Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1904-12-07
SUPREME COURT DECISIONS.

Supreme Court Hands Down Decis-
ions In Number Of Cases Appealed
to that Tribunal.
A number of decisions have been
rendered by the supreme court as fol-
lows:
In the matter of the estate of James
T. Smith, deceased, the following
syllabus is handed down:
Under the statutes of this state the
rejection of claim against the estate
of a decedent, either by the execu-
tor, administrator or county judge, is
a condition precedent to the right
to sue upon it.
For the purpose of authorizing &C.
lions upon claims and of limiting the
the constructive rejection, which by
section 64O5 follows as result of ten
days neglect or refusal to allow it, is
equivalent to a rejection by written
Endorsement
A claim may be approved and al
lowed by county judge after it has
been rejected either by non-action or
by written Endorsement at any time
before it is barred by the special or
general statute of limitations.
Judgment reversed.
Appeal from the district court of
Eddy county; S. L. Glaspell, judge.
P. M. Mattson, S. E. Ellsworth and
Tracy R. Bangs, for appellants.
James A. Manley, for respondents.
John Knauf, for Kate Barstow, join
ing with respondents.
Opinion by Young, J. ,z
In the case of John M. Carroll, ap-
pellant VS.. township Of Rye. Grand
Forks county, North Dakota, respond
ent, the syllabus is as follows:
A township is not liable for the
loss suffered by a landowner by the
increased flow of surface water upon
his land resulting solely from the
improvement of a highway in the
ordinary manner without negligence.
Whether or not any liability would
ensue if the surface water had been
diverted from a definite channel il
not decided. r,
Judgment affirmed.
Appeal from the district court OF
Grand Forks county; Charles J. Fisk
Judge.
William H. Standish, for appellant.
Bosard & Bosard, for respondent.
Opinion by Engerud, J.
The syllabus in the case of Ole
Teigen, appellant, VS.. Robert J. Drake
| respondent, is as follows:
1. A judgment establishing the
validity Of mortgage rendered in
an action to quit title is not available
as res adjudicata against a plea OF
the statute of limitations interposed
in a subsequent action between the
| same parties to foreciose the same
mortgage where it does not appear
that the conditions were such that
TIE statute of limitations could have
been made available as a defense IN
the former action.
2. The mortgage which the plant.
i'll was seeking to foreclose by action
contained power of sale; but the
defendant had procured an order I'm.
der Section $685., Revised Codes, en-
joining a foreclosure sale under the
power. Held, that the defendant was
rot thereby estopped to plead the
statute OF limitations in bar of the
action.
8. As to whether or not the right
to foreclose by advertisement under
power Of sale continues after an
action to foreclose is barred by the
statute of limitation is not decided.
Judgment affirmed.
Appeal from the district court OF
Nelson county; Charles J. Fisk, Judge.
Scott Rex, for appellant.
Erich & Kelly and Tracy r. Bangs,
for respondent. %&' 4 S.
The case Of Andrew Thurston,
respondent, VS.. OsborneMcMillan
Elevator Company, appellant, is de.
cided In the following syllabus:
Where husband and wife reside
on land held by the wife under an ex
lecutory contract for the purpose
thereof, which requires the wife IL
farm the land. the fact that the hus
band devotes his time and labor Il