The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1929-03-12

ciation exists for the benefit Of tn
public and no profit inpres to tn
members sS
2. That North v.st Agricultural
Live Stock and Fair Association, or.
CANNED under the provisions Of chap.
ter AT of the Session Laws OF 1928
Is not . public corporation nor Is Il
immune from suit In tort.
3. Where demurrer to the com.
plant ID based solely on the ground
that this defendant T. an arm or
agency Of the government, and there.
fore public corporation. 1t is nroper
70 override such demurrer.
(0yllabus by the court>
Appeal from the district court Of
Ward county, Hon. Geo. H. Moell-
ring, J.
Affirmed. opi:aion Of the court by
Burr, J.
MCGEE Is Ooss, slnkler and nrekke
OF Minot, N. o.. attorneys for plain,
tilt and respondent. Halvor L. HAL
vorson Of Minct. N. D., attorney for
defendant and appellant.
L. r. Baird. Is receiver Of the Mercer
County State Bank. Manhaven,
North Dakota. plaintiff and re.
spondcnt, vs.. John Unterseher Jr.
and Gust 6chlender, defendants:
Gust echlender. appellant.
!. Upon an appeal from an order
granting q new trial. when the mo-
ton Is made upon several grounds.
the question Is not whether the trial
Judge was warranted In granting It
upon angle ground, but Ia rather
whether upon the whole record and
upon any Of the grounds urged. it
should have been granted. Tho pre-
sumption Is that the order was prop
crly granted and the burden is upon
the appellant to slow that mono OF
the grounds urged in the motion was
sufficient. Davis v. jacobson, Is N.
D. 40. l0l N. w. Sll.
Z An order granting q motion for
new trial on the ground of the insult
ftciency OF the evidence to sustain tho
verdict, Of newly discovered evidence.
or of accident or surprise, is one
which is within the so,-',d discretion
OF the trial court and will not be dis
turbed unless 1t appears there was an
abuse Of that discretion.
8. The record In the instant case
examined, and held. for reasons state !
In the opinion, that 1t does not ap-
pear that there was an abuse Of dis
erection on the part Of the trial court
IN granting plaintiffs motion for a
new trial.
tSyllabus by the court)
Appeal from the district court Of
Mercer county. Hon. H. L. Berry, |
judge. Action on promissory note.
From an order granting tt plain
tiff's motion for new trial, C,fend-
ant appeals.
Affirmed
Opinion of the court by Nuessle, J.
Hyland d Foster OF Bismarck for |
appellant. Zuger e. Tillotson Of Bis
marck for respondent.
John p. Grady, plaintiff and respond
ent, VS.. j. o. Hansel, defendant and |
appellant; Western Lumber and
Grain Company. q corporation, gar
nishce and appellant.
l. The voluntary payment of a
Judgment by the Judgment debtor
valves the right of appeal therefrom,
but where the payment is made UNI
der coercion or duress there is no
waiver.
2. One who moves to dismiss an
appeal on the ground that the judg-
ment from which the appeal was
taken has been paid has thu burden
Of showing that the payment was
voluntary. Held. for reasons stated
In the opinion. that it does not APP
pear in the instant case that the
Judgment from which the appeal was
taken was voluntarily paid.
(Syllabus by the court)
Appeal from the district court of
Hettinger county, Hon. H. L. Berry,
Judge.
Reversed. Opinion Of the court
~ Nuessle, j. /.
Jacobson g. Murray Of ~. f. -