Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-11-08
JUDGE De fACTO
SUPREME COURT HOLDS ALL
..... ACTS OF JUDGE
N 45. LEGAL
APPLICATION FOR WRIT OF IIAB-
EAs CORPUS IN BocKHElM.
Err CASE DENIED

rant of law, it is also held, in haIbeas
corpus case, that the Judge so ap-
pointed is judge de, facto and his acts
in that capacity valid, as to third per-
sons and the public S,3srs
The following decision was handed
down on the 7th inst: sgS
The State of North Dakota, ex rel.
Vincent Bockmeier. plaintiff, VS.. Fred
L. Ely, sheriff of the county of Pierce,
in the state of North Dakota, defend
ant t..,E. x @'5,: al 3sa {t3l
1. A person acting and recognized
by the public as judge of the district
court of a county, in a new district be.
fore the law establishing such new
district has become operative, by ap-
pointment of the Governor under the
erroneous belief that the new district
was already in existence, is judge de
facto and his acts in that capacity
valid, as to third persons and the pub
| lie. 80
t 2. Laws passed defining the bound
aries of the Ninth judicial district and
increasing the number of judicial dis
tricts from eight to ten. These laws
took effect March %, and July 1, 1907,
respectively, but by reason of con.
fiicting provisions therein, the date
when the new district should come
into existence could not be ascertain
ed from the face of the laws. The
Governor construed them as creating
the new district on the first day Of
July, 1907, and appointed judge
thereof who. duly qualified and ent .r-
| ed upon the discharge of the duties
of Judge of such district on or about
July L, 1907, in good faith, and the
judges Of the Second and Eighth dis
tricts ceased to perform judicial du-
ties in the counties which will com
4 pose the Ninth district. From an in
spection of that part of the, journals
of the legislative assembly showing
the proceedings on the passage. of
these laws, this court has determined
that the intent of that body was that
| the new laws creating the new dis
trict and defining :, it's boundaries
1 should be held in allegiance until the
| election and qualification Of Judge
as therein provided. n.
Held, That the person SO appointed
judge and acting and recognized as
such was a judge de facto, and his
official acts valid. #@
| 8. Application for writ Of habeas
corpus by a person convicted and sen.
fenced at a term of court held by sucn
appointee, and now imprisoned under
the judgment rendered therein; Held
That relief cannot be granted and the
| application must be denied IA
Syllabus by the court.
| Application for writ of habeas cor
pus by Vincent Bockmeier against
Fred T.. Ely as sheriff of Pierce coun
tty in the state Of North Dakota De
!, MED. -sss.
A. M. Christianson and Edward En-
gerud, attorneys for relator.
Scott Rex and A. E.. Coger, attor
neys; Purcell & Divet of counsel fol
respondent. .s.:... e 4.
Opinion by spalding, J. All con
/ cur. ,., Ets@ fs5,
Judge Pollock Affirmed
William G. Muir, appellant, VS.. Al
thur p, Chandlre, respondent.
H. Conceding, without deciding
that the going into possession of trea
estate by purchaser under an ora
contract of purchase is such par
performance of the contract as take
the contract out of the statute o
= Frauds, the change of possession mus
be actual, open and notorious, to SUI
} port an action by the purchaser t
: enforce specific performance.
r 2. Plaintiff claims to have, purcha;
i ed a farm from defendant, who wa
and still remains in actual possessios
! by an oral contract only. The trad
was not made at the farm and fh
I plaintiff did not even go upon TIL
T premises but claims a part perform
ance by reason of AN oral contras
entered into with the defendant, afte
: the contract Of purchase and sale wa
\ made, to lease the premises back I
d defendant for a term less than On
year
i Held, hat there being no physica
actual change OF possession the d,
PENDANT being In actual occupancy
8 the premises when the contracts WEI
made, and continuing to occupy thel
until the trial of this action and ne
Il ser having admitted plaintiff into 20
session Of any part thereof that til
I oral leass does not constitute suc
y part performances as is necessary
take the transaction out Of the statut
1 Or frauds
Syllabus by the court.