davidaulloa/AmericanStories huggingface dataset:
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
plaintiff who had no knowledge Of
any proceedings taken after entry of

plaintiff who had no knowledge Of
any proceedings taken after entry Of
the void judgment presumed by him
to be valid. Plaintiff was non-resi.
dent. Without notice to him, after
purported trial on tho merits in 1909
Of which he was ignorant, Judgment
was rendered In defendants favor
Quieting title against plaintiff. All
attorneys under the circumstances
shown in the record acted in good
faith. The former attorney Of record
was incapacitated by sickenss from
attending personally to the matter,
employing other attorneys so to do
who were ignorant of plaintiffs where.
abouts; plaintiffs attorney having
died pending the litigation. Promptly
upon notice Of the rendition of the
second judgment plaintiff applied for
its vacation with leave to proceed to
trial on the merits, and upon denial
thereof appeals.
HELD: =
L That the Judgment first entered
was void for want of jurisdiction OF
the defendant. f-. g.. .",
2. That under Sec. 1854 the action
was in law deemed discontinued after
sixty days had elapsed from the filing
of the AFFIDAVIT for publication with
out personal service Of the summons
on the first publication thereof hav-
ing been made. .,. a.
8. Conceding without deciding that
the authority by employment OF, the
attorney to institute the action was
sucient from which his authority
would be presumed to continue, and
as such assuming that he remained
an attorney Of record authorized I'M
der Sec. 1887 to accept service OF the
application served upon him in 1909
to Vacate said judgment, and conced-
ing the application Of that statute to
this case deemed discontinued long
prior thereto under Sec. 1854, never
theless said attorney of record would
have no authority to employ other at
torneys to act for him in his behalf,
as was done in representing the plain
tiff on the trial Of said action; and
consequently the appearances made
by such unauthorized substituted at
torneys, and stipulations made by
them, are void and not binding under
this record upon plaintiff. The ap-
plication is therefore to be treated as
one to vacate judgment rendered BY
default. +:'S gov
Il 4. The record conclusively estab-
fishes want of knowledge in the plain
till and Of any proceedings had after
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
Supreme Court

In the Supreme Court, State of North
Dakota, October Term, 1911.
L. s. Hackney, Plaintiff and appellant.
vs..
W. J. Elliott, Defendant and Respond
ent.
This is an action to cancel tax GER
tifcates on sale for special drainage
assessments arising from the tri-
country drain in Ransom, Sargent and
@chland counties, on non-payment OF
which assessments plaintiffs lands
were sold. HELD:
1. That the petition for drainage
presented to the Rchland county
drainage board was sufficient to con"
fer Jurisdiction upon said board to
act.
(a) Our drainage statutes were ad-
opted from the michigan drainage
statutes In force in 1893.
(b) Al petition Tor drainage OF az
ricultural lands need not contain an
averment of the necessity for the pro-
posed drain, nor that it will drain ag-
ricultural lands, nor that the signers
thereto are teeholders whose lands
will be affected by the proposed drain,
nor other than general description
with beginning and end OF the course
of the proposed drain. Upon the
board finding the existence OF seces-
sity for the drain, and that the petit
ton was signed by a sufficient num-
Der Of qualified petitioners, and with
each finding based upos a survey had
Of the course of the drain and estab-
lishment Of its commencement, ter
minus, route, width and depth there
OF, and after the preparation and fl
ing Of profiles, plans, specifications,
estimates Of cost and map or plat OF
the lands to be drained, and finding
that the benefits to be derived will
exceed the total cost of construction
thereof; the drainage board is then
authorized by law to construct said
drain, such finding curing defects IN
the petition because of its failure to
designate the purpose thereof and
that the same viii result to the bene.
at Of the health, convenience or vel.
fare, or show that the signers thereof
are legally qualified as such. H..
To- In determining the sufnciency
OF the petition to confer Jurisdiction
to act hereunder the drainage board
may take judicial notice Of and CON
slider with said petition the fact that
the course Of the drain as petitioned
for will traverse agricultural lands,
and also OF the character Of another
drain Of which the petition recites the
one petitioned for would be but a
continuation Of, and Of all such other
matters OF location, place, distance,
extent, area, topography and general
condition Of lands within its county
az court would be authorized to take
judicial notice Of under, Code Seer.
1918 ana 1913.
(d) Where the order establishing
= drain makes reference to the sur
veyof's minutes Of . survey, probes,
plans and specifications filed with the
county auditor, these may be consid-
cred With and as experimenting the
description contained In the order es-
tablishing such drain.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
this plaintiff against Ransom cours
to determine the validity of these spe-

this plaintiff against Ransom cout,
to determine the validity of these spe.
cial drainage assessments, but not
enjoining the sale thereof, is not OF
itself constructive notice to pur'
chaser at such tax sale of any rights
OF the plaintiff, 80 as to prevent such
purchaser from asserting In q subse.
quent action brought by the former
plaintiff any rights Of estoppel or
otherwise that might have been avail
able by the county In its defense In
the original action.
Z. Jurisdiction having been con-
ferred upon the drain boards to estab.
lish and construct this drain, and an
apportionment Of benefits and assess
ment based thereon having been
made by the proper authorities, re-
sulting in the tax having been spread
and becoming q lin by operation OF
law, all without plaintiffs objection
and with his actual knowledge that
his lands with others were being bene-
flied by the construction Of the drain
at great expense. Of the making OF
which he had actual notice, said pro.
ceedings covering q period Of nearly
five years, during which period before
and since the completion Of the pro-
ject he has remained acquiescent, he
having granted right Of way though
not q petitioner for drainage, plain
tiff will not be heard in equity to as.
sert the invalidity Of special assess
ments levied upon his property to de-
fray such property's proportionate
share Of the cost Of the drain.
(a) Such rule of estoppel is en-
forcible and applicable in this action
between private parties. The distinc-
ton applied in early tax cases in this
state, to the effect that there was a
difference in principle between an &C.
ton against a county for cancellation
of a tax and the determination of
such an issue In an action to quiet
title between private parties, and
since in later cases disapproved, re-
fused recognition and application In
this action to quiet title.
(b) Defendant as purchaser at
a tax sale is held to be subrogated t.
all the rights possessed under said
tax by Ransom county at the time OF
such sale.
s. There is no sufficient proof Of
any fraud on the part Of the drainage
board. A 3D., s~
9. The special assessments 80
levied for said purposes upon plain
tiff's land in 1908 were and are valid
as such for the amount 80 levied, to-
gether with interest thereon at seven
per cent from date Of delinquency,
March 1, 1909. sF.. W.
10 That the notice Of delinquent
tax sale was invalid and vitiated the
sale as to plaintiffs lands in Rose
mead civil township. The first OF the
three published notices Of sale listed
the lands as situated within the town
ship of Rosemead. but the township
was particularly described by range as
range IS, instead Of the correct des-
cription Of range IS. After one pub
lication the sale notice was corrected.
Held to have been an insufficient no
tice Of tax sale, and void for uncer-
tainty Of description OF land to be
sold, and as two publications was In
sufficient notice the sale had thereon
was void. s$a vi, ~. Nj H.
II. Under statutes pr'or to Chap.
2SS, Session laws 1911; and as exist
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
(e) Where a petition has been act

(e) Where a petitio;, has been act
ed upon and a drain established there
under, the fact that It contains al
unnecessary word obscuring It's mean
ing, when with such word omitted the
meaning would be plain, the petition
will not be held void as un1nteldg
ible '~s
~ The action of the county drain
age board in incorporating In the or
der establishing the main drain an
order establishing :. spur or branch
drain will not under the record here
in be held to invalidate all proceed
ings had and relieve plaintiffs lands
in another county from their assess
ment to defray construction of the
tri-county drain. Such are but irreg-
ularities and do not 60 to the boards
jurisdiction.
2. The apportionment of benefits
by percentage held valid.
(a) The placing of the words per
cent" at the head Of a column Of deci'
NAL fractions, apportioning such de-
cimal fractional part of the total bene-
fits as is received by the specific tract
opposite such decimal fraction to 1t,
does not indicate that the tax to be
calculated thereon shall be computed
by taking such decimal fractional part
of one per cent, Of the entire cost OF
construction, but instead, such deci-
NAL fractional part OF the entire cost.
The words per cent" as SO used
mean the decimal fractional part OF
share by decimal part or percentage
of the whole. Such schedule OF appor.
tionment Of benefits by decimal frac-
tional part or percentage thereof will
be calculated under the usual inter
pretatios instead Of by strained con-
struction.
(b) In the absence of a showing
of a want of uniformity in such appor-
tionment of specific benefits the pre-
sumption will be in favor of it's vail
dity and that the tax computed there
from was not excessive
3. The apportionment of specific
benefits, when made not being based
upon or having any relation to either
the estimated or actual cost Of the
project, the fact that the acual cost
may far exceed the estimated cost
thereof can in no wise affect the vail
dity of the apportionment of benefits
by percentages.
(a) Nor can any excess of actual
overfstimAted cost of construction
be considered ~ In effect the taking
Of property without due process Of
law or as rendering the drainage act
unconstitutional because thereof.
E (b) VI The fact that the notice OF
hearing Of apportionment of benefits
by percentages as to specific tracts
and that the notice Of confirmation
thereof contained an erroneous esti.
mate Of the total cost Of construction,
does no alone render the portion Of
the assessment in excess Of the esti-
mated cost but within the actual cost
Of construction as levied against such
tracts and computed by such percent
ages OF the total actual cost, invalid
as the taking Of property without due
process OF law. &
(c) After petitions for the estab-
Hshment of the portion OF the tri-
county drain within each county had
been severally granted, and the por-
ton of the drain in each county sev-
orally established by each county
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
board, it was the duty of the three

board, It was the duty OF the three
county drainage boards to meet In
Joint session, under Sec. 1896, to de-
termine the proportion of the whole
benefits to be derived from the drain
the lands within each county will re-
'ceive therefrom; in 80 acting the tr1-
county board does not deal with indi-
vidual tracts as such, but instead,
with a county apportionment Of bene'
fits considering collectively each coun-
tvs lands benefited and determining
the proportion each county's lands
bears to all the lands benefited; as In
percentages of benefits received so
in damages for right OF way and pro-
.perty taken under eminent domain
for public use. Such joint board has
no duties other than such cousty ap-
portionments and calculation of total
cost of drain.
(d) In such apportionment each
county board acts severally as an. in
tegral part Of the joint or tri-count,
body. 49,. 81. ~ H.,
(e) After such apportionment be-
tween the counties by percentages of
total benefits from the drain, the fact
that thereafter the three boards met
in joint session and Jointly and sew
eraly as boards signed and put forth
a list of special assessments as to
each and all the tracts within the
three counties SO benefited by the
drain, but computed on proper bas-
is Of percentage of benefits in the
same manner as would have resulted
had each board separately determined
said assessment in specific amounts,
will not invalidate the tax so appor-
toned in specific amounts to each
tract where the lands are classified
by counties with direction accord
ingly to the county auditors to spread
the assessments against such lands
described as are situated within their
several counties. Such list amounts
but to the issuance of three several
lists in which each county board de.
termines the tax in specific amounts
upon lands within its county. The
fact that they unauthorizedly so act
ed in joint session does not invalidate
such assessments. -. 81 - o.. %.
s. Sec. 1897 in terms requires the
board of drain commissioners Of each
county, prior to the letting Of con-
tracts for the constructions Of the
drain, to make q return to the county
auditor, and requires that "such re-
turn shall contain" certain papers,
minutes and proceedings. The board
of drain commissioners of Ransom
county made such return. This sta
tute requires the recording of said
return by the auditor. This return
was never recorded. Held that the
making of such record is not inner.
emily part Of or condition precedent
to the assessment, but instead, mere
.ly a legislative requirement, and as
such for the purpose Of procuring a
record to be made Of prior proceed
ings; that such recording IL not re-
quired that constructive notice be CIV
en- thereby Of previous proceedings.
notice Of which had prior thereto been
required to be given otherwise. Such
failure to record is q mere irregulari-
" not invalidating the assessment,
the statute being directory and not
mandatory. Ill.,. y +
The tendency Of an action at
the time OF the tax sale, brought by
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
THE TRUTH ABOUT sLuINc.
Talk No, 8.

Avoid liquid bluing. In every city
there 10 an accumulation of junk bot
ties which are gathered up and filled
With . weak solution called bluing.
Don't buy water for blaing.
Buy RED CROSS BALL BLUE: a
scent package equals 20 cents worth
Of liquid blue. Makes clothes whittier
than snow. ALL GOOD GROCERS.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03
ing at all times in issue, no statutory
interest or statutory penalty having
haan anaciflcalln nrnvidnd To ho col.


ing at all times in issue, no statutory
interest or statutory penalty having
been specifically provided to be COL
lected upon delinquent drainage assess
ments arising from the construction
of drains to agricultural lands none
can be collected And the provisions
of law applicable to the collection of
penalty and interest on, real estate
taxes, and that such assessments
''shall be collected and enforced in the
same manner as other taxes" Is in
sufficient to authorize the collection Of
such statutory interest and penalty
on drainage assessments. Such delin-
Quent drainage assessments bear In.
'terest at seven per cent. per annum
from and after delinquency.
~ Following state ex. rel. v. Fur
stenau, 20 N. D. $40, 129 N. w. 81,
plaintiffs payment Of his general tax
es before sale, without tender of
the special assessments for drainage
purposes, was payment of the gen
eral land tax; and such sale for plain
tiff's general taxes and the certtfi-
Gates issued thereon are void and are
ordered cancelled. General land taxes
may be paid without making payment
of special drainage assessments.
: 10 Equitable relief as to the tax
sale for drainage assessments is
awarded as to certificates issued and
interest, penalty and costs Of sale, but
relief is conditions however upon pay
ment being made by plaintiff within
SIXTY days from the fling Of the re-
mititur herein in the district court OF
the amount Of all special assessments
involved with interest at seven per
cent, per annum from March /, 1909,
to date of payment. In case Of pay
ment within said period no costs will
be taxed, this being test case. In
default of payment within said period
plaintiffs action will be dismissed and
judgment entered against plaintiff for
all Of respondents taxable costs and
disbursements. ..s ..
(Syllabus by the Court.) r.
From the judgmest Of the District
court Of Ransom county, Allen, J.,
plaintiff appeals. ~ i. s5
Modified on condition and affirmed.
Opinion. by Goss. j., Spalding, G. J.
concurring specially. -
/ Purcell & Nvet, and p L. Heating,
of Wahpeton, N. D., attorneys for
plaintiff and respondent. 3. r.
. Ashley Conman Of st, Paul, Mimi,
Counsel for plaintiff.
Curtis & Curtis, and Rourke &
Kvello, Of Lisbon, N. D., attorneys for
defendant and respondent.
Flynn & Traynor, OF Devils Lake, N.
D., and c. r. Clark Of Cedar Rapids,
Iowa, attorneys for 1ntervenor e. r.
Moore. T. - a..
In the Supreme Court, State Of North
Dakota, October Term, 1911
John Riebold, plaintiff and appellant.
af:s X W. " l-.ss,r -s.s1g 5 ..' l.5.- ~
w 7 uarf1o11 dofon6anf onH ros.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03

In the Supreme Court, State Of North
Dakota, October Term, 1911
John Riebold, plaintiff and appellant.
w. J. Hartzell, defendant and res
pondent. ,, @s NJ. t#5tso%. 81
A Judgment entered by default IN
plaintiffs favor in 1906, but void for
want Of jurisdiction, was three years
later on motion vacated after service
Of moving papers on the attorney who
subscribed the original summons and
complaint and thereafter brought on
for trial, other attorneys appearing at
the request Of such former attorney
of record but without employment BY
Imperial Valley press., 1912-07-15
AROUSE INTEREST IN
GROWING OF DATES

INDIO, July 15.-Paul B. Popenoe,
date expert for the West India gar
dens at Altadena. has been visiting
the valley this week with Theodore Q.
Barber. secretary treasurer of the
West India gardens: c. X. Valentine,
capitalist of Altadena, and f. r.
Plank, a Los Angeles broker. The
party is inspecting date lands with a
view to embarking in the business on
an extensive scale during the coming
winter.
Popenoe made a trip TO the Sahara
desert this spring and brought in 1000
Deglet Moor offshoots of which coo
went to Dr. Rebecca Lee Dorsey and
r. r. Bray: $50 to ID. H. Gillian, and
20 TO Meyer e. Gilbert. He is expect
ing TO visit Bagdad during the coming
winter for large shipment of choice
varieties, part of which will be for
the West India gardens. and the rest
for various growers in the valley.
Dates were one of the chief topics
of interest in the recent State Fruit
Growers convention in Santa Barbara.
according to Popenoe, who delivered
an address on the subject there.
There is no doubt that the Persian
gulf offers rich field for invasion by
California agents. since its dates are
the most famous in the world, and the
north African varieties have in the
past been given the preference only
because they were more accessible
Several Bagdad varieties which have
already been fruited in America, have
shown great excellence, and many
more will fruit for the first time this
year, when a good idea can be had Of
their possibilities here. 1t is possible
that there are several varieties OBJ.
tainable in quantities which are fully
as good as, if not better, than the
Deglet Moor.
1t is these varieties which the West
India gardens intend to introduce to
Coachella valley this winter on a
larger scale than has ever before
been attempted. Paul P. Popenoe
with his brother, F. w. Popenoe, a
well known botanist and specialist on
sub tropical fruits, will leave Altadena
August l for the Persian gulf in order
TO have plenty of time to study the
date industry there in searching and
scientific manner. They will not re-
turn before next May.
Imperial Valley press., 1912-07-15

And in accordance with law and an or
d"r of the Board of Directors. made Oh
the 21st day of May. 1912, many shares
of each parcel of said stock as may b.
necessary will be sold at the office of the
company, CaleXico. Imperial County. Cali
fornia, on the 18th day of July, 1872 at
10 a. M, of said day to pay delinquent as
advertising and expenses of sale.
IMPERIAL WATER co. NO. 6.
BY f. HI. LOCKWOOD, Secretary.
1t appearing to the Board of Directors
that, owing to a failure of the Calexico
Daily Chronicle to be published since the
I'd day of July, 1912, the notice of the
delinquent list of stockholders for the
non payment of assessment No. IL. order
ed published therein, will not have been
published for the necessary period of fif-
teen 05) days prior to the date of sale,
tors of Imperial Water Co. No. that the
sales day of delinquent stock under as
sessment No. IL be postponed and con-
tinued until the Goth day of July, 1912, at
10 O'Clock a. m. of Said day.
The Secretary of Imperial Water Co.
No. shall cause said delinquent list to-
Sether with this order. to be published in
the Imperial Valley Press of FL Centro
for not less than ten days preceding said
sale day.
BY virtue of the above order of the
Board of Directors the date of the sale
of the above delinquent stock is hereby
set for the 26th day of July. 1912.
BY order of the Board of Directors, at a
special meeting held July 9, 1912.
July 9. 1912.
IMPERIAL WATER co. NO 6.
BY E. H. LOCKWOOD, Secretary.
Jnly %
Imperial Valley press., 1912-07-15
REBELS ADVANCE ON BORDER
TOWN Of aqua PRIETA

Ell PASO. July 15.-Rebels today
resumed the conquest of Sonora when
General Salazar sent two detachments
from Casas Grandes into the north
western state. Already Bavis, BaSar-
&C and Colonia Morelos have fallen in
to the rebels hands, and the menace
of rebel troops upon the border city
of Aqua Prieta has forced its evacua-
ton by federals Advised of the rebel
activity and the menace of Aqua
Prieta, the minister of war today
ordered the federal forces to evacuate
the town and to offer no resistance on
the border to the rebel advance. This
order to prevent friction with the
United States resulting from fighting
on the border.
That Madero will not permit Sonora
to be taken without a strong effort to
retain il is evidenced by troop move
ments to the north today. Monterey
advices say 400 federal troops with
heavy artillery and great quantity
of ammunition passed that city for
Torreon for transfer to Sonora.
Friends in Ell Paso of Mormon Bish-
op Orson P. Brown fear he is held a
prisoner by a federal general in So
nora and are greatly worried about
him. Bishop Brown, who represents
the Mormon interests in the south
west. left Ell Paso early in the week
for the Sonora colonies.
At Aqua Prieta he was advised OF fed
eral outrages at Colonia Morelos and
in anger he left for mat colony saying
he would demand justice for the colo
nists of the federal commander. He
left word in Douglas and Aqua Prieta
that he would send back reports of
conditions by couriers, but since last
Tuesday no word has been received
from him.