Volume 2 — North Dakota Reports

<p>Want of jurisdiction — Waiver by Appeal.</p> <p>After an appeal upon questions of law and fact by a defendant from a judgment of a justice of the peace to the district court, where a demand for a new trial is embodied in the notice of appeal, the defendant cannot deny the jurisdiction of the district court over his person, ■ although the justice of the peace rendering the judgment appealed from never acquired jurisdiction over his person. Whether such justice acquired such jurisdiction by litigating the cause on the merits after motion to dismiss for want of jurisdiction had been overruled, not decided.</p>

PPJ3AL from district court, Bansom county; Hon. W. S. Lauder, Judge. Action to recover price of wheat, alleged to have been converted by defendant. Judgment for plaintiff. Defendant appeals.

PPJEAL from district court, Ransom county. Lauder, Judge. Hon. W. S. Action for value of wheat, alleged to have been converted by defendant. Judgment for plaintiff.

PPEAL from district court, mam B. McConnell, Judge. Cass county; Hon. Wil- Action by plaintiff, as mortgagee, against defendant, as sheriff of Cass county, to recover value of wheat seized and sold by defendant under execution. Judgment for plaintiff. The mere signing of a mortgage, coupled with the fact that' the same found its way into the office of the register of deeds, does not constitute a delivery. Jones on Chat. Mortg., § 106; Day v. Griffith, 15 Iowa 101.

PPEAL from district court, Cass county; Hon. William B. McConnell, Judge. Action to recover real property held in trust. Judgment for plaintiff. On appeal motion entered to strike from transcript the evidence. • The orders entered after the appeal was perfected were without jurisdiction and void. Oomp. Laws North Dakota, § 5283. The appeal being from the judgment must be heard on the judgment roll alone. Comp. Laws North Dakota, § 5217.

PPEAL from district court, Cass county; Hon. William B. McConnell, Judge. Action to foreclose a mortgage. Judgment for plaintiff. Defendant Charles H. Howland appeals from an order denying a motion to set aside the judgment. The power to hear and determine a cause is jurisdictional.

<p>Mandamus — Parties — Procedure — Insurance Companies— Eight to Transact Business.</p> <p>1. Under the territorial statutes now in force in this state, the remedy by mandamus is in some respects assimilated to a civil action, but is not in strictness a civil action, and is a special proceeding. Comp-Laws 1887, §§ 5505, 5536.</p> <p>2. The party prosecuting the writ may be known as the plaintiff, and the adverse party as the defendant; but where the writ is sought to enforce a duty due the state as such, or sought with respect to a right of common concern to a large number of persons, but not a right where the state as such is concerned, or sought to enforce a right peculiar to the relator, the proceeding should be had in the name of the State ex rel. the--.</p> <p>3. Where the remedy concerns the state as such, the writ should be applied for by the attorney general, or, at least by his assent.</p> <p>4. Where the subject-matter does not concern the state as such, but is of common concern to a large number of persons — for example, to all citizens of a county, town, city, or district — any citizen of the locality is beneficially interested, and may apply for the writ, within the meaning of § 5518, Comp. Laws 1887.</p> <p>5. Where the writ is sought for the benefit of the relator alone, the fact of his special and peculiar right to the writ must be made to appear by the affidavit.</p> <p>6. The insurance commissioner of this state, in granting or revoking a certificate authorizing insurance companies to transact business within the state acts within the limits of a discretion expressly conferred upon him by statute. Such official discretion, when once it has been exercised, cannot be controlled or reviewed by mandamus.</p>

PPEAL from district court, Stutsman county. erick Rose, Judge. Hon. Rod- Action in ejectment and for damages for witholding the property. Judgment for plaintiff. Defendant appeals. The defendant is not permitted by its charter to construct branch lines, and unless power to -build them is conferred upon a company by its charter, either in express terms or by necessary implication, they cannot be constructed.

PPEAL from District Court, Steele Couuty. liam B. McConnell, Judge. Hon. WiL- Action in equity to foreclose a seed lien. Parties defendant were prior mortgagees. Judgment for plaintiff. Defendants appeal. The only question that arises is, does the complaint state facts constituting a cause of action; does it justify the findings of fact and do the findings sustain the judgment? The attempted exceptions to the findings do not warrant a review of the facts.

PPEAL from district court, Burleigh county; Hon. W. H. ‘Winchester, Judge. . Appeal from an order granting a new trial. The main authorities relied upon by the appellants are set forth in the opinion. An order granting a new trial having been made upon good cause shown and in furtherance of justice, and being a matter appealing to the discretion of the court is not subject to review by an appellate court.

<p>pPEAL from district court, Stark, county; Hon. W. H. Winchester, Judge.</p> <p>Action on promissory note. Judgment for defendant.</p>

A PPEAL from district court, Cass county; Hon. William x± B. McConnell, Judge. Action for cancellation of tax deed, to quiet title to certain realty in plaintiff and for possession of the same. Judgment for plaintiff. Defendant appeals. Appellant could not, pending the litigation between respondent and the Hadleys, in which he acted as attorney for them, acquire any interest in the premises in question antagonistic to the Hadleys by the purchase of an outstanding tax title.

PPFAL from district court, Grand Forks county; Hon. Charles F. Templeton, Judge. Action on promissory note for the purpose of testing the constitutionality of chapter 184, Laws of 1890, known as the “usury law.” Judgment for plaintiff, holding the statute void, under the state constitution. Defendant appeals. The contract in this case failed to express the exact amount of money to he received by the borrower.

PPLAL from district court, Morton county; Hon. W. H. Winchester, Judge. Action by the plaintiff against the defendants upon an undertaking wherein the defendants herein were sureties upon an appeal bond. Defendant Sullivan interposed an equitable set-off. A demurrer to the answer containing the same was sustained by the district court. Defendant appeals. The facts alleged in the answer are sufficient to justify the allowance of the set-off upon equitable grounds.

PPEAL from district court, Pembina county; Hon. Charles E. Templeton, Judge. Action to compel the defendant to support the plaintiff and her children, instituted by issuing an order to show cause why temporary alimony should not be awarded. On the return day defendant objected to the jurisdiction of the court on the ground that no summons had been served on the defendant. Objection overruled. Defendant appeals.

PPEAL from district court, Stutsman county;- Hon, Roderick Rose, Judge. Action to recover damages for a personal injury sustained by plaintiff while in defendant’s employ. Judgment for' plaintiff. Defendant appeals. The principle is well settled that no negligence can be inferred from the fact that a railroad track is constructed on a curve at the place of an accident to a servant.

PPPJAL from district court, Cass county; Hon. William B. McConnell, Judge. Action by Herman Boss against tbe Northern Pacific Bail-road Company for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.

<p>Taxation — Assessment — Description of Lands — Board of Equalization — Time of Meeting — Notice—Vacation of Tax Deed — Terms.</p> <p>1. The plaintiff’s lands were sold for the alleged taxes of 1886 to defendant, and subsequently defendant received a tax deed in ‘due form therefor, and recorded his deed. Defendant voluntarily paid the alleged taxes on the land for the years 1837 and 1888. Such lands did not appear on the assessment roll or tax list of the county where they were located in either of said years, otherwise than as follows:</p> <p>Description. Section. Township. Range.</p> <p>W. 2 of W. 2 7 143 57</p> <p>E. 2 of E. 2 13 143 58</p> <p>W.2of S.E. 15 138 58</p> <p>N. 2 N. W. 3 139 58</p> <p>—Held, that said attempted description of the lands is insufficient as a basis of taxation, and that no valid assessment was made or could be made on such pretended description. The description is not ex. pressed in common language; nor are the characters and abbreviations employed such as are used by conveyances in describing real estate; nor do the people generally use such a combination of words, letters and figures in referring to or describing land. A description of real estate is essential to its assessment, and, there being no sufficient description in this case, there is no assessment, and consequently no tax.</p> <p>2. The county board of the county where the lands are situated did not assemble as a board of equalization in either of the years in question on the day fixed by statute nor on the following day. Held, that the omission to hold a session at the time and place designated by law also operated to defeat the alleged taxes; The board of equalization cannot lawfully assemble at a time and place other than that fixed by statute. The public is not chargeable with notice of any meeting of such board except that designated in the statute. Taxpayers are invited by the law to attend at an appointed session of the board, and present to the board any grievances which they may have on account of assessments made on their property. No other opportun - ity for a hearing is given, and, if no session is had at the time and place prescribed, there is no chance to be heard at all. This is fatal to the tax in all cases where the law bases the tax upon an official valuation, and, in terms gives the taxpayer an opportunity to be heard. Actual injury need not be shown; the law will presume an injury on grounds of public policy. The items paid by defendant at the tax sale and in subsequent years as taxes were not taxes in law, nor within the meaning of § 75, c. 28, Pol. Code (Comp. Laws, § 1640); and hence it was error to require, as the trial court did require, that said sums should be paid by plaintiff to defendant as a condition upon which the worthless tax deed would be vacated as a cloud on plaintiff’s title. Bartholomew, J., dissenting.</p>

PPEAL from district court, Grand Forks County; Hon. . Charles F. Templeton, Judge. Action by Thomas Illstad against Edward Anderson for a dissolution of a co-partnership and an accounting. Judgment for plaintiff. Defendant appealed.

PPEAL from district court, Traill county; Hon. Charles F. Templeton, Judge. Actions by Samuel Little against Helen M. Little .for the recovery of money dne on dissolution of a partnership. Judgment for plaintiff. Defendant appeals. Plaintiff could not sue for a money judgment, as there had been no settlement of the firm accounts.

A PPEAL from district court, Cass county; Hon. William jlx B. McConnell, Judge. Application by Budolph Evingson for a writ of certiorari to William G. Dance, a justice of the peace, to compel him to send to the district court a transcript of certain records. Writ granted and judgment entered. Bespondent appeals. The writ of certiorari will be granted only where there is no writ of error or appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy.

PPJEAL from district court, Cass county; Hon. William B. McConnell', Judge. Action by the First National Bank, of Fargo, against Matilda M. Boberts and others on a promissory note. Judgment for defendants. Plaintiff appeals.

RROR, to district court, Cass county; McConnell, Judge. Hon. William B. John Haas was convicted for an illegal sale of intoxicating liquors, and brings error, claiming the statute prohibiting the sale in certain cases to be unconstitutional. The facts and authorities cited by counsel are fully set forth in the opinion.

PPEAL from District Court, Traill County. ■ Hon. William B. McConnell, Judge. Action in equity by John L. Grandin and William J. Grandin against E. G LaBar to quiet title to land. Before trial, and without notice to defendant, a receiver was appointed to take the crops planted by defendant on the land, and from the order making such appointment defendant appeals. The appointmént of the receiver ex parte was error.

CROSS-APPEALS from district court, Cass county; Hon. William B. McConnell, Judge. Action by Charles H. Gould against the Duluth & Dakota Elevator Company for conversion. Yerdict for plaintiff. From an order setting aside the verdict and granting a new trial, both parties appeal.

PPEAL from district court, Pembina county; Hon. Charles F. Templeton, Judge. Action by George H. Fuller against the Northern Pacific Elevator Company for services rendered. Judgment for plaintiff. Defendant appeals.

PPEAL from district court, Grand Forks county; Hon.. Charles F. Templeton, Judge. • Action by tbe Second National Bank against James K. Swan for tbe value of certain wheat. Judgment for plaintiff. Defendant appeals. An owner of an equity of redemption has the right to assign, sell or transfer the same. Jones on Mortgages, § 6; Freeman on Executions, § 190; Tovle v. Richardson, 23 Am.

PPFAL from district court, Grand Porks county; Hon. Charles P. Templeton, J u dge. Action by the St. Paul Pire & Marine Insurance Company against Hiram D. Upton for insurance premiums. Judgment for plaintiff. Defendant appeals. There is no privity of contract between the plaintiff and defendant alleged in the complaint, and no such privity exists. Mahoney v. McLean, 26 Minn. 415; Davis v. Insurance Co., 135 Mass. 251; Bank v. Insurance Co., 29 Conn. 374.

PPEAL from district court, Cass County; Hon. William B. McConnell, Judge. Action by August W. Linton against the Minneapolis & Northern Elevator Company to recover the price of certain wheat. Judgment for plaintiff. Defendant appeals.

PPEAL from district court, Richland county; Hon. W. S. Lauder, Judge. Application of the Travelers’ Insurance Company for a writ of mandamus to C. L. Mayer, a justice of the peace for Rich-land county, to compel him to issue execution on a certain judgment. Writ allowed. Defendant appeals.

PPI?4i from tbe district court, Richland county; Hon. W. S. Lauder, Judge. Action by the Travelers’ Insurance Company against Gertrude Weber for unlawful detainer. Judgment for plaintiff. Defendant appeals. The facts and authorities cited are set out fully in the opinion.

PPEAL from district court, Grand Forks county; Hon. Charles F. Templeton, Judge. Action by the Haxtun Steam Heater Company against the Dakota Investment Company and others to determine the priority of liens on real estate. Judgment for plaintiff. Defendant appeals.

PPEAL from district court, Ricbland county; Hon. D. E. Morgan, Judge, presiding. Action on account for goods sold. Yerdict for plaintiffs by direction. Motion for new trial denied, and judgment entered on tbe verdict. From tbe judgment and order refusing a new trial defendant Harvey Gillitt appeals. The unauthorized statements of a person that a partnership exists between certain persons will not bind the . person so charged.

PPEAL from district court, Traill county; Hon. William B. McConnell, Judge. Proceeding by Nils N. Fore, administrator of Nils L. Fore, deceased, against tbe estate of Lars N. Fore, deceased. Judgment for defendant. Plaintiff appeals.

PPEAL from district court, Traill county; Hon. William B. McConnell, Judge.' Action by Arthur Edmonds and others against Peter Herbrandson and others, officers of Traill county, to restrain them from removing the county records from Caledonia to Hillsboro. Judgment for defendants. Plaintiffs appeal.

A PPEAL from district court, Barnes county; lion. Bod-/l erick Bose, Judge. Action by Ole J. Moe against tbe Northern Pacific Bailroad Company for damages arising from tbe death of bis son, caused by defendant's negligence. Yerdict and judgement for defendant under direction. Plaintiff appeals.

A PPEAL from district court, Richland county; Hon. W. XA. S. Lauder, Judge. Action by Edwards & McCulloch Lumber Company against L. P. Baker to recover for lumber sold. Yerdict and judgment for plaintiff. Defendant appeals. A party who receives a paper upon its face purporting to be a contract, as certain railroad and steamship tickets, will be conclusively presumed to have read and assented to its terms.

PPEAL from district court, Sargent county; Hon. W. Lauder, Judge. S. Action xo set aside certain'mortgage foreclosure proceedings. Judgment for plaintiff. Defendants appeal.

PPEAL from district court, La Moure county; Hon. W. , S. Lauder, Judge. Action to recover upon a contract of subscription to the capital stock in a creamery company. Judgment for plaintiffs. Defendant appeals. ■ It was predjudicial error to admit secondary evidence of the contract. Anglo-American Packing Co. v. Connor, 31 Eed.

PPHAL from district court, Burleigh county; Hon. Roderick Rose, Judge. Action by the Northern Pacific Railroad Company against Jerry .A. Barnes, county treasurer of McLean county, to restrain the sale of certain land for taxes. Judgment dismissing the action on demurrer. Plaintiff appeals. The sale of the plaintiff’s land is unauthorized because the taxes are void by reason of defects in the assessment and levy.

<p>A PPEAL from district court, Foster county; Hon. Bod-/I erick Bose, Judge.</p>

<p>PPEAL from district court, Stutsman and La Moure county; Hon. Roderick Rose, Judge.</p>

PPEAL from district court, Eddy county; Hon. Roderick Rose, Judge. Proceeding by Joseph Oleary against the county of Eddy to recover for his office rent and for fuel consumed by him while officer of defendant. Judgment for defendant. Plaintiff appeals. The action was properly commenced. Townsley v. County of’ Ozaukee, 18 N. W. Rep. 840; Waldo v. Manitowoc County, 11 N. W. Rep. 252; Compiled Laws, §§ 610-614.

<p>PPEAL from district court, Morton county; erice Rose, Judge. Hon. Rod-</p>

PPEAL from district court, Cass county; Hon. 'William B. McConnell, Judge. Action by John W. Jasper against Arthur H. Hazen to compel him to account for the proceeds of a farm and certain personal property. From an order overruling defendant’s demurrer to the oomplaint, defendant appeals.

<p>Fraudulent Conveyances — Want of Change of Possession.</p> <p>On the sale of a stallion in the possession of a bailee, the vendor, in the presence of the vendee, notified the bailee of such sale; but the vendor, with the consent of the vendee, continued after the sale to use the horse the same as before the sale, until the animal was seized under attachment by creditors of the vendor. Held, that there was not a sufficient, actual and continued change of possession to take the ease out of the provision of § 4657 of the Compiled Laws, and the sale was therefore void, under the evidence adduced, as to the creditors of the vendor who had attached the horse.</p>

A PPEAL from district court, Cass county; Hon. William /a. B. McConnell, Judge. Action by Garr, Scott & Co. against B. F. Spaulding for the possession or value of certain personal property, Judgment for plaintiffs. Defendant appeals.

PPEAL from district court, Foster county; Hon. Roderick Rose, Judge. Action by Jobn C. Yeatman against James King, tbe county of Foster, James Murphy, county treasurer, and Walter M. Moore, county auditor, to foreclose a real estate mortgage. Judgment for plaintiff. The defendant county and its treasurer and auditor appeal.

PPPJAL from district court, Stutsman county; Hon. Roderick Rose, Judge. Action by Foster R. Clement against F. H. Shipley to recover rent. Judgment for plaintiff on demurrer to the answer. Defendant appeals. After a mortgage sale and before the purchaser is entitled to a deed, the rents belong to the owner of the equity of redemprtion. Aster v. Turner, 43 Amer. Dec. 766; Cheney v. Woodruff, 45 N. Y. 101.

PPEAL from district court, Dickey county; Hon. W. S. Lauder, Judge. Action by Theodoras Northrup against William A. Cross, sheriff of Dickey county, to recover possession of certain personal property. Yerdict and judgment for plaintiff. New trial denied. Defendant appeals. The selection made by plaintiff was not sufficiently definite to enable him to recover his exemptions. Friedman v. Sullivan, 2 S. E. Rep. 785. The defendant, as sheriff, was guilty of no neglect of duty.

PPEAL from district court, Richland county; Hon. W. S. Lauder, Judge. Action by James H. Bostwick against the Minneapolis & Pacific Railway Company to recover damages for an injury to a horse. Verdict and judgment for plaintiff. From an order refusing a new trial defendant appeals. The horse was a trespasser at the time at which, and the place where the accident occurred.

PPEAL from district court, Bamsey county; Hon. D. E. Morgan, Judge. Action by the Merchants’ National Bank, of Devils Lake, against Frank W. Mann & Co. and Ever Wagness for conversion. From an order sustaining a demurrer to the complaint, plaintiff appeals. A chattel mortgage given upon property not in esse -is valid. Bank v. Elevator Co., 43 N. W. Bep. 806; Mitchell v. Winslow, 2 Story 630; McCaffrey v. Woodin, 65 N. V. 459; 4th Amer. & Eng. Enc. of Law, p. 903.

PPAEL from district court, Cass county; Hon. Boderiok Bose, Judge presiding. Proceedings on tbe relation of Alanson W. Edwards against Alfred C. Davis, for contempt of court. From an order adjudging defendant guilty, be appeals. Tbe judgment is appealable. Brinkley v. Brinkley, 47 N. Y. 40; Bailroad Co. v. Bailroad Co., 71 N. Y. 430; Carrington v. Bailroad Co., 52 N. Y. 583. Tbe judge presiding bad no authority or jurisdiction to bear tbe proceeding, or render judgment.

PPEAL from district court, Cass county; Hon. William B. McConnell, Judge. Action by J. Y. Parlin against Mabel E. Hall and George Brandenburg on an account for goods sold and delivered to defendant Hall. Erom a judgment for plaintiff, defendant Brandenburg appeals.

PPJEAL from district court, Ramsey county; Morgan, Judge. lion. D. E. Proceedings in mandamus by Louis W. Stoeser against Norman Brass to compel him to receive into his elevator grain belonging to relator. From an order sustaining a demurrer to defendant’s answer, and directing a peremptory writ to issue, he appeals.

BBOB to district court, Cass county; McConnell, Judge. Hon. William B. Prosecution againt Edward Eallon for an alleged assault with intent to commit robbery. Yerdict of guilty, and judgment thereon. Defendant brings error.

BBOB to district court, Cass county; Hon. William B. McConnell, Judge. Prosecution against James Smith for an alleged burglary and grand larceny. Defendant was convicted, and he brings error.

JUROR to district court, Richland county; Hon. W. S. Lauder, Judge. Prosecution against Martin O. Hazledahl for embezzlement. Yerdict of guilty, and judgment thereon. Defendant brings error.