Bismarck daily tribune., 1915-11-20
SUPREME COURT
FROM MORTON COUNTY.

Hs." FROM MOHI VN NOONI I.
Clarence J. Wilbur, Plaintiff and Ap.
pellant """
John l.. johnson and Neil w. Giilles,
Defendants and Respondents.
Syllabus: Equitable action to CON.
pei a reconveyance Of land and for
consequential damages At the close
of the trial, upon motion, the court
dismissed the two causes Of action.
Plaintiff Immediately asked for rein
statement and that the trial proceed
and that the two parties he joined,
which the court had in the rulings on
tle motions to dismiss held to be nee
essary parties. This request was
granted, conditioned upon terms, the
allowance Of which was over plain
tiff's objection and protests and which
terms he failed to pay after he had
procured one extension of time In
which to make payment. Later, on
motion noticed for hearing, the ac-
ton was dismissed over plaintiffs
written objections challenging the
propriety of all previous rulings.
(D Under the facts, more fully
stated in the opinion, the persons or
dered brought in as additional parties,
while proper parties, were not neces'
sary parties to the action.
(2) That the action should not
have been dismissed because Of their
non-rejoiAder as parties to the action.
(3) That said persons having ap-
peared in court and testified in plain
tfff's behalf and by their affidavits de-
MED any interest in the subject mat
ter of the action and requested ludg-
ment to be entered in plaintiffs favor
if he was otherwise entitled to 1t, had
undertaken to control to that extent
tae plaintiffs case and would BE
found by the judgment. go
az That as to one Of said parties,
the wife of plaintiff, the necessity
for whose rejoinder as party to the
action was only to bar her right OF
dover Of lands in controversy situat-
ed in a foreign state, a court Of equity
could obviate such necessity under
the plaintiffs offer to prove that s,e
would join with him in a deed to said
lands, by an interlocutory decree con.
ditioning his recovery upon convey
ance by her of her dover interest in
said lands. As full relief in equity
could have been granted, she was not
a necessary party.
(5) Where full relief could thus be
afforded tae right to raise the ques.
ton of non-rejoinder Of parties had
been waived by failure to raise the
same by demurrer or answer and 1t
was error to dismiss the action upon
a motion at the close of the case.
The court should have proceeded with
the trial and made it's findings and
conclusions.
co Plaintiff has not waived his
right to challenge the propriety OF the
order for continuance because he has
not asked for the order made over
his protests.
"a Although ne attempted to raise
the money to pay the $75, terms i'm.
posed as condition precedent upon
his further proceeding and was unable
to make such payment, and in his en-
deavor to comply with said order re-
auested and obtained a thirty days ex-
tension of time to raise said amount
for said purpose, plaintiff has not
waived his right to question the i'm
position of said terms.
ia(8) Under said order for terms all
benefits and advantages accrued to
plaintiffs adversary and plaintiff was
conferring benefits instead of receiv-
ing them and his Intellectual attempt
to comply with the order was of no
substantial benefit to him or loss to
the adversary. Hence, he does not
lose his right to review on appeal
the order for terms.
(9) To estop party on appeal
from chailen ging an order his acqui-
essence therein must have been un-
qualified and the benefits received by
him as basis for estoppel must have
been substantial.
t(1O) AS vacation Of the orderi