The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-08-01

| Reversed.
Opinion of the court by Robinson, J.
Christianson and Grace, ~, concur
ring specially.
From Hettinger County.
A. Y. More and ]. L. More. a CO
partnership doing business under the
firm name and style of More Bros,
plaintiffs and appellants, VS.. A. L.
Lane, receiver of Charles Precise, and
A. l.. Lane, defendants and respond
ents. -
Syllabus: In an action to foreclose
on real property, the appointment OF
a receiver does not divest or affect
the lien of a chattel mortgage on the
crops. When a receiver takes and
sells crops subject to the lien of
an action by the lien Of holder to re-
cover the value of the crops to the
amount due on the lien.
Appeal from the district court of
Hettinger county; Hon. w. c. Craw-
ford, judge.
PLAINTIFFS appeal.
Opinion of the court by Robinson, J.
Christianson and Grace, u, concur
ring specially.
From County Court, Cass County.
Sam Johnson ct al, plaintiffs and
appellants, VS.. liver Johnson, defend
ant and respondent.
Syllabus: An action for a share in
the proceeds of rented land which is
not lie on behalf of several cotenants
against another cotenant who was in
the uninterrupted possession of the
land, and who rented 1t to third
party, when the possession of the
'cotenant sought to be held liable was
without any protest on the part OF
the plaintiffs, and there was no at
tempt by him in any way to Gust the
plaintiffs, and the plaintiffs at no time
prior to the demand for their share of
in the possession. Actions, however,
in the nature of assumpsit or for an
accounting will lie.
Action in trover for the proceeds
of property rented to a third person
" Appeal from the county court of
Cass county; A. G. Hanson, ].
Judgment for defendant. Plaintiffs
appeal.
Affirmed.
Opinion of the court by Bruce. Oh. J..
From Mercer County.
Frederick Huber, plaintiff and re-
spondent, VS.. George Zetszler, DEFEND
ant and appellant.
Syllabus:
l. Court, Instructions, Non-Direc-
ton, unless it amounts to mis-direc-
ton, of the low concerning any sub
ject matter which may come before
the court in the trial of case is not
reversible error. If the defendant
party to the case desires an instruc-
ton as to the law upon any particular
subject matter, 1t is the duty of the
party or attorney, If such instruction
Is desired, to prepare such instruction
and present it to the court with the
request that 1t be given. II this is not
done, no error can be predicated upon
the neglect or omission of the trial
court to give an instruction or ex-
PLANTATION of the law concerning such
subject matter, or portion thereof.
2. A suit for malicious prosecution,
where the suit was brought to recov-
er damages alleged to be in excess of
SIS, 900, and a verdict Is returned for
$3.50, and costs aggregating $1,000,
in ali $2,020.90, 1t is held that such
Judgment is not excessive ana there
indicate that such verdict was return
ed by reason of any passion or preJu-
dice of the jury.
Appeal from the judgment of the
district court of Mercer county; J. M
Hanley, judge.
Affirmed.
Opinion of the court by Grace, J.
Robinson, j., concurring specially.
From Wells County Court.
winston. Harper, Fisher Co. a cor
dppCIlduIt Vs. - AAS~L -
sheriff Of Kidder county, North Da-
kota, respondent.
Syllabus: This is an appeal from
an order of the county court OF Wells
county denying a motion to amerce or
fine the sheriff of Kidder county for
refusing to levy an execution for
$11.03 on real property, when the
Judgment was not docketed in his
county. The order is clearly right,
and it Is affirmed with costs, and the
An appeal from the county court of
Wells county; Hon. Fred Jansonious'
judge.
Afflrmed.
Opinion of the court by Robinson, j..
Grace, J., concurs in result only.
From Cass County.
Northern COMMERCIAL Co., plalhslI
and respondent, VS.. Ben Goldman, de-
PENDANT and appellant.
Judgment, Vacation. Discretion
Of Court, Abuse of. 1t is the general
rule upon application to vacate Juoe-
ment entered by default where there
is sufficient affldavit of merits, ana the
answer rendered discloses q merltorl-
Gus defense, and reasonable excuse
Is shown for the default, and no SUB
stantial prejudice is shown 10 nave
arisen from the delay. to open the De
fault judgment and permit th q SaS SS
In this case that the court abused It's
Tiiscretion in not vacating the Judg-
ment, the affidavit showing, ana Ihe
answer rendering, good defense upon
the merits, and sufnclent excuse 10
shown for the default.
3. Actions, Pleadings, Answer;
discharge in bankruptcy on a claim
which was provable against the pank-
rupt estate at the time OF the adJuol-
Gallon in bankruptcy is entitled to
S,Iii faith and credit and just as much
respect as any other judgment.
Aupeal from order denying deIend-
ants motion to vacate, judgment OF
the county court of Cass county; A. =.
Hanson, judge.
0ninion of the court by Grace, J:
Jflstice Robinson being dlsquaHned,
Judge ]. A. Coffey sitting in his steao
From BurIeigh county.
n Peterson, plaintiff and re-
spondent, VS.. Andrew Miller, deIend-
Sviabus: This action is based on
written contracts for the construction
Of house and Ra Ss e wrep sEe does
state facts sufficient to constitute
causa of action, and it is In no way
possible to understand t. - -
Aupeal from the district court %
Burleigh county; Hon. W 4. Suessle'
judge.
Affirmed. x,.r,,,s,,, i
From Ward County.
f-,etoya Tohe. plaintiff and appel :
,ant vs. Joseph Bartaschawich anu anu
Marv RarCaschawich. defendants ana
respondents. 80, sroro an
Syllabus: Upon an appear from ~ as al
ordsr vacating a judgment ana per
S,1ittinc the defendant to answer,
where the affldavits in support Of the the
,s,r,ttcn nresent a showing that the
summons and complaint were not
served on defendants ana tnae AZ
acttop until execution was lexied
upon their property and countsr-a ~.
davits were fled by the luog tatad