The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-05-06

court, a 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 avoid
the lien of such prior garnishment,
even though such punishment pro-
ceedings may nave been instituted
within four months of such adtudica-
ton in bankruptcy, and in spite Of the
provisions of section 67-f of the fed
eral bankruptcy act of 1898.
s. The federal statute referred to
only avoids liens upon property which
passes to the trustee in bankruptcy,
and over which the bankruptcy court
could n has assumed jurisdiction. By
setting aside the property as exempt,
such court will be held to have dis
claimed any intention of assuming or
of having ever assumed Jurisdiction
over IT, and 1t canno be said TO have
passed at any time to the trustee in
bankruptcy. Nor will the fact that
on account of such adjudication in
bankruptcy a personal judgment AN
not be rendered. against the defendant
in the district court, alter the case, or
preclude the foreclosure OF the lien, as
the Jurisdiction of the district court Is
in rem and not in personam.
(Syllabus by the court.)
Appeal, from the district court Of
Grand Forks county; Templeton, ].
Ga%rnishment proceedings in justice
court Judgment by default. Defend
ants appealed to the district court. and
claimed exemption. Judgment for
plaintiff. Defendants appeal.
Alarmed. ,--. ..... &. ,.,...- .
r. B. Feetham for respondent.
Skulason & Burtness for appellant.
Opinion by Bruce, j. b
Michael p. Slattery, appellant, vs.,
Hans G.. Rhud, respondent.
1. Action to recover damages TO
certain ice while stored in an ice house
alleged to have been caused by de-
PENDANT in carelessly and wrongfully
excavating on an adjacent lot and also
on plaintiffs lot on which such ice
house was situated and so near thereto
as to cause the building to collapse
and the ice to become exposed to the
air and sun. Plaintiff introduced evil
dence tending to establish the alleged
trespass on plaintiffs lot, as well as the
other facts pleaded in the complaint
In charging the jury the trial court told
them in substance that eve though
they should find that defendant In fact
wrongfully excavated on plaintiffs lot
causing the injury he would not be
liable il he exercised reasonable care
in SO doing. 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 dee
PENDANT on his lot and negligent ex-
~cavating on the adjacent lot 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 erron-
eous.
(gylIabus by the court.1
Appeal from district u Burleigh
county; winchester, J.
From an order denying plaintin Q
motion for a new trial he appeals.
Reversed and q new trial granted
Newton, pullman s. Young. for APP
pellant.
r.. III. Register, r.. NJ. Stevens and
Niles & KoffeI. for respondent.
opinion by Fisk, ..