Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-05-24

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diem Of IS per day for each day actually
spent in ATTENDANCE upon the sessions
OF the board, including the time neces-
sarily and actually spent in travelling by
the usual and direct route from the place
OF his residence to and from the place
where the session Of the board is held.
In the case OF William d. Hebner, as
Hebner & Sons, plaintiff and appellant,
vs.. Charles Q. Shepherd, defendant and
respondent, appealed from Dickey
county, syllabus is as follows:
The action was upon two promissory
notes given by defendant to plaintiff for
q ~threshipg machine, sold by plaintiff to
defendant. The answer admitted the
execution and delivery of the notes, and
In addition set out as new matter that
the threshing machine was sold with q
warranty, and did not work as it was war
ranted to do, and that by reason thereof
defendant was damaged in a large sum,
for which defendant, admitting Judgment
against the plaintiff, held that such new
matter constituted acounter claim within
the meaning Of the statute.
M renlv vvaa enrvo1 n tho oponyor op6
after time for the answer had expired,
the defendant moved in the court below
for judgment under section 4919, COM
piled laws. The court Judged plaintiff
was in default for reply, and directed the
defendant to offer proof in support of
his counter claim, holding that the order
Judgment affirmed.
In the cass Of Mccormick Harvesting
Machine Company, plaintiff and appel
liant, vs.. William Taylor, defendant and
respondent. appealed from Dickey
county, syllabus as follows:
When 9 man who was the agent of G
for the sale Of certain machinery, sold
horses assigned to himself to B with q
warranty and received in payment there
for B's note, made payable directly to G,
and when there was q breach of the war
ranty, b could properly, in an action
brought against him by G upon the note,
set up such breach of warranty and de-
feat a new action where G was guarantee
Of the TRANSACTION with B of such note
received, and receive from A a settlement
OF the agency account and give A credit
for the final settlement thereof. judy
ment affirmed.
In the case of Cynthia N. Patch and
others, plaintiff and appellant, VS.. North
ern Pacific r. R. Co., defendant and re.
spondent, appealed from Eddy county,
syllabus as follows:
The decision of a trial Judge in grant
ing q new trial on the ground Of en-
tirely new discovered evidence will sell
dom be disturbed on appeal. Judgment
affirmed.
In the case Of Margaret Taylor, plain
tiff and appellant, vs. William Taylor,
defendant and respondent, appealed
from the district court of Cass county,
judgment Of the court is as follows:
Actions tried below under the provis-
ions Of chapter 80, laws of 1893, can only
be tried in this court de novo. In such
actions all the evidence offered in the
trial court should be preserved in the
record together with objections thereto
in another, and when the case reaches
this court such objections will be passed
upon as original questions and evidence
improperly excluded below under objec-
lions will be considered here, and evi.
denoe improperly admitted below
through objections will be excluded
here.
A respondent cannot complain that all
the evidence iHnot here when the omit
ted evidence is excluded or his objection
when upon appellate complaint of such
omission when it is clear from the
records beyond controversy that such
evidences are properly excluded. All ex-
hibits offered in the courts below, order
received or not shall be identified in this
court by the certificate of the trial judge
as admitted exhibits are identified in
other cases.
In an action for divorce on the ground
of cruelty, cohabitation after such cruelty
does not establish conformation in the
absence of the express agreement to con-
done. In such an action an express
agreement to condone is revoked and
the original difficulties renewed by sub.
sequent acts of cruelty on the part OF
the condoner towards the condonee.
In actions tried here under the provis-
ions Of said Chapter 80, Laws Of 1898,
while this court will determine the final
judgment or degree to be entered, such
entry will not be made in this court, but
the records will be returned to the court
from which appeal wat taken under the
provisions of Section 26, Chapter 100,
Laws Of 1891, and it will be the duty of
that court to order entry of Judgment il
%conformed with the determination Of
this court.
This is the first case decided under
what is known as the Newman law,
which allows the supreme court in equity
in case Of appeal to hear and determine
In this case the trial Judge refused to
grant a divorce to Mrs. Taylor, the su.
preme court reverses this decision and
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