¶1(dissenting). In the Grant Toumans Case a motion to reconsider and grant a new trial is denied, and I do most strenuously dissent. The decision is a lengthy write-up by two judges of an inferior court, and is contrary to the deliberate judgment of a majority of our justices. Hence, it is not the judgment of this court, but while it stands it will stand as a reproach to this court. Hence, it will still be the duty of this court, on its own motion, or on any proper motion, to reconsider the case and to order a new trial.
¶2The case is a travesty on the administration of justice. It is a regular Captain Dreyfus Case. The record covers over nine hundred pages, and there is error on every page. The defendants have, as it were, moved Heaven and earth to prevent a fair trial, or any trial, and that alone shows they have reason to fear the result of a fair trial.
¶3At Minot the plaintiff was a banker. He and his wife practically owned and controlled a bank of large resources, though of questionable solvency, a bank out of which it seems the looters made big money. The bank examiner, with others of the defendants, came upon the plaintiff and forcefully closed the bank, taking all its property and the property of the plaintiff and his wife, and a bonus of $5,000.
¶5The bank examiner came to me with a bunch of papers in his hand. He placed me in a chair and told me to sit down there. He took hold of the chair and, said, “Sit down there.”
Q. Did you ?
A. Yes, sir.
¶6The bank examiner objected to certain mortgages, amounting to $20,000, and gave Youmans a day to replace the loans with cash. This Youmans prepared to do. Then the examiner put up the figure to $48,000. Youmans said: “My God! You don’t mean that.” The answer was: “That is the amount you will have to put up to save the bank.” “Then I sat down into a chair and became partly unconscious. It put me to sleep practically.” The whole procedure was of that same bulldozing character. The examiner and his bunch forced Youmans to turn over to them the bank and all its books and his stock in the bank, with a bonus of $5,000. This was done by duress and threats, and by taking an unfair advantage of another’s necessities and distress, contrary to the plain words of the statute. This bulldozing procedure had no authority in law. It matters not whether Youmans was a good man or a bad man, or whether his bank was solvent or insolvent; there was no law to warrant the procedure. In taking charge of the bank the examiner was acting under a statutory power, and he was bound to keep strictly within the limits of his power and to use it humanely, and not oppressively. This he did not do.
¶7The record is a mass of error. It shows that from the beginning to the end of the case the rulings of the- trial court were in the main decidedly against the plaintiff. Five hundred times the court ruled erroneously to strike out testimony of the plaintiff as not responsive or as a voluntary statement, just as though the witness were not sworn to tell the whole truth, and not merely to answer such questions as counsel might put to him. Youmans testifies: “The whole bunch, the examiner and others, refused to let me have the assets of the bank or a list of them. They absolutely refused to let me have access to the stuff. They had gobbled it and they never let me put my hands or my eyes on it after that.” (Purcell) : “I move to strike out the answer as not responsive and as a voluntary statement and absolutely false.” “The *536word false is withdrawn and the answer stricken out.” And so the trial continued for ten dáys, with error upon error, making a record of over nine hundred pages. The trial should have been concluded in two days, with a record of not more than two hundred pages. The testimony should have been limited to the condition of the hank when it was taken over, the property taken by the defendants, the manner of taking it aud disposing of it, and the value of the property and the stock and the assets. And on these points evidence was persistently offered and as persistently objected to and excluded. And for such persistence the plaintiff was repeatedly threatened with contempt.
¶8There was nothing to warrant the closing and the wrecking of the bank in the way it was done. Hence, all who took an active part in the wrecking were tort feasors. This includes only those who were present, aiding or abetting or profiting by the wrecking. There was no sense or reason for making any other person a party to the action.
¶9The plaintiff sued for $50,000 damages. The’case was tried before Judge Eneeshaw, who directed a verdict for the defendants. On the trial the plaintiff was represented by an attorney who knew more of socialism than of law and practice. He was completely outgeneraled by four shrewd old-time lawyers who opposed him. We call them the Big Hour. In the story of Don Quixote we read how his squire, Sancho Panza, was tossed up in a blanket by some humorous rascals. And so it was on the trial of this case. The Big Hour restrained their laughter while they dealt with our Socialist friend as if he were a second Sancho Panza. Of course, in a way, it was all very humorous, but it was trifling with the due administration of justice, and for that the big counsel do well deserve a severe rebuke. To every question there .was an objection by one, two, three, or more of the big counsel, and the ruling was nearly always against the plaintiff. To the simple question: “How long have you been in the banking business?” there was an objection covering a page and a half.
¶10To cap the climax, the court directed a verdict in favor of the defendants. An appeal to this court was filed on September 21st,' 1916, and in some way it was rushed and advanced over a hundred pending appeals, and contrary to the rules of the court and the uniform practice. I never heard of anything like it. And without waiting for the filing of briefs, or the hearing of oral arguments, on December *53728th, 1916, a final decision was given against Youmans. To say the least, it was given by a court of very questionable jurisdiction. Three of the judges were holding over after their term of office had expired and after their successors had been duly elected and qualified, and demanded the office. The holding-over judges improvised a court of four district judges to sanction their holding, and this they attempted to do contrary to mandate of the supreme court signed by the three newly elected and qualified supreme court judges. That was on December 5th, and long prior to the decision of the hold-over judges.
¶11Now, under the Constitution, every supreme court judge has been elected to hold office for a term of years, commencing on the first Monday of December after his election. To the several judges there have been issued, pursuant to law, in all, twenty certificates of election, signed by the governor, the- secretary of state and a member of the board of canvassers, and given under the great seal of the state. Each certificate shows that the person therein named was elected to the office for a stated term of years, commencing on the first Monday of December after his election. Of course, we cannot think that the twenty great seals and sixty official signatures were given to a falsehood, or that every judge was so simple as to accept his certificate with a false statement.
¶12I concede that on December 28th, 1916, the hold-over judges were de facto judges, in just the same sense as they would be were they holding over until the present time.
¶13Early in January, 1917, a motion was made to-this court to reconsider the case and to grant a new trial. As Judges Grace and Birdzell declined to sit on the motion, two district judges were invited to take their place. When the motion was argued, the big counsel for the defendant talked of de facto courts and judges, and declined to say a word on the merits of the case. One of the district judges followed in the same line and wrote an opinion of some fifteen pages on de facto courts. The decision or write-up comes in its usual course after a lapse of two months, which is very different from the way in which the case was rushed and decided without any brief or argument in December.
¶14I am entirely clear the ruling is radically wrong, and it is contrary to the avowed and deliberate judgment of three of the supreme court judges. On another motion, it is more than possible that the judges *538of this court may reconsider and decide the case on its merits. Indeed, it is their bounden duty to do it on their own motion. It is a debt of justice and sooner or later it must be paid.