Volume 28 — North Dakota Reports

In an accounting, the rule is that the books of account are presumed to be correct, until the contrary is shown by competent proof. 1 Ene. Ev. 182, ¶¶ 5 et seq.; 9 Ene. Ev. 569; Stuart v. McKiehan, 74 111. 122; Gregg v. Hoard, 129 111. 613, 22 N. E. 528; Eouten v. Bostwick, 59 Ala. 360; Desha v. Smith, 20 Ala. 747; Heartt v. Corning, 3 Paige, 566; Hicks v. Chadwell, 1 Tenn. Ch. 251.

The evidence is clearly insufficient to sustain the verdict and judgment; assuming negligence, there is no proof of injury. Wright v. Sioux Ralls Traction System, 28 S. D. 379, 133 N. W. 696. The inference of a fact is wholly insufficient. Saunders v. Chicago & N. W. R. Co. 6 S. D. 40, 60 N. W. 148; Balding v. Andrews, 12 N. D. 267, 96 N. W. 305, 14 Am. Neg. Rep. 615; Gebus v; Minneapolis, St. P. & S. Ste. M. R. Co. 22 N. D. 29, 132 N. W. 227.

<p>Trial de novo.</p> <p>Board of county commissioners — proceedings — highway — establishment — collateral attack.</p> <p>1. Certain proceedings of the board of county commissioners of Morton county appearing in the records of 1894, examined, and held to show the establishment of the highway in question. Eor reasons stated in the opinion, the attack of the plaintiff is collateral and is completely refuted by the recitals set forth in the opinion.</p> <p>Proceedings to establish highway — direct attack — laches.</p> <p>2. While not necessary to a decision of this case, this court would probably hold from the evidence that the plaintiff is guilty of such laches as would prevent a direct attack upon the proceedings at this time.</p>

County, Crawford, J. The record of a deed, in the absence of a showing of good reasons for not offering in evidence the deed itself, is wholly incompetent. Eev. Codes 1905, § 7297; American Mortg. Co. v. Mouse .Eiver Live Stock Co. 10 N. D. 290, 86 N. W. 965; Sykes v. Beck, 12 N. D. 242, 96 N. W. 844. While the findings of fact by the commissioner of the general land ■office are usually binding, his conclusions of law are not binding. Parsons v. Venzke, 4 N. D. 452, 50 Am.

<p>Appeal from the District Court of Adams County, Orawford, J.</p>

<p>Upon trial de novo, held:</p> <p>Decree of divorce— fraud — coercion — deceit.</p> <p>1. That the decree of divorce heretofore entered in this action was not shown to have been obtained by fraud, coercion, or deceit.</p> <p>Evidence — sufficiency.</p> <p>2. That the testimony upon which the said divorce was granted was sufficient to support the said decree.</p> <p>Summons and complaint — service — written acknowledgment thereof.</p> <p>3. That the summons and complaint were duly served upon the defendant and written acknowledgment of service indorsed thereon by herself.</p> <p>Attorney — authority to appear — decree — setting aside — error.</p> <p>4. That attorney J. J. Sampson was duly authorized by her to appear in her behalf upon the trial.</p> <p>It was therefore error of the trial court to set aside the decree.</p>

Defendant was convicted of tbe crime of embezzlement as a public officer, under § 9205, E. C. 1905, and appeals. Statement of facts by Bruce, J. Defendant was convicted of tbe crime of embezzlement of state funds and securities, under §§ 9204 and 9205, Bev. Codes 1905, and an appeal has been taken to this court. There is but little conflict between counsel as to the particular acts done or omitted.

From a judgment of tbe district court of Cass county, Pollock, J., both the administrator and Mary Rutherford separately appeal, and trial de novo is had. Fraudulent intent must be alleged and proved in an action to set aside a deed or gift as a fraud upon creditors; and such an intent is a question of fact.

Davis, J. There was a clear abuse of discretion on the part of the trial court in denying defendant’s motion to set aside the judgment taken against him by default. 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; Whereatt v. Ellis, 70 Wis. 207, 5 Am. St. Rep. 164, 35 N. W. 314; 23 Cyc. 942; Cline v. Duffy, 20 N. D. 525, 129 N. W. 75; Citizens’ Nat.

From a judgment in defendants’ favor, plaintiff appeals. Where a verdict has been directed for defendant at the close of plaintiff’s testimony, the court must construe the testimony most strongly in favor of the plaintiff, and assume as true every material fact which plaintiff’s testimony tends to prove. Iiarris-Emery Co. v. Howerton, 154 Iowa, 472, 134 N. W. 1068; Central Trust Co. v. Chicago, K. I. & P. E. Co. 156 Iowa, 104, 135 N. W. 721.

A. Coffey, J. From a judgment in defendant’s favor, and from an order denying a new trial, plaintiff appeals. The plaintiff cannot be held guilty of contributory negligence as a matter of law, because he did not stop and listen before crossing the track. The test is, the use of ordinary care. Coulter v. Great Northern R. Co. 5 N. D. 568, 67 N. W. 1046; Kunkel v. Minneapolis, St. R. & S. Ste.

Action to recover damages for the loss of horses killed upon a railroad track. Judgment for plaintiff. Defendant appeals. The plaintiff has not sustained his burden of proving negligence in the operation of the train by defendant. Corbett v. Great Northern E. Co. 19 N. D. 450, 125 N. W. 1054. It was only the duty of the engineer to use ordinary care when he ■discovered the animals on the track; his higher duty was to protect himself, the crew, and passengers on the train.

Cooley, J. Action to determine adverse claim. Erom a judgment in plaintiffs’ favor, defendants appeal. In the case of a person dying intestate, his estate vests at once in his heirs, subject only to the payment of his debts and expenses of administration, and the family allowance. 1 Ross, Prob. Law, § 112, citing, Brenham v. Story, 39 Cal. 179; Re Sullivan, 36 Wash. 217, 78 Pac. 945; Bates v. Howard, 105 Cal. 173, 38 Pac. 715; Elder v.. Horseshoe Min. & Mill.

Statement. Judgment was entered in the district court in this action, and notice of the entry thereof served upon defendant’s counsel on the 21st day of July, 1911. Time for settling statement of the case was extended, over plaintiff’s objections, until October 31, 1911, when it was settled by the judge. An appeal to this court from such judgment was perfected on the 18th day of September, 1911. No motion was ever made in the trial court to open or modify the judgment.

<p>Application by plaintiff to this court for a change in the custody of children, and for an increased allowance to the mother for their support and maintenance while in her custody. Held:—</p> <p>The custody of the youngest child, until further order, is awarded to plaintiff, with conditions; the custody of the two oldest is awarded from June 1st to December 1st each year to the mother, and from December 1st to June 1st each yearly period to the father, with conditions.</p>

<p>Railroad right of way — may be assessed for local drain, if benefited — fee in same immaterial.</p> <p>1. A railroad right of way, if actually benefited, may be assessed for a local drain which is constructed under the provisions of Chapter 23, Rev. Codes 1905, and this irrespective of the fact whether the fee is in the railroad company or not.</p> <p>Public policy — supreme court cannot make — commonwealth creates, and court announces.</p> <p>2. A, supreme court can announce no public policy of its own, but merely what it believes to be the public policy, of the people of the commonwealth by which it is created. It has no power to create or command, but merely to construe; and where the people have spoken, either in the form of a constitutional enactment or a valid and constitutional statute, it must be controlled by their decisions and conclusions.</p> <p>Assessment of rights of way — local drains — benefits conferred — constitutional statute.</p> <p>3. Chapter 23, Rev. Codes 1905, which provides for the assessment of railroad rights of way for the benefits conferred by the construction of local drains, does not violate the provisions of the 14th Amendment to the Federal Constitution, nor the so-called Commerce Clause (§ 8, art. 1) of that instrument, even though it is sought to be applied to interstate lines.</p> <p>Note. — While there is a considerable conflict among the authorities on the question of the liability of a railroad right of way to assessments for local improvements, the majority of the cases, as shown by a note in 40 L.R.A.(N.S.) 935, in which all the cases are collated and discussed, seem to support the rule that a railroad right of way may be so assessed, if it is benefited by the improvement. If the property is not benefited, the assessment against it will not hold. A distinction has sometimes been made between the right of way and other railroad property necessarily used in the operation of the road.</p>

<p>Pleadings — motion for judgment on — all facts properly pleaded admitted.</p> <p>1. A motion for judgment upon the pleadings admits the truth of all well-pleaded facts in the pleading of the opposite party.</p> <p>Note. — While the right of an infant to repudiate a contract for services and sue on quantum- meruit is not involved in Yancey v. Boyce, since the point there decided is his right to sue for the value of his services on the contract which he has disaffirmed, the court says in passing, that unquestionably an action for the value of his services may he maintained. This is in harmony with the weight of authority, as shown by a review of the cases in 15 L.R.A. 211, in which the question of the employer’s right to offsets and counterclaims is also considered.</p> <p>Recovery — express contract alleged as basis — cannot recover on implied contract — allegations of value — quantum meruit.</p> <p>2. When the plaintiff alleges an express contract as the basis for recovery, he cannot recover on an implied contract or quantum meruit, especially in the absence of any allegations of value. -Lowe v. Jensen, 22 N. D. 148.</p> <p>Minor — contracts of — disaffirmance — part performance before — cannot recover on contract — disaffirmance relates back to inception of contract.</p> <p>3. Sections 4014 and 4015, Rev. Codes 1905, permit a minor to make contracts with certain exceptions, in the same manner as an adult, subject to-his power of disaffirmance, and permit him to disaffirm contracts, except for necessaries, and statutory contracts, either before his majority or within one year thereafter, when the contract is made while he is under the age of' eighteen; if made when over the age of eighteen, disaffirmance may be had by his restoring the consideration or paying its equivalent, with interest. Reid, that a minor cannot disaffirm his express contract when partially performed and recover in an action based on the contract. Reid, further, that an infant having elected to disaffirm his contract when partially performed, the disaffirmance relates back to the inception of the contract, and the contract is totally destroyed and the parties left to their legal rights and remedies the same as though there had never been any contract.</p> <p>Minor — contract for services — disaffirmance — suit to recover wages under contract — action not maintainable.</p> <p>4. Plaintiff, a minor, made a contract to work for defendant, a farmer, during the season of 1912, and at the end of the season he was to be paid $30 per month for his services. He disaffirmed this contract and left defendant’s employ in August, and subsequently sued upon the contract to recover wages for the time he worked. It is held that the action cannot be maintained, and that the question of defendant’s rights to recoup or offset damages sustained by the breach of the contract is therefore eliminated from the case.</p> <p>As to necessity of returning consideration in order to disaffirm infants’ contracts, see note in 26 L.R.A. 177.</p>

<p>Drain — house sewage — storm waters — incorporated city — petition — benefits — health of city — number of signers — public demand — sufficiency of petition.</p> <p>1. Even if a drain, the purpose of which is to take care of the house sewage as well as the storm waters of an incorporated city, may be constructed under the provisions of chapter 23, Rev. Codes 1905, as amended by chapter 93 of the Laws of 1907 and chapter 124 of the Laws of 1911, a petition which states that the said drain is “for the best interests of the city of M-and a benefit to the health, convenience, and welfare of the people of said city,” discloses a drain the principal benefits of which will accrue to such city, and in such a case the petition should be signed “by a sufficient number of the citizens of such municipality to satisfy the hoard of drain commissioners that there is a public demand” therefor, and where the petition is signed by at the most twenty persons, and the record discloses that there are 223 property owners in the municipality, no such public demand is shown.</p> <p>Purposes of drain in city — signatures of sufficient number of citizens — board of drain commissioners — public demand — authority of board — injunction after petition has been presented and survey ordered — not premature.</p> <p>2. Where among the leading purposes of a proposed drain are benefits to the health, convenience, and welfare of the people of any city or municipality, the signature of a sufficient number of the citizens of such municipality to satisfy the board of drain commissioners that there is a public demand for such drain is a jurisdictional prerequisite, and without such petition the board of drain commissioners has no authority to order a survey or to take any further steps in the matter, and an action for an injunction restraining any further proceedings is not premature which is brought after the petition has been presented and a survey had or ordered but before any other proceedings have been had under § 1821, Rev. Codes 1905.</p>

<p>Appeal from the District Court of Cass County, Polloclc, J.</p> <p>Action to recover wages for services rendered. Counterclaim for board and clothing furnished. Judgment for plaintiff. Defendants, appeal.</p> <p>Statement by Bruce, J.</p> <p>This is an action to recover $2.80 claimed to have been misappropriated by the defendant, and the sum of $206 for services rendered as a domestic, less an allowance of $15 for clothing and necessaries, furnished by the defendants to the plaintiff. An answer which practically amounted to a general denial was interposed, and in addition, thereto a counterclaim which alleged that the plaintiff had lived in the family of the defendants, and was furnished with board and' lodging and clothing, and which placed the value of the clothing at $64.49, and the board and lodging at the amount of $12 a month, and in all prayed for a judgment in the sum of $124.49.</p> <p>The jury returned a verdict in favor of the plaintiff for the sum of' $169.80, with interest at J per cent from June 1, 1911. A motion for a new trial was made and denied, and an appeal was taken, the defendants claiming that the damages were excessive and given under the influences of passion and prejudice, and that the evidence was insufficient to support the verdict.</p>

<p>County courts — fees of paid — statute unconstitutional — may Ibe recovered as an involuntary payment — mandamus — formal protest not necessary.</p> <p>1. Fees wrongfully exacted under an unconstitutional statute, by the county judge by virtue of his official position, for the filing of the inventory and appraisement of decedent’s estate, required to be filed within a given time in order that the executor might proceed, may be recovered as involuntarily paid, although the filing could have been compelled by mandamus, and although such fees were thus paid without any formal protest.</p> <p>Note. — The decision in Fakgo v. Gass, sustaining- the right to recover back money illegally exacted by a public officer for the performance of his official duty, is in harmony with the other authorities, as shown by a note in 15 L.R.A.(N.S.) 183, the courts acting on the principle that a payment made to a public officer who has the power of compulsion behind him, or a payment exacted by an officer colore officii, is never to be deemed a voluntary act, it being considered that the parties do not stand on terms of equality.</p> <p>Public officer — money exacted by — excess of legal fees — compulsory payment.</p> <p>2. Money exacted by a public officer and paid in excess of his legal fees in order to obtain the performance of his official duty, to which the payer is entitled without such payment, is compulsory, and may be recovered back, and in such a case it is not necessary that the payer should have protested against such payment.</p>

L. Nuchols, J. Action in the nature of quo warranto to determine respondent’s right to hold the office of state’s attorney. From a judgment in defendant’s favor, plaintiff appeals.

<p>Pleading — demurrer — insufficiency to state cause of action.</p> <p>Complaint examined, and held not vulnerable to attack by demurrer upon the ground of alleged insufficiency of the allegations to state a cause of action.</p> <p>Note. — The right of a purchaser to compel a return of advance payments upon resale by the vendor, after the purchaser’s default, due to the act of the vendor, is considered in a note in 35 L.R.A. (N.S.) 534.</p>

Ajopeal from the District Court of Ward County, Leighton, J. Action to enjoin payment of warrant for services of expert accountants. Judgment for Plaintiff. County commissioners handle and control the business affairs of their county. They are the legislative body as well as financial agents of the county. Martin v. Tyler, 4 N. D. 278, 25 L.E.A. 838, 60 N. W. 392; Barrett v. Stutsman County, 4 N. D. 175, 59 N. W. 964; State ex rel.

Petition for mandamus to compel transportation of certain school children under § 232, article 15, chapter 266, of the Laws of 1911, Leighton, J. Judgment for plaintiff. Statement by Bruce, J. This is an action in mandamus to compel the school board of School District No. 10, Ward county, to furnish transportation for the children of petitioner to and from a certain school located in said district.

<p>An attachment was regularly issued in Ramsey county and levied on real estate in Pierce county in an action of Holbrook v. Dahl, who as defendant, after such levy, confessed judgment by a written instrument entitled as was the pending attachment action, but making no reference thereto. Return on attachment was made by the sheriff of Pierce county within the statutory period therefor, but after judgment had been entered on an order based on the confession of judgment. After levy, but before sheriff’s return on attachment and before transcription of Ramsey county judgment to Pierce county, Dahl deeded the land to Rother, who filed his deed for record. Mott by mesne conveyances from Rother became owner of the land, and brought this action in Pierce county to quiet his title as against Holbrook’s lien by attachment and judgment transcripted, claiming the judgment was taken as one entered upon confession without action ipso facto working an abandonment by Holbrook of his pending action and lien of attachment procured therein, and further that as a confession of judgment in such alleged independent summary proceeding the purported written confession was insufficient and void. Trial court sustained Mott’s contentions, and Holbrook appeals. 3eld:—</p> <p>Record of judgment — confession — presumptions.</p> <p>1. The presumptions from the record are that the judgment was entered as one taken by confession in the pending attachment action.</p> <p>Record ambiguous — testimony — facts — judicial notice.</p> <p>2. If the record is ambiguous on the issue of fact, testimony and matters of which the court may take judicial notice may be considered, from which it also must appear that the judgment was taken as in that pending action.</p> <p>Lien by attachment — judgment in county other than where attached land situated — does not discharge lien — transcription.</p> <p>3. The lien by attachment remained extant independent of the judgment entered in a county other than where the land was situated, said lien not merging until filing of sheriff’s return in Ramsey county and transcription of judgment to Pierce county; and the entry of judgment in Ramsey county before filing of the sheriff’s return did not discharge the lien in Pierce county.</p> <p>Reference to attachment lien — judgment need not make — need not direct sale — duty of attaching officer.</p> <p>4. It was not necessary that the judgment as entered refer to the attachment lien nor direct a sale of the property attached in satisfaction thereof as the law imposes that duty upon the attaching officer.</p> <p>Lien by attachment — prior to recorded transfer of land attached — attaching creditor prima facie in position of “purchaser in good faith, etc.” — rights of.</p> <p>5. Under § 5038, Rev. Codes 1905, the lien acquired by attachment in advance of the recorded transfer of the attached real estate places the attaching creditor prima facie in the position of a “purchaser in good faith and for a valuable consideration” of the property attached, with rights as purchaser accruing on levy made under § 6948, Rev. Codes 1905.</p> <p>Debtor’s interest in land — records — shown by — subject to lien of attachment — not actual interest — rule — statute.</p> <p>6. It is not the debtor’s actual interest in the real estate that is thus liened by attachment, but instead it is his interest as shown by the records of the register of deed’s office affecting the real property attached, our statute, § 5038, changing the rule otherwise applicable.</p> <p>Lien not waived by lapse of time — continually attacked by action.</p> <p>7. The attachment lien held valid and not waived by lapse of time, it having been continually under attack by action since six weeks after it was obtained.</p>

<p>Action for foreclosure of chattel mortgage of record. Boyle Brothers answer,, asking affirmative relief for foreclosure of their artisan’s lien for materials, repairs, and labor, performed upon the mortgaged personal property under a contract with the owner of the mortgaged personalty. The mortgage was taken in 1906, has been renewed, and is a valid mortgage upon the property. Boyle Brothers performed the work in. 1911, immediately filing a claim for artisan’s lien under chap. 168, Laws of 1907; and also retained possession of the property under a claim of lien by virtue of such possession under § 6295, Rev. Codes 1905, in case chap. 168, Laws of 1907, be unconstitutional, and claim their lien under § 6295 to have priority over a lien by mortgage of record. Held: — •</p> <p>Note. — The question of the priority of a mechanic’s lien over earlier mortgages is treated in notes in 14 L.R.A. 305, and 2 L.R.A. (N.S.) 615.</p> <p>Artisan’s lien — common-law lien — dependent upon possession — has priority over existing chattel mortgages.</p> <p>1. That an artisan’s lien is a common-law lien, and where possession was retained, as here, the statute being but declaratory thereof and such a lien at common law having priority over mortgage liens, an artisan’s lien under § 6295, Rev. Codes 1905, where possession is retained, has priority over existing mortgage liens, and this independent of the provisions of chap. 168, Laws of 1907, in express terms granting such priority.</p> <p>Statute — constitutionality — immaterial in such case.</p> <p>2. It therefore becomes unnecessary to determine whether the 1907 statute is, or is not, unconstitutional, because, though the same may be assumed to be unconstitutional, Boyle Brothers must recover under the prior existing law, § 6295, Rev. Codes 1905, while, if the 1907 statute be constitutional, it in express terms authorizes defendants’ recovery.</p> <p>Points unnecessary to a recovery — supreme court will not decide.</p> <p>3. This court will decline to pass upon the constitutionality of a statute, where the same is unnecessary to a decision of the right of recovery.</p> <p>Mortgage rights — no question of waiver — artisan’s lien superior in any event.</p> <p>4. No question of waiver of mortgage rights is involved, because all rights of plaintiff under its mortgage were subordinate to the rights of those claiming under the artisan’s lien.</p> <p>Owner — purchasing from mortgagor without consent of mortgagee — title not affected — artisan’s lien may still he created — agency.</p> <p>5. The fact that the owner, employing Boyle Brothers to repair the engine, had purchased from the mortgagor -who sold the mortgaged property without written consent, does not affect the title of such property in the purchaser, who, as owner, could authorize repairs thereto, and subject the same to an artisan’s lien for repairs so authorized, such owner being, for such purposes, considered in law as the agent of the mortgagee.</p> <p>On Petition for Rehearing.</p> <p>■Common law — liens — statutory provision declaratory of common law.</p> <p>6. Where at common law an artisan’s common-law lien had priority over existing contract liens, and the statute granting an artisan’s lien is but declaratory of common-law principles, and is silent on such question of priority, the common law granting priority to the common-law lien must be construed to grant priority to the lien so declared by statute, and but declaratory of the common law.</p> <p>‘Common law — basic law as to civil rights not defined by statute.</p> <p>7. The common law is adopted by statute as the basic law applicable to civil rights and remedies not defined by statute.</p> <p>•Common law — legislative declarations thereof — civil rights and remedies fixed.</p> <p>8. The common law must as to civil rights and remedies be considered in the construction and application of statutes declaratory thereof, and such statutes construed and applied as continuations of or legislative declarations of the common law so far as covered by such statutes.</p> <p>Presumption — statutes — common law.</p> <p>9. The statute will not be presumed to alter the common law “other than what has been specified and besides what has been plainly pronounced.”</p> <p>Statute declaratory of common law — silent as to priority — effect will not be enlarged by construction — continuation of common law.</p> <p>10. The statute here declaratory of the common law as to the lien, but silent on its priority, will not be enlarged by negative construction to deny priority existing at common law to the lien so defined, but will be limited in application to the definition of the lien; and the common-law priority considered as continuing in force and applicable to the lien, the common law as to priority supplementing the lien as at common law. The statute will be construed as a continuation of the common law, and not as excluding the common law on that part of the subject not covered by the statute.</p> <p>Repealing of statute — no provision against continuation of common law — common law is revived.</p> <p>11. Where a statute either declaratory of or changing the common law is repealed without express provision against the revivor of the common law, the common law is ipso facto revived by such repeal, which repeal will be regarded, in the absence of a contrary legislative intent appearing, as an affirmance of the common law, reviving the same.</p>

It is a jurisdictional prerequisite to the granting of a new trial that, the motion therefor shall set forth the grounds upon which it is made. Rev. Codes, § 7064; Hall v. Harris, 1 S. D. 279, 36 Am. St. Rep. 730,, 46 N. W. 931. Specifications of error are jurisdictional prerequisites. French v. Chicago, 26 S. D. 125, 128 N. W. 498; Jackson v. Ellerson, 15 N. D. 533, 108 N. W. 241. .

Action to recover balance due on book account. Judgment for defendant. Plaintiff appeals. Plaintiff is not restricted to tbe use of bis books and records to prove an account, but be may use other means of evidence to prove bis account, sucb as admissions by tbe defendant, etc. 1 Ene. Ev. 157; 2 Elliott, Ev. § 1260; 3 Enc. PI. & Pr. 536; Providence Tool Co. v. Prader, 32 Cal. 634, 91 Am. Dec. 598.

<p>Buildings — evidence of deterioration — safety of pedestrians.</p> <p>1. Evidence reviewed, and held: (a) That it is not shown that the building involved in this litigation had deteriorated 50 per cent in value; (b) the evidence, showing that the condition of the building was such as to endanger the-safety of pedestrians on the adjoining sidewalk; preponderates.</p> <p>Cities — fire limits — powers of cities — rule — buildings then existing — buildings subsequently erected.</p> <p>2. When fire limits are established in a city, within which buildings of certain-classes may not be erected, a different rule relating to the powers of the city applies to buildings of such classes erected prior to the establishment of the fire-limits than applies to those subsequently erected.</p> <p>Buildings in existence — fire limits thereafter established to include — owner has vested rights — not lost without lawful reason.</p> <p>3. The owner of a building erected within territory subsequently included within fire limits acquires a vested property right therein, of .which he cannot, be deprived without some lawful reason.</p> <p>Owner — holds subject to right of public to provide reasonable safeguards — cannot be sacrificed — public safety.</p> <p>4. The owner of a building holds it subject to the right of the public to prescribe reasonable safeguards and regulations for its protection, and the interests of the individual must in such case give way to the requirements necessary for public safety, but it must be clear that the safety of the public makes action necessary, and the right of the owner in his property cannot be sacrificed on mere guesswork or surmise. ,</p> <p>Note. — There can be no doubt that the prevention of danger from possible fires will justify some direct confiscation of certain structures which are not nuisances. The question is one of degree, and the reasonableness which is requisite to bring within the scope of the police power regulations adopted in pursuit of the policy of ultimately discontinuing wooden buildings within fire limits must be found in contrasting the magnitude of the private loss with the increment to the 'public safety. As to just what degree of restriction or rate of confiscation is reasonable, the cases are not agreed, as shown by a review of the authorities in notes in 21 L.R.A.(N.S.) 454, and 51 L.R.A.(N.S.) 62.</p> <p>As to what constitutes repair, reconstruction, alteration, etc., of a building within the meaning of a fire-limit statute or ordinance, see note in 26 L.R.A.(N.S.) 124; and the kindred question of remodeling, reconstructing, or augmenting building, as construction or erection within the meaning of such a statute or ordinance, is treated in a note in 26 L.R.A. (N.S.) 120.</p> <p>^Percentage of deterioration — not proper test — owner must make property safe.</p> <p>5. The proper test as a basis for action by the authorities in protecting pedestrians from falling walls or similar dangers is not the percentage of deterioration, but rather the ability and willingness of the owner to make the structure safe.</p> <p>Powers of city council — construction of buildings — fire limits — must be reasonable.</p> <p>6. Paragraphs 46 and 47 of § 2678, Eev. Codes 1905, which section prescribes the powers of city councils, empower such councils to prescribe the thickness, strength, and manner of constructing stone, brick, and other buildings, and to provide for the inspection of all buildings, and authorize the city council to prescribe the limits within which wooden buildings shall not be erected or placed or repaired without permission, and to direct that all or any buildings within said limits, which shall be known as the fire limits, when the same shall have been damaged by fire, decay, or otherwise to the extent of 50 per cent of the value, shall be torn down or removed, and to prescribe the manner of ascertaining such damage, . . . and by ordinance provide for issuing building permits and appointment of building inspectors; and ¶ 57 of the same section empowers the city council to declare what shall be a nuisance and abate the same-, and impose fines upon persons who may create, continue, or suffer nuisances to exist. In an attempt to exercise the power thus granted, the city council of Fargo enacted ordinances prescribing the fire limits, and containing very lengthy and detailed regulations regarding the construction of buildings in said city, and especially within such limits. It makes the city engineer inspector of buildings, and requires a permit before the erection, construction, or material alteration or repair of any building in the city, and the submission of a statement regarding the dimensions, etc., together with full specifications and plans, to the building inspector, makes it unlawful for anyone to proceed to construct or materially alter any building without such permit, and makes the alteration in or addition to any building already erected, except necessary repairs not affecting the construction of the external walls, roofs, chimneys, or sidewalks, subject to the regulations of the ordinance. Section 57 of such ordinance makes it unlawful to repair any frame building within the fire limits, when it has been damaged by the elements or decay to the extent of 50 per cent exclusive of the foundation, and provides a method for determining the extent of the depreciation. A fee of from $1 to $7 is required to be paid for the issuance of a building permit, the amount of the fee depending on the cost of the building or improvements. Held that such provisions are not so unreasonable that this court can say they are invalid for the purposes for which they are intended and to which they are applicable.</p> <p>Municipal corporations — powers — removal of buildings — fire limits — construction in favor of property owners — statutes — nuisance.</p> <p>7. Statutory provisions giving municipal corporations power to prescribe fire limits and direct the removal of buildings therein should receive a strict construction in favor of the owners of such buildings, and the power to destroy valuable property, lawfully erected, is inoperative and void, unless the thing is. in fact a nuisance.</p> <p>Fees for examination — statutory requirement — reasonable.</p> <p>8. The requirement that a fee be paid for the examination of plans and specifications and the issuance of a permit, ranging from $1 to $7, according to the valuation, is not unreasonable.</p> <p>Construction and repair of buildings — ordinance — compliance with — power of council to determine — police power — courts.</p> <p>9. The power conferred upon a city council and commission to determine whether proposed construction or repairs of buildings come within the provisions of the ordinance, and to abate a nuisance, is delegation of police power, and does not constitute judicial power in the sense that such power is vested by the Constitution in the courts.</p>

Action to quiet title. Judgment for defendant. Plaintiff appeals- Statement by Bruce, J. This is an action to quiet title.

W. H. Winchester, J. . A default judgment should be set aside where the absence of the defendant and his counsel was caused by reliance upon a statement made by plaintiff’s attorney, or by the clerk of court, that nothing would be done without notice. 23 Cyc. 932.

<p>Application for a writ of mandamus to compel the judge of the district court of Wells county to entertain jurisdiction to hear, try, and determine a contest involving the nomination as a candidate for the office of member of the legislative assembly.</p>

G. Bwr, J. Actions in equity to cancel certain mortgages of record for failure of consideration of tbe notes secured thereby. From a judgment in favor of each of the plaintiffs, defendant appeals. Statement by Fisk, J. The record on this appeal presents two distinct suits, — one by John' Grebe and the other by Louis Grebe, as plaintiffs against George W. Swords, as receiver of the First National Bank of Rugby, North'Dakota.

Alien, J. From a judgment in defendant’s favor, plaintiff appeals. Since all evidence offered by appellant on the trial was received without objection, and respondents offered no evidence, it is clear and it follows that if appellant made out a prima facie case, the judgment of the lower court was erroneous. Ijarson v. Hanson, 21 N. D. 411, 131 N. W. 229; Boley v. Griswold, 87 IJ. S. 486, 22 L. ed. 375; Burton v. Platter, 4 O. 0. A. 95‘, 10 IJ.

From a judgment in plaintiff’s favor defendant appeals. Tbe evidence of Fell and wife was given through an interpreter, and it was and is difficult to know the true meaning of evidence so secured. Haines v. People, 82 111. 430; People v. Barberi, 149 N. Y. 269, 52 Am. St. Rep, 717, 43 N. E. 635; The Oder, 8 Fed. 172. Such testimony is also untrustworthy because of the inability to give the witness any adequate cross-examination. United States v. Lee Huen, 118 Fed. 463.

Original application for the issuance of a writ of habeas corpus. Statement by Bruce, J”. A writ of habeas corpus was issued out of the supreme court in this case, and this hearing is on the return thereto.

•Appeal from the District Court of Wells County, Coffey, J. ' Action to enjoin the foreclosure of a mortgage by advertisement. Order denying injunction. Defendant appeals. Statement by Bruce, J. This is an appeal from- an order denying an application for an injunction to restrain the foreclosure of a mortgage by advertisement.

A. Coffey, J. Erom a judgment in plaintiff’s favor, defendant appeals. The complaint is insufficient in that it fails to join the husband as a party. He was the record owner of the land, — was head of family. He is a necessary party unless he has declared another homestead for their joint benefit. Code, §§ 4076, 5049, 5067; Poole v. Gerrard, '6 Cal. 71, 65 Am.

<p>Original writ — quo warranto — application for — Indian reservation — jurisdiction — state — political and governmental functions. 1. On an application to this court for an original writ in the nature of quo warranto, commanding the respondent (Mountrail county) to show cause by what authority it assumes to exercise jurisdiction and governmental control over certain territory embraced in -what is known as the Eort Berthold Indian Reservation, certain acts of Congress relating to the subject, and especially § 4, subdivision 2 of the enabling act, and the compact with the United States embraced in subdivision 2, § 203 of our state Constitution, are construed and held to vest in the state all jurisdiction not expressly reserved in the Congress of the United States over the lands in question, and that Congress relinquished to the state the right to exercise political and governmental functions over such territory.</p> <p>Note.- — As to who may maintain quo warranto to test validity of organization of a political subdivision of a state, see note in 21 L.R.A.(N.S.) 685.</p> <p>County organization — constitutionality of act — defect in title — estoppel.</p> <p>2. The territory now embraced in Mountrail county was segregated from Ward county, and duly organized as a political subdivision of the- state, at the general election in 1908. Ward county was organized under chap. 50, Laws of 1891, and, conceding for the purposes of the case that such act was unconstitutional on account of a defect in its title, it is held that by the long time which has elapsed the relator is now estopped to question the due organization of such county, and he is likewise estopped from questioning the legality of the organization of Mountrail county.</p>

<p>Criminal action — jury — deliberations of — continuous up to complete verdict — common nuisance — bottles of beer offered in evidence — taken by jury — used by jury — prejudice — presumption of — verdict — set aside.</p> <p>The deliberations of a jury in a criminal action are presumed to continue not only up to the time that their verdict is signed and agreed upon, hut long enough to allow their polling, if a poll is desired, and prejudice will be presumed to the defendant where it is shown that three bottles of beer which, were introduced in evidence in a prosecution for maintaining a common nuisance under the liquor laws of North Dakota, and which were taken by the-jury into their room, were found empty at the time that such jury reported that they had arrived at a verdict; and where such prejudice has not been overcome by competent evidence, a reversal will be ordered, even though the-taking of the exhibits into the jury room was not objected to by counsel for defendant.</p>

Action to quiet title and determine adverse claims. Judgment for Plaintiff. Defendant appeals. Statement by Bruce, J. As we view the evidence in this case, and as the trial court undoubtedly found (the findings are not specific and do not go into details), John J. Coyle, the plaintiff and respondent, on or about October 1, 1908, desired to purchase a quarter section of land in Williams county, known as the Rooney land, but lacked the money requisite for the purpose.

<p>Statutory contest — county auditor — contestee and appellant — precluded from raising questions of irregularity — election precincts.</p> <p>1. In a statutory contest involving the nomination at the last primary of a Republican candidate for the office of county auditor of Mercer county, held, for reasons stated in the opinion, that the contestee and appellant who was such county auditor is precluded from urging irregularities connected with such election in certain precincts.</p> <p>Election precinct officers — irregular conduct of — will not as a rule vitiate the vote — knowledge of officer — fraud — expression of will of voters.</p> <p>2. Irregularities in the conduct of an election by election officers over whom an elector has no control will not ordinarily vitiate the vote of such election where it appears that he had no knowledge of such irregularity, and Voted in good faith; and especially is this true where, as in this case, no fraud is shown or alleged, and there appears to have been a full, free, and fair expression of the will of the electors.</p> <p>Ballot — regular upon its face — indorsed with official stamp and initials of inspector — must he counted — initials put on ky one of the judges.</p> <p>3. A ballot which is in all respects regular upon its face, and is indorsed by the official stamp as required by law, and also contains the initials of the inspector, must be counted, although such initials were not indorsed by the inspector but by one of the judges of the election at the inspector’s request.</p> <p>Note. — As to effect of irregularities to render an election invalid, see cases in note in 16 L.R.A. 754.</p> <p>As to official marks on ballot, the inclination of the courts seems to be to hold that failure by the officials to comply strictly with the provisions of the law in reference to the preparation of the ballot for the voter will not render the ballot void, unless the statute so requires it, or unless a count of the ballots notwithstanding such failure will interefere with some of the fundamental principles of a pure and secret ballot. For a full review of the authorities on this question, see note in 47 L.R.A. 806.</p> <p>Statute ’— official ballots — authentication — mandatory — substantial compliance with law — mistakes not fatal to validity of vote.</p> <p>4. While the provisions of the statute requiring the official ballots’ to be authenticated in a certain manner is mandatory, it does not follow that a failure to strictly and literally observe its requirements is fatal to the validity of the votes cast. Where a substantial compliance with such statute is in good faith observed, the votes should be counted.</p>

<p>Tlie respondent moves to dismiss this appeal. The court after trial prepared findings and order for judgment in July, 1912, which were not filed until January 7, 1913, or after the term in office of trial judge had expired. Judgment was entered thereon by the clerk. Defendant caused a statement of the case to be settled, and thereon moved for a new trial, which motion was granted by orcler of October 14, 1913. Plaintiff has appealed therefrom, the record on appeal reaching this court February 11, 1914. Respondent, who was granted a new trial by the order appealed, now moves to dismiss appellant’s appeal, alleging that the findings and order for judgment were filed too late and are void, and that no trial has been had and therefore the appeal must involve but a moot question.</p> <p>Findings — order — not void or voidable — motion to dismiss.</p> <p>Held, the findings and order were but voidable under direct attack, and will not be held as void on this motion. The motion to dismiss the appeal is accordingly denied.</p>

W. Bwttz, Special J. 'From a judgment in respondents’ favor, plaintiff appeals. The judgment in the mandamus proceeding is not res judicata to this action. The question of the ultimate right or title to the county seat was not triable in the mandamus proceeding. State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; People ex rel. Noyes v. Board of Canvassers, 126 N. T. 392, 27 N. E. 792.

<p>From a judgment of the District Court of Bottineau County, Burr, J.</p> <p>Defendant appeals.</p>

Action to recover on a promissory note. Counterclaim for the withholding of the possession of real estate. Judgment for defendant. Plaintiff appeals.

Action, to recover damages for personal injuries. Judgment for Plaintiff-Defendant appeals. Plaintiff fully appreciated the danger he was in, and it must he held under settled authority that he assumed the risk. Chicago, B. & Q. R. Co. v. Shalstrom, 45 L.R.A. (N.S.) 389, 115 C. C. A. 515, 195 Fed. 725; Choctaw, 0. & G. R. Co. v. IVIeDade, 191 IT. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24, 15 Am. Neg.

There is no negligence shown on the part of defendant that proximately caused the injury and damages. Pennsylvania Co. v. Davis, 4 Ind. App. 51, 29 N. E. 425; Early v. Louisville, Ii. & St. L. R. Co. 115 Ey. 13, 72 S. W. 350; Cincinnati, N. 0. & T. P. R. Co. v. Reynolds, 31 Ey. L. Rep. 529, 102 S. W. 890. The undisputed evidence shows plaintiff was guilty of contributory negligence as a matter of law.

From a judgment of the District Court of Grand Forks County, Templeton, J., plaintiff appeals. Agency to execute negotiable paper may be established in the same way as agency to do any other act. This is fixed and settled by our negotiable instrument law. The issuance of commercial paper is within the implied powers of the defendant corporation.

<p>Plaintiffs bring this action to determine adverse claims. Substituted service was had. All defendants appeared. Corporation answers and asserts title in itself. Individual defendants do not answer. Thereafter, but before the trial was begun, the twenty-year period expired for which the foreign corporation was chartered. Ignorant thereof, the attorneys for the parties then served and filed amended pleadings and went to trial. Attorneys of corporation were also attorneys for the .individual defendants. Upon trial, plaintiffs failed to prove title in them, but established payment by them of $329 taxes paid under void tax deeds. On plaintiffs resting, defendants moved for dismissal because of plaintiffs’ failure of proof. Later the defunct corporation defendant submitted its proof as on the merits. Plaintiffs having pleaded a forfeiture of charter of the defendant corporation because of noncompliance with the Kansas statutes under which it was chartered, at the close of the trial the case was kept open for proof on that question, and, later, depositions were taken and filed, disclosing not a forfeiture, but the death of the corporation through the lapsing of its charter. Thereupon its former officers designated by the Kansas statute as those upon whom trusteeship devolved made written application, supported by affidavit and the depositions taken, for their substitution, and that the action not abate but continue against them as trustees for said foreign corporation defendant dissolved. Trial was then closed, the court not ruling on the motion to substitute, but taking everything under advisement. On the first session of the trial, in March, 1912, plaintiffs’ attorneys gave oral notice in open court that they would apply for a default judgment against the individual defendants not answering but appearing. Later and before the final session of the trial, judgment was entered without notice and as by default in favor of plaintiffs and against said nonanswering individual defendants, adjudging the individual defendants to have no interest in the lands as against the plaintiffs. Six weeks after the final session of the trial, after motion to substitute had been made but not ruled upon, and aftqr default judgment had been taken against the individual defendants, the plaintiffs filed a written dismissal of the action and a written application to the court for an order of dismissal both, as against the foreign corporation, claiming there was no adverse party corporation defendant. This motion was not ruled upon. The trustees asking substitution have not answered, and the title of the action remains unchanged. The court made its findings, conclusions, and order for judgment without any change in the title, finding in favor of the foreign corporation, land awarding judgment quieting title in its favor, with a writ of restitution for possession to it, and finding that the applicants for substitution as trustees were entitled to be substituted, and setting aside, as erroneously and inadverently entered, the judgment by default taken against the individual defendants; and ordered payment to plaintiffs of the amount of the taxes. Judgment was accordingly entered without change of title, adjudging the foreign corporation to own the land, and awarding it the costs of suit. From this judgment plaintiffs appeal, demanding a trial de novo. Held:</p> <p>Tax deeds — void — title — defendants not answering — failure of proof — action dismissed.</p> <p>1. Plaintiffs’ tax deeds under which they assert title are void, and they have failed in their proof of right to recover as against the individual defendants appearing but not answering, and as to whom the action should be dismissed as to plaintiffs as already tried on the merits.</p> <p>Foreign corporation — charter — lapsing — defunct — subsequent proceedings — voidable only.</p> <p>2. Upon the lapsing of the charter of the foreign corporation it became defunct, but the proceedings subsequently had will be treated in equity as voidable, not void.</p> <p>Substitution of parties — motion for — pleadings — issues — judgment.</p> <p>3. That the motion for substitution of the trustees should have been then and there granted, and said trustees ordered substituted as defendants in lieu of the defunct corporation, and the action continued against them; that they as trustees should have served and filed pleadings, and the issue so joined should have been tried as between plaintiffs and said trustees before rendition of judgment.</p> <p>Individual defendants — interest in action as to plaintiff — adverse claims — statute — default judgment — vacating.</p> <p>4. That plaintiffs having affirmatively disclosed their want of interest as against the individual defendants as to whom trial was had, judgment in their favor against the defendants could not be entered by default. Said defendants were not in default, but appeared, as they had a right to do under the adverse claims statutes, §§ 8151, 8153, even though not answering. The judgment awarded as by default was properly set aside.</p> <p>Dismissal of action by plaintiffs — substitution of parties — motion for — corporation — void judgment.</p> <p>5. Plaintiffs could not, after the submission of the cause supposedly on the merits, in the face of a pending motion for substitution of parties, dismiss as to the defunct corporation because it had become defunct, and leave intact, reserved by the motion, said erroneous judgment previously entered against the individual defendants.</p> <p>Findings — order — substitution — as of date of motion — default judgment — action dismissed as to individuals.</p> <p>6. The findings and order made thereon are to be treated as an order for a substitution of trustees as defendants as of the date the motion was made, and as an order vacating said default judgment, and as authorizing dismissal of this action as to the individual defendants, as far as plaintiffs are concerned, further than this, the findings, conclusions, order, and judgment are vacated and set aside.</p> <p>Affirmative judgment by defendants — stand as plaintiffs — dismissal of action.</p> <p>7. Respondents urge that as it appeared that plaintiffs have no interest or title, that on plaintiffs’ appeal, after such proof, judgment in defendants’ favor should be summarily affirmed, and no review be had of defendants’ proof. Held, that as defendants assert and have recovered affirmative judgment of title and possession (conceding the trustees to.be parties), they stand as plaintiffs in their relations to appellants, with their counterclaim deemed denied, with the burden of proof upon them before any judgment other than for dismissal of the action can be rendered under the statutes governing procedure in adverse claim suits, §§ 8151, 8153 (Comp. Laws 1913).</p> <p>Title of action — trustees — issue.</p> <p>8. The cause is remanded, with directions to change title of the action that it may run against the trustee defendants; that plaintiffs and said trustee defendants may join issue on pleadings, and trial and further proceedings be had according to law.</p> <p>ITinal judgment — allowance for taxes — void tax deeds.</p> <p>9. Any final judgment rendered will allow defendants for the amount of taxes and interest thereon paid by them under color of title, — the void tax deeds.</p> <p>Trial — opportunity for trial — costs.</p> <p>10. After trial on the merits or opportunity afforded for trial, appellants will recover costs and disbursements taxable on this appeal. Past and future district court costs and disbursements will be awarded in favor of the party to whom is awarded final judgment of title to the half section of land in controversy.</p>

Prosecution for bastardy. Judgment for plaintiff. Defendant appeals.

As clearly appears from tbe complaint, there is no cause of action alleged against defendant bank. Tbe complaint shows no right as against tbe bank, nor does it show an infringement of any rights or any wrong done by tbe bank.

<p>Application for an original writ of mandamus, directed to the respondents as members of the state board of equalization, commanding such board to revise and correct its levy of state taxes so as to include in such levy 1-J mills for the educational institutions, as prescribed in. chapter 148, Laws 1913.</p>

From a judgment of the District Court of LaMoure County, Coffey, J., plaintiffs appeal. The sufficiency of the evidence to establish the existence of the deeds in question, and also the fact that they are lost, cannot be gainsaid. Gibson v. Brown, 214 111. 330, 73 N. E. 578; Kenniff v. Caulfield, 140 Cal. 34, 73 Pac. 803; 25 Cyc. 1625, 1627.

Mandamus to compel the removal of a bridge from the channel of an unnavigable stream. Appeal from the District Court of Bottineau County, Burr, J. Judgment for petitioner. Defendant appeals. Statement of facts by Bruce, J.: This is an action in mandamus to compel the defendant to remove its bridge from the channel of the Mouse river. The relators, who are the respondents on this appeal, are members of the drainage board of Bottineau and McHenry counties.

<p>Appeal from District Court, Burleigh County; W. L. Nuessle, J.</p> <p>Erom a judgment of conviction of the crime of keeping and maintaining a common nuisance, defendant appeals.</p>