The Bismarck Tribune Newspaper, August 19, 1929, Page 7

| | | | DECISIONS OF STATE SUPREME COURT First Citizens Bank, @ banking cor- poration, Plaintiff and Appellant, vs. Security State Bank, Wildrose, North Dakota, a corporation, et al, Defendants, Theodore M. Lee and Clara Lee, Defendants and Re- spondents. 1, In an equity case triable anew in this court the findings of the trial court upon controverted questions of tact are entitled to appreciable weight, especially where based upon the testi- ed of witnesses appearing before ‘im, 2. In the instant case the evidence is examined and held sufficient to support the findings of the trial court that the mortgage, to foreclose which the action was brought, was dis- charged. (Syllabus by the court.) Appeal from the Distirct court of Williams county, Hon. George Moeillring, judge. Affirmed. Opinion of the court by Birdzell, E. J. Melilraith of Crosby. attor- ney for appellant. E. R. Singler and G. O. Brekke of Minot, attorneys for respondents. L. R. Baird, Receiver of the Williams County State Bank, an insolvent banking’ corporation, Plaintiff, Ap- pellant and Respondent, vs. The City of Williston, a municipal cor- poretion, et al, Defendants, The City of Williston, Respondent and Appellant, N. B, Ludowese, Inter- pleaded Defendant and Respondent, and The Bank of North Dakota, a state institution functioning as & private bank, Respondent. 1. Where the district court has jurisdiction of the subject matter of an action, and the findings of fact and the judgment contain recitals showing that service of the summons and complaint had been made upon one of the parties therein designated es defendant, such recitals cannot be attacked in another and later action, but are conclusive upon the court in this subsequent action. 2. One filing a brief by leave of this court and as amicus curiae is not by such act alone made a party to the suit. 3. Where a party commences an J.| memorial | action triable to the court, naming « geveral defendants therein, and also commences another action against ene of these defendants for the re- covery of money only, the subject matter of this second action being one which grows out of the transac- tion involved in the first action, and all of the parties to both actions stipulate that the two cases are to be consolidated 2s to the issues and tried to the court at once, the parties to the stipulation will not be heard to say that a portion of the case be treated as a jury case, but such consolidated ‘action will be considered a case triable to the court, and the issues in the sec- ond action, as determined in the con- solidated action, may be tried de novo in this court. 4. Though a party to an action may have been neither party nor privy to a preceding action, yet where the issues in the latter action involve title to and interest in property de- termined in the previous suit this court will not again pass upon such title upon the Crea ae sot seed resentis isely the sai ques- toma, re tte vabscrice of a showing that the former decision was mani- festly wrong. ‘Syllabus by the court.) Consolidated cases and cross ap- peals from district court of Williams county, Hon. M. J. Englert, judge. Affirmed. Opinion of the court by Burr, J. Messrs. Burdick, Shaft & Burk of Fargo, for plaintiff-appellant and respondent. Messrs. Fisk, Craven & Taylor of Williston, for defendant- respondent and defendant-appellant. Messrs. O'Hare, Cox & Cox of Bis- marck, for defendant and respondent. Messrs. Owens é& Nelson of Williston, attorneys for defendant and respond- ent. H. T. Coffland and J. E. Coffland, ‘Co-partners under the firm name and style of Coffland Brothers, Plaintiffs and Appellants, vs. David Naftelin and William Piper, De- fendants, William Piper, Respond- ent George C. Hoenck, Intervenor and Respondent. « Under section 7846, C. L. 191: amended by chapter 8, Laws of 1913, an appellant may specify in the state- ment of the case, the questions of fact that he desires the Supreme Court to review, and only such questions of fact as are specified may ‘be consid- ezed by the court on appeal, and all questions of fact not so specified are Court tries the entire case ‘When no facts are specified in statement for review, and there is no demand for a retrial of case the appellate court can sider and determine whether ings which are in true, sustain the judgment. ney for plaintiff and appellant. C. J. Moorhead, Minn., of SSORTITSOsBABASyHEThS s spondents. 1. In an action to restrain the de- n | spondent. , {conclusions ef . | dan, the 1913 Compiled Laws, North Da-. kota, as amended by chapter 117, 8. L. 1927, vests in the board of county commissioners the power to deter- mine whether a war memorial shall be erected and the place of its lo- cation, and the board's judgment as to these matters is not subject to re- view because it is contrary to that of & majority of the citizens and electors of the county. . 4. The offer by a community to donate financial and other assistance toward the erection of a public build- ing where the donation is conditioned upon its erection in: that community is not contrary to public policy and, if accepted, does not constitute a ground for equitable interference. 5. Section 207Icl, Supplement to the 1913 Compiled Laws, North Da- kota, as amended by chapter 117, H./8, L. 1927, reposes in the board of county commissioners the power to determine the character of the war to be erected, consistent with the purpeses underlying the statute. It is held, for reasons stated in the opinion, that the building pro- posed to be erected as a memorial by the defendant board in the instant case is suitable and appropriate with- ing the contemplation of the statute. (Syllabus by the court.) Appeal from the district court of Divide county; Hon. Geo. H. Moeliring, judge. the board of county commissioners of Divide county from expending public funds in the erection of a war memorial. From a judgment in favor of the de- fendants plaintiffs appeal. Affirmed. Opinion of the court by Nuessle, J. T. 8. Stuart of Crosby, for appel- lants. E. J. McIllraith of Crosby, for respondent. State of North Dakota H. S. Vraa, Plaintiff and Respond- ent, vs. Ed. McCarroll, Defendant and Appellant. s When the facts alleged in a com- plaint show a cause .of action aris- ing on contract, and also a cause of action arising on tort, the plain. tiff should be required, to elect between the contract and the ort, as he cannot sue on both. (Syllabus by the court) Appeal from the District Court of son, Minot, N. D., Hon. John C. Lowe, J. Opinion of the court by Burke, Ch. J. Halvor L, Halvor- son, Minot, N. D., Attorney for Plain- tiff and lca. ent. Nestos, Herig- stad & Stenersen, Minot, N. D., At- torneys for Defend- ant and Appellant. State of North Dakota, Plaintiff and Respondent, vs. Dave Blum, et al, defendant. Lyman Brokaw and Lorenz Sowitch, defendants and ap- pellants, Peter J. Erickson, as Clerk of the District Court of Williams County, N. D., and as an individaul, Garnishee and Respondent. Moneys deposited with the clerk of a district court in pursuance of law in lieu of a bail bond are not subject. to garnishment while they are being held for the purpose for which they were so deposited; but where the person for whom the bail was furnished has complied with the terms of the bail and the bail has become fully exonerated so that the person to whom the moneys belong is entitled to a return thereof as a matter cf right upon demand, with- out condition and without any fur- ther order, the legal custody has ceased and the officer holds the mon- eys for the owner, and they are sub- ject to garnishment as the property of such owner. (Syllabus by the court) From a judgment of the district court of Williams County, Moellring, J., de- . fendants Brokaw and Sowitch appeal. Opin- J ion of the court by Christianson, J. Ivan V. Metzger, Willis- ton, N, D., and Bur- REMANDED AFFIRMED asjdick, Shaft & Burk, Willete, MN. D., At torneys for lants. A. J. ves State's Williston, N. D., At- torney for Plaintiff and Respondent and Garnishee and Re- Agaton Larson, Plaintiff and Ap- pellant, vs. Anna R. McKendry, De- fendant and Respondent. In the instant case, the testimony is held to sustain the findings and the trial court. | (Syllabus by the court) Apees! from the North Dakota, Milton K. Higgins is oral argument) “J. EB. Hendrickson, of Fargo, attor- | ta, Simon Hille and John F. Doering, Plaintiffs and Respondents, vs. Ja- 3 hl! DOGCGOMT/ suant 3962 and 3963, C. L. 1913, the owner of: other lots vindicate any rights he may claim to be vacati title may be acquired by adverse Possession. 6. An casement may be created by _cstoppel. 7. A grzntee of lands who takes title with knowledge of facts suffi- cient easem: against his grantor, is bound with respec ment to the same extent as was his grantor. Appeal from the District Court of La Mf. McKenna, Judge. Action to an- nul and set aside a statutory vaca- 0} reiiel. plaintiffs, defendants appeal. Reversed in part, and modified and affirmed in part. it the court by Nuessle, J. Hutchinson & Lynch, of La Moure, for Appel- lants. and E. J. Coyne, of La Moure, for respondents, 8. Where the notice of expiration er of time for redemption conforms in State of North Dakota, Piaintiff and| substance to that prescribed by the Res) fendgnt and Appellant. In this case it appears from the record State's attorney have crave doubts po Rad of the testimony testimony of an ac- complice, slight and doubtful; and it further epencing from the record that the int did oe hare @ fair trial, dier in the military service of the United States anu the federal govern- ment, unpaid sifaapils- juued i § sold with reference to the same, the purchaser acquires right to the use of the streets thereon contiguous to the lots bought by him and of such others as are reasonably necessary. 5. Where the proprietor of a por- tion of a plat vacetes the same pur- Reece. lames Morris, attorney Harold Shaft, assistant attorney gen- eral, Bismarck, N. D., and Arthur B. Atkins, Napoleon, N. D., attorneys for plaintiff and respondent. Cameron & Helgeson, Bismarck, N. D., attorneys fer defendant and appellant. i 2 THE BISMANUA TRIBUNE, terest of a distributee to whom the proceeds of such war risk insurance is given after it has been paid to the estate of the insured. Shabby Cot Symbol Of Krupp’s Growth 3. Where a distributee has received from the estate of a soldicr insured Pg a ork accone of risk insurance the unpaid in-, summed uw ie ‘a shabb: teh os bed G ts due under such insurance | colored ‘abs hn that ania td contract such money so received 18|tne shadow of the brick chimneys sudject to the debts of the distributes | or the Krupp steel works. Its sloping bbe as any other propert. of the | toot irresistibly reminds American pret Eee visitors of the house where Herbert «Syllabus by the court.) Hoover was born in Yi Appeal from the district court, of | th “this tiny canner e ite ta bar ead s Hon, HL. Berry, judge. | 1996 priedrich’ Krupp, founder of the Opinion of the court by Burr, J. great plant, died at the carly age of &. P. Rigler of Hebron, N. D., attor- | 2% Ovcrburdened with debt and be- Hey be laintiff and ident. Otto | Heving a failure his self-imposed task Solas oe ‘Dickinson CD. rie © | of evolving a European competitor for fer defendant and appellant.’ | British Sheffield steel. In this same ae three-room house Alfred Krupp, then 14 years of age, faced the problem not. only of meeting his father’s debts but of carrying on his father's dream of steel-making. For 14 years he kept the shop cp- ETHEL Ida Kuykendall and L. B. Ku: dal, Plaintiffs and Respondents, vs. ‘The Merchants National Bank of Dickinson, a corporation, Defend- ant and Appellant. 1, Where the supreme court deems such course necessary to the accom- plishment of justice, it will remand the case for a retrial in the district | court, even though a trial de novo is! demanded in the supreme court. 2. For reasons stated in the opin- ion, this case is remanded for a new ' trial in the district court. (Syllabus by the court.) From a judgment of the district court of Stark county, Berry, J., de- | fendant appeals. Remanded for a new trial. Opinion of the court by Christian- ; son, J. Otto Thress, Dickinson, N. D., at- torney for defendant and appellant. T. D. Casey, Dickinson, N. D., attor- ney for plaintiffs and respondents. In the Matter of the Estate of Wilbur G. Root, deceased, W. G. Root, Pe- titioner and Appellant, vs. R. L. | Childs, as Administrator of the } Estate of Irene G. Root, deccased, Respondent. 1, Where a soldier in the military | service of the United States govern- | ment has a contract of war risk in | surance with the federal government | {and has designated a beneficiary therein, and such beneficiary sur- | vives the insured but dies before re- ceiving all of the installments due | under such contract of war risk in- | surance so that the remainder due is; paid to the estate of the insured t be distributed to his heirs, the heirs | are to be determined as of the death | of the insured rather than as of the death of the beneficiary. 2. The beneficiary designated un- der such contract of war risk insur- ance has no vested interest in the un- | paid installments of such insurance. «Syllabus by the court.) | Appeal from the district court of Foster county, Hon. Fred Jansonius, Affirmed. Opinion of the court by Burr, J. Clair F. Bricknor of Fargo, N. D.. attorney for petitioner and appellant. Dullam, Young & Burke of Bismarck, N. D., attorneys for respondent. and alleys shown L. R. Baird, as receiver of the ‘armers Bank of Ray, a corporation. Plaintiff and Appellant, vs. Mar: E, Zahl, Defendant and Respondent. 1, Under section 2193 C . 1913, which provides that a certificate of tax sale “shall in all cases be prima facie evidence that all requirements of law with respect to the sale have been duly complied with and that the grantee therein is entitled to a deed therefor after the time of re- demption has expired,” a tax cer- tificate is prima facie evidence tha the tax purchaser paid the purchase ice and such prima facie evidence is not overthrown by a receipt of the: county treasurer for the purchase) moneys dated some days subsequent to the time of the sale. 2. The statute which makes pro- vision for notice of expiration of time for i tax) deed can e is for the protection | of the parties having the right to} redeem and no valid deed can issuc | unless such statute has been com-| plied with; any deviation from the! notice prescribed by the statute, either in contents or-mode of se which has any tendency to mislead cr prejudice the rights of anyone! having a right of redemption, rend-| ers the notice ineffective and inval- idates the tax deed thereon. to the provisions of Sections therein must act to ridged or destroyed by such ion within the period in which comics: to put him upon notice of an ent created by estoppel as t to the creation of the ease- (Syllabus by the court) Moure County, Hon. George f a plat and for injunctional From a judgment for the Opinion of F. J. Graham, of Ellendale, statute and affords to the parties to whom it is addressed and upon whom it is served in substance all the information required by the statute, the notice is not rendered it because of some trifling er- ror or inaccuracy, which could not possibly have misled or prejudiced anyone. he 4. In the instant case the notice of expiration of time for redemption was served by publication. The no- tice was dated September 25, 1924. In the published notice, the date w: stated to te October 3, 1924. Though an error in computation, made by the county auditor, the no- it, vs. Ed Fichtner, De- that the trial judge and the » and that such testimony is MUNUVAL, AUUUDS!L LY, 1Lucv A EN AMS ESET SET IAAL RITE LEER OTE ETS CELE! traveling salesman and laborer. Then, in 1840, the first steel cannon manu- facture appeared in Europe and, see- ing his chance to get in on the ground floor of a new industry, he bought out his mother’s and sister's shares in the shop and in 1848 found- ed the great gun factory that gave to Germany in the world war the famous “Big Bertha.” By another contradiction of circum- stances the man who made possible that engine of destruction also laid the foundations for social welfare work and laborers’ protection in Ger- man industry. “The object of industry should be the common welfare,” he said, “for work brings blessing, since work itself is @ prayer.” CARS NOW SAFER i The motor car of today is four times as safe as the car of ten years ago, according to the A. R. Erskine | Bureau of Street Traffic Research of erating by being manager, overseer, |Harvard University. or Brazil Sees Sound Films as New Aid Rio Janetro.—()—The talkies from the United States may prove an effective means of spreading knowl- jedge of English in South America in the opinion of observers who wit- nessed the success of the first sound film shown here. A news reel speech by Sebastiao Sampiao, Brazilian con- sul general in New York, delivered in Portuguese, was for the Rio audiences the real wonder of this first talkie program. Probably there is more English spoken in Brazil than in any other South American country. There is a more pro-American attitude here than elsewhere due to the commercial relations which are closer between the two countries than between the United States and any other South American republic. Coffee is the answer to this in the | 1650. first instance, i more and more to the i States for technica! tees and ooveret Brazilian actors and singers have re- ‘| cently appeared in theaters a welding another tie bet countries, The Hollywood product = 4 Ss even more interest in the States and its people than silent screen. ALABAMA LEADS ik Alabama led all other states in | highway construction during 1928, ac: cording to the State Highway com: mission. More than 634 miles of jroads were finished and 1,334 were | junder construction. f FIRST PAVED ROAD i | The first paved road in the United | States is said to hive been one be- |tween New York and Boston, laid in It was made of cobblestones. 54 years the ~ Worlds Greatest Newspaper Feature Service {5 middle name is : ‘ENTERPRISE ” Subscribe Now ‘And secure the World’s important eventsdaily through The Tribune leased wires of the Associated Press, the daily market reports, and the following The daily Gumps, Freckles and His Friends, Mom’n Pop. Salesman Sam, Boots and Her Buddies, Our Boarding House and Out Our Way. In addition to these you get EIGHT PAGES SUNDAY COMICS Every Saturday which include the Sunday Gumps, Harold Teen, Smithy, Winnie Winkle. Moon Mullins, Little Orphan Annie, Teddy, Jack and Mary, and Gasoline ‘Alley. . 5.00; EE — Fill out and mail the blank enclosing the amount as listed for sub- scription you desire. ; 8 months (in North Dakota) .. .$1.25; 6 months (in North Dakota) ... 2.50 1 year (in North Dakota) . by carrier in Bismarck, by carrier in Bismarck, by carrier in Bismarck .......... 7.20 tice stated that the amount required to redeem was $90.11, whereas the amount actually required was $8: 34, For reasons stated in the opi ion it is held that these errors did not affect the substance of the n tice,‘and did not render the notice ineffectual or invalidate the tax deed issued pursuant thereto. (Syllabus by the court) From a judgment of the District Court of Williams County, Moell- fod J., Plaintiff appeals. AFFIRMED 1 Opinion of the Court by Chris- tianson, J. Ivan V. Metzger, | Williston, N. D., attorney for | plaintiff and appellant. Wm. G. Owens, Williston, N.; D., attorney for defendant and Tespondent. H. Funk, Plaintiff and Re- has no vested interest in the} of federal eS ;|Hatless Vogue Gets | Favor of Scicntist ; New York. —F)—A scientific ex- cuss for men going hatless is cited i ogee d and Dr. E. E. ie ew book, junrays — popularity of aN un} ity of hats is a gootl sign,” they write. “It does | , not help much from the i POND og scare’ 0 see cas. bce ast caan ecco ss avaces Postoffice Address ......... SUBSCRIPTION BLANK The Bismarck Tribune, Bismarck, N. D. Enclosed find. ihpeewdcsias MEOMEDE bs Uisuuics --for which send me the Daily Tribune for PLEASE WRITE PLAINLY TO AVOID MISTAKES Cut out this coupon—Fill in and mail to the circulation department of The Bismarck Tril BISMARCK, NORTH DAKOTA O: eLOterere 0.00. ex0 010 exe 0c cee ece © 0 0's exe ere exe ee . State © © oleTetezezers 3 mos.. .$1.80 6mos... 3.60 ——— =e. ee TT ewywewwvveveriwvvunuvN