Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-10-09
Late SUPREME court DECISIONS

made findings Of fact and conclusions
Of law I'M the action to the effect that
plaintiffs owned the lots in question
and that the city had no interest there.
| in and the plaintiffs were entitled to
Judgment quieting the title to said lots
in them. On June 10Th, 1900, judg-
ment was entered pursuant to and in
accordance with said findings Of fact
and conclusions OF law. On February
9Th, 1904, the defendant procured an
order to show cause returnable on
March LIST, 1904, why said judgment
should not be set aside and the defend.
ant permitted to serve am answer in
the cause. The application to open
UP the judgment is regular in every
respect, and Is based on afiidavits, to
which are attached or added verified
answer setting forth valid defense,
and also an affidavit Of merits. On
March oath, 1904, the court denied the
motion to set aside the Judgment and
on March 25th the defendant appealed
from the order denying that motion.
The defendant contends that the
city attorney had no authority to serve
disclaimer, and that in so doing hl
sacrificed the citys interests; and
that In consequence Of his unauthor-
lied act the city is entitled to have
the Judgment vacated with leave to
interpose a defense as a matter of
right.
1t is further contended that the ap-
plication to vacate the Judgment is not
made under section 1898, Revised
Codes, and that in consequence there
of the fact that the application was not
made within one year is not material.
Order affirmed. d..
w. j. Morgridge and F. E. Merrick,
co-partners as Morgridge & Merrick,
appellants, VS.. Jacob Stoefer, respond
ent. Appeal from the district court of
Ramsey county, John F. Cowan, Judge.
Cooler & Goer for appellants. Burke
& Middaugh for respondent.
| Syllabus: A summons in Justice
court which contained a partnership
name without showing the christian
names of each partner, is not nudity,
but is merely irregular and may be
cured by amendment.
An action should not be dismissed
for a mere irregularity of practice,
which can be remedied by amendment
without prejudice to the substantial
rights Of the parties.
The provisions Of section 5297 Re.
Vised Codes of 1899, relating to the
correction of mistakes in pleading,
process or proceeding is applicable tc
justice court % III
Engerud, j.: The plaintiffs, w. j
Morgridge and F. E. Merrick, who are
partners doing business In the Arm
name Of "Morgridge & Merrick,' com
menced this action in Justice court
The partnership name only appeared
IN the summons, without showing The
christian names Of each Of the two
/ partners. The defendant appeared
specially, on the return day OF th&
summons, and moved to dismiss The
action on the ground that the sum
mons failed to set forth the names o,
the individuals composing the plain
TIN firm. The justice denied th.
. motion. The defendant excepted III
the ruling and, so far as the RECORD
discioses, took no further part in The
proceedings. After denying defend
ants motion to dismiss the iustice
permitted the summons to be amended
10y inserting the christian names ant
surnames of the two partners and 4
complaint in proper form was alst
Med. Judgment was thereupon en-.
tered for the plaintiffs. The defend
ant appealed to the district court or
questions Of law only. The districl
court held that the Justice erred IL
overriding defendants motion an6
directed Judgment to be entered set
ting aside the Justices judgment and
dismissing the action. The plaintiff
thereupon appealed from the judgments
of the district court.
4 Defendants contention is that the
use OF the partnership name to desig
nate the plaintiffs in the summons was
fatal irregularity equivalent to al
entire commission Of the name OF an,
plaintiff, and hence the summons waa
a nudity.
i District court reversed. Judgmenr
, for plaintiff. 3 4
/, The John Miller Co., respondent, vs.
John A. Kovstad, appellant Appea
from the district court OF Steele county
Charles A. Pollock. Judge. F. B. Nor
rM and A. w. Fowler, for appellant
u Guy g. H. coGaiss for respondent.
4 Syllabus: An agent sues it's princi
pal to recover for losses sustained Il
i. {s,ue ~, ~ -, y