Volume 3 — North Dakota Reports

Action by Herman P. Gauthier against Felix Rusicka to recover for services as physician and surgeon. Judgment for plaintiff. From an order vacating the judgment, plaintiff appeals.

Action by Finlay Dun, trustee of the North American Land Association (limited), against Joseph Dietrich and Nora Dietrich, to recover on the covenants in a deed against incumbrances.

Action by Edmund S. Doty against the First National Bank of Larimore, to recover damages for the refusal of defendant to transfer certain shares of stock on its books. Judgment for defendant. Plaintiff appeals. If plaintiff had'a right to insist on the transfer, defendant is liable in damages for refusing to make the transfer. The damages are the value of the stock with interest. Boone on Corp. § 122, Note 13.

Action by Fred. H. Smith against the Northern Pacific Railroad Company, for damages caused by a prairie fire set by one of defendant’s locomotives. Judgment for plaintiff. Defentant appeals. Section 5097, Comp. Laws of N. D., is identical with § 580, Code of Civil Procedure of California. Under this section it has been held that if there is an answer, the court may disregard the prayer in the complaint and give the plaintiff suitable relief.

Action by the Northern Dakota Elevator Company against George Clark and others to recover certain money claimed to be in the hands,of one of defendants as,assignee of Clark & Smart. Judgment for plaintiff. Defendants appeal. Owners seeking to follow their property or its proceeds, must trace it into defendant’s possession, Whelley v. Foy, 6 Johns. 34; Van Allen v. Bank, 52 N. Y. x; Bank v. Ins. Co. 104 Ü. S. 54! Kip v. Bank, 10 Johns 63; Bank v. King, 57 Pa.

Action by the Fargo & Southwestern Railroad Company against William E. Brewer, as county treasurer of LaMoure County, to restrain certain tax proceedings. A demurrer to the complaint was sustained, and plaintiff appeals.

<p>New Information Filed to Cure Defects Without New Preliminary Examination.</p> <p>Where an information was adjudged defective by the Supreme Court because it did not state that the prosecution was in the name and under the authority of the state, and the case was reversed, held, it was not error for the trial court to make an order allowing the state’s attorney to file a new information curing the defect, without a new preliminary examination of the accused.</p> <p>Presence of Accused not Necessary.</p> <p>The making of such an order is no part of the trial, within the meaning of § 7321, Comp. Laws, providing that the defendant must be personally present at the trial when the offense is felony, and it is therefore not necessary that defendant should be personally present when such order is made.</p> <p>Harmless Error.</p> <p>If notice to defendant or his counsel of application for such order was necessary, the error, if any, in failing to give such notice, was-error without prejudice. For such an error there can be no reversal. Section 7588, Comp. Laws.</p> <p>Weight and Sufficiency of Evidence.</p> <p>Evidence examined, and held sufficient to warrant a conviction.</p>

Application by the state on relation of the Northern Pacific Railroad Company for a writ of mandamus to compel the judge of the. District Court of Stutsman County, to take up and decide a motion for a new trial, which was alleged to be pending before him for decision. The alternative writ was quashed, and proceedings dismissed.

Statutory action by William O’Neil against R. S. Tyler to quiet an adverse title to real estate, which defendant claims by virtue of certain tax deeds. Judgment for plaintiff. Defendant appeals. Judgment setting aside the tax deeds is affirmed, and case reman- , ded for further proceedings consistent with the opinion.

<p>Attaching Exempt Property — Failure to File Schedule.</p> <p>While § 5130, Comp. Laws, requires a debtor who desires to receive the benefit of the exemptions mentioned in § 5128, Id., to serve upon the officer who has seized his property under execution or attachment a verified schedule containing all his personal property, yet the failure of the debtor to include in such schedule all of such property, when done with no fraudulent intent, and when the officer is in no manner misled thereby as to the amount of the debtor’s property, will not deprive the debtor of such exemptions, but only debars the debtor from selecting any property as exempt which does not appear in‘the schedule.</p> <p>Mingling of Goods — Purchase Money — Execution.</p> <p>Where a merchant purchases goods of the same class and quality from different parties, and in the ordinary course of business so mingles the goods upon his shelves' that it becomes impossible to designate the goods purchased from any one party, yet such fact will not render the entire stock liable to seizure at the suit of one of such parties to recover the purchase price of goods sold to such merchant, notwithstanding § 5137, Comp. Laws, provides that no exemption shall be allowed against an execution issued for the purchase money of property that has been seized under the execution.</p> <p>Claim and Delivery for Exempt Property.</p> <p>When, in such a case, the owner brings the action of claim and delivery against the officer holding such property, on the ground that the same was exempt from such seizure, the burden is upon the officer to show what specific property so held by him was liable to seizure for the purchase price thereof under the process in his hands.</p> <p>Affidavit that Property is Exempt.</p> <p>The action of claim and delivery will lie at the suit of the defendant in attachment to recover property seized under a writ of attachment, when it is stated in the affidavit that such property was exempt from such seizure.</p>

Action for the possession of personal property by James Morrison against Thomas Oium, sheriff. Plaintiff had judgment, and defendant appeals. A transfer of personal property, if not accompanied by an immediate delivery, and followed by an actual and continued change of possession is conclusively presumed to be fraudulent, §2024 Civil Code, Conrad v. Smith, (N. D.) 51 N. W. Rep. 720; Longley v. Daly, (S. D.) 46 N. W. Rep. 247; Cook v. Rochford, 12 Pac.

<p>Appeal from District Court, Grand Forks County; Templeton, J.</p> <p>Action by the Minnesota Threshing Manufacturing Company against Elias Hanson. Plaintiff had judgment, and defendant appeals.</p>

Action by A. H. Parker against the First National Bank of Lisbon for the conversion of a quantity of wheat. A demurrer to the complaint was overruled, and defendant appeals.

<p>Appeal from District Court, Stutsman County; Rose, J.</p> <p>Action for personal injuries by Geo. A. Bennett against the Northern Pacific Railroad Company. Defendant had judgment, and plaintiff appeals. ..... . .</p>

Cross appeals from District Court, Cass County; McConnell, J. Action by Charles H. Gould against the Duluth & Dakota Elevator Company for the conversion of a quantity of wheat. After the reversal of an order vacating a judgment for plaintiff, 50 N. W. Rep. 969, judgment was entered for plaintiff.

Cross appeals from District Court, Barnes County; Rose, J. Action by James B. Power against A. M. Bowdle, to quiet title, under Comp. Laws, § 5449. From a judgment for defendant, both parties appeal. When a custom has become so established as to become a part of the law, the court will act upon it, without requiring it to be proved. Consegna v. Millings, I Peters' N. S. C. C. 225.

<p>Trial — Verdict—Amendment by Court.</p> <p>In a case where the sole issue is jdaintifl’s right to recover anything of defendant, and where the amount due, if anything, is admitted by the pleadings, and where the jury returns a general verdict in favor of plaintiff, and against defendant, without fixing the amount of the recovery, it is not error prejudicial to the defendant for the court to order judgment for plaintiff for the amount admitted by the pleadings.</p>

<p>Complaint Before Magistrate — When Sufficient.</p> <p>Section 8, Ch. 71, Laws 1890, which provides that, with certain specified exceptions, “no information shall be filed against any person for any crime or offense until such person shall have had a preliminary examination therefor, as provided by law, before a committing magistrate or other officér having authority to make preliminary examinations, unless such person shall waive his right to such examination,” etc., construed. Held, where a criminal complaint filed against the accused with an examining magistrate, after alleging time and place, designates the offense in general language, giving its name, and, in addition thereto, sets out such of the facts and circumstances constituting the offense as will fairly apprise a person of average intelligence of the nature of the accusation against him, it will be sufficient, within the meaning of the statute, to authorize the State’s Attorney to file an information against the accused for the same offense if he has had or waived an examination on such complaint. It will make no difference with this rule if certain averments of fact which are essential in an information are omitted from the complaint. Such complaints need not be framed with the same degree of care and technical accuracy as is required in framing informations and indictments. Tested by this rule, the complaint against the petitioner is examined, ánd found sufficient.</p> <p>Errors of Procedure not Reviewed on Habeas Corpus.</p> <p>Rulings of the District Court made upon the trial of criminal actions are reviewable by writ of error, but the writ of habeas corptis cannot be invoked for that purpose.</p> <p>Habeas Corpus and Writ of Error Distinguished.</p> <p>Where the petitioner pleaded in abatement to an information filed in the District Court against him that Re had neither had nor waived a preliminary examination for the offense charged in such information, and the plea was overruled. Held, that such ruling was made by a court having jurisdiction of the person and the subject matter, and therefore the ruling cannot be reviewed by habeas corpus.</p>

Action by the Washburn Mill Company against S. J. Bartlett and another to foreclose a real estate mortgage. A demurrer to the answer was overruled, and plaintiff appeals. Defendant’s answer is insufficient to raise the question of noncompliance with the statute. It pleads legal conclusions. Gull River Lumber Co. v. Keefe, 41 N. W. Rep. 743> 6 Dak. 160.

Charles Johnson was indicted for assault with intent to kill. The J ury found him guilty of assault with intent to do bodily harm. He was sentenced for the first named crime, and brings error.

<p>Usury — Repeal of Statute — Penalty.</p> <p>Under § 4767, Comp. Laws, the penalties prescribed by g 3723, Id., against usury, were not extinguished by the repeal of said £ 3723 by Ch. 184, Laws 1890, as to any transactions had and completed prior to the enactment of said repealing statute.</p> <p>Erroneous Instruction — Harmless Error.</p> <p>While the giving of an erroneous instruction raises an immediate presumption of prejudice, yet a case will not be reversed by reason of such error where it is clear from the record that the complaining party could not have been prejudiced thereby.</p>

<p>Redemption from Foreclosure Sale — Voluntary Payment.</p> <p>Where a party in possession, and with full knowledge of all the facts, pays to the proper officer the money necessary to redeem certain real estate from a foreclorure sale by advertisement, which sale was made after the lien of the mortgage had been fully satisfied and destroyed, and where such payment is made for the sole purpose of preventing the execution of a deed to the purchaser at the foreclosure sale, which would create an apparent cloud upon the title, such payment is voluntary, and cannot be recovered.</p> <p>Payment Under Protest Unavailing.</p> <p>That a payment was made under protest is of no avail, unless there was duress or coercion of some character, and then its only office is to show that such payment was made by reason of such duress or coercion. Protest can never make that involuntary which in its absence would be voluntary.</p>

<p>Appeal from District Court, Richland County; Lauder,].</p> <p>Action by the Plano Manufacturing Company against William Root. Plaintiff had judgment, by direction of the court, and defendant appeals.</p> <p>Plaintiff sued upon a written contract. By the terms of its warranty it was incumbent upon the plaintiff to furnish the defendant a machine that was well made, of good material and with proper care and management, capable of doing as good work as any other machine on the market.</p> <p>The basis of plaintiff’s action being upon a contract, it was necessary for it to show that it had complied with the terms of the contract, and this before it could put the defendant on his defense. When plaintiff closed its case it had not shown compliance with its contract; therefore defendant’s motion for a directed verdict, should have been allowed. J. I. Case Threshing Machine Co. v. Smith, 18 Pac. 641; Fairfield v. Madison Mfg. Co. 38 Wis. 346.</p> <p>This is not an action to enforce an executory contract of sale, nor for damages for breach of such contract but for purchase money on an executed sale. Fishback v. VanDusen, 22 N. W. Rep. 244; Warden v. Fisher, 4 N. W. Rep. 470; Jenkinsonv. Monroe Bros., 44 N. W Rep. 1113; Smith v. Whitfield, 2 S. W. Rep. 822. Where the authority and power of an agent is in writing, the writing is the best evidence. Rcise v. Medlock, 84 Am. Dec. 611; Columbia Bridge Co. v. Gcise, 38 N. J. L. 39; Meachcm on Agency § 103.</p>

<p>Bill of Exceptions — Settlement and Signing.</p> <p>After a trial judge has decided and announced what shall be embodied in a bill of exceptions, it is not his duty to engross the bill in accordance with his decision, and he cannot be said to have neglected to settle such bill unless he neglects to sign the bill after it is presented to him for signature, engrossed as settled by him.</p>

Appeals from District Court, Bottineau County; Morgan, J. The facts fully appear in the following statement by Wallin, J. An appeal to this court is taken in each of the above entitled matters by the Mortgage, Bank & Investment Company, which company is the mortgagee in all of the above mentioned mortgages..

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by John McMillan and Christina McMillan against John Aitchison. Plaintiffs had judgment, and defendant appeals.</p>

Action by the Goose River Bank against Will Gilmore and others. Defendant’s had judgment by direction of the court, and from an order denying a motion for,a new trial, plaintiff appeals.

Action of replevin by the Union National Bank of Oshkosh against T. N. Oium, as sheriff of Ransom County,' and another. There was judgment for defendants, and plaintiff appeals. No valid levy of attachment was ever made upon the engine and separator and some of the plows claimed to have been attached, as they were not present nor in the view of the sheriff at any time.

Action by Patrick Fahey against the Esterley Harvesting Machine Company for a rescission of contract. Plaintiff had judgment, and from an order denying a new trial, defendant appeals. Where the warranty under which machinery is sold requires wi'itten notice to be given the vendor or its agents in case of breach, no action based on such breach is maintainable unless such notice has been given. Nicholas v. Wyman, 32 N. W. Rep. 258; Furneaux v. Esterly, 13 Pac.

<p>Power of Agent Selling Machine to Warrant the Same.</p> <p>An agent authorized to sell binders for another has power to warrant that the binders will do as good work as any other machine in the market.</p> <p>Secret Restrictions — Not Binding.</p> <p>His general authority to so warrant cannot be restricted as to third persons who have no knowledge of such restriction.</p> <p>Holding Machine at Request of Selling Agent — Not Waiver of Right to Rescind.</p> <p>Where the purchaser of a binder was induced to keep the machine by repeated promises and attempts to fix the same, made by the agerit who sold the same, a return of the binder immediately after discovering that it would not work as warranted, after the last attempt to fix it, is in time to entitle purchaser to claim that he has rescinded the contract for breach of warranty promptly, within the provisions of § 3591, Comp. Laws.</p> <p>After Rescission for Breach of Warranty Vendee May Sue for Value of Note.</p> <p>Fahey v. Harvesting Co., 55 N. W. Rep. 580, 3 N. L>. 220 (decided at this term,) followed as to liability of vendor of property sold with warranty, when the contract of sale is rescinded by vendee for breach of warranty, for the amount of a negotiable note given for purchase price, negotiated to a bona fide indorsee before maturity, although such note has not been paid.</p>

Action by Theophilus L. Taylor against John R. Jones, for conversion. Judgment for plaintiff. Defendant appeals. The verdict was against the clear weight of the testimony and should be set aside. Mead v. Counte, 8 At. Rep. 374; Hicks v. Stone, 13 Minn. 434; Garrett v. Grecnwell, 4 S. W. Rep. 441; Sandwich Manufacturing Co. v. Fcary, 33 N. W. Rep. .485 ; Kaemmever v. Hauser, 29 111. App. 576; Jones v. McWalley, 11 S. E. Rep. 544; M. P. Ry.

Application by the Diebold Safe & Lock Company for writ of mandate to Fred O. Getchell, county auditor of Eddy County. Application denied. Plaintiff appeals. Mandamus is proper remedy to compel auditor to sign and deliver a warrant. Merrill on Mandamus § § 126, 121; Lachauce v. Auditor General, 43 N. W. Rep. 1005; State v. Tarpen, Auditor, 1 N. E. Rep. 209. In issuing warrants the auditor acts ministerially. State v. Ames, 18 N. W. Rep. 277.

Action by William N. Coler and William N. Coler, Jr., partners under the firm name and style of W. N. Coler & Co., against Dwight School Township of Richland County, on the interest coupons of certain bonds. Judgment for plaintiffs. Defendant appeals.

Action by the Colonial & United States Mortgage Company against Orlando Stevens and Ellen A. Stevens on a note. From a judgment dismissing the case, plaintiff appeals. Section 2590, Comp. Laws, is a part of the Code prepared by the New York Commission. It was adopted by Dakota in 1886, by California in 1872, later by Nevada. It is the same as § 158 Cal. Code, and § 169 of Nevada Civil Code.

Action on a contract by Paul Hutchinson, administrator of the estate of Charles Hutchison, deceased, against Joseph Cleary and others. Defendants had judgment, and plaintiff appeals. The court erred in admitting proof of the talk between defendant’s and plaintiff’s intestate. Because it was offered for the purpose of varying the terms of a written agreement. Dean v. Bank, 6 Dak. 222; Hennessy v. Griggs, 1 N. D. 52; Fuel Co. v. Bruns, 1 N. D. 137.

<p>Personal Injuries — Damages—Effect Upon Mental Powers — Instruction.</p> <p>In an action to recover for personal injuries, where there is no claim in the complaint or in the evidence that plaintiff’s mental powers were in any manner impaired by the injury, it is error for the trial court to instruct the jury that in estimating the damages they may take into account the effect of the injury upon plaintiff’s mental powers.</p>

<p>Attorneys Lien for Compensation.</p> <p>The lien of an attorney for money due his client, in the hands of .the adverse party, under § 470, Comp. Laws, when secured by compliance with the requirements of that section, gives the attorney an interest in such moneys, similar to that of an equitable assignee thereof.</p> <p>Lien Extends to Undertaking for-Payment of Judgment.</p> <p>His interest extends to and embraces the judgment rendered in the action to recover such moneys, and also the undertaking to pay such judgment, given by the defendant in such action on appeal, and also the cause of action on such undertaking against the surely thereon. The attorney has the s'ame equitable interest in such judgment, undertaking, and cause of action upon the undertaking that he has in the money due his client from the adverse party.</p> <p>Surety — Right to Set Off — Priority.</p> <p>When, however, the surety on such undertaking, after the attorney had secured his lien, but before the surety had notice thereof, purchased a judgment against the client, held that, in an action upon the undertaking, on appeal, the surety’s right to set off such judgment was absolute, and was unaffected by the attorney’s lien.</p> <p>Notice of Lien — Upon Whom Binding.</p> <p>The entry of notice of lien under Subd. 4 of § 470 is not notice to any except the judgment debtor.</p> <p>Rights of Assignee of Judgment.</p> <p>One who buys a set off to a claim against him, without notice of a prior assignment of such claim, may use the set off as a defense, the same as though the claim against him had not been assigned.</p>

<p>Evidence to Refute Inference or Presumption of Fact.</p> <p>A plaintiff may properly introduce evidence to refute an inference or presumption of fact that might arise from matters drawn from himself on cross-examination, even though such evidence has no direct bearing upon the issues, and the time of the introduction of such evidence is peculiarly within the discretion of the trial court.</p> <p>Claim and Delivery — Ownership—Verdict.</p> <p>In claim and delivery, where each party claims the right of possession by virtue of absolute ownership, and in no other manner, a verdict which finds the plaintiff entitled to the possession of the property, and fixes its value, wi.ll support a judgment for plaintiff for possession of the property, or its value as found by the jury.</p>

Arthur McGahey was convicted of shooting at another with intent to kill, and brings error. Failure of the court to rule on objections of defendant, when the objections were properly made — was error. Elliott. Ap. Pro. § 727; Conning v. Woodin, 8 N. W. Rep. 572. The re-examination of complaining witness as to cause of animosity between himself and defendant, was prejudicial error. 1 Thomp. on Trials, § 484; Schascrv. State, 36 Wis. 432, n Alb. Law Jr. 224.

Mandamus proceeding. Defendant appeals from a final order of the District Court of Burleigh County, (W. H. Winchester, J.,) which order directs the defendant to issue warrants for relator’s official salary, as secretary of the commissioners of railroads, at the rate of $1,500 per annum.

Original application in the name of the state at the relation of Wm. Larabee against Oscar G. Barnes, Sheriff of Cass County, for the release of relator on habeas corpus. Writ granted, and case heard upon objection to the sufficiency of the petition. Article 20 of the constitution is void because it was never approved by the qualified voters of the state as required by § 8, of the enabling act. The vote as canvassed and certified was “for prohibition” 18,552, against 17,393.

<p>School Township Treasurer — Cannot Sell Bonds.</p> <p>Chapters 44, 45, Sess. Laws Dak. T. 1883, relating to school townships and school house bonds, considered. Reid, that the school board (consisting of the treasurer, clerk, and director) is the official governing board of such school township, and such board has full power and authority to issue, negotiate, and sell such bonds of the school township as have been duly voted by the electors for the purpose of building a school house. Held, further, that the school township treasurer, acting independently, has no authority under the law and by virtue of his office as treasurer, to issue, negotiate, or sell such bonds.</p> <p>School Board Responsible for Lost Funds.</p> <p>.Where the school board of the plaintiff, consisting of the treasurer, clerk, and director, issued certain school house bonds, which had been regularly voted by the electors, and in doing so delivered such bonds to a bank to be negotiated and sold for the benefit of the school township, and the bonds were sold and put in circulation, but the proceeds were never turned over to the school township, but, on the contrary, were lost to the school township, held, that the school board was wholly responsible for such loss. Held, further, that such bonds not having been delivered to the treasurer for negotiation and sale, and he never having sold or attempted to sell the same, an action will not lie against the treasurer or his sureties on his official bond for a breach of the condition of such bond which requires the treasurer to account for and pay over all moneys and property which shall come into his hands as treasurer.</p> <p>Obligation of Surety Not Enlarged by Construction.</p> <p>The obligations of sureties upon official bonds are measured by the language of the bond, and where the condition of a bond embodies the provisions of the statute, and no more, the obligation cannot be expanded by construction beyond the fair import of the language in which the sureties have consented to be'bound.</p> <p>Parol Evidence to Vary Terms of Receipt.</p> <p>When the bonds were delivered by the board at the bank for negotiation and sale, all members of the board were at the bank, and acting in concert. At that time the cashier of the bank delivered to the treasurer a writing as follows: “$1,000, Grand Rapids, Dakota, Sept. 28th, 1883. Received of William Haseleu, Treas. Prairie School Township, one thousand dollars in bonds of Prairie Tp., LaMoure Co., D. T., for placing and cr. A. H. Huelster, Cashier Bank of Grand Rapids.” Held, that such writing embodied both a receipt and a contract, and that, as such, its terms could be varied and explained by parol evidence, but only as to that part which is a mere receipt.</p> <p>Error Without Prejudice.</p> <p>Where it appears that upon the uncontroverted facts the plaintiff cannot recover in the action, a. verdict and judgment for defendants will not be disturbed by this court even when the record shows errors in procedure. Such errors are without prejudice.</p>

<p>Appeal from District Court, Cass County; McConnell, J.</p> <p>Action by Louis A. Yorke against Emma M. Yorke, for a divorce. Plaintiff had a decree, and from an order vacating the same, and dismissing the complaint, plaintiff appeals.</p> <p>Service of papers upon# former attorney, but after the relation of attorney and client has ceased, is not proper service. Beach v. Beach, 6 Dak. 374. The affidavit for publication of summons was sufficient. Kennedy v. Ins. Co., 101 N. Y. 487, 43 Hun. 629, 76 Cal. 646. The defendant having appeared and moved to vacate the judgment upon other grounds than want of jurisdiction, was a general appearance and cured all defects in prior proceedings. Handy v. Ins. Co. 37 Ohio St. 366; Swift v. Lee, 65 111. 336; McBain v. People, 50 111. 503; Dunning v. Dunning, 37 111. 306.</p> <p>Motion papers to set aside a judgment of divorce granted by default are properly served on the attorney for the plaintiff in the judgment, although made after entry of judgment and after the attorney for the plaintiff has been paid off and discharged. Miller v. Miller, 37.How. Pr. 1; Merriam v. Gordon, 22 N. W. Rep. 563; Beach v. Beach, 43 N. W. Rep. 701; Drury v. Russell, 27 Plow. Pr. 130; Ltisk v. Hastings, 1 Hill. 656. The court may vacate its judgment after term where it did not have jurisdiction to render judgment or where for any reason the judgment is void or where its rendition or entry was procured by fraud. Edson v. Edson, 108 Mass. 590; Cottrell v. Cottrell, 23 Pac. Rep. 531; Caswell v. Caswell, 11 N. E. Rep. 342; Morton v. Morton, 27 Pac. Rep. 718; Wisdom v. Wisdom, 39 N. W. Rep. 594; Brown v. Grove, 18 N. E. Rep. 387; McBlane v. McBlane, 20 Pac. Rep. 61; Cross v. Cross, 15 N. E. Rep. 333. Lapse of time will not effect the right to vacate a judgment void for want of jurisdiction. Feikert v. Wilson, 37 N. W. Rep. 585; Vilas v. PI. N. Y. 25 N. E. Rep. 941; Caswell v. Caswell, 11 N. E. Rep. 342. One year limitation within which to vacate default does not apply to void judgments. Peo\ v. Greene, 16 Pac. Rep. 197. Affidavit of merits is not necessary to set aside a decree of divorce obtained by fraud. Cottrell v. Cottrell, 23 Pac. Rep. 531; McBlane v. McBlane, 20 Pac. Rep. 61; Gay v. Grant, 8 S. E. Rep. 99; Hanson v. Hanson, 20 Pac. Rep. 736; Wisdom v. Wisdom, 39 N. W. Rep. 594; Orth v. Orth, 69 Mich. 158. Appearance and motion of defendant to vacate judgment does not cure prior defects. Gay v. Hawes, 8 Cal. 563; Deidesheimer v. Brown, 8 Cal. 340; Toof v. Foley, 54 N. W. Rep. 59.</p>

Action by Antonia Hegar and Micke Schmitz against John DeGroat in ejectment and for damages for the use and occupation. Plaintiff recovered judgment for possession and $3745 damages and for costs, and defendant appeals.

Action by William Braithwaite against Akin and others. William Rea and George F. Robinson, partners as Robinson, Rea & Co., and others intervened. To the complaint in intervention, plaintiff, Braithwaite, answered, setting up counterclaims. To this answer interveners demurred. From an order overruling their demurrer, interveners appeal.

<p>Stock Killing Cases — Prima Facie Case — Negligence'—Evidence.</p> <p>Where an action is brought against a railroad company for the negligent killing of a domestic animal, the plaintiff can, if he sees fit to do so, make out a prima facie case without showing actual negligence, by proving the value of the animal and the fact that it was killed by defendant’s train of cars; but in such case, if the defendant, to overcome the statutory presumption of negligence arising from the killing, shows conclusively by undisputed evidence that the train in question was at the time of the accident in good repair and condition, and was equipped with the best modern appliances and improvements in use, and was operated skillfully and with due care, then, and in.such case, the statutory presumption of negligence arising from the killing is'rebutted and entirely overcome; and where in such case, at the close of the testimony, defendant requested the trial court to direct a verdict for the defendant, and the court refused to do so, held, that such refusal was reversible error.</p>

<p>Trustees of State Institutions — Tenure of Office.</p> <p>Section i, Ch.,93, Laws 1889, which provides for the appointment of trustees of the state institutions, including the penitentiary, examined and construed. The section contemplates that such trustees shall (except in cases of vacancy) be appointed by the concurrent action of the governor and senate, and, when so appointed, that such trustees shall continue in office, not only until the expiration of the prescribed term for which they are appointed, but beyond that period, and until their successors are chosen by the action of both the governor and senate. It is accordingly held, that trustees who were appointed by the governor, and confirmed by the senate at its session'in 1891, for a term of two years, are lawfully entitled to hold over after the expiration of the term of two years for which they were appointed, notwithstanding the fact that the governor in due time nominated their successors, and the senate which assembled in 1893 adjourned without confirming them, or confirming any successors of the trustees appointed in 1891.</p> <p>Expiration of Prescribed Term — When Vacancy.</p> <p>The expiration of the prescribed term, when coupled with the fact that the senate adjourned without confirming successors of trustees in office under a former appointment, will not operate to create a vacancy in the office, which, under the statute, can be temporarily filled by the governor. The vacancies contemplated by the statute are actual vacancies, and such as arise from death, resignation and like causes.</p> <p>Power of Governor to Fill Vacancies.</p> <p>Under § 78 of the state constitution, the appointing power of the governor.is confined to filling vacancies in office in cases where no other mode is provided by the constitution or laws for filling the same.</p>

<p>Lien for Threshing Grain' — Notice—Action for Conversion — Evidence.</p> <p>When a party claiming to have a thresher’s lien under Ch. 88, Laws 1889, takes possession of the grain, and sells the same, and an action is brought against him by the owner of the grain for converting the same, it is incumbent upon the lien claimant to show at' the trial not only that he filed a verified account in writing embodying, among other things, a description of the land upon which the grain was grown, but he must further prove that, as a matter of fact, the grain upon which the lien is claimed was grown upon the land described in the writing on file. Accordingly, held, where in such action the defendant (lien claimant) rested his defense without offering any testimony tending to show where the grain in question was grown, and the plaintiff testified that no grain was grown in the year in question upon the land described in the statement filed with the register of deeds, it was error in the trial court to deny plaintiff’s motion to strike out all evidence in the case relating to the lien.</p>

Action by Reeves & Co., a corporation, against William Corrigan and Eugene Maddox. Defendants had judgment, and, from an order denying a new trial, plaintiff appeals.

Action by the State of North Dakota, at the relation of William H. Standish, attorney general, against Knud J. Nomland, state treasurer, for mandamus. There was judgment for plaintiff, and defendant appeals. This enactment is in violation of § 6, Art. 11 of-the constitution of the state in that it embraces more than one subject.- The leading features of the act are neither expressed nor referred to in the title.

Action by the State of North Dakota, at the relation of R. M. Pollock and others, against H. F. Miller and others, to try title to office. From an order overruling their demurrer to the answer, relators appeal. Chapter 124, Laws 1887 was repealed by the legislature of 1893. Chapter 95, Laws 1893, re-enacts § 4 Ch. 124 of the Laws of 1887. Chapter 124, Laws 1887 was construed by Judge Tripp in the Cox casé 6 Dak. 501.

Action by John L. Grandin and William J. Grandin against E. G. La Bar to quiet title to land, and for an injunction. Plaintiffs had judgment, and defendant appeals.

Action by the Mortgage Bank & Investment Company against Edward G. Hanson and others to foreclose a mortgage. From an order overruling his demurrer to the complaint, defendant Hanson appeals.

<p>Mechanic’s Lien — Priority to Mortgage.</p> <p>The priority of lien on a building given to one who furnishes material, as against an existing incumbrance on the land, by the provisions of § 5480, Comp. Laws, does not exist, unless the building or improvement on which such priority of lien is claimed was wholly erected subsequently to the attaching of the lien of the incumbrance, and the lien claimed to be prior thereto is for work done or material furnished in such erection. Such priority of lien exists only when the holder of such lien can have the building or improvement sold, and removed from the land, without unlawfully invading the rights of the earlier incumbrancer.</p>

<p>Guardian Ad Litem — Personal Liability for Costs — Contempt—Construction of Statute.</p> <p>Section 5200 reads: “Where costs are adjudged against an infant plaintiff the guardian by whom he appeared in the action must be responsible therefor and payment thereof may be enforced by attachment.” Construing said section, held: First, that the obligation of the guardian to pay such costs arises upon the law, and does not in any degree depend upon an order of court directing the guardian to pay such costs; and hence, where such an order is made, it cannot be enforced by a proceeding as for a contempt of court against the guardian. Disobedience of such an order does not constitute a contempt of court. Second, No ca. sa. attachment proceedings. — such as exist in the State of New York — have been authorized by any statute in this state whereby a guardian can be taken into custody and imprisoned for the nonpayment of such costs. Third, The nonpayment of such costs does not constitute a tort or a fraud, within the meaning of § 15 of the state constitution, and hence the omission to pay (not being a contempt of court) would not authorize a court to arrest and incarcerate the guardian for nonpayment upon any civil process whatsoever. Accordingly held, further, where in such case, after entry of judgment for costs against an infant plaintiff, the District Court, after hearing the guardian upon an order to show cause, ordered that the guardian be imprisoned in the county jail until the said costs were paid, that such order was without warrant of law, and null and void.</p>

<p>Striking Out Evidence — When Refused.</p> <p>Where there is any competent evidence in the testimony of a witness, a motion to strike out his entire testimony is properly overruled.</p> <p>Condemnation Proceediugs — Jury Trial — Waiver.</p> <p>Where condemnation proceedings were commenced under the statute in force prior to the adoption of § 14 of our state constitution, specifying the manner of taking private property for public use, and the land owner participated in such proceedings, and, after the report of the commissioners was filed, demanded a jury trial, as in the statute provided, he thereby waived the benefit of the constitutional provision, and cannot at the trial in the District Court before the jury be heard to allege the unconstitutionality of the statute.</p> <p>Waiver of Irregularities by Failing to Take Exceptions.</p> <p>By failing to file exceptions to such report, and demanding a jury trial, he waived all irregularities and informalities in the proceedings upon which the commissioners’ appraisement was based.</p>

Action for personal injuries by Eliza Ludlow against the City of Fargo. There was judgment for plaintiff, for $300, and defendant appeals. A city is not liable for the neglect of its officers unless made so by statute.

Action by Jessie B. Fisher against Antoine Bouisson and others to foreclose a mortgage. From an order overruling a demurrer to the complaint, defendant appeals.

Action by the People’s Bank of St. Paul against School District No. 52, Barnes County, to recover interest on certain bonds. There was judgment for plaintiff, and defendant appeals.

Action by J. B. Power against J. D. Larabee to cancel a certificate of redemption of land sold on execution. From an order vacating the sale, plaintiff appeals. A statutory direction to sell land on execution in parcels, where it consists of distinct tracts is directory merely and not peremptory. A sale en masse is voidable but not void and a motion to vacate the sale comes too late after the year of redemption. Freeman on Ex. 296; Griswold v. Stoughton, 84 Am.

Action by Julius Rosholt against Thea Mehus to determine adverse claims to land. There was judgment for defendant, dismissing the action, and plaintiff appeals.

<p>Indictment “In the Name and by the Authority of the State.”</p> <p>Where an indictment is properly entitled “State of North Dakota v. A. B,” and shows on its face that it was properly presented by “the grand jury of the State of North Dakota in and for the County of Griggs,” it sufficiently appears therefrom that the prosecution is carried on in the name, and by the authority, of the State of North Dakota.</p> <p>Intoxicating Liquor — “Sell and Give Away.”</p> <p>An indictment that charges “that at said time and place the said A. B. did sell and give to one C. D., as a beverage, certain intoxicating liquors, to-wit, one-half pint of whisky,” is not bad for .duplicity. It is a general rule that where a statute mentions several things disjunctively as constituting one and the same offense, all punishable alike, and the whole may be charged conj unctively in a single count, as constituting a single offense.</p> <p>Election Between Offenses.</p> <p>When the evidence showed more than one sale of whisky by the defendant to the person named in the indictment within one year prior to the finding of the indictment, and when the witness could not fix the date of any particular sale, it was not error in the trial court to refuse to require the prosecution to elect upon which specific sale it relied for conviction.</p>

Marcks and Joseph Miller were convicted of assault and battery, and bring error. The information charges “with intent to injure.” The express language of the statute should have been followed. State v. Clark, 45 N. W. Rep. 910; State v. Harrison, 45 N. W. Rep. 777; People v. Keefer, 18 Cal. 636; People v. Jacobs, 29 Cal. 579. The information attempts to charge two separate and distinct offenses, the lesser not being included in the greater.

<p>Inconsistency Between Verdict and Judgment.</p> <p>Where in an action against a firm composed of two persons, the j ury renders a general verdict only, in favor of plaintff and against defendant, it is error for the court, while such verdict remains in the record, to render judgment against the plaintiff, dismissing the action as to one member of the firm, with costs.</p>

Action by the Globe Investment Company, successors of the Dakota Mortgage Loan Corporation, against Ause T. Boyum and John S. Boyum. There was judgment for plaintiff, and defendants appeal.

<p>Claim and Delivery — -Burden of Proof.</p> <p>Where, in an action to recover the possession of goods and chattels, the plaintiff alleges, as ground of action, that he is the owner of the property, and plaintiff’s allegations of ownership are put in issue by the answer, and title alleged in the defendants, the burden of proving ownership at the trial is with the plaintiff, and a failure to introduce evidence tending to show plaintiff’s ownership is fatal to the plaintiff’s case.</p> <p>Striking Out Evidence — Directed Verdict.</p> <p>Accordingly, held, in such case, where, at the close of the case, it appeared that the defendants were the owners of the property in controversy, and plaintiff had offered no testimony tending to establish ownership in himself, that it was not error in the District Court, on motion of the defendants, to strike out of the record all evidence offered by plaintiff to support his claim of ownership; nor, after striking out such evidence, was it error to direct the jury to return a verdict to the effect that the defendants were the owners of the property, and entitled to a return thereof.'</p> <p>Question of Value for Jury.</p> <p>Held, further, in such case, that it was not error, the value of the property-being in dispute, to submit the question of value upon the evidence for the consideration of the jury.</p> <p>Motion to Strike Out Evidence.</p> <p>Certain evidence examined, and held., that a motion to strike out such evidence was properly denied.</p>

<p>Personal Property Exemptions — Statute Not Repealed by Constitution.</p> <p>Section 208 of the constitution of North Dakota, which provides that “the right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale to all heads of families a homestead, the value of which shall be limited and defined by law, and a reasonable amount of personal property; the kind and value shall be fixed by law,” — does not, in the absence of legislation thereunder, repeal or annul the pre-existing exemption laws, under which a partnership firm was entitled to claim one exemption of $1,500 out of the partnership assets.</p>

<p>Justice Summons — Return Day Must be Named.</p> <p>A summons issued by a justice of the peace, returnable, not on any particular day, but on the seventh day after service thereof, does not contain a direction for the defendant to appear and answer before the justice at a time specified in the summons, and service of such a summons will not give the court jurisdiction of the person of the defendant.</p> <p>Special Appearance — Not Voluntary.</p> <p>After defendants had appeared specially, and objected to the jurisdiction of • the court on the ground that the summons was not sufficient to ’confer jurisdiction, and after the court had overruled this objection, they appeared generally, and answered. Held, that such appearance was not a voluntary appearance, and did not waive the defendants’ objection to the jurisdiction of the court.</p> <p>Objection Not Waived by Appeal.</p> <p>Nor was such objection waived, or any jurisdiction over the defendants conferred, by their appeal to the District Court, and subsequently to this court, for the sole purpose of reviewing the question of the sufficiency of such summons.</p>

<p>Opinion of Witness — But Not His Belief Competent.</p> <p>Upon a question of identity, where a witness is unable to speak positively, he may state his opinion based upon his own observations, but will not be permitted to give his belief resulting from certain extrinsic facts and circumstances, where such facts and circumstances are of a character which can be intelligently considered by the jury. In such cases the witness should state the facts and circumstances which furnish the grounds of his belief, and leave the inference to be drawn by the jury.</p> <p>Unresponsive Answers Stricken Out.</p> <p>Where a witness gives unresponsive answers to questions, and thereby thrusts improper testimony before the jury, such answers should be stricken out, and, if such answers are prejudicial to a suitor, it is reversible error to refuse to strike them out if a timely motion is made for that purpose.</p> <p>Fires — Identity of Engine — Belief of Witness.</p> <p>Where the identity of an engine drawing a certain train of cars was a material question for the jury, a witness (who was 'about a half mile distant from the train when it passed) was asked, “State if you know, the number of the engine drawing the train,” and answered, I believe it was number 44.” On cross-examination he was asked, “What was the number of the engine?” and answered, “I believe it was number 44.” He was then asked. “Do you lcnorv that this was engine number 44?” and answered, “It is my honest belief that it was engine 44. It was her day to run. Her engineer was on it, and the railroad dispatcher would not deny it. ” A motion was promptly interposed to strike out said answers of the witness. The answers were not responsive, as they gave only the belief of the witness resulting from a course of reasoning deduced from facts and circumstances as to which the jury was as well qualified to judge as the witness.</p>