The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1928-01-09
Decisions Of
Supreme Court
From Ward County

From ward CourSy Il
J. X. LaPorte,
Plaintiff and Appsllan,
vs..
J. L. Van Buskirk,
/ Defendant and Respondent
Syllabus:
l. In an action for damages 70,
the conversion Of certain horsej
where the defendant justified hi
refusal to turn them over to thu
plaintiff owner when demanded on
the ground that he held them under
q claim Of lien under the estray
statute, Section 1857, C. L. 1916, 81
seq, the record is examined and
held, for reasons stated in the opin.
ion, that the evidence il sufficient
to sustain the jury's verdict for the
defendant.
2. Certain, instructions of which
the plaintiff complains are examined
and held, for reasons stated in the
opinion, that the same were not
erroneous.
3. Where the record fails to show
affirmatively a request that special
questions be submitted to the jury,
an assignment Of error predicated
on q refusal to submit such questions
will not be considered.
4. Where after the expiration Of
the twenty day period provided for
by Section 7481, C.. L. 1918, within
which defendant may amend his
answer as q matter Of right, the
defendant served All amended
answer upon the plaintiffs attorney
who admitted service thereon with.
out objection, and where upon trial
Of the case the only plesdings filed
were the complaint, the amended
answer, and the reply to the original
answer, and no objection was made
by the plaintiff to the trial of the
issues as made by the pleadings
filed, and the case was so tried, it
is too late after judgment Is entered
to complain that the amended answer
was served otter time and without
leave of court.
5. Where q cause is tried on the
issues as made by the pleadings filed
without objection on the part Of the
plaintiff, it is too late after judg-
ment is entered to complain on the
ground that a counterclaim set up
in the answer is not proper.
s. The estray statute, Section
1861, c. L. 1913, ct seq, is intended
to provide a speedy convenient
method for determining the owner
ship Of an estray that may be taken
up, and for ascertaining the amount
Of the charges Of the person taking
up such estray and claiming q lien
thereon, and must be strictly com.
piled with. But when the owner of
an estray that has been taken up pur-
suant to the statute has notice and
appears and demands the animal so
taken, the purpose Of the statute
with respect to notice is satisfied
and further statutory steps in that
behalf need not be taken.
z. The estray statute contem.
plates that one taking up estrays
and claiming a lien thereon under
the statute for his damages and
costs, must look altogether to the
estrays and his lien upon them
for the satisfaction Of such charges,
and if upon a sale thereof on fore.
closure Of the lien the proceeds Of
the sale are not sufficient to satisfy
such charges, he is not entitled to
a deficiency judgment against the
owner.
Appeal from the District court of |
Ward county, Hon. John C. Lowe,
Judge. From a judgment for the
ccfendant the plaintiff appeals.
Modified and affirmed with
Opinion of the court by Nuesslc, ].
L. J. Palda, Jr., c. E. Brace, and
Robert w. Palda, all of Minot, at.
torneys for appellant.
F. 3. Lambert, Of Minot, attorney
For respondent.