Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-11-08
Supreme Court
st. Anthony & Dakota Elevator ca
Appellant,

st. Anthony & Dakota Elevator Co.,
Appellant,
F. Martineau, Respondent.
The respondent moves to dismiss
this appeal. The Court after trial
prepared findings and order for judg-
ment in July, 1912, which We're not
filed until January :, 1913. or after
the term in Office of trial judge had
expired. Judgment was entered there
on by the clerk. Defendant caused a
statement OF the case to be settled
and thereon moved for a new trial.
which motion was granted by order
of October IA, 1913. Plaintiff has ap-
pealed therefrcm. the record on ap-
peal reaching this court February II,
1914. Respondent, who was granted
A new trial by the order appealed,
nov moves to dismiss appellants ap.
peal. alleging that the findings and
order for judgment were filed too
late and are void. and that no trial
has been had and therefore the ap-
peal must involve but a o ques-
ton.
Held, The findings and order were
but yoidable under direct attack and
will not be held as void on this mo-
ton. The motion to dismiss the ap-
peal is accordingly denied.
Syllabus BY the Court.
Opinion by Goss. J..
William EatesOn of Rolla and Mid
daugh, Cuthbert, Smythe & Hunt Of
Devils Lake. Attorneys for the mo-
ton.
H. E. Plymat Of Rolla and Mercer.
Swan & Stinchfeld of Minneapolis,
Mimi, Attorneysijn opposition to the
motion.
FROM BARNES COUNTY.
James w. Hogg, Plaintiff and Re.
spondent.
E. Christensen, Defendant, and l.. S.
E. Richie. as Trustee. I%nteryenor,
Appellants.
The last day of the thirty day'peri-
cd for answer expired with Sunday.
and the answer was served the fol-
lowing day, but before its service,
plaintiffs attorney applied for default
Judgment, which was ordered the day
later and Immediately entered. The
answer served on Monday was re.
turned to defendants attorney as
served too late. Levy on execution
was made. Before sale thereon de-
PENDANT moved to vacate the judg-
ment as n w%rOngfully taken by de-
fault over answer served in time. Be.
fore said motion was heard defend
ants property was sold on execution
sale to third parties and said judg-
ment Of sk398.5O and costs was salts
fed in full. Plaintiff claims % that
the answer was not served in time
and (2) if served in time the Court
lost jurisdiction to grant relief by
motion. by the satisfaction of said
judgment and that to secure relief,
defendant must resort to an auction
in equity for that purpose.
Held, Following Styles v. Dickey,
% N. D. 515. that the answer was
| served in time. Sec. 1924 c. L. 1918
excludes Sunday the last day of the
thirty-day period from being counted
as a part of the thirty-day period for
answer and that the answer served
on Monday. the thirty-first day after
service of summons, was served with
in time and defendant was not in de-
fault of answer when judgment was
enormously entered as by default.
(2) That defendant not having been
in default was not prejudiced by the
execution sale and or his motion was
entitled to a vacation of the judg-
ment. notwithstanding its wrongful
satisfaction by execution sale. Both
the order denying motion to vacate
and judgment thus attacked will be
set aside and a trial granted.
Syllabus BY the Court.
From an order Of the District Court
Of Barnes Count. Coffey, j., denying
an application to vacate a Judgment
taken by default. both defendant and
i%ntervenor appeal Reversed.
Opinion of the Court by Goss J..
Herman Winterer and David S.
Richie. all of Valley City; and Todd
& Kerr of Minneapolis, Attorneys for
defendant and interyenor, appellants.
Page & Englert of Valley City, At
torneys for plaintiff and respondent.