Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-03-30
Supreme Court

In the Supreme Court. State Of North
Dakota.
L, w. Enderlien, ct al,
Kari Kulaas. Appellant.
1. An appeal will not be dismissed on
| the ground that the title Of the action
In which it Is taken is imperfectly stat
ed when the body Of the notice contains
matter sufficiently identifying the judg-
ment from which the appeal is taken.
2. Following Burger vs.. Sinclair. APP
| pellant Is permitted to furnish an amend
/ ed or substituted undertaking on appeal
for the Original. which was imperfect
3. An order for judgment Is review
able on appeal from the judgment.
4. This action was tried In county
court having increased Jurisdiction. and
in special findings the jury found that
the defendant owed plaintiff 1856 81. and
| that a certain contract on which this
| action is brought had been mutually
abandoned by the parties thereto. The
court directed judgment notwithstand-
| ing the verdict. for the full amount sued
| upon. Held. hat the correctness OF
| this judgment depends upon the record
containing evidence to support the find
ing that the contract had been aban-
doned and cannot stand If evidence is
found in the record to support 1t.
Held. further. that the record contains
sufficient evidence on the question to
sustain the finding that the contract
,.,. ,,,,t{,,l,. pLp,yr,hI and tbpf
therefore. the granting of the motion
constituted error. .-.
5. In an action for damages claimed
to have been occasionCl by the breach
of Il contract, an admission OF testi-
mony tending to aid the jury in arriv-
ing at the Measure of such damages,
if any, does not constitute orror.
(Syllabus by the Court.)
Appeal from a judgment and order of
the pounty court having INCREASED, jur-
isdictlon. of Ward County, Davis, J.
AHeyersed. go
OnShion BY" spalding. c. j.
Palda. Aakcr & Greene, Minot, for
appellant. #'I7 &H"' "a 1921
F. 3. Lambert, Minot, for respond
ents.
State Of North Dakota. Respondent,
Ole Sund, -'. Appellant.
/. Appellant failed to transmit the
record on this appeal to this court.
Notice was served on him requiring him
to do so within twenty days. He failed
to have the record transmitted or OBJ
stract or brief filed or served: whereup-
on a motion was made to dismiss the
appeal. This court granted the mo-
tion unless defendant filed the record
here and filed and served abstract and
brief not later than March LIST. 1919.
Subsequent to March LIST another appIi-
alton was made for an extension of
time in which to do these things and
denied. Defendant is again before this
court asking an extension OF" time for
the purposes stated, On a brief review
of the circumstances stated in the opin-
ion, it is held that defendant Is not in
position to ask favors from this court.
particularly in view of the fact that
on the former applications the one point
on which he relied for a reversal was
considered and found to be without mer-
it. t.a. =
2. When a remittitur has gone down
from this court and has been filed in the
stances this court has lost jurisdiction
Of the case and cannot review its de-
cision. 49, #@#G, g".H
(Syllabus by the COurt.)
Application for an order granting fur
Their time in which to file the record and
serve and file abstract and brief.
Denied.
Opinion !. y Spalding. c. j.
George NJ. Price. Langdon. for the
motion.
G. Crimson. states attorney. Lang
don. and Alfred Zugcr. assistant attor-
ney general, contra.
The W. I. Rawlcigh Medical Company,
Respondent,
Lauritz Laursen, ct al, o
Appellants.
1. a justification upon an appeal
bond which fails to state that the sur
cies are worth 1.-THE sums therein men
toned over and above their debts and
liabilities, not by law exempt from ex-
ecutlon, in property within the state of
orth Dakota u d. Subjective. The appel.
liant, however. may, upon a proper
showing. and Under section 1924, Re-
vised Codes 1906. be allowed to either
amend the undertaking or to file a new
bond in the supreme court.
2. 1t is not in itself a sufficient
ground for the dismissal Of an appeal
that a appellant has failed to include
in his abstract all of the evidence and
exhibits necessary to q proper consider
alton of the case.
8. Under section 1913 Revised Codes
1905 Which provides that unless con-
tinued for cause, all civil cases ap-
lealed to the supreme court shall be
heard at the next succeeding term OF
court = = when the appeal is
taken sixty days before the first day
of the term and when appellant fails
to serve and file his abstract in time for
the next term, but no motion to ais
miss the appeal On that ground is made
at such term, the court may, Upon &
proper showing. at such subsequent
term, excuse such failure.
4. Such statute is not self-operating,
and, no motion having been made to
dismis the appeal at the first term, and
since, II such motion had beer made
the court might have granted a %contin-
uance, for for other reasons denied the