The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-10-27
Saturday Euening Letter
By Justice J. E. Robinson

| think it is over in Minnesota or
Wisconsin that Judges are not 100 per
cent efficient. They have not yet
learned our advanced ways Of doing
business There, after hearing case
argued for half Il day the judges for
get all about it and after the lapse
OF six months order reargument and
then fail to make a decision for sew
eral months. In that way they double
their own work and the work Of coun-
sci But in this state that is not per-
mitted. The judges are sworn to do
their duty faithfully and to observe
the constitution which provides for
Justice without denial or delay. Hence,
we make it a rule to decide every
case within two weeks after it is sub
mittcd, but we have still pending
quite a number of old cases which
were submitted before the rule took
effect.
This week we had before the court
an argument On Il big divorce suit
from MinOt. The case was argued at
great length some six months ago, but
the chief justice was then absent, and
as some Of the judges had no longer
a fresh memory of the case it was
thought well to have second argu-
ment in the nature Of refresher On
each side the counsel talked for two
hours; The principal contention is on
the division of property amounting to
$l3O,OOU. The parties started their
matrimonial partnership with moth
ing, but they had youth, health and
ing wealth. Soon he was able to
make long tours to gay Paris and to
the eastern world and like French
men,. he went for pleasure, not TAX
ing his spouse along. Katherine, she
remained at home, caring well for the
business and running money making
hotel. And as men commonly do, he
own name In time they grew apart,
forgot the amenities Of life and put
love out OF the door ard came to the
parting of the ways and the winding
up OF their partnership affairs. In
such cases the statute provides for a
fair and equitable division of the prop
crty, but the lawyers consumed much
time in contcldins that the property
should he arEOrliDnc:i TO each spouse
according to his or her virtue and
chastity do not much favor that
rule, because Think it would give the
poor men the worst of it. Indeed,
some men would get nothing at all,
and besides, it is a rule that has
never been applied to any regular
partnership business.
The lesson Of the case is that love is
an uncertain asset The wife must
learn to insist on her rights and on
proper treafneht% and TO thave her
share of the property in her own
name and under her own control.
This week in case from, Dickinson
there was pu, lished Z coar; syllabus:
AS Il general rule tie constitutions
ality of a statute cannot be first raised
on appeal in a civil action. 2. The
court will not pass on a constitutional
question only when such question is
properly brought before it and neces-
sarily involved
That is all wrong. 1t is always the
duty of the court at any stage Of the
case to pass on constitutional ques,
ton which is involved in the case
and when an action is based on any
statute, the validity of the statute is
always question & before the court
However, the syllabus or head-note is
in accordance with the general trend
Of court decisions because, as a rule
the judges have been either lazy, indO
lent or incompetent. They shirk work
and responsibility, evade their duty
and cast the blame on the attorneys
and make them the scapegOat The
law should not be made game of
skill and chance The rights of
sutton should in no way depend on
the skill Of his lawyer. Otherwise ii
cannot be truly said that the judges
are themselves just and competent.
The greater part of the dissenting
opinion which follows was written as
the leading opinion and was laid be
fore the judges Immediately after the
argument. Hence, they had no good
reason for failing to consider the
points.
Mccoy, ct al VS.. Davis, ct al.
Robinson, j., (Ii3senting) In Aug
ust, 1915, Robert O'COnnor owned q
quarter section of land which he con
veyed to the plaintiffs, taking a pur
chase money mortgage for $l,710, re
corded Sept. 8, 1915. The deed was
not recorded until Nov 5. AS the
mortgage was to the owner of the
title it was in the chain of title and
it was constructive notice to purchas
ers 1t showed clearly that OConnol
had transferred title and taken back
a mortgage. Subsequently a justices
court Judgment was docketed against
O'COnnor and the land was sold Or
execution. Then in January this ac
ton was commenced to set aside the
sale. If the action was prosecuted
with efficiency and in good faith the
record fails to show it, 1t does no,
show the value of the land or any con
trolling equities which should appeal
to the court, to prevent one man from
stealing the land of another 1t does
not show any evidence only stipula