Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-01-31
Supreme Court

Racine-Sattley Manufacturing Co., a
corporation. plaintiff and appellant,
vs.. Sofia Pavlicek, defendant and
respondent.
l. Proper procedure for relief from
default Judgment, under section 1884 !,
revised codes of 1905, is by motion to
vacate the same based Oh an affidavit
of merits and proposed verified an
Swer.
2. On such an application the afr
davit of merits cannot be controverted
except as to matters therein stated :,
other than that constituting the merits
of the proposed defense.
3. On an appeal from an order va
eating default judgment, granted on
such an application, only the order
with the moving papers on which the
same is based will be considered by
this court. Testimony taken subse-
quent to the ruling appealed from cam
not be considered with the moving pa
pers on such an appeal.
4. The ruling of the trial court OH a
motion to vacate a default judgment,
made under said section 1884, will not
be reversed except in cases of manifest
abuse of the wide judicial discretion
vested in the trial court by said stutute.
5. The exercise of the courts discre-
ton on such an application should tend
in a reasonable degree to bring about a
trial on the merits, when the circum-
stances are such as to lead the court to
hesitate upon the motion to open the
default.
6. Former decisions Of this court,
constituting said section 1894. are COL
lected and review in the opinion.
(Syllabus by the court.)
Appeal from the district court If
Stark county from an order vacating a
default judgment made by Crawford,
Affirmed.
Heffron & Baird, attorneys for plain
tiff and appellant.
Macfarlane & Burtha. attorneys for
defendant and respondent.
Opinion by Justice Goss. All con-
cur.
f. H. Fuller, plaintiff and appellant,
VS.. the Board of University and
School Lands, state of North Dako-
ia, and Alex. Mcdonald as commits
sioner of the University and School
Lands, state of North Dakota, de-
PENDANTS and respondents.
l. Section 15G of the state constitu-
ton, providing for the Board of Uni
versity and School Lands, construed
with statutory carrying the same into
effect. goves said board general and
full powers in the sale of school lands
except as otherwise limited by constitu-
tional and statutory enactment.
,: Such grant of power carries with
it the duty by the board of using judg-
ment and discretion in such matters,
commensurate with the Importance of
its duties as the trustees Of the school
fund of the state.
3. Under section ia of the statutes
of 1905, providing for the approval and
contamination of school sales by the
board, the disapproval of the board Of
a sale of school lands and refusal to
cause contract of sales to be executed,
of land struck off at school sale to a
bidder, cannot be reviewed or control
cd by the courts. the boards conclusion
being final.
4. Held further that such decision of
the board is a. quasi judicial determine
ton, as distinguished from ministerial
acts. and nandamus will not lie to re-
view the same or the evidence or infor-
nation upon which such decision was
based.
5. Under the facts disclosed by the
record in this case certiorari will not
lie to review such action of the board
(Syllabus by the court.)
Appeal from the district court of
Burleigh county, Winchester, J.
Affirmed.
Engerud, Holt & Frame, attorneys
for appellant.
Andrew Miller, attorney general ::
Alfred Zuger and c. L. Young, assis-
tants. attorneys for respondents.
Opinion by Judge Goss. All concur
HOMESTEAD No. 500.
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