Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-03-29
Supreme Court

In the Supreme Court, State Of
North Dakota, October, 1910 term.
l.. H. We'll, ct al, appellants VS.. T.
r. Guam, respondent.
l. In motions for dissolution of an
attachment. the facts stated in the
original affidavit being denied, the
burden is on plaintiff to support the
allegations thus made; failing to do
this, the attachment should be dis.
solved.
z. While 1t is not necessary to use
the exact language of the statute in
the affidavit, yet the facts must be
sufficiently stated from which a con-
! olus;on lin the language of the sta.
tute' would necessarily be drawn.
| 3. Where the attachment is sought
under sub-paragraph eight of Section
693S, the property must be described
! specifically. 1t is not enough to tell
where the goods are, but definite allie
cations must be made showing what
, they are.
/ 4. What the statute requires to be
stated in the affidavit must be truly
; stated therein. Plaintiff cannot sup
plement a defective affidavit by facts
stated in the complaint, unless 1t is
verified and made part of the at.
fidavit.
(Syllabus by the court.)
Appeal from district court, Eddy
county; Burke, J.
Action by l.. H. We'll, ct. al, doing
business under the firm name of We'll
Doble & Co., against T. r. Guam, do
ing business as Guam Clothing Houes.
From an order dissolving an at.
tachment, plaintiffs appeal.
Affirmed.
John Knauf. attorney for plaintiffs
and appellants.
PENDANTS and respondent.
Opinion of the court by Pollock,
special judge, all concurring, except
Morgan, c. j., not participating. Burke
j., being disqualified did not sit Hon.
Chas. A. Pollock, Judge of the Third |
Judicial District sitting in his place
by request.
Mrs. r. f. Heard, respondent. VS..
Mrs. L. NJ. Holbrook, appellant.
l. A defendant, who, after appear
ing specially for the purpose of OBJ
jecting to the jurisdiction of justice
of the peace, thereafter moves for a
change of venue, and at the time fixed |
for trial by the justice to whom the
case has been transferred. appears
and defends the action on the merits
thereby makes voluntary appear.
ance in the action and he must be
deemed to have waved the benefit of
such special appearance and the OBJ
jections urged Hereunder to jurisdic-
ton over his person. Since the de-
cision in the case of Miner vs.. Francis
3 N. d. $40, the legislature has amend
ed and re-enacted the statute then in
force (Sec. II. Jus. G. IT. being Sec.
$3.50 Comp. Laws) by prescribing
what shall constitute voluntary ap-
pearance. Hence such case is not
longer controlling authority
2. The transcript of the justice on
appeal is not subject to impeachment
in the district court collaterally and
such court properly denied defend
ants motion for an order requiring
the justice to alter his docket entries,
and for the same reason that court
refused to receive parole
proof contradicting such docket en-
;ries.
3. Mandamus will not lie to compel
he justice to alter his docket en-
;ries to conform to alleged facts
claimed by the relator to exist.
(Syllabus by the court.)
Appeal from district court, Pierce
county, A. G.. Burr. j.
From a judgment in plaintiffs fav-
r., defendant appeals.
Affirmed.
Paul Campbell, for appellant
l.. N. Torson and r. E. Wenzel,
or respondent.
Opinion of the court by Fisk. j., all
except Morgan, c. J. not