The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-05-16
Decisions Of N. D. Supreme Court

-~~-~--~-@-~--%--~-
effective, a party claiming it's benefits
muse plead the adjudication in bar of
subsequent action and on the trial
established 1t by competent proof; and
a failure to do either will be held to be
a waiver of the rights depending on
such estoppel.
5. When the bar Of a judgment
rendered in prior action between the
same parties is properly pleaded and
proof of the issues involved in the prior
action and the Judgment rendered
therein is made by competent evidence,
such proof Is to be received as conclu-
sive of all facts adjudicated in the prior
action; and 1t Is error of the court in
trying the last action to disregard the
legal effect of the facts adjudicated by
or necessarily involved in the rendi-
ton OF the former judgment.
6. Where more than one action
involving the same facts has been tried
between the same parties the last judg-
ment rendered in point of time by a
| court having jurisdiction to render it
prevails over any rendered prior there
to, on all points properly adjudicated
z. An action involving title to real
| estate having been brought and a no
tice OF lis pendens containing true
| description of the real property involv-
ed filed in the office of the register of
| deeds In the county in which the land
is situated, any party purchasing the
title after the record of such notice is
bound and concluded by all points
thereafter adjudicated against his
grantor by the decree, to the same ex-
tent TO which the grantor is bound.
(Syllabus by the court.)
Appeal from district court, Ward
county, Goss, j.
Action in statutory form by Michael
]. Borden, against Martha A. Graves
and Others. to determine adverse
claims to real property. Plaintiff had
Judgment and defendant, Graves, ap-
peais.
Judgment reversed and the district
court directed to enter decree quiet
ing title in appellant.
Burke, Middaugh & Cuthbert, for
appellant.
M. ]. Barrett, L. w. Gammons and
John E. Greene, for respondent.
All concur. Fisk and Carmody j.,
COuCuEElng specially.
In the supreme court, state of North
Dakota, April term, 1910.
The state of North Dakota, respon-
dent, VS.. William Wright, appellant.
1. Error cannot be predicated upon
the refusal of the court at the close of
the states case to advise an acquitta1
as the jury is not bound by such adj
vice and the court cannot, on such ap-
pltcation say, as a matter Of law, that
the evidence is insufficient to support
a conviction, nor prevent the jury from
giving verdict, but such question may
be disposed Of by the court on motion
for new trial in case of conviction.
2. Assignments Of error not sup
ported in appellants brief by argu-
ment or citation of authorities will not
be noticed by this court. Rule IA, which
Is applicable to the preparation of
briefs in criminal causes, among other
things provides: "In the body of his
brief appellant shall present his rea-
sons in support Of each error assigned.
with concise statement of the prin-
ciples Of law applicable thereto with
authorities supporting the same. treat
ing each assignment relied upon sep
arately, and such errors as are merely
| assigned and not supported in the
body of the brief by reasons or au-
thorittes will be deemed to have been
abandoned" Such rule will be ad
hered to and enforced unless excep-
tlonal reasons appear why the same
| should be relaxed. No such reasons
| appear in the case at bar.
3. The presumption obtains in Grim
inal as well as civil appeals that the
record is free' from error and the an
pellant has the burden of affirmatiyeIy
showing the existence of error.
4. Following the rule announced in
State VS.. Johnson, II N. D., 554 Held
that when the sufficiency of the allie
cations in an information are first chal.
lenged by motion in arrest of 1udg.
ment the same will be construed witt
less strictness than when the sufficiency
thereof is raised by demurrer; and
where the information states facts con.
shutting an offense in general words
and substantially in the language nj
the statute defining the offense the
information will be held sufficient as
against attack by motion in arrest q,
judgment.
(Syllabus by the court.)
Appeal from districy court Bur.
leigh county, Winchester, ].
From conviction of the crime O,
escaping from prison. defendant an.
peals.
Affirmed.
w. L. Smith, for appellant.
| Andrew Miller, attorney general, r
N. Stevens, states attorney, AID H. r
Berndt, assistant states attorney, TO
respondent.
Opinion of the court by Fisk. J.
Morgan, c. j., and Carmody, j., con
curing, Ellsworth, T., and Spalding, ]
I diesantip0