v. Thomson, 95 Minn. 230, 103 N. W. 1026, 104 N. W. 290, 547. "This presumption may, however, be overcome by proof of an express agreement to pay for such services, or of such facts and circumstances from which it reasonably may be inferred that it was understood and expected by both parties that pecuniary compensation should be made for the services." Begin v. Begin, 98 Minn. 122, 107 N. W. 149.

The question for determination is whether there is any evidence from which an agreement or understanding that Cornelius should compensate Catherine for her services may be inferred. The facts above mentioned are uncontroverted and in addition thereto the only evidence claimed to have any bearing upon the question is the following:

Catherine, asked by her counsel whether, when she was keeping house for Cornelius, she intended to do it for nothing, answered: "No sir. I always thought I would get something out of it." The witness Chapin testified that in response to a complaint by Catherine that she was receiving nothing for her labor, Cornelius replied: “I don't expect you are working for nothing; whatever is mine is yours;" and that Cornelius subsequently stated to witness that he would never see the girls want for anything as long as he had a dollar. The witness Sayre testified that Catherine asked Cornelius, at one time, if she might take a horse to drive to Robbinsdale, and that Cornelius replied "that she could have anything that she wanted, that whatever was his was hers, and whatever horse she wanted, to take;" and that in response to an inquiry by witness, at another time, as to why he did not buy more land, Cornelius replied "that he had stayed on the old homestead all his life and him and the girls were there, and that that was all that he felt like handling, and after he passed away that he wanted it to go to the girls and they could do with it to suit themselves."

The presumption cannot be overcome by such evidence as this. No inference that Cornelius understood or expected that he was to pay Catherine for her services can reasonably be drawn therefrom. It does not point toward any express or implied contract to that effect. To permit the presumption to be overborne by such vague

and casual remarks would result in its practical abrogation, for the cases would be exceedingly rare in which remarks indicating a common interest in the property and an intention to confer favors upon other members of the family could not be shown.

That it might have been fitting for Cornelius to have left his property to these two sisters, will not justify the court in allowing them a portion thereof through the medium of a claim for services, when no agreement to render compensation for such services has been established.

Judgment notwithstanding the verdict can be granted only when a motion for a directed verdict was made at the trial. Section 4362, R. L. 1905. Hemstad v. Hall, 64 Minn. 136, 66 N. W. 366; Netzer v. City of Crookston, 66 Minn. 355, 68 N. W. 1099; Sayer v. Harris Produce Co. 84 Minn. 216, 87 N. W. 617.

At the conclusion of the claimant's evidence the administrator made a motion to dismiss the appeal which was denied. He then rested without offering any evidence but made no further motion. The motion to dismiss the appeal was not equivalent to a motion. for a directed verdict, and it follows that the refusal of the trial court to grant judgment notwithstanding the verdict was correct. . But the motion for a new trial should have been granted upon the ground that the evidence was not sufficient to sustain the verdict. Order denying a new trial reversed and a new trial granted.

ETHEL S. BOND v. PENNSYLVANIA RAILROAD

COMPANY.1

January 2, 1914.

Nos. 18,269—(150).

Jurisdiction of court-judicial notice.

1. The court takes judicial notice of the proceedings by which it acquires jurisdiction.

1 Reported in 144 N. W. 942.

Note. The question of conflict of laws as to action for death or bodily in

Limitation of action-death from wrongful act in foreign state.

2. An action for damages for a death resulting from a negligent act committed in another state is based upon the statute of the state in which the cause of action arose, and the time within which such action may be brought is governed by the statutes of such state.

Action upon foreign statute-procedure governed by lex fori.

3. The time at which such action is deemed as commenced and all other matters pertaining to procedure are determined and governed exclusively by the law of the forum.

Limitation of action-construction of statute.

4. The provisions of the code relating to the commencement of actions must be construed as a whole and so as to give effect to the intention to provide a single uniform course of procedure which shall apply alike to all civil actions.

Commencement of action.

5. An action is deemed as commenced when the summons is delivered to the proper officer for service, if such service be completed within the prescribed time.

Action in the district court for Hennepin county under statutes of Pennsylvania, approved April 15, 1851, and April 26, 1855, respectively, to recover $25,000 for the death of plaintiff's husband on December 6, 1911. The answer alleged that the cause of action did not accrue within one year prior to the time when the action was brought, that the action was not brought within one year after the death of decedent, and was barred by the express provisions of the statutes of Pennsylvania. The reply alleged that the action was in fact commenced within one year after the death of decedent and was begun by filing the summons and complaint in the office of the clerk of court on November 23, 1912, and delivery of the same on that day to the sheriff of the county of Hennepin for service upon defendant, and the attachment of property in the state belonging to defendant by garnishment process of upwards of $20,000, and after compliance by plaintiff with the statutory prerequisites to personal service upon defendant in the state of Penn

jury, is treated in a note in 56 L.R.A. 193. And as to what statute of limitations will govern as to action for death, see notes in 48 L.R.A. 638 and 56 L.R.A. 208.

sylvania in such case provided, plaintiff caused a copy of the summons and complaint to be served upon defendant personally at the city of Philadelphia on December 20, 1912. From an order, Dickinson, J., overruling its demurrer to the reply, defendant appealed. Affirmed.

Durment, Moore & Oppenheimer and Thomas DeWitt Cuyler, for appellant.

Usher L. Burdick, John J. Murphy and Stiles & Devaney, for respondent.

TAYLOR, C.

Plaintiff's husband was killed in a railroad wreck in the state of Pennsylvania, on December 5, 1911, while a passenger upon one of defendant's trains. Plaintiff brought suit for damages in the district court of Hennepin county, and, in her complaint, set forth the Pennsylvania statute authorizing such actions. This statute contains the following limitation: "The action shall be brought within one year after the death, and not thereafter." Defendant answered and among other things alleged that the action was not brought within one year after the death of the passenger and was barred by the statute. The summons and complaint were placed in the hands of the sheriff of Hennepin county for service, and, on November 23, 1912, he duly returned that the defendant could not be found, and, on the same date, the summons and complaint with this return attached thereto were filed in the office of the clerk of the district court. On the same date a large amount of money belonging to defendant was impounded by garnishment proceedings issued in the action. On November 30, 1912, the affidavit required by statute to authorize constructive service upon a nonresident was filed, and on December 20, 1912, the summons and complaint were served upon defendant personally in the state of Pennsylvania. In her reply to the answer of defendant, plaintiff set forth these proceedings to show that the action was begun within the statutory time. Defendant demurred to the reply, the demurrer was overruled, and defendant appealed.

The proceedings by which jurisdiction was acquired are a part of

the record in the case, and it was not necessary to set them forth in the reply to have the court take notice of them. As it was not necessary to allege in the reply that these proceedings had been taken, defendant's point that, as to a portion of them, the reply merely states a conclusion of law, is without force. While the practice, adopted in this case, of setting forth in a pleading the proceedings by which jurisdiction was acquired and then demurring to such pleading is unusual, a demurrer searches the record, and we will consider whether it appears from the complaint, in connection with the record, that the right of action was barred at the time the suit was begun.

An action brought in this state to recover damages for the death of a person caused by a wrongful act committed in another state, is based upon the statute of the state in which the cause of action arose; and the time within which such action may be brought is the time prescribed by such statute, and not the time prescribed by our own statutes. Negaubauer v. Great Northern Ry. Co. 92 Minn. 184, 99 N. W. 620, 104 Am. St. 674, 2 Ann. Cas. 150; Stewart v. Great Northern Ry. Co. 103 Minn. 156, 114 N. W. 953, 123 Am. St. 318; Casey v. American Bridge Co. 116 Minn. 461, 134 N. W. 111, 38 L.R.A. (N.S.) 521. But the means by which our courts acquire jurisdiction, and the time at which the action is deemed as commenced, and all other matters pertaining to the procedure and to the remedy are determined and governed exclusively by our own statutes. Fryklund v. Great Northern Ry. Co. 101 Minn. 37, 111 N. W. 727; Brunette v. Minneapolis, St. P. & S. S. M. Ry. Co. 118 Minn. 444, 137 N. W. 172; Herrick v. Minneapolis & St. L. Ry. Co. 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771; Wendell v. Lebon, 30 Minn. 234, 15 N. W. 109; First National Bank of Deadwood v. Gustin M. C. M. Co. 42 Minn. 327, 44 N. W. 198, 6 L.R.A. 676, 18 Am. St. 510; Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. ed. 104; Pope v. Terre Haute C. M. Co. 87 N. Y. 139.

Defendant is a foreign corporation and only a constructive service of the summons could be made upon it. Such service was made. If the suit was commenced when the summons and complaint were placed in the hands of the sheriff, the action was brought within the statutory time. If it was not commenced until the constructive serv