Of dedication, see Dedication, 7, 9, 10; Evidence, 3.
By purchaser, see Sale, 2-10.
Secondary evidence as to contents of books of account, see
Evidence, 7-9.
By trustee in bankruptcy, see Bankruptcy, 4, 5.
Dismissal of, see Dismissal.
Limitation of actions or suits, see Limitation of Actions.
As to parties, see Parties.
1. Following Randall v. Johnstone, 25 N. D. 284, it is held that where three
separate deeds for three different tracts constituting parts of a certain
larger tract are executed to different grantees while the grantor is out of
possession, and the three grantees bring separate actions in the name of
the grantor as nominal plaintiff for their separate uses, such use plain-
tiffs are the real parties in interest; and such actions are separate and
distinct, and between different parties, and the decision of one suit is not
a bar to the bringing of the other. Schmidt v. Johnstone, 53.
AGENCY. See Principal and Agent.
AMENDMENT.
Of pleading, see Pleading, 2-4.
ANTICIPATORY BREACH.
Of executory contract of purchase and sale, see Sale, 2.
APPEAL AND ERROR.
From justices' judgment, see Justices of the Peace.
1. Where the service of a paper by one party has the effect of setting time
to run against the opposite party, the time which thus begins to run is
twice as long when the service is by mail (§ 7954, Compiled Laws), as
when made personally. More v. Western Grain Co. 369.
2. This rule is applicable to appeals. More v. Western Grain Co. 369.
3. An appeal to the supreme court, from an order of the district court, under
§ 7820, Comp. Laws 1913, must be taken within sixty days after notice
thereof, and can be taken before such order is filed with the clerk of the
district court. Lake Grocery Co. v. Chiostri, 616.
4. A second order denying a new trial made after expiration of the statutory
period allowed for appeal from an order denying a new trial cannot extend
or revive the lapsed period for appeal that had fully run against the
original order denying a new trial, and when that order had become final
and conclusive. Miller v. Thompson, 147.
5. From a judgment of the district court that said railway company con-
struct a crossing over their tracks near the village of Fingal, in Barnes
county, the company appeals: Held:-
Under the record there is no question open on this appeal concerning the
jurisdiction or authority of the State Board of Commissioners of Rail-
roads to order in the crossing at the place in question. Thereafter, on the
railway's appeal from said order the case was tried upon the merits anew
on testimony taken in district court. Nowhere in the record, prior to
appeal, was jurisdiction of the district court challenged. The parties could
confer jurisdiction of the subject-matter upon that court, and have done
so, without objection. And no question of jurisdiction arises upon the
record, the parties being held to the theory of trial as had below.
Minneapolis, St. P. & S. Ste. M. R. Co. v. Stutsman, 597.
6. Section 7657, Comp. Laws, 1913, authorizes the supreme court to settle a
statement of case only in cases wherein the trial judge refuses to settle it
in accordance with the facts. This section applies in cases where there
APPEAL AND ERROR-continued.
is a disagreement between the trial court and counsel as to the facts
concerning the trial, and may be invoked when the trial court refuses to
allow a truthful statement of what occurred at the trial; but it has no
application to a case wherein the trial court refuses to settle a statement
because it was not presented for settlement within the time prescribed by
law, and no good cause was shown for the delay. Blood v. Howard, 602.
7. On an appeal in cases triable de novo in the supreme court under § 7846
of the Compiled Laws of 1913, which requires that the appellant must
specify in the statement of the case either that he desires a retrial of the
entire case or of certain designated questions of fact, the statement in the
notice of appeal that appellant "demands a trial de novo of the action in
the supreme court" is not a sufficient compliance therewith. State Bank
v. Hileman, 417.
8. Upon a motion by respondent to strike from the files the statement of
the case, for failure to contain proper specifications, appellant made a
counter motion for an order remanding the record to enable him to make
application to have proper specifications supplied, held, under the showing,
that such counter motion should be granted upon the payment of certain
motion costs as terms. State Bank v. Hileman, 417.
9. Upon motion to strike appellant's brief for failure to conform to the rules
of this court, appellant, upon payment of terms, is granted leave to file a
new brief, it appearing that the omissions are the result of inadvertence
and that respondent will not be prejudiced by the granting of such leave.
State Bank v. Hileman, 417.
DISMISSAL OF APPEAL; REINSTATEMENT.
10. An appeal from a second order denying a motion for new trial, made after
expiration of the statutory period allowed for appeal from an order deny-
ing a new trial, is not taken from an appealable order, and is on motion
dismissed; but without prejudice to an earlier appeal from the judgment.
Miller v. Thompson, 147.
11. Where an appeal has been dismissed, and the remittitur transmitted to
and filed in the trial court, the appellate court has lost jurisdiction of the
case, and cannot recall the remittitur, or review its decision unless the
order was based on fraud or mistake of fact, or the remittitur was sent
down through inadvertence or mistake. Hilmen v. Nygaard, 419.
12. Upon a motion to reinstate an appeal, on the ground that the order of
dismissal was entered against the appellant through his mistake, inad-
vertence, surprise, or excusable neglect, appellant must show apparent
merit in the appeal. Hilmen v. Nygaard, 419.
APPEAL AND ERROR-continued.
See also supra, 7; infra, 37; Escrow, 9; Judgment, 1; Pleading, 4;
Taxation, 4, 6; Trusts, 1.
13. Findings of the trial court that the mortgage in question was fraudulently
issued and ultra vires, and that this fact was known to the Investors'
Syndicate before its execution have ample support in the evidence, and are
adopted upon trial de novo by this court. Investors' Syndicate v. North
American Coal & Min. Co. 259.
OBJECTIONS AND EXCEPTIONS; RAISING QUESTIONS IN LOWER COURT.
14. Where the defendant does not ask the court to eliminate questions which
are raised in the pleadings from the jury's consideration, he cannot com-
plain that an issue raised by such pleadings is improperly submitted to
the jury. Wyldes v. Patterson, 282.
15. Where appellant in a law case fails to challenge the correctness of the
lower court's ruling by any specification or assignment of error, his appeal
presents nothing to the supreme court for consideration. Massett v. Schaff-
ner, 579.
16. Following the well-settled rule it is held that, in the absence of a request
for more specific instructions, error cannot be predicated upon the giving
of instructions which state the law correctly as far as they go, but which
are not as full and specific as they should have been. Swords v. McDonell,
494.
17. A motion for new trial on the ground of newly discovered evidence is ad-
dressed largely to the sound, judicial discretion of the trial court, and the
appellate court will not interfere unless a manifest abuse of such discre-
tion is shown. McGregor v. Great Northern R. Co. 471.
18. A motion for a new trial on the ground of misconduct of a juror is addressed
largely to the sound judicial discretion of the trial court, and the appel-
late court will not interfere unless it is shown that such discretion has
been abused. State v. Cary, 67.
APPEAL AND ERROR-continued.
19. This rule also applies to a motion for a new trial on the ground of newly
discovered evidence. State v. Cary, 67.
20. In the instant case it is held that this court cannot say that the court
abused its discretion in denying a new trial. It is also held that the evi-
dence is sufficient to sustain the verdict. State v. Cary, 67.
21. The admission or rejection of photographs is largely within the discretion
of the trial court; and whether they are sufficiently verified or whether
they may be useful to the jury are preliminary matters, which are ad-
dressed to him. Wyldes v. Patterson, 282.
ERRORS WAIVED OR CURED BELOW.
22. Plaintiff sued upon a $110 note. Defendant answered, alleging usury. Plain-
tiff thereupon served amended complaint, alleging that said note should
be for $100, but through mutual mistake was made to read $110. Defend-
ant filed amended answer to said amended complaint, generally denying
the allegations thereof. No objection was made to the condition of the
pleadings at the time of the trial, and during the course thereof the trial
court informed the attorney for plaintiff that defendant could rely upon
both of the answers filed. At the close of all the testimony, plaintiff
moved for a directed verdict, for the reason that the defense of usury was
not properly pleaded. Trial court stated that he was not prepared to rule
at that time. Before the ruling, application was made by defendant to
file an amended answer, incorporating the plea of usury, if the same were
not already contained in his pleadings. This motion was allowed, and the
plaintiff was offered all the additional time he needed to prepare for trial
upon the new answer, which was refused by him, and a demurrer to the
amended complaint interposed. This was overruled, and the jury found
for the defendant. The court erred in holding that the original pleadings
were in effect at the trial, but the same is cured. Sheimo v. Norqual, 343.
23. The finding of jury on a disputed question of fact is binding upon the
appellate court, if there is any substantial competent evidence to sustain
such finding. State v. Cary, 67.
24. From a conviction of the crime of extortion, defendant appeals. It is held
that the evidence is sufficient to sustain the verdict. State v. Gilbert, 537.
WHAT ERRORS WARRANT REVERSAL.
25. The statutory rule that on appeals in criminal cases this court shall give
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