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

II Supreme Court
FROM PIERCE COUNTY.
l.. D. Tubbs, Appellant,
VS..
Christ Sather, Respondent.
Where it appears that a conditional
order from which an appeal has been
taken. made after Judgment in plain.
tlffs favor in an action in claim and
delivery, directing the clerk 20 salts.
fy Of record such Judgment, which
was for the return and delivery by
defendant to plaintiff of a horse, up.
on proc that such horse had been re.
turned or rendered ~ the plaintiff by
the defendant, the appeal will be dis
missed when II is made to appear that
the conditions of such order could not
be complied With by reason of the
death OF such horse prior 10 the max.
ing Of he order. Proof of such fact
discioses that lle order could not al
feet in the least, the substantial
rights OF the plaintiff under his iudg.
ment, and the appeal therefore pre-
senis nothing but asmoot question.
(syilabus by the court)
Appeal from District Court. Pierce
County, e. B. Goss Special J.
Motion to dismiss appeal from an
order directing the clerk to satisfy a
Judgment of record.
Motion granted. Opinion OF. the
Court by Fisk, J.. Goss, j., being dis
qualified, did not participate.
Cowan & Adamson and Fl. S. Blood,
Devils Lake, n. D., for the motion.
Albert Z. Coger, Rugby. n. d., Con-
ira. L.3 n~
FROM HETTINGER COUNTY. !.
A. y. More and j.. L. More, a Co-Part-
nership doing business under the
firm name and style Of More Broth
ers, Appellants.
VS.. -
Western Grain Company, a Corpora
ton, Respondent.
In an action for the recovery of
money only, brought against the West
ern Grain Company, an order was
made on defendants motion substi-
tuting Albert Lane, as receiver, as the
defendant in lieu Of such Grain Com
pany, from which order of substitu-
ton plaintiffs appeal. After such sub
tiitution Lane procured a Judgment
dismissing the action as to him upon
the ground that the complaint fails to
state facts sufficient to constitute a
cause OF action and that permission to
sue him, as such receiver, had not
been granted. He now O to dis
miss plaintiffs appeal from such or.
der OF substitution upon the ground
that the entry of the judgment of dis
missal renders the question involved
on the appeal wholly moot.
Held, that the grounds of such mo.
ton r untenable.'f
(syIiabus by the court.)
Motion to dismiss an appeaI from
an order made by the Ditrict Court Of
Hettinger County
Motion denied. Opinion of the
Court b. Fisk. j.. ,a....
F.. c. Heffron, Dickinson, N. D., and
Emil Scow, Bowman, N. d., for the
Notion.
j. X. Murray, Mott, N. D., Contra.
FROM WARD COUNTY.
Meyers Lumber Company, u corpora
loh, ,Flalntln and Appellant,
VS..
Jarvis II. Tompkins, Defendant and
Respondent.
Two adjoining lot owners made sep
arate contracts for the erection O,
buildings upon their adjoining lots.
When erected, the two buildings were
SO connected as to appear as one,
The defendant was the owner of the
smaller building, Which comprised
one-third of the entire structure. The
contractor failed to pay for the ma
terial bought By him of the plaintiff,
who filed I lien against both lots
and the buildings thereon. This court
in the case Of Meyers Humber Com,
pany V. Trygstad, % N. D. 55S, helo
such lien void. Plaintiff thereafter
illed SEPARATE liens against the build.
ings. Held:
a That the filing Of the void lien
was not such an election Of remedies
as precludes the filing of the proper
liens thereafter.
C2) That the notices to the land
owners set forth in the opinion are
sufficient as between the parties to
this action. ,
81 The allegation that one-third
OF the material was furnished for the
defendants building, coupled with an
itemized statement of the materia:
furnished for both buildings, is sufi.
cient to support the lien.
G) Point four is covered by the
third paragraph Of the opinion.
Syllabus BY the Court.
Appeal from District Court Of WARD
County, X. e. Leighton, j.
Reversed. Opinion of the court by
Burke, j., Goss, j., disqualified.
Thompson & Wooledge, Minot, N.
D., Engcrud, Holt & Frame, Fargo,
N. D., Attorneys for Plaintiff and APP
pellant.
o.. lR. Sinkler of Minot, N. D.. 4Attor.
ney for Defendant and Respondent.
FROM cAss COUNTY.
Village of Page. Plaintiff and Re
spOnent,
Will Farmery, Defendant and Appel
liant.
1) The courts will take judicial
notice Of the fact of the incorporation
IT the villages Of the state, and, such
'"ing the case, no allegation or proof
of the fact is necessary upon a TRIAL.
~ Under Article 6 of Chapter 267
~ ~ r ,,. % AZ $50 q S.-x.--