Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-03-04
Tenth judicial district sat in his
place by request.

Deer Webb, Appellant, VS.. Joseph
i Wegley, Respondent.
l. Trial courts are vested with
broad judicial discretion regarding
the subject of the allowance Of
amendments to pleadings and the
action of the trial court, in permit
ting amendments, will not be dis
turbed by this court except in cases
of clear abuse of discretion. Lib
erality should be shown by the
courts in the allowance of amend
ments where it appears that such
amendments will promote the ends
of justice.
! 2. Trial courts are vested with a
wide discretion in the matter of
granting or refusing continuances
and under the facts in the case at
j bar, held, that the denial of plain
tiff's motion for a continuance of
the cause over the term was not err
ror.
3. Certain counter-a ffidavits were
received and considered in opposition
to plaintiffs motion for continuance.
Such affidavits merely tended to
show that the motion was not made
in good faith.
/ Held, that such counter a fftdav
were admissible for such purpose.
| 4. Plaintiff refused to offer any evil
dence in support Of the allegations
of his complaint and in response to a
motion for non-suit by defendants
counsel the trial court directed the
rr0 HF,f in n afn
ants favor, which discretion was
complied with and thereafter judg.
ment was entered on such verdict.
Held, error, but without prejudice
as the judgment discloses upon it's
I face that NO testimony was intro
duced and no issue of fact or law was
tried or adjudicated, hence, such
judgment can form NO bar to an
other action by plaintiff.
! (Syllabus by the court)
! Appeal from district court, Will
liams county, Goss, j..
| Action by Deer Webb against JOS
eph Wegley. From a Judgment in
defendants favor, plaintiff appeals
i Modified and affirmed.
! A. j. Bessie, (Chas. E. Wolfe, of
COuAoc) IOE dpp0l PdnL.
Engerud, Holt & Frame, for re-.
spondent.
Opinion of the court by Fisk, j.,
all concurring.
George Hilbish and John Shaw, Co.
partners, Plaintiff and Appellant,
VS.. Sam Asada, Defendant Fred
! Southland. InervenOr, Defendants
and Respondents.
| 1. An affidavit for attachment in
reciting the statutory ground of nom
residence. etc., contained the word
plaintiff" instead of defendant. -
Held, a manifest clerical error not
constituting ground for dissolving
such attachment.
! 2. Such irregularity constitutes a
mere trivial defect and should be dis
regarded pursuant to Section 1856,
Revised Codes 1905.
! 8. The verified complaint which
was filed with the affidavit for at
tachment, contained an allegation to
the effect that defendant was a nom
resident of the state and had alb
seconded therefrom, and it was proper
to resort to such complaint in aid of
the affidavit. BY an examination of
such complaint, as we'll as the con.
text of the affidavit itself, it is OBJ
vious that the use of the word
"plaintiff' instead of defendant
was a mere oversight in no manner
prejudicial
4. Such irregularAv or defect being
durable by amendment could not be
urged by an inhervenor, even conced-
ing that it might be successfully
urged by the defendant in the at
tachment suit.
(Syllabus by the court.)
Appeal from district court, Will
lIams county, Goss. J.
Action by George Hilbish and John
Shaw, co-partners, against Sam Asa
da. From an order dissolving an at
tachment, plaintiff appeals.
Reversed.
Bessie & Greer. for appellants
VIM. Maloney, for respondent, Fred
Southland, Intervenor
Opinion of the court by Fisk, j.,
all concurring.