Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-10-19


SUPREME COURT HANDS
DOWN FOUR DECISIONS
Decisions were fled in the supreme
court yesterday in four cases:
Cotton We. Butterfield. +
This is an appeal from Emmons
county, where the plaintiff brought an
action to recover money claimed by
reason Of an alleged failure OF the de-
PENDANTS to perform contract for the
sale Of a farm. The land involved
amounted to a thousand acres, and
plaintiff Cotton claimed It was pur.
chased for the sum Of $500. A mum
Der of interesting law points were de-
cided which will be of interest to the
PROFESSION generally, and the rapidly
increasing value Of farm property
makes the matter of Importance. Geo.
w. Lynn of Linton, and G.. N. William
son of Eureka, s. D., appeared for the
plaintiff, and H. A. Armstrong Of Lin
ton, and F. H. Register and I. G, Fen
ninger, for defendant. ',.,5
The judgment of the district court
sis reversed and the cause remanded
to the district court, and that court
will enter judgment dismissing the
plaintiffs cause of action on the
merits and decreeing in the usual form
specific performance of the contract.
The cash payment required of plaintiff
is $4,000, with interest at the rate of
eight per centum per annum from
September 22d, 1902, the date of the
contract, to the day the money is paid
to defendants or into court for them,
but from this amount will be deducted
such sum, if any, which It may be
shown the plaintiff is entitled to by
reason of the use and occupation of
the premises by defendants since
April Both, 1908. The notes for the
balance Of the purchase price, aggre.
eating $4,000, are to be for the several
amounts and secured on the respective
tracts specified in the contract. They
should be dated April Both, 1903; be
payable on or before January LIST, 1908,
and bear interest from April 3Oth, 1903
at the rate of eight per centum per
annum. The plaintiff should be al.
lowed sixty days in which to pay the
money and execute and deliver the
notes and mortgages after. notice of
the entry of the decree and deposit in
court of the defendants deed, offered
In evidence as Exhibit g." and alb
stract of title. The defendants will
recover the taxable costs and disbq1rse-
ments of both courts Instead of
granting an ex parte order for judg-
ment upon the receipt of the remittitur
In this case, the district court will re-
quire eight days notice to the plaintiff
OF the application, and If the plaintiff
Shall make it appear that she claims
any deduction should be made from
the purchase price to be paid in cash
by reason of the use of the premises
by the defendants, then the district
court will, by order, provide for the
hearing and determination of that
question in accordance with the rule
abov stated, and stay proceedings ON
the remittitur for such reasonable
time as may be required to determine
the question. Each party to pay their
or her own costs incurred on such
hearing"
The opinion of the court was de-
l1Vered by Engerud, J., and the sylla-
bus is as follows:
l. Where, in an action at law. the
answer interposes an equitable coun-
terclaim, the issues arising on the
latter should be heard and determined
by the court before trial of the legal
issues, as if the counterclaim were a
separate suit in equity.
z. If the decree entered on the
equity side of the case renders I'M
necessary the trial of any question
arising on the law side, then such de-
cree is the final determination OF the
action. &~ y. s5 h,
.. The cause of action was at law
and the counterclaim in equity, but
the issue on the equity side of the
case involved all disputed questions on
the law side. The action was tried as
II Doth the cause of action and coun.
terclaim were in equity. Held: That
the case is triable de novo on appeal.
4. Evidence examined and held
that there had been no recess;on n,