Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-02-12

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jury is instructed to return q verdict
against the plaintiff and for q dis
missal of the action, the Judgment IL
readjudicata, as to the question oi
ownership, In q subsequent suit
brought by the m0rtgag0r and
against such plaintiff for the unlaw.
full conversion OF the property Gov
cred by the mortgage In such prior
proceedings. s#
(2) Here "A made ami delivered IL
B notes secured by a chattel mort
gage, and G afterwards sought to
foreclose such mortgage and took
possession OF the property for such
purpose, and In S .ch proceedings a
judgment was rendered dismissing
the action, on the Ground that the
ownership OF the notes and mortgage
was not in g, an action for CONVEX.
sion can be brought against c for
such illegal seizure, even though no
tender Of payment has been made to
.B, and subsequent to the prior az
ton and, the unlawful seizure C has
obtained the possession and title to
said notes.
81 Where G seeks to foreclose a
cha:tel mortgage without having any
right or title to the notes which the
same secure or in and to the said
mortgage, and preliminary to such
foreclosure wrongfully ~replevies and
obtains possession Of such property,
the m%ortgagoI mar afterwards sue
him in conversion for such unlawful
seizure and is not barred therefrom
by the mere fact that in the original
replevin proceeding he merely pray.
ed for a dismissal of the action with
costs and did not ask for a return
of the said property or for the value
thereof
az 1t is no: an abuse Of discre.
ton for a trial court to permit the,
plaintiff to file an amended and sub;
stituted complaint changing the char
acter Of the plaintiffs from individ.'
uala to IA partnership where the
of the partnership and the
original plaintiffs are the same per
sons, and ever though no written no
tice ,of such amendment has been
given to the defendant, but the de-
fendent is present in court by himself
or his counsel and has an opportun-
to object to and to except to such
amendment and where tho allow:
Of such amendment no sugges
toin is made to the presiding judge
that the defendant has a counter
claim against the partnership which
he did not have against the partners
as individuals, or that his defense
is otherwise materially prejudiced.
l(Syllabus by the COURT
Appeal from the district court of
Eddy county, Coffey, J.
Action for conversion. Judgment
for plaintiffs. Defendant appeals
Affirmed. Opinion of court by
j.
Burke, j., being disqualified, did
not participate.
Maddux & Rinker, New Rockford,
n. D., attorneys for defendant and
appellant.
j. A. Manley, New Roc--.ord, N. D.
and Knauf & Knauf, jamestown, N.
D., attorneys for Respondents,
IL the Supreme Court. State Of
North Dakota.
Dakota Sash & Door co, Respondent,
vs. Helena w. Brinton, ct al, APP.
pellants. @ 4. .4a&
In mechanics lien foreclosure &C
ion, a party defendant may, under
GAS, r. c. 1905. by answer
>r cross-complaint assert and pro-
cure foreclosure of a lien upon the
premises in suit; and this independ-
INT of any relief sought against the
and even though such defend,
at. admits the claim Of the plaint.-
n its entirety. Sec. $3.50, II. G. 1900.
the requisites of counter
has no application to causes
# action voluntarily Joined or con-
'olidated under Sec. 6245, r. C. 1905,
procedure under mechanics
len foreclosures.
(Syllabus by the. court.)
From a Judgment OF the districts
.ourt of Eillings county. now Golden
Valley county, Crawford, J., entered
liter motion to strike and the subse-
luent o%yerruling of a demurrer Of the
'wner defendant, the owner and mort
,agee appeal.
Affirmed. Opinion Of the court by
loss, j.
R. M. Andrews, Of Beach. for appel
ants. *, ;s
stambaugh & Fowler, Of Fargo, for
WOMEN PLAY GOLF At PINE
HURST.
Pinehurst, N. c., Feb. 1.-THE
annual st. Valentines golf
ournamenc for women was stated
nder favorable conditions today at
he Pinehurst Country club. Play
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