The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-01-04
SUPREME Court
Decisions


4 ETgm nAAAMEA N0WmNys
Robert l. Barnett, plaintiff and re-
. spondent, VS.. Charles VIII, as sherifr
of Billings county, North Dakota, de-
PENDANT and appellant.
Syllabus:
Modification of, Jurisdiction. Where
a sheriff, the defendant, levied an
/ execution upon certain personal prop
erty and took ii into his possession,
and another, who claimed to be the
owner and entitled to possession OF
such property, brought an action of
1 claim and delivery against the sherin,
/ and under the writ took possession OF
the property, but failed and neglected
to prosecute the action with effect
for more than five years, and the
sheriff, the defendant, made motion
/ to dismiss such action for want OF
prosecution, and an order was made
/ by the court ordering such action dis
missed without ordering q return or
/ the property, or in the event return
could not be had, judgment for the
value thereof, and judgment OF dis
missal was entered upon such order,
order or judgment, the court at the
time of the entry of Judgment OF dis
missal of such action had lost juris-
diction of both the persons and the
subject matter, and had no authority
| to entertain a motion made more than
seven months after the entry of the
! Judgment of dismissal and made an
| order modifying such Judgment,
awarding the defendant the return
of such property, or judgment for
3. Where the court was without
| jurisdiction to make an order modify
ing a judgment, its order and 1udg-
ment entered thereon being void, the
court nevertheless has the Inherent
authority and power to entertain a
motion and enter its order setting
aside and vacating such void order
and judgment at any time as between
the parties to the action or others In
privity with them.
Appeal from an order of the district
court Of Billings county; w. G. Craw-
ford, Judge.
/ Affirmed.
Opinion Of the court by Grace. j.;
Robinson, j.. concurs in result; Chris
Hanson, J., dtssents.
From billings County.
Tillie Rozell, plaintiff and respond
| emit, VS.. Northern PACING Railway Co..
defendant and appellant.
i. In the case of a highway by
| prescription or sufferance the liability
/ OF the owner of the abutting land for
| distractions or other dangers to the
] travel thereon IL as a rule confined
merely to the beaten or Travelled
| track.
| y WmeFB the owner OF real estate
has exercised ordinary care IN the use
/ Of his property he is not liable for
/ damages incidentally resulting to a
| traveller on an abutting highway.
3. Where a railway company per-
mits a crossing of its tracks by q
/ highway 1t must use ordinary care to
make and keep the crossing safe for
4 travel and this even where the high
4 way has not been regularly and legal
/ ly described or appropriated. 1T IS not
i liable, however, tor accidents upon
/ such highway which are indirectly
4 occasioned by It's use Of It's premises
/ In a manner which lis not ordinarily
and usually calculated 70 occasion
/ danger.
4 Whether an article Is or is not
/ calculated to brighten horses rs q
question which Is TO be determined by
| the experiences, observations and i'm
4 tellect OF the courts and jury as APP
piled to all the facts OF the particular
case, and opinion evidence need not
/ be introduced thereon.
s. The courts Will take judicial no-
/ tice of the nature and appearance OF
nail kegs and that there is nothing In