Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-05-28
lnthe Supreme Court

evidence as to the delivery OF SUCH
grain examined and held both COM
petent and sufficient to establish tho
quantity of grain SO delivered.
2. Evidence as to the highest mark
ct value of the grain between the date
of the alleged conversion and the date
of the trial, examined and held both
competent and amply sufficient to sup
port the verdict.
8. Certain assignments predicated
upon rulings of the trial court re-
lating to offered testimony as to the
system and manner of transact1ne
business adopted by defendant In It's
elevator at Grand Harbor, held with
out merit. Furthermore, the rulings
thus complained of were not expected
to and cannot be noticed. Held, fur
Their, that the appellants assumption
that it was not permitted to show
payment for this grain is not justified
by the record-the exact reverse be-
ing true-but on the contrary no com
petent evidence was offered to prove
such payment.
4. The issues being as to whether
plaintiff delivered the grain to defend
ant as alleged, and If so, whether de-
PENDANT has paid plaintiff for the same
the trial court properly excluded Of
fered testimony relative to private in
structions given by defendant to Its
local agent, and not communicated to
plaintiff, regarding the receipt of the
grain at it's elevator, and also evil
dence tending to show violations OF
such instructions.
S. Plaintiff was permitted over OBJ
lection to show the custom and use
age at Grand Harbor in receiving
grain in defendants elevator and is
suing the tickets therefor at later
date, held non-prejudicial.
6. Defendant offered in evidence
solely for the purpose of comparison
o. handwritings, certain exhibit ad'
mittedly bearing to aid the jury in
determining the disputed question of
fact as to whether certain other ex-
habits purporting to bear plaintiffs
signature to receipts for the payment
of this identical grain were his gen.
u ne signatures or mere forgeries. The
trial court excludeA such offered ex.
hibit. ~ q
Held, that such ruling was errone-
QUE but non-prejudicial for reasons
stated in the opinion.
7. Irrelevant papers are not ad-
missible in evidence for the sole pur-
pose of furnishing a standard of COM
parison but exceptions to this rule
are made in those cases where the
papers offered are conceded by the
opposite party to be genuine, or are
such as he is estOpped to deny, or
where for other reasons no collateral
issues can be raised by their introduce
ton.
8. The trial court instructed the
jury that the conversion took place,
if at all, on September 25th. No ex-
ception was taken thereto and the cor
rection of such instruction was in no
challenged in the trial court.
1t therefore became, and is the law
Of the case. In view of this, appel
lant's contention in this court that the
took place during the lat
ter part of October and that there is
no evidence showing the highest mark
ct value or any value of grain after
Syllabus by the court.
Appeal from the district court of
Ramsey county, John F. Cowan, J.
Action by Robert Cochrane against
he National Elevator Co., for the con-
yersion of certain grain.
From judgment in plaintiffs fav-
n and an order denying defendants
notion for a new trial, defendant ap- |
,eals.
Affirmed.
Van Derlip & Lum Guy c. Corliss,
: counseD, for appellant.
Burke, Middaugh & Cuthbert, for re-
pondent.
Opinion of the court by Fisk, j.,
III concurring.
ellen Cline, respondent, VS.. Margaret |
Duffy, appellant.
1. An application to vacate a de-
ault judgment or order not based up
IN irregularities of procedure, but ex-
;lusively upon the statutory grounds
If mistake, 4nadvertance, surprise or
neglect" of the moving
party is an appeal to the favor and
not in the nature of an application
BASED upon a strict legal right. Such
IN application invokes the sound judi
;ial discretion of the court to which
t is addressed and the supreme court
will not reverse the lower courts rul-
ing except where it clearly appears
hat the trial court abused the discre.
Ion vested in it by the statute.
2. Following the rule announced
by this court in Keeney v. City of
Fargo, IA N. D. 419, held, that trial
courts have a wide discretion relating
to granting or withholding relief on
such applications, which will not be
disturbed except for an abuse of such
3. Persons applying for relief from
default judgments upon the ground of
mistake, inadvertence, surprise, or
neglect" have the burden of
showing diligence and unless it is
shown affirmatively the court will not
ordinarily exercise its discretion in
their favor. The applicant must not
only show facts excusing the default
on his part and that he has a merit
orious defense, but he must also show