The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-01-21
DECISIONS OF THE SUPREME
COURT OF NORTH DAKOTA

prayed for, to the sufficiency of whlcf
defendant objects upon the ground
that it fails to alIege facts authoriz-
ing any relief.
Held, Such objection is without
merit. Such alternative writ upon Its
} face, shows full compliance by the
petitioners for the organization of the
proposed new county of Stevenson
and others. of all the statutory perez
quisities. In the petition for the or
ganization of such proposed new coun-
ty it's western boundary was desig-
4 mated as the east and north bank OF
the Missouri river, whereas 1t mani
/ testify appears that 1t was the inten-
ton of all concerned that the western
boundary of such proposed new coun-
! ty should be coextensive with the
present western boundary Of Mclean
county which is the center of the main
channel of the Missouri river.
Held. That such manifest intention
will be given effect by constituting the
language of the petition as designating
the western boundary of such proposed
new county to be the center of the
main channel of such river.
| The other objections urged to the
| sufficiency of such alternative writ
cannot be considered in the absence of
certain extraneous facts which have
not been incorporated in the record by
the settlement OF statment of case.
1.-The trial court, on REALTORS mo-
tion struck out most of defendants
answer embracing new matter of a
Il. ~, ~ oF1d
by the same order and on like motion
of relator,' the issuance of a peremp-
tory writ was directed. Held,
THAT such order involved the
merits and necessarily affected the
Judgment within the meaning of sec
tion 1881, revised codes, 1905, hence
it is a part of the Judgment roll proper
and it's correctness may be reviewed
by this court on appeal from the judg-
ment.
2-Such order was prejudicial error.
5-The record discloses that a GER
tain stipulation of facts was used in
Held, that such stipulated facts may
be considered by this court in review
ing the correctness of such order, al
though not incorporated in a statement
of the case.
g. In the light of the facts thus
stipulated it is held that the statute
requiring the publication for four sue
cessive weeks of a notice of election on
such county division proposition, was
not substantially complied with, This
being true 1t was prejudicial error to
deprive defendant of an opportunity to
establish the facts pleaded in his an
swer and tending to show that actual
in fact, resulted on account
of lack of due notice of election.
The notice given merely consisted
of the insertion in the notice of the
general election at the foot of the list
of candidates the words. Three petit
tions for county division
BY the order in question defendant
was deprived of the right to show the
invalidity of the special election ON
such proposition by showing that there
was not a full, fair and intelligent ex-
preston of the electors upon such pro-
position.
z. After these defences were striek-
IN out of his answer it was not in
on defendant to offer proof
.ehreof. There was no issue left for
rial except the naked issue of a want
II due notice of election, and by the
order complained of defendant was
vrongfully deprived of even the op.
of showing such fact
(Syllabus by the court)
Appeal from district court, McLear
county. w H. Winchester, J.
From
Lwarding peremptory writ of man.
Janus defendant appeals.
Reversed
J. Il. Nelson and Engerud, Hottie &
frame, for appellant.
III. F. O'Hare and Newton g. Dullam
or respondent
Opinion of the court by Fisk, j., all
Cassius G. Hammond, plaintiff and
VS.. Northwestern Construc-
lon & improvement. Co, John IT
Vishek, Geo. w. Lilly and Walter s.
'everidge. defendants and appellants.
A contract was entered into in 1883
etween appellant construction com
any on one side and respondent Ham
lond and appellats John H. Wishek
nd Lilly as a co-partnership under the
anne of the Mcintosh County bank on
ne other, whereby the construction
ompany agreed to sell and the bank
greed to buy two lots in the town az
shley and pay therefor $500 ON the
ecurrence of certain events, The part.
ersf1ip mentioned wa5 subsequently
ssolved and its assets distributed
18th the exception of the contract men.
oned. The events happened. hi;
le vendee never paid any taxes ar
ley agreed to and never paid the pur
lase price for the lots. The contrar
provision that no assign,
ent of 1T or of the property by III.
.ndees would be recognized or bind.
e on the vendor unless consent n
riting was endorsed thereon by thf
'ndor. 1t never was assigned i'd
almond orally, or in writing. and ne
nsent by the vendoy was ever giyer
any assignment. Wishek and Lilly
'ver consented that title might he
nveyed to Hammond by the con-
ruction company. Hammond's inter
mt in the contract was d one-thira
terest. Hammond brought this ac-
IN to compel specific performance by
ed Of the whole title to such lots to
m alone. All the other parties TO the
ntract defended.
Held: That Hammond cannot MAIN
In such action.
Syllabus by the court.
Syllabus by the court
Appeal from the district court of Me-
tosh county, Allen, y.
Action for specific performance.
Reversed and action dismissed.
w $. Lauder and Frank Shubeck for
pelIants.
A. W. Clyde for respondent