The Fargo forum and daily republican., 1910-01-26
IN THE SUPREME COURT.

| state Of North Dakota, October
term, 1909.
waterloo Gasoline Engine Coz a.
corporation, plaintiff and respondent,
vs. w. K. O'Neill, defendant and ap-
pellant.
Section 1894, Revised Codes 1905,
which requires county courts Of in
creased jurisdiction to certify cases to
the district court when ''it shall ap-
pear TO the court by affidavit, or IL
the court shall SO order, upon other
testimony that q fair and impartial
trial cannot be had in such court by
reason of the bias or prejudice OF the
judge or otherwise" construed and
Held, not to require q certification
Of case to the district court upon an
affidavit setting forth no facts but
merely the conclusion that the moving
party mas reason to, and does believe
that that county Judge is so preju-
diced against him that he cannot OBJ
tain a fair and impartial trial.
(Syllabus by the COURT.
Appeal from county court, SUITS
man county; Marion Conklin, J. Ac-
tion by Waterloo Gasoline Engine Co.
against w. K. O'Neill. From a judg-
ment in plaintiffs favor, defendant
appeals Affirmed.
r. Baldwin, for appellant.
Oscar J. Seller and A. w. Aylmer.
for respondent.
Opinion Of the court by Fisk, j., all
concurring, except Ellsworth, j., not
participating.
Folsom We. North.
In the supreme court, state OF North
Dakota October term, 1909. rs
j. b. Folsom, administrator, ct al,
plaintiffs and respondents, vs. Frank
D. Norton. defendant and appellant.
l. In this case the judgment was
entered Sept 8, 1908. On Sept. "a.
1908, on the affidavit Of Peter Prader,
clerk Of the district Of Eddy county,
in which he stated that C. ]. Maddux.
Zone of appellants attorneys), had
been several times after the files I'm
said action, including the dispositions.
testimony and exhibits, but that af-
fiant was unable to give them to said
Maddux for the reason that they had
not been returned by the court since
rendering judgment In said cause.
and on the affidavit of said c. J.
Maddux. that the original files and
dispositions were not In the office of
defendants attorneys, that the clerk
OF said court informed him, the said
Maddux, that the said files, deposit
tions and testimony taken were with
the court, for which reason the said
counsel had been unable to prepare.
serve and have settled a statement of
the case, and that 1t would be neces-
sary to have settled statement on
appeal; the district court made an ex
parte order extending the time for
settlement of the statement .of the
case until March /, 1903. On Febru-
ary 6, 1909, proposed statement of
the case was served upon plaintiffs
attorneys; on or about Feb. IL, 1909.
plaintiffs attorneys served upon de-
fendant's attorneys, by mail, amend
nents to the proposed statement of
the case and also served at the same
time, objections to the service, allow
ance or settlement of any statement |
of the cases for the reason that the
time for such service had long since |
expired and that no good cause had
been shown for extending the time. |
which objections were supported by |
the affidavit or j. E. Robinson, one |
OF the plaintiffs attorneys. On Feb. |
%, 1909, the parties, respectively, were |
represented by counsel and respon-
dents counsel interposed objections to |
the settlement and allowance OF the |
statement, as heraHnbefore stated |
The court overruled said objections !
and made an order settling the state
ment OF the case In this court O. mo-
tion to strike out the statement from |
the record was granted We hold that |
the affidavits of Peter Prader and G. |
j.. Maddux, upon which the order ex-
tending the time for settlement Of the
statement OF the case was made, do |
not show any sufficient reason FOR |
extending said time
2. Upon confederation OF the plead
ings and the findings Of the trial
court. held, that the Judgment entered
by the trial court was fully justified |
by such findings
6Syllahus by the court.)
Appeal from district court, Eddy
county, Burke. j.
Action by J. 3. Folsom, adrninistra-
tor, ct al. against r. ID. Norton
From Judgment I'm favor OF the /
plaintiff, defendants appeals.
Affirmed.
Maddux q .Rinker, for appellant.
Robinson a Lemke for respondents. |
Opinion OF the court by Carmody. |
3, all concurring except Ellsworth j..
dissenting.
Nine Melln, chiropodist and eiec-
troiosist, removes superfiucus hair,
444E - - II