Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-28
Supreme Court

VS..
J. T. Zimmerly, as Clerk of the Dist
riot Court of Sheridan County, and
S. L. Nuchols, as Presiding Judge
thereof. Respondents.
On an application for writ of GER
tiorari to review proceedings of the
district court of Sheridan County, and
an alleged excess Of jurisdiction of
said court concerning a proceeding
there pending for removal Of petition.
er as a county commissioner Of said
county, it is HELD:
1. The appearance by defendant
in said removal proceedings at the
time fixed in the notice OF hearing
therein, and the filing with the clerk
by the defendant in said proceedings
of written objections challenging the
sufficiency Of the accusations to con-
stitute grounds for removal under
the statute, Sec. 9646, r. G. 1905, all
made under a purported special ap'
pearance, is the equivalent OF gen.
eral appearance and the filing of de-.
murrer to said written accusations,
and thereby confers jurisdiction In
said proceedings even though no jur-
isdiction over the person existed pri'
or thereto:
2. Without determining whether
an order continuing said proceedings
and holding defendants to have waiv-
ed the right to trial by jury is void
able or void, the portion of the order
holding the right to trial by jury to
have been waived is contrary to the
fact and premature in that the time
has not yet. arrived when defendants
may be asked to enter plea to said
accusations for the reason that de-
murrer in substance is pending in
said proceedings and not ruled upon
or disposed of and at least such por.
ton Of the order should be vacated.
3. The time within which the tri-
al provided by Sec. 9646 should have
been had on the accusations in the
proceedings below having expired,
pending hearing herein, therefor, on
the states application, a thirty day
extension of the time within which to
try and determine the issues there
involved in said removal proceedings
is granted the same to be calculated
from the date of the fling of the re-
mittitur herein in the lower court.
4. No excuse of jurisdiction ap.
pearing the writ is denied with no
costs taxed.
(Syllabus by the court.)
On application for writ of certior'
ari an order to show cause was is
sued, on petitioners application, re-
turnable before this court, and on
hearing is Quashed and the writ de-
MED.
Opinion by Goss, J.
0. J. Jordal and Geo. Thorn Jr., Of
Denhoff, N. D., attorneys for petition
er.
Thos. D. Morrow, States Attorney
Of McClusky, N. D., and c. S. Buck OF
Jamestown N, D. attorneys for re-
spondents.
In the Supreme Court, State OK
North Dakota, April Term, 1912.
Charles A. Stotlar, ct al.
Plaintiff and Respondent.
VS..
The German Alliance Insurance Co.,
Defendant and Appellant.
l. The l0ca. egent of the defend.
ant insurance Company was fairly and
fully informed Of the plaintiffs title
to the property insured, and accepted
the premium and issued the policy
thereafter. HELD that the knowl-
edge Of the agent was the knowledge
of the company, and the company is
therefore estopped to set up, as de-
tense to a loss; facts of which they
had knowledge before the issuance
of the policy. Lessen v. ms. Co., 20
N. D. 316. 127 N. W.. 837, 80 L. r. A.
49,. S. $50 followed.
2. Evidence examined and found
that plaintiffs became the owners OF
the building insured, either upon a
parol contract or upon a written
contract of very similar terms, but
whether the title was obtained either
way was immaterial in this case
wherein it appears that the title was
in fact obtained either way and tho
company was fully informed of Its
nature before the Policy was issued.
(Syllabus by the court)
Appeal from the district court
Ramsey County, Cowan, J.
Affirmed.
E. R. Sinkler and J. A. Heder Of
Minot, n. D., for appellants.
P. J. McClory and w. M. Anderson,
of Devils Lake, for respondents.
Opinion of the court by Burke, J.