The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-03-27
DECISION FEATURED
I'm RECALL MOVEMENT
REVERSED BY court
High State Tribunal Disagress
With Hutchinson, Finds
for Farm Holder

A district court decision by Judge
w. H. Hutchinson, which figured In
movement started BY the Farmers
Holiday association to recall him, VA
reversed by the North Dakota 81.
preme court Monday.
Based on an Interpretation Of the
law providing for deposit In court BY
persons questioning the validity OF Z
tax deed, the case was decided By
Judge Hutchinson In favor Of Toilet
Halvorson, the plaintiff, who pur-
chased Z home from Rtchland coun-
ty At . tax sale. The district court
issued an eviction order against Mr.
and Mrs. q. p. Haugen, defendants
who had owned the home, when they
failed to make the prescribed deposit
after court action against them Va,
started by Halvorson.
Fighting against evictions, the Holt
day association began circulating Pc
titions In Richland county for . re.
call election against Hutchinson Will
the judges decision In the eviction
case one Of its grievances. SPONSOR
Of the recall, however, have been IN
active for many months.
Claim Discretion Abused
Mr.. and Mrs. Haugen appealet
from the district court decision, con-
tending the district courts refusal 4
allow them sufficient time In which
to raise funds to make . deposit VA
q gross abuse Of discretion" Tn
court issued the eviction order ate
two extensions Of time had beel
granted.
In arguments to the supreme court
counsel for the Haugens pointed y
Gov. william Langer's moratorium Il
foreclosures which was declared ate
the district court decision was givel
BY Hutchinson. The higher court
however, made no comment on tn
moratorium.
Judge Hutchinson. ruling on tn
statute requiring Q deposit when
tax deed is questioned. ordered TIL
answer Of the defendants stricken
and judgment awarded Halvorsos
when the defendants failed to max
the deposit.
The supreme court ruled this stat
ute does not authorize the court h
strike out the answer Of person VIII
fails to make q deposit which tn
court requires to be made. It merel,
provides that the action shall no
proceed until the deposit has beel
made"
While the defense contended tn
deposit law was unconstitutional, tn
courts did not rule on the validity o
the law.
BY the supreme courts action, tn
case Is remanded back for furthe
PROCEEDINGS comfortable to law"
1891 Statute Involved
The case involved an Interpretation
Of chapter 288 Of the 1891 laws pro
viding that where . tax deed Is ques
toned the action shall not proceet
until the party assailing such deed
shall make . deposit for the benefi
Of the person who had purchased tn
deed from the county.
1T Is one thing to order that q
action shall not proceed" the suprem
court decision said, "and quite anoth
or to order that IN answer be strick
en- and that the answering defendant
In effect, be denied m opportunity Z
present his defense. The statute
q harsh one. It provides . procedur
formerly wholly unknown In our jur
iSdiction.
1T fixes the consequences attend
ant upon the failure to make depost
and that = not the striking out Of
pleading, but . postponement Of tn
hearing Of the action until . deposi
II made. J.
I'VE are Ill agreed that the legia
lature did not intend that the fail
ure to make the deposit should hav
any result other than that prescribe
In the statute, namely. . postpone
ment Of the trial until Z deposit
made"
ut Is said that In . case like tn
one at bar the remedy provided BY tn
statute to compel the deposit woul
be ineffective. This, Of course. y
matter for legislative and not e
judicial consideration. The legisll
ture has prescribed both the rule {
action ana the method fer enforcin
Iit. Neither the rule nor the metho
|of enforcement may be extended ;
judicial Interpretation"
The court was unanimous n i
|opinion. which was written By Juda