davidaulloa/AmericanStories huggingface dataset:
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14

: From Dickey County.
Farmers National Bank, a Corporation
Appellant
Geo. Ferguson, VIM. Ferguson, Allie
ID. Austin, +. +. Dunton and B. r.
Crabtree,
Respondents.
l. In an action on an undertaking
given by defendants in claim and de-
livery proceedings for the purpose of
rcgaining possession of the property
pursuant to the provisions of Section
1922, Revised Codes 1905, it is essen
tial to a recovery as against the sure
ties on such undertaking to both al
lege and prove either the due entry of
a judgment in the alternative form as
provided by Section 1918 Revised
Codes, or facts showing that return
of the property was impossible owing
to its irretrievable loss by destruction
or other cause, thus establishing the
fact that the suretics' substantial
rights were in no way prejudiced by
the failure to observe the above stat
ute.
J, 2. Even where it appears that for
some reason the property cannot be re-
delivered, and consequently judg-
ment in the alternative granting such
right of redelivery would confer up
on the defeated party and his sureties
on the undertaking but a mere empty
and valueless privilege, it is the prop
er, if not the only safe, practice to
conform with the code provisions
aforesaid in entering the judgment.
50. In an action against the sureties
on redelivery undertaking given in
claim and delivery proceedings, an al
legation alleging the rendition Of a
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14

CINE, had purchased from the mort
sagor who sold the mortgagcd prop
crty without written consent, does not
affect the title of such property in
the purchaser, who, as owner, could
authorize repairs thereto, and subject
the same to an artisans lien for re-
pairs SO authorized, such owner be-
ing, for such purposes, considered in
law as the agent of the mortgage.
(Syllabus by the Court.)
Appeal from judgment ofthc Dis
trict Court of Stutsman county; Cot
fey, J.
Affirmed. Opinion by Goss, J.
Lawrence 4 Murphy, of Fargo, n. D.,
attorneys for appellants.
r.. &. Mcfarland, of Jamestown, n.
d., attorneys for respondents, Boyle
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
SENIOR CLASS PLAY.

Friday evening at The Bismarck
Auditorium the senior Class CT the
Bismarck High School presents the
farcial comedy "The Private secre-
tary." Prices SOC, 35c and Csc. Seats
on sale at Finney's.-Adv.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14

u
district, plaintiffs motion was denict
and no appeal taken thercfrom. Sub
sequently, the cause having been plac
" ed upon the calendar for trial in tht
proper county of the newly created
district, plaintiff objected to the tria
J upon the ground that such action was
no longer pending, the cause of action
having been merged in a judgment, and
that more than one year had elapsed
since the date of service of the notice
of entry thereof, and that the order
aforesaid vacating such judgment and
granting a new trial, was void for lack
Of jurisdiction in the court granting;
it.
Held, that the attack on such order
was a mere collateral attack and It
was error to sustain such objection.
Held, further, that the order vacat-
ing the judgment and granting new
trial was not void but at the most
merely voidable when properly attack
ed, and the order refusing to vacatc
| the order which granted the new trial
is res adjudicata.
(SyllabuS by the Court.)
Appeal from District court. Billings
county; S. l.. Nichols, Special J.
From an order refusing to proceed
with the trial, defendant appeals.
Reversed. Opinion of the Court by
Fisk, J.
Purcell & Divct, Wahpcton, n. d.,
and J. A. Miller, Beach, n. d., for ap-
pcllant.
l.. 4. Simpson and NJ. l.. Mcbride,
Dickinson, n. d., for respondent.
From McIlcnry County.
Fred w. Vollmcr,
Plaintiff and Respondent,
Robert Stregge, .-..
Defendant and Appellant.
!. In an action to recover damages
for criminal conversation plaintiff and
his wife both testified to the fact of
their marriage and such testimony is
uncontradictcd.
Held, that such testimony was COM
potent and sufficient to establish the
marriage contract as alleged in the
complaint. ,...."
2. Appellant challenges the correct
ness of certain instructions to the jury,
but when such instructions are con-
sidcrcd in the light of the charge as
a whole. and especially in the light
of the fact that the sole issue submit
ted to the jury was that of the extent
of plaintiffs damages, they were nom
prejudicial to the defendant.
3. Defendant admitted upon the
witness stand that he repeatedly had
Illicit relations with plaintiffs wife as
alleged in the complaint, and his coun-
sci, in his argument to the jury, in
effect told them that the sole ques-
ton for their determination was that
of the amount Of damages which
should be awarded the plaintiff. In
The light of these admissions defend
ant will not be heard to urge in the
supreme court any grounds for revcr-
sal, not relating to the question of
damages.
4. Certain assignments of error are
oredicatcd upon the refusal of the
rial court to give certain requested
Instructions, but such rulings are held
for reasons stated in
he opinion.
.. Error cannot be successfully pre-
Heated upon rulings rufsig to give re-
luested instructions where the charge.
s given, substantially and accurately
overs the matter embraced in the in
tructions thus requested.
+. The damages awarded to the
Plaintiff by the jury were small con-
sidering the magnitude of the wrong
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
From Billings County.
Missouri Slope Land and Investment
Company, a Corporation,
Plaintiff and Respondent

Missouri Slope Land and Investment
Company, a Corporation,
Plaintiff and Respondent
J. d. Hastead, ar. s.
Defendant and Appellant.
l. An order granting new trial,
even though irregularly and. errone-
ously made, cannot be reviewed or held
for naught by another district Judge of
another judicial district where the ac-
ton was pending, especially upon a
mere collateral attack.
2. After the trial of an action the
judicial district, wherein the same
was tried, was divided and a new ju-
dicial' district created, and the county
in which such action was tried is en-
braccd within such new district The
court stcnographer's minutes Of the
testimony having been lost, and the
Judge of the new district having no
knowledge of the case, made an order
transferring such cause to the judge of
the old district who presided at the
trial. Thereafter an order was made
attempting to vacate the order trans
ferring such cause, and subsequently,
the judge to whom the same had been
transferred, on an ex parte application,
made an order vacating the Judgment
and granting new trial upon the
ground Of inability, owing to the loss
of the reporters notes of the testi-
mony, to settle statement of the case
so as to enable defendant to obtain
a trial dc novo in the supreme court.
Thereafter plaintiffs counsel secured
an order to show cause why such or
der, vacating the judgment and grant
ing new trial, should not be vacated.
Upon the hearing of such order to
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
RIVER FERRY RUNNING,

Observation-Disclosures ferry ct the n.
p. Fridge is now running day and
night. The roads are in first class
condition. Phone 1926 LADY.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14

Brothers.; Burt NJ. King. Of st. Paul
Mimi, Of counsel for said respondent.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
mere money judgment in the prior ac-
ton in which such undertaking was
given. and concluding merely with the
eaNOR AMlc VIEW Of
CATANlA

mere money judgment in the prior ac
ton in which such undertaking wa:
given, and concluding merely with thu
recital "it being shown to the salts.
faction of the court that a return OF
said property could not be had,' is in
sufficient to warrant a recovery.
4. The. evidence upon which it is
contended that the court was justified
in entering mere money judgment
instead of a Judgment in the altcrna-
tive, consists of al, affidavit Of one
F, stating that the property had been
sold at public auction and giving as
his mere conclusion that "a delivery
to this paintiff cannot now. be had and
that plaintiffs only remedy is for a
money judgment. y,
Held, wholly insufficient as against
the sureties, for reasons stated in the
opinion. ~. - ya
5. The case of Larson V. Hanson, 81
N. d. All, is cited and followed, but
certain expressions contained in the
opinion in that case are commented
upon and explained.
6. The judgment appealed from
while purporting to dismiss the ac-
ton on the merits and with prejudice,
merely amounts to a 1noh-suit for fail
urc of proper allegation and proof of
facts essential to plaintiffs bringing
of a new action.
The same is accordingly ordered to
be thus modified.
(Syllabus by the Court.) go
Appeal from District Court, Dickcy
county; Frank p. Allen, ].
From a judgment in defendants ia
vor, plaintiff appeals. s5.aae
Modified and affirmed. Opinion Of
the court by Fisk, J.
Engerud, Holt 4 Frame, Fargo, n.
d., and Webb & Brouillard, Ellen
dale, N. d., for appellant.
W. S. Lauder, Wahpeton, N. d., and
James NJ. Austin, Glendale, n. d., for
respondents.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14

conccdedly perpetratcd by defendant
upon plaintiffs marital rights. There
is no contention that such damages
were excessive. tor that the jury, in
assessing the same, was actuatcd by
passion or prejudice, and considcra-
ton of the entire record satisfies us
! that defendant Had an cmincntly fair
and impartial trial, free from errors
of prcjudicial character. In the
light of the facts it is held that the
defendant has no cause for complaint
upon any of the grounds urged in his
assignments. =.
(Sylabus by the Court).
Appeal from District Court, McHen-
ry county; A. G. Burr, J.
From a judgment in plaintiffs fa-
vor and from All. order denying a new
trial, defendant appeals.
Affirmed. Opinion of the court by
Fisk, J.
F. J. Funke, Anamoosc, and f. r.
Sinkler, Minot, ". D., for appellant.
Chrislanson 4 Weber, Towner, n.
d., for respondent.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
Piles Cured in 6 to ID Days

Your druggist will refund money if
PAZG OINTMENT fails to cure any
case of Itching, Blind, Bleeding or
Protruding Piles in to IA days. The
first application gives Ease & Rest. Soc.
Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-05-14
From Stutsman County.
Reeves & Company,
Plaintiff and Ann,

Reeves & Company,
Plaintiff and appellant
VS..
S. r. Russell, 4. L. Arbogast, Northern,
Pacific Railway Co., corporal ion
and J. J. Boyle and j. r. Boyle, in
dividually and as co-partnerS, DOING
business under the firm uamc and
style Of Boyle Brothers,
Defendants and Respondents.
Action for foreclosure of chatteI
mortgage Of record. Boyle Brothcrs
answer, asking affirmative relief for
foreclosure of their artisans lien for
materials, repairs and labor, PERFORM
ed upon the Elotgaged personal prop
crty under Il contract with the owner
of the mortsaged personally. The
mortgage was taken in 1906, has been
renewed and is a valid mortgage up
on the property. Boyle Brothers per-
formed the work in 1911, Immediate
ly filing a claim for artisans lien I'M
der Chapter 1863, Laws of 1907; and
also retained possession of the prop
erty under a claim, of lien by virtue
of such possession, under Section 6295,
Revised Codes 1908, in case Chapter
1863, Laws of 1907, be demonstrations
al, and claim their lien under Section
6295 to have priority over lien by
mortgage of record. Held:
l.. That an artisans lien is a COM
mon law lien. and where possession
was retained, as here, the statute being
but declaratory thereof and such a lien
at common law having priority over
mortgage liens an artisans lien I'M
der Section 6295, Revised Codes 1908,
where possession is retained, has pri-
GRITTY over existing mortgage liens,
and this independent of the provisions
of Chapter 1853. Laws Of 1907, in cx-
press terms granting such priority.
2. 1t therefore becomes unneccs-
sary to determine whether the 1907
statute is, or is not, unconsttution-
al, because, though the same may be
assumed to be unconstitutional, BOYLE
Brothers must recover under the prior
existing law, Section 6295, Revised
Codes 1908. while if the 1907 statute
be constitutional, it in express terms
defendants recovery.
3. This Court will decline to pass
upon the conslitutionality of a statute,
where the same is unnecessary to a de-
cision of the right of recovery.
4. No question of waiver of mort
gage rights is involved, because all
rights of plaintiff under it's mortgage
were subordinate to the rights of those
claiming under the artisans lien.
5. The fact that the owner, employ
ing Boyle Brothers to repair the en-
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
LARGE VOLUME Of
WATER IS STORED
BYCHIN0 COMPANY
Recent Rains Almost Fill
Large Reservoir-John
Keate Is Injured.

Hurley, N II, July 22.-Sufficient
/ water has been stored in the large
reservoir Of the Chino Copper company
4 since the recent rains 10 supply the
plant for a year, according to the sta tie
ment Of engineer Moore. More than
SbO00O,00O gallons Of water is now
stored in the reservoir which is rapidly
becoming filled The rainfall here has
ben unusually heavy during the past
10 days
John Keate, foreman of the Chino
Copper company's pumping station, had
a narrow escape from death several
days ago while working in the pumping
station at Cameron creek. A bolt Of
lightning struck the electrical appli-
ance in the building during a storm,
tearing It from the wall. Keate was
stunned by the shock and injured by
part of the falling debris.
J T. James Of PinOs Altos was a
visitor in the city Monday. Mr.. James
has just completed the retimbering and
Unwaterfng Of an old mine. He has
made several ore shipments to FL Paso
and stated that some of the ore ran
as high as 80 percent copper, contain
ing from so TO 20 percent silver per
ton.
Albert Muse, private secretary OF
W H Janney, was at FL Paso last
week.
". H. Janney, superintendent OF the
Chino Copper company's plant here, is
spending the month on the Pacific
coast
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
TO WORK MAIL AT
SUB-POSTOFFICE

East Fl Paso will have a little post
office all Of its own when the pro-
posed branch office is established in
the rsni51v growing suburb. Addi-
tions1 details Of the plan for estab-
fishing a branch postoffice in the east
ern suburb are now being worked out
at the postoffice-
The branch viii have a clerk in
-. -, assistant clerk, four car
r rie.7I md viii handle all branches OF
tbs p Owe mail service that IS
cared for at the downtown office. It
fs POSSIBLE that pouch mail will be
5,-,PPS,s5 fror the trains for this office
ana the mail will not be worked
fbrorSb the Ell Paso pOstoffice. The
Southwestern railroad main line is
near the postoffice. This viii save
-,,1cL tj-7a in the handling of the East
III Paso mail and viii give that part
Of the CITY more prompt delivery.
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
LOCAL FIRM SELLS
MATERIAL FOR BIC
SNELTERAT MIAMI
Seven Train Loans of Brick,
Fire Brick and Hollow
Tile in the Order.

There IS. perhaps. no better ilustra-
ton of the trenenduous growth Of FL
Paso and the southwest as both dis
tributing and manufacturing center
than is shown by an order which was
received by a local house from one Of
the largest mining companies in Ari-
Zons- This one order included all Of
the fire brick. building brick and hol-
low tile 10 be used in the construction
Of the International Smelling COM
pany's new smelter at Miami, Arizona
Not only is this order remarkable on
account OF its size but because OF the
fact that for the first time IN the his
only the distribution but the manu-
facture Of the material for the entire
order is handled in FL PasO's home ter
Titory. TIE building brick and tile are
made in the city Of FL Paso. while the
fire brick material is manufactured by
the Western Clay & Gypsum Products
company, at Ancho, New Mexico, for
whom the Rathbun-Mix company, Of
II Paso, are the exclusive distributors
can be learned from the fact that it
would take seven solid. double header
freight trains out Of Ell Paso to haul
she entire order at one time. This
figure is based on there being p cars
per train. each car containing 100000
pounds. Not only is this order impor-
tant in itself, but to the fact that this
order was placed by a large corpora
lon after severe tests Of all brands on
are FL Paso viii hold its position as
not only the distributing point, but the
point for material Of
this character
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
DAILY RECORD.
Brudinr Permits

Building EGEAAAAe=
To J. c HUFF. to build 1uHs@- ess, .os - :
and part Of 8, block "a. East Il Faso' es-
I unated value SzS00-
/ Southeast corner OF santa Fe and Ninth
! Tom Lea 10 p. Saldivar. lot anu pSEt 81 =
block 45. Campbell addition CONSIDERATION
0tR lsa and 81; July J. Iy54- DBttoB to Frank
/ w. Brown. lots u TO 10. inclusive. e 9sS5.
! 3 Bassett addition consioeie--ioH f'O''
south side Of Hastings. between Crockett
and Houston-D. Butcher to CnalIe1 % ~
lots 20, Il and %. block IS, Government
deed dated Nay 90 1914. the plVgstts -
conveyed 10 grantors consideraIlon 49,
West side OF Auges between SdLlLoLll- a ~ ~
NeFaoa-Isa0el conway 70 49,
Gandara, parts Of lots anu =, 80. -
North sac Of Mobile. between Particle and
Northumberland View Realty company 70
Frank B. Hadlock. lots II and Il 1locA 80
Grand View; consideration $685. July 70
Fl Paso county. Tezas-W. s Townsend to
". W. Collier, sections p, o, 80. -. % ploeA
"a, Texas and Pacific grantee secllols -
and 80, block IS. same grantee; section 70
and $lOi June Is lslz- by deco 49, = - -.
s, 1912, the same property Is conveyed 10
grantor; consideration $4,000.
Fl Paso Heights addiron-El Easo
Heights Investment company 70 3 r Lee
land, lots IS TO 80, block 106. e Paso
Heights; consideration SZ35; July IS 1914
south side Of Roosevelt. between Portlrio
Diaz and alley-3layfield Building and In
prOvemeut company TO A. c staples e u1-,
lots and and ptrt OF 4, block 10 Mundy
Heights; consideration S5.6Sl-bOi July 10
1S18- By deed OF same date the properly is
conveyed 70 grantori consideration S+ooy;
South side Of Bliss. between san Aarcial
and Rayner-Otis Turner TO j. E BischotI,
lots % and ~, block IS, East Fl Fasos COZ
sideration SO and other; April q 1872
Altura Park addiuOn-Mrs- w. Il Cnap-
man TO J. Z. BischOff, lots %, IS. 20 block
'B." no. g: lots 81. SIS and Sc. block
B" no 4; lots q and Is, block B. NO
u all in Altura Park consideration otneE
and S10s June %. 1914
South side OF Federal. between Alabama
and kentucky-Lina D. Collins 10 Mrs
Lydia l. Goebel, lots 20 and Il and part OF
Is. block "A, Highland Park consideration
$685. July 20. 1914
Southwest corner Of Myrtle and Virginia
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
PRAISES THIS REMEDY
FOR LING TROIJBLE

Many people are led to believe that lung
trouble is unconquerable- This is not the
case, as many have been restored to health
by Eckman's Alternative Investigate this:
Bowling Green, Ky, r. No. 4
'GentIsmen:-In 1908 had a severe
cough for six months. tried all the medi-
cines that my doctors recommended. but
no results came for the better I had night
sweatss and would cough and spit until I
got 50 weak 1 could hardly do anything
But. at last James Deering. OF Glasgow
Junction insisted that I try your medicine
In one week there was quite an improve
ment In my condition and after I had taken
several bottles / felt we'll as ever in nv
life 7 firmly believe Eckman's Alternative
viii relieve any case OF lung trouble II taken
before the last stage" abbreviated
(Affidavit)- A. C. BETTERSWORTH
Eckman's Alternative is most efficacious IN
bronchial catarrh and severe throat and
lung affections and upbuilding the system
Contains no harmful or habit-forrnfnE drugs
Accept no substitutes Sold BY leading
druggists Write Eckman Laboratory. Phil
adelphia, Pa. for booklet OF recoveries
Kelly & Pollard. Knoblauch Drug Co
Peoples Drug .-Advertisement.
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
MINES At BISBEE
ARE INCREASING
BIC ORE RESERVE
Calumet and Arizona Prop
critics Are Found to Be
Growing Richer.

Bisbee, Ariz, July 22.-WOrking
south into new territory from drifts
from tie 1900 and 1900 fooC levels OF
the Briggs shaft, the Calumet & Ari.
iona has encountered ore in the 10 70
/ claim that is showing constant i'm
prOVemeut- The work mas turned re-
Gently toward TiELowu and lie COM
pany has entered an ore zone watch is
considered 10 mold great promise.
The recent Iind OF sulphlde ore in
the Cole line north OF the oxides Is
considered one Of me finest IIlds in
Calumet * Arizona territory IN a long
time 1t is understood that The min
ers went into the waste during The
week, after having gone across the
ore Tor 10 feet
Pumps Handle Water.
The temporary pumps on the 1900
foot level OF the Junction shaft are
handling about 1000 gallons OF the
water IN the mine. most OF which leaks
through from the upper levels. Dia-
mond drilling for test purposes has
been commenced on the 1900 foot level
Of the Junction by way Of exploration
for ore.
The Calumet X Arizona smelte-
promises TO turn out this month about
Z, 400, 600 pounds Of copper, which is
about a normal rate Of production
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
NEW RAILROAD TO
BE CONSTRUCTED

Mesa, AriZ., July ga lumberman
from the district office Of the forest
service has Just returned from a three
months inspection trip OF timber lands
in the Apache indian reservation Tim
Der from the reservation will be cut
to supply the mines of this section.
railroad line will in all probability
be built TO tap the Apache and White
mountain reservation. The length Of
such a railroad would be between 70
and so miles and would connect with
the Arizona & New Mexico at Clifton.
Such a railroad would furnish trans
pOrtatiOn for thousands OF tourists to
one Of the most picturesque play
grounds in the world, filled with game
and the streams Astounding with fish.
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
GATHERING MINERALS
FOR SAN DIEGO SHOW

Albuquerque, N ", July 22.-Tne
comprehensive display Of the mineral
resources Of New Mexico, showing their
enormous extent and wide variety, will
be made in the New Mexico building
at the san Diego exposition in 1915.
under the direction Of Fayette A
Jones, president Of the state school Of
mines at SOcOrro- Prof. Jones expects
to devote practically all of his time
during the summer and until the open
ing Of the school in September to the
assembling Of these minerals Dr.
Jones already has begun the assem-
bling OF the exhibit and will have the
bulk Of it sent to Albuquerque, where
II will be displayed at the state fair in
October While the display for San
Diego will not enter into the compe-
ution, it viii serve TO make the mineral
display the most extensive ever brought
together in the state.
El Paso herald. (El Paso, Tex.) 1901-1931, 1914-07-22
RATTLESNAKES IN
SUBURBS OF CITY

Seeing snakes in MOrninSside
Heights is getting to be more than a
mental Illusion. Several Of the resi-
dents of that neighborhOod have come
upon rattlesnakes among the sand and
cactus Of the surrounding country.
July and August are the months in
which the rattlesnakes come out Of
their holes, to sun themselves on the
rocks and enjoy the warm weather,
but older residents in that part of the
city say the appearance of the snakes
so close to the houses is very IN
usual
Mrs. Victor Foster almost stepped
on a rattlesnake Tuesday morning
while crossing q vacant lot and MIR.
and Mrs Charles E Bryan have run
across several rattlers about the land
adjoining their new home