Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-05-13
Supreme Court

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In the Supreme Court, State of
North Dakota, April, 1911, Term.
William G. Schafer, plaintiff, VS..
The District Court Of the County Of
Nelson, First Judicial District, State
of North Dakota, Charles F. Temple
ton, as the Judge of the said District
Court, and r. j. Roberts, as the Clerk
of said District Court, defendants.
1. Certoirarri does not lie when
there is an appeal, for in the judy
| ment of the court, any other plain,
speedy and adequate remedy.
2. After this court has acquired
| Jurisdiction of a cause by appeal it
has inherent power on proper appli-
! cation to enter any appropriate. or
der therein, including the power to
| vacate a stay of execution pending
the determination of such appeal ord
cred by the trial court upon an in
appropriate or insufficient undertake
necessary undertaking to secure the
! stay OF execution granted.
(Syllabus by the cOurt.)
Motion to quash writ OF certiorarri
granted.
H. A. Libby, for the motion.
Erich & Kelly, contra.
Opinion of the court by Spalding.
In The Supreme Court, State of
North Dakota, October, 1910 Term.
Bismarck Grocery Co., Corpora
ton, appellant, VS.. Springfield Fire &
Marine Insurance Co., respondent.
/. Judgements. Opening Defaults.
Excusing Delay. Affidavit of Merits.
When application is made to the dis.
trict court, under section 1884, Re.
vised Codes of 1905, for relief from a
default judgment, the fact that both
the plaintiff and the garnishee had
signed a stipulation providing among
other things that the Judgment would
be opened, and such stipulation had
failed through no fault of the parties,
is a sufficient excuse for the delay &C.
casioned thereby.
2. Such application must be &C
companied by an affidavit of merits;
such affidavits of merits may set up
all of the facts of the case and be
presented to the court itself for an
inspection Of the merits. 1t is not
|
facts to an attorney for an opinion up
on the merits.
I (Syllabus by the COurt.)
Appeal from the district court OF
Burleigh county, relieving the garn'
ishee from a default judgment. Win.
chester J. Affirmed.
Newton, Dullam and Young, for ap-
pallant, r. n Stevens and Scott Rex,
for respondent.
Opinions of the court by Burke, j.
In the Supreme Court, State of
North Dakota, April, 1911 Term.
The State of North Dakota, on the
Relation of the Security Bank of Knox
A Domestic Corporation, plaintiff, vs..
Charles w. BUTTE, Acting Judge of the
Second Judicial District of the State
of North Dakota, and the District
Court of the county of Benson, de-
PENDANT.
1. The word "mortgagor" as used
in Section 7454 Revised Codes OF
1905, relative to enjoining real estate
mortgage foreclosure sales, includes
those persons in privity to and claim
ing under the mOrtgag0r.
2. A subsequent mortgage may
make the necessary affidavit and en-
join the sale.
3. The affidavit upon which the
restraining order is based should set
forth facts for the satisfaction Of the
Judge of the district court, but the
facts need not be stated with the same
particularly required Of pleadings
The affidavit in this case examined
and held sufficient to confer jurisdic+
ton.
Spalding, J. dissents.
(Syllabus by the court.)
Certiorarri to the district court Of
Benson county, North Dakota, BUTTE,
J..
Writ Quashed.
Stuart and Comstock, for petition.
ers; Torger Sinnessf for respondent.
Opinion of the court by Burke, J.