Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-10-11
Supreme Court

John McCarty. Plaintiff and Respond.
ent, VS.. John Kepreta, Defendant
and Appellant.
1. Plaintiff brought this action to
obtain possession Of personal prop
erty in which he claimed a special
interest by virtue Of a chattel mort.
gage securing q note for $4,000 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 mort.
gage were taken. Plaintiff claimed to
be a holder in due course. The de-.
Tense relied upon was that the note
was given without any consideration
whatever, and that the plaintiff. be.
ing president of the bank, took 1t
charged with knowledge OF the facts
which the defendant claimed a &C.
quired by the cashier in taking the
note and mortgage. 1t was tried on
this issue, q verdict directed for plain.
tiff, and appealed to this court. The
abstract and brief Of appellant were
filed December 4, 1871. In April. 1912,
appellant submitted a motion for an
order to remand the to the
district court and to instruct that
court to entertain IN application by
him for an extension of time in which
to move for a new trial on the
ground of newly discovered evidence.
Ahe evidence claimed to be newly dis.
covered was the fact that the note
was tainted with usury, and the all.
davit submitted by appellant showed
that he had in fact received at least
$500 as the consideration for the
note and mortgage.
HELD, "a That this court has
power, and it is its duty, when an
appellant, in the course of proceed.
ings, after appeal, d~iscloses in an un'
equivocal name that his defense in
the trial court, and his grounds for
appeal, were purely fictitious, and
that he has never had any such de.
Tense as pleaded, and that the issues
tried in the lower court and involved
in the appeal relate to purely abstract
questions and a have no bearing
upon the actual rights Of the parties,
t refuse to consider the errors
shown on such issues. (2) That in
no view of this case, under the facts
presented by appellant on his motion,
does the judgment appealed from
work him any injury or hardship, and
that this is particularly true when ap-
pellant confesses that he received, as
consideration for the note and mort
gage, 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 trans
action occurred, the taking Of usury
did not render the note invalid.
(Syllabus by the court.)
Appeal from the judgment of the
district court of Benson county.
CoWarI; j..
Appeal dismissed.
p. j. McClory & Stuart & Comstock,
for appellant.
Buttz & Sinness, for respondent.
Opinion by Spalding, c. J.
IN THE SUPREME COURT, STATE
Of North Dakota, April Term, 1912,
James H. Johnson, Plaintiff and Ap'
pellant, vs.. James Barton, Jr., De-
fendant and Respondent.
l. Where A. and B. owned ada
cent lots, and, together with c., a
professional well.digger, agreed to dig
and equip a we'll on 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
signed by any of said parties, and
the location of said we'll vas arrived
at by rough measurements made by
said parties. but the line was not
then surveyed; and it was contem'
p%oraneously orally agreed that If the
well was not on the true line. that the
same rights in the well should exist,
and that if Z. desired to sell his III
terest, A. and 3. should have the first
option to purchase the same in equal
shares, and G. did afterwards sell
his interest to A. and B.; and after
the digging of said well and the sale
Of the interest of G.. to A. and B., A.
and E. Jointly constructed a wind
mill over said well, each paying half
Of the cost thereof, and afterwards
B., by warranty deed, sold his lot
and interest in said we'll and appli'
ances to D. and A. afterwards refused
TO allow d. to use said well, and
fenced in the same, two subsequent
surveys Of said premises having
shown that as a matter Of fact the
we'll was twenty inches from the di'
viding line and wholly within AS
lot:
HELD, that equity will, in case OF
such a mistake Of location, presume
q license in B., and his grantees to
use said we'll and to the reasonable
access thereto, but that said license
will be revocabie upon the paymen,
to said B. or his grantees Of the
money expended both in the digging
Of said we'll and their proporti0nate
interest in the improvements con
structed thereon.
2. It is further HELD, That the
digging and location Of said we'll was
in no manner a settlement Of the
boundary line between the two lots
and that q subsequent survey, though
not made by the county surveyor q
i 49, L . ~ 40 ~. 49, -. -. Z = 49, H.