The Bismarck tribune., 1929-02-25


tlc plaintiff. who comedies to til:
other defendant right to cross
examine such witness. the calling ane
elimination of the witness is mo-
error
2. The right Of a party to call ar
adverse party as a witness does moi
depend upon section 1870 Of the Com.
piled Laws of 1918: such statute mere.
ly indicates the practice upon exam.
ination and provides against the con.
sequence Of sponsorship by the party
calling the witness.
3. Where defendant denies the
existence Of a contract under which
compensation is claimed at a def.
mite rate, an admission of liability
at the contract rate is admissible a.
evidence Of the contractual relation
4. In an action to recover commits.
sion under an express contract. where
the plaintiff claimed the contract tt
have been made between him and one
defendant acting as agent for the
other defendant, and where such
other defendant denied that any such
contract was authorized by him, the
evidence Is examined and held suf-
ftctent to warrant the submission ol
an issue of ratification.
(5yllabus by the court)
Appeal from the district court OF
Ward county. Hon. George H
Moellring, judge.
Affirmed.
Opinion Of the court by Birdzell. J.
L. j. Palda Jr.. c. E. Brace and Rob-
ert w. Palda, Of Minot, attorneys for
appellant. r. ]. Funkc of Minot, at
torney for respondent
T. Moen, plaintiff and appellant VS.
Ida Melin, dcfe:::da and respond
ent.
/. Section 1897. c. L. 1918. proyid.
Ing for the issuance of an attachment
does not, except in cases where the
eighth ground thereof Is relied upon
require that the affidavit of attach
ment upon which the warrant issues
shall contain as an essential any
statement that the defendant has
real or personal within the
state subject to levy.
2. Under the provisions of section
1887, G. L. 1913, an attachment may
issue In tort action for damages on
the ground that the defendant is not
q resident Of this state.
(Syllabus by the court.)
ANVAA1 HvAv>a AAn <lSr< o-...l -
Traill county, Hon. A. T. Cole, judge.
From an order vacating an attach
ment the plaintiff appeals.
Reversed.
Opinion of the court by Nuessle, J..
. !. A. Acker of Hillsboro, attorney
Tor plaintiff and appellant. j. E.
Hendrickson of Fargo. attorney for
defendant and respondent.
L. J. Wehe, Plaintiff and Respond
ent.
G. w. Snyder, Defendant.
Burleigh County, North Dakota.
Garnishee and Appellant.
l. Where garnishee, against the
protest Of the, plaintiff. attempts to
file an amended disclosure after the
expiration OF the time fixed by the
statute for the service Of such dis
closure and makes no application to
the court for leave to amend and file,
and no order IS made permitting the
amendment. such proposed disclosure
Is not q part of the record and will
not be considered by this court on
appeal.
. (Syllabus by the court.)
Appeal from the District Court of
Burleieh County, Hon. John G. Lowe.
Judge.
Affirmed.
Opinion Of the curt by Burr, J.
L. J. Wehe, Of Bismarck, N. Dak..
attorney for plaintiff and respondent.
F. E. McCurdy. OF Bismarck, N.
OAK. attorney fcr garnishee and ap-
pellant.
The State of North Dakota.
Plaintiff and Respondent
Adolph Hszer and Rudolph Hazcr,
Defendants and Appellants
l. The defendants were convicted
of the crime of grand larceny. They
that the evidence Is not
sufficient to sustain the, verdict and
Judgment. The record is examined
md it is Held, that the evidence is
sufficient to sustain the verdict.-
2. The question as to whether a
aew trial shall be, granted is one
which lies largely within the discre-
Ion Of the trial. Judge. This discre-
ion should always Be exercised in
he interests Of justice. The pre-.
sumption Is that II was properly
lxercissd. Held. in the instant ease,
hat Il does not appear thpt there
Vas an abuse Of discretion on the
part Of the trial Judge in denying
he defendants motion for ! new
rial.
9. While It II reversible error to
'efuse. on request, proper instruc-
ions on the prsumption Of inno-
:ence, in the absence of request
therefor dafendants cannot- complain
& On omission % 70 instruct.
Thes conduct of tho trial. the
property Of the examination Of wit
nesees, and the order In which the
lyidanee Il olferod asp matters
1hfch mutt - lit laF9qly "a tke
.ound diserstion - ths trial court.
8e6 sfef reasons. sisted in the opin-
i'm. that IN the instant case there