especially to insurance of inanimate property against fire, but made to cover live-stock, and having a "lightning" clause inserted. Hence words descriptive of location might, as to one class of property, or as to one kind of insurance, be treated as a statement of a fact relating to the risk, and as amounting to a stipulation or condition that the property should remain there; while as to another class of property, or as to the other kind of insurance, it might be construed as mere description for the purposes of identification.

This action is to recover for the loss of live-stock by lightning, and the language of the policy must therefore be construed as applied to insurance upon that particular species of property. The parties must be presumed to have known that danger from lightning exists almost wholly in the summer, when live-stock is out in the fields. No man of common sense would take a policy of insurance against lightning which only covered his stock when in a particular barn. Such stock cannot well be, and is not usually, kept permanently in a building. The ordinary uses to which it is put forbid it; and the usual and proper treatment of it requires that it be turned out to pasture about one half the year at least. According to the usual course of farming operations, it is not customary to treat an animal, even when housed, as attached to some particular building, as a part of its contents, but to change its place of stabling from time to time, as necessity or convenience may require. The parties must be presumed to have had all these facts in view when they made this contract. If appellant's contention be correct, this policy would not cover a loss occurring while the stock is out at pasture during the summer, for that could hardly be called a temporary removal from the barn for some temporary purpose incident to the ordinary use and enjoyment of the property. Again, the property was insured for five years. Suppose the barn described in the policy had been destroyed the next day after the policy was issued; according to appellant, the insurance on the stock would have terminated forever. Any such construction would defeat the main purpose of the contract.

In view of these considerations, our conclusion is, that the statement in the policy that the stock was in this barn is not a promissory stipulation on the part of the insured, or a condition of insurance on the part of the insurer, that such locaion should remain unchanged, but as to that class of property, and as to that kind of insurance, at least, is mere matter of

description for identification of the property insured, indicating that it was the stock which was usually kept in that barn at that time: Everett v. Continental Ins. Co., 21 Minn. 76; Holbrook v. St. Paul F. & M. Ins. Co., 25 Id. 229. In this view of the case, it becomes wholly immaterial for what purpose or for what length of time the mare was removed from the old barn to the new. In changing her location from one barn to another, on the same farm, as convenience required, the insured was treating her precisely as any farmer would and might do in the ordinary way of managing stock. Order affirmed.

CONTRACT OF INSURANCE IS TO BE CONSTRUED WITH REFERENCE TO SUBJECT-MATTER, and with a view to the object and intention of the parties, as the same may be gathered from the instrument: Ripley v. Etna Ins. Co., 30 N. Y. 136; 86 Am. Dec. 362; Straus v. Imperial Fire Ins. Co., 94 Mo. 182; 4 Am. St. Rep. 368; Frost's D. L. etc. Co. v. Insurance Co., 37 Minn. 300; 5 Am. St. Rep. 846; Home Ins. Co. v. Gwathmey, 82 Va. 923. Language of policy to be construed most strongly against insurer: New Orleans Ins. Co. v. Gordon, 68 Tex. 144.

CONSTRUCTION OF POLICY WITH REFERENCE TO SITUATION OF PROPERTY INSURED: Longueville v. Western Assurance Co., 51 Iowa, 553; 33 Am. Rep. 146; Lyons v. Providence etc. Ins. Co., 13 R. I. 347; 43 Am. Rep. 32, and note 34; Ludwig v. Insurance Co., 48 N. Y. 379; 8 Am. Rep. 556; Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; 14 Am. Rep. 249. Where a policy described a carriage insured as "contained in a frame barn," and the carriage was destroyed by fire while at a carriage-shop undergoing repairs, it was held that the loss was covered by the policy: McCluer v. Girard Ins. Co., 43 Iowa, 349; 22 Am. Rep. 249, and note 253.

HERSEY V. WALSH.

[88 MINNESOTA, 521.]

MEASURE OF DAMAGES IN ACTION FOR CONVERSION OF PROMISSORY NOTE, in the absence of other evidence, is the face of the note, with interest. JUDGMENT RENDERED BY COURT OF GENERAL JURISDICTION WILL BE PRESUMED to have been authoritatively entered by the clerk, in the absence of proof aliunde.

WHERE JUDGMENT BY DEFAULT, IN ACTION FOR CONVERSION OF PROMISSORY NOTE, IS ENTERED by the clerk for the proper amount of damages, such judgment will not be treated as absolutely void because it was entered without any order or direction of the court, nor will it be set aside for such irregularity merely, especially after considerable delay.

Fayette Marsh, for the appellant.

O. H. Comfort, for the respondents.

AN. ST. REP., VOL. VIII. -44

VANDERBURGH, J. Judgment was entered in this action upon default after personal service of the summons. Execution was issued, and returned unsatisfied, and pending proceedings supplementary to the execution, the defendant made a motion, based solely upon the record, to set aside the judgment, and for his discharge, on the ground that it was void. From the order of the district court denying this motion, this appeal is taken. The only question considered by the court below was whether the judgment was presumptively void and without jurisdiction upon the face of the record, so as to entitle the defendant to be relieved from the orders made in the supplementry proceedings.

As appears by the complaint, the action was brought for an alleged conversion of a promissory note belonging to the plaintiffs, given for the sum of four hundred dollars and interest. The defendant having failed to answer, judgment was entered for the amount of the note, principal and interest. The record shows the usual proof of the service of the summons, and of defendant's default, but is silent as to any further proceedings. The court had jurisdiction of the defendant and the subject-matter; and as the measure of damages in such an action is the face of the note, in the absence of any showing to the contrary, the amount for which judgment was entered is presumptively correct: Booth v. Powers, 56 N. Y. 22; Barron v. Mullin, 21 Minn. 374. The judgment is not void for anything appearing affirmatively upon the record; and having been rendered by a court of general jurisdiction, it will be presumed to have been authoritatively entered by the clerk, in the absence of proof aliunde: Galpin v. Page, 18 Wall. 350, 366; Kipp v. Collins, 33 Minn. 394; Frankfurth v. Anderson, 61 Wis. 107. Had the defendant shown, by evidence outside the record, that there was irregularity in the proceedings, and that the judgment was entered without any order or direction of the court in the premises, still, under the decisions of this court, the judgment would not be absolutely void or a nullity; and if the amount of damages as assessed was undisputed, and the judgment in fact entered for the proper sum under the pleadings, so that no prejudice could have resulted, the court would be justified in refusing to set it aside for the ir regularity, especially after considerable delay, as in this case: Dillon v. Porter, 36 Minn. 341, and cases; Libby v. Mikelborg, 28 Id. 38; Heinrich v. Englund, 34 Id. 395.

Order affirmed.

WHERE RECORD FAILS TO SHOW THAT JUDGMENT BY DEFAULT WAS NOT PROPERLY ENTERED, the regularity of the proceedings will be presumed, and it will also be presumed that any notice required was given: Evans v. Young, 10 Col. 316; 3 Am. St. Rep. 583; see Blount v. Gallaher, 22 Fla. 92; Harper v. Biles, 115 Pa. St. 594; Dillon v. Porter, 36 Minn. 341; Burrows v. Mickler, 22 Fla. 577. All presumptions are in favor of the regularity of the proceed. ings of a court of competent jurisdiction, and its judgments will not be reversed unless error affirmatively appears of record: McBride v. Lathrop, 24 Neb. 93; Ferguson v. Teel, 82 Va. 690.

MEASURE OF DAMAGES IN TROVER, GENERAL RULE: Moody v. Whitney, 38 Me. 174; 61 Am. Dec. 239; Backenstoss v. Stahler, 33 Pa. St. 251; 75 Am. Dec. 592; Ripley v. Davis, 15 Mich. 75; 90 Am. Dec. 262; for converting ne gotiable instrument: Porter v. Purdy, 29 N. Y. 106; 86 Am. Dec. 283, note.

LEVY V. MILLER.

[38 MINNESOTA, 526.]

IF, IN GARNISHMENT PROCEEDINGS, AN INDEBTEDNESS IS DISCLOSED by the garnishee, but he also discloses the fact of a claim thereto by a third person as assignee, it is error for the court to order judgment against the garnishee until the claimant is duly cited and made a party; and unless this be done, the rights of such claimant cannot be barred or affected by the judgment. JURISDICTION. -ORDER MADE BY COURT DIRECTING THAT ALLEGED CLAIM. ANTS of a debt garnished “be made parties, and that notice be served on them," but not prescribing how the notice should be served, is to be construed as meaning personal service within the state, and no other service is sufficient to confer jurisdiction over the absent and non-resident claimants.

W. E. Akers, for the appellants.

Davenport and Thian, and J. L. Dobbin, for the respondents.

VANDERBURGH, J. The defendants were indebted to Saverius & Co. in the sum of $250 for goods sold, and were garnished, in the district court of Hennepin County, in an action wherein one Jepson was plaintiff, and Saverius & Co. defendants, for an alleged indebtedness to the last-named firm. Prior to the service of the garnishee summons upon these defendants, the account against them for the goods mentioned had been sold and assigned to the plaintiffs, who duly notified the defendants of such transfer. Thereafter, on the thirtieth day of April, 1886, the garnishees, these defendants, made disclosure of the indebtedness, and of the fact of plaintiffs' claim thereto; and the record shows that the court thereupon made an order directing that the plaintiffs should be joined as parties to the garnishee proceedings, and "that notice thereof be served on

D. Levy and Son [plaintiffs], which notice and order [as the court finds] were personally served on said David Levy on the thirteenth day of May, 1886, at the city, county, and state of New York, and at no other time or place, and in no other manner." Plaintiffs, D. Levy and Son, of which firm David Levy was a member, then resided in the city of New York, and did not appear in such proceedings; but judgment was subsequently rendered therein, charging the garnishees, and barring all claims of the plaintiffs to the account and indebtedness in question.

The only matter necessary to be considered is, whether the court acquired jurisdiction to make such determination; and this involves the further question whether the service of the order and notice upon the plaintiffs in the city of New York was legally authorized, so as to give the court jurisdiction over them in the proceedings. Assuming that the debt was duly attached, the right of the plaintiffs could not be barred until after they were lawfully cited to appear and maintain their right: Gen. Stats. 1878, c. 66, sec. 174; Look v. Brackett, 74 Me. 347. If the matter of their claim was properly disclosed by the garnishees, it would also be error for the court to order judgment against the latter, against their objection, until the supposed assignees were duly cited; and after a reasonable time, the proceedings should have been dismissed if the plaintiff therein failed to make the proper service of the notice: Jordan v. Harmon, 73 Id. 259. The court, as it appears, ordered that the plaintiffs herein "be made parties, and that notice be served on them," but did not direct or prescribe how it should be served. By the order as made, service within the state was meant, and no other was authorized. Substituted service by publication, or outside the jurisdiction, to have been warranted, must have been so directed. It is unnecessary to consider whether personal service outside the state, if so directed, was authorized without publication in the state. The plaintiffs not having been duly cited to appear, the judgment must be reversed, and a new trial ordered.

GARNISHMENT, defenses available to garnishee: Note to Lathrop v. Olapp, 100 Am. Dec. 511.

GARNISHEE, NOTIFIED OF IRREGULARITY OF GARNISHMENT AND OF AsSIGNMENT TO THIRD PARTY of his indebtedness to the principal defendant, must protect himself by presenting these facts in the garnishment proceed. ings; otherwise, he will be estopped from setting up the garnishment judg. ment in defense of an action by the assignee against him: Black v. Brisbin, 3 Minn. 360; 74 Am. Dec. 762.