The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-11-25
Decisions Of the Supreme Court


be vacated and quashed and these pro-
ceedings dismissed.
(Syllabus by the court).
An appeal from the district court
Of Nelson county, Crawford. r..
Reversed and dismissed.
Opinion by Goss. ]. Special con-
curing opinion by Bruce, j., and
Spalding, c.. j., dissenting opinion by
III. II. O'Hare of Garrison, George r.
Robbins and Geo. A. Bangs of Grand
Forks, attorneys for relator and re-
spondent.
McCulloch & Nelson of Washburn,
and Engerud, Holt & Frame of Fargo,
attorneys for defendant and appellant,
Frank Saunders, plaintiff and re-
spondent, VS.. A. c.. Harris, defendant
and appellant.
From a Judgment rendered before a
Justice of the peace of Pierce county
defendant appeals. The justice fails
to transmit the record an appeal to
the clerk. Thereafter, by stipulation,
the venue is changed to McHenry
county. n later on a written stipu-
lation the case was continued over a
term of court there held. AT the sue
ceeding November. 1910, term, nearly
one year after entry of judgment APP
pealed from, the case was set by the
court on peremptory call for trial or
final disposition for on or after Dec.
8, on which date the case was called
for trial, with defendant and appel
liant ~defaulting in appearance, and not
having appeared throughout that jury
term then in session. On motion of
plaintiff, made on the grounds that
the appellant had wholly failed to
prosecute his appeal and had failed
~ haxyn fhn NnnNNsfI tn, aNYNnn1 aATff-
fed by the justice to the district
court, defendants appeal was dismiss
ed and judgment entered accordingly.
Two days thereafter defendant moved
to have the order and judgment va
Gated and for an order requiring the
justice to transmit the record and for
a continuance of the cause over the
term, which motion was denied. No
affidavit of merit or proposed plead
ing accompanied the motion, nor are
appellants defaults in appearance in
any way excused: Held:
/. That the court had authority to
dismiss said appeal for non-prosecu-
ton by the appellant, because of his
defaults in appearance throughout the
term and at the time S. set for final
disposition Of the case by trial or
otherwise.
2. That defendant in the motion to
vacate and on this appeal having
challenged only the power of the court
to dismiss the appeal, and not sought
to excuse or explain his default by
| affidavit of merits, was entitled to no
relief n the motion was properly
denied.
(Syllabus by the court.)
An appeal from the district court
of McHenry county. Burr, J.
Affirmed.
Opinion by Goss, j..
c. d. Kelso of Minot, attorney for
appellant.
Kline & Funk of Anamoose, attor-
neys for respondent.
Opinion by GOss, j., Fisk, j., and
Bruce, j., dissenting.
The state of North Dakota, ex rel
Dakota Trust Co, plaintiff and re-
spondent, VS.. w. H. Stutsman, o. 2.
N. Anderson and w. H. Mann, as
commissioners of railroads Of the
state OF North Dakota, and the board
of railroad commissioners of the state
Of North Dakota, defendants and APP
pellants. ...-
/. Where prohibition proceedings
are brought to restrain the board of
railroad commissioners, created by
the statute of his state, from. acting
in alleged usurpatiOn of powers in
questioning the suficiency of bonds
given Dy the grain under Sec
ton 2247, r. c. 1905, for the protec-
ton of the patrons of such warehouses,
and from inquiring into the settle
ments made by the surety or bonding
company with the creditors of an in
solvent warehouse. and such bonds
have expired by lapse of time before
the appeal is heard, such appeal will
not be ignored as a moot question,
the matter being one of public inter
est and the real matter in controversy
being the authority and power of said
commission.
2. Under section 2247, r. c. 1906,
which requires operators of grain ele-
vatOrs to file with the board of rail-
road commissioners a bond running
to the state with good and sufficient
sureties to be approved by such com
missioners and conditioned for the
faithful performance of their duties
as public warehouse men, and under
section 2242,, r. c. 1905, an amended
by chapter 230 Of the laws of 1909,
and which, among other things, gives
to the board of railroad commissioners
the power Ito investigate all COM
plants of fraud or oppression in the
grain trade of this state and correct
the same such board may examine