Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-10-05
SUPREME COURT

IN the supreme court, state of North
Dakota, April, 1911 term.
Robert M. Pollock, trustee in bank
ruptcy OF Messing Bros. & Co., bank
rupts, plaintiff and respondent, versus
Walter B. Jordan, Walter B. Jordan
Jr., Walter H. Gordon and William
7. Hoy, doing business under the firm
name and style of w. B. and w. G.
Jordan, defendants and appellants.
l. Held that the amendment to
plaintiffs complaint did not caange
the cause of action from a suit to
recover damages for a preference
granted by the insolvent prior to
bankruptcy to his creditor to an &C
ton against said creditor for con-
version
z. That such amendment during
trial did not give defendant the right
to a continuance on the ground of
surprise occasioned by amendment of
pleadings, in the absence of a show
ing of actual surprise and need OF
time for preparation to meet it. Where
the pleadings gives sufficient informa-
ton of the evidence to be adduced,
the allowance of an amendment to
cure a defect which has been relied
upon by the opposite party to defeat
the pleading, does not create surprise
within the meaning of the rule as to
continuance on the allowance of
amendments to pleadings.
g.. A nero ron1oct Sf9fomonf
OF inability to meet the issues pre-
sented by an amended complaint is
not usually of itself sufficient appli-
cation for continuance.
4. The granting or refusal of an
application for a continuance, like a
motion for leave to amend, is largely
within the discretion of the trial court
and an order denying the same will
not be reversed unless it clearly ap-
pears there has been an abuse of such
discretion.
5. Allowance of testimony touch
ing value held proper as upon suffi-
cient foundation laid, and exceptions
IS to instructions of the court re.
viewed.
Syllabus by the court.
Appeal from the district court. Cass
county. Pollock, j..
Affirmed.
Opinion by Goss j., Spalding, J.
specially.
Stambaugh & Fowler for appellants.
R. M. Pollock and Geo. S. Crimes
or respondent
In the supreme court, state of North
Dakota. April term. 1911.
VIM. G. Schafer, respondent, versus
oontus Olson, appellant
1. An action for foreclosure of
'endors lien on real property in
which Judgment is rendered in the
orm of personal fragment against
defendant, coupled with the usual de-
rec of foreclosure directing the sale
md application of the proceeds upon
he amount of recovery adjudged,
leld not to be "a judgment directing
he payment of money" within the
teaning of Sec. -1209 of the code of
905, providing that to stay execution
appeal on a judgment direct
ng the payment of money appellant
must furnish a bond conditioned to
,ay the amount for which the judy
nent is on appeal affirmed; but the
upersedeas bonds to he required in !
UGH case is defined by Sec. 1912. code !
# 1905, conditioned that during the !
tendency of the appeal the appellant |
will not commit nor suffer to be COM
nitted any waste thereon, and that |
T the Judgment is affirmed he will
'ay the value of the use and occupa-
ion of the property from the time
f the appeal until delivery of pos
ession thereof pursuant to final judy
nent rendered on appeal.
g. That as the bond given was as
equired under the provisions q Sec.
PIP and was approved by the court |
n sum fixed by it, the same Is valid
nd the execution as against the
involved in the foreclosure
vas properly stayed t<nding appeal.
Syllabus by the court.
Application to vacate order of the
district court of Nelson county. Tenn
'leton, j., fixing supersedeas bond
n appeal.
By an order to show cause respond
mt Schafer applies to this court for