Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-02-09

COuIlS IOllVCNt -
Opinion Of the court by Burke. j. At
firlned.
Ball. Watson, Young & Lawrence and
POLLOCK L. Pollock for defendant and APP
pellant.
Pierce, Tcnneson e. Cuplcr for plaintiff
and respondent. + '@..r ''''"
In the Supreme Court, October, 1912,
Term. 4. .a.r o.,
c. p. Gctcllell, Plaintiff and Respond
cnt, VS.. Great Northern Railway Com
pany, Defendant and Appellant.
l.. The fact that the appellant serves
notice upon respondent that nc will ADAM
don an appeal Is a sufficient ground for
an application to this court to have such
appeal dismissed. but until such dismissal
is ordered by this court the appeal ,rc-
mains effective and will be considered up
on its merits. naam III. es In
2. Where the summons and complaint
have been served upon the station agent
Of q railway company and 4 judgment
by default duly entered therein. such
Judgment is valid. II the railway com
pany wishes to have said judgment re-
OlCIlCu VA III 6Luullu klIl kHC NISAo
agent neglected to forward the papers to
the head office Of tho company. it must
make application under Section 6SSf. r.
L. 1906. and make and file a good and
sufficient affidavit Of merits.
8. An affidavit by the defendants at
tOrney that he has been furnished with
the records Of the claim department of
the railway, and that after examining
said records he has advised the railway
company that tits not liable for the lam
ages asked in the complaint, is not a SUI
ficient affidavit Of merits. Said affidavit
does not show that the claim department
truthfully stated all the facts Of the case
to said attorney. Tho affidavit Of the
attorney does not state that the COM
pany has a good defense Oh the merits,
is merely to the effect that the at
torney has advised the company to that
effect. 1ea Naa's ...ar II
'(Syllabus by the court.)
Appeal from the district court of Cav
alier county, Cowan, ].
Opinion of the court by Burke, j. AZ
tirmed. aEH a'-@ i7&s. ~" 'E
Murphy & Duggan for appellant.
W. a. Mcintyre for respondent.
In the Supreme Court, State Of North
Dakota, October Term, 1912.
w. J. Price, Plaintiff and Appellant, VS..
City Of Fargo, ct al, Defendants and
Respondents.
!. In the absence Of charter or. statu-
tory requirement, municipal contracts
need not be let under competitive bid
ding. In such cases the corporate au-
are only required to, act in good
faith and to the best interests Of the
municipality. go 4. -.
2. Where bids. arc requested, but there
Is no law requiring competitive bidding,
nor that the contract be let to the low
ebt bidder, such contract need not be let
to tho lowest bidder, and where 1t Is
awarded to a higher bidder, q taxpayer
cannot have the contract set aside where
there Is no proof of fraud
81. Article 10. Cl,apter So. Laws of 1905
ARTICLE Is, Chapter 80. Political Code OF
ling and the prior estimate Of probable
cost in the casc Of certain municipal con-
tracts, does not apply 40 municipal con-
tracts Tor the erection OF filtration plants
and similar. buildings. e1 lse
(SyilabuS by the Court.)
Appeal from the district court Of Cass
Pollock. j.
Action to enJoiil the city Of Fargo AMI
tile city officials Of said city from car
rying out q contract for the erection Of
water filtration plant for said city, or
The, ground q the Illegally OF said con
tract. Writ denied. ssgsI
Affirmed. I,
S~tambaugll and Fowler for appellant.
Bal. Watson. Young & Lawrence, En-.
erson II. Smith, city attorney, and "
R. Lowell, for respondents.
Opinion by Bruce, j.
Thomas II. WEIGH. Respondent, VS.. Fargo
g Moorilead Street Railway Company,
Appellant. .4s "a
4. Where there is = substantial conflict
n the evidence. usgliSence and contribu
tory negligence are ultimate questions
4 fact for the Jury. and not Of law for
the court. Where, therefore, a special