Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-03-01
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Supreme Court

In the supreme court, state of
North Dakota, October term, 1910.
E. A. Wadsworth, plaintiff and ap-
pellant, VS.. c. r., Owens, defendant
and respondent
I. The defendant leased of plain
tiff certain real estate for the season
of 1905. At the request of the plain
tiff, defendant remained upon the
premises during the winter of 1905
and 6. Without any new agreement
the plaintiff furnished seed, and the
defendant sowed it and cropped the
same premises in 1906
Held, that section 1881, r. C. 1905,
providing that IF lessee of real
property remains in possession there
of after the expiration of the hiring,
and the lessor accepts rent from him,
the parties are presumed to have re-
neWed the hiring on the same terms
and for the same time, not exceeding
one year," applies, and that the de-
PENDANTS rights in the premises and
crops for 1906 were governed by the
contract in writing made for the year
1905, and that this rule is not abro-
gated by the fact that after having
accepted the seed from the plaintiff
and sOWed it, the defendant refused
to execute new contract in terms
like the old one
2. The acceptance of rent as re-
ferred to in section 5531 only oper-
ates as evidence that the landlord
consents to the renewal or extension
of the contract, and when the evil
dence is adequate to establish the
fact of such consent without his hav-
ing received rent. the receipt or fail
ure to receive rent is not material.
3. The landlord may elect when a
tenant continues in possession after
the expiration of his lease, to treat
the tenant as trespasser, or as hold
ing under the lease of the former
year.
4. The parties to this action agreed
that the value of the crop involved
was $4,000. The contract under
which the defndant held reserved the
title to all such crop in the plaintiff,
and the defendant agreed therein not
to se!' Or remove any of such crop up.
til a division thereof, without written
consent OF plaintiff, and not until
all Of his covenali:et and agreements
contained in the lease s4.~ '" be full.
filled, and that the plaintiff shou.d
have the right to take and hold
enough of such crop that would, on d
division of the same, belong to the
defendant, to repay any and all ad
vances made to him. The evidence
shows that the defendant was dispos.
ing Of the crop without having fulfill.
ed the terms of the contract, and that
he asserted title thereto superior and
adverse to that of the plaintiff. In a
replevin action verdict was returned
to the effect that the defendants in
terest in the crop was 500, and
against the plaintiff.
Held, that a verdict in favor of the
plaintiff should have been directed.
(Syllabus by the court.)
Appeal from the district court, Ca
Waller county; Kneeshaw, J.
Action in claim and delivery. De-
PENDANT recovered a verdict and judg
ment.
Reversed.
Ball, Watson, Young & Lawrence,
and w. A. Mcintyre, for appellant.
Fred e. Smith, for respondent.
Opinion by Spalding, j.; all con-
curing except Morgan, C. j.. not par
ticipating.
In the supreme court, state of
North Dakota, October term, 1910.
Leonard Stockwell, plaintiff, VS.. w.
). Crawford, district Judge of the
Tenth judicial district, North Dakota,
defendant.
/. Generally mandamus does not
lie to control the exercise Of judicial
discretion.
2. Under the facts disclosed by the
ecord in this case, the action of the
defendant as Judge of the district
curt Of Billings county, set forth in
he opinion, in adjourning term Of
be district court of that county with
ut trying the case in which the plain.
III herein was a party, was an exer-
ise of judicial discretion.
3. Affidavits of prejudice directed
t the Judge of the district and not
led before the commencement of the
erm at which the case is to be tried,
re of no effect and do not deprive
he Judge of the right or power to try
ne action in which such affidavits are
led during term time. III
4. Under the circumstances and
roceedings surrounding the act OF
le Judge in this case, it is held, that
is attempts to secure the judges OF
ther districts to sit in the trial of the
ase in his place, were purely volun-