Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-05-06
From Cavalier County,

Plaintiffs and Appellants, VS.. r. T..
Burke, Defendant, and O. L. Thomp-
son, Receiver and Respondent
Syllabus: Upon hearing Of the &C
counting of the receiver Of a partner
ship certain objections were taken
and overrulcl. On appeal it is
Held: -,
ND That interest should have been
allowed upon three items of S675,
$4Ch and s2,l15 of his trust funds
used by the receiver, or under his
direction in his private. transactions
fer the period during which the same
was so used and lille the receiver
va: within this state, he having dur
ing the receivership remover there
from.
(2) That upon the removal of the
receiver from the state, the members
of the partnership should have taken
steps to require an accounting from
the receiver. AS they did not do So,
and the receiver having left the funds
within the state, interest for the bal
ance of the time as against the re.
ceiver should not be allowed.
CD The interest allowed against
the receiver on the above items az
gregates $4S5. The judgment of the
district court is ordered modified and
interest to that amount allowed
plaintiffs. All other items were prop
erly disallowed Plaintiffs will recov.
err the costs.
Appeal from an order and judgment
Of the District Court of Cavalier
lid
Modified and Affirmed. Opinion of
the Court by Goss, J.
Crimson & Johnson, of Langdon,
and Joseph Cleary. of Williston, At
torneys for Plaintiffs and Appellants.
Geo. NJ. Price, of Langdon, Attor-
ney for Thompson, Receiver.
Steven Allen, Plaintiff and Respond.
ent, vs.. r. R. Cruden. Frank C. Davies,
H. Peoples, Peter Prader and James
G. Daily, Defendants and Appellants.
Syllabus: Appeal from an order
overruling demurrer to complaint and
from the judgment thereafter render
ed The grounds of the demurrer
+-ken are Cd improper joinder of
causes of action, and (2) insufficiency
of facts pleaded to constitute a cause
of action.
Held:
ID That the complaint is not vul.
nerable to demurrer upon either
ground
(2) Stark County v. Mischief IN.
d. 1856 n w. 931, applied and fol-
lowed as to the first ground of de-
murrer. ....
(3) Held that the complaint dis
closes the conversion to have been
the joint acts of the defendants, Crud'
en- and Davies, and the action will lie
against both jointly.
ca Appellants are in no position
to question the sutficiency of the proof
upon the alleged variance between
the complaint and the proof, they
having defaulted in appearance at
the trial of the issue of damages.
standing upon their demurrer, and
not participating in the trial. They
have therefore in the trial court raised
no error of law on the proof of dam
ages and there is no error of law to
review touching the same upon this
appeal.
From judgment of the District
Court of Foster County, Coffey, j., de.
PENDANTS appeal. .......-. .,....-.
Affirmed. Opinion of the Court by
Goss, J. Bruce ]. dissents, holding
to an improper joinder of parties de.
PENDANT. Burke, ]. dissents asserting
that the complaint failed to state a
cause of action as against Cruden.
w. O.. Lowden, of McHenry, and S.
E. Ellsworth, Of Jamestown, Attor-
news for Plaintiff and Respondent.
Geo. H. Stillman and Edward p.
Kelly, of Darlington. Attorneys for
Defendants and Appellants.
FROM GRlGGs COUNTY.