Volume 20 — North Dakota Reports

Bwrke, J. Action by William Scbeer against Clinton Falls Nursery Company.. From a judgment in plaintiff’s favor and from an order overruling defendant’s motion for a new trial, defendant appeals.

II. Winchester, J. Civil action by Gilbert Holtan against John A. Beck for the purpose of obtaining the remedy formerly obtainable by the writ of quo warranto in trying the opposing claims of plaintiff and defendant to the office of sheriff of McLean county. A judgment was entered declaring the plaintiff entitled to the office, and ousting defendant, from which judgment defendant appeals. When causes creating a vacancy arise, it exists regardless of the action of the board.

Action by St. Anthony & Dakota Elevator Company against Dawson & Byfield. Judgment for defendant, and plaintiff appeals. Where a warrantor of title is notified to defend a suit for the breach of such title and fails to defend, the recovery in such suit fixes the damage. 24 Am. & Eng. Enc. law, pp. 740 — 742; 2 Black, Judgm. §§ 572, 574; 22 Cyc. law & Proc. p. 106; First Nat. Bank v. First Nat. Bank, 68 Ohio St. 43, 67 N. E. 92.

<p>Appeal from District Court, Emmons county, W. H. Winchester, J.</p> <p>Action by John J. Stubbs against W. Gr. Hoerr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Burleigh county; W. H. Winchester, J.</p> <p>Action by Burleigh County against Kidder County. Judgment for plaintiff, and defendant appeals.</p> <p>Appellant being ultimately liable on the obligation, statute began to run when respondent paid it. State v. Baker County, 24 Or. 141, 33 Pac. 530; Frank v. Brewer, 54 Hun, 633, 26 N. Y. S. B 590, 7 N. Y. Supp. 182; Barnsback v. Beiner, 8 Minn. 59, Gil. 37; Bichter v. Henningsan, 110 Cal. 530, 42 Pac. 1077; Mt. Desert v. Tremont, 75 Me. 253.</p> <p>Statute of limitations applies to counties. 19 Am. & Eng. Enc. Law, 2d ed. p. 191. It is a meritorious plea. Wheeler v. Castor, 11 N. D. 347, 61 L.B.A. 746, 92 N. W. 381; Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84.</p> <p>Legislature may impose burdens upon counties. Laramie County v. Albany County, 92 U. S. 307, 23 L. ed. 552; Guilder v. Dayton, 22 Minn. 366; State ex rel. Slipp v. McFadden, 23 Minn. 40; State ex rel. Atty. Gen. v. Pawnee County, 12 Kan. 426; Re Division of Howard County,' 15 Kan. 194; Sedgwick County v. Bunker, 16 Kan. 498; McDonald v. Maddux, 11 Cal. 187; State ex rel. Police Comrs. v. County Ct. 34 Mo. 546; Depere v. Bellevue, 31 Wis. 120, 11 Am. Rep. 602; Stone v. Charlestown, 114 Mass. 214.</p> <p>Trustee of a direct trust,- when sued by beneficiary, cannot plead statute of limitations. Yon Hoffman v. Quincy, 4 Wall. 554, 18 L. ed. 410; Lincoln County v. Luning, 133 TJ. S. 529, 532, 33 L. ed. 766, 768, 10 Sup. Ct. Rep. 363; Parish School Directors v. Shreveport, 47 La. Ann. 1310, 17 So. 823; Maenhaut v. New Orleans, 2 Woods, 108, Fed. Cas. No. 8,939; In Bullard v. Bell, 1 Mason, 243, Fed. Cas. No. 2,121.</p> <p>Where a statute expressly enjoins a duty, such duty cannot be excused by statute of limitations. Coster v. Murray, 5 Johns.- Ch. 522; Oliver v. Piatt, 3 How. 409, 11 L. ed. 657; Lewis v. Hawkins, 23 Wall. 119, 23 L. ed. 113; Rush County v. State, 103 Ind. 497, 3 N. E. 165; State ex rel. Hord v. St. Joseph County, 90 Ind. 359; Harrodsburg v. Harrodsburg Educational Dist. 9 Ky. L. Rep. 605, 7 S. W. 312; Underhill v. Sonora, 17 Cal. 173; Union P. R. Co. v. Durant, 95 U. S. 576, 24 L. ed. 391; State ex rel. Hudson v. Trammel (Mo.) 11 S. W. 747; Sawyer v. Colgan, 102 Cal. 283, 36 Pac. 580, 834; State ex rel. Davis v. Lincoln County, 23 Nev. 262, 45 Pac. 982.</p> <p>Not until funds are in the treasury, properly applicable, will the statute begin to run. State ex rel. Davis, v. Lincoln County, supra; Spaulding v. Arnold, 125 N. Y. 194, 26 N. E. 295; Sawyer v. Colgan, supra; Gasquet v. Directors of City Schools, 45 La. Ann. 342, 12 So. 506; King Iron Bridge & Mfg. Co. v. Otoe County, 124 U. S. 459, 31 L. ed. 514, 8 Sup. Ct. Rep. 542.</p>

T. Bwrke, J. Action by Andrew P. Porzen against Warren W. Hurd, for damages occasioned by a prairie fire. Plaintiff bad judgment and defendant appeals. The master, to be liable for servant’s acts, must have such control over bim as to be able to direct bis performance of service, and prescribe tbe acts to accomplish tbe end. Callaban v. Burlington & M. River R. Co. 23 Iowa, 564; St. Louis, Pt.

G. Burr, J. Action by Charles Bergstrom against Kasja Svenson. Judgment for plaintiff, and defendant appeals. Iieirs of devisees of deceased entryman take as grantees of the government, not by inheritance. Bernier v. Bernier, 147 H. S. 242, 37 L. ed. 152, 13 Sup.

<p>Criminal Daw — Intoxicating Diquors — "Words and Phrases — “One Place” — Election between Acts.</p> <p>1. Defendant was tried and convicted of the crime of keeping and maintaining a liquor nuisance in a certain building situated in the city of Minot, a particular description of the place not being designated. The proof showed that at the date the offense was committed defendant conducted a hotel, and that in the rear of such hotel, and but 3 feet therefrom, is a small building, with a sidewalk between them and a narrow passageway, and that, to gain entrance to or exit from such small building, it was necessary to pass through the hotel. The proof shows that defendant made sales of intoxicating liquor, both in the basement of the hotel and in this little building in the rear. Held, under the facts, that both structures were used by defendant together for the convenient conduct of the prohibited traffic, and that within the meaning of § 9373, Rev. Codes 1905, they constituted “one place” for the maintenance of such nuisance. Hence it was not error to deny defendant’s motion to require the prosecution to elect which building they would rely on as the place where the nuisance was maintained.</p> <p>Intoxicating Diquors — Nuisance — Judgment of Abatement.</p> <p>2. Following the rule announced in State v. .Poull, 14 N. D. 557, 105 N. W. 717, held that, upon conviction for keeping and maintaining a liquor nuisance, the court is not authorized to direct the abatement of such nuisance, where the indictment or information fails to particularly describe the place where such nuisance is maintained.</p> <p>Intoxicating Diquors — Conviction — Diera for Fine and Costs — Harmless Error.</p> <p>3. The judgment upon a conviction for keeping and maintaining a liquor nuisance adjudged that a lien be established for the amount of the fine and costs against the property on which the evidence discloses that such nuisance was maintained.</p> <p>Held that, even if this was error, was nonprejudicial, for the reason that the proof discloses defendant to be the owner of such property, and under § 9379, Rev. Codes 1905, such fine and costs are made a lien on all of defendant’s real property until paid.</p>

<p>Appeal and Error — Failure to Serve Undertaking with Notice — Permission to File Hater.</p> <p>Appellant served notice of appeal on March 1, 1909, but did not serve the undertaking on appeal until twenty-three days later. Both were filed with the clerk of the district court on March 26th. Respondent moves to dismiss the appeal for failure to serve a copy of the undertaking with the notice of appeal as required by § 7220, Rev. Codes 1905.</p> <p>Meld, that such failure i.. .„t jurisdictional, and that the facts present a proper case entitling appellant to invoke the aid of § 7224, which provides: “When a party shall in good faith give notice of appeal and shall omit through mistake or accident to do any other act necessary to perfect the appeal to make it effectual or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof or the supreme court, or any one of the justices thereof, may permit an amendment or the proper act to be done on such terms as may be just.”</p> <p>Appellant is accordingly permitted, on payment of $25 terms, to furnish a new undertaking or make a cash deposit as prayed for.</p>

<p>Judgment — Trial by Court — Time for Entry — Effect of Delay.</p> <p>1. Section 7039, Rev. Codes 1905, providing, upon the trial of any question or issue of fact by the court, its decision thereon and conclusions of law upon such decision and direction for entry of judgment in accordance with such conclusions must be given in writing and filed with the clerk within sixty days after the cause has been submitted for decision, does not make void a judgment rendered after the expiration of that period.</p> <p>Courts — Change of Judicial Districts — Effect Upon Judgments — Validity.</p> <p>2. After an action in Williams county was tried, and before it was decided, the county was by chapter 116, Laws 1903, detached from the second judicial district, and with other counties formed into the eighth judicial district. Reid, that a judgment in such action entered on an order of the judge of the second judicial district, filed thereafter, was at most voidable, and the party complaining of such judgment not having made an application to vacate the same as provided by § 6766, Rev. Codes 1905, the judgment is valid.</p> <p>Judgment — Relief in Equity — Effect of Fraud or Accident.</p> <p>3. In an action in equity to obtain a new trial of an action at law or to be relieved from a judgment entered in such action, on the ground that the party complaining has been deprived of the right to have his case reviewed in the supreme court, it must appear that in the trial thereof matters were determined adversely to the party complaining, to the prejudice of his interests, and that he was, by fraud or accident, deprived of his constitutional right to be heard thereon in the court of last resort, and that he was' himself without fault.</p>

<p>Appeal from District Court, Cass county; Polloclc, J.</p> <p>Action by Lydia Ottow against August Friese and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Stutsman county; Burke, J.</p> <p>Action by C. L. Miller against Gussie B. Smith and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Bottineau County Court; Kirk, J.</p> <p>William Ii. Fleming was convicted of assault and battery, and be appeals.</p>

Tbor Moeller was convicted of murder, and appeals from tbe judgment and an order denying a new trial. i Statements, acts in themselves or accompanying other acts, and part of the res gestos, brought home to one conspirator, are evidence against the other if it appears that they were used in furtherance of a common design. 1 Greenl. Ev. §§ 110, 111; 3 Greenl. Ev. § 94; Wharton, Grim. Law, 4th ed. §§ 704, 705; 2 Rice, Ev. chap. 30, p. 807 & § 336; 3 Enc.

F. Templeton, J. Action by Cleveland School District, a corporation, against Great Northern Railway Company, a corporation. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. The value of the trees destroyed, as they stood at the time of the fire, is the true measure of damages.

BwrTce, J. Action by James Hackney against Thomas L. Adam. From a judgment for plaintiff, and an order denying defendant’s motion to vacate an award, defendant appeals. Making and filing an award ends the powers of arbitrators. 2 Am. & Eng. Enc. Law, p. 698; Dolce v. James, 4 N. Y. 568; Fallon v. Kelehar, 16 Hun, 266; Calvert v. Carter, 18 Md. 73; Flannery v. Sahagian, 134 N. Y. 85, 31 N. E. 319.

<p>Appeal from District Court, Nelson county; Ghas. F. Temple-ion, J.</p> <p>Method of acquiring jurisdiction on appeal is established. Eld.ridge v. Knight, 11 N. D. 552, 93 N. W. 860; Deardoff v. Thorsten.sen, 16 N. D. 355, 113 N. W. 616.</p> <p>General appearance confers jurisdiction. Steven v. Nebraska & X Ins. Co. 29 Neb. 187, 45 N. W. 284; Goodrich v. Omaha, 11 Neb. 204, 7 N. W. 442; Auspach v. Ferguson, 71 Iowa, 144, 32 N. W. 249; Baisiey v. Baisiey, 113 Mo. 544, 35 Am. St. Rep. 726, 21 S. W. 29; Drear v. Clough, 52 Mo. 55; Peters v. St. Louis & I. M. R. Co. 59 Mo. 406; Shaffer v. Trimble, 2 G. Greene, 464; Grafton v. Union Ferry Co. 40 N. T. S. R. 137, 13 N. T. S. 878; Stanton v. Haverhill Bridge, 47 Yt. 172; Harvey v. Skipwith,. 16 Gratt. 410; Marye v. 'Strouse, 6 Sawy. 204, 5 Fed. 494, 2 Mor. Min. Rep. 294; Miller v. State, 35 Ark. 276; Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315; IVm. Deering & Co. v. Venne, 7 N. D. 576, 75 N. W. 926; Benoit v. Revoir, 8 N. D. 226, 77 N. W. 605; Moorhouse v. Donica, 13 Or. 435, 11 Pac. 71; Hayworth v. Rogan, 77 Tex. 362, 14 S. W. 70; Matthews v. Superior Court, 70 Cal. 527, 11 Pac. 665; Shay v. Superior Court, 57 Cal. 541; Morgan v. Garretson & G. Lumber Co. 105 Mo. App. 239, 79 S. W. 997.</p> <p>Appeal statutes are mandatory, and compliance therewith jurisdictional. Richardson v. Campbell/ 9 N. D. 100, 81 N. W. 31; Haessly v. Thate, 16 N. D. 403, 114 N. W. 311; Deardoff v. Thorstensen, 16 N. D. 355, 113 N. W. 616; Eldridge v. Knight, 11 N. D. 552, 93 N. W. 860; Lough v. White, 14 N. D. 353, 104 N. W. 518; Thompson v. Fargo Heating & Plumbing Co. 14 N. D. 405, 104 N. W. 525.</p> <p>Statutory provisions as to appeals are mandatory. Ramsdell v. Duxberry, 14 S. D. 222, 85 N. W. 221, 17 S. D. 311, 96 N. W. 132; Brown v. Chicago, M. & St. P. R. Co. 10 S. D. 633, 66 Am. St. Rep. '730, 75 N. W. 198; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. •85; Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006; Gruetzmacher v. Wanninger, 113 Wis. 34, 88 N. W. 929.</p>

<p>Appeal from District Court, Foster county; Hon. E. T. Burke, J.</p> <p>Action by George Yokell against A. O. Elder. Judgment for plaintiff, and defendant appeals.</p>

H. Winchester, J. Action by the State against Frank E. Funk and another. Judgment for plaintiff, and defendants appeal. Act of God excuses performance of conditions of bail bond. Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287; Pynes v. State, 45 Ala. 52; McKee v. Com. 7 Ky. L. Eep. 286; People v. Meyer, 9 Misc. 726, 29 N. T. Supp. 1148, 5 Cyc. Law & Proc. p. 115, and note 42; Conner v. State, 30 Tex. 94.

<p>Appeal and Error — Statement of Case — Motion to Strike Out.</p> <p>1. In this case, which was tried under § 7229, Rev. Codes 1905, counsel for appellants, after the entry of judgment, caused to be served upon counsel for respondents a proposed statement of the case, consisting of six typewritten pages relating to eighty-seven exceptions, also containing a specification that appellants desire a review of the entire case in the supreme court. No proposed amendments were ever served. In due time and without notice to respondents, the trial court made an order settling a statement of the case, which statement contains a complete and literal transcript of the stenographer’s minutes, including all objections, motions, rulings, and exceptions appearing therein, and all of the evidence offered, including exhibits and proceedings had upon the trial. A motion by respondents to strike the proposed statement of the case, excepting only the six typewritten pages relating to the eighty-seven exceptions, and also to strike from the printed abstract so much of the same as relates to the statement of the case and the stenographer’s minutes and the exhibits and all of the abstract, excepting the judgment roll, is denied.</p> <p>Mortgage's — Equitable' Assignment — Deed of Mortgagee.</p> <p>2. By virtue of his purchase of the premises in controversy from Galloway in the summer of. 1896, appellant E. L. Tureotte succeeded to whatever rights Galloway- had in said promises, and became the equitable assignee of the mortgage executed by plaintiff Blessett to Galloway January 25, 1890.</p> <p>Mortgages — Mortgagee in Possession — Equity — Adverse Claims — Conditions Precedent to a Recovery.</p> <p>3. In an actiop. by parties out of possession against a party in possession to determine adverse claims to real estate, which adverse claims are based upon a mortgage owned by defendant and a tax deed, which mortgage authorized the owner thereof to pay the delinquent taxes upon the premises covered by the mortgage and add the amount to his mortgage debt, before the plaintiffs are entitled to the relief prayed for, they must do equity and reimburse the defendant for all taxes paid by him, and also pay him the amount due upon his mortgage.</p>

Cowan, J. Action by Robert Cochrane against the National Elevator Company. Erom a judgment for plaintiff and an order denying a new trial, defendant appeals. Newspaper reports of market prices are not competent. Whelan v. Lynch, 60 N. Y. 469, 19 Am. Rep. 202; Nelson, Morris & Co. v. Columbian Iron Works & Dry Dock Co. 76 Md. 354, 17 L.R.A. 851, 25 Atl. 417; Texas & P. R. Co. v. Slator (Tex. Civ. App.) 102 S. W. 156. Appellant’s habit or system of doing business may be shown.

Application by the State for the issuance by the Supreme Court of a prerogative writ to enjoin County Commissioners of Pembina County from submitting to the electors of such county the question of the removal of the county seat from the City of Pembina to the city of Cavalier.

<p>Appeal from District Court of Ward county; Goss, J.</p> <p>Action to redeem from sheriff’s deed on the foreclosure ot a mortgage. Judgment for plaintiff. Defendant appealed. !</p> <p>Authority to collect a mortgage debt, foreclose such mortgage, and receive money upon redemption, does not authorize extension of period to redeem. Narcher v. Gans, 13 S. D. 383, 79 Am. St. ¡Rep. 893, 83 N. W. 1-31; Wilken v. Voss, 120 Iowa, 500, 91 N. W. 1123; Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 721; Gilbert v. Garber, 62 Neb. 161, 87 N. W. 179; Western White Bronze Co. v. Portrey, 50 Neb. 801, 70 N. W. 383; Union School Furniture Co. v. Mason, 3 S. D. 117, 52 N. W. 671; National Bank v. Johnson, 6 N. D. 180, 69 N. W. 19; First Nat. Bank v. Prior, 10 N. D. 116, 86 N. W. 362.</p> <p>Acts amounting, in legal effect, to a redemption must be shown. Dunn v. Hunt, 63 Minn. 181, 65 N. W. 918; Dawson v. Overmyer, 111 Ind. 138,10 N. E. 1065; Hoopes v. Bailey, 28 Miss. 328; Hyman v. Bogue, 135 111. 9, 26 N. E. 10; Ohielovich v. Krauss; Brown v. Smith, 13 N. D. 580, 102 N. W. 171.</p> <p>In an equitable action to redeem, tender is unnecessary. Oasserly v. Witherbee, 119 N. T. 522,- 23 N. E. 1000.</p>

T. Burke, J. Action by the Colean Manufacturing Company against M. L. Beckler. and others. Verdict directed for plaintiff, and, from an order granting a new trial, plaintiff appeals.

Court,'Foster county; Edward T. Burke, J. Action by the Northern Pacific Railway Company against Harriet A. Barlow. Judgment for plaintiff, and defendant appeals. A stipulation of facts between litigants has the force of a contract, ór a verdict of a jury, ánd requires the same, or as strong reasons, to set it aside or vacate it. Bingham v. Winona County, 6 Minn. 136, Gil. 87; Rogers v. Greenwood, 14 Minn. 333, Gil. 256; 1 Greenl. Ev. 206; Gresley, Eq.

T. Burke, J. From a judgment in defendant’s favor and from an order denying a motion for a new trial, plaintiff appeals.

<p>Appeal from District Court, Burleigh county, W. H.. Winchester, J.</p> <p>From a conviction of the crime of escaping from prison, defendant appeals.</p>

B. Goss, -J. Action in statutory form by Michael J. Borden, against Martha A. Graves and others, to determine adverse claims to real property. Plaintiff had judgment, defendant Graves appeals. [Rowan did not own the coupons and could not foreclose the mortgage securing them. State Finance Co. v. Commonwealth Title Ins. & T. Co. 69 Minn. 219, 72 N. W. 68; Jones, Mortg. § 476; Kellogg v. Smith, 26 N. T. 18; Brown v. Blydenhurgh, 7 N. T. 141, 57 Am.

W. R. Winchester, J. Action by Catherine Meighen against William E. Chandler, substituted for Josephine Chandler and D. E. Chandler. Erom a judgment in favor of the defendants, plaintiff appeals. As between the husband’s creditors and the wife, contesting over property claimed by her- and with probable grounds to believe it his, the wife must show by satisfactory evidence that she owns it.

H. Winchester, J. Action by Northern Pacific Railway Company against S. S. Aas, to-determine adverse claims to a right of way over certain lands in Stark County. Plaintiff had judgment and defendant appeals.

A. Polloclc, J. Action by tbe Page Farmers’ Elevator Company against W. J. Thompson. From an order sustaining a demurrer to the complaint, plaintiff appeals. Where corporate officers purchase property and resell it to the corporation, and, by false representations as to its cost, receive from the corporation a sum in excess of the purchase price, secretly keeping the difference, they are liable to such corporation for such difference. 21 Am. & Eng. Ene.

Allen, J. Action by F. A. Patrick & Co. a corporation, against James M. Austin, executor of the estate of Kate Austin Angelí, deceased. From judgment in favor of plaintiff, defendant appeals. There can be but one claim presented. Boyd v.- Von Neida, 9 N. D. 337, 83 N. W. 329; Farwell v. Richardson, 10 N. D. 34, 84 N. W. 558; Gillespie v. Wright, 93 Cal. 169, 28 Pac. 862. Administrator cannot extend time to present claims against the estate of decedent.

'Appeal from District Court, Grand Forks county; C. F. Temple-ton, J. . ■ Action by Emerado Farmers Elevator Company against The Farmers Bank of Emerado, to recover a balance alleged to have been received by it upon deposit. Plaintiff had judgment, and defendant appeals.

Defendant was informed against for murder in the first degree. He pleaded “guilty as charged in the information.” The court submitted the question of punishment to a jury, and it determined that the death penalty should be inflicted. Sentence of death was pronounced pursuant to verdict. Defendant appeals.

Action to determine adverse claims to real property. From a judgment quieting title in plaintiffs, defendants Grigsby and Day appeal. There must be statutory authority to make the record of a certified copy of an instrument notice or evidence. Devlin, Deeds, § 665 ; Lund v. Bice, 9 Minn. 230, Gil. 215;. Central Trust Co. v. Georgia P. E. Co. 83 Fed. 397; Porter v. Dement, 35 111. 478.

<p>Negligence — Defective Highways — Degree of Care of User.</p> <p>1. It is not negligence, as a matter of law, for a person to drive upon a dangerous or defective highway, knowing it to he such, unless the dangerous or defective condition is such that a person of ordinary prudence would not attempt to drive over it.</p> <p>Same.</p> <p>2. Knowledge of the dangerous condition of a highway, however, imposes a duty upon a traveler to exercise such care as the circumstances demand.</p> <p>Note. — That the rule stated in Solberg v. Schlosser, that it is not per se negligent to use a highway known to be defective, if it is not so dangerous that no prudent person would attenipt to use it, is the general rule universally applied, as shown by a review of the authorities in an elaborate note in 21 L.R.A.(N.S.) 614, in which the whole question of contributory negligence as affecting liability for defects and obstructions in streets is considered. This note assumes the existence of a defect or obstruction sufficient to impose liability, and considers only the effect on that liability of the contributory negligence of the person injured: while the question of the municipality’s liability for creating or permitting defects or obstructions is treated at length in another note in 20 L.R.A.(N.S.) 513.</p> <p>The question of liability for the act of an independent contractor affecting the safety of highways is treated in notes in 66 L.R.A. 126, and 17 L.R.A. (N.S.) 758, while the question, “Who are independent "contractors,” is the subject of a note in 65 L.R.A. 447.</p> <p>As to law of streets and highways generally, see note to Heckman v. Evenson, 7 N. D. 173.</p> <p>Defective Highways — Question for Jury.</p> <p>3. In. ease of conflict in the evidence as to the condition of a highway at a point where it is claimed to have been dangerous for travel, it is a question for the jury to determine whether it was dangerous or not.</p> <p>Negligence — Contributory Negligence — Question for Jury.</p> <p>4. Where the evidence is such that diiferent persons may reasonably reach different conclusions, the question of the negligence of the defendant and of the contributory negligence of the plaintiff is for the jury.</p> <p>Pleading — Contract or Tort.</p> <p>5. The complaint considered and held to set forth a cause of action for a violation of a duty not to render a highway dangerous by placing and leaving dirt thereon in a negligent manner, and not to state a cause of action on a breach of contract.</p> <p>Master and Servant — Independent Contractor — Contract with Drainage Board.</p> <p>6. A person contracting with a drainage board to construct a drain under plans and specifications where he has sole control of the work, and the board has no control or superintendence thereof, is an independent contractor, and not the agent of the board.</p> <p>Highways — Obstruction — Liability for Damage.</p> <p>7. Any person who wrongfully renders a public highway dangerous for travel by placing obstructions thereon must respond in damages to anyone injured in consequence of such obstruction.</p>

<p>Appeal from District Court, Cass county; Hon. Charles A. Polio clc, J.</p> <p>Action by John Leisen against the St. Paul Fire & Marine Insurance Company. From an order overruling a demurrer to the complaint, defendant appeals.</p>

A. G. Burr, J. Action by the state of North Dakota against Charles F. Merry. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. False pretenses must not relate to future events. People v. Blanchard, 90 N. T. 314; 5 Criminal Defenses, 366 — 371, and cases cited; People v. Wakely, 62 Mich. 297, 28 N. W. 871; Blum v. State,'20 Tex. App. 578, 54 Am. Pep. 530; 5 Criminal Defenses (Sup.) 1033, 1035-1038.

G. Burr, Special Judge. Defendant Daniel Heidt was convicted of criminal contempt for the violation of an injunctional order enjoining him from maintaining a liquor nuisance. From a judgment of conviction he appeals.

<p>Appeal from District Court, Stark county; A. G. Burr, Special Judge.</p> <p>Paul Koch was convicted of criminal contempt, and appeals.</p>

<p>Appeal from District Court, Stark county; A. G. Burr, Special Judge.</p> <p>J. A. McAndress was convicted of criminal contempt, and appeals.</p>

<p>Appeal from District Court, Stark county; A. Q-. Burr, Special Judge.</p> <p>Paul Messer was convicted of criminal contempt, and appeals.</p>

<p>Appeal from District Court, Stark county; A. G. Burr, Special Judge.</p> <p>John Andor was convicted of criminal contempt, and appeals.</p>

Contest on an election held to vote upon the creation of the new county of Renville. Failure to comply with a registration law invalidates an election. Cooley, Const. Lim. 757; Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632; People ex rel. Foley v. Kopplekom, 16 Mich. 342; State ex rel. Doerflinger v. Hilmantel, 21 Wis. 574; State ex rel.. Bancroft v. Stumpf, 23 Wis. 630; State v. Butts, 31 Kan. 537, 2 Pac. 618; Pope v. Williams, 98 Md. 59, 66 L.R.A. 398, 103 Am.

E. T. Burhe, J. Action by Greenfield School District et al against Hannaford Special School District et al. From a judgment in favor of the plaintiffs, defendants appeal. The fact that the board made the order of annexation presumes full compliance with law prior thereto. Pine Tree Lumber Co. v. Fargo, 12 N. D. 360, 96 N. W. 357; Nofire v. United States, 164 U. S. 657, 41 L. ed. 588, 17 Sup. Ct.

<p>Taxation — Void Taxes — Recovery from County.</p> <p>1. Under § 1585, Rev. Codes 1905, the fee owner of land not subject to taxation or a person claiming to be such, can recover from the county moneys paid to redeem from a tax sale, even though such tax sale has not been previously adjudged void. Van Nest v. Sargent County, 7 N. D. 139, 73 N. W. 1083, distinguished.</p> <p>■Sufficiency of Complaint.</p> <p>2. Complaint examined, and held to state facts sufficient to constitute a cause of action.</p> <p>¡Practice — Abatement of Void Taxes — Application to Board of County Commissioners before Action.</p> <p>3. Respondents’ contention that appellant’s proper remedy was an application to the board of county commissioners for an order abating the taxes considered, and held untenable.</p> <p>Note. — As to right to recover money paid for illegal taxes, see notes in 11 L.R.A. <N.S.) 1104 and 16 L.R.A.fN.S.) 685.</p>

<p>Appeal from District Court, Foster county; Burke, J.</p> <p>Petition by Lyman N. Miller praying that a writ of mandamus be issued ordering and directing the defendant, C. W. Burnham, as county auditor of Foster county, to file in his office appellant’s petition. From an order denying the petition, petitioner appeals.</p>

F. Templeton, J. Action by George Schlosser against the Great Northern Railway-Company. From a judgment for plaintiff, and from an order denying a. motion for judgment notwithstanding the verdict and for a new trial, defendant appeals.

E. B. Goss, J. Action by F. H. Stoltze v. H. A. Hurd, J. A. Roell, Margaret Roell, The Fidelity Mutual Life Insurance Company, a Corporation. From order overruling demurrer to complaint, defendants appeal. If the contract under which the work was done was joint, the lien must be joint, or not at all. Sergeant v. Denby, 87 Ya. 206, 12 S. E. 402; Phillips v. Gilbert, 101 H. S. 721, 25 L. ed. 833; Fullerton v. Leonard, 3 S. D. 118, 52 N. W. 325; Holland v. Cunliff, 96 Mo.

<p>Appeal from District Court, Barnes county; Edward J. Burlce, J.</p> <p>Action by Herman Winterer against the Minneapolis, St Paul, & Sault Ste. Marie Railway Company. Judgment for plaintiff, and defendant appeals.</p>

Certiorari by James L. Smith, to review the action of the judge of the eighth judicial district in denying an application to extend the time for the purpose of settling a statement of the case to be used oh appeal.

F. Templeton, J. Application by the State on the relation of Bitbulitic & Contracting, Ltd., against M. F. Murphy and others for mandamus. From an order denying a peremptory writ, relator appeals.

<p>Appeal from the County Court, McHenry county; Honorable Horace Hagley, J.</p> <p>Action by the State of North Dakota against Henry Gutterman.</p> <p>From a judgment in favor of plaintiff, defendant appeals.</p>

Action by William Acton against Fargo & Moorhead Street Bail-way Company. From an order denying defendant’s motion for judgment notwithstanding the verdict, or for a new trial, and from the judgment, defendant appeals. One traveling by night on a railway track must watch for approaching cars. Adolph v. Central Park, N. & E. Biver B. Co. 76 N. Y. 532; North Hudson County B. Co. v. Isley, 49 N. J. L. 468, 10 Atl. 665; Wood v. Detroit City B. Co. 52 Mich. 402, 50 Am.

F. Templeton, J. 1 Action by Robert Auld and Bertha Johanna McGaffney against F. W. Cathro, Laura M. Dana, and Gertrude G. Dana. From an order denying a motion for a new trial, contestants appeal. Undue influence is to be measured with regard to the mental and physical condition of the person influenced. Woerner, Am. Law of Administration, 48; Dunaway v. Smoot, 23 Ky. L. Rep. 2289, 67 S. W. 62; Juzan v. Toulmin, 9 Ala. 663, 44 Am.

J. Kneeshawj J. Action by plaintiff to determine adverse claims to real property. From a decree in favor of defendant, 'plaintiff appeals. Execution sale of homestead passes no title. Johnson v. Twichell, 13 N. D. 426, 101 N. W. 318; N. D. Eev. Codes 1905, § 5049; 2 Freeman, Executions, ¶ 315; Thompson, Homestead & Exemption, 625; Kingman v. O’Callaghan, 4 S. D. 628, 57 N. W. 912.

C. Crawford, J. Action by Samuel Randall and Duncan Ferguson against John Johnstone. From an order overruling a, demurrer to the complaint, defendant appeals. In an action to cancel a contract, each signer is a proper party to the action. Thompson v. Coffman, 15 Or. 631, 16 Pac. 713; Ex parte Fulton, 7 Cow. 484; Scheid v. Leibshultz, 51 Ind. 38; Kendall v. Kendall, 7 Me. 171; Staples v. Wheeler, 38 Me. 372; Clark v. Raw-son, 2 Denio, 135.

'A. Pollock, J. Action by Fred W. Lohr against Willis T. Honsinger. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.

<p>Appeal from County Court, Ransom county; Honorable F. 8. Thomas, J.</p> <p>Action by tbe state of North Dakota against Eloyd Miller. From a judgment in favor of plaintiff, defendant appeals.</p>

HI Winchester, J. Action by the State of North Dakota against C. H. Albertson. From an order denying defendant’s motion for a new trial, defendant appeals. General powers of a court authorize a bill of particulars in criminal cases. Com. v. Snelling, 15 Pick. 321; Bex v. Hodgson, 3 Oar. & P. 422; Bex v. Bootyman, 5 Car. & P. 300; State v. Conlin, 27 Yt. 323;. State v. Freeman, 27 Yt. 525; State y. Bacon, 41 Vt. 532, 98 Am, Dec. 616; State y. Bowe, 43 Yt. 267.

H. Winchester, J. Action by the State of North Dakota against George Robidou. From an order denying defendant’s motion for a new trial, defendant appeals. Accepting a juror who conceals his unfitness is no waiver. State v. Stockman, 9 Kan. Appi 422, 58 Pac. 1032; Heasley v. Nichols, 38 Wash. 485, 80 Pac. 769; Moody v. Pearce, 7 J. I. Marsh. 221. If prejudice might have resulted from juror’s misconduct, it is presumed, and a new trial should be granted.

<p>Appeal from District Court, Ramsey county; John F. Oowan, J.</p> <p>Appeal from an order refusing to vacate a judgment by default.</p> <p>Motion was made with sufficient promptness. Minnesota Thresher Mfg. Co. v. Holz, 10 N. D. 16, 84 N. W. 581; Wheeler v. Castor, 11 N. D. 347, 61 L.R.A. 746, 92 N. W. 381; Bloor v. Smith, 112 Wis. 340, 87 N. W. 870; Searles v. Christensen, 5 S. D. 650, 60 N. W. 29.</p> <p>There was no negligence on the part of attorneys to warrant denial of motion. Whereatt v. Ellis, 70 Wis. 207, 5 Am. St. Rep. 164, 35 N. W. 314; 23 Cyc. Law & Proc. p. 942; Merchants’ Bank v. Mills, 3 E. D. Smith, 210.</p> <p>Negligence of attorney is imputable to his client. 23 Cyc. Law & Proc. p. 939; Williamson v. Cummings Rock Drill Co. 95 Cal. 652, 30 Pac. 762; Shearman v. Jorgensen, 106 Cal. 483, 39 Pac. 863; Sanborn, V. & Co. v. Centralia Furniture Mfg. Co. 5 Wash. 150, 31 Pac. 466.</p> <p>Statement of Pacts.</p> <p>This is an appeal from an order denying defendant’s motion to be relieved from a default judgment taken against her for want of an answer or appearance, and for leave to answer and defend upon the merits. The record discloses that such default judgment was entered December 30, 1907, and that on August 12, 1908, defendant, by her attorneys, caused notice of motion to vacate the judgment to be served on plaintiff’s attornéys, the motion being returnable August 22d. The motion was finally submitted to the trial court on October 16, 1908, and on May 24, 1909, the order complained of was made. Numerous-errors are assigned upon such order.</p> <p>In addition to the files and records in the case and a proposed verified answer, the moving papers submitted to the trial court in support of the motion to vacate the judgment consisted of the affidavits of M. W. Duffy, Margaret Duffy (the defendant), M. II. Brennan, and' Henry M. Gray, and also affidavits of certain persons engaged in the real-estate business at Devils Lake, which latter affidavits merely tend to show that the damages assessed in the judgment are excessive.</p> <p>In order that there may be a clear understanding of the showing: made in the court below upon the questions relative to the principal basis of the motion, to wit, “that such default judgment was taken against the defendant through her mistake, inadvertence, surprise,, and excusable neglect,” we deem it necessary to set forth in full the affidavits in so far as they relate to such ground. The affidavit of M. W. Duffy is as follows:</p> <p>“M. W. Duffy, being first duly sworn, deposes and says that he is the son of the defendant, Margaret Duffy, in the above-entitled! action; that ever since the death of his father, Maurice Duffy, in 1898, he has conducted practically all business for the said defendant, and has at all times been quite familiar with the facts relative to the-matters involved in the action above entitled; that on or about the 19th day of April, 1907, under instructions from the defendant, he delivered to Brennan & Gray, attorneys in Devils Lake, North Dakota,, at their office in said city, the summons and complaint in the above-entitled action, and then and there employed the said attorneys to make appearance and to defend the said action on behalf of the said defendant; that at said time he talked over the facts of the case with M. II. Brennan, one of the members of said firm of attorneys, who had also been and was still one of the attorneys in charge of the probating of the estate of Maurice Duffy, deceased, and with whorii affiant had at times previous to the commencement of this action talked regarding the matters in controversy herein, and left the matter to be defended by said attorneys for defendant; affiant at all times thereafter until on or about the 9th day of July, 1908, fully believed that an answer or other competent pleading had been served in said action and that the same was pending for trial in this court; that as affiant recollects, the jury for the June term, 1907, of this court had not been called up to October, 1907, and affiant thought that to be the reason same did not .come on for trial; that in October, 1907, affiant moved to Stanley, North Dakota, and from time to time thereafter wrote to said attorneys relative to said case, and in January, 1908, received a letter from Henry M. Gray, one of the attorneys for defendant, that same would not be tried before the June, 1908, term ■of said court; that early in June, 1908, affiant wrote again to said attorneys as to when said cause should be tried, and, receiving no reply, came to Devils Lake on July 8th or 9th, and then for the first ■time discovered that no appearance had been made in said case on behalf of the defendant, and that judgment had been entered against "the defendant by default; that as soon as possible thereafter, consistent with the business of affiant at that time in Devils Lake, he returned to Stanley, North Dakota, on July 20th, and then notified his mother, the defendant herein, of said judgment; that on or about the 8th or 9th day of July, after discovering said judgment, affiant also learned that execution had been issued on said judgment and had been placed in the hands of the sheriff of said county, and affiant ■thereupon consulted with Fred J. Traynor, an attorney of the firm ■of Anderson & Traynor at Devils Lake, North Dakota, and was advised by him that it would he necessary for the defendant personally to come to Devils Lake and talk with her attorney personalty before •proceedings could be taken to vacate the judgment, but that it would he time enough if she came within three weeks or thereabouts; that he ■so informed the defendant on or about July 20th, 1908; that on the 19th day of April, 1907, there was served on the said defendant, ’Margaret Duffy, as well as on this affiant, summons and complaint in another action in this court in which the said Ellen Cline was ■plaintiff, and Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, and Clyde Duffy, and John W. Mahar were named as defendants, and on said day and at the said time as he delivered the summons and complaint in the case of Ellen Cline v. Margaret Duffy to said attorneys, he also delivered the summons and complaint in this second action, and employed said attorneys to act for the defendants in both actions, and affiant is informed by said attorneys that in the second-mentioned case a demurrer to the complaint has been served and said case is pending on said demurrer, but said attorneys inform affiant that they have no recollection of having received the papers in the case now sought to be opened, and that their files in this case are lost and cannot be found, and stated to this affiant that they did not know of the existence of this action .until on or about the month of July, 1908.”</p> <p>Defendant’s affidavit follows:</p> <p>“Margaret Duffy, being first duly sworn, deposes and says that she is the defendant named in the above-entitled action; that she is informed that on the 30th day of December, 1907, judgment by default in the above-entitled action was entered against her in the above-named court for the sum of $761.90 damages and $11.90 costs, making a total judgment of $776.80, and the same entered in judgment book No. 1, at page 116, in the office of the clerk of said court. That affiant did not know anything about the entry of said judgment until on or about the 20th day of July, 1908, and before said time had no intimation whatsoever that the said action had gone to judgment; that the summons and complaint herein were served on affiant on or about the 19th day of April, 1907, and that on the same day and date ■as said papers were served affiant sent her son, M. W. Duffy, with said papers to the office of Brennan & Gray, attorneys1 at Devils Lake, North Dakota, and instructed him to employ said Brennan & Gray as attorneys to appear for the defendant in this action, and to answer and defend the same for her, and to protect her rights therein; that thereafter said M. W. Duffy informed affiant that he had delivered •said papers to said Brennan & Gray, and had employed them to make appearance and answer for defendant within the time required by law; that said M. W. Duffy had done practically all of affiant’s business since the death of the husband and father, Maurice Duffy, and was familiar with the facts relating to said case, and M. H. Brennan, a member of said law firm of attorneys, was then and still is attorney for the estate of Maurice Duffy, deceased, and he too was familiar with the circumstances involved in said action, and defendant did not- deem it necessary, therefore, to go personally to said attorney’s office to state the facts of said case and depended upon her said son and said attorneys to protect her rights therein; that from time to time up to October, 1907, affiant had her said son call upon said attorneys relative to said case, and at no time did she have any intimation that, said case had not been answered; that in October, 1907, she removed her residence from Ramsey county to Stanley, North Dakota, a distance of about 174 miles, but from time to time caused her said son to write to said attorneys relative to the time of trial of said cause,, and in January, 1908, said M. W. Duffy received a letter from Henry M. Gray, one of the members of said firm of attorneys, that said case-would not come on for trial until the June, 1908, term of court; that at all time after the 19th day of April, 1907, until on or about July 20th, 1908, this affiant believed that her rights were being and had been duly protected by answer or other competent' appearance; and always intended to defend against said action; that in the month of July, 1908, she sent her said son from Stanley, North Dakota, to-Devils Lake to ascertain when said cause would be tried, and it was upon his return on or about July 20th, 1908, that she received her first intimation that said cause had gone to judgment by default, and that no appearance in same had been made on the behalf of the defendant; that as soon thereafter as she could possibly arrange to leave-for Devils Lake she did so, and on or about August 5th made appointment with Fred J. Traynor, an attorney at Devils Lake, North Dakota, for Friday, August 7th, to interview- him as to her rights in said matter; that on the 7th day of August, 1908, she engaged Anderson & Traynor, attorneys at Devils Lake, to take proceedings-to have said judgment vacated and permission granted to defend-therein, and on said day and date made a full and complete statement of all the facts and circumstances of this case within her knowledge to her said attorney, Fred J. Traynor, one of the members of said firm, and after having fully disclosed to said attorney, all, the-facts and circumstances of the case as aforesaid, affiant is informed and advised by her said attorney, and affiant does verily believe it to-be true, that she has a good and substantial defense to said action on-the merits, such as will result in the dismissal of the plaintiff’s action,, and judgment in favor of defendant upon a trial of the merits thereof.</p> <p>“Wherefore defendant prays that the judgment may be vacated and set aside and defendant allowed to serve and file her answer hereto attached, and to defend therein.”</p> <p>The affidavit of M. H. Brennan and Henry M. Gray is as follows:</p> <p>“M. H. Brennan and Henry M. Gray, being first duly sworn, each for himself deposes and says that he was a member of the former firm of attorneys of Brennan & Gray, at Devils Lake, North Dakota; that he has no recollection whatever of having, seen the summons and complaint in the action of Ellen Oline v. Margaret Duffy, and did not know that there was such an action in existence until he learned of the judgment therein sometime about the month of July, 1908; that he is familiar with a certain case of Ellen Cline v. Margaret Duffy, Maggie .Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, Clyde Duffy, and John W. Mahar, and that the firm of Brennan & Gray are attorneys therein and in due time served a demurrer to the complaint in said case, and the said case is still pending on said demurrer; that affiant has at all times until the discovery of said judgment thought that the said action above mentioned, in which demurrer was served, was the only action between said parties, Ellen Cline and Margaret Duffy, pending or in which papers had been served; that if the summons and complaint in the action of Ellen Cline v. Margaret Duffy were delivered at our office or to either of us, the same are lost and cannot be found; that he has searched in his said office and among the files of the firm, and, after diligent search, has been 'unable to find any trace of any papers in said action, and if said case was ever intrusted to the firm of Brennan & Gray the same has been inadvertently overlooked.”</p> <p>In opposition to the motion, plaintiff submitted the affidavit of Henry G. Middaugh as follows:</p> <p>“I, Henry G. Middaugh, being first duly sworn say: That I am one of the attorneys for the plaintiff in the above-entitled action. After said action was commenced I had several interviews with one of the sons of the defendant with reference to a settlement in said action and another action involving another tract of land, brought by Ellen Cline against Margaret Duffy and her children; that there were quite a number of interviews, and the only question involved was the amount that the defendant should pay to effect a settlement with the plaintiff. The plaintiff resides in Chicago, Hlinois, as I am advised, and my dealings and the dealings of the plaintiffs attorney with her have been through correspondence with attorneys in Chicago. Under date of December 23d, 1907, the attorneys in Chicago for the plaintiff advised plaintiff’s attorneys here that one of the defendant’s sons had asked the plaintiff to forward a quitclaim deed, so that the settlement which was then in the process of negotiation could be carried out, and after receiving the quitclaim deed from the plaintiff the plaintiff’s attorneys here and under date of January 18th, 1908, addressed a letter to Brennan & Gray at Devils Lake, North Dakota, containing the plaintiff’s proposition of settlement, which letter was duly mailed to said Brennan & Gray at Devils Lake, North Dakota, and which letter was as follows:</p> <p>'' 'With reference to the Ellen M. Cline matter, we have authority to settle the whole matter for $750 if closed up at once. On settlement your clients-will be entitled to the following papers: (a) A release executed by Ellen M. Cline releasing Margaret Duffy individually and as administratrix from all claims and demands, (b) A quitclaim deed from Ellen M. Cline, widow, to Margaret Duffy, widow, covering the W. | of the S. AY. £ of 22 and the W. -J of the N. AY. ¿ of 27 — 156—63. (c) A stipulation signed by us on behalf of the plaintiff and yourselves on behalf of the defendants in the case of Ellen Cline against Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, AYinnie Duffy, Nina Duffy, Clyde Duffy, and John AY. Maher, involving the AY. ■§ of the S. W. ¿ of 22 and the AY. y of the N. W. ¿ of 27-156-63, dismissing the action with prejudice, but without costs to either party as against the other, (d) A release of the lis pendens filed in the action last above described, (e) A satisfaction of the judgment entered in the case of Ellen Cline v. Margaret Duffy, which was recovered for the sale by the defendant of the W. -J- of the N. W. and the N. \ of the S. W. \ of 33-156-63, in the manner not authorized by the Probate Code, that being the Jacob Wolfe quarter.</p> <p>" 'Yours truly, Burke, Middaugh, & Outhbert.’</p> <p>''Not hearing from Brennan & Gray, the attorneys for the defendant, with reference to said matter, I did afterwards speak to Mr. Gray, one of the attorneys for the defendant, about it. I supposed that he knew about the judgment in the above-entitled action at all times after it was entered, and I know that be knew about it after tbe plaintiff’s attorneys addressed to bim tbe letter of January 18th, which is above set forth, wbicb specifically refers to the judgment in tbe above-entitled action.</p> <p>“Again and under date of March 81st, 1908, tbe plaintiff’s attorneys wrote to Brennan & Gray, tbe attorneys for tbe defendant, a letter of wbicb tbe following is a copy:</p> <p>“ ‘The attorneys in Chicago for Ellen Cline are urging us to take some action in tbe Margaret Duffy matter. Some time ago we wrote you that we would accept $750 in settlement of tbe whole matter. If this is not closed up at once, we will have to issue execution on tbe judgment against Margaret Duffy. Please advise us.</p> <p>“ ‘Yours truly, Burke, Middaugh & Outhbert.’</p> <p>“Afterwards and on June 15tk, 1908, tbe plaintiff’s attorneys caused an execution to be issued on tbe judgment in tbe above-entitled action, and delivered to tbe sheriff of Bamsey county. Thereafter and on or about tbe 9th day of July, 1908, one of the sons of tbe defendant, in company with Mr. Ered J. Traynor, called upon tbe plaintiff’s attorney, and wanted to know as to tbe prospect of a settlement, and at that time tbe plaintiff’s attorneys exhibited to said son and to said Fred J. Traynor tbe copy of said letter of January 18th, 1908, addressed to Brennan & Gray and containing tbe plaintiff’s offer of settlement, and, in answer to tbe inquiry of Mr. Traynor if that was tbe best settlement that tbe plaintiff’s attorneys could make, I told bim that we would take tbe responsibility of settling at that time if they desired to settle promptly for the sum of $700, wbicb would include tbe amount that was to go to tbe plaintiff and tbe amount of her attorneys’ fees, and tbe son of tbe defendant and Mr. Traynor said they would take tbe matter under consideration.</p> <p>“I have examined tbe records in the office of the register of deeds of Bamsey county, North Dakota, and I find that on tbe date on which tbe defendant, Margaret Duffy, verified her affidavit in tbe application to vacate tbe judgment in tbe above-entitled action, there was recorded in tbe office of tbe register of deeds of Bamsey county, North Dakota, a -warranty deed bearing tbe date on that day, recorded in book 21 of deeds, at page 511, reciting a consideration of $1.00 and other valuable consideration, whereby tbe defendant did grant to Maurice V. Duffy those certain premises situated in the county of Ramsey and state of North Dakota, and known and described as the S. E. £ of the N. E. ^ of section 19 and the W. \ of the N. E. J of section 19 in township 157 in range 62 west; that said deed appears to have been acknowledged on August 12th, 1908, before Ered J. Traynor, notary public, and to have been witnessed by Fred J. Tray-nor and M. H. Brennan.”</p> <p>In reply defendant submitted the affidavits of M. H. Brennan and Henry M. Gray as follows:</p> <p>“M. H. Brennan, being first duly sworn, deposes and says that he has read the affidavit of Henry G. Middaugh in the above-entitled matter; that deponent never received the letter alleged to have been dated January 18th, 1908, which said Middaugh alleges was addressed to Brennan & Gray, and that he never saw or heard of said letter or any of its terms until he read the affidavit of said Middaugh; that between April, 1907, and March 16th, 1908, he met and talked frequently with said Middaugh at the United States Land Office and other places, and at no time did said Middaugh intimate to deponent that any judgment had been taken in said action or that any proposition of settlement had been mailed or submitted, or any letter not answered in said matter; that from April 1st, 1907, until March 16th, 1908, he was Register of the United States Land Office, the duties of which involved numerous details requiring constant attention, and that during said time he did very little practice at law, but left pending business to the care of II. M. Gray, and whether the summons and complaint in this case was left in the office, or, if left, destroyed on the mistaken impression it was a duplicate, owing to the number of defendants, deponent cannot now recall; that deponent is certain, however, that there was no intention of letting the matters involved go by default, as the same were discussed with said Gray, and the points supposed to be involved, particularly the question of jurisdiction of the subject-matter, the estate not having been closed, were talked over between himself and said Gray, and demurrer advised; that an inspection of the complaint in this case and that in the case of Ellen Cline v. Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, Clyde Duffy, and John W. Mahar, which is hereto attached marked Exhibit “A,” shows that the first paragraph in each •complaint is almost identical -with the exception that there is a different description of real estate involved; that the last-named case also makes allegations to the effect that Margaret-Duffy as administratrix ■of the estate of Maurice Duffy, deceased, had wrongfully made disposition to her own benefit of the land therein described; that among -other things the demurrer served in that case alleges that the complaint ■-does not state facts sufficient to constitute a cause of action, and that the court has no jurisdiction of the subject of the action nor of the persons of the defendants; and the failure to answer or demur in the case at bar against Margaret Duffy (sole defendant) was due to inadvertence.”</p> <p>“Henry M. Gray, being first duly sworn, deposes and says that he has read the affidavit of Henry G. Middaugh in the above-entitled matter ; that to the best of his knowledge and belief the letter of January 18th, 1908, which said Middaugh alleges he sent to Brennan & Gray, was never received by affiant; that during the year 1908 affiant had a talk with said Middaugh regarding settlement in the Oline-Duffy matter, but said Middaugh did not mention any judgment, and affiant did not in fact know there was any such judgment until some time after the 31st of March, 1908; that at said conversation with said Middaugh the matter under discussion was a settlement by which said Middaugh should obtain from said Ellen Cline quitclaim deed to her alleged interest in the land involved in the case of Ellen Cline v. Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, Clyde Duffy, and John W. Maher; that some time in the spring of 1908 affiant did receive a letter from said Middaugh containing the statements as set forth in said Middaugh’s affidavit, as being •of date March 31st, 1908, but knowing that a demurrer had been served in the case, the title of which is given just above, and not knowing of any other case between these parties, thought the communication referred to said case, and knowing no judgment could have been entered therein, the demurrer being still pending, set it aside temporarily pending the negotiations for settlement, until some considerable time thereafter, in looking over the records in the office of the clerk of court, he discovered the judgment now sought to be opened up; that affiant was not present on the 19th day of April, 1907, when M. W. Duffy was at the office of M. H. Brennan, and knew nothing of any case between, these parties until Mr. Brennan turned over to affiant a certain envelope containing the papers therein, and the only papers therein were the summons and complaint in the case of Ellen Gline v. Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, Clyde Duffy, and John W. Maher, and these were the only papers involving any case between Ellen Cline and Margaret Duffy that ever came into affiant’s hands or attention until the discovery of this judgment, and until after the 31st day of March, 1908, some time, affiant never knew and never suspected that there was in existence any other case between these parties than the one of Ellen Cline v. Margaret Duffy, Maggie Cline, Matthew Duffy, Willie Duffy, Winnie Duffy, Nina Duffy, Clyde Duffy, and John W. Maher.”</p>

<p>Taxation — Payment of a Portion of Tax — Tax Certificate Holders — Payment of Subsequent Tax — Assessments.</p> <p>An owner and holder of tax sale certificates, issued on sales of real estate .for delinquent general taxes or for delinquent general taxes and delinquent special assessments, may pay the subsequent delinquent general taxes assessed' against said premises, without paying any subsequent delinquent special assessments against said premises, and obtain receipts from the county treasurer for such delinquent general taxes so paid, and the amounts so paid shall constitute: additional liens on the land for which the tax sale certificates were issued.</p>

<p>Criminal Law — Evidence — Harmless Error.</p> <p>1. The admission of incompetent evidence which could not have prejudiced the defendant, the facts having been established by other undisputed and competent testimony, is not ground for reversal.</p> <p>Criminal Law — Intoxicating Liquors — Evidence — Ereiglit Bills.</p> <p>2. A record describing articles of freight received at a local station, billed to defendant and another, and delivered to defendant with his signature acknowledging receipt of such articles, is competent evidence tending to show the nature of the articles so receipted for.</p> <p>Instructions.</p> <p>3. The charge as a whole states the law correctly. Hence no error was committed in refusing defendant’s requests for instructions.</p> <p>Criminal Law — Remarks of State’s Attorney.</p> <p>4. Remarks of the state’s attorney in. his address to the jury, as set forth in the opinion, held, not prejudicial.</p>

A. Pollock, J. Action by the State of North Dakota against Henry Fujita. From a judgment in favor of plaintiff, and from the order denying defendant’s motion for a new trial, defendant appeals. If error occurs in overruling a challenge for cause, it should be corrected regardless of defendant’s unexhausted peremptories. People v. McQuade, 110 N. T. 284, 1 L.R.A. 279, 18 N. E. 156; People v. Bodine, 1 Denlo, 308; Freeman v. People, 4 Denio, 31, 47 Am.

<p>Taxation — Tax Sale — Notice of Redemption.</p> <p>Service of the notice of the time when the period for redemption from a tax sale will expire must he made upon the owner of the land personally, if known to he a resident of the state; but, if the owner be a nonresident, service shall be made by registered letter addressed to the owner’s last known postoffice address, and must also be served personally upon the person in possession.</p>

B. Goss, J. Action by Jobn J. Lee as sheriff of Ward county against John Oharmley and others upon the official bond of defendant Charmley as deputy sheriff. From an order overruling a demurrer to plaintiff’s complaint, defendant’s sureties appeal. “Color of office” implies presence of apparent real authority. State, Allen, Prosecutor, v. Conover, 28 N. J. L. 224, 78 Am.

Cowan, J. Action by Richard Gr. P. Yallancey against Martha Hunt and John C. Hunt.- Erom a judgment in favor of defendants, plaintiff appeals. New matter must be specially pleaded. Piercy v. Sabin, 10 Cal. 22, 70 Am. Dee. 692; Bliss, Code PI. §§ 323, 339, et seq.; Fitnam, Trial Proc. § 567; Iselin v. Simon, 62 Minn. 128, 61 N. W. 143; 1 Ene. PI. & Pr. p. 830; Reynolds v. Reynolds, 45 Mo.. App. 622; Riggins v. Missouri River Et. S. & G. R. Co. 73 Mo. 598.

<p>Constitutional Daw — Voters and Elections — Special Degislation — Uniformity of Daws.</p> <p>1. Tiie primary election law of this state, in common with all general laws regulating the elective franchise, is in all its parts within the constitutional requirements that it must be just and reasonable, must have a uniform operation throughout the state, and must bear with substantial equality upon parties, candidates, and all classes of citizens.</p> <p>Note. — The question of the validity of primary election laws has been treated, with a review of all the authorities, in a note in 22 L.R.A.(N.S.) 1136, while the cases which has passed upon the question whether primary elections are “elections” within the meaning of Constitutions or statutes relating to elections generally are collated in a note in 18 L.R.A.(N.S.) 412.</p> <p>Constitutional Law — Voters and Elections — Special Legislation — Classification.</p> <p>2. In case it is apparent that from the nature of a general law and the ends it purposes to effect that its aims can be attained only through the medium of groups or aggregations of persons, a certain classification of objects to be affected differently by the operation of the law may be made. Such classification, if made, however, must rest upon some difference which bears a true and just relation to the act in reference to which the classification is proposed, and must be reasonable and natural, not artificial or arbitrary.</p> <p>Constitutional Law — Voters and Elections — Uniformity of Laws — Classifications.</p> <p>3. A standard prescribed by a general law for the determination of a basis of classification that is from its nature and character unstable, illogical, inconstant, and arbitrary cannot serve as a means for the computation of groups that must bear to it and to each other the natural, constant, and unvarying relation required by the Constitution; and a law that operates diversely upon classes so determined cannot have a just, reasonable and uniform operation.</p> <p>Constitutional Law — Primary Elections — Special Legislation — Classification.</p> <p>4. Under the provisions of the general primary election law, the classification provides by the requirement of § 12, chap. 109, Laws of 1907, to the effect that no nomination shall be made unless the vote east for state, district, or county offices is at least 30 per cent of the total number of votes cast for the candidate for secretary of state of each political party at the last general election, is arbitrary, unnatural, and lacks uniformity in the different counties of the state, by reason of the fact that the standard provided for determining the basis of classification places the party group authorized to make a nomination in each county in a relation to the actual party strength and to each other that is unstable, inconstant, and without uniformity in the different counties of the state. Such provision of the law is therefore unconstitutional and void. On this point the holding of State ex rel. Montgomery v. Anderson, 18 N. D. 149, 118 N. W. 22, is overruled.</p>

Action to restrain the defendants from executing an order attaching certain territory to the defendant for school purposes. Injunction dissolved. Plaintiff appeals.

<p>Constitutional Daw — Original Writ — Seasonable Application — Court will not Act Summarily except in Urgency Cases.</p> <p>1. This court will not decide grave constitutional questions, raised by original applications for writs which must be acted upon summarily, except in instances when the circumstances are such that a decision is imperative and the application could not readily have been made earlier.</p> <p>Elections — Primary Daw — Its Purpose — Regulation of Party Nominations.</p> <p>2. Chap. 109, Laws 1907, known as the primary election law, is not intended to provide for and regulate the nomination of candidates who do not stand for or represent a political principle or party; it being intended only to regulate party nominations.</p> <p>Note. — While some of the provisions in nearly all of the primary election laws, the validity of which has been tested in the courts, have been held void, the laws themselves have generally been upheld, though sometimes only after an amendment of the state Constitution, as shown by the note in 22 L.R.A. (N.S.) 1136, in which are reviewed all the cases in which the question of the validity of such laws has been passed upon by the courts.</p> <p>Primary Elections — Nominations by Petition.</p> <p>3. Section 501, Rev. Codes 1899, providing for nominations by petition, and: the placing of the names of candidates so nominated upon the Australian ballot for use at the general election, is still in force, and provides a method whereby persons may be nominated as candidates for state and congressional offices, as representing a collection of individuals too few in number to be entitled to a party ballot at the primary or a separate column on the ballot at the general election.</p> <p>Voters and Elections — Australian Ballot Law — Designation of Party — Statutory Provisions.</p> <p>4. Section 501, Rev. Codes 1899, supra, makes certain requirements of parties, nominated by petition to entitle them to have their names placed upon the Australian ballot, and, among others, that the certificate of nomination or petition, shall state in not more than five words the party or principle which the candidate represents. Held that this party designation should appear after the candidate’s name as printed on the Australian ballot.</p> <p>Voters and Elections — Primary Law — Party Ballot.</p> <p>5. Neither chapter 109, Laws 1907, nor § 10 thereof, supra, which reads,. “Any citizen otherwise eligible by law, affiliated with or representing the principles enumerated in the national platform of the following parties, are-eligible to nomination under this act; the Republican, the Democratic party,, or any party designation that cast 5 per cent of the votes cast for governor at the last general election, and it shall be unlawful for any person to call for or vote a ballot at the primary election herein provided for, except a ballot representing the party or principle with which he affiliates, . . .” is invalid as furnishing no method by which new parties may secure the printing of party ballots for use at the primary election, inasmuch as a party represented by candidates whose names have appeared in the individual column, followed by the party designation on the Australian ballot used at the general election! and who have received 5 per cent of the votes cast for governor, is entitled to a separate ballot at the next primary election.</p> <p>Voters and Elections — Primary Law — Party Ballot — Authority of Legislature.</p> <p>6. Held, the legislature has, within reasonable limits, the power to determine-how many voters acting together for the purpose of making nominations shall be entitled to a party ballot, and that the provision above quoted providing only for the printing of ballots for parties casting 5 per cent of the votes. cast for governor at the next preceding general election is a reasonable regulation of an election held to make party nominations.</p>

An application for an original writ directing the auditor of McLean county to file a petition of the relator and print Ms name upon the Republican ballot for use at tbe primary election of 1910.

<p>Appeal from District Court, Bolette county; John F. Cowan, J.</p> <p>Action by Sternberg, Weil, & Company against J ames A. Larson & Company. From a judgment in plaintiffs’ favor, defendants appeal.</p>

<p>Appeal and Error — New Trial — Sufficiency of Evidence to Support Verdict.</p> <p>1. Where an order overruling a motion for new trial is challenged solely on the grounds of insufficiency of the evidence to justify the verdict .and that such verdict is against law, this court, in reviewing same, will only inquire whether there is legal evidence of a substantial character supporting the verdict.</p> <p>New Trial — Evidence — Documentary Proof — Conclusiveness.</p> <p>2. The fact that one item of evidence is of a documentary nature will not take the case out of the above rule, where such documentary proof is not conclusive, and there is conflicting oral testimony supporting the verdict.</p> <p>New Trial — Sufficiency of Evidence — Verdict.</p> <p>3. Evidence examined and held that there is legal proof of a substantial character supporting the verdict, and hence it was not an abuse of discretion to deny defendant’s motion for a new trial.</p>

<p>Appeal from District Court, Ward county; E. B. Goss, J.</p> <p>Action by G. S. Schwartz against Nick Hendrickson. Erom an order denying plaintiff’s motion for judgment notwithstanding the verdict, and granting defendant’s application to vacate the verdict and for leave to furnish proof in support of the defenses alleged, plaintiff appeals.</p> <p>An election once made by one having the right to make it, is final. Moline Plow Co. v. Rodgers, .53 Kan. 743, 42 Am. St. Rep. 317, 37 ■Pac. Ill; Eowler v. Bowery Sav. Bank, 113 N. Y. 450, 4 L.R.A. 145, 10 Am. St. Rep. 479, 21 N. E. 172; Bailey v. Hervey, 135 Mass. 173; Crompton v. Beach, 62 Conn. 25, 18 L.R.A. 187, 36 Am. St. Rep. 323, 25 Atl. 446; Gray v. St. John, 35 111. 222; Nield v. Burton, 49 Mich. 53, 12 N. W. 906.</p> <p>Motion 'for new trial is statutory, and must be made as the statute directs. Parrott v. Hot Springs, 9 S. D. 202, 68 N. W. 329; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659; Thuet v. Strong, 7 N. D. 565, 75 N. W. 922'; MeTavish v. Great Northern R.' Go. 8 N. D; 94, 76 N. W. 985; Gould v. Duluth & D. Elevator Co. 2 N. D. 217, 50 N. W, 969; Anderson v. Eirst Nat. Bank, 5 N. D. 80, 64 N. W. 114; Fletcher Bros. v. Nelson, 6 N. D. 94, 69 N. W. 53; Henry v. Maher, •6 N. D. 413, 71 N. W. 127.</p> <p>Verdict cannot be set aside on the court’s own motion except it is ■a plain violation of instructions, or evidence, or the result of passion. Rev. Codes 1905, 7066; Gould v. Duluth & D. Elevator Co. 2 N. D. 216, 50 N. W. 969; Clement v. Barnes, 6 S. D. 483, 61 N. W. 1126; Flugel v. Henschel, 6 N. D. 205, 69 N. W. 195.</p> <p>The motion and affidavit, papers and proceedings warranted a reopening of the case, in the discretion of the court. Finch v. Martin, 13 S. D. 274, 83 N. W. 263; Gotzian v. McCollum, 8 S. D. 186, 65 N. W. 1068; Finney v. Northern P. R. Co. 3 Dak. 270, 16 N. W. 500; Pengilly v. J. I. Case Threshing Mach. Co. 11 N. D. 249, 91 N. W. 63; Sim v. Rosholt, 16 N. D. 77, 11 L.R.A.(N.S.) 372, 112 N. W. 50; Clopton v. Clopton, 10 N. D. 569, 88 Am. St. Rep. 749, 88 N. W. 562; Wolmerstadt v. Jacobs, 61 Iowa, 372, 16 N. W. 217; State v. Dougherty, 70 Iowa, 439, 30 N. W. 685; Fliekinger v. Omaha Bridge & Terminal R. Co. 98 Iowa, 358, 67 N. W. 372.</p>

Edward T. Burlce, J. Action to recover for personal injuries inflicted by defendant’s train at a public crossing over defendant’s railway track. From a judgment in plaintiff’s favor and from an order denying defendant’s motion for a new trial, defendant appeals.

<p>Principal and Agent — Breach of Contract by Agent — Sufficiency of the Evidence.</p> <p>1. In an action by a principal against his agent to recover damages for a breach of such agent’s duty in failing to exercise due care in procuring “fair” security for the purchase price of personal property sold by him pursuant to the agency contract, held, that plaintiff’s evidence relative to defendant’s negligent performance of duty was amply sufficient to require its submission to the jury. Such evidence not only showed negligence, but bad faith on defendant’s part. It was therefore error to direct a verdict in defendant’s favor.</p> <p>Principal and Agent — Duty of Agent.</p> <p>2. An agent owes to his principal the exercise of good faith and fair dealing in the performance of his duties, and when he is authorized to sell his principal’s property on time, and to take “fair” securities for the purchase price, a failure to exercise reasonable diligence in so doing renders him liable to his principal for the resulting loss.</p> <p>Sufficiency of Evidence — Submission to Jury.</p> <p>3. Evidence examined and held, that the proof submitted by plaintiff upon the questions of the worthlessness of the security and the resulting loss sustained by him was sufficient, prima facie, to require its submission to the jury.</p> <p>Note. — Agent’s liability to principal for disregard of orders or for negligence, see note in 7 D. ed. U. S. 606.</p>