The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1927-02-19

! CARELESS OF weather or not, in liquor
cases, the federal officer who OBJ
! tanned the evidence was without a
warrant, the state supreme court has
held in the case of Tom Lacy, alp
pealed from the Ward county district
court.
Lacy. who was held OF: liquor
charge, appealed to the supreme
court, contending that the federal
agent who found him with some al
cohol in front Of his home did not
have search warrant or warrant
for his arrest. The lower court was
sustained.
Among other recent supreme court
decisions was that Of Minnie Barb
knecht against the Grca- Northern
Railroad company, also appealed
from Ward county. The woman, con-
tending that a porter employed by
the railroad had used insulting lang
uage, was given q verdict of $4,000.
The railroad appealed. TIE lower
court was upheld with the exception
that the woman must accept $500
damages instead of $4,000, or start
new suit.
Other decisions were:
famous Brothers against J. F. TIA
cy, appealed by the plaintiff from
Adams county relating to crop mort
cages. In affirming the lower court
it was held that the title Of grow
ing crops is vested in the MORTGAGE
at the expiration of the period of
redemption from a foreclosure sale.
George Payscno against the Pad
gett company, ct al, and the Northern
Trust company. appealed from
Benson county by Payseno, who
brought suit to recover money claim
cd due him for hire of horses used
by the Padgett company in road
work in Wells county. The North
crn Trust company was surety on
two bonds covering the project. The
case was dismissed in the lower
court, which was reversed, and the
matter sent back for new trial. The
supreme court held that one furnish
ing horses for hire which are used
for highway work under contract
performs service within the con-
ditions of a bond protecting the per-
sons in the contract.
G. l.. Hecgard ct al against w. E.
kopka, ct al, appealed from Dunn
county by the plaintiff. The lower
court was upheld. The case involved
actions to forcclosc three mortgages
against hOpka.
Patterson Land company against
the Merchants bank of Napoleon, APP
pealed from Logan county by the
land company, concerning certain
foreclosures on land The lower
court was affirmed, the supreme
court ruling that no civil laws are
retroactive unless they are so de-
clarcd.
Charles l.. Rouse against Rudolph
Zimmerman and Ralf Reite, appealed
from Divide county by Rouse. The
case, concerning mortgage FORE
closure, was reversed and the plain
tiff given judgment.
Millers and Traders State bank of
Minneapolis against the National
Fire Insurance company Of Hartford,
Conn. appealed from Ward county
by the insurance company. The low
er court was affirmed in an appeal
from an order denying an applica-
ton to settle a statement of the case
after the expiration Of the time limit.
From Dunn County
&. l.. Heegaard and James d.
Brown, Trustees, and First
Loan and Securities Company,
corporation,
Plaintiffs and Appellants.
Defendants.
Peter f. Nordahl,
Defendant and Respondent.
SYLLABUS:
!. Plaintiffs loaned money to the
defendant Kopka. They took as Sc
curity a third mortgage on his real
estate with the understanding that
the first and second mortgages there
on should be discharged either from
the proceeds of the loan or by Kopka
from other sources. Plaintiffs paid
the first mortgage debt and charged
the payment against Kopka on ac-
count of the loan. The loan was in
sufficient to pay the second mortgage
indebtedness and Kopka failed to pay
it from other sources. Plaintiffs
brought this action to foreclose the
first mortgage, claiming as assignees
or subrogees. Held, for reasons stat
ed in the opinion, that the plaintiffs
paid and discharged the first mort
page debt and were not assignees
thereof.
2. The doctrine Of subrogation is
purely equitable. It was conceived
Of desire to attain substantial JUS
tice. 1t proceeds upon the theory
that he who invokes it has rightfully
discharged a debt at the instance
and for the benefit Of the debtor and
may be substituted in the place of the
creditor who was thus paid. But tho
doctrine is always subject to the
provision that it will not be applied
where he who claims its benefit was
q volunteer, q stranger, or an inter-
mcddlcr, or where its application will
result in an injustice to another.
Held, for reasons stated in the opin-
ion, that the plaintiffs are not en-
titled to the right Of subrogation to
the first mortgage debt as against
the defendant. the second mortcagec.
Appeal from the district court of
Dunn County, Hon. fhos. H. Pugh,
Judge.
AFFIRMED.
Opinion of the court by Nuessle,
Judge.
Sullivan, Hanley & Sullivan, Of
Mandan, Attorneys for Plaintiffs and
Appellants.
T. F. Murtha, of Dickinson, and H
L. Malloy, OF. Halliday, Attorneys for
Defendant and Respondent.
From Ward County
Minnie Barbknccht.
Plaintiff and Respondent.
VS..
Great Northern Railway Com
pany, corporation,
Defendant and Appellant.
SYLLABUS:
1. Where a complaint sets forth
two or more causes Of action, even
though intermingled, the case should
not be dismissed because of failure
to substantiate one Of the causes Of
action, if there be sufficient proof to
substantiate the other cause; provid-
ed there are sufficient allegations to
establish such other cause even
though the allegations relating to the
] first and which distinguish it from