that a particular stock would rise, that is, if he played that he bought it,-the tape would be pulled out; and if the letter representing his stock appeared first, he won; if second, he lost. Or, in other words, he placed a given sum of money on the chance of winning or losing as the next pull of the tape might determine the supposed stock to be up or down. By the rules of the game, it was always up or down at a fixed amount, as the position of its letter on the tape might indicate. The evidence shows that the plan of the appellants' business was a dirty and diaphanous gambling scheme. The evidence amply sustains their conviction. Order affirmed.

YOUNGS v. AUDITOR GENERAL. (Supreme Court of Michigan. Nov. 15, 1898.) TAX DEEDS-CANCELLATION-GROUNDS. The auditor general has authority to cancel a tax deed for the sidewalk tax of a cer

tain year, where the common council had taken such action that the owner of the premises had the right to assume that he would not be compelled to pay the tax in the year it was laid, as it was reassessed for the succeeding year, and where such owner had made application to redeem in due time after the sale under the tax of the succeeding year, which sale had been canceled; since Pub. Acts 1893, No. 206, § 98, subd. 2. authorizes the auditor to cancel tax deeds when the tax has been paid within the time limited by law for the payment "or redemption thereof."

Grant, C. J., and Hooker, J., dissenting.

Petition by Clark W. Youngs for a writ of certiorari against the auditor general. Proceedings affirmed, and writ quashed.

W. S. Hill, for plaintiff. E. C. Chapin, for defendant.

HOOKER, J. Hinds was owner of city lots in Stanton. In 1893 the city authorities built a sidewalk adjacent to these lots, and a special tax was spread therefor against the lots. The tax not being paid, they were bid in for the state, and the state title was sold in June, 1897, to Sherwood, and in September, 1897, he conveyed the property to the plaintiff. On January 10, 1898, the auditor general issued a certificate of error canceling the deed to Sherwood, and assigning in the certificate, as ground therefor, that the land was erroneously returned delinquent, advertised for sale, and sold for taxes assessed for the year 1893, for the reason that the warrant for the collection of taxes did not include sidewalk taxes for that year. A writ of certiorari was issued to the auditor general, and the return shows that the certificate of error was given for the reason above stated. The return also shows that it was at the same time shown to the auditor general that the record of the common council of the city of Stanton showed that after said sidewalk was built by the city a report was made of the cost thereof, and a resolution to assess the sum of $17.67 against these lots, but the record did not show that any action was taken upon the resolution; and that the record of the council showed further that in March, 1894, a report was made by a committee of the council of the uncollected taxes, and "that, owing to a clerical error upon the part of the supervisor in spreading said taxes on the roll, it was considered advisable by City Attorney Miller to force collection on the same; your committee would recommend the correction of assessment on P. S. Dodge's description, which was spread at $17.67, but by the county clerk in the certificate at $27.86, and the reassessment for 1894 of the abovementioned sidewalk tax." It was further made to appear that by reason of the foregoing the common council caused this tax to be reassessed in the year 1894, and that, being returned delinquent, the land was sold for said tax. On June 29, 1897, on application of Sherwood, this last sale was canceled, for the reason that it was made to appear that the land had been sold in 1.93 for the same

tax that was reassessed in 1894. On November 30, 1897, Hinds, the owner, applied to redeem from the sale of 1894, and was informed that the same had been canceled. Thereafter, on full investigation, the auditor general canceled the deed for the tax of 1893, and permitted Hinds to redeem from the tax of 1893.

The plaintiff in certiorari contends that matters are set up in the return that are not responsive to the affidavit, and that they are immaterial; that the cancellation must stand upon the alleged defective warrant, if anything; and that, as a defective warrant does not invalidate the lien of the state (Auditor General v. Sparrow [Mich.] 74 N. W. 881), the action of the auditor general was errone

ous.

The circuit court, by its decree, adjudged these lands to be chargeable with, and subject to sale for, the nonpayment of this tax. Muirhead v. Sands (Mich.) 69 .N. W. 826. The auditor general, by his action, has held that they were not, and the reasons alleged to justify such action are that the tax was not ordered, and that it had been reassessed. In short, he has reversed the decree of the circuit court. Section 98, Act No. 206, Pub. Acts 1893, allows the auditor to cancel sales upon any one of three grounds: (1) That the land was not subject to taxation at the date of the assessment of the taxes for which it was sold; (2) that the tax had been seasonably paid; (3) that the sale was in contravention of some provisions of the act. None of these grounds are shown. The land was subject to taxation, the tax had not been seasonably paid, and no irregularity in the sale is shown. This order was therefore erroneous, and should be set aside. The plaintiff in certiorari should recover costs against Hinds.

GRANT, C. J., concurred with HOOKER, J.

LONG, J. I cannot agree with my Brother HOOKER in this case. Whether or not the common council had the power to cancel the tax of 1893 need not be discussed. Such action was taken by the council that the owner of the premises, Mr. Sherwood, had the right to assume that he would not be called upon to pay the tax of 1893, as it was reassessed for the year 1894. It appears by the return of the auditor general that on November 30, 1897, Mr. Hinds, the then owner of the land, applied to him for the redemption of the land under the sale for the tax of 1894. This ap- | plication was made within the time when such lands were redeemable after sale, and the auditor general very properly received the amount of the tax tendered at that time, and canceled the sale for the tax of 1893, which he was empowered to do under subdivision 2, § 98, Act No. 206, Pub. Acts 1893. It is apparent that the owner of the land was led by the action of the common council to believe that by the reassessment in 1894 he would not be called upon to pay the tax

within the time limited for the collection thereon under the assessment of 1893, and that a payment of it under the reassessment would be a full compliance with the statute. Feeling secure in this position, he delayed the payment until November 30, 1897, and then it was ascertained that the tax of 1893 had been returned to the auditor general, and a sale made thereunder, and his rights to redeem apparently cut off. The auditor general, realizing this condition, and ascertaining that the owner had been misled by the public authorities, canceled the sale of 1893, and received the money in payment of the reassessed tax. The proceedings in the premises must be affirmed, and writ of certiorari quashed.

MONTGOMERY and MOORE, JJ., concurred with LONG, J.

DUNN v. SWAN et al. (DETROIT SAV.
BANK, Garnishee; UNION TRUST
CO., Intervener).

(Supreme Court of Michigan. Nov. 15, 1898.) GARNISHMENT-DISCLOSURE--AMENDMENTESTOPPEL.

1. A disclosure of a garnishee may be amended after a submission of the issues, but before judgment, to show a claim by a mortgagee so as to permit an intervention by such mortgagee. 2. A garnishee bank, after being served with a copy of the affidavit, instead of the writ, and before a service of the writ, paid out the money in its possession belonging to defendant. Afterwards the court held that the first service was good. Held, that the garnishee was not bound by its first disclosure, stating that it had no money of defendant, but could show what money it had at the time of the service of the affidavit.

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Edward J. Dunn against Thomas Swan and others, and the Detroit Savings Bank as garnishee, in which the Union Trust Company intervened as claimant. Verdict was directed for plaintiff, subject to claimant's right, and judgment was afterwards rendered for claimant, from which plaintiff brings error. Affirmed.

Statement of case taken substantially from brief of claimant: Plaintiff, Dunn, holds a judgment against the principal defendant, Swan, rendered in 1894, and on June 1, 1897, took out a writ of garnishment, based on the judgment, against the Detroit Savings Bank. At the time the writ was issued, defendant Swan had $900 on deposit in the said bank, the proceeds of sales of his stock in business. The sheriff, in making service of the writ, by mistake served a copy of the affidavit of garnishment, instead of a copy of the writ itself. A few hours later, a new and proper service of the writ was had; but in the meantime the bank paid the money to Swan on his checks then outstanding, and its disclosure set up no liability. An examina

tion of the garnishee was demanded, and the issue reached the trial stage February 9, 1898. It was agreed that the court might dispose of the case without a jury, and the court evidently took the case into consideration. The claimant, Union Trust Company, held a chattel mortgage, made in 1893, and kept in force by proper renewals, on all defendant Swan's stock, present and future, proceeds of sales, etc., and, upon learning of the garnishment proceedings, claimed any amount for which the bank might be held in the proceedings, under its mortgage. As the bank had not, in its disclosure, set up the mortgagee's claim, the court, February 16th, allowed the disclosure to be amended so as to permit intervention under the statute, and, February 21st, after due notice to plaintiff, made an order interpleading the trust company as claimant. The court also found that the service of the writ on the bank was a good one, and directed a verdict against it in favor of the plaintiff, subject to the rights of the claimant, to be established in a trial between plaintiff and claimant. This latter issue was tried May 17th, and, all the facts being undisputed, the court held that under the decision of this court in the case of Dunn v. Swan, 73 N. W. 386, where this same mortgage was construed, claimant was entitled to the funds, and a verdict was rendered, and judgment entered in favor of the claimant. From this judgment, plaintiff has taken a writ of error.

William B. Jackson, for appellant. Russel & Campbell, for appellee Union Trust Co.

GRANT, C. J. (after stating the facts). 1. The amendment was allowable. 2 How. Ann. St. § 7631; Newell v. Blair, 7 Mich. 103; Drake v. Railway Co., 69 Mich. 168, 37 N. W. 70; Rock v. Collins (Wis.) 75 N. W. 426. It is true that the issues had been submitted to the court on February 9th, but it was within the power of the court to open the case, and allow an amendment at any time before judgment upon due notice to the opposite party.

2. The bank was not estopped by its first disclosure that, at the time of the service of the writ, it had no money in its hands belonging to Swan. It did not have at the time of the actual service. The court held that the exhibition to the cashier of the original writ, and the service of a copy of the affidavit, instead of a copy of the writ, constituted a good service. The court was correct in permitting the garnishee to show the exact condition of things at the time of the alleged defective service. Judgment affirmed. The other justices concurred.

ROBERTS v. DENIO. (Supreme Court of Michigan. Nov. 15, 1898.) TAXES-LEVIES-RE PLEVIN.

Replevin under How. Ann. St. § 8318, does not lie to recover property taken under a tax

warrant unless the tax was not levied in pursuance of any law of this state.

Error to circuit court, Sanilac county; Watson Beach, Judge.

Replevin by William Roberts against George Denio. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Gates & Rapley, for appellant. W. H. Burgess and William Dawson, for appellee.

GRANT, C. J. Defendant was the treasurer of Sanilac City for the year 1897, and had a warrant for the collection of taxes, valid upon its face. He levied upon personal property to satisfy a tax assessed against the plaintiff. Plaintiff brought this action of replevin, claiming the right to go behind the warrant and show the invalidity of the tax. The court entered judgment for the defendant. The suit is within the expressed prohibition of the statute, and cannot be maintained. How. Ann. St. § 8318; Boyce v. Peterson, 84 Mich. 490, 47 N. W. 1095; Curtiss v. Witt, 110 Mich. 131, 67 N. W. 1106. This case is not within the few which have sustained the action of replevin when the tax was not levied in pursuance of any law of this state. These cases will be found cited, and the distinction shown, in Curtiss v. Witt. Judgment affirmed. The other justices concurred.

NASH v. H. R. GLADDING CO. (Supreme Court of Michigan. Nov. 15, 1898.) CONTRACTS OF HIRE-BREACH-SHERIFF'S SALE.

Plaintiff's assignor contracted to work for defendant company for a year. Before the expiration of the year, the property of the company was levied on and sold by the sheriff. Plaintiff's assignor did not return after the sale to continue or offer his services, and, though he often met the president of the company, he never expressed his willingness to perform the services under the contract, or asked pay from him for such services. There was no showing that the company was insolvent. Held, that plaintiff could not recover for the balance of the wages.

Error to circuit court, Wayne county; Willard M. Lillibride, Judge.

Action by George R. Nash against the H. R. Gladding Company on all the common counts in assumpsit, and especially on a written agreement and as assignee of Howard R. Gladding. There was a judgment directed for defendant, and plaintiff brings error. Affirmed.

Bacon & Palmer, for appellant. Jasper C. Gates, for appellee.

LONG, J. This case was commenced in justice court, where plaintiff received a judgment for $350. Defendant appealed to the circuit court, where, on a trial before a jury, the court directed verdict in favor of defendant. The plaintiff is the assignee of a claim which Howard R. Gladding made against the defendant under the following contract: "This agreement, made this thirtieth day of March,