Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1909-04-15

and the trial In the district court
having proceeded Upon the theory
that the issue was Joined, this court
will not pass upon the sufeiciency Of
the answer. ( - = :. st$x. "
3. Section 1926, revised codes
1905, reads: "When an order Of the
district court is made, which under
the laws regulating appeals to the
supreme court Ia an appealable order,
such order shall upon its face by
apt words briefly describe the aRi-
davits, documents, papers and evil
dences upon which the order Is made
and the judges may at their discre-
ton refuse to sign orders not so
framed, and the supreme court may
at its discretion dismiss any appeal
from an order which Ia not framed
Substantially In accordance with the
requirements of this section"
Held, that objection taken for the
first time In this court to the order
Of the district court granting a new
trial, such objection being upon the
ground that the order does not emu
merate the evidence and papers upon
which 1t was granted, will not be
considered by this court.
8. Penalties provided by section
1926 are not applicable to the facts
Of this case.
4. When a. new trial is granted
by the district court, it's order will
be affirmed II any ground for sus-
tanning it is found in the record.
S. Where both parties submit a
motion for a directed verdict and the
one against whom the verdict Is d.
rected requests that any question OF
fact be submitted to the jury, the
party making the request does not
thereby waive findings by the jury.
6. The evidence in this case shows
a direct conflict on material Ques-
lions, hence the directing OF q YER
dict for appellant was error, and the
district court was justified in grant,
ing new trial.
I. Even If the merits were with
the appellants, the evidence was too
uncertain to enable the jury or the
court to fix the amount which plain
tiff is entitled to recover.
8. Section 6737, revised codes
1906, defines process" as writ or
summons issued in the course of ju-
dicial proceedings.
Held, that the notice of appeal is
not writ or summons, and Is there
fore not "process" and need not be
served in the same manner in which
process" is required to be served.
8. Section 1905, revised codes
1905, provides that an appeal must
be taken by serving notice in writ
ing, etc., and by fling the same in the
office o fthe clerk of court. Section
1892 provides for service of notice
by mail when the person making the
service and the person upon whom
it was made reside in different places
between which there is q regular
Communication by mail.
Held, that notice of appeal is in
cluded In the sections referred to and
service by mail, when the facts
specified exist, Is valid service II 9th
er requirements are observed.
(Syllabus by the court).
Appeal from district court of Nc
Henry county; Goss. j., from an Or
der granting new trial.
Affirmed. =
Cooler & Goer and Burke & Mid
daugh for appellants. ''' -
Christianson & Weber for re-
spondent.
Opinion by spaulding, J.. Fisk,
Carmody and Ellsworth, J. j., con-.
cur.
:. Morgan, c. J., not participating on
account of illness.
John Yegen, Respondent, VS.: North"
ern Pacific Railway Company, De-
PENDANT, and Philip. Gilbert, rs
Trustee In Bankruptcy Of Henry
Krebs, q Bankrupt, Intervenor and