The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-01-30
x X X X X X * X X * * X X x
: Supreme Court Decisions 4


The state of North Dakota ex rel,
Norman Nicholson and Thomas Nc
Creary, appellants, VS.. Kenneth Fergu-
son, II. S. Ballard and Wendelin link,
as the board of county commissioners
of Foster county. North Dakota, and
Mary Cain. as county superintendent
of schools for Foster county, North
Dakota, respondents.
In 1883 congressional township 146.
north of range 66, west in Foster
county. was organized into a common
school district. In 1900 the city of
Darlington was incorporated embrace
ing all of section 10 in said township.
In 1902 pursuant to a petition. notice,
etc. an election was held in such
school district for the purpose Of or
ganizing the same into a special school
district, which proposition carried by
practically Il unanimous vote. and ever
since the date of such election the in
hahitants of such township have rec
ognized such special school district
corporation and such corporation has
regularly elected its officers, levied
taxes, issued bonds, and expended
large sums for educational purposes.
In 1905 such congressional township,
with the exception of section '1a, was
organized as Il civil township. There
after and in September. 1907, the resi-
dent electors and tax payers of such
civil township p%etitioned the board of
county commissioners and the superin-
tendent OF schools to segregate the
territory embraced in such civil town
ship from the school district afore-
said. and to organize therein a distinct
school district. Such petition vas de-
MED and REALTORS seek by mandamus
to compel a compliance Herewith by
n officers aforesaid.
Held, that such special school dis
trio is at least a dc facto school COR
poration and its due organization will
not he inquired into in a mandamus
proceeding.
That the territory which REALTORS
seek tn have segregated and organized
embraced within such special section
$40 r.. G. 1905 is controlling. This
section provides: THAT the county
commissioners shall detach any part
of such adjacent territory which is at
a greater distance than three miles
from the central school in such special
district and attach to any adjacent
school or special district or districts
upon petition signed by three-fourths
of the legal voters of such adjacent
territory"
n REALTORS were therefore not en-
titled to the relief prayed for and the
district court properly quashed the
writ.
(Syllabus by the court.)
Appeal from district court, Foster
county; Coffey. J.
From a judgment quashing an alter
native writ of mandamus, plaintiffs an.
peal.
Affirmed.
Opinion by Fisk. j., Justice Burke
being disqualified did not participate.
Joseph Miller and Mariana Miller,
plaintiff and appellants, vs. the bank
of Harvey. defendant and respondents.
Although. generally speaking. a mo-
ton for Judgment non obstante vere-
dicto. n for a dismissal of the action
should not be "ranted unless the rec
ord shows not only that the verdict is
not sustained by the evidence. hut also
that there is no reasonable probability
that h defects in the proof or plead
ings can be remedied on a new trial.
the rule does not apply in a ease of
q total failure of proof on the one vital
issue in h case, which Is caused by
II plaintiff admitting. on his Cross
examination. the facts establishing the
defense and entirely admitting away
his case. and where the only effect OF
granting a new trial will he to give
the plaintiff a chance to change his
testimony upon that trial.
The collection Of another and dis
tinct claim at the time of extending Il
mortgage. and demand of the payment
or settlement Of such as a condition
subsequent to extending such mort
cage. does not constitute usury, even
though the collection liz brought about
by the demand of and receipt from the
debtor of another note. which is sc.
cured by the new mortgage which is
given as an extension Of the former
one. and though the original mortgage
debt which IS also secured by said
mortgage draws the highest rate Of
interest that may be legally. contract.
ed for.
(Syllabus by the court.)
Appeal from the district court of
Wells county. Goss. J. :
Action under the statute to recover
double the interest paid under an al
legged %usurious transaction. Verdict
for the plaintiffs. From a Judgment
notwithstanding such verdict. and in
favor of the defendant. plaintiffs APP
peal.
Affirmed.
Opinion by Bruce. J. Justice Goss
being disqualified did not participate