Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1891-11-27

fore the building was entirely completed
the owner changed his mind and had the
plaintiffs put in a complete steam plant.
They bring action to have their lien,
which they duly filed, declared ahead Of
the defendants mortgage, which had
boon recorded before the steam heat
folks put in their labor and materials
and of which they had both actual and
constructive notice. The trial court,
Judge Templeton, gave judgment for the
plaintiffs and the loan company appeal.
This Judgment is affirmed, in an opinion
written by Judge Bartholomew, and the
following syllabus filed:
Under our mechanics lien law a marty
who furnishes labor and materials which
are used in the construction of q bui]d-
ing has a lien for the value of such labor
and material upon such building and the
land wherein it stands superior to the
lien of a mortgage upon such land ex-
ecuted after the commencement of the
building although no part of such labor
and material was furnished until after
such mortgage was executed and re-
corded.
Alterations in the original plans and
specifications for the building, although
made after the execution of such mort
gage, and not at that time contemplated
by either the mortgegor or MORTGAGES.
cannot be effectual to deprive the party
who furnishes the labor and material for
such alteration of the benefits of such
superior lien, provided such alterations
90 not change the design and purpose of
the building, go that the whole when
finished is substantially adifferent build
ing from the n first commenced.
Xxx -
The Travellers Insurance company VS.,
Weber, came from Richland county. An
order was made by Judge Lauder to
show cause why an appeal from. a
Justices court should not he dismissed
and cited the appellant to 'show cause
before the court at chambers" etc. An
order was made Diminishing the appeal,
which recited that it was made after
hearing both sides on the return of the
order to show cause. The order of dis
mlssal was not made at a general or
special term of the district court, nor did
it recite in terms that it was made "by
the court" Only the following words
were appended to the judges signature
to the order: "Judge District Court,
Richland county, N. D." On this state
ment of facts it is held that it appears
from the record that the order of dis
mlssal was an order of the district court
and was not a mere "chamber's ORDER"
The court holds further that inasmuch
as the statute declares that district
courts are Railways open" except for the
trial OF issues of fact IN actions, that il
follows that a judge of the district court
cannot at his option and by the form of
an order, or the style of his signature
thereto, determine whether a given mat
ter is or is not a court matter. No APP
peal to the supreme court was taken
from the order dismissing the appeal,
but, after the time allowed for appeal
had expired, a motion was made before
the district court to vacate the order Of
dismissal. The motion was denied and
defendent appealed from the order refus.
ing to vacate the first order. Held, that
the order refusing to vacate the order
dlsmissing the appeal is not appealable,
the supreme court saying that they will
not take jurisdiction Of an order of the
district court refusing to yacate an an
pealable order made by the district
court; nor can the time for appeal to the
supreme court be extended by an order
Of the court below vacating or refusing
to vacate an %appealable order. Whether
an order dismissing an appeal from a
justice court to the district court is an
pealable is not decided. Appeal dis
missed, which affirms the Judgment Of
the district court. McCumber e. Bogart
for respondent; W. E. Purcell for an
pellant.
Xxx
The Travellers Insurance VS..
Mayer grows out of the same litigation
as the above case and is disposed OF on
much the same grounds. An alternative
writ Of mapdamus was issued at the in
stance of the plaintiff, directed to the
defendant, who is city justice of Wahpe-
ton, to show cause why he should not
issue an execution on q judgment
docketed in mis- court. On the return to
the alternative writ defendant showed
cause by answer and issue was joined BY
a demurrer to the answer and after hear
ing counsel for both sides an order was
made sustaining the demurrer and dismiss
sing the answer. The order did not reciteS
in terms that it was made "by the court
but was simply signed "W. s. Lauder,
Judge" Held, that the order was an
order of the district court and was not
an order made Eat chambers" With
out further proceedings and without
obtaining an order adjudging that the
peremptory writ should issue such writ
| issued and was served on the defendant.