Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-01-25
Supreme Court

In the Supreme Court. State OF North
Dakota.
David Willard, Guardian ad Litem for
Alva Vernon Willard, an infant. Plain
tiff and Appellant, VS.. B.. l.. . MOhn.
Administrator of the Estate of Alfred
Thorson, Deceased, Defendant and Re-
spondent.> >@4
i. An action brought under Chapter
IS, Revised Codes 1905, in favor of an
infant, the death of whose mother has
been caused, by. thu wrongful act of the
defendant, should be brought in the
name of tho infant: by Its guardian I'D
!item. and not in the name Of the guar
dian himself An, action SO entitled does
not state "a cause Of action in favor OF
th%e.guardian and the objection is prop
erlX raised By demurrer. The defendant
is entitled, to have the action brought in
the name of the infant in order that an
adverse judgment may be pleaded as
res adjudicata I'M any subsequent pro-
ceedings. .a. -.
However, where. as in the case at bar,
the complaint does show that the action
was being brought for the benefit of the
infant N that the emitting of the ac-
ton resulted from an error Of the plead
err, the trial court should allow an amend
|'ment or the 'pleadlhgs SOFAS to show
! that the infant was the real plaintiff.
| See Perine vs.. A. O. U. w, as Mimi, - 80,
so n. w. 1922.
2. Chapter So, r. C. 1905, commonly
known as the Lord Campbell Act. is in
derogation Of the common law and ono
who seeks to recover Hereunder must
point to a plain provision of the statute
authorizing his cause of action. q Sec
ton 1000, r. c.. 1905, providing that the
action shall not abate upon the death Of
either party to the action does not au-
thorize the bringing Of an action of
wrongful death after the death OF tho
tort feasor In the case at bar the COM
| plant does not show whether the tort
feasor or his victim died first. If the
Legislature. desires to make the action for
wrongful death q claim against the es-
tate of the deceased tort feasor it must
do SO in plain language.
(Syllabus by the court.)
Appeal from the district court Of Will
liam county, Goss, j.
Opinion of the court by Burke, J. AZ
frmed.
William Maloney. Of Wheelock, for ap-
pellant. N
Van r. Brown, OF Ray. for respondent.
David n Lucia Willard. Plaintiffs and
Appellants. VS.. b. i. Mohn. Adminis-
traitor Of the Estate of Alfred lhorson,
Deceased, Respondent
/. The litigant who moves to dismiss
an appeal from the justice to the dis
tr3ok All ySnoo %hn. o,,n 49, 49,.
copy Of the undertaking served upon him
was incomplete. must make formal proof
of such fact by affidavit or other proof,
and present such proofs to the trial
court. In the case at bar, no such proof
was made at the time the trial court de-
MED the motion; to: dismiss, but some four
months later afidavits were filed in the
district court; tending to prove such
facts. Held, Ths: this court will not
consider such, atddavits. but will review
the action of the district court upon the
proofs that; were already before it..
=. The respondent at. the time Of the
hearing, upon the motion to dismiss, also
served notice that defendants should
take notice that the merits of the law
applicable to the specifications of error.
IA TIE uOIlCc .OI appeal
may be considered" Held, That this
was a notice that the merits Of the de-
murrer interposed in The justice court
would be considered, If the motion to
dismiss the appeal was overruled. and
the trial court rightfully tried the issue
OF. law, arising upon said demurrer.
3. At commonla law the action for tort
died with the tort feasor, and this rule
has not been changed by statute in this
state. Demurrer interposed in Justice
court. squarely raised this issue, and the
trial court correctly sustained! the same
without leave to amend.
i(syllabus by the cociurt)
Appeal from the district court 81 Wil-
liams county, Goss, j.
Opinion Of the court by Burke. ]. AT.
frmed.
William Maloney. Of wheelock, for ap.
pellant.
Van R. Brown. of Ray, for respondent.
Goss, j., being disqualifed,A took no
part in the decisions.
South Dakota Is without q highway
commission. Next week a bill "a to
be introduced providing for q commits.
sion, similar to the one proposed in
Senator Hnpfhna, ihil1 cantirs..ae -.