Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-05-03

/ Everyone is invited to be present
to listen to his address. There Will
be no admission charged for the lee
ture, but a small collection will be
taken during the evening to defray
the speakers expenses. 49,
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: SUPREME COURT -
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In the Supreme Court, State of North
Dakota. October, 1912, Term.
Michael P. 1Slattery, Appellant.
vs..
Hans C. Rhud, Respondent.
l. Action to recover damages to
certain ice while stored in an, ice
house alleged to have been caused
by defendant in carelessly and wrong
fully excavating on an adjacent lot
and also on plaintiffs lot on which
such ice house as situated and So
near thereto as to cause the building
to collapse and the ice to become ex-
posed to the air and sun. Plaintiff
introduced evidence tending to estab-
lish the alleged trespass on plaintih's
lot, as we'll as the other facts pleaded
in the complaint In charging the
jury the trial court told them in sub
stance that even though they should
find that defendant in fact wrongfully
excavated on plaintiffs lot causing the
injury he would not be liable II he
exercised reasonable care in so do
ing. Held prejudicial error.
2. A wrongful trespasser is liable
for all the detriment proximately caus.
ed by such trespass whether he acted
in good faith and with reasonable
care or not.
3. 1t was proper for plaintiff to al
lege and prove both a trespass by de-
PENDANT on his lot and negligent ex-
cavating on the adjacent lots as the
proximate causes Of the resultant in
jury.
4. Certain instructions to the jury
upon the question of the measure OF
damages, examined, and held enron.
eous. o,
CSyllabus b the Court.)
Appeal from district court, Burleigh
countp; Winchester, J..
From an order denying plaintiffs
motion for new trial he appeals.
Reversed and q new trial granted.
Newton, Dullam & Young, for ap'
pellant a..
F. H. Register, R. n Stevens and
Niles & Koffel, for espondent.
Opinion by Fisk, J.
In the Supreme Court, State Of North
Dakota, October, 1911, Term.
Samuel Burcell, Plaintiff and respond
ent. =,
"A. Goldstein, defendant and respond
ent, and The National Union Fire
Insurance Co., ct al, Garnishees
and appellants
l. A claim for exemptions in a garn
ishment proceeding in a Justice court
must, In order to serve as a defense
and to protect such exemptions, have
been preceded by the filing with such
Justice of a schedule Of the debtors
personal property. as prescribed by
Sec. S405, r. C. 1905, as amended by,
Chap 1871, Laws of 1909.
Q. Sec. 7119, r. c. 1905, does not
apply to garnishment proceedings
brought in Justice court. and exemp-
tons cannot be claimed or secured by
filing a schedule with the constable
under such section Of the statute.
y 3. Where q schedule is not first
filed with the Justice within the time
and in the manner prescribed by Sec
S405, r. c., 1905, as amended by Chap.
131, Laws of 1909, and Judgment by
default has been rendered against the
defendant in the Justices court, the
rr'perty garnis led ray nor after.
wards be carried as exempt in the dis
trict court on an appeal thereto.
4. Where money is garnished in an
action in a Justice court and q claim
for exemption is disallowed in such
court, = subsequent adjudication In
bankruptcy in the federal courts in
which such property is claimed and
set aside to the debtor as and for his
exemptions will not release or void
the lien of such prior garnishment,
even though such garnishment pro.
ceedings may have been instituted
within four months of such adjudica-
ton In bankruptcy, and in spite of
the provisions of Section 67-f of the
Federal Bankruptcy act Of 1898.
5. The Federal statute referred to
only avoids liens upon property which
passes to the trustee in bankruptcy,
and over which the bankruptcy court
could and has assumed Jurisdiction.
BY setting aside the property as e.
empt. such court will be held to have
disclaimed any intention Of assum-
ing or Of having ever assumed juris-
diction over It, and It cannot be said
to have passed at any time to the
trustee in bankruptcy. Nor will the
fact that on account Of such adjudi-
cation in Bankruptcy personal judg-
ment cannot be rendered against the
defendant in the district court, alter.
the case, or preclude the foreclosure
Of the lien, as the jurisdiction Of the
diefricf .c0ll1sf IA in ram md ao& In nor.