Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1906-01-26
SUPREME COURT DECISIONS.

John Siebolt, appellant, VS.. The
Konatz Saddlery Company, H. T..
Graves and A. b. Default, respond
ents.
THE conditions in plaintiffs I'M
Adertaking on commencing an action
in claim and delivery t.for the prose
cution os the action b etc, as5prescrlb-
ed by section 1894, Revised Coles Of
1889, is broken if plaintiff fails to
prosecute the action to final deter
mination on the merits, whether his
failure to do so is duehto his own
fault or to the fault of the justice of
the peace before whom the action is
|pending in entering up void judg-
ment. 49,. .,. ...",>l
2. The condition of the undertake
ing for the prosecution of the action
may become effective independently
OF the other conditions of the bond
for the return of the property and for
the payment of damages.
3. On trial of an action for dam
lagos on account of the breach of the
condition of the undertaking for the
prosecution of the action, the value of
the property taken on the writ of
replevin and not returned is a mate
rial issue and it is error to exclude
evidence offered to prove it's value.
4. The defendant brought an &C
ton in justice court to recover the
possession of property on which he
claimed a ehattel mortgage lien and
recovered Judgment. Plaintiff ap-
pealed to the district court on ques.
tions of law only, where judgment
was rendered declaring the Judgment
void on jurisdictional grounds. The
defendant did nothing thereafter to-
wards maintaining his right to the
property by action. Held, that the
conditions of the undertaking for the
prosecution of the action were broken.
CSyllabus by the court.)
Appeal from the district court of
Stutsman county; Edward T. Burke,
judge.
S. e. Ellsworth, for appellant.
Spalding & Stambaugh and Oscar
J. Seller, for respondents. ~
Opinion by Morgan, c. j. Judg-
ment reversed and the cause remand
ed for further proceedings according
to law. t$% #g# NV f =
Mary Zimmerman, appellant, VS..
Caroline McCurdy, respondent. I y :
1. Where party claims the right
to possession of public land by virtue
of homestead entry, against a party
in possession under claims of super.
ior right, and the claims OF the par
ties are in contest before the federal
land department, the courts will pro-
tect the rights of the parties so far
as the same can be done. without de-
Gliding a controversy of which the
land department has exclusive juriss
diction.' ri ''-' 4 ,'Aa ~i.;:, 80:
2. An occupying claimant of public
land cannot be ousted by a claimant
under a homestead, entry, where the
merits of their opposing claims to the
right OF, possession are involved in a
contest pending before the federal
land department and have not been
finally determined. 7''s
8. Injunction is the proper remedy
in such cases to protect the occupying
claimant against the other claimants
attempts to take forcible possession
until the rights of the parties shall
have been determined in the pending
contest. Nv. IT, f. 49,. ,''s.s.
~ (Syllabus by the court.) tz%r.- .,sr3j
Appeal from the district court of
MeHenry county; l.. ]. Palda, Jr.. j.
| = Mcc1ory & Barnett, for appellant
'Hanchett & 5tWartner for respondent
! Opinion by Engerud, j. y & ~.
The judgment appealed from is re-
versed and the district court Of Nc
Henry county is directed to enter a