Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-09-13

VS.. Jourgen Olson, defendant and
respondent.
(Syllabus by the Court.)
% Until the issuance of a final
patent, or until the doing of all things
by the entryman upon government
land which are prerequisite thereto,
such entryman has no complete title
in the land, either legal or equitable
nor has his estate after his decease.
(2) Though the heirs of a deceas-
ed entryman who homestead or COM
mute land under the provisions of
sections 2291!, 1901, Fed. Stat. Ann.
have preferred rights as new entry
men Or homesteaders and in making
proof are allowed to credit the i'm
provements and period of residence
of their ancestor, such heirs take d.
rectly from the government by dona-
ton or purchase rather than by in
heritance.
(3) A mortgage which has been
executed by a deceased entryman
! who dies before making final or com
mutation proof or before he has done
the things prerequisite and necessary
thereto is not a lien on such real es-
tate and is not. assumed by his heirs
who enter upon and take said land
under the provisions of sections 2291,
2301, Fed. Stat. Ann. =.
Appeal from the district court Of
Ward county, Leighton, J. Action
10 quiet title. Judgment for defend
ant. Plaintiff appeals. .
Reversed. Opinion of the Court'by
Bruce, j. ....
Myers & Myers, of Grafton, North
Dakota, attorneys for plaintiff and
appellant.
Coyle & Herigstad, of Minot, North
Dakota, attorneys for defendant and
respondent.
From Sheridan County.
Henry &C. Westbrook & Ethel NJ
Westbrook, plaintiffs and respond
ents, VS.. Thomas A. Rice, defend
ant and appellant.
(1) The qu(s1ion of vacating a,
Judgment entered through inadvert-
ence or neglect of counsel is ordi-
narily largely within the discretion
Of the trial court.
(2) When an application to vacate
such judgment is not heard by the
Judge who tried the case and ordered
judgment, but by another Judge who
knows nothing of the facts and cir
cumstances not disclosed by the mo.
ton papers, and such papers are all
before this Court, the rule announce
ed in paragraph 1 has but little force.
CO The Court reviewing an order
made on a motion to- vacate a judg-
ment on the ground of excusable neg
lect or in~adventence will determine
whether, in the interests of justice
and right and under a liberal con-
struction of the statute, a defense
upon the merits should be permitted,
and if so found, the neglect Of coun-
sci will be excused when otherwise
it would not be-.
"a A lack Of attention to the pro-
gress Of the cause, or failure to at
tend the trial, which is excused or
justified by the peculiar circum-
stances of the case, constitutes x
cusable neglect, and among the facts
sometimes constituting eXcuSable
neglect is the we'll founded belief
that the cast would not be- reached
for trial as quickly as it was in fact
reached.
(5) The facts and circumstances
surrounding entry of Judgment in this
case are examined in the opinion,
and it is held that they show excus-
able neglect on the part of counsel
for the defendant,
Appeal from an order Of the Dis
trict Court of Sheridan county de-
nying defendants application to va
cate a judgment. Hon. w. H. Win
chester, J.
Reversed. Opinion of the Court by
spalding, G. ].
J.. E. Williams, Of Turtle Lake, N.
d., and +. r.. McCurdy, of Bismarck,
N. D., for appellant.
Frank I. Temple, Of McClusky, ~.
D., for respondent.