The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-01-31

fdtu6 N0hIA 6&IlubE HIS bSSlAAAlOIly.
8. Held that the court properly SUBJ
mitted to the jury the question OF
negligence which remained an issue
Of fact and that the evidence is suf-
ficient TO sustain the verdict rendered.
(Syllabus by the court.)
Appeal from the district court of.
Morton county, Crawford. j..
Affirmed.
Opinion by Goss, J.
Ball, Watson, Young g. Lawrence,
and Il. Il. Conmy. attorneys for APP
pellant.
w. II. stutsman and j. e. Campbell,
attorneys for respondent.
Ole UgIand, plaintiff and respond
emit, VS., Charles L. Koib, ct al, defend
ants, and Charles l.. Kolb, alone, ap-
pelIant.
/. Plaintiff had acquired two quar-
ter sections Of land from the govern
ment, which land he contracted to sell
to n Kuchenbecker upon what is
known as a contract for deed. Kuch-
enbecker, assuming to act as owner of
the land, though without paying the
full purchase price and receiving him
self a deed therefor, made a similar
contract to sell the said land I'll Kolb
for some $3.50 more money than he
was paying Ugland. Kuchenbecker
paid about one-f1fth Of the purchase
price and defauIted. Rolb paid about
the same amount upon his contract.
After two years Upland brings this
action to quiet his title, proving that
he had served notice of cancellation
upon Kuchenbecker. Kolb defends the
action and shows that he had offered
to Upland all of the money, except
ing $3.50 which he wished to keep
back to clear the title, due down to
Kuchenbecker's contract. Ugland
showed that at the time of the offer
the contract between himself and
Kuchenbecker had been assigned to
one Brennan as security for a loan.
and has never been redeemed. He
also showed that the objections to
his title were frivolous. 1t also ap-
peared that Kuchenbecker had made a
deed of the premises to Kolb, but said
deed was made after the assignment
Of his contract to Brennan, and had
never been delivered to Kolb. but was
made at a time when Kolb expected to
borrow enough money upon the land
to pay Ugland in full. Held, that
there was no mutually Of contract
between Ugland and Kolb, and as
Kolb could not have been compelled to
specifically perform to Upland. neither
| should Ugland be compelled 10 per-
| form to Kolb. Also that the contract
| could not be specifically performed un-
til redeemed from Brennan. Kolb.
4 NzAwv4z- - .A1~AHk So 4hz S.A-n - -
land, the trial court properly quoted
the title as against him.
Brennan and Upland, having no ap-
peal, are also precluded by the judg-
ment.
Syllabus by the COURT.
Appeal from the district court Of
Ramsey county, Cowan, j.
Affirmed
Middaugh & Cuthbert, for appellant.
John ]. Sampson and c. J.. Samp-
son, for respondent.
opinion by Burke, J., Fisk, j., dis
sents.
Jane Bailey, respondent, VS.. Samuel
D. Bailey, appellant.
1. Under section 4071 of the civil
code providing that while an action
for divorce is pending, the court may.
in its discretion, require the husband
to pay as alimony any money neces-
sary to enable the wife to support her
self or her children or to prosecute
or defend the action" the court has
power to order the payment of any
reasonable sum for such purposes but
such allowances should be made only
- L. -kg~. - 49,. .-11a- II.
ing him a reasonable opportunity tc
resist the application therefor.
2. The object OF section 4071 is tt
enable the wife to properly present
her cause Of action or defense to the
court, and if she has ample means
Of her own to enable her to do thli
it would be an abuse of discretion Il
require the husband to make such al.
iowance.
3. Where the wife, who is plain,
tiff, is a resident of this state ant
the husband is a resident of Nebrask;
an order to show why defendan
should not furnish the plaintiff sui
money and attorneys fees, which or
der is made returnable two days afte
the service thereof On defendants 10
cal attorney in this state. Held, tina
a reasonable opportunity was not af
forded defendant to appear and re
sist such application and it was al
abuse Of discretion to deny defend
ants motion for a continuance Of tn
hearing under such order to shoy
cause.
4. The order Of the court ~requirin
defendant to pay to the plaintiff tn
sum of $3.50 suit money and 800 a
attorneys fees was n as tn
court has no power to require tn
payment of such sum to the attorney
Such allowances are for the benefit {
the wife to enable her to prescott
or defend the action and should b
= made payable to her.
(Syllabus by the COURT.
Appeal from district court, Ram
sey county, Goss, special ].
From an order awarding suit none
and attorneys fees to be paid to til
plaintiff, defendant appeals.
Reversed.
w. e. Can't and L. j.. Wehe, II
appellant,
p. r. McClory, for respondent.
Opinion by Fisk, J. Justice Cos
being disqualified, did not participat
w. H. Needham, plaintiff ar
respondent, VS.. III. s. Halvorson & O.
defendant and appellant
/. In an action or the contract
recover for the breach of warranty
a sale OF glandered horses, with know
. edge that such horses are to be mil