Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-10-04
Supreme Court


State of North Dakota, in the Su.
premc Court, October, 1912, Term.
John McCarty, Plaintiff and Respond.
ent, VS.. John Kepreta, Defendant
and Appellant.
/. Plaintiff brought this action to
obtain possession of personal prop
crty in which he claimed a special
interest by virtue of a chattel mort.
gage securing a note for 100000 on
which default had occurred. The note
| was given to a bank of which the
| plaintiff was president, but he lived
| some 400 miles from the bank and
did not participate in the active man.
agement thereof, which was left to
| the cashier. The cashier made the
loan for which the note and mortgage
were taken. Plaintiff claimed to be
a holder in due course. The defense
| relied upon was that the note was
! given without any consideration what
ever, and that the plaintiff, being pres.
ident of the bank, took it charged
| with knowledge OF the facts which
| the defendant claimed was acquired
by the cashier in taking the note and
mortgage. 1t was tried on this issue,
Il verdict directed for plaintiff, and
| appealed to this court. The abstract
and brief of the appellant were filed
December 4th, 1911. In April, 1912,
appellant submitted a motion for an
order to remand the cause to the dis
trict court and to instruct that court
to entertain al application by him for
an extension Of time in which to move
for a new trial on the ground of new
ly discovered evidence. The evidence
claimed to be newly discovered was
the fact that the note was tainted with
usury. and the affidavit submitted by
appellant showed that he had in fact
received at least $4,000 as the con-
s%ideratiOn for the note and mortgage.
Held, % That this court has power,
and it is it's duty, when an appellant,
in the course Of proceedings, after
appeal, discloses in an unequivocal
manner that his defense in the trial
court, and his grounds for appeal were
purely fictitious, and that he has new
er had any such defense as pleaded,
and that the issues tried in the lower
court and involved in the appeal re-
late to purely abstract questions and
can have no bearing upon the actual
rights Of the parties, to refuse to con-
slider the errors shown OH such is.
sues. (2) That in no view of this
case, under the facts presented by ap.
pollant on his motion, does the iudg'
ment' appealed from work him any
injury or hardship, and that this is
particularly true when appellant con.
fesses that he received, as consider
alton for hcinote and mortgage, more
than a thousand dollars in excess of
the value Of the property taken in the
action, as stipulated by the parties,
and when, under the law Of this state
in force when this transaction occur.
red, the taking OF usury did not rem
der the note invalid.
(Syllabus by the COURT
Appeal from the judgment Of the
district court OF Benson county, Cow
an, j..
Appeal dismissed.
p. J. McClory and Stuart & Com
stock. for appellant.
Butte g. Sinness, for Respondent.
Opinion by Spalding, G. ].
In the Supreme Court, State Of North
Dakota, April Term, 1912.
James II. Johnson, Plaintiff and Ap.
pellant, VS.. James Bartron, Jr., de-
PENDANT and Respondent.
/. Where A. and B. owned ada.
cent lots, and, together with C., a
professional well.digger. agreed to dig
and equip a well Oh the line dividing
said lots, in which all should equally
share the expense and should equally
participate, and said contract being
reduced to writing and not being sign.
ed by any of said parties, and the To-
cation Of said we'll was arrived at by
rough measurements made by said
parties, but the line was not then sur
veyed; and it was contemporaneously
orally agreed that II the well was not
on the true line, that the same rights
in the we'll should exist, and that if
G. desired to sell his interest, A. and
B. should have the first option to pur-
chase the same in equal shares, and
C. did afterwards sell his interest to
a.. and g., and after the digging Of the
said well and the sale OF the interest
of G. to A. and B., A. and s. Jointly
constructed a windmill over said we'll,
each paying half the cost thereof, and
afterwards E, by Warranty deed, sold
his lot and interest in said we'll and
appliances to D. and A. afterwards
refused to allow D. to use said well
and fenced in the same, two subse.
quent surveys of said premises hay
ing shown that as q matter OF fact
the well was twenty inches from the