The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-01-31

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1. Under section 4071 of the civil
code providing hat while an action
for divorce is pending. the court may.
in its discretion, require the husband
to pay as alimony any money neecs-
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
upon due notice to the husband, CIV
ing him a reasonable opportunity to
resist the application therefor.
2. The object of section 4071 is
to enable h wife to properly present
her of action or defense to the
court, and if she has ample means
of her own to enable her to do this,
require the husband to make such al
loWance.
8. Where the wife. who is plaintiff.
is a resident Of his state and the hus-
band is a resident OF Nebraska an or
der to show cause why defendant
should not furnish the plaintiff suit
money and attorneys fees. which or
der is made returnable two days aft
err the service thereof on defendants
local attorney in this state, held, that
a reasonable opportunity was not at
forded defendant to appear and re-
sist such application and 1t was an
abuse of discretion to deny defendants
motion for a continuance Of the hear
ing under such order to show cause.
4. The order of the court requiring
defendant to pay to the plaintiff the
sum of $3.50 suit money and 800 as
attorneys fees was as the
court has no power to require the pay
ment of such sums to the attorney.
Such allowances are for the benefit
Of the wife to enable her to prosecute
or defend h action and should be
| made payable to her.
(Syllabus by the court.)
Appeal from district court, RAM
SO ycounty, Goss. special Judge.
From an order awarding suit mon.
ey and attorneys fees to be paid to
the plaintiff. defendant appeals.
Reversed.
Opinion by Fisk. j. Mr.. Justice
Goss being disqualified, did not par
ticipate.
w. II. Eeedham, plaintiff and re.
spondent, vs.. H. S. Halvorson & Co.
defendant and appellant.
1. In an action on the contract to
recover for the breach Of a warranty
in a sale Of glandered horses, with
knowledge that such horses are to be
mingled with others. damages may be
recovered both for the loss of the
horses originally sold INT purchased
and of others with which they have
mingled, and to which they have com.
m%unicated the disease. and also fol
the reasonable expense of caring fol
such animals. of burying the same
and OF fumigating and disinfectinl
the premises.
2. Similar damages ma also be
recovered In an action of tort which
is based upon the theory Of a false
INT fraudulent sale and warranty with
knowledge Of the existence Of thu
disease. and are deemed proximate.
.. sucn damages may include com
pensation for h hire of men and the
value of the use of the time Of the
farmer or purchaser in caring for ant
burying such horses and d%isinfectins
his premises. and the reasonable cos
Of medicines and drugs and veterin.
airy attendance. They will not, how.
ever. include damages for the loss o,
the use of teams which it is claimed
might otherwise have been used b,
animals. or for possible breaking ant
blowing which might possibly have
been done by such farmer II he hat
not been so employed in caring fol
his horses, nor for the loss of crop!
which might have been grown upor
land which he might have plowed ant
seeded IL not so occupied . Such dam,
ages are neither proximate so as to b.
recoverable in a tort action, nor cal
they be deemed to have been within
the contemplation of the parties a
the time of the making Of the con,
tract, so as to be recoverable in al
action for the breach Of the warran
ty.
(Syllabus by the court.)
Appeal from the district court o.
Barnes county, Burke. ].
Action for damages caused by tn.
sale Of %glandered horses.
Verdict and judgment for the plain,
tif: Defendant appeals.
Affirmed on condition.
Opinion by Bruce, j.. Mr.. Justice
Burke, being disqualified, did not par.
ticipate in the decision.
Oscar Swanson, plaintiff and re.
spondent. VS.. Schmidt-G ulack Elevator
and appellant.
1. Contract Of employment be.
tween defendant and a third part,
construed with the evidence Of per.
Torrance of the work covered there.
by. and held. not to constitute such
third party an Independent contractor
2. Evidence held sufficient to cd.
tablish relation Of master and servant
to exist as between defendant and
plaintiff.
3. Where defendants managing OF.
ficer assumed to direct tho method
and scheme Of construction of sup
ports to a scaffold or platform neces.
sarily to be used in the work.. and
forbade the . Of another kind Of
support about to be used by such
scaffold. s%upplanting thereby the
such respect he Ia bound to know
/: that the platform Is supported in Q