The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1911-09-08
DECISION IS. GIVEN
N FAMOUS
CASE
Judgment Reversed in Suit
For Alienation of Wife's
Affections

@A~ S.AAAiua1 conversation mas Just
been handed down. The case was
tried before Judge Cowan at Devils
Lake and a verdict was returned in
favor Of the defendant. An appeal was
taken to the supreme court on the
grounds that the instruction to the
jury was erroneous and the Judgment
Is reversed.
The complaint was for alienation of
his wife's affections but the evidence
went to show criminal conversation.
The decision follows:
The opinion was written by Judge
Fisk. Chief Justice Morgan did not
participate and Judge A. G. Burr sat
IN his place. Anderson & Traynor
and Guy G. H. Corliss appeared for
the appellant and P. ]. McClory and
F. 7. Cuthbert represented the re-
%spondent
The syllabus follows:
/. Complaint construed and held
that Its allegations are sufficiently
broad to embrace not only a cause Of
action for alienation of affections but
also n for criminal conversation;
and the fact that such cause of ac-
ton are intermingled instead of sepa-
rately pleaded cannot avail defendant.
His remedy was by motion to require
a separation Of such causes of action.
2. Conceding, as contended by re-
spondent, that plaintiffs counsel in
drafting such pleading, did not in
tend to allege a cause Of action for
criminal conversation, such fact does
not preclude plaintiff from recovering
hereunder. The fact that a party
proceeds to trial upon a mistaken idea
as to the nature of an action and the
scope Of the issues framed by the
pleadings does not deprive him of the
right to such relief al is consistent
with the real issues and the proof in
the case where he has not expressly
or implicitly waived such right.
The two following opinions were
also handed down:
Ebert Halvorson. appellant, vs.. E.
A. Bennett and E. G.. Houston, re-
spondents.
Equitable relief will not be grant,
ed against a Justices judgment reg
ular on its face, although void for
failure to enter the same at the close
of the trial, without some showing in
the complaint and proof Of the ex-
istence Of a meritorious defense
against the cause Of action forming
the basis Of the judgment
(Syllabus by the court.)
Appeal from district court, LaMoure
county, E. B. Goss, special Judge.
Action in equity to set aside an al
legged void Justices court judgment.
From q judgment in defendants IA
vor, plaintiff appeals.
Affirmed.
M. G. Lasell, for appellant.
Davis & Warren for respondent.
Opinion by Fisk, j., Spalding;, J..
concurring specially.
Sigrid Olson, appellant, VS.. Cole
man Riddle, respondent.
1. Although trial courts are vested
with a large discretion in granting
or refusing new trials, such discre-
ton is a legal discretion and appellate
courts will not hesitate to interfere
for the protection Of litigants in q
clear case of abuse Of such discretion
2. Record examined and held, that
none of the grounds assigned as rea,
sons for granting a new trial are ten
able and in making the order grant.
ing such new trial the lower court
clearly abused its %discretions.
(Syllabus by the court.)
Appeal from district court, Mclean
county. ". H. Winchester, J.
Action by Sigrid Olson against Cole
man Riddle.
From an order granting a new trial
plaintiff appeals.
Reversed.
R. S. Fraser, j. J.. Coyle and o, B,
Herrigstad for appellant.
McCulloch & Gibson for respondent
Opinion by Fisk, J..