Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1922-07-13
Supreme Court Decision.
From Caas County.

l&NEt F1Um N&S NU00ty tE.
J. B. Boyd, plaintiff and respond
ent. VS.. G. W.yLemmon, ct al, defend
ants and appellants.
syllabus: In an action for an ac-
counting tried in May, 1911. the
court, according to the clerks min
utes, found that there vas a balance
due the plaintiff and ordered a judg-
ment in HIS favor. directing the plain
tins counsel to- prepare findings in
harmony with the statement Of the
account as presented to him by the
court. Except as the minutes of the
courts decision appears, entered by
n clerk In his minutes, there was no
written decision and no findings of
fact, conclusions of law and order for
Judgment filed with the clerk. In
July, 1921, after an ex parte hear
tried the case directed the entry Of a
Judgment nunc pro unc as Of .Octo-
Der, 1911. Thereafter defendants
moved to vacate the judgment and
asked 1eave to file an amended an
swer setting Up, among other de-
lenses. the statute OF limitations, q
discharge in bankruptcy and laches.
1t is held:
(1) The clerks minutes do not
constitute a written decision filed with
the clerk as required by Section 1888,
C. L. 1918.
= (2) The motion to vacate the
judgment in the instant case invokes
the exercise Of discretion by the trial
court, and. inasfnuch as the proposed
and sets forth defenses which are
prima facie good, it is held that the
discretion was not properly exercised.
(3) Where a motion to vacate q
judgment is made upon grounds
which appeal to the discretion Of the
court, raising questions not predi-
Gated solely upon errors of law oc-
curing anterior to the judgment, an
order denying the motion to vacate is
appealable to this court under sub
division 2 of section 7841. c. L. 1913.
Appeal from the District Court of
Cass county, Hon. A. T. Cole, j..
Motion to dismiss denied and order
reversed.
Opinion of the court by Birdzell,
Oh. J..
Bronson, J., concurs in result.
Grace, j.. specially concurring.
John G.. Pfeffer, Fargo, attorney for
defendants and appellants.
Engerud, Divet, Holt & Frame,
Fargo, and G. Crimson. Langdon. at
torneys for plaintiff and respondent.
From Ward County.
Harrison School District No. 2, a
SCiioOl corporation, ct al, plaln01S-
appellants, VS.. City of Minot. N. d., a
municipal corporation, ct al, defend
ants-respondents.
Syllabus:
!. Under the laws of this state a
special school district can be organ
lied only from a plated or incor.
porated city, town Or village, or from
such city. town or village and terri
tory contiguous thereto.
2. Where an incorporated city is
organized into a special school dis
trict all the territory within the city
must be included within the special
school district.
8. Where a special school district
is composed of an Incorporated city
alone, and the city limits are extend
ed by the annexation of continuous
territory to the city the special school
district is ipso- facto enlarged so as
to include the territory annexed to
the city.
From a Judgment of the district
court of Ward county, Leighton, j.,
plaintiffs appeal.
Affirmed.
Opinion of the court by Christian
son, J.
Robinson. j., concurs in the re-
suit.
Grace. j.. specially cohcurring.
Dudley L. Nash of Minot. N. D., for
appellants. b.
Palda & Aaker of Minot, N. D., for
respondents.