UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ANNOTATED STATUTES AND RULES OF TRIAL PRACTIC AND APPELLATE PROCEDURE IN South Dakota and North Dakota. EMBRACING Issues, Trials, Exceptions, Bills of Exception and State- ment of Case, New Trials, Appeals and Writs of Error; in Both Civil and Criminal Cases, in all the Courts; Rules of the Supreme Courts of Both States; and Appel- late Procedure; all Fully Annotated. By CHARLES EDMUND DeLAND, Of the Pierre Bar. ^ PIERRE CARTER PUBLISHING CO. 1896. Entered according to Act of Congress, in the year 1896, by CHARLES EDMUND DELAND, In the office of the Librarian of Congress, at Washington, D. C. d. M) I TO The Bar of These Sister States, without whose constant exposition and advocacy of the laws, their adjudi- cation by the bench could not but be less just and enlightened, this book is respectfully dedicated by the author, a laborer in the ranks. PREFACE. If the labor necessarily involved in the preparation of a work upon trial practice and appellate procedure for the Dakotas, in the form of compilation with annotations, shall prove to have been done acceptably to the profession, in this book, the author ventures the opinion that no apology is due for pre- paring and presenting it to the public. Based as it is upon one of the most thoroughly tested and enlightened of the Codes of Procedure in existence in this country, whose chief features are the embodiment of the wisdom of the founders of that system, supple- mented by continued additions and slight changes in furtherance of its spirit and its efficacy, through the various revised Codes, and all embellish- ed by a constantly enlarging field of adjudicated law which has emanated from the bench of the former Territory and of the twin States suc- ceeding it; if only the process of arrangement of the laws and the digesting and disposition of those decisions were properly done, the result would seem to be of value to the bar and bench in particular, whose -joint duty it is to expose and apply their principles. These decisions cover more than one third of a century of time; they are so numerous and so general in their relation to the body of such pro- cedure, as to make necessary to a prompt and intelligent understanding of their status, their collection in a single book under the appropriate sec- tions of the statutes pertaining thereto. The author had spent a large por- tion of his time for years in searching them out and referring them to those (among many other) sections of the Compiled Laws, the old Codes, and the Session Laws, partly because it became necessary to do so in order to keep in touch with them in the practice of his profession, but partly also with a view to finally utilizing them substantially as they are made to serve the purposes of this work. These are the reasons which led up to the formal effort here produced. The encouragement and commendation (which it is hoped will prove to have been in some measure warranted) which have been bestowed, from the direction of the bench and bar, in the course of its prep- aration, have relieved the author while engaged in the vast amount of drudgery and perplexity of details involved in preparing the manuscript therefor; for which he wishes to here make grateful acknowledgment. The plan upon which the book is prepared is as follows: The section of the Compiled Laws of 1887, upon the subject in hand, is published as such v i PREFACE. section by its proper number in that compilatipn, and the corresponding number of the section of the Revised Codes of North Dakota of 1895, cover- ing the same provision, is given, in connection with the number of that pro- vision in the compiled Laws, at the head of each section as publisned in this work; so that the designation of the section is a double one, r ferring to both codes. In case a change has been made in North kota in the language of any provision in the Compiled Laws, one of two modes is adopted to designate the particular language of the Revised Codes in the premises, viz: If the change is confined to slight verbal modifica- tions either of subtraction from or addition to the language of the Coin- piled Laws, the section as it stands in the latter is published under the double designation as above explained; and immediately below is found an explanatory note in brackets showing the particular wording of the Nort] Dakota section wherein it differs from that of the Compiled Laws, and where in the section, the change is made. But where the changes are con- siderable in number, or in extent of additional language, the North Dako- ta section is set forth in full by itself immediately below the corresponding section of the Compiled Laws under its own number, in which case the South Dakota section has its own number only. The practitioner is thus furnished with the exact language of both sections. The sections of the Compiled Laws are published as amended to date; and where the subject- matter of a given section has been created by the legislature through pro- visions other than formal amendments of given sections, such legislation is published in connection with the pertinent section in the compilation. Sec- tions of the North Dakota laws not found in Compiled Laws are published in the proper connection. -References are given under each section, to the corresponding section of the Codes of Procedure, to the page in Levisee where it is published, to Wait's Annotated Code of New York, and to Hars- ton's Practice and Deering's Annotated Codes and Statutes of California, wherever similar provisions are found in those codes; also, to the Revised Statutes of Wisconsin, of 1878, from which the provisions of the statute governing appeals to the supreme court was substantially taken, in an- notating that chapter. References are also made to decisions under other sections of the Codes embraced in this work. Where either code has been amended, the source of the amendment is noted; and the derivation of every section is given. Then follow the annotations under each section. Constitutional provisions are set forth in the appropriate connection. In the main the annotations follow the syllabi, particularly with refer- ence to the state decisions, in which the syllabi are written by the courts of both states. But the author has not contented himself with exam- ining the syllabus, in any case. He has exhaustively examined every opinion, and in some cases, where points not brought out in the syllabus are decided or pronounced upon in the opinion, such points are brought PREFACE. vii into the annotations by setting them forth in substance. In still other cases copious quotations are made from the opinion, in order that some question of importance to the bar and bench may be more fully understood than it could be by publishing the syllabus or otherwise stating the sub- stance of the holding. An occasional note by the author brings in points and decisions outside of the regular annotations. The rules of the supreme court of each State, with full annotations, are embodied in this work, and form an important part of it. The plan of ar- rangement of these rules is substantially that followed in publishing the statutory provisions, the number of the rule being given at its head, for each state, where they are identical in substance, and where they quite ma- terially differ, the North Dakota rule is treated by itself. Cross references are given under each rule. The number of State and Territorial decisions bearing upon the rules of court is large; and the supreme court of South Dakota, in particular, has rendered a large number of decisions construing and interpreting its rules which in nearly all cases are practically iden- tical with those of North Dakota. Black-face head notes are placed at the head of each section and rule. Such headnotes are also copiously dispersed among the annotations; so that the eye at once catches the particular leading idea involved in the decision bearing upon the given subject. Where the number of cases under the given section or rule is considerable, the Annotations are divided into de- partments. Under some'statutes a large mass of state and territorial de- cisions will be found arranged, there being no less than about 400 different citations of Dakota Territorial and South and North Dakota cases found in the Annotations under the subject of New Trials alone, and referring to over 300 different cases, outside of those from other states. These cases (spe'aking now of this single head of New Trials) embrace all classes of de- cisions which directly or indirectly involve the right to or the practice lead- ing up to or following a new trial, as well as rights entirely disconnected from procedure, but which are determined by granting or refusing a new trial. In this respect the chapter on New Trials of civil cases is a depart- ure from the general plan of the work. An additional feature of the book is, that the author has cited a great number of cases from other States, in connection with the principal case, and which our courts have relied upon to sustain their decisions. This course has been pursued for various purposes. First, it is believed that to have not only the decisions of both these States and of the former Territory, but also those of many other states, gathered together in a single book in the shape of annotations, will be found by the attorney and the judge to be an important additional aid in many cases; and to the attorney who may not have at hand the state reports of his State or the Northwestern Report- ers, but who may have the reports of some other State, this arrangement will viii PREFACE. \ be of special use. Again, foreign attorneys, living in some State adjoining South or North Dakota, will be able to utilize the decisions from his own State found in this book, bearing upon statutes of his State similar to those here annotated. The principle of citing cases is this: The Territorial (or State, as the case may be) report is first mentioned, then the Northwestern Reporter con- taining the decision; and this double reference is universally given; thus making either set of reports equally available throughout the work. Those of the very latest decisions not yet appearing in the State Reports are of course only cited in the Northwestern Reporter, but a blank space is left for insertion of the number of volume and page of the State Report con- taining the decision, when published. The de'cisions of both states are brought down to the latest date. The table of cases was prepared by the author's assistant, Miss Sophie G. DeLand; without whose aid duripg a number of years the book as a whole could not have been prepared at this time. This table is unusually complicated, the references being to not only this book but to the State (or Territorial) report, as well as the Northwestern Reporter. In the book it- self, owing to these complicated references, and to the fact that some cases appear several times in both sets of reports, some errors have crept in, near- ly or quite all of which are believed to have been corrected under the head of "Errata," at the end of the table. of cases. The Index, however, contains the corrected references in those instances. The Index is believed to be a full and more than usually exhaustive one. It has been the special aim of the author to make it so full and multifarious as to headings, cross-references, and special topics, as to enable the busy lawyer or judge to find what he wants without having to make extended search for it. How far this aim has been successful time will re- veal. Owing to the dissimilarity between the corresponding chapters upon county, probate and justice's courts, in the two states, both chapters em- bracing those subjects are published, as it was found impractical to consoli- date them; and the index references to those chapters are in many instances such, that the highest numbered page refers to the N. D. section or provis- ions (the N. D. chapter following that of S. D.). A word of explanation should be added, as to where to look for the an- notations, in particular cases. Where the corresponding sections of the statutes of the two States are both published, the annotations pertaining to them are both found below tJie North Dakota section, which follows that of South Dakota. The scope of this book is indicated upon the title page. It is intended to cover completely the subjects therein mentioned and enumerated. Pierre, S. D. June 20, 1896. CHARLES EDMUND DELAND. TABLE OF CONTENTS. Page Chap. 1 Issues and Modes of Trial. [Code Civil Procedure]...... 1-8 Chap. 2 Formation of the Trial Jury. [Code Civil Procedure] 9-12 Chap. 3 Of the Conduct of the Trial. [Code Civil Procedure] 12-82 Chap. 4 Of the Verdict. [Code Civil Procedure]. 32-45 Chap. 5 Of the Trial by the Court. [Code Civil Procedure] 45-53 Chap. 6 Of References and Trials by Referees. [Code Civil Pro- cedure] '. 53-63 Chap. 7 Exceptions. [Code Civil Procedure] 63-77 Chap. 8 Of New Trials. [Code Civil Procedure] 77-189 Chap. 9 Of Appeals in Civil Actions. [Code Civil Procedure] 189-254 Chap. 10 Of The Supreme Court. [Code Civil Procedure] 254-260 Chap. 11 County Courts, S. D 260-273 Chap. 12 Practice in County Courts With Increased Jurisdiction, N. D 273-280 Chap. 13 Of Appeal and Appeal Bonds. [Probate Code, S. D.] 280-289 Chap. 14 Postponement, Hearing and Trial. [Probate Code, N. D.]289-291 Chap. 15 Appeals. [Probate Code, N. D.] 291-301 Chap. 16 Time of Trial and Postponements. [Justices' Code, S. D.]. .302-307 Chap. 17 Trials. [Justices' Code, S. D.] 307-311 Chap. 18 Appeals. [Justices' Code, S. D.] 311-321 Chap. 19 Of Criminal Proceedings in Justices' Courts. [Justices' Code. S. D.] 321-326 Chap. 20 Appeals in Criminal Proceedings. [Justices' Code, S. D.]. 326-329 Chap. 21 Appearance, Postponement and Change of Venue. [Jus- tices' Code, N. D.] 329-333 Chap. 22 Trial of Issue of Fact. [Justices' Code, N. D.] 333-340 Chap. 23 Appeals. [Justices' Code, N. D.] 340-344 Chap. 24 Trial Procedure in Criminal Actions. [Justices' Code, N. D.] 345-348 Chap. 25 Appeals in Criminal Actions. [Justices' Code, N. D.]. . .348-351 Chap. 26 The Mode of Trial. [Code Criminal Procedure.] 351-353 Chap. 27 Formation of the Trial Jury. [Code Criminal Procedure.] 353 358 Chap. 28 Challenging the Jury. [Code Criminal Procedure.] 359-371 Chap. 29 The Trial. [Code Criminal Procedure.] 371-401 Chap. 30 Conduct of the Jury After the Cause is Submitted to Them. [Code Criminal Procedure.] , 401-404 Chap. 31 The Verdict. [Code Criminal Procedure.] 404-414 "Chap. 32 Bills of Exception, Statement of Case. [Code Criminal Procedure.] 414-424 Chap. 33 New Trials. [Code Criminal Procedure.! 424-431 Chap. 34 Writ of Error, Appeals. [Code Criminal Procedure.] 431-441 Chap. 35 Dismissing the Writ or Appeal for Irregularity. [Code Criminal Procedure.] 441-442 Chap. 36 Argument of the Writs and Appeal. [Code Criminal Procedure] 442-444 Chap. 37 Judgment in Supreme Court. [Code Criminal Proced- ure.] ; 444-448 Chap. 38 Rules of the Supreme 'Court. [S. D. and N. D.J 448-521 TABLE OF CASES. Acme Harvester Co. v. Axtel, S. D. , 65 N. W. 680 20, 108 Adams v. Smith, 6 Dak. 94, 50 N. W. 720 194, 209, 252 Adams & Westlake Co. v. Deyette et al, 5 S. D. 418. 59 N. W. 214 60, 61, 110, 111, 150,470,479 Advance Thresher Co., Hilton v.; S. D. , 66 N. W. 81H 159, 164 Ag'l Works v. Young, S. D . , 62 N. W. 432 119 Aiken et al, Braithwaite v.; 2 N. D. 57, 49 N. W. 419 82, 85, 239 Aikens, Cir. Judge, Pollock v.; 4 S. D. 374, 57 N. W. 1 74 Aitchinson, McMillan et al v.; 3 N. D. 183, 54 N. W. 1030 113, 122, 134. Albiehetal, Custer Co.'v.; S. D. , 64 N. W. 533 32, 33, 44 Aldrich et al v. Wilmarth, 4 S. D. 38, 54 N. W. 1051 487 Alt v. Chi. & N. W. Ry Co., 5 S. D. 20, 57 N. W. 1126. . .64, 68, 86, 138, 180 American Sav. & Loan Ass'n v. Campbell, Judge, S. D. , 65 N. W. 815 234 Amundson, Russell & Co. v.; 4 N. D. 112, 59 N. W. 477 21 Anderson v. Alseth (on rehearing), S. D. , 66 N. W. 320 48, 51 Anderson v. Chilson et al, S. D. , 65 N. W. 435 62, 194 Anderson v. First Nat. Bank of Grand Forks, N. D , 64 N. W. 114 82, 107, 109, 122, 130, 160, 183 Anderson et al, Haveron v.; 3 N. D. 540, 58 N. W. 340 20, 43 Anderson, Illstad v.; 2 N. D. 167, 49 N. W. 659 55, 62, 121, 132, 136, 138, 148, 180, 469, 470, 481 Archer, Hudson v.,- 4 S. D. 128, 55 N. W. 1099 117, 120 Archer, Purdin v.; 4 S. D. 54, 54 N. W. 1043 142, 198 Archibald, State ex rel Moore v.; N. D. , 66 N. W. 234 190 Arnold et al, Geo. W. Van Dusen & Co. v.; 5 S. D. 588, 59 N. W. 961. . .157 Arthur, Coats v.; 5 S. D. 274, 58 N. W. 675 199 Aultman & Taylor Co. v. Gunderson et al, S. D. , 60 N. W. 859 128, 152, 155, 161 Austin, Tomlinson & Webster Mfg. Co. v Heiser et al; S. D. , 61 N. W. 445 267 Ayres, Weatherwax & Reid Co. v. Sundback, 5 S. D. 31, 58 N. W. 4 17 31 139 261 'Ayers, Weatherwax & Reid Co. v. Sundback, 5 S. D. 362, 58 N.' W. 929 486, 501 Axion Min. Co. v. Little, S. D. , 61 N. W. 441 13 Bailey v. Chi., Mil. & St. P. R, Co., 3 S. D. 531, 54 N. W. 596 131, 471 Bailey v. Lawrence Co., . S. D. , 59 N. W. 219 173 Bailey v. Scott, 1 S. D. 337, 47 N. W. 286 189, 212, 213, 237 Baird et al v. Gleckler, 3 S. D. 300, 52 N. W. 1097 75, 83, 125, 194, 246 Baker, Edwards & McCulloch Co. v.; 2 N. D. 289, 50 N. W. 718 16, 108, 158, 246 xii TERRITORIAL AND DAKOTA CASES. Baker, Edwards & McCulloch Co. v.; 3.N. D. 170, 54 N. W. 1026. .70, 73, 509 Hanbury v. Sherin, 4 S. D. 88, 55 N. W. 723 68, 480 Bank of Canton, Farmers' Bank of Frankfort v.; S. D. , 65 N. W. 1070 37, 91 H.-mk v. Kellogg, 4 S. D. 312, 56 N. W. 1071 267 IJ:mk v. Laughlin, 4 N. D. 391,61 N. W. 473 18, 135, 469 Hank of Minot, Hoffman v.; N. D. , 61 N. W. 1031 79, 205, 239, 243, 453, 479 Bank v. Mann, 2 N. D. 456, 51 N. W. 946 116 Bank, McLaughlin v.; 6 Dak. 406, 43 N. W. 715 95, 163 Bank v. North, 2 S. D. 480, 51 N. W. 98 105, 129, 155, 505 Bank, Parker v.; 3 N. D. 37, 54 N. W. 313 48, 51 Bank v. Roberts, 2 N. D. 195, 49 N. W. 722 203 Bank of Volga, City of Huron v.; S. D. , 66 N. W. 816 199 I :.-mk v. Willow Lake Tp., 1 N. D. 26, 44 N. W. 1002 102 Barber v. Johnson, 4 S. D. 528, 57 N. W. 225 318 Barnard & Leas Mfg. Co. v. Galloway et al, 5 S. D. 205, 58 N. W. 565. . Ill, 179, '194, 209, 246, 250, 470, 479 Barnes v. Clement, S. D. , 66 N. W. 810 '. 169 Barnes, Clement v.; S. D. , 61 N. W. 1126 86, 135, 182 Barnes, sheriff, Welsh v.; N. D. , 65 N. W. 675 195 Barnes, sheriff, State ex rel Mears v.; S. D. , 65 N. W. 688. .191, 223, 279 H: itus v. Callendar, 3 Dak. 256, 16 N-. W. 506 155 Bates v. R. Co., 4 S. D. 394, 57 N. W. 72, 19, 101, 104, 107 Bartilino, Leonosio v.; S. D. , 63 N. W. 543 302 Batterton v. Fuller, S. D. , 60 N. W. 1071 118 Bunder v. Schamber et al, S. D. , 63 N. W. 227 109, 134, 182, 472 Bauer, State v.; 1 N. D. 273, 47 N. W. 378 377 Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222 93 Belding, sheriff, et al, Noyes et al v.; 5 S. D. 603, 59 N. W. 1069 8, 80, 90, 123, 126, 145, 154, 155 Bell, Jackson v.; 5 S. D. 257, 58 N. W. 671 22, '). 85 Bell et al, Sanford v.; 2 N. D. 6, 48 N. W. 434 (436) 13, 18, 102, 142, 148, 152, 188, 193, 246 Bell v. Thomas, S. D. , 63 N. W. 907 80, 211, 212, 478, 487 Bellon, Norwegian Plow Co. v.; 4 S. D. 384, 57 N. W. 17 Ill, 112, 250 Bern et al v. Bern et al, 4 S. D, 138, 55 N. W. 1102 62, 480 Bern et al v. Shoemaker et al, S. D. , 64 N. W. 544. 216, 217 Benedict v. Johnson, N. D. , 57 N. W. 66 65, 262, 266, 316 Bennett v. Northern Pac. R. Co., 3 N. D. 91, 54 N. W. 314 97, 167 Bennett v. Northern Pac. R. Co., 2 N. D. 112, 49 N. W. 408 96, 129 Bennett v. Northern Pac. R. Co., 4 N. D. 348, 61 N. W. 18 21, 166 Bently et al v. Fraley, 1 Dak. 36, 46 N. W. 505 252, 501 Berg et al, Perie et al v.; S. D. , 64 N. W. 1 130 89, 144, 200 Betts v. Letcher et al, 1 S. D. 182, 46 N. W. 193 55 Bierlien, Hodges v.; 4 S. D. 258, 56 N. W. 811 86 Bierlien, Hodges v.; 4 S. D. 219, 56 N. W. 748 248, 468, 482, 483, 488 Big Missouri Min. Co., Loranger v.; S. D. 61 N. W. 686 2 Bill v. Klaus, 4 Dak. 328, 30 N. W. 171 468 Bill, Myrick v.; 3 Dak. 284, 17 N. W. 268 141 Billinghurst, Dempsey v.; S. D , 64 N. W. 1124 ' 87, 501 Billinghurst v. Spink Co. et al., 5 S. D. 84, 58 N. W. 272 455, 490, 507 Billingsley v. Hiles et al, S. D. , 61 N. W. 687 83, 112, 125, 179, 182, 470, 486 Bingham v. Mears, 4 N. D. 437, 61 N. W. 808 20, 231 Bishop v. Chi., Mil. & St. P. Ry. Co., 4 N. D. 536, 62 N. W. 605 ; 21, 100, 133, 140. 166 Black Hills F. & M. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342 235, 237, 243 TERRITORIAL AND DAKOTA CASES. Xlll Black Hills Her. Co. v. Gardiner et al, 5 S. D. 256, 58 N. W. 557 250 Board Co. Com'rs Hughes Co. et al, Everett v.; 1 S. D. 365, 47 N. W. 296 1 90 Board of Co. Com'rs Hughes Co., State ex rel Dollard, att'ygen'l, v.; 1 S. D. 292, 46 N. W. 1127 92 Bode v. New England Inv. Co., 1 N. D. 121, 45 N. W. 197 149, 150 Bogle, Caul field v.; 2 Dak. 464, 11 N. W. 511 67, 86, 180, 468, 4b9 Bolkraan v. R. R. Co., 5 Dak. 69, 37 N. W. 731 98 Bond v. Charleen et al, 1 Dak. 215, 46 N. W. 585 511 Booker et al, Moore v.; 4 N. D. 543, 62 N. W. 607 50, 76, 77, 82, 94, 127, 137, 160, 214, 229, 232, 519 Booth, Purcell v.; 6 Dak. 17, SON. W. 196 156, 314, 315 Boss v. Northern Pao. Ry. Co., 2 N. D. 128, 49 N. W. 655 16, 25, 26, 64 Bostwick et al v. Knight et al, 5 Dak. 305, 40 N. W. 344 65, 243 Boughner, State v. (on rehearing); S. D. , 63 N. W. 542. 380 Bough ner, State v.; 5 S. D. 461, 59 N. W. 736 377, 381, 382 Bowerman et al, John A. Tolman Co. v.; 5 S. D. 197, 58 N. W. 568. .' 123, 132, 140, 500 Bowler v. Eisenhood, 1 S. D. 577, 48 N. W. 136 118 Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000 17, 62, 101, 122,131,135, 148 Bowman v. Knott, S. D. , 66 N. W. 457 154 Boyum et al, Globe Invest. Co. v.; 3 N. D. 538, 58 N. W. 3S9. . . .468, 469, 513 Brace et al, Noyes et al v.; S. D. , 65 N. W. 1071 Bradley, Evans v.; 4 S. D. 83, 55 N. W. 721 Bradley, Lavin v.; 1 N. D. 291, 47 N. W. 384. Bradley, Mort. Co. v.; 4 S. D. 158. * c >T Bradley, Towle v.; 2 S- n ' Braithwaite v " " BT- ; " , .,ju, 216, 222 59, 113, 133, 170, 472 .. *ua 104, 146, 158 . ^. J37, 54 N. W. 699 128 . ^HK. 28, 37 N. W. 753 152, 193 ... OL al, Davenport v.; S. D. , 61 N. W. 47 148, 158, 488 Buchanan, Everett v. ; 2 Dak. 249, 6 N. W. 439 34, 35, 64, 69 Building & Loan Ass'n of Dak., Cranmer v.; S. D. , 61 N. W. 35 89, 1 24 Bulin, Judson v.; 6 Dak. 70. 50 N. W. 484 318 Bunker, State v.; S. D. 65 N. W 33 23, 261, 264, 380 Burchard, State v.; 4 S. D. 548, 57 N. W. 491 374 Burdick v. Haggart, 4 Dak. 13, 22 N. W. 589 79, 140, 146 Burdick v. Marshall, S. D. , 66 N. W. 462 90 Burdick, Marshal, U. S. ex rel Soott v.; 1 Dak. 137, 46 N. W. 571 191 Burk Tp. of Minnehaha Co. et al, Randall et al v.; 4 S. D. 337, 57 N. W. 4 68, 88, 89, 113, 119, 155, 212, 250, 478, 488 Burleigh, Dole v.; 1 Dak. 227, 46 N. W. 692 51, 67 Burnside, Johnson v.; 3 S. D. 230, 52 N. W. 1057 128 Burrisetal, Murry v.; 6 Dak. 170, 42 N. W. 25 305, 311 Xli TERRITORIAL AND DAKOTA CASES. Baker, Edwards & McCulloch Co. v.; 3-N. D. 170, 54 N. W. 1026. .70, 73, 509 Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723 68, 480 Hunk of Canton, Farmers' Bank of Frankfort v.; S. D. , 65 N. W. 1070 37, 91 Bank v. Kellogg, 4 S. D. 312, 56 N. W. 1071 267 r,;mk v. Laughlin, 4 N. D. 391 r 61 N. W. 473 18, 135, 469 Bank of Minot, Hoffman v.; N. D. , 61 N. W. 1031 79, 205, 239, 243, 453, 479 Bank v. Mann, 2 N. D. 456, 51 N. W. 946 116 Bank, McLaughlin v.; 6 Dak. 406, 43 N. W. 715 95, 163 Bank v. North, 2 S. D. 480, 51 N. W. 98 105, 129, 155, 505 Bank, Parker v.; 3 N. D. 37, 54 N. W. 313 48, 51 Bank v. Roberts, 2 N. D. 195, 49 N. W. 722 203 Bank of Volga, City of Huron v.; S. D. , 66 N. W. 816 199 Bank v. Willow Lake Tp., 1 N. D. 26, 44 N. W. 1002 102 Barber v. Johnson, 4 S. D. 528, 57 N. W. 225 318 Barnard & Leas Mfg. Co. v. Galloway et al, 5 S. D. 205, 58 N. W. 565. . Ill, 179, '194, 209, 246, 250, 470, 479 Barnes v. Clement, S. D.--, 66 N. W. 810 ". 169 Barnes, Clement v. ; S. D. , 61 N. W. 1126 86, 135, 182 Barnes, sheriff, Welsh v.; N. D. , 65 N. W. 675 195 Barnes, sheriff, State ex rel Mears v.; S. D. , 65 N. W. 688. .191, 223, 279 Bates v. Callendar, 3 Dak. 256, 16 N. W. 506 155 Bates v. R. Co., 4 S. D. 394, 57 N. W. 72, 19, 101, 104, 107 Bartilino, Leonosio v.; S. D. , 63 N. W. 543 302 Batterton v. Fuller, S. D. , 60 N. W. 1071 118 Bauder v. Schamber et al, S. D. , 63 N. W. 227 109, 134, 182, 472 Bauer, State v.; 1 N. D. 273, 47 N. W. 378 377 Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222 93 Belding, sheriff, et al, Noyes et al v.; 5 S. D. 603, 59 N. W. 1069 v . .8. 80. 90. 123. 126. 145. 154. 155 Belatti v. Pierce, Police Justice, S. D. , 66 N. W. 1088 323 Bierlien, Hodges v.; 4 S. D. 5J19, 56 M. W. 748 248, 468, 482, 483, 488 Big Missouri Min. Co., Loranger v.; S. D. , 61 N. W. 686 2 Bill v. Klaus, 4 Dak. 328, 30 N. W. 171 468 Bill, Myrick v.; 3 Dak. 284, 17 N. W. 268 141 Billinghurst, Dempsey v.; S. D , 64 N. W. 1124 ' 87, 501 Billinghurst v. Spink Co. et al., 5 S. D. 84, 58 N. W. 272 455, 490, 507 Billingsley v. Hiles et al, ^r-S. D. , 61 N. W. 687 83, 112, 125, 179, 182, 470, 486 Bingham v. Mears, 4 N. D. 437, 61 N. W. 808 20, 231 Bishop v. Chi., Mil. & St. P. Ry. Co., 4 N. D. 536, 62 N. W. 605 ; 21, 100, 133, 140. 166 Black Hills F. & M. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342 235, 237, 243 TERRITORIAL AND DAKOTA CASES. Xlll Black Hills Mer. Co. v. Gardiner et al, 5 S. D. 256, 58 N. W. 557. 250 Board Co. Com'rs Hughes Co. et al, Everett v.; 1 S. D. 365, 47 N. W. 296 190 Board of Co. Com'rs Hughes Co., State ex rel Bollard, att'ygen'l, v.; 1 S. D. 292, 46 N. W. 1127 92 Bode v. New England Inv. Co., 1 N. D. 121, 45 N. W. 197 149, 150 Bogle, Caul field v.; 2 Dak. 464, 11 N. W. 511 67, 86, 180, 468, 4b9 Bolkman v. Li. R. Co., 5 Dak. 69, 37 N. W. 731 98 Bond v. Charleen et al, 1 Dak. 215, 46 N. W. 585 511 Booker et al, Moore v.; 4 N. D. 543, 62 N. W. 607 50, 76, 77, 82, 94, 127, 137, 160, 214, 229, 232, 519 Booth, Purcell v.; 6 Dak. 17, SON. W. 196 156, 314, 315 Boss v. Northern Pac. Ry. Co., 2 N. D. 128, 49 N. W. 655 16, 25, 26, 64 Bostwick et al v. Knight et al, 5 Dak. 305, 40 N. W. 344 65, 243 Boughner, State v. (on rehearing); S. D. , 63 N. W. 542. 380 Boughner, State v.; 5 S. D. 461, 59 N. W. 736 377, 381, 382 Bowennan et al, John A. Tolman Co. v.; 5 S. D. 197, 58 N. W. 568 123, 132, 140, 50 Bowler v. Eisenhood, 1 S. D. 577, 48 N. W. 136 118 Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000 17, 62, 101, 122,131,135, 148 Bowman v. Knott, S. D. , 66 N. W. 457 154 Boyum et al, Globe Invest. Co. v.; 3 N. D. 538, 58 N. W. 339. . . .468, 469, 513 Brace et al, Noyes et al v.; S. D. , 65 N. W. 1071 173 Bradley, Evans v.; 4 S. D. 83, 55 N. W. 721 241 Bradley, Lavin v.; 1 N. D. 291, 47 N. W. 384 51 Bradley, Mort. Co. v.; 4 S. D. 158, 55 N. W. 1108 65, 248 Bradley, Towle v.; 2 S. D. 472, 50 N. W. 1057 226, 227, 228, 314, 318 Braithwaite v. Aiken et al, 2 N. D. 57, 49 N. W. 419 82, 85, 239 Braithwaite v. Jordan et al, N. D. , 65 N. W. 701 219 Braithwaite, North Star Boot & Shoe Co. v.; 4 Dak. 454, 34 N. W. 68. . . .42 Brakke, Valliar v. (on rehearing); S. D. , 64 N. W. 1119 155 Branstetter v. Morgan, 3 N. D. 290, 55 N. W. 758 43, 122, 134 Brennan, State v.; 2 S. D. 384, 50 N.W. 625 133, 422 Briggs, People v.; 1 Dak. 289, 46 N. W. 451 408 Brooks Elevator Co., Hostetter v.; 4 N. D. 357, 61 N. W. 49 67, 69, 113, 116, 138, 139, 181, 213, 247, 468, 469, 473 Brown et al v. Edmunds et al, 5 S. D. 508, 59 N. W. 731 235, 501, 510, 512 Brown Co., Plypaa v.; S. D. , 62 N. W. 962 116, 150, 216, 222 Brown v. McCaul et al, S. D. , 60 N. W. 151 39, 113, 133, 170, 472 Brundage v. Mellon, N. D. , 63 N. W. 209 104, 146, 158 Bruns, N. W. Fuel Co. v.; 1 N. D. 137, 54 N. W. 699 128 Bruns, Nichols v.; 5 Dak. 28, 37 N. W. 753 152, 193 Buchanan et al, Davenport v.; S. D. , 61 N. W. 47 148, 158, 488 Buchanan T Everett v. ; 2 Dak. 249, 6 N. W. 439 34, 35, 64, 69 Building & Loan Ass'n of Dak., Cranmer v.; S. D. , 61 N. W. 35 89, 124 Bulin, Judson v.; 6 Dak. 70, 50 N. W. 484 318 Bunker, State v.; S. D. 65 N. W 33 23, 261, 264, 380 Burchard, State v.; 4 S. D. 548, 57 N. W. 491 374 Burdick v. Haggart, 4 Dak. 13, 22 N. W. 589 79, 140, 146 Burdick v. Marshall, S. D. , 66 N. W. 462 90 Burdick, Marshal, U. S. ex rel Soott v.; 1 Dak. 137, 46 N. W. 571 191 Burk Tp. of Minnehaha Co. et al, Randall et al v.; 4 S. D. 337, 57 N. W. 4 68, 88, 89, 113, 119, 155, 212, 250, 478, 488 Burleigh, Dole v.; 1 Dak. 227, 46 N. W. 692 51, 67 Burnside, Johnson v.; 3 S. D. 230, 52 N. W. 1057 128 Burrisetal, Murry v.; 6 Dak. 170, 42 N. W. 25 305, 311 xiv TERRITORIAL AND DAKOTA CASES. Bush et al v. Northern Pac. Ry. Co., 3 Dak. 444, 22 N. W. 508 180, 467, 468 C. AUraan & Co. r. Ginn, 1 N. D. 402. 48 N. W. 336 Kil Cady v. Chi., M. & St. P. Ry. Co., 5 Dak 97, 37 N. W. 221 251 Cady et, al, Cole et al v.; 2 Dak. 29, 3 N. W. 322 : 239. 512 Caldwell v. Maxfield et al, S. D. , 64 N. W. 166 19 Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426 49, 67, 93, 119. 131, 137, 247 ralifornia Ins. Co., Travelers' Ins. Co. v.; 1 N. D. 151. 50 N. W. TIKI. . . . 208, 209, 220, 242, 243, 318 Calkins v. Seabury-Calkins Consol. Min. Co., 5 S. D. 299, 58 N. 797 ... 68, 146. 468, 480 Callender, Bates v.; 3 Dak. 256, 16 N. W. 506 . 155 Callender v. Edmison et al, S. D. , 65 N. W. 425 203 Campbell, Judge, American Sav. & Loan Ass'n v.; S. D , 65 N. W. 815 !>:; J Campbetl, Cir. Judge, Ciiy of Huron v.; 3 S. D. 309. 53 N. W. 182 191 Canham v. Piano Mf'g Co., 3 N. D. 229, 55 N. W. 583 163 Capital Bank of St. Paul v. School Dist. No. 53 of Barnes Co., 1 N. D. 479, 48 N. W. 363 102 Carlson v. Sioux Falls Water Co. (on rehearing), S. D. , 65 N. W. 419 21, 100 Carroll et al, Quebec Bunk v.; IS. D. 1, 44 N. W. 723 208, 224, 238 Carson et al v. Gillitt et al, 2 N. D. 255, 50 N. W. 710 18, 101 Carter, City of Huron v.; 5 S. D. 4, 57 N. W. 947 4, 190, 309, 358, 511 Casperson, Tollerton & Stetson Co. v.; S. D. , 63 N. W. 908 206, 214, 226, 232, 483, 486, 508 Caul field v. Bogle. 2 Dak. 464, 11 N. W. 511 67, 86, 180, 468, 469 Cawley et al v. Day et al, 4 S. D. 221, 56 N. W. 749 50, 1 13, 136 Chacey v. City of Fargo, N. D. , 64 N. W. 932 88, 96 Champion v. Com'rs, 5 Dak. 416, 41 N. W. 739 .8, 194, 209, 351, 354 Chandler v. Kennedy, S. D. , 65 N. W. 439. 52, 73, 137, 162, 182 Chapman et al, State v.; IS. D. 414, 47 N. W. 411 115, 271, 363, 366, 367, 416, 418 Charleen et al, Bond v.; 1 Dak. 215, 46 N. W. 585 511 Chase, Hannah v.; N. D. , 61 N. W. 18 88 Cheatam v. Wilbur, 1 Dak. 335, 46 N. W. 580 (14 Chi., Mil. & St. P. Ry. Co., Bailey v.; 3 S. D. 531, 54 N. W. 596 131, 471 Chi., Mil. & St. P. Ry. Co., Cady v.; 5 Dak. 97, 37 N. W. 221 251 Chi., Mil. & St. P. Ry. Co., Church v.; S. D. , 60 N. W. 854 Kill Chi., Mil. & St. P. Ry. Co., Coates, v.; S. D. . 65 N. W. 1067 91, !K! Chi. Mil. & St. P. R. Co., Elliott v.; 5 Dak. 523, 41 N. W. 758 168 Chi. Mil. & St. P. R. Co., Gates v.; 2 S. D. 422, 57 N. W. 200 159 Chi., Mil. & St. P. Ry. Co., Harrison, v.; S. D. , 60 N. W. 405. . 98, 103, 166, 486, 489, 501 Chi., Mil. & St. P. Ry. Co., Haugen v.; 3 S. D. 394, 53 N. W. 769 10, 11 Chi., Mil. & St. P. Ry. Co., Hebron et al v.; 4 S: D. 538, 57 N. W. 494. . 97, 103 Chi. Mil. & St. P. Ry. Co., Huber v.;'6 Dak. 392, 43 N. W. 819. 98 Chi. Mil. & St. P. Ry. Co., Kronk v.; 3 S. D. 93, 52 N. W. 420 37 Chi. Mil. & St. P. R. Co., Lighthouse v.; 3 S. D. 518, 54 N. W. 320.. .18, 100 Chi. Mil. & St. P. Ry. Co., Meuer v.; 3 S. D. 322, 53 N. W. 187 455 Chi. Mil. & St. P. Ry. Co., Peart v.; 5 S. D. 337, 58 N. W. 806 29, 31, 81, 201 Chi. Mil. & St. P. Ry. Co., Saunders v.; S. D. , 60 N. W. 148 99 Chi. Mil. & St. P. Ry. Co., Sheldor et al v.; S. D. , 62 N. W. 955. . . 18 Chi. Mil. & St. P. Ry. Co., Smith v.; 4 S. D. 30, 54 N. W. 931 481, 508 Chi. Mil. & St. P. Ry. Co., Smith v.; 4 S. D. 71, 55 N. W. 717 21, 37,98,117,134 TERRITORIAL AND DAKOTA CASES. XV Chi. Mil. & St. P. Ry. Co., Stone v.; S. D. , 65 N. W. '28 50, 90 Chi. Mil. & St. P. Ry. Co., Sweet v., S. D. . 60 N. W. 77 100 Chi. Mil. & St. P. Ry. Co., Uhe v.; 4 S. D. 505. 57 N. W. 484 22, 25, 63, 64, 150 Chi. Mil. & St. P. Ry. Co., Uhe v.; 3 S. D. 563, 54 N. W. 601. .. .26, 124, 229 Chi. Mil. & St. P. R. Co., White v.; 1 S, D., 326. 47 N. W. 146. .. .97, 239, 241 Chi. & N.W. Ry. Co., Alt v.; 5 S. D. 20, 57 N. W. 1126. . . .64, 68, 86, 138, 180 Chi. & N. W. Ry Co., Karr v.; 6 Dak. 14, 50 N. W. 125 312, 315 Chi. & N. W. Ry. Co., Kelsey v.; IS. D. 80, 45 N. W. 204 97, 98, 134 Chi. St. P., M. & O. R. Co., Bolkman v.; 5 Dak. 69, 37 N.W. 731 98 Chi. St. P., M. & O. R. Co., Page v.; S. D. . 64 N. W. 137 93 Chi. St. P., M. & O. R. Co., Wendt v., 4 S. D. 476, 57 N. W. 226 92. 110, 123, 124, 125, 140,168 Chi; & N. W. Ry. Co., Karr v.; 6 Dak. 14, 50 N. W. 125 312, 315 Chilson et al, Anderson v.; S D. , 65 N. W. 435 62, 194 Christensen, Searles v.; S. D. , 60 N. W. 29 83, 151, 233, 234, 481, 488 Christensen. Territory v.; 4 Dak. 410, 31 N. W. 847 375, 380 Church v. Chi., Mil. & St. P. R. Co., S. D. . 60 N. W. 854 166 Church, State v.; S. D. . 60 N. W. 143. . .108, 369, 375, 377, 380, 382, 399 Church, SUte v. (on rehearing); S. D. , 64 N. W. 152. . . .400, 403, 404, 428 Church etal, Winona Lumber Co. v.; S. D. , 62 N. W. 107 118 Citizens Bank v. Crouch, 3 S. D.' 410, 53 N. W. 862 481, 490, 508 Citizens Nat. Bank of Madison, Dielmann v.; S. D. , 66 N. W. 311.. 741 14, 91, 127 City of Chamberlain, Nat. Tube Works Co. v.; 5 Dak. 54, 37 N. W. 761. . 48 City of Fargo, Chacey v.; N. D. , 64 N. W. 932 88, 96 City of Grafton, Ouverson v.; N. D. , 65 N. W. 676. . . 21, 22, 103, 117, 130, 167, 168 City of Grand Forks, Larson v.; 3 Dak. 307, 19 N. W. 414 85 City of Huron v. Bank of Volga, S. D. , 66 N. W. 815 199 City of Huron v. Campbell, Cir. Judge. 3 S. D. 309, 53 N. W. 182 191 City of Huron v. Carter. 5 S. D. 4, 57 N. W. 947 4, 190, 309. 358, 511 City of Huron, Huron Waterworks Co. v.; 4 S. D. 102, 55 N. W. 759 93, 223, 241 Citv of Huron, Schaetzel v., (White, intervenor); * S. D. . 60 N. W. '741 8, 13,241. 351, 354 City of Mitchell, Edinburg-American Land & Mort. Co.v.; 1 S. D. 593, 48 N.W. 134 60, 89, 109, 136 Citv of Rapid City et al, Shickle-Harrison & Howard Iron Co. v.; S. D. , 66 N. W. 499 .506 City of Sioux Falls v. Kirby, S. D. , 60 N. W. 156 190, 207, 511 City of Sioux Fajls et al, Pettigrew et al v.; 5 S. D. 646, 60 N. W. 27 82, 146, 151 City of Vermillion, Jenkinson et al, v.; 3 S. D. 238, 52 N. W. 1066. 82, 110, 128 Citv of Vermillion, Vermillion Artesion Well, E., L., M., I. & I. "Co. v.; S. D. , 61 N. W. 802 86, 123, 130 Clark v. Evans et al, S D . , 60 N. W. 862 87, 130, 155 Clark v. Wallace et at, 1 N. D. 404, 48 N. W. 339 162, 163 Clement v. Barnes, S. D. , 61 N. W. 1126 86, 135, 182 Clement, Barnes v., S. D. , 66 N. W. 810 : 169 Cleveland v. Evans et al, 5 S. D. 53. 58 N. W. 8. 483, 488, 510 Cloughetal, Corbett et al v.; S. D. , 65 N. W. 1074 20, 121, 127 Coates v. Chi. Mil. & St. H Ry. Co., S. D. , 65 N. W. 1067 91, 93 Coates, Stamm, v.; 4 Dak. 69, 22 N. W. 593 15, 27, 80, 132 Coats v. Arthur, 5 S. D. 274, 58 1ST. W. 675 199 Cobban, Farmer v.; 4 Dak. 425, 29 N. W. 12 193 Cole v. Custer Co. Ag'l, Mineral & Stock Ass'n, 3 S. D. 272, 52 N. W. 1086 2, 3, 48 XVi TERRITORIAL AND DAKOTA CASES. Cole et al v. Cacy et al, 2 Dak. 29, 3 N. W. 322 23!), 512 Coler et al v. Rhoda School Tp., S. D. , 63 N. W. 158 87, 164, 165, 174 Collins etui. Glide v.; S. D. . 66 N. W. 466 Ill, 155,201). 24<> Comaskey v. Northern Pac, R. Co., 3 N. D. 276, 55 N. W. 732 22, 171 Oomfoed, First Nat. Bank v.; 4 Dak. 167. 28 N. W. 855 179, 247 Coinmercial Nat. Bank et al, Smith et al, v.; S. D. , 64 N. W. 52'.). . (>5, 248 Commercial Nat. Bank v. Smith et al, 1 S. D. 28 44 N. W. 1024 83, 190 Com'rs, Champion v.; 5 Dak. 416, 41 N. W. 739 8, 194, 209, 351. 354 Connor v. Knott, S. D. , 66 N. W. 461 119 Conner v. Nat. Bank of Dak. et al, S. D. , 64 N. W. 519. . . .119, 164, 249 Conrad et al, Ormsby v.; 4 S. D. 599, 57 N. W. 778. 83 ( 'om-ad v. Smith, sheriff, 2 N. D. 408, 51 N. W. 720 , 134 Conrad. Territory v.; 1 Dak. 348, 46 N. W. 605 40!) Consolidated Land & Irrigation Co. v. Hawley , sheriff, S. D. , 63. .. N. W. 904 103, 141 Cooley et al, Harkins v.; 5 S. D. 227, 58 N. W. 560 2, 38, 50, 481 " Corbe'tt et al v. Clough et al, S. D. , 65 N. W. 1074 20. 121, 127 Corrigan et al, Reeves & Co. v ; 3 N. D. 415, 57 N. W. 80. . . .17, 88, 133, 161 Corson et al, Scheffer et al v.; 5 S. D. 233. 58 N. W. 555 84 Coughran. Turner v.; S. D. . 66 N. W. 810 201 Coughran v. Wilson, S. D. , 63 N. W. 774 156, 265 Couk, Territory v.; 2 Dak. 188, 47 N. W. 395 386 Cramner v. Building & Loan Ass'n of Dak., S. D. , 61 N. W. 35. .89, 124 Cranmer v. Kohn et al, S. D, , 64 N. W. 125 169 Crouch, Citizens Bank v.; 3 S. D. 410, 53 N. W. 862 481, 490, 508 Crouch, Himebaugh v.; 3 S. D. 410, 53 N. W. 862 481, 490, 505, 508 Cross, sheriff, Northrup v.; 2 N. D. 433, 51 N. W. 718 42, 43, 154, 172 Crow Dog, U. S. v.; 3 Dak. 106, 14 N. W. 437 386 Custer Co. v. Albien et al, S. D. , 64 N. W. 533 32, 3S, 44 Custer Co. Ag'l, Mineral & Stock Ass'n, Cole v.; 3 S. D. 272, 52 N. W. 1086 2, 3, 48 Daeley et al v. Minn. & N. E. Co., 4 N. D. 269, 60 N. W. 50 16, 133, 138, 469 Dak. F. &M. Ins. Co., Gude et al v.; S. D. , 65 N. W. 27 121, 143 Dak. F. & M. Ins. Co., Kent v.; 2 S. D. 300, 50 W. 85 54, 55, 61, 126, 136, 137, 138, 151.489 Dak. F. & M. Ins. Co., South Bend Mfg. Co. v.; 2 S. D. 17, 48 N. W. 310 103 Dak. Loan & Trust Co., Ulrick v.; 2 S. D. 285, 49 N. W. 1054 (on rehear- ing); 51 N. W. 1023 83 Dalbkermeyer v. Scboltes et al, 3 S. D. 183, 52 N. W. 871 : 485, 488 Dalbkermeyer v. Scholtes et al, 3 S. D. 124, 52 N. W. 261 511 Daly, Longley v.; 1 S. D. 257, 46 N. W. 247 85 Davenport v. Buchanan et al, S. D. , 61 N. W. 47 148, 158, 488 Davenport, Ryan v.; 5 S. D. 203, 58 N. W 568 233 Davey et al v. First Nat. Bank of Dead wood, S. D. , 66 N. W. 122.. .113 Davis v. Iverson et al. 5 S. D. 295, 58 N. W. 796 140 Davis et al v. Mathews, S. D , 66 N. W. 456 H>0 Davis, State ex rel Edwards v.; 2 N. D. 461, 51 N. W. 942 236, 237, 432 Day et al, Cawley et al v.; 4 S. D. 221, 56 N. W. 749 50, 113, 136 Day et al, Johnson v.; 2 N. D. 295, 50 N. W. 701 49, 157 Da/ey, Doran v.,- N. D. , 64 N. W. 1023 213 Dean, Henry v.; 6 Dak. 78, 50 N. W. 487 66, 69, 112 De Groat, Heger, v.; 3 N. D. 354, 56 N. W. 150 16, 95. 126, 142, 147, 171, 172 De Laray et al, Fish et al, v.; S. D. , 66 N. W. 465 142 DeLendfecie v. Peck, 1 N. D. 422, 48 N. W, 342 49, 64, 65, 246 TERRITORIAL AND DAKOTA CASES. XVil Dell Rapids Tp., Van Antwerp v.; 3 S. D. 305, 53 N. W. 82; (on rehear-. . ing) 5 S. D. 447, 59 N. W. 209 173 Demmon v. Mullen, S. D. , 62 N. W. 380 105 Dempsey v. Billing-hurst, S. D. , 64 N. W. 1124 87. 501 DeWitt, Willis v.; 3 S. D. 281, 52 N. W. 1090 41, 43 Deyette et al, Adams & Westlake Co. v ; 5 S. D. 418, 59 N. W. 214 / 60, 61, 110, 111, 150, 470, 479. Dielman v. Citizens Nat. Bank of Madison, S. D. , 66 N. W. 311 14, 91, 127 D. M. Osborn & Co., Humpfner v.; 2 S. D. 310, 50 N. W. 88 48 Dole v. Burleigh, 1 Dak. 227, 46 N. W. 692. 51, 67 Donnelly, Slattery, v.; 1 N. D. 264. 47 N. W. 375 102 Doran v. Dazey, N. D. , 64 N. W. 1023 213 Dows et al v. G-laspel, 4 N. D. 251. 60 N. W. 60 92, 140, 159, 170 Drew etal v. Water-town F. Ins. Co., S. D. , 61 N. W. 34 81, 111, 133 Duluth & D. El. Co., Gould v.; 3 N. D. 96 (101), 54 N. W. 316 (318) 51, 511 Duluth & D. El. Co., Gould v.; 2 N. D. 216, 50 N. W. 969 152. 179, 181. 182, 183 Duluth Dry-Goods Co. v. Heidel et al, 4 N. D. 427, 61 N. W. 155. . '. .214, 464 Dunstan v. Northern Pac. R. Co.. 2 N. D. 46, 49 N. W. 426 171 Dupree v. Stanley Co. et al, S. D. - , 65 N. W. 426 195 Eaton, In re; 4 N. D. 514; 62 N. W. 597 - 88, 174 Edinburg-American Land & Mort. Co. v. City of Mitchell, 1 S. D. 593, 48 N. W. 134 60, 89, 109, 136 Edminster v. RaMibun, 3 S. D. 129. 52 N. W. 263 312, 320 Edmison et al, Callende, v.; S. D. , 65 N. W. 425 203 Edmunds ei, al, Brown et al v.; 5 S. D. 508, 59 N. W. 731. . . .235, 501, 510, 512 Edwards, Farrell v.; S. D. , 66 N. W. 812 158, 170, 203 Edwards & McCulloch Co. v. Baker, 2 N. D. 289, 50 N. W. 718 16, 108, 158, 246 Edwards & McCulloeh Co. v. Baker, 3 N. D. 170, 54 N. W. 1026. .70, 73, 509 Egan, Territory v.; 3 Dak-. 125. 13 N. W. 568. .271, 368 Eisenhood, Bowler v.; 1 S. D. 577. 48 N. W. 136 118 Elevator Co., Fuller v.; 2 N. D. 220, 50 N. W. 359. '. 113 Elevator Co., Gould v.; 2 N. D. 216, 50 N. W. 970 86, 135, 236 Elevator Co., LaRue v.; 3 S. D. 637, 54 N. W. 806 168 Ell v. Northern Pacific R. Co. , 1 N. D. 336. 48 N. W. 222 168, 169 Elliott v. R. R. Co., 5 Dak. 523, 41 N. W. 758 168 Ellis v. Wait, 4 S. D. 31, 54 N. W. 925 131, 471, 487, 490, 513 Ellis v. Wait, 4 S. D. 504, 57 N. W. 232 504 Enderlin State Bank v. Jennings, 4 N. D. 228, 59 N. W. 1058 197, 198 Engle v. Yorks, S. D. , 64 N. W. 132. 5, 38, 45, 156, 286. 287 English v. Goodman et al, 3 N. L. 129, 54 N. W. 540. 31, 39 Enos et al v. St. Paul F. & M. Ins. Co., 4 S. D. 639, 57 N. W. 919 ...:.... 36, 130, 131 Eppinger, Bowman v.; 1 N. D. 21, 44 N. W. 1000 ..: 17, 62, 101, 122, 131, 135, 148 Esshon v. Watertown Hotel Co., S. D. , 63 N. W. 229. .. .92, 127, 147, 470 Evans v. Bradley, 4 S. D. 83, 55 N. W. 721 241 Evans et al, Clark v.; S. D. 60 N. W. 862 87, 130, 155 Evans et al. Cleveland v.; 5 S. D. 58, 58 N. W. 8 483, 488, 510 Evans et al, Gress v.; 1 Dak. 371, 46 N. W. 1132 ... .66, 205, 212, 246, 250, 480 Evans v. Hughes Co.. 4 S. D. 33,. 54 N. W. 1049 252 Evans, Plunkett v.; 2 S. D. 434. 50 N. W. 561 261 Evans, Waldron v.; 46 N. W. 607 112, 152, 246, 249, 513 Evanson, Nollman et al v.; 1 D;ik. N. D. , 65 N. W. 686. .86. 197, 199, 213 Evenson v. Webster, 3 S. D. 382, 53 N.- W. 747 51, 111, 132, 146,246, 484 XViii TERRITORIAL AND DAKOTA CASES. Everitt v. Board of Co. Com'rs Hughes Co., ot al, 1 S. D. 365 47 N. W. 296 190 Everett v. Buchanan, 2 Dak. 249, 6 N. W. 339 34, 35, 64, 69 Fahey v. Machine Co., 3 N. D. 220, 55 N. W. 580 17, 105, 133, 148 Falde, Kennedy v.; 4 Dak. 319, 29 N. W. 667 (is. 480 Fall v. Johnson, S. D. , 65 N. W. 909 146, 147 Fall River Co. v. Powell, 5 S. D. 49, 58 N. W. 7 90 Fargo Gas & Coke Co. v. Fargo G. & E. Co., 4 N. D. 219, 59 N. W. 1066 17, 22, 170, 171 Fargo G. & E. Co., Fargo Gas & Coke Co. v.; 4 N. D. 219, 59 N. W. 10(><> 17. 22, 170, !71 Fargo Gas & E. Co., Hazeton Boiler Co. v.; 4 N. D. 365, 61 N. W. 151 18 Fargo et al v. Jennings, 3. D. , 65 N. W. 433 203 Fargo et al v. Palmer et al, 4 Dak. 232, 29 N. W. 463 66, 205, 212, 458, 468, 480 Faris, sheriff, Jones Lum. & Mer. Co. v.; S. D. , 60 N. W. 403 69, 101, 135, 151. 153, 194, 234, 246, 481, 484, 485, 488, 489 Farmer v. Cobban, 4 Dak. 425, 29 N. W. 12 193 Farmers' Bank of Frankfort v. Bank of Canton, S. D. , 65 N. W. 1070 37, 91 Farmer's, etc., Bank v. School Dist. No. 53, 6 Dak. 255, 42 N. W. 767 102 Farmers' Shipping Ass'n et al, Loftus et al v.; S. D. , 65 N. W. 1076 142, 143, 16f> Farrell v. Edwards, S. D. , 66 N. W. 812 158. 170, 203 Farrington v. New England Inv. Co. et al., 1 N. D. 102, 45 N. W. 191. . 144, 145 Fan-is v. Vannier; 6 Dak. 186, 42 N. W. 31 195 Faulkner, McCormick H. M. Co. v.; S. D. , 64 N. W. 163 19, 104, 128, 161 Feldenheimer v. Tressel, 6 Dak. 94, 50 N. W. 720 252 Feldman v. Trumbower, S. D. , 64 N. W. 189 48, 87 Ferguson, Frye et al v.; S. D. , 61 N. W. 161 ... .80, 112, 131, 132, 133, 189 Feury v. McCormick. H. M. Co.. S. D. , 61 N. W. 162 88, 172 Field et al v. Great Western El. Co., N. D. , 67 N. W. 147 510 Finney v. R. R. Co., 3 Dak. 270, 16 N. W. 500 86. 94 First Nat. Bank v. Comford, 4 Dak. 167, 28 N. W. 855 179, 247 First Nat. Bank v. Northwestern Elevator Co., 2 S. D. 356, 50 N. W.. . 356 205, 478 First Fat. Bk. of Deadwood, Davey et al, v.; S. D. , 66 N. W. 122. . . .113 First Nat. Bk. of Devil's Lake v. Merchants' Nat. Bk. Devil's Lake et al, N. D.-, 64 N. W. 941 68, 73, 138, 181, 213, 469, 472 First Nat. Bank Grand Forks, Anderson v.; N. D. , 64 N. W. 114 82, 107, 109. 122, 130, 160, 183 First Nat. Bank of Pierre v. Smith et al, S. D. , 65 N. W. 437 22,87, 125, 147 Fish et al v. DeLaray et al, S. D. , 66 N. W. 465 142 Fisher, Gage v.; -N. D. , 65 N. W. 809 202 Flagg v. School Dist. No. 70, N. D , 65 N. W. 674 164 Flick, Frost v.; 1 Dak. 131. 46 N. W. 508. 144 Foley-Wadsworth Implement Co. v. Porteous, S. D. , 63 N. W. loo 67, 187, 199, 200, 214, 486, 487, 513. Folsom, Halley v.; 1 N. D. 325, 48 N. W. 219 95, 122, 161 Foote, Wambole v.; 2 Dak. 1, 2 N. W. 239 239. 240, 247 Forberg, Harvester Co. v.; 2 S. D. 357, 50 N. W. 628 303 Foster v. Lumber Co., 5 S. D. 57, 58 N. W. 9 198 Fraley, Bently et al v.; 1 Dak. 36, 46 N. W. 505 252, 501 Francis & Southard, Miner v.; 3 N. D. 549. 58 N. W. 343 316, 320 Frank, Jordan et al v.; 1 N, D. 206, 46 N. W. 171 , ,,.,,. J19 TERRITORIAL AND DAKOTA CASES. xix Franz Falk Brewing Co. v. Mielenz et. al, 5 Dak. 136, 37 N. W. 728 86, 138, 468, 470, 472, 484 Frazer et al, State ex rel Bartlett v.; 1 N. D. 425, 48 N. W. 343 115 Freeman, Red River Val. Nat. Bk. of Fargo v.; 1 N. D. 196, 46 N. W. 36 173, 236, 238 Fremont E. & M. M. V. R. Co., Bates v.;4S. D. 394, 57 N. W. 72 19, 101, 104, 107 Fremont, E. & M. V. R. Co., Humphreus v.; S. D. , 65 N. W. 466 20, 97 Fremont, E. & M. V. R. Co., Lewisjv.; S. D. , 63 N. W. 781.... 103, 135 Fremont E. & M. V. R. Co., Mattoon.; S. D. , 60 N. W. 740 18. 99, 100, 101, 119, 179, 500 Fremont, E. & M. V. R. Co., Sprague v.; 6 Dak. 86, 50 N. W. 617 96, 172 Fremont, E. & M. V. R. Co., Yankton F. Ins. Co. v.; S. D. , 64 N. W. 514 19, 46, 102 French v. Lancaster, 2 Dak. 276, 9 N. W. 716 66, 205, 212, 469, 480 Fromherz v. Yankton Fire Ins. Co., S. D. , 63 N. W. 784 19, 103 Frost v. Flick, 1 Dak. 131, 46 N. W. 508 144 Fuller, Batterton v.; S. D. , 60 N. W. 1071 118 Fuller v. Elevator Co., 2 N. D. 220, 50 N W. 359 113 Euller v. Northern Pac. R. Co., 2 N. D. 220, 50 N. W. 359 94 Frye et al v. Ferguson, S. D. , 61 N. W. 161... .80, 112, 131, 132, 133, 189 Flypa v. Brown Co., -S. D. , 62 N. W. 962 116, 150, 216, 222 Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867 47, 49, 51, 80, 211, 237, 459, 460 Gade v. Collins et al, S. D. , 66 N. W. 466 Ill, 155, 209, 246 Gage v. Fisher, N. D. , 65 N. W. 809 202 Gaines v. White, sheriff, 1 S. D. 434, 47 N. W. 524 35, 42, 67, 84, 178 Galligan et al, Seaman v.; S. D. , 66 N. W. 458 141. 145, 153 Galloway et al, Barnard & Leas Mfg. Co. v.; 5 S. D. 205, 58 N. W. 565 . . . .'... Ill, 179, 194, 209, 246, 250, 470, 479 Galloway v. McLean, 2 Dak. 372, 9 N. W. 98 ,68, 201, 480 Gardiner et al. Black Hills Mer. Co. v.; 5 S. D. 256, 58 N. W. 557 250 Garrison et al, Uhlig v.; 2 Dak. 99, 2 N. W. 258 32 Gates v. Ry. Co., 2 S. D. 422, 57 N. W. 202 159 Gay, Territory v.; 2 Dak. 125, 2 N. W. 477 376, 381, 382, 399, 405, 427 Geo. W. Van Dusen & Co. v. Arnold et al, 5 S. D. 588, 59 N. W. 961 157 George v. Triplett, N. D. , 63 N. W. 891 124 Ger. Ins. Co., School Dist. No. 116 v.; S. D. , 64 N. W. 527 104 Giddings, Rapp v.; 4 S. D. 492, 57 N. W. 237 17, 110, 133 Gilbert et al, Moline Plow Co. v.; 3 Dak. 239, 15 N. W. 1 16, 36, 94 Gillitt et al, Carson et al v.; 2 N. D. 255, 50 N. W. 710 18, 101 Oilman et al, Kellogg, Johnson & Co. v.; 3 N. D. 538, 58 N. W. 339 38, 44, 81, 134 Gilman, Plymouth Co. Bank v.; 6 Dak. 304, 50 N. W. 194 101, 109, 126, 159, 168, 248 Gilmcre et al, Goose River Bank v.; 3 N. D. 188, 54 N. W. 1032 73, 75, 189, 213, 463, 471 Gilmore, Johnson v.; S. D. , 60 N. W. 1070 67, 95, 117, 123, 130, 131, 138, 146, 471, 481, 487. 505 Gilruth, Stewart v.; S. D. , 65 N. W. 1065 20, 161 Ginn, C. Altman & Co. v.; 1 N. D. 402, 48 N. W. 336 161 Glaspel, Dows et al v.; 4 N. D. 251, 60 N. W. 60 92, 140, 159, 170 Gleckler, Baird et al v.; 3 S. D. 300, 52 N. W. 1097 75, 83, 125, 194, 246 Gleckler et al v. Slavens et al, 5 S. D. 364, 59 N. W. 323 93, 122, 130 Globe Invest. Co. v. Boyum et al, 3 N. D. 538, 58 N. W. 339 468, 469, 513 Godfrey, Territory v.; 6 Dak. 46, 50 N. W. 481 377 Gold St. v. Newton, in re opening, 2 Dak. 149, 3 N. W. 329: 64, 68, 139, 205, 458, 480 XX TERRITORIAL AND DAKOTA CASES. Gold St. v. Newton, in re opening, 2 Dak. 39, 3 N. W. 311, 8 N. W. 130 204, 21 1, 453, 507 Golden Terra Min. Co. v. Smith et al, 2 Dak. 377, 11 N. W. 98 49, (5(5. 7o. 84, 111, 137, 174, 205, 212, 480 Goodman etal, English v.; 3 N. D. 129. 54 N. W. 540 31, 39 Goose River Bank v. Gilmore et al, 3 N. D. 188, 54 N. W. 1032 73, 75, 189, 213, 463, 471 Gordan et al, Haxtun Steam Heater Co. v.; 2 N. D. 246, 50 N. W. 708 114 Gotzian & Co. v. McCollum, sheriff, S. D. , 65 N. W. 1068 84 Gould v. Duluth & D. El. Co., 3 N. D., 96 (101), 54 N. W. 316 (318). . . .51, 511 Gould v. Duluth & D. El. Co., 2 N. D. 216, 50 N. W. 969 152, 179, 181, 182, 183 Gould v. Elevator Co., 2 N. D. 216, 50 N. W. 970 86, 135, 236 Gram v. Northern Pac. R. Co., 1 N. D. 252, 46 N. W. 972 21, 22, 95, 96, 103, 128. 166, 167, 509 Grand Island & W. C. R. Co., Black Hills P. & M. Co. v.; 2 S. D. 508. 59 N. W. 731 235, 237, 243 Granger v. Roll et al, S. D. , 62 N. W. 790 94, 152, 209, 240, 241, 512 Grant, Hart v.; S. D. , 66 N. W. 322 196, 200 Grant v. Grant, S. D. , 60 N. W. 743 83, 86, 237 Great Western El. Co., Field et al v.; N. D. , 67 N. W. 147 150 Greeley v. McCoy, 3 S. D 624, 54 N. W. 659 252 Greeley v. Windsor, 3 S. D. 138, 52 N. W. 674 8 Greeley v. Windsor et al, 1 S. D. 618, 48 N. W. 214 239 Greeley v. Windsor et al, 2 S. D. 361, 50 N. W. 630 241, 312 Green v. Hughitt School Twp. . 5 S. D. 452, 59 N. W. 224 123 Greenleaf v. Greenleaf, S. D. . 61 N. W. 42 . , 88, 151 Greenly v. Hopkins, S. D. , 64 N. W. 1128 209, 483, 487, 513 Gress v. Evens et al, 1 Dak. 371, 46 N. W. 1132 66, 205, 212, 246, 250, 480 Griggset al. Hennessy v.; 1 N. D. 52, 44 N. W. 1010 158 Grigsby et al v. Minnehaha Co., S. D. , 64 N. W. 179 500 Grigsby v. Western Union Tel. Co., 5 S. D. 561, 59 N. W. 734 4, 5, 19, 45, 46, 102, 146, 159 Grlswold v. Sundback et al, (on rehearing), 4 S. D., 441, 60 N. W. 1068. . 38, 42, 102, 144, 154 Gudeetal v. Dak. F. & M. Ins. Co., S. D. , 65 N. W. 27 121, 143 Guenthner, Thompson & Sons Mfg. Co. v.; 5 S. D. 504, 59 N. W. 729, 237, 510 Gull River Lum. Co. v. Keefe et al, 6 Dak. 160, 41 N. W. 743 4 Gull River Lum. Co. v. School Dist. No. 39, 1 N D. 500, 48 N. W. 427. .. 47, 49, 52 Gunderson et al, Aultman & Taylor Co. v.; S. D. , 60 N. W. 859. . . 128, 152, 155, 161 Gunderson, Hackett v., 1 S. D. 479, 47 N. W. 546 245, 511, 512 Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546 245, 511, 512 Hafsoos, State v.; IS. D. 382, 47 N. W. 400 269 Haggart, Burdick v.; 4 Dak. 13, 22 N. W. 589 . .79, 140, 146 Haggart, Keith v.; 2 N. D. 18, 48 N. W. 432 16, 108, 127 Haggert, Roberts v.; 4 Dak. 210, 29 N. W. 656 500 Hal'l v. Harris (on rehearing), 2 S. D. 331, 50 N. W. 98 64 Halley v. Folson, 1 N. D. 325, 48 1ST. W. 219 95, 122, 161 Halvorson v. Mort., Bank & Investment Co., N. D. , 54 N. W. 1026. . 83, 238 Hannah v. Chase, N. D. , 61 N. W. 18 88 Hannawalt, Sykes v.; N. D. , 65 N. W. 682 116 Hansen et al, Kehoe v.; S. D. , 65 N. W. 1075 172, 248, 455, 482, 489, 513 Hanson v. Tp. of Red Rock, S. D. , 63 N. W. 156 87, 123, 124, 132, 158 TERRITORIAL AND DAKOTA CASES. Hardy v. Purinton, treasurer, S. D. , 61 N. W. 158 212 Harkins v. Cooley et al, 5 S. D. 227, 58 N. W. 560 2, 38, 50, 481 Harney Peak Tin Min., Mill. & Mfg. Co. et al, Marshall et al v.; 1 S. D. 350, 47 N. W. 290 (on rehearing 3 S. D. 473, 54 N. W. 272) 13, 148. 206, 454. 507 Harrigan et al, Van Brunt & Davis Co. v ; S. D. , 65 N. W. 421. .20, 118 Harris, Hall v. (on rehearing 2 S. D. 331. 50 N. W. 98 64 Harris Mfg. Co. v. W;ilsh, 2 Dak. 41, 3 ,N. W. 307 239 Harris v. Walking, "5 Dak. 374, 40 N. W. 536 321 Harrison v. Chi., Mil. & St. P. R. Co., S. D. , 60 N. W. 405 : 98, 103, 166, 486, 489, 501 Hart v. Grant, S. D. , 66 N. W. 322 196, 200 Harvester Co. v. Forberg, 2 S. D. 357, 50 N. W. 628 303 Haseleu et al, Prairie School Tp. v.; 3 N. D. 328, 55 N. W. 938. .111, 128, 165 Haserodt et al, Holden v.; 2 S. D. 220, 49 N. W. 97 454 Haserodt et al, Holden v.; 3 S. D. 4, 51 N. W. 340 507 Hasledahl, State v.; 2 N. D. 521, 52 N. W. 315. . .3, 12, 364, 385, 397, 403, 404 Hasledahl, State v.; 3 N. D. 36, 53 N. W. 430 352 Hatch et al v. Northern Pac. R. Co.; N. D. , 63 N. W. 207 85 Haugen v, Chi., Mil. & St. P. R. Co.. 3 S. D. 394, 53 N. W. 769 10, 11 Haveron v. Anderson et al, 3 N. D. 540, 58 N. W. 340 20, 43 Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774 61, 111, 180, 209, 240, 245, 470, 479, 512 Hawley, sheriff, Consolidated Land & Irrigation Co. v.; S. D. , 63 N. W. 904 , 103, 141 Hawthorne et al, Martin v.; 3 N. D. 412, 57 N. W. 87 114, 116 Haxtuin Steam Heater Co. v. Gordan et al, 2 N. D. 246, 50 N. W. 708 1 14 Hazel ton Boiler Co. v. Fargo Gas & E. Co., 4 N. D. 365, 61 N. W 151 18 Hazen, Jasper v.; 1 N. D. 210, 46 N. W. 173 211, 458, 463, 506 Hazen, Jasper v.; 1 N. D. 75, 44 N. W. 1018 ....35, 143 Hazen, Jasper v.; 4 N. D. 1, 58 N. W. 454 88, 91, 155, 247 Hebron et al v.; Chi. Mil. & St. P. R. Co., 4 S. D. 538, 57 N. W. 494. .97, 103 Heger v. DeGroat, 3 N. D. 354, 56 N. W. 150. . . 1, 6, 95 126. 142, 147, 171, 172 Heger, Schmitz v.; N. D. , 64 N. W. 943 .138. 139, 181,469 Heidel et al, Duluth Dry-Goods Co. v.; 4 N. D. 427, 61 N. W. 155. . . .214, 464 Heidel et al, Merchants' State Bk. of Fargo v.; 4 N. D. 427, 61 N. W. 155 214, 464 Heidel et al, Walter A. Wood Har. Co. v.; 4 N. D. 427, 61 N. W. 155 214, 464 Heiser et al, Austin, 1 omlinson & Webster Mfg. Co. v.; S. D. , 61 N. W. 445 267 Helwig, In re, 5 S. D. 272, 58 N. W. 674. . . 517 Hennesy v. Griggs et al, 1 N. D. 52, 44 N. W. 1010 158 Henry v. Dean, 6 Dak. 78, 50 N. W. 487 H6, 69, 112 Herbert v. Northern Pac. R. Co.. 3 Dak. 38, 13 N. W. 349 10, 12. 145 Herman,- Rudolph v.; 2 S. D. 399, 50 N. W. 833 226, 312, 317 Herman, Rudolph v.; 4 S. D. 430, 57 N. W. 65 317, 319 Herman, Rudolph v.; 4 S. D. 203, 56 N. W. 122 8, 82, 314, 317, 319 Hicks et al, State v.; S. D. , 60 N. W. 66 388 Hiles et al, Billingsly v.; S. D. , 61 N. W. 687 83, 1 12, 125, 179, 182, 470, 486 Hilton v. Advance Thresher Co., S. D. , 66 N. W. 816 159, 164 Himebaugh v. Crouch, 3 S. D. 410, 53 N. W. 862 481, 490, 505. 508 Hodges v. Bierlien, 4 S. D. 219, 56 N. W. 748 248, 468, 482, 483, 488 Hodges v. Bierlien, 4 S. D. 258, 56 N. W. 811 86 Hodges, Rosum v.; 1 S. D. 313, 47 N. W. 140 .141 Hodgins v. Minpls., St. P. & S. Ste. M. R. Co., 3 N. D. 382, 56 N. W. 139 21, 99 XXil TERRITORIAL AND DAKOTA CASKS. Hoffman v. Bank of Minot, N. D. , 61 N. W. 1031 7!). 205, 239, 243. 453. 47< Hoffman v. Mort., Bank& Inv. Co., 4 N. D. 1082, 61 N. W. 1031..205. :>:!. i>4;: Holcomb et al v. Keliher, 3 S. D. 4'.7. o4 X. \V. .->:;.-, 67, 181, 470 Holden v. Haserodt et al, 2 S. I). 220, 49 N. W. 97 4o4 Holden v. Haserodt et al, 3 S. D. 4, 51 N. W. 340 507 Holt v. Van Eps, 1 Dak. 198. 46 N. W. 689 13. 51 Hopkins, Greenley v.; S. D. , 64 N. W. 1128 209, 483. 487. 513 Hermann v. Sherin, S. D , 60 N. W. 145 :;]. :;7. 42, 89, 101, Kid, ~2ir2 Hostetter v. Brooks Elevator Co., N. D. , 61 N. W. 49 67. 69, 113, 116, 138, 139, 181, 213, 247, 468, 469, 473 Hough ton, in re, 5 S. D. 537, 59 N. W. 733 195, 207, 509 Hubbard, Hawkins v.; 2 S. D. 631, 51 N. W. 774 ' 61, 111, 180, 209, 240, 245, 470. 479, f>ll! Hubbard, Price v.; S. D. , 65 N. W. 436 19. 1(13 Huber v. Railway Co., 6 Dak 392. 43 N. W. 819 98 Hudson v. Archer, 4 S. D. 128. 55 N. W. 1099 117, 120 Hughes Co., Evans v.; 4 S. D. 33, 54 N. W. 1049 252 Hughes Co., Waterworks Co. v.; 5 DaK. 145, 37 N. W. 733 ]<.>!> Hughitt School Tp., Green v.; 5 S. D. 452, 59 N. W. 224 123 Hugos et al, Upton v.; S. D. , 64 N. W. 523 .37, 113, 115 Humpfner v. D. M. Osborne & Co., 2 S. D. 310, 50 N. W. 313 48 Humphreus v. Fremont, E. & M. V. R. Co.; S. D. , 65 N. W. 466. .20, 97 Huntimer et al. Olson v. (on rehearing); S. D. , 66 N. W. 313 170 Huron Waterworks Co. v. City of -Huron, 4 S. D. 102, 55 N. W. 759 93, 223, 241 Huron Printing & Bindery Co. v. Kittleson et al, 4 S. D. 520, 57 N. W. 233 86 Huron Nat. Bank, Staples v.; S. D. , 66 N. W. 314 164 Hutchinson Co., Liberty Tp. v.; S. D. , 64 N. W. 1117 196 lllstad v. Anderson, 2 N. D. 167, 49 N. W. 659 56, 62, 121, 132, 136, 138, 148, 180, 469, 470, 481 Ingalls, Laney v.; 5 S. D. 183, 58 N. W. 572 14 Ingli, Warder, Bushnell & Glessner Co. v.; 1 S. D. 155, 46 N. W. 181. . 101, 119, 122,134 Ins. Co., Johnson v.: 1 N. D. 167, 45 N. W. 799. . . : 132 Ins. Co. v. Weber, 2 N. D. 239, 50 N.'W. 703 235 In re Eaton, 4 N. D. 514, 62 N. W. 597 88, 174 In re Helwig, 5 S. D. 272, 58 N. W. 674 517 In re Houghton, 5 S. D. 537, 59 N. W. 733 195, 207, 509 In re Lackey, S. D. , 62 N. W. 134 191, 325 In re Opening Gold St. v. Newton, appellant, 2 Dak. 149, 3 N W. 329. . 64, 68, 139, 205, 458, 480 In re Opening Gold St. v. Newton, appellant, 2 Dak. 39, 3 N. W. 311, 8 N. W. 139 204, 211, 453, 507 In re McCabe, N. D. , 67 N. W. 143 510 In re Spaulding et al, S. D. , 66 N. W. 462 90 In re Weber, 4 N. D. 119, 59 N. W. 523 235, 236, 243, 320, 510 Investment Co. v. Boyum, 3 N. D. 538, 58 N. W. 339 138 Iowa State Bank v. Jacobson, S. D. , 66 N. W. 453 139, 143, 150, 486 Irving, Town of Dell Rapids v.; S. D' . 64 N. W. 149 173 Isaacson, State v.; S. D. , 65 N. W. 430 377 Iverson et al, Davis v.; 5 S. D. 295, 58 N. W. 796 140 Jackson v. Bell, 5 S. D. 257, 58 N. W. 671 22, 39, 85 Jackson v. Mayor, etc., 4 N. D. 478, 61 N. W. 1030 48 Jacobson, Iowa State Bank v.; S. D. . 66 N. W. 453. . . .139, 143, 150, 486 Jasper v. Hazen, 1 N. D. 75, 44 N. W. 1018 35, 143 Jasper v. Hazen, 1 N. D. 208, 46 N. W. 173 211, 458, 463, 506 TERRITORIAL AND DAKOTA CASES. XXlii Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454 88, 91 , loo, 247 Jeansch v. Lewis et al, 1 S. D. 609, 48 N. W. 128 93, 126, 134, 140, 472 Jenkinson v. City of Vermillion, 3 S. D. 238, 52 N. W. 1066 82, 110, 128 Jennings, Enderlin State Bank v.; 4 N. D. 228, 59 N. W. 1058 197, 198 Jennings, Fargo et al v.; S. D. , 65 N. W. 433 : 203 Jerauld Co. v. Williams et al, S. D. -, 63 N. W. 905 55, 57, 136, 142, 143, 170, 489 Jewettetal v. Sundback, sheriff, 5 S. D. Ill, 58 N. W. 20 .' 17. 106, 121, 126, 127, 153, 173 J. I. Case T. M. Co. v. Pederson, S. D. , 60 N. W. 747 127, 142, 149 Job, Moe. v.; 1 N. D. 140, 45 N. W. 700 16, 90, 99, 110, 168 John A. Tolman Co. v. Bowerman et al, 5 S. D. 197, 58 N. W. 568 : 123, 132, 140, 500 John A. Tolman Co. v. Savage et al, 5 S. D. 496, 59 N. W. 882 37, 111,139,151 248 Johnson, Barber v.; 4 S. D. 528, 57 N. W. 225 318 Johnson, Benedict v.; N. D. , 57 N. W. 66 65, 262, 266, 316 Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057 128 Johnson v. Day et al, 2 N. D. 295, 50 N. W. 701 49, 157 Johnson, Fall v.; S. D. , 65 N. W. 909 146, 147 Johnson v. Gilinore, S. D. . 60 N. W. 1017 67, 95, 117, 123, 130, 131, 138, 146, 471, 481, 487, 505 Johnson v. Ins. Co. 1 N. D 167, 45 N. W. 799 '. 132 Johnson v. Northern Pac. R. Co., 1 N. D. 354, 48 N. W. 227 73, 97, 166, 179, 180, 181 , 186, 187 Johnson etal, Way v.; 5 S. D. 237, 58 N. W. 552 122, 489 Johnson, State v.;3 N. D. 150, 54 N. W. 547 405, 407, 408, 409, 410 Jones Lum. & Mer. Co. v. Paris, sheriff, S. D. , 60 N. W. 403 69, 101, 135, 151, 153, 194, 234, 246, 481, 484, 485, 488, 489 Jones, McPherrin v.; N. D. , 65 N. W. 685 23, 25, 152 Jones, Territory v.; 6 Dak. 85. 50 N. W. 528 379, 386, 402 Jones, Taylor v ; 3 N. D. 235, 55 N. W. 593 95 Jordan et al, Braithwaite v.; N. D. , 65 N. W. 701 219 Jordan et al v. Prank, 1 N. D. 206, 46 N. W. 171. . .-. 119 Joslyn v. Smith et al, 2 N. D. 53, 49 N. W. 382 50, 114, 118, 137 Judge of Dist. Ct. Stutsman Co., State ex rel N. P. R. Co. v.: 3 N. D. 43, 53 N. W. 433 192 Judson v. Bulin, 6 Dak. 70, 50 N. W. 484 318 Karr v. Chi. & N. W. Ry. Co., 6 Dak. 14, 50 N. W. 125 312, 315 Keefe et al, Gull River Lum. 0. v.; 6 Dak. 160, 41 N. W. 743 4 Keehl v. Schaller, 6 Dak. 499, 50 N. W. 195 232, 318, 320 Kehoe v. Hansen et al,. S. D. , 65 N. W. 1075. . .172, 248, 455, 482, 489, 513 Keith v. Haggert, 2 N. D. 18, 48 N. W. 432 16, 108, 127 Keliher, Holcomb et al v.; 3 S. D. 497, 54 N. W. 535 67, 181, 470 Kellogg, Bank v.; 4 S. D. 312, 56 N. W. 1071 267 Kellogg, Johnson & Co. v. Oilman et al, 3 N. D. 538, 58 N. W. 339 38, 44, 81, 134 Kelsey v. Ry. Co., 1 S. D. 80, 45 N. W. 207 97, 98, 134 Kelsey v. Welch, S. D. , 66 N. W. 465 142, 196, 197, 198, 204 Kennedv, Chandler v.; S. D. . 65 N. W. 439 52, 73, 137, 162, 182 Kennedy v. Palde, 4 Dak. 319, 29 N. W 667 68, 480 Kennedy, Townsend v.; S. D. , 60 N. W. 164 92 Kent v. Dak. P. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85 54, 55, 61, 126, 136, 137, 138, 151, 489 Kent, State v.; 4 N. D. 577, 62 N. W. 631 359, 361, 368, 388, 389 Kerr, State v.; 3 N. D. 523. 58 N. W. 27 428 Kimball Co. v. Kirby, 4 S. D. 152, 55 N. W. 1110 173 King et al. State ex Vel Gunderson v.; S. D. , 60 N. W. 75. . .206, 215, 512 King, Territory v.; 6 Dak. 131, 50 N, W. 623 375, 380, 381, 400, 427 XXIV TERRITORIAL AND DAKOTA GASES. Kingsland et al, Security Bank of Minnesota v.; N. D. , 65 N. W. 097 K>2 Kirhy, City of Sioux Brails v.; S. D. 60 N. W. 156 190, 207, 511 Kirby. Kimball CD. v.; 4 s. D. i/>2. 55 N. W. 1110 17:5 Kirhy v. Western Union Telegraph Co., 4 S. D. 105, 55 N. W. 759 27. si Klrby v. Western Union Tel. Co., S. D. -r, 65 N. W. 482 4!)!, 501, 505 Kirhy v. Western Union Tel. Co., 4 S. D. 439, 57 N. W. 199 500 Kirby v. Western Union Tel. Co., S. D. , 60 N. W. 152 171 Kirby \ . W.-stern Union Tel. Co., 4 S. D. 463. 57 N. W. 202 171 Klrby et al, Winton v.; S. D. , 60 N. W. 409. 226, 228, 265, 508 Kittl'eson et al, Huron Printing & Bindery Co. v.; 4 S. D. 520, 57 N. W. 233 86 Klaus, Bill v.; 4 Dak.' 328. 30 N. W. 171 468 Knapp, Searls v.; 5 S. D. 325, 58 N. W. 807 14 Knight et al, Bostwick et al v.; 5 Dak. 305, 40 N. W. 344 65, ^43 Knight et al, State v.; 3 S. D. 509, 54 N. W. 412 153, 432, 433, 4."4 Knight v. Towles, S. D. , 62 N. W. 964 18, 100 Knott, Bowman v.; S. D. , 66 N. W. 457 154 Knott, Conner, v.; S. D. , 66 N. W. 461 .' 119 Knott, sheriff, Vinton v.; S. D. , 63 N. W. 783. 154, 157, 202, 208, 265, 267 Kohnetal, Cranmer v.; S. D. , 64 N. W. 125 169 Kramer et al, Manufacturer's Furnish'g Co. v.; S. D. , 64N. W. 528. .161 Kronk v. Chi. Mil. & St. P. R. Co., 3 S. D. 93. 52 N. W. 420 37 Kvello et al v. Taylor, S. D. , 63 N. W. 889 17, 110, 155 Lackey, In re S. D. , 62 N. W. 134 191. ;:25 LaCroix, State v.; - S. D. , 66 N. W. 944 268, 269, 365 Ladd et al, Nelson v.; 4 S. D 1, 54 N. W. 809 261, 380 Lancaster, French v.; 2 Dak. 276, 9 N. W. 716 66, 205, 212, 469, 480 Lane, Noyes v.; 2 S. D. 55, 48 N. W. 322 205, 483, 489, 490 Laney v. Ingalls, 5 S. D. 183, 58 N. W. 572 14 Lang, Nat. Ger. Am. Bank v.; 2 N. D. 66, 49 N. W. 414 120, 121,160 Langess v. Pettigrew, 5 Dak. 45, 37 N. W. 758 36 Larson v. City of Grand Forks, 3 Dak. 307, 19 N. W. 414 85 La Rue v. Elevator Co., 3 S. D. 637, 54 N. W. 806 168 Laughlin, Bank v.; 4 N. D. 391, 61 N. W. 473 18, 135, 469 Laughlin et al, Roberts. Throp & Co. v.; 4 N. D. 167, 59 N. W. 967. .106, 163 Lavin v. Bradley, 1 N. D. 291, 47 N. W. 384 51 Lawrence Co., Bailey v.; S. D. , 59 N. W. 219 v 173 Lawrence Co. v. Meade Co., S. D. , 62 N W. 957 234, 241 Lawrence et al, Searles v.; S. D. , 65 N. W. 34 146, 149, 200, 201 Le Claire v. Wells, S. D. , 64 N. W. 519 51, 246 Lee, Oil Co. v.; 1 S. D. 531, 47 N. W. 955 151, 201 Lee, Wright v.; 4 S. D. 237, 55 N. W. 931 193 Leeh man State v.; 2 S. D. 171, 49 N. W. 3 131 Lemke, Nat. Bank of No. Dak. v.; 3 N D. 154, 54 N. W. 919 132 Leonosio v. Bartilino, S. D. , 63 N. W. 543 302 Letcher etal, Betts v.; 1 S. D. 182, 46 N. W. 193 55 Lewis v. Fre. E. & M. V. Ry. Co., S. D. , 63 N. W. 781 103, 135 Lewis et al, Jeansch v.: 1 S. D. 609. 48 N. W. 128 93, 126, 134, 140, 472 Lewis et al v. St. P. M. & M. Ry. Co., 5 S. D 148,. 58 N. W. 580 479 Liberty Tp. v. Hutchinson Co.. S. D. , 64 N. W. 1117 196 Lighthouse v. R. Co., 3 S. D. 518, 54 X. W. 320 18, 100 Lillestal et al, Moen v.; N. D. . 65 N. W. 694 203 Linander v. Longstaff, S. D. , 63 N. W. 775 16 Lincoln. Minnesota Thresher Mfg. Co.v.; 4 N. D. 410, 61 N.W. 145..18, 105, 135 Lindsay v. Pettigrew, 3 S. D. 199, 52 N. W. 873 79, 119 LintonV Mpls, N. & Elevator Co., 2 N. D. 232, 50 N. W. 357 Ill TERRITORIAL AND DAKOTA CASES. XXV Little, Axion Min. Co. v.; S. D. , 61 N. W. 441 13 Little v. Little, 2 N. D. 175, 49 N. W. 736 61, 62, 90, 136, 460 Lofland, St. John v.; N. D. , 64 N. W. 930 129 Loftusetal v. Farrners r Shipping Ass'n, et al, S. D.~, 65 N. W. 1076 142, 143, 165 Long-ley v. Daly, 1 S. D. 257, 46 N. W. 247 85 Long-staff, Linander v.; S. D. , 63 N. W. 775 16 Lorang-er v. Big Missouri Min. Co, S. D., 61 N. W. 686 2 Lumber Co., Foster v ; 5 S. D. 57, 58 N. W. 9 198 Lyons et al v. Miller, 2 N. D. 1, 48 N. W. 514 .315, 320 Machine Co., Fahey v.; 3 N. D. 220, 55 N. W. 580 17, 105. 133, 148 Mann, Bankv.;2N. D. 456, 51 N. W. 946 116 Manning, Pierce et al v.; 1 S. D. 306, 47 N. W. 295 227 Manning, Pierce et al v. 2 S. D. 517, 51 N. W. 332 . : 61, 79, 111, 112, 139, 155, 179, 194, 246, 249, 250, 468, 470, 479 Manufacturer's Furnishing Co. v. Kramer et al, S. D. , 64 N. W. 528 161 Marcks, State v.; 3 N. D. 532, 58 N. W. 25 410 Mares v. Northern Pac. R. R. Co., 3 Dak. 336, 21 N. W. 5 98, 101, 107 Markuson, State v.: N. D. , 64 N. W. 934 487, 358, 432, 434 Mars et al v. Ora Fino Min. Co. etal., S. D. . 65 N. W. 19 198 Marshall, Burdick v.; S. D. , 66 N. W. 462 90 Marshall et al v. Barney Peak Tin Min., Mill. & Mfg. Co. et al, 1 S. D. 350, 47 N. W. 290, (on rehearing) 3 S. D. 473, 54 N. W. 272 13, 148, 206, 454, 507 Marshall, Simpson Brick-Press Co. v.; 5 S. D. 528, 59 N. W. 728 85 Martin v. Hawthorne et al, 3 N. D. 412, 57 N. W. 87 114, 116 Martin v. Minnekahta State Bank, S. D. , 64 N. W. 127 48, 53, 95, 137, 153, 163 Mathews, Davis et al v.; S. ' D. , 66 N. W. 456 160 Matteson. Richards v.; S. D. , 65 N. W. 428 141, 262 Matthiessen, Star Wagon Co. v.; 3 Dak. 233, 14 N. W. 107 17, 101 Mattoon v. Fre., E. & M. V. Ry. Co., S. D. , 60 N. W. 740 18, 99, 100, 101, 119, 179, 500 Maxfield et al, Caldwell v.; S. D. , 64 N. W. 166 19 Mayer, Travelers' Ins. Co. v.; 2 N. D. 234, 50 N. W. 706 208, 235, 243 Mayor, etc., Jackson v.; 4 N. D. 478, 61 N. W. 1030 48 Meade Co., Lawrence Co. v.; S. .D. , 62 N. W. 957 234, 241 Means, Biugham v.; 4 N. D. 437, 61 N. W. 808 20, 231 Mellon, Brundage v.; N. D. , 63 N. W. 209 104, 146, 158 Merchant's Nat. Bank Devil's Lake et al, First Nat. Bk. v.; N. D. , 64 N. W. 941 68, 73, 138, 181, 213, 469, 472 Merchants' Nat. Bank v. McKinney et al, 4 S. D. 226, 55 N. W. 929. . 60, 67, 109, 136, 181, 212, 214, 245, 459, 479, 480, 486, 501, 509, 513 Merchants' State Bank v. Heidel et al, 4 N. D. 427. 61 N. W. 155. .214, 464 Metcalf v.'Nelson, S. D. , 65 N. W. 911 116, 117, 194, 196 Meuer v. Chi., Mil. & St. P. Ry. Co. 3 S. D. 322, 53 N. W. 187 455 Meyer v. School Dist. No. 31, 4 S. D. 420. 57 N. W. 68 89, 91, 125 Mielenz et al, Franz Falk Brew. Co. v.; 5 Dak. 136, 37 N. W. 728 86 138, 468, 470, 472, 484 Mikkelson, Shelly v.; N. D. , 63 N. W. 210 .' 19, 104, 105 Mil. Mechanic's Mut. Ins. Co., Severson v.; 3 S. D. 412, 53 N. W. 860.. 76 Miller, O'Brien v.; 4 N. D. 308, 60 N. W. 841 138, 468, 469 Miller, Lyons et al v.; 2 N. D. 1, 48 N. W. 514 315, 320 Miller et al, Nat. Refining Co. v.; 1 S. D. 548, 47 N. W. 962 33, 36 Miller v. Sunde, 1 N. D. 1, 44 N. W. 301 248, 252 Miller v. Way et al, 3 S. D. 627, 54 N. W. 814 72, 194, 245 Miner v. Francis & Southard, 3 N. D. 549, 58 N. W. 343 316, 320 Minn. & N. E. Co., Daeley et al v. ; 4 N. D. 269 ? 60 N. W. 59. 16, 133, 138, 469 TERRITORIAL AND DAKOTA CASES. Minn., N. & Elevator Co., Linton v., 2 N. D. 232, 50 N. W. 857 Ill Minn., St. P. & S. Ste. M. R. Co.,Hodgins v.; 3 N. D. 382, 56 N. W. 189 21, !>'. MinnehahaCo., Grigsby et al.; S. D. , 64 N. W. 179 500 Minnekahta State Bank, Martin v.; S. D. , 64 N. W. 127 48. 53, 95, 137, 158, 1C.:; Minnesota Thresher Co. v. Lincoln, 4 N. I). 410, 61 N. W. 145. . . .18, 105, i:;:> Mitchell, Myers v.; 1 S. D. 249, 46 N. W. 245 6, 7, 315, 320 Mitchell etal, St. Croix Lumber Co. v.; 4 S. D. 487, 57 N. W. 236 126 Moe v. Job, 1 N. D. 140, 45 N. W. 700 16, 90,!)!), 110, 168 Moe v. Northern Pac. R. Co., 2 N. D. 282, 50 N. W. 715. . .181, 185, 186, 187 Moen v. Lillestal et al, N. D. , 65 N. W. 694 203 Moline Plow Co. v. Gilbert et al, 3 Dak. 239, 15 N. W. 1 16, 36, 94 Moore v. Booker et al, 4 N. D. 543, 62 N. W. 607 50, 76, 77, 82, 94, 127, 137, 160, 214, 229, 232, 519 Moore, Sewing Machine Co. v.; 2 Dak. 280, 8 N. W 131. 252 Morgan, Branstetter v.; 3 N. D. 290, 55 N. W. 758 43, 122, 134 Morris etal, McGillycuddy v., S. D. , 65 N. W. 14 1ST Morris v. McKnight et al, 1 N. D. 266, 47 N. W. 375 157 Morrison v. Oium, sheriff, 3 N. D. 76, 54 N. W. 288 162 Mort., Bank & Investment Co., Halvorson v.; N. D. , 54 N. W. 1026 83, 238 Mort., Bank & Investment Co., Hoffman v.; 4 N. D. 477, 61 N. W. 1082 79, 205, 239, 243, 453, 479 Mort., Bank & Investment Co., McCarn v ; N. D. , 54 N. W. 1026 83, 238 Mort., Bank & Investment Co., Williamson v.; N. D. , 54 N. W. 1026 83, 238 Mortgage Co. v. Bradley, 4 S. D. 158, 55 N. W. 1108 65, 248 Mortgage Co. v. Stevens, 3 N. D. 265, 55 N. W. 578 88 Mouser et al v. Palmer, 2 S. D. 466, 50 N. W. 967. . . .208, 235, 313, 315, 316 Muggli, treas., N. W. Loan & Bank. Co. v.; S. D. , 64 N. W. 1122. ... 199 Mullen, Demmon v.; S. D. , 62 N. W. 380 105 Murdick et al, Western Pub. House v.; 4 S. D. 207, 56 N. W. 120 101 Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142 83 Murray, O'Neill v.; 6 Dak. 107, 50 N. W. 619 120, 127, 130 Murry v. Burris et al, 6 Dak. 170, 42 N. W. 25 305, 311 Muscatine Mort. & Trust Co., Narregang v.; S. D. , 64 N. W. 1129. .199 Myers et al, Sweet et al v.; 3 S. D. 324, 53 N. W. 187 73, 181 Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245 6, 7, 315, 320 Myrick v. Bill, 3 Dak. 284, 17 N. W. 268 141 McCabe, in re, N. D. , 67 N. W. 143 510 McCann v. Mort., Bank & Investment Co., N. D. , 54 N. W 1026. .83, 238 McCaul et al, Brown v., S. D. , 60 N. W. 151 39, 113, 133, 170, 472 McCollum, sheriff, Gotzian & Co. v.; S. D. , 65 N. W. 1068 s4 McCormick H. M. Co. v. Faulkner, S. D. , 64 N. W. 163. .19, 104, 128, 161 McCormick H.M. Co., Feury v.; S. O. , 61 N. W. 162 88, 172 McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39 33, 34, 36, -Ms McCormick H. M. Co", v. Snedigar et al, 3 S. D. 625, 54 N. W- 814 511 McCormick H. M. Co. v. Snedigar et al, 3 S. D. 302. 53 N. W. 83 511 McCormick H. M. Co. v. Taylor, N. D. , 63 N. W. 890 147 McCoy, Greeley v.; 3 S. D. 624, 54 N. W. 659 252 McGahey, State v.; 3 N. D. 293, 55 N. W. 753 122, 133, 428, 429 McGillycuddy v. Morris et al, S. D. , 65 N. W. 14 187 McGlynn v. Scott. 4 N. D. 18, 58 N. W. 460 106, 163 McKee, Thompson v.; 5 Dak. 176. 37 N. W. 367 120 McKinney et al, Merchants' Nat. Bank v.; 4 S. D. 226, 55 N. W. 929. . . . 60, 67, 109, 136, 181, 212, 214, 245, 459, 479, 480, 486, 501, 509, 513 McKittrick v. Pardee, S. D. , 65 N. W. 23 115, 187, 206, 227, 487, 490, 508, 509, 513 TERRITORIAL AND DAKOTA CASES. XXVii McKnight et al, Morris, v.; IN. D. 266, 47 N. W. 375 157 McLaughlin v. Bank, 6 Dak. 406, 43 N. W. 715 95, 163 McLean, Galloway v.; 2 Dak. 372, 9 N. W. 98 68, 201, 480 McMillan et al v. Aitchison, 3 N. D. 183, 54 N. W. 1030 113, 122, 134 McPherrin v. Jones, N. D. , 65 N. W. 685 23, 25, 152 Narregang v. Muscatine Mort. and Trust Co., S. D. , 64 N. W. 1129. .199 Nat. Bank of Dak. et al, Connor v.; S. D. , 64 N. W. 519. . . .119, 164, 249 Nat. Bank of No. Dak. v. Lerake, 3 N. D. 154, 54 N. W. 919 132 Nat. Cash Reg'r Co. v. Pfister et al, 5 S. D. 143, 58 N. W. 270 112, 179, 468, 470 Nat. Ger. Am. Bank v. Lang, 2 N. D. 66, 49 N. W. 414 120, 121, 160 Nat. Refining Co. v. Miller et al, 1 S. D. 548, 47 N.W. 962 33, 36 Nat. Tube Works Co. v. City of Chamberlain, 5 Dak. 54, 37 N. W. 761 48 Nelson, Metcalf v.; S. D. , 65 N. W. 911 116, 117, 194, 196 Nelson v. Ladd et al, 4 S. D. 1, 54 N. W. 809 261, 380 New England Inv. Co., Bode v.; 1 N. D. 121, 45 N. W. 197 149, 150 New England Inv. Co. et al, Farrington v.; 1 N. D. 102, 45 N. W. 191.. 144, 145 New Mexico & D. M. Co., Tolman v.; 4 Dak. 4, 22 N. W. 505 66, 90, 480 Newson et al, State v.; S. D. , 66 N. W. 468 120 Newton, appellant, in re Opening Gold St. v.; 2 Dak. 149, 3 N. W. 329. . 64, 68. 139. 205, 458, 480 Newton, appellant, in re Opening Gold St. v.; 2 Dak. 39, 3 N. W. 311, 8 N. W. 139 204, 211, 453, 507 Nichells v. Nichells, N. D. , 64 N. W. 73 80 Nichols v. Bruns, 5 Dak. 28, 37 N. W. 753 152, 193 Nissen, Wood v.; 2 N. D. 26, 49 N. W. 103 64, 75, 180, 184, 188, 212, 245, 463, 471 Nollman et al v. Evanson, N. D. , 65 N. W. 686 86, 197, 199, 213 Noonan et al, Caledonia Gold Min. Co. v.; 3 Dak. 189, 14 N. W. 426 : 49, 67, 93, 119, 131, 137, 247 North, Bank v.; 2 S. D. 480, 51 N. W. 98 105, 129, 155, 505 North Star Boot & Shoe Co. v. Braithwaite, 4 Dak. 454, 34 N. W. 68 42 North, Rudolph v.; 6 Dak. 79, 50 N. W. 487 33, 114, 135 Northern Pac. El. Co., Short v.; IN. D. 159, 45 N. W. 706 90, 129 Northern Pac. R. Co., Bennett v.; 3 N. D. 91, 54 N. W. 314 97, 167 Northern Pac. R. Co', Bennett v.; 2 N. D. 112. 49 N. W. 408 96, 129 Northern Pac. R. Co., Bennett v.; 4 N. D. 348, 61 N. W. 18 21, 166 Northern Pac. Co., Boss v.; 2 N. D. 128, 49 N. W. 655 16, 25, 26, 64 Northern Pac. R. Co., Bush et al v.; 3 Dak. 444, 22 N. W. 508. .180, 467, 468 Northern Pac. R. Co., Comaskey v.; 3 N. D. 276, 55 N. W. 732 22, 171 Northern Pac. R. Co., Dunstan v.; 2 N. D. 46, 49 N. W. 426 171 Northern Pac. R. Co., Ell v.; 1 N. D. 336, 48 N. W. 222 168, 169 Northern Pac. R. Co., Pinney v.; 3 Dak. 270, 16 N. W. 500 86, 94 Northern Pac. R. Co., Fuller v.; 2 N. D. 220, 50 N. W. 359 94 Northern Pac. R. Co., Hatch et al v.; N. D. , 63 N. W. 207 85 Northern Pac. R. Co., Herbert v.; 3 Dak. 38, 13 N. W. 349 10, 12, 145 Northern Pac. R. Co., Gram v.; 1 N. D. 252, 46 N. W. 972 21, 22, 95, 96, 103, 128, 166, 167, 509 Northern Pac. R. Co., Johnson v.; 1 N. D. 354, 48 N. W. 227 73,97, 166, 179, 180, 181, 186, 187 Northern Pac. R. Co., Mares v.; 3 Dak. 336, 21 N. W. 5 98, 101, 107 Northern Pac. R. Co., Moe v.; 2 N. D. 282. 50 N. W. 715. . .181, 185, 186, 187 Northern Pac. R. Co., Smith v.; 3 N. D. 17, 53 N. W. 173.7, 21, 98, 141, 145 Northern Pac. R. Co., Smith v.; 3 N. D. 555. 58 N. W. 345 130, 140 Northern Pac. R. Co., Williams v.; 3 Dak. 168. 14 N. W. 97.100. 101, 107, 165 Northrup v. Cross, sheriff, 2 N. D. 433, 51 N. W. 718 42, 43, 154, 172 Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17 Ill, 112,250 N. W. Elevator Co., First Nat. Bank v.; 2 S. D. 356, 50 N. W. 356. ..205, 478 XXV111 TERRITORIAL AND DAKOTA CASES. N. W. Fuel Co. v. Bruns, 1 N. D. 137, 45 N. W. 699 128 N. W. Loan & Banking Co. v. Miiggli, truas., S. D. ,64 N. W. 1122.. 199 Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 106< 8, 80, 90, 123, 126, 145, 154, 155 Noyes et al v. Brace et al, S. D. , 65 N. W. 1071 173 NVves et al v. Crandall et al, S. D. w 61 N. W. 806 107, 160 Noyes v. Lane, 2 S. D. 55, 48 N. W. 322 20.3, 483, 481), 490 O'Brien v. Miller, 4 N. D. 308, 60 N. W. 841 138, 468, 4(i9 Odell, People v.; 1 Dak. 189, 46 N. W. 601 375, 376, 379, 402, 404, 406, 410 O'Hare, Territory v.; 1 N. D. 30, 44 N. W. 1003 12, 354, 355, 357, 360, 362, 363, 364, 376, 378, 397 Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955 151, 201 Oium, sheriff, Morrison v.; 3 N. D. 76, 54 N. W. 288. 162 Olson v. Huntimer et al (on rehearing), S. D. , 66 N. W. 313 170 O'Neill v. Murray, 6 Dak. 107, 50 N. W. 619 120, 127, 130 Oro Fino Min. Co. et al, Mars et al v.; S. D. , 65 N. W. 19 198 Owen, J. P., Perrott v.; S. D. , 64 N. W. 52b 151, 155, 156, 313, 315 Ormsby v. Conrad et al, 4 S. D. 599, 57 N. W. 778. . . 83 Ouverson v. City of Grafton, N. D. , 65 N. W. 676 21, 22, 103, 117, 130, 167, 168 Page v. Ry. Co., S. D. , 64 N. W. 137 93 Palmer et al, Fargo et al v.; 4 Dak. 232. 27 N. W. 463 66, 205, 212, 458. 468, 480 Palmer, Mouser et al v.; 2 S. D. 466, 50 N. W. 967. .. .208, 235, 313, 315, 316 Pardee, McKtttrick v.; S. D. , 65 N. W. 23 115, 187, 206, 227, 487, 490, 508, 509, 513 Parker v. Bank, 3 N. D. 37, 54 N. W. 313 48, 51 Parliman v. Young et al, 2 Dak. 175, 4 N. W. 61 16, 17, 70, 159 Parson, Stewart v.; N. D. , 65 N. W. 672 201 Paulson v. Ward et al, 4 N. D. 100, 58 N . W. 792 .247 Pearson v. Post, 2 Dak. 220, 9 N. W. 684 (686) 238 Peart v. Chi., Mil. & St. P. Ry. Co., 5 S. D. 337, 58 N. W. 806. .29, 31, 81, Hoi Peck, De Lendrecie v.; 1 N. D. 422, 48 N. W. 342 49, 64, 65, 246 Peck v. Phillips, 4 Dak. 430, 34 N. W. 65 205, 453, 4o4, 507 Penderson, J. I. Case T. M. Co. v.; S. D. , 60 N. W. 747. ... 127, 142, 149 People v. Briggs, 1 Dak. 289, 46 N. W. 4-51 408 People v Odell, 1 Dak. 189, 46 N. W. 601 375, 376, 379, 402, 404, 406, 410 People v. Wintermute, 1 Dak. 60 (102) 46 N. W . 694 425 Pennington, St. Croix Lumber Co. v.; 2 Dak. 467, 11 N. W. 497 . .24, 25, 64, 66, 68, 69, 73, 75, 174, 205, 212, 438, 439, 456, 458, 459, 471, 47!) Perie et al v. Berg et al, S. D.- , 64 N. W. 1130 89, 144, 200 Perrott v. Owen, J. P., S. D. , 64 N. W. 526 151, 155, 156, 313, 315 Persons et al v. Simons, sheriff. 1 N. D. 243, 46 N. W. 969 235, 242 Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1060 80, 81 Petrie, sheriff, Tootle et al v.; S. D. , 65 N. W 43. .83, 109, 132, 138, 162 Pettigrew et al v. City of Sioux Falls et al, 5 S. D. 646, 60 N. W. 27 .... 82, 146, 151 Pettigrew, Langness v.; 5 Dak. 45, 37 N. W. 758 36 Pettigrew, Lindsay v.; 3 S. D. 199, 52 N. W. 873 79, 119 Pfister et al, Nat. Cash Reg'r Co. v ; 5 S. D. 143, 58 N. W. 270 112, 179, 468, 470 Phenix Ins. Co.. Tierney et al v.; 4 N. D 565, 62 N. W. 642 157 Phillip Best Brew. Co. v. Pillsbury & H. E. Co., 5 Dak. 270, 16 N. W. 500 86, 138 Phillips, McCormack v.; 4 Dak. 506, 34 N. W. 39 33, 34, 36. 4US Phillips, Peck v.; 4 Dak. 430, 34 N. W. 65 205, 453, 454, 507 Phillips et al, Zeimet v.; S. D. , 65 N. W. 418 117 TERRITORIAL AND DAKOTA CASES. Pbelps, State v.; 5 S. D. 480, 59 N. W. 471 387, 388 Piano Mf'g Co., Canham v.; 3 N. D' 229, 55 N. W. 583 163 Pickert v. Rugg et al, 1 N. U. 230, 46 N. W. 446 69, 112, 133, 170, 179 Pierce et al v.JManning, 1 S. D. 306, 47 N. W. 295 227 Pierce et al v. Manning, 2 S. D. 517. 51 N. W. 332 61, 79, 111, 112, 139, 155, 179, 194, 246, 249, 250, 468, 470, 479 Pierre Waterworks Co. v. Hughes Co., 5 Dak. 145, 37 N. W. 733 192 Pillsbury & H. E. Co., Phillip Best Brew. Co. v.; 5 Dak. 62, 37 N. W. 763 86, 138 Pitts Ag'l Works v. Young, S. D. , 62 N. W. 432 43, 44, 110, 120 Plunkettv. Evans, 2 S. D., 434, SON. W. 561 261 Plymouth Co. Bank v. Gilman, 6 Dak. 304, 50 N. W. 194 101, 109, 126, 159, 168, 248 Pollock v. Aikens, Cir. Judge, 4 S. D. 374, 57 N. W. 1 74 Porteous, Foley-Wadsworth Implement Co. v.; S. D. , 63 N. W. 155, ." , 67, 187, 199, 200, 214, 486, 487, 513 Post, Pearson v., 2 Dak. 220, 9 N. W. 684 (686) 238 Powell, Fall River Co. v.; 5 S. D. 49, 58 N. W. 7 90 Prairie School Twp. v. Haseleu et al, 3 N. D. 328, 55 N. W. 938. .111, 128, 165 Pratt, Territory v.; 6 Dak. 483, 43 N. W. 711 398 Price v. Hubbard, S. D. , 65 N. W. 436 ..19, 103 Purcell v. Booth, 6 Dak. 17, 50 N. W. 196 156, 314, 315 Purcell v. St. Paul F. & M. Ins. Co.. N. D. , 64 N. W. 943 i 103, 117, 125, 131, 132, 149 Purdin v. Archer, 4 S. D. 54, 54 N. W. 1043 142, 198 Purinton, Treas., Hardy v.; S. D. , 61 N. W. 158 212 Quebec Bank v. Carroll et al, 1 S. D. 1, 44 N. W. 723 208, 224, 238 Ranch Co. Willsie v.; S D. , 63 N. W. 546 145 Randall et al v. Burk Tp. et al, 4 S. D. 337, 57 N. W. 4 68, 88, 89, 113, 119, 155, 212, 250, 478, 488 Rapp v. Giddings, 4 S. D. 492, 57 N. W. 237 17, 110, 133 Rathbun, Edminster v.; 3 S. D. 129, 52 N. W. 263 312, 320 Raymond v. Spicer, 6 Dak. 45, 50 N. W. 399 67, 73 Raymond, Warder, Bushnell & Glessner Co., v.; S. D. , 64 N.W. 525 " 313, 316 Reddington, State v.; S. D. , 64 N. W. 170. .363, 365, 380, 415, 425,445, 446 Red River Val. Nat. Bk. v. Freeman, 1 N. D. 196, 46 N. W. 36. .173, 236, 238 Reeves & Co. v. Corrigan et al, 3 N. D. 415, 57 N. W. 80 17, 88, 133, 161 Reister, Sanders v.; 1 Dak. 151, 46 N. W. 680 98 Rhoda School Tp., Coler et al v.; S. D. , 63 N. W. 158. .87, 164, 165, 174 Richards v. Matteson et al, S. D. , 65 N. W. 428 141, 262 Roberts, Bank v.; 2 N. D. 195, 49 N. W. 722 203 Roberts v. Haggert, 4 Dak. 210, 29 N. W. 650 500 Roberts, Thorp & Co. v. Laughlin et al, 4 N. D. 167, 59 N. W. 967. .106, 163 Rodway, State v.; 1 S. D. 575, 47 N. W. 1061 271 Roll et al, Granger v.; S. D. , 62 N. W. 970. . . .94, 152, 209, 240, 241, 512 Rose. Dist. Judge, State ex rel Enderlin State Bk. v.; 4 N. D. 319, 58 N. W. 514 192, 193, 224, 236, 238, 252 Ross v. Waite et al, 2 S. D. 638, 51 N. W. 866 65, 77, 239 Rossteuscher, Yankton Co. v.; 1 Dak. 120, 46 N. W. 575 140, 376 Rosum v. Hodges, 1 S. D. 313, 47 N. W. 140 , 141 Rudolph v. Herman, 2 S. D. 399, 50 N. W. 833 226, 312, 317, 318 Rudolph v. Herman, 4 S. D. 430, 57 N. W. 65 317, 319 Rudolph v. Herman,. 4 S D. 203. 56 N. W. 122 8, 82, 314, 317, 319 Rudolph v. North, 6 Dak. 79, 50 N. W. 487 33, 114, 135 Rugg et al, Pickert v.; 1 N. D. 230, 46 N. W. 446 69, 112, 133, 170, 179 Russell & Co. v. Amund&on, 4 N. D. 112, 59 N. W. 477 21 Russell et al, Wm. Deering & Co. v.; S. D. , 65 N. W. 691 20, 128, 129, 161, 165 XXX TERRITORIAL AND DAKOTA CASES. Ryan v. Davenport, 5 S. D. 203, 58 N. W. 568 233 Sanders v. Reister, 1 Dak. 151, 46 N. W. 080 98 Sandmcyer v. Ins. Co., 2 S. D. 346. 50 N. W. 353 ir.u Sanford v. Bell et al, 2 N. D. 6, 48 N. W. 434 (436) 13, 18, 102, 142. 148, 152, 188, 193, 246 Sanford v. Duluth & Dak. El. Co.; 2 N. D. 6, 48 N. W. 434 13, 18, 102, 142, 148, 152, 188, 193, 246 Sannders v. Chi. & N. W. Ry. Co., S. D. , 60 N. W. 148 !)!) Savage et al, John A. Tolman Co. v.; 5 S. D. 496, 59 N. W. 882 37, 111, 139, 151, 248 Seaman v. Galligan et al, S. D. ' 66 N. W. 458 141, 145, 153 Schaetzel v. City of Huron, S. D. , 60 N. W. 741 8, 13, 241, 351, 354 Schaller, Keehl v.; 6 Dak. 499, 50 N. W. 195 232, 318, 320 Schamber et al, Bauder v.; S. D. , 63 N. W. 227 109, 134, 182, 572 Scheffer et al v. Corson et al, 5 S. D. 233, 58 N. W. 555 84 Schmitz v. Heger, N. D. , 64 N. W. 943 138, 139, 181, 469 Scholtes et al, Dalbkermeyer v.; 3 S. D. 183, 52 N. W. 871 485, 488 Scholtes et al, Dalbkermeyer v.; 3 S. D. 124, 52 N. W. 261 51 1 Schone et al, Valley Land & Irrigation Co. v.; 2 S. D. 344, 50 N. W. 356 205, 453. 478, 483, 488, 490, 507 School Dist. No. 53, Capital Bank of St. Paul v.; IN. D. 479, 48 N. W. 363 102 School Dist. No. 53, Farmers, etc., Bank v.; 6 Dak. 255, 42 N. W. 767.. 102 School Dist. No. 70, Flagg v.; N. D. , 65 N. W. 674 164 School Dist. No. 39, Gull River Lum. Co. v.; 1 N. D. 500, 48 N. W. 427 47, 49, 52 School Dist. No. 116 of Minnehaha Co. y. Ger. Ins. Co.; S. D. , 64 N. W. 527 104 School Dist. No. 31 Minnehaha Co., Meyer v.; 4 S. D. 420, 57 N. W. 68 89,91, 125 Scott, Bailey v.; 1 S. D. 337, 47. N. W. 286 189, 212, 213, 237 Scott, McGlynn v.; 4 N. D. 18, 58 N. W. 460 106, 163 Scott, State v.; S. D. , 65 N. W. 31 263, 264 Seabury-Calkins Consol. Min. Co., Calkins v.; 5 S. D. 299, 58 N. W. 797 68, 146, 468, 480 Searles v. Christensen, S. D , 60 N. W. 29 83, 151, 23H, 234, 281, 488 Searles v. Lawrence et al, S. D. , 65 N. W. 34 146, 149, 200, 201 Searls v. Knapp, 5 S. D. 325, 58 N. W. 807 14 Security Bank of Minnesota v. Kingsland et al, N. D. , 65 N. W. 697, 162 Serenson, State v.; S. D. , 64 N. W. 130 425, 429 Severson v. Mil. Mechanic's Mut. Ins. Co., 3 S. D. 412, 53 N. W. 860 76 Sewing Machine Co. v. Moore, 2 Dak. 280, 8 N. W. 131 252 Shearer, Territory ex rel Eiseman v.; 2 Dak. 332, 8 N. W. 135 6 Shea, Tyler v.; 4 N. D. 377, 61 N. W. 469 229, 247, 251 Sheldon et al v. Chi., Mil. & St. P. R. Co., S. D. , 62 N. W. 955 18 Shelly v. Mikkelson, N. D. , 63 N. W. 210 19, 104, 105 Sherin, Banbury v.; 4 S. D. 88, 55 N. W. 723 68, 480 Sherin, Hermann v.; S. D. , 60 N. W. 145 31, 32, 37, 42, 89, 101, 160, 202 Sherman, Wright v.; 3 S. D. 367, 53 N. W. 425 499 Shickle-Harrison & Howard Iron Co. v. City of Rapid City et al, S. D. , 66 N. W. 499 506 Shoemaker et al, Bern et al v.; S. D. , 64 N. W. 544 216, 217 Short v. Northern Pac. El. Co.; 1 N. D. 159, 45 N. W. 706 90, 129 Sifton v. Sifton, N. D. , 65 N. W. 670 196 Siglinger, Peterson v.; 3 S. D. 255, 52 N. W. 1060 80, 81 Simons, sheriff. Persons et al v.; 1 N. D. 243, 46 N. W. 969 235, 242 Simpson Brick-Press Co. v. Marshall, 5 S. D. 528, 59 N. W. 728 &5 Sioux Banking Co. v. Kendall et al, S. D. , 62 N. W. 77 69, 105, 135 TERRITORIAL AND DAKOTA CASES. XXXi Sioux Falls Brew. Co. et al, State v.; 2 S. D. 363, 50 N. W. 629 211, 455, 507 Sioux Falls Brew. Co. et al, State v.; 5 S. D. 360, 58 N. W. 928 501 Sioux Falls Brew. Co. et al, State v.: 5 S. D. 39, 58 N. W. 1 107, 108 Sioux Falls Water Co., Carlson v. (on rehearing); S. D. , 65 N. W. 419 21, 100 Slatery v. Donnelly, 1 N. D. 264. 47 N. W. 375 102 Slavens et al, Gleckler et al v.; 5 S. D. 364, 59 N. W. 323 93, 122, 130, 131 Smith, Adams v.; 6 Dak. 94, 50 N. W. 720 194, 209, 252 Smith etal v. Commercial Nat. Banket al, S. D. , 64 N. W. 529. .65, 248 Smith et al, Com. Nat. Bank v.; IS. D. 28, 44 N. W. 1024 83, 190 Smith, sheriff, Conrad v.; 2 N. D. 408,51 N. W. 720 134 Smith et al, First Nat. B. of Pierre v.; S. D. , 65 N. W. 437 22, 87, 125, 147 Smith et al, Golden Terra Min. Co. v.; 2 Dak. 374. 11 N. W. 98. ..75, 84, 212 Smith et al, Golden Terra Min. Co. v.; 2 Dak. 377, 11 N. W. 97 49, 66, 111, 137, 174, 205, 480 Smith et al, Joslyn v.; 2 N. D. 53, 49 N. W. 382 50, 114, 118, 137 Smith v. Chi., Mil. & St. P. R.Co.; 4 S. D. 71, 55 N. W. 717 21,37, 98, 117, 134 Smith v. Chi.. Mil. & St. P. R. Co., 4 S. D. 30, 54 N. W. 931 481, 508 Smith v. N. P. R. Co., 3 N. D. 555, 58 N. W. 345 130, 140 Smith v. N. P. R. Co., 3 N. D. 17, 53 N. W. 173 7, 21, 98, 141, 145 Smith etal. Southard v.; S. D. , 66 N. W. 316 149 Sneuigar et al, McCormick H. M. Co. v.; 3 S. D. 625, 54 N. W. 814 511 Snedigar et al, McCormick H. M. Co. v.; 3 S. D. 302, 53 N. W. 83 511 Southard v. Smith et al, S. D. , 66 N. W. 316 149 South Bend Toy Mfg. Co. v. Dak. F. & M. Ins. Co., 2 S. D. 17, 48 N. W. 310 .' 103 Spaulding, Garr, Scott & Co. v.; 2 N. D. 414, 51 N. W. 867 47, 49, 51, 80, 211, 237, 459, 460 Spaulding et al, in re, S. D , 66 N. W. 462 90 Spicer, Raymond v.; 6 Dak. 45, 50 N. W. 399 67, 73 Spink Co. et al, Billinghurst v.; 5 S. D. 84, 58 N. W. 272 455, 490, 507 Sprague v. Fre. E. & M". V. R. Co., 6 Dak 86, 50 N. W. 617 96, 172 St. Croix Lum. Co. v. Mitchell et al, 4 S. D. 487, 57 N. W. 236 126 St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497 24, 25, 64, 66, 68, 69, 73, 75, 114, 205, 212, 438, 439,o456, 458, 459, 471, 479. St. John v. Lofland, N. D. , 64 N. W. 930 129 St. Paul F. & M. Ins. Co., Enos etal v.; 4S. D. 639, 57 N. W. 919.36, 130, 131 St. Paul F. &. M. Ins. Co., Purcell v.; N. D. , 64 N. W. 943 103, 117, 125, 131, 132, 149 St. P., M. & M. Ry. Co., Lewis et al v.; 5 S. D. 148, 58 N. W. 580 449 Stamm v. Coates, 4 Dak. 69, 22 N. W. 593 15, 27, 80, 132 Stanley Co. et al, Dupree v.; S. D. , 65 N. W. 426 195 Staples v. Huron Nat. Bank, S. D. , 66 N. W. 314 164 Star Wagon Co. v. Matthieson, 3 Dak. 233, 14 N. W. 107 17, 101 State v. Bauer, 1 N. D. 273, 47 N. W. 378 377 State v. Boughner (on rehearing), S. D. , 63 N. W. 542 380 State v. Boughner, 5 S. D. 461, 59 N. W. 736 377, 381, 382 State v. Brennan, 2 S. D. 384. 50 N. W. 625 132, 422 State v. Bunker, S. D . , 65 N. W. 33 23, 261, 264, 380 State v. Burchard, 4 S. D. 548, 57 N. W. 491 374 S'.ate v. Chapman et al, 1 S. D. 414, 47 N. W. 411 115, 271, 363, 366, 367, 416, 418 State v.- Church, S. D. , 60 N. W. 143. . . .108, 369, 375, 377, 380, 382, 399 State v. Church, S. D. , 64 N. W. 152. 400, 403, 404, 428 State v. Hafsoos, 1 S. D. 382, 47 N. W. 400 269 XXX11 TERRITORIAL AND DAKOTA CASES. State v. Hasledahl, 2 N. D. 521, 52 N. W. 315 312, 364, 385, 397, 403, 404 State v. Hasledahl, 3 N. D. 36, 53 N. W. 430 352 State v. Hicks et al, S. D. , 60 N. W. 66 388 State v. Isaacson, S. D. 65 N. W. 430 377 State v. Johnson, 3 N. D. 150, 54 N. W. 547 405, 407,408, 409,410 State v. Kent, 4 N. D. 577, 62 N. W. 631 359, 361, 368, 388, 389 State v. Kerr, 3 N. D. 523, 58 N. W. 27 428 State v. Knight et al, 3 S. D. 509, 54 N. W. 412 153, 432, 433, 434 State v. LaCroix, S. D. , 66 N. W. 944 268, 269, 365 State v. Leehraan, 2 S. D. 171, 49 N. W. 3 131 State v. McGahey, 3 N. D. 293, 55 N. W. 753 122, 133, 428, 429 State v. Marcks, 3 N. D. 532, 58 N. W. 25 410 State v. Markuson, N. D. , 64 N. W. 934 4, 87, 358, 432, 434 State v. Newson et al, S. D. , 66 N. W. 468 120 State v. Phelps, 5 S. D. 480, 59 N. W. 471 387, 388 State v. Reddington, S. D. , 64 N. W. 170 363, 365, 380, 415, 425, 445, 446 State v. Rodway, 1 S. D. 575, 47 N. W. 1061 271 State v. Scott, S. D. , 65 N. W. 31 263, 264 State v. Serensen, S. D. , 64 N. W. 130 425, 429 State v. Sioux Palls Brew. Co. et al, 5 S. D. 39, 58 N. W. 1 107, 108 State v. Sioux Falls Brew. Co. et al, 2 S. D. 363, 50 N. W. 629 21 1, 455, 507 State v. Sioux Falls Brew. Co. et al, 5 S. D. 360, 58 N. W. 928 501 State v. Sweetland, 3 S. D. 503, 54 N. W. 415 434 State v. Taylor, S. D. , 64 N. W. 548 446 State v. Van Nice, S. D. , 63 N. W. 537 351, 353, 354 State v. Wilson, 4 S. D. 535, 57 N. W. 338 378 State ex rel Moore v. Archibald, N. D. , 66 N. W. 234 190 State ex rel Mears v. Barnes, sheriff, N. D. , 65 N. W. 688. .191, 223, 279 State ex rel Dollard v. Board Co. Com'rs Hughes Co. et al, 1 S. D. 292, 46 N. W. 1127 192 State ex rel Edwards v. Davis, 2 N. D. 461, 51 N. W. 942 236, 237, 432 State ex rel Bartlett v. Fraser et al, 1 N. D. 425, 48 N. W. 343 115 State ex rel Gunderson v. King et al, S. D. , 60 N. W. 75. . . .206, 215, 512 State ex rel N. P. R. Co. v. Judge of Dist. Ct., Stutsman Co., 3 N. D. 43, 53 N. W. 433 192 State ex rel Enderlin St. Bk. v. Rose, Dist. Judge, 4 N. D. 319, 58 N. W. 514 192, 193, 224, 236, 238, 252 Stevens v. Wm. Deering & Co., S. D. , 60 N. W. 739 131 Stevens,.Mort. Co. v.; 3 N. D. 265, 55 N. W. 578 88 Stewart v. Gilruth, S. D. , 65 N. W. 1065 20, 61 Stewart v. Parson, N. D. , 65 N. W. 672 201 Stone v. Chi. Mil. & St. P. R. Co., S. D. , 65 N. W. 29 50, 90 Stone, Territory v.; 2 Dak. 155, 4 N. W. 697 93, 379, 382, 395, 418, 419, 420, 422, 423, 439, 467, 468, 482 Sundhack, Ay res, Weatherwax & Reid Co. v.; 5 S. D. 31, 58 N. W. 4. . . 17, 139, 261 Sundback, Ayres, Weatherwax & Reid Co. v.; 5 S. D. 362, 58 N. W. 929, 486, 501 Sundback et al, Griswold v. (on rehearing); 4 S. D. 441, 60 N. W. 1068, 38, 42, 102, 144, 154 Sundback, sheriff, Jewett et al v.; 5 S. D. Ill, 58 N. W. 20 17, 106, 121, 126, 127, 153, 173 Sunde, Miller v.; 1 N. D. 1, 44 N. W. 301 248, 252 Sweet v. Chi., Mil. & St. P. R. Co., 4 N. D. 536, 62 N. W. 605 100 Sweet et al v. Myers et al, 3 S. D. 324, 53 N. W. 187 .73, 181 Sweetland, State v.; 3 S. D. 503, 54 N. W. 415 434 Sykes v. Hannawalt, N. D. , 65 N. W. 682 116 TERRITORIAL AND DAKOTA CASES. XXXlii Taylor v. Jones, 3 N. D. 235, 55 N. W. 593 95 Taylor, Kvello et al v.; N. D. , 63 N. W. 889 17, 110, 155 Taylor, McCormick H. M. Co. v.; N. D. , 63 N. W. 890 147 Taylor, State v.; S. D. , 64 N. W. 548 446 Taylor v. Taylor, 5 N. D. , 63 N. W. 893 213, 253, 482 Taylor, Territory v.; 1 Dak. 451 (appendix) 381, 403, 427 Tel. Co., Kirhy v.; 4 S. D. 105, 57 N. W. 202 171 Territory v. Christensen, 4 Dak. 410, 31 N. W. 847 375, 380 Territory v. Conrad, 1 Dak. 348, 46 N. W. 605 409 Territory v. Couk, 2 Dak. 188, 47 N. W. 395 386 Territory v. Egan. 3 Dak. 125. 13 N. W. 568 271, 368 Territory v. Gay, 2 Dak. '125, 2 N. W. 477 376, 381, 382, 399, 405, 427 Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481 377 Territory v. Jones, 6 Dak. 85, 50 N. W. 528 379, 386, 402 Territory v. King-, 6 Dak. 131, 50 N. W. 623 375. 380, 381, 400, 427 Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003 ' 12, 354, 355, 357, 360, 362, 363, 364, 376, 378, 397 Territory v. Pratt, 6 Dak. 483, 43 N. W. 711 398 Territory v. Stone, 2 Dak. 155, 4 N. D. 697 93, 379, 382, 395, 418, 419, 420, 422, 423, 439, 467, 468, 482 Territory v. Taylor, 1 Dak. 451 (appendix) 381, 403, 427 Territory ex rel Eiseman v. Shearer, 2 Dak. 332, 8 N. W. 135 6 Territory ex rel Wallace v. Woodbury et al, 1 N. D. 85, 44 N. W. 1077. .192 Thomas," Bell v.; S. D. , 63 N. W. 907 80, 211, 212, 478, 487 Thompson & Sons Mfg. Co. v. Guenthner et al, 5 S. D. 504, 59 N. W. 729 237, 510 Thompson v. McKee, 5 Dak. 176, 37 N. W. 367 '.120 Tierney et al v. Phenix Ins. Co., 4 N. U. 565, 62 N. W. 642 157 Todd v. Todd, S. D. , 63 N. W. 777 8 Tolerton & Stetson Co. v. Casperson, S. D. , 63 N. W. 908 206, 214, 226, 232, 483, 486, 508 Tolman v. New Mexico & D. M. Co., 4 Dak. 4, 22 N. W. 505 66, 90, 480 Tonkin, Bedow v.; 5 S. D. 432, 59 N. W. 222 93 Tootle et al v. Petrie, sheriff, S. D. , 65 N. W. 43 83, 93, 109, 132, 138, 162 Towle v. Bradley, 2 S. D. 472, 50 N. W. 1057 226, 227, 228, 314, 318 Towles, Knight v.; S. D. , 62 N. W. 964 18, 100 Town of Dell Rapids v. Irving, S. D. , 64 N. W. 149 173 1 ownsend v. Kennedy, S. D. , 60 N. W. 164 92 Tp. of Red Rock, Hanson v.; S. D. , 63 N. W. 156. .87, 123, 124, 132, 158 Travelers^ Ins. Co. v. California Ins. Co., 1 N. D. 151, 50 N. W. 706. . . 208, 209, 220, 242, 243, 318 Travelers' Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706. 208, 235, 243 Tressel, Feldenheimer v.; 6 Dak. 94, 50 N. W. 720 250 Triplett, George v.; N. D. , 63 N. W. 891 124 Trumbower, Feldman v.; S. D. , 64 N. W. 189 48, 87 Tschetter, Weber v.; 1 S. D. 205, 46 N. W. 201 197, 237 Turner v. Coughran, S. D. , 66 N. W. 810 201 Tyler v. Shea, 4 N. D. 377, 61 N. W. 469 229, 247, 251 Uhe v. Chi. Mil. & St. P. R. Co., .3 S. D. 563, 54 N. W. 601 26, 124, 229 Uhe v. Chi. Mil. & St. P. R. Co., 4 S. D. 505, 57 N. W. 484 22, 25, 63, 64, 150 Uhliff v. Garrison et al, 2 Dak. 99, 2 N. W. 258 22 Ulrick v. Dak. Loan & Trust Co., 2 S. D. 285, 49 N. W. 1054 (on rehear- ing) .83 Upton v. Hugos et al, S. D. , 64 N. W. 523 37, 113, 115 U. S. ex rel Scott v. Burdick, ma) shal, 1 Dak. 137, 46 N. W. 571 191 U. S. v. Crow Dog, 3 Dak. 106, 14 N. W. 437 386 U. S. v. Wood, 4 Dak. 455, 33 N. W. 59 387 XXXIV TERRITORIAL AND DAKOTA CASES Valley Land & Irrigation Co. v. Scheme et al, 2 S. IX :544, .50 N. W. 356 2< 1.1. 4o.X, 478. 4,8:5, 4SS, 4>K), .-,07 Valhar v. Brakke (on rehearing), S. D. , 64 N. W. 1119 1-V, Van Antwerp v. Dell Rapids Tp., 3 S. D. 305, 53 N. W. 82 (on rehear- insr) 173 Van Brunt & Davis To. v. Harridan et al; S. D. , 65 N. W. 421 20, 118 Van Eps, Holt v.; 1 Dak. 1!>S, 46 X. \V. 689 13, 51 Van Nice, State v.; S. D.-. 63 X. W. 537 351. 353, 354 Varmier, Farris v.; (i Dak. 186. 42 N. W. .SI l'.-3 Vertnillion Artesian Well. E.. L., M., I. & I. Co. v. City of Vermillion, S. D. . 61 X. W. 802 86, 12:5, 130 Vert v. Vert, 3 S. D. 619, 54 N. W. 655 235. 237, 510 Wait. Ellis v.; 4 S. D. 31,54 N. W. 925 131, 471, 487, 490, 513 Wait, Ellis v.; 4 S. D. 504, 57 N. W. 23; '.04 Waite et al, Ross v.; 2 S. D. 638, 51 N. W. S66 65, 77. 239 Waite, Williams v.; 2 S. D. 210, 4'.) N. W. 209 194, 209 Waldron v. Evans, 1 Dak. 10, 46 N. W. 607 112, 152, 246. 249, 513 Wallace et al, Clark v.; 1 X. D. 404, 48 N. W. 339 162, 163 Walsh, Harris Mfg. Co. v.; 2 Dak. 41, 3 N. W. 307 2:59 Walter A. Wood Har. Co. v. Heidel et al, 4 N. D 427. 61 N. W. 155. ... 214, 464 Wambole v. Foote, 2 Dak. 1 , 2 N. W. 239 239, 240, 247 Ward et al. Paulson v.; 4 X. D. 100, 58 N. W. 792 247 Warder, Bushnell & Glessner Co. v. Ingli, 1 S. D. 155, 46 N. W. 181 101, 119. 122, 134 Warder, Busbnell & Glessner Co. v. Raymond, S. D. , 64 N. W. 525 313, 316 Watertown F. Ins. Co., Drew v.; S. D. , 61 N. W. 34 81, 111, 133 Watertow-n Hotel Co., Esshon v.; S. D. , 63 N. W. 229. . .92, 127, 147, 470 Watkins, Harris v.; 5 Dak. 374, 40 N. W. 536 321 Way v. Johnson et al. 5 S. D. 237, 58 N. W. 552 122, 489 Way et al. Miller v.; 3 S. D. 627, 54 X. W. 814 72, 194, 245 Weber, in re, 4 N. D. 119, 59 N. W. 523 235, 236, 243, 320, 510 Weber, Ins. Co. v.; 2 N. D. 239, 50 N. W. 703 235 Weber v. Tschetter, 1 S. D. 2&5, 46 N. W. 201 197, 237 Webster, Evenson v. (on rehearing); 5 S. D. 266, 58 N. W. 669 51, 111, 132, 146, 246, 484 Welch, Kelsey v.; S. D. , 66 N. W. 390 142, 196, 197, 198, 204 Wells, Le Claire v.; S. D. , 64 N. W. 519 51, 246 Welsh v. Barnes, sheriff, N. D. , 65 N. W. 675 195 Wendt v. R. R. Co.: 4 S. D. 476, 57 N. W. 226 92. 110, 123, 124, 125, 140, 168 Western Pub. House v. Bachman et al, 2 S. D 512, 51 N. W. 214 101 Western Pub. House v. Murdick et al, 4 S. D. 207, 56 N. W. 120 101 Western Union Tel. Co., Grigsby v.; 5 S. D. 561, 59 N. W. 734 4, 5, 19, 45, 46, 102, 146, 159 Western Union Tel. Co., Kirby v.; 4 S. D. 105, 55 N. W. 759 27, 81 Western Union Tel. Co., Kirby v.; S. D. ,65 N. W. 482. . . .491, 501, 505 Western Union Tel Co., Kirby v.; 4 S. D. 439, 57 N. W. 199 500 Western Union Tel. Co., Kirby v.; S. D. , 60 N. W. 152 '. . . . 171 Western Union Tel. Co., Kirby v.; 4 S. D. 463, 57 N. W. 202 171 White, sheriff, Gaines v.; IS. D. 434, 47 N. W. 524 35, 42, 67, 84, 178 White v. Ry. Co., 1 S. D. 326, 47 N. W. 146 97, 239, 241 Wilber et al, Cheatham v.; 1 Dak. 335, 46 N. W. 580 64 Williams et al, Jerauld Co. v.; S. D. , 63 N. W. 905 55, 57, 136, 142, 143, 170, 489 Williams v. Northern Pac. R. Co.; 3 Dak. 168, 14 N. W. 97 100, 101, 107, 165 TERRITORIAL AND DAKOTA CASES. KXZi Williams v. Waite, 2 S. D. 210. 49 X. W. 209 194. 309 Williams v. Williams, S. D. , 61 X. W. - 145.152.171.209.24: ._ ! Williamson v. Mort.. Bank & lev. Co.. X. D. , 54 X. W. 1026 . . .83, 29 Willis v. DeWitt. 3 S. D. 281. 52 X. W. 1090 4 Willow Lake Tp., Bank v.: 1 X. D. 2K. 44 X. W. 1(102 Willsie v. Ranch Co.. S. D. . 03 N. W. 546 145 Wilmarth. Aldricb et al v.; 4 S D. 3*. 54N. W. 1051 487 Wilmarth, Wvman v.: 1 S. D. 35, 44 N. W. 1151 Wilmarth. Wyman v.: 1 S. D. 172. 46 X. W. 190 2W Wilson. Cough ran v.: S. D. . 63 X. W. 774 156, 365 State v.; 4 S. D. 535, 57 N. W. 338 Windsor. Greeley v.: 3 S. D. 138, 52 X. W. 674 8 .Windsor et al, Greeley T.: 1 S. D. 618. 4% X. W. 214 2 ; .]BOT et al, Greeley v.: 2 S. D. 361. % X. W. 630 241, 312 Winona Lam. Co. v. Church et al, S. D. , 62 X. W. 107 11* Wintermute. People T. : 1 Dak. 60 1 102, 46 X. W. 694 425 Winton v. Kirby et aL S. D. , fiO N. W. 409 236, 228, 26i, 508 Winton v. KnotL sheriff, S. D. , 63 X. W. 783 154. 157, 202, 206, 265, 267 Wm. Deering & Co. v. Russell et al, S. D. , 65 X. W. 691. . 20, 128, 129, 161, 165 Wm. Deering & Co.. Stevens T.: S. D. , 60 N. W. 739 131 Wood v. Niseen, 2 X. D. 26, 49 N. W. 103 64. 75, 180, 184, 188. 212, 245. 463. 471 Wood. U. S. v. : 4 Dak. 455. 33 X. W. 59 Jbury et al. Territory ex rel v. : 1 X. D. 85. 44 X. W. 1077 192 Wright v. Lee. 4 S D. 237. 55 X. W. 931 193 Wright v. Sherman, 3 S. D. 367, 53 X. W. 425 499 Wyman v. Wilmarth, 1 S. D. 35. 44 X. W. 1151 22- Wyman v. Wilmarth. 1 S. D. 172, 46 N. W. 190 2tt Yankton Co. T. Bossteaacher. 1 Dak. 120. 46 X". W. 575 140, 37 YankU>n F. Ins. Co. v. Fre., E. & M. V. R Co., S, D. , 64 X. W. 514 19. 4, MS Yankton F. Ins. Co., Fromberz v.: S. D. , 63 H. W. 784 19, MS Yetzer T. Young, 3 S. D. 263. 52 X. W. 1054 82, 1W Yorke v. Yorke. 3 X. D. 343. 55 X. W. 1095 8 Yorks. Ens-le v.: S. D. . 64 X. W. 132 5. 38, 45. 156. 28* BH Young. Pitts'. Agl Works v.; S. D. . 62 X. W. 432. .43, 44, 110. 119. 120 Young et al. Parliman v.: 2 Dak. 175. 4 X. W. 61 16. 17. 7r>, and 8 N. W. 148; Mondran v. Goux, 51 Cal. 151; Morenhout v. Barron, Jl2 Cal. 605: Devoe v. Devoe, 51 Cal. 543; Giegory v. Nelson, 41 Cal. 278. ISSUE OF LAW. 5028 Comp. Laws; 5416 Rev. Codes N. D. An issue of law arises upon a demurrer to the com- plaint, answer or reply, or to some part thereof. Sec. 232 C. C. P.; Levisee p. 70; Wait's Code 249; Harst Pr. Deer Code 589. ISSUE OF FACT. 5029 Comp. Laws; 5417 Rev. Codes N. D. An issue of fact arises: 1. Upon a material allegation in the complaint contro- verted by the answer; or, 2. Upon new matter in the answer controverted by the reply; or, 3. Upon new matter in the reply , except an issue of law is joined thereon. [Sec. 5417 Rev. Codes N. D., is the same as the above section, except that in subdivision 2, that part thereof after the word "answer" is as fol- lows: "not requiring a reply, or controverted by a reply; or" and the word "unless" is substituted for "except" in subdivision 3. (Am'd Rev. Com'rs. )] Sec. 233 C. C. P.; Levisee p. 70; Wait's Code 250; Harst Pr., Deer. Code, 590. Verified Denial Raises Issue. A verified, unqualified denial of ma- terial facts, such as the defendant is allowed to deny, raises an issue of fact which either party is entitled to have tried by a jury, and it will ordinarily be error to strike out such answer as sham. Loranger v. Big Missouri Min. Co., S. D. , 61 N. W. 686; Waylaud v. Tysen, 45 N. Y. 281; Bank v. Inman, (Sup.) 5 N. Y. Supp. 457; Roby v. Hallock, 55 How. Pr. 412; Fay v. Cobb, 51 Cal. 313; Greenbaum v. Turrill, 57 Cal. 285. Findings When Not Required. In an action to foreclose a mechanic's lien, when no answer is filed, and therefore no issues of fact raised by the pleadings, the court is not required to find the facts. Cole v. Custer County Ag'i, Min- eral & Stock Ass'n, 3 S. D. 272, 52 N. W. 1086; Krause v.Krause, 23 Wis. 3o4. ISSUES ORDER OF TRIAL 5030 Comp. Laws; 5418 Rev. Codes N. D. Issues both of law and of fact may arise ISSUES AND MODE OF TRIAL. upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct. Sec. 234 C. C. P; Levisee p. 70; Wait's Code | 251. TRIAL DEFINED. 5031 Comp. Laws; 5419 Rev. Codes N. D. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. Sec. 235 C. C. P.; Levisee p. 70; Wait's Code 252. Findings and Conclusions Unnecessary, When. "Trial." In an ac- tion to foreclose a mechanic's lien, when no answer is filed nor issue of fact tried, the court is not required to find the facts or state its conclusions of law before rendering judgment. It will be presumed in the absence of proof to the contrary, that the court heard and considered the necessary evidence to enable it to give judgment. In this case it appears from the recitals in the judgment that no answer was filed, and therefore no issues of fact could have been raised to be decided by the court. Cole v. Custer County Ag'l, Mineral & Stock Ass'n, 3 S. D. 272, 52 N. W. 1086; Krause v. Krause, 23 Wis. 354; Potter v. Brown Co., 56 Wis. 272, 14 N. W. 375. The word "trial" is sometimes used in a broad sense, including all the steps taken in a case prior to final judgment, but in its restricted sense it includes the investigation of facts only, and in this sense it is used under this statute. State v. Hasledahl, 2 N. D. 521, 52 N. W. 315; Jenks v. State, 39 Ind. 9. ISSUES BY WHOM TRIABLE. 5032 Comp. Laws. An issue of law must be tried by the court or by the judge. An issue of fact for the recovery of money only, or of specific real or per- sonal property, must be tried by a jury, unless a jury trial be waived as provided in section 5065. Every other issue is triable by the court which, however, may order the whole issue or any specific question of fact involved therein, to be tried by a jury, or may refer it as provided in sections 5071 and 5072. SAME. 5420 Rev. Codes N. D. An issue of law must be tried by the court or by the judge. An issue of fact in an ac- tion for the recovery of money only or of specific real or per- sonal property must be tried by a jury, unless a jury trial is waived as provided in section 5449, or a reference is ordered as provided in sections 5455 and 5456. Every other issue is tria- ble by the court, which, however, may order the whole issue or any specific fact involved therein to be tiied by a jury or by CODE OF CIVIL PROCEDURE. a referee as provided in sections 5455 and 5456. (Am'd Rev. Com'rs. ) Sec. 236 C. C. P. am'd 1 ch. 146, 1885; Levisee p. 70; Wait's Code $ 253, 254; Harst Pr. Deer. Code $ 591, 592. Sec. 6 Art. 6 Const. S. D. is as follows: The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy, but the legis- lature may provide for a jury of less than twelve in any court not a court of record, and for the decision of civil cases by three-fourths of the jury in any court. The following is ? 7 Art. 1 Const. N. D.: The right of trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law. Consent to Less Number. While the legislature cannot compel a lit- igant to accept less than a constitutional jury, the parties themselves in a civil action may voluntarily consent to a jury of any number. City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947; Vaughn v. Scade, 30 Mo. 600; Millett v. Hayford, 1 Wis.401; Gillespie v. Benson, 18 Cal. 410; Cravins v. Grant, 4 T. B. Mon. 126; Roach y. Blakey (Va.), 17 S E. 228. Contempt. In contempt proceedings under ch. 110 Laws 1890 N. D., the party charged with contempt is not entitled to have the charge tried to a jury. State v. Markuson, . . N. D. . . , 64 N. W. 934; State v. Frew, 24 W. Va. 416; State v. McClaugherty, (W. Va.) 10 S. E. 407; Hughes v. People, 5 Colo. 436: Ex parte Robinson, 19 Wall. 505; Anderson v. Dunn, 6 Wheat. 204; People v. Wilson, 64 111. 195; Batchelder v. Moore, 42 Cal. 415; Wyatt v. People, (Colo.) 28 Pac. 961; Arnold v. Com., 44 Am. Rep. 480. Jury Not Demandable in Lien Foreclosure. In a suit to enforce a mechanic's lien a jury trial is not demandable as matter of right under this section ( 236 C. C. P. Dak.); nor under the constitution of the United States, providing that in suits at common "law the right of jury trial shall be pre- served. Gull River Lurn. Co. v. Keefe et al., 6 Dak. 160, 41 N. W. 743; Davis v. Alvord, 94 U. S. 546. Waiver of Submission of Fact to Jury. If, upon the evidence in this case, the question whether the agent of appellant had authority to make the agreement or lease in question (the trial court having assumed, in the absence of proof of any attempt by ap- pellant to disprove his. authority, after knowledge of his act, that such au- thority existed), was one of fact for the jury, appellant waived its submis- sion to the jury by treating the case as presenting questions of law only, and moving the court to direct verdict in its favor, and making no claim or request to have the case submitted to thejury. Grigsby v. Western Un- ion Tel. Co., 5 S. D. 561, 59 N. W. 734; Barnes v. Ferine, 12 N. Y. 18; Winchell v. Hicks, 18 N. Y. 565; Leggett v. Hyde, 58 N. Y. 275. And the ISSUES AND MODE OP TRIAL. court having adopted appellant's theory that the case presented questions of law only, the fact that it decided the law questions adversely to appel- lant did not, in the absence of an express request to submit, relieve appel- lant from the effect of his concession that there were no questions of fact in the case. Grigsby v. Western Union Tel. Co., supra. What Findings Support Judgment. When, upon trial in the circuit court upon appeal upon questions of both law and fact, from the county court involving appointment of a guardian, questions of fact are submitted to a jury, whose answers, although only advisory, are referred to in the judgment of the court as having been "duly considered," without any inti- mation of dissatisfaction with them, no other findings being found in the record or claimed to have been made, it will be understood that the judg- ment was based upon such findings of the jury. Engle v. Yorks, S. D. , 64 N. W. 132; Hayne's New Tr. & App. 234. Jury's Bight to Determine Facts. See, as to the right of the jury to determine the force of evidence, etc., $ 5048 Comp. Laws, and cases cited thereunder; also cases cited under subdivisions 6 and 7 of 5088 Comp. Laws. ISSUES TRIAL OF -TERMS. 5033 Comp. Laws; 5421 Rev. Codes. All issues' of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact must be tried at a regular term of the circuit court, when the trial is by jury, otherwise at a regular or special term as the court may by its rules prescribe. Issues at law must be tried at a regular or special term of the circuit court, or by the court in vacation, or judge at chambers. If by the court in vacation, or judge at chambers, the same may be heard, tried and determined in any county of the circuit within which the action is brought, and judgment thereon entered in the proper county, upon the giv- ing by either or any party of the notice prescribed by sec. 5034; but in such case no* note of issue need be filed, and any judg- ment, final decision or actual determination, made upon such trial and hearing, may be appealed from in the same manner and subject to the same rules and provisions as in cases of other appeals from actual determinations and final decisions of any regular or special terms of the circuit courts of this state. [Sec. 5421 Rev. Codes N. D., is the same as the above section, except that the term "issues of law" is used instead of "issues at law," and the reference therein is to "section 5422" instead of "section 5034." (Am'd Rev. Com'rs. ) ] Sec. 237 C. C. P. Arn'd 1 ch. 147 1885; Levisee p. 70; Wait's Code 255. CODE OF CIVIL PROCEDURE. Jurisdiction of Court, at Terms. Sec. 9, ch. 27, Laws 1879, auth- orized district judges to appoint Additional terms of court in any county or subdi vision of their districts. Ch. 71, Laws 1885, amend this section by strik- ingout the word "additional'"; andch.79. Laws 1885, approved on the same day. fixed the dates of terms in the several counties of the fifth judicial dis- trict; held, that neither of the last named acts, nor both together, had the effect to repeal said sec. 9, as to counties of the fifth judicial district, nor to impair the authority of the judge to appoint terms therein; and when such appointed term is held upon a day designated by law for holding a term in an- other county, it will be presumed in this court, in the absence of a contrary showing, that the judge adjourned such last-mentioned term as author! xrd by sec. 442 Comp. Laws. Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245; Reed v. Bagley, (Neb.) 38 N. W. 827; Burton v. Estate of Barlow, 5-5 Vt, 434; held, further, that sec. 426 Comp. Laws (sec. 4, ch. 13 Pol. Code) is still in force, and that section, under which the term in question was called, makes such called terms "in all respects the same as the general terms provided in this act," and the general terms provided in such act were the very "reg- ular terms" referred to in sec. 5033 Comp. Laws; and the trial court in this case had jurisdiction to hear and dispose of the.action. Myers v. Mitchell, supra. Jurisdiction Judge at Chambers. A judge at chambers has jurisdic- tion to issue, or direct the issue, of an alternative writ of mandamus, return- able before him within his district, and outside of the subdivision in which the proceedings are entitled, and to proceed to trial and issue the preemp- tory writ outside of such subdivision. Territory of Dak. ex rel. Eiseman v. Shearer, 2 Dak. 332, 8 N. W. 135; see also Lacie v. Casanauva, 30 Cal. 560; sec. 712 Code Civ. Proc. (sec. 5534 Comp. Laws); sec. 31 Code Civ. Proc. (sec. 4828 Comp. Laws). NOTE OF ISSUE CALENDAR ORDER OF TRIAL 5034 Comp. Laws; 5421 Rev. Codes N. D. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least eight days before the court, with a note of the issue, con- taining the title of the action, the names of the attorneys, and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. There need be but one notice of trial, and one note of issue from either party, and the action must then remain on the calendar until disposed of, and when called may be brought to trial by the party giving the notice. The issues on the calendar shall be disposed of in the following order, un- less, for the convenience of parties or th dispatch of business, the court shall otherwise direct: ISSUES AND MODE OF TRIAL. 1. Issues of fact to be tried by a jury. 2. Issues of fact to be tried by the court. 3. Issues of law. Sec. 238 C. C. P.; Levisee p. 71; Wait's Code 256, 257; Harst Pr. Deer Code, 593. Notice of Trial Error in Date. When the notice of trial contains an error in date of commencement of the term, the month and year being stated correctly, the notice is sufficient, as a litigant is bound to know when the terms of court are held, and is therefore apprised of the mistake in the notice and of the true date intended to be specified therein. Smith v. N. P. R. R. Co., 3 N. D. 17, 53 N. W. 173; Ins. Co. v. Kelsey, 13 How. Pr. 535. Trials at Additional Terms. Under ch. 79, sec. 10, Laws 1891 N. D., the same business can be transacted at an additional term of court called by the judge as at the terms fixed by the statute. New cases can be noticed for such term and placed on the calendar therejuf, and tried thereat. Smith v. N. Pac. R. R. Co. supra. EITHER PARTY PROCEEDS SEPARATE TRIALS. 5035 Comp. Laws; 5423 Rev. Codes N. D. Either party, when the case is reached upon the calendar, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict, or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants may be allowed by the court, whenever, in its opinion, justice will be promoted. Sec. 239 C. C. P.; Levisee p. 71; Wait's Code 258; Harst Pr. Deer. Code 581, 582, 584. Dismissal of Case Not of Appeal. When the case is reached upon the calendar, and called for trial, if either party fail to appear, the adverse party may proceed with his case, take a dismissal of the complaint, a ver- | diet or judgment, as the case may require, but he cannot under that section (sec. 5035 Comp. Laws) take a dismissal of the appeal; as, where the appeal from the justice's court was upon questions of law and fact and a new trial was demanded, the district court dots not and cannot judicially know that the case is one of appeal, but it is to be considered and treated, under that section, as an action originally brought in that court Myers v. Mitchell, 1 S. D. 249. 46 N. W. 245. Dismissal, When Inoperative Vacating, Nunc Pro Tune A judgment in a divorce suit having been rendered in favor of plaintiff in January, defendant made a motion in June to vacate and set it aside; the motion was taken under advisement, and on September 30, upon plaintiff's motion, a judgment was entered dismissing the action; and in CODE OF CIVIL PROCEDURE. December the motion of defendant made in June was granted and the Jan- uary judgment vacated and set aside, and the order of vacation thereof directed that the same be entered as of date September 18th; held, that the judgment dismissing the action was inoperative when made, but took effect upon entry of the nunc pro tune order of December, which latter order was legal and valid and must be held as made prior to dismissal of the ac- tion. Todd v. Todd, . . . . S. D ...... 63 N. W. 777; Mitchell v. Overman, 103 U. S. 62; Gray v. Briernardello, 1 Wall. 636; Ins. Co. v. Boon, 95 U. S. 117; and see Rudolph v. Her-man, 4 S. D. 430, 56 N. W. 122. Dismissal Intervention. In absence of a counterclaim or demand for affirmative relief, a complaint of intervention stating a cause of action adverse to both plaintiff and defendant, as shown by. the pleadings, may be dis- missed on application of the intervenor. Schaetzel v. City of Huron (White, intervener), ---- S. D ..... , 60 N. W. 741; and the court has jurisdic- tion to entertain a motion to discontinue, though it was not made at the trial term. Id.; Champion v. Com'rs, 5 Dak. 416, 41 N. W. 739; Smith v. Dragert, 61 Wis. 222| 21 N. W. 46; Tyler v. Healy, 51 Cal. 191; Tilton v. Beecher, 59 N. Y. 176; Elliott App. Proc. 605 and cases there cited; sec. 4828 Comp. Laws. Separate Trial Beviewable Error. Unless injury to the party complaining results from the discretionary ruling of a trial court upon an application for a separate trial between a plaintiff in a civil action and any of the defendants, such ruling will not, on appeal, be subject to re- view. Noyes et al. v. Belding, sheriff, et al., 5 S. D. 603, 59 N. W. 1069. Judgment Vacated Before Amended Complaint Allowed. When in an action a demurrer to the complaimt has been sustained, and judgment entered dismissing the complaint, it is error to allow plaintiff to serve and file an amended complaint without first setting aside or vacating the judg- ment of dismissal. Greeley v. Windsor, 2 S. D. 361, 52 N. W. 674; 2 Wait's Pr. 517; Tillspaugh v. Dick, 8 How. Pr. 33; Taft v. Transportation Co., 56 N. H. 417. PARTY FURNISHING PAPERS. 5036 Comp. Laws; 5424 Rev. Codes N. D. When the issue shall be brought to trial by. the plaintiff, he shall furnish the court with a copy of the sum- mons and pleadings, with the offer of the defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant. Sec. 240 C. C. P.; Levisee p. 71; Wait's Code I 259. FORMATION OF THE TRIAL JURY. CHAPTER II. ART. 3, CHAP. 12, CODE OF CIVIL PROCEDURE. FORMATION OF THE TRIAL JURY. JURY BALLOTS. 5037 Comp. Laws; 5425 Rev. Codes N. D. At the opening of the court the clerk must prepare sep- arate ballots containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the names cannot be seen, and must deposit them in the trial jury box. Sec. 241 C. C. P.; Levisee p. 71; Harst Pr. Deer. Code 246. CLERK DRAWS JURY. 5038 Comp. Laws; 5426 Rev. Codes N. D. When the action is called for trial by jury, the clerk must draw from the trial jury box of the court the ballots containing the names of the jurors summoned, until the jury is completed or the ballots are exhausted. Sec. 242 C. C. P.; Levisee p. 72; Harst Pr. Deer Code 246, 600. Court may order jurors summoned to complete panel, -145 b, Comp. Laws; or to fill panel in particular case on trial, \ 445 c, Comp. Laws. WHO CHALLENGES CLASSIFICATION. 5039 Comp. Laws; 5427 Rev. Codes N. D. Either party may challenge the jurors, but where there are several parties on either side, they must join in a challenge before it can be made. The challenges are to individual jurors, and are either peremptory or for cause. Each party is'entitled to three peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff. Sec. 243 C. C. P.; Levisee p. 72; Harst Pr. Deer Code \ 601. CHALLENGES FOR CAUSE. 5040 Comp. Laws; 5428 Rev. Codes N. D. Challenges for cause may be taken on one or more of the following grounds: 1. A want of any of the qualifications prescribed by the political code to render a person competent as a juror. 2. Consanguinity or affinity, within the fourth degree, to either party. 2 TP 10 CODE OF CIVIL PROCEDURE. 3. Standing- in the relation of guardian or ward, master and servant, employer and clerk, or principal and agent to either party, or being a member of the family of either party, or being a partner in business with either party, or surety on any bond or obligation for either party. 4. Having served as a juror or been a witness on a prev- ious trial between the same parties for the same cause of action. 5. Interest or the part of the juror in the event of the ac- tion, or in the main question involved in the action, except his interest as a member or citizen of a municipal corporation. 6. Having an unqualified opinion or belief as to the merits of the action, founded upon knowledge of its material facts, or some of them. 7. The existence of a state of mind in the juror evincing enmity against, or bias to or against, either party. 8. That he dees not understand the English language as used in the courts. Sec. 244 C. C. P.; Levisee p. 72; Harst Pr. Deer. Code \ 602. Prejudicial Error. The ruling of the court, sustaining a challenge to a juror for cause, although not justified by the facts disclosed in his examin- nation, is not error for which a judgment will be reversed, when he might have been challenged peremptorily by the same party, and it not appearing that the defendant was prejudiced by such ruling, the cause having been tried by a competent jury. Herbert v. N. Pac. R. R. Co., 3 Dak. 38, 13 N. W. 349; Morrison v. Lovejoy, 6 Minn., 319, (Gil. 224); Atlas Min.Co. v. John- son, 23 Mich. 36. Question for Court. The qualifications of a juror, when challenged for cause, become a question of fact for the trial court. Haugen v. Chi., Mil. & St. Paul By. Co., 3 S. D 394, 53 N. W. 769. The statute having prescribed the grounds for disqualification, when either of these grounds is found to exist, it is the duty of the trial court to reject the juror; but if af- ter full examination of him personally, or by testimony of other persons, the trial court finds tha.t none of the statutory disqualifications exists, and accepts the juror, its decision will not be reversed, unless it is made to ap- pear that there was no legal evidence to support its judgment. Haugen v. Chi., Mil. & St. P. Ry. Co., supra. Bias. The word "bias," as used in sub- divisions 6, 7, section 5040 Comp. Laws, means such a leaning of the mind or propensity towards an object as does not leave the mind indifferent, but shows that it is under an influence which sways it to one side, and will tend to prevent the juror from deciding the case according to the evidence. Haugen v. Chi., Mil. & St. P. Ry. Co. 3 S. D. 394, 53 N. W. 769. Disquali- FORMATION OF THE TRIAL JURY. 11 fying Opinion. An unqualified opinion or belief as to the merits of the ac- tion, founded upon knowledge of the material facts or some of them, disqualifies a person from sitting as a jurror. This is the language of the code. Haugen v. Chi., Mil. & St. P. Ry. Co., supra. Must be Abiding Bias. The theory of the law is that a juror who has formed an opinion cannot be impartial, but every opinion he may entertain need not neces- sarily have that effect. The opinion, to disqualify, must be an abiding bias of the mind, based upon the substantial facts in the case, in the existence of which he believes. Haugen v. Chi., Mil. & St. P. Ry. Co., 3 S. D. 394, 63 N. W. 769; Reynolds v. U. S., 98 U. S. 145; State v. Meaker, 54 Vt. 112; State v. Meyer, 58 Vt. 457, 3 Atl. 195; People v. Cochran, 61 Cal. 548; Dolan v. State, 40 Ark. 454; O'Connor v. State, 9 Fla. 215; State v. Smith, 49 Ct. 376; The Anarchists' Case, 123 U. S. 131, 8 Sup. Ct. Rep. 21; State v. Ormiston, 66 la. 143, 23 N. W. 370; Murphy v. State, 15 Neb. 383, 19 N. W. 489; McHugh v. State, 42 Ohio St. 154; Scranton v. Stewart, 52 Ind. 68. Hypothetical Opinion. An unqualified opinion or belief, as used in the code, is such a settled conviction in the mind of the juror, founded upon a knowledge of the facts of the case, as would raise a strong presumption of partiality; but a hypothetical opinion, founded on hearsay or information, and unaccompanied with malice or ill will, will not support a challenge for bias. Haugen v. Chi., Mil. & St. P. Ry. Co., supra. Discretion of the Judge. In determining the impartiality of a juror, the trial judge is clothed with large discretion, and his finding is not to be determined by any inflexible rules. Much must depend upon the character of the juror as disclosed by his bearing, and upon his relation to the par- ties. The standard is a man who will act with entire impartiality as a juror in a given case. From the surroundings the trial judge must de- termine, and from that judgment there is no appeal if it is not exercised in an arbitrary manner, but is a fair legal judgment, deduced from the facts as they are presented. Haugen v. Chi., Mil. & St. P. Ry. Co., supra. A jur- or swore that he had formed an opinion, but it was based upon conversations had with persons who knew nothing about any of the facts in the case. The conversations were general current talk. Notwithstanding his opinion he could and would sit as a juror in the case, unprejudiced and unbiased, and render a verdict according to law and evidence. Held, the trial court com- mitted no error in permitting the juror to sit on the panel. Haugen v. Chi., Mil. & St. P. Ry. Co. 3 S. D. 394, 53 N. W. 769. COURT TRIES CHALLENGES. 5041 Comp. Laws; 5429 Rev. Codes N. D. . Challenges for cause must be tried by the court. The juror challenged and any other person may be ex- amined as a witness on the trial of the challenge. Sec. 245, C. C. P.; Levisee p. 73; Harst Pr. Deer Code % 603. CODE OF CIVIL PROCEDURE. Must Show Prejudice. It is for the defendant to show that it was prejudiced by the decision of the court sustaining a challenge to a juror for cause; and although not justified by the facts disclosed in the examination of the juror, such ruling is not error for which a judgment will be reversed, when he might have been challenged peremptorily by the same party, and it not appearing that defendant was prejudiced by such ruling, the cause having been tried by a competent jury. Herbert v. N. Pac. R. R. Co., 3 Dak. 38, 13 N. W. 349; Morrison v. Lovejoy, 6 Minn. 319 (Gil. 224); Atlas Min. Co. v. Johnson, 23 Mich. 36. JURORS' OATH. 5046 Comp. Laws; 5430 Rev. Codes. N. D. As soon as the jury is completed, the following oath must be administered to the jurors: ''You, and each of you, do solemnly swear, that you will well and truly try the matters in issue between , the plain- tiff, and , defendant, and a true verdict rendered accord- ing to the evidence. So help you, God." If any person be conscientiously scrupulous of taking an oath, he shall be allowed to make affirmation, substituting for the words "So help you God," at the end of the oath, the fol- lowing: ''This you do affirm under the pains and penalties of perjury." Sec. 246 C. C. P.; Levisee, p. 73; Harst'. Pr. Deer. Code g 604. See, as to the swearing of jurors in criminal cases, Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003, cited under sections 7349 and 7351 Comp. Laws, sections 8154, 8156, Rev. Codes N. D.; State v. Hasledahl, 2 N. D. 521, 52 N. W. 315, cited under section 7401 and section 5031, Comp. Laws, sections 8213, 5419, Rev. Codes, N. D. CHAPTER III. ART. 4, CHAP. 12, CODE OF CIVIL PROCEDURE. OF THE CONDUCT OF THE TRIAL. TRIAL, ORDER OF. 5047 Comp. Laws; 5431 Rev. Codes N. D. When the jury has been sworn, the trial must proceed in the following order, unless the judge, for special reasons otherwise directs: OF THE CONDUCT OF THE TRIAL. 13 1. The plaintiff, after stating the issue and his case, must produce the evidence on his part. 2. The defendant may then open his defense, and offer evidence in support thereof. 3. The parties may then respectively offer rebutting evi- dence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. 4. When the evidence is concluded, unless the case is sub- mitted to the jury on either side or on both sides without argu- ment, the plaintiff must commence and may conclude the argu- ment. 5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument. 6. The court may then charge the jury. Sec. 247 C. C. P.; Levisee p. 73; Harst. Pr. Deer Code <$ 607, 2042. Nonsuit. It was held, in Holt v. Van Eps, 1 Dak. 198, 46 N. W. 689, in an action of replevin, where defendant moved for nonsuit when plaintiff rested his case, that the motion was properly denied, that a peremptory nonsuit cannot be ordered against the will of the plaintiff; following Elmore v. Graymes, 1 Pet. 469, and D'wolf v. Rabaud, 1 Pet. 476; and see to the same effect, Crane v. Lessee of Morris, 6 Pet. 598; Hyde v. Barker, 1 Pin. (Wis.) 305; Baxter v. Bayne, Id. 501. In the case of Sanford v. Bell et al. (or Sanford v. Duluth & Dak. El. Co.) 2 N. D. 6, 48 N. W. 434 (436), the North Dakota court, while consider- ing the question whether it was necessary in the case then before it, that a motion for a new trial should have been made, use this language with refer- ence to nonsuits, after referring to the California statutes and decisions reg- ulating exceptions and new trials as governing the practice: "In Califor- nia the practice of directing nonsuits prevails; but such practice, so far as the question we are considering is concerned, is substantially the same as directing a verdict. In both cases the court passes upon the legal sufficien- cy of the evidence to warrant a judgment;" citing Marshall v. Mf'g Co., 3 S. D. 473, 47 N. W. 290; Hayne New Tr. & App., p. 284, sec. 100. While it is generally true that a plaintiff has a right to discontinue his action, he ought not to be allowed to do so unconditionally, where to so discontinue would manifestly work a serious wrong to defendant. Axion Min. Co. v. Little, .... S. D ", 61 N. W. 441; 5 Am. & Eng. Ency. of Law, p. 676, and cases there cited; Schaetzel v. City of Huron, S. D , 60 N. W. 741. Error Without Prejudice. A judgment will not be disturbed because the trial court, against objection, allowed defendant's counsel to make the 14 CODE OF CIVIL PROCEDURE. opening and closing argument, when from the record it affirmatively ap- pears that no injustice could have resulted therefrom. Laney v. Ingalls, 5 S. D. 183, 58 N. W. 572; Parker v. Kelly, 61 Wis. 552, 21 N. W. 539; Bank v. St. John, 17 Wis. 157; Bank v. Shakman, 30 Wis. 333. [AUTHOR'S NOTE.] Reinforcing Plaintiff's Case Rebuttal Discre- tionary. The admission or exclusion of evidence not strictly in rebuttal is discretionary with the trial court, which discretion is not subject to review except in cases of gross abuse. Thomp. on Tr. section 346; Farmers' Mutual Fire Ins. Co. v.Bair, 87 Pa. St. 124; Marshal v. Davies 78 N. Y. 414 (reversing 16 Hun. 606); Huntsman v. Nichols, 116 Mass. 521; Dozier v. Jerman, 30 Mo. 216; Walker v. Walker 14 Ga. 242 Daily v. Grimes, 27 Md. 440; McCoy v. Phil- lips, 4 Rich. (S. C.) 463. Material testimony should not be excluded because offered by plaintiff after defendant has rested, although not in rebuttal, un- less it has been kept back by a trick and to deceive defendant and to affect his case injurously. Thomp. v. Tr. section 346; Richardson v. Lessee etc. 4 Binn. (Pa.) 198; Rucker v. Eddings, 7 Mo. 115; Dozier v. Jerman 30 Mo. 216. The rule supposes that the case as first made by plaintiff shall be cal- culated to apprise defendant of the ground on which the right of recovery is finally to be supported. If a new case is made in the close, without pre- vious notice, defendant should be allowed to go into evidence in answer to it. Clays v. Ferris, 10 Vt. 112. Where plaintiff's case is vigorously as- sailed, he should be allowed to introduce in rebuttal additional corroborat- ing evidence. Thomp. v. Tr. section 346; Bryan v. Walton, 20 Ga. 480; Davidson v. Overhulser. 3 Iowa, 196. Limitations Burden of Proof. When a party pleads the statute of limitations as a defense to a promissory note, and such note is introduced in evidence by the opposing party, and it appears upon its face to be barred by the statute the court taking judicial notice of when the action was com- menced the burden of proof of such facts as will show the note is not in fact barred devolves upon the party claiming under the note. Dielmann v. Citizens Nat. Bank of Madison, S. D 66 N. W. 311; Searls v. Knapp, 5 S. D. 325, 58 N. W. 807; and in such case, if the party claiming un- der the note fails to rebut the prima facie case which the introduction of the note in evidence makes for the party pleading the statute, the court is justified in finding that the note is barred. Id. The note, though appear- ing upon its face to be barred by the statute, cannot be held to be barred until the opposing party has had an opportunity to rebut such prima facie case made by the note itself. Dielmann v. Bank, supra; Meyer v. School Dist., 4 S. D. 420, 57 N. W. 68. INSTRUCTIONS, HOW GIVEN AND REFUSED. 5048 Comp. Laws. The court, in charging the jury, shall only instruct as to the law of the case; and no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are OF THE CONDUCT OF THE TRIAL. 15 reduced to writing; and when instructions are asked which the judge cannot give, he shall write on the margin thereof the word ''refused," and such as he approves he shall write on the margin thereof the word ''given"; and he shall in no case, af- ter instructions are given, qualify, modify, or in any manner explain the same to the jury, otherwise than in writing; and all instructions asked for by counsel shall be given or refused by the judge, without modification or change, unless such mod- ification or change shall be consented to by the counsel asking the same. SAME. 5432 Rev. Codes N. D. The court in charging a jury shall only instruct as to the law of the case; and no court shall instruct the jury in any civil case, unless such instruc- tions are first reduced to writing. Either party may request instructions to the jury. Each instruction so requested must be written on a separate sheet and may be given or refused by the court, and the court shall write on the margin of such re- quested instruction given by him the word, "given," and on the margin of those which he does not give he shall write the word, "refused," and all instructions asked for by the counsel shall be given or refused by the court without modification or change, unless modified or changed by consent of counsel ask- ing the same. The court may in its discretion submit the writ- ten instructions, which it proposes to give to the jury, to coun- sel in the case for examination, and require such counsel af- ter a reasonable examination thereof to designate such parts thereof as he may deem objectionable, and such counsel must thereupon designate such parts of such instructions as he may deem improper, and thereafter only such parts so designated shall be excepted to by the counsel so designating the same. (Laws of 1893, 1 Chap. 84, amended. ) Sec. 248, C. C. P.; Levisee p. 73: Harst Pr. Deer Code g 608, 609. Consult decisions under 5049 Comp. Laws; 543S Rev. Codes N. D. 1. Oral Instructions Waiver. Where instructions are given orally, and taken down in short-hand by court stenographer, hut are not taken by the jury in their retirement, and no objection is made at the time to this method of giving them, exception thereto is waived. Stamm v. Coates, 4 Dak. 69, 22 N. W. 593. While the statute requires the charge to the jury 16 CODE OF CIVIL PROCEDURE. to be exclusively in writing, yet where oral instructions are given without objection at the time upon that ground, the error is waived. Boss v. North- ern Pac. R. Co. 2 N. D. 128, 49 N. W. 655; Sack. Instruc. Juries, 14; Carton v. Bank, 34 Mich. 279; State v. Sipult, 17 Iowa, 575; Vanwey v. State, 41 Tex. 639. Formal Language Unnecessary. The court is not bound to give instructions in the forms and language in which they are asked; if those given are correct and sufficiently cover the case, the judgment will not be disturbed. Parliman v. Young et al. 2 Dak. 175, 4 N. W. 61. Abstract Propositions. It is not error to refuse to give, as the law of the case, in- structions which are simple abstract propositions, of law. Parliman v. Young et al., 2 Dak. 175, 4 N. W. 61. Redundant Instructions. It is not error to refuse to give instructions i equested that are correct in law and applicable, where the charge already given fairly covers the point. Daeley et al. v. Minn. & N. E. Co., 4 N. D. 269, 60 N. W. 59. Special Questions Discretion. Where instructions fully cover the facts, it is not error to refuse to submit certain special questions to the jury and instruct them that, they may in their discretion render a special ver- dict; it is discretionary with the court whether he will so charge or not. Moline Plow Co. v. Gilbert et al., 3 Dak. 239, 15 N. W. 1; sees. 5049, 5061, Comp. Law; Jones v. Ins. Co., 61 N. Y. 79; Schultz v. Cresna (Iowa) 13 N. W. 59; Peck v. Snyder, 13 Mich. 21; 1 Burr. Pr. 242; Tidd. Pr. 897. Ruling Out Evidence. In an action to recover land, plaintiff being in possession and general owner subject to a tax deed, said deed being void on its face, held, the deed was properly ruled out and an instruction to the jury to disregard it was proper. Heger v. DeGroat, 3 N. D. 354, 56 N. W. 150. 2. Submitting Facts Instructions as to. In an action for value of grain burned, held, under the facts, that an instruction that there was no evidence contradicting defendant as to setting the fire was proper. Moe v. Job, 1 N. D. 140, 45 N. W. 700. In an action for value of lumber sold, held, under the facts, it was error to refuse to submit to the jury the question whether the price agreed upon was different from that appearing in the in- voice. Edwards & McCullochCo. v. Baker, 2 N. D. 289, 50 N. W. 718. 'In an action between mortgagee and representative of a creditor of mortgagor, involving validity of a mortgage claimed to be void for want of witnesses, held, under the facts, that the court erred in refusing to submit to the jury the question of proper execution of the mortgage; Keith v. Haggart, 2 N. D. 18, 48 N. W. 432. In a suit for possession of property, the question of right to exemptions, exercised in this case by the wife on behalf of the fam- ily, being involved, held, under the evidence, that the evidence was right- fully submitted to the jury; Linander v. Longstaff, S. D , 63 N. W. 775. 3. Assuming Facts. It is not error to refuse instructions which as- sume facts as proved, concerning which there is conflict of evidence; Parli- OF THE CONDUCT OF THE TRIAL. 17 man v. Young et al. 2 Dak. 175, 4 N. W. 61. An instruction is* properly re- fused which assumes and is predicated upon a fact, as established, which the evidence leaves in dispute. Rapp v. Giddings, 4 S. D. 492, 57 N. W. 237. In an action for purchase price of a straw stacker, where the sale thereof was denied and an oral agreement relative to taking same on trial was alleged, a written order for the machine having been signed, keld, that an instruction to the effect that defendants might refuse to take the ma- chine before they took possession of it was error. Reeves & Co. v. Corrigan et al, 3 N. D. 415, 57 N. W. 80; Fahey v. Machine Co. 3 N. D. 220, 55 N. W. 580. In an action for balance of purchase price of a gas and electric plant, a counter claim for deceit, etc., being set up, held, under the evidence, that the court's instruction improperly assumed that defendant had the means of investigating the plant at hand and was bound to know the facts. Fargo Gas & Coke Co. v. Fargo G. & E. Co., 4 N. D. 219, 59 N. W. 1066; Mead v. Bunn, 32 N. Y. 280; Redding v. Wright, (Minn.) 51 N. W. 1056; Maxfield v. Schwartz, 45 Minn. 150, 47 N. W. 448; Gardner v. Trenary, 65 Iowa, 649, 22 N. W. 912; Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755; McClellau v. Scott, 24 Wis. 81; Caldwell v. Henry, 76 Mo. 254; Oswald v. McGehee, 28 Miss. 340; Cottrill v. Krum, 100 Mo. 397, 13 S. W. 753; Campbell v. Frank- ern, 65 Ind. 591; Kerr, Fraud & M. 77, 80, 81; Erickson v. Fisher (Minn.) 53 N. W. 638; Alfred Shrimpton & Sons v. Philbrik (Minn.) 55 N. W. 551; Brandt v. Frederick (Wis.) 47 N. W. 6; Bigel. Fraud, 522, 528. In an ac- tion for wheat, against a sheriff who seized it under special execution on foreclosure, held, that instructions asked requiring the court to assume facts which are in issue were properly refused; Kvello et al v. Taylor, S. D. .... 63 N. W. 889. 4. Directing Verdict. Levy. In an action against a sheriff for amount of a judgment in favor of plaintiff, an execution which defendant refuses to levy, on the ground that there was a valid mortgage on the property in question, Held, under the facts, that the court properly directed a verdict for plaintiff as matter of law. Jewett et al v. Sundback, sheriff, 5 S. D. Ill, 58 N. W. 20; Mechem, Pub. Off. section 749, 751; Marshal v. Hosmer, 4 Mass. 63, Bond v. Ward, 7 Mass. 123; Ayres, Weatherwax & Reid Co. v. Sunback, 5 S. D. 31, 58 N. W. 4. Any Legal Evidence for Court. The existence of any legal evidence upon which a verdict for party holding burden of proof can be based, is a question for the court; and it is error to refuse an instruction asked by defendant, after close of testimony, directing a verdict in his fav- or, when upon the evidence a contrary verdict must be set aside. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Thomp. Trials, section 2247-2249; Wagon Co. v. Mathieson, 3 Dak 233, 14 N. W. 107. Must be Undisputed. When the court directs a verdict the evidence must be deemed undisputed 24 TP 18 CODE OF CIVIL PROCEDURE. which bears "in favor of the opposite party, and it must be given the most favorable construction it will bear, and all reasonable inferences must be given him; and it is only when his testimony could not legally sustain a verdict in his favor that a contrary verdict can be directed. Carson et al v. Gillitt et al, 2 N. D. 255, 50 N. W. 710; 11 Am. & E. Encyc. of Law, 245, and <; cited. Demand. In an action for value of wheat, by mortgagee against one claimed to have converted it, a warehouse receipt being given by de- fendant to mortgagor upon purchase of the wheat, and no evidence of de- mand on defendant therefor being given, held, error to refuse to direct ver- dict for defendant. Sanford v. Bell et al, 2 N. D. 6, 48 N. W. 434; Jones on Chat. Mort. section 455; Cadwell v. Pray, 41 Mich. 307, 2 N. W. 52; Adams v. Wood, 51 Mich. 411, 16 N. W. 788 Warranty. In an action for balance of purchase price of a steam boiler, involving an alleged guaranty, held, that the court improperly directed a verdict for plaintiff upon the ground that there was no evidence of warranty. Hazelton Boiler Co. v. Fargo Gas & E. Co. 4 N. D. 365, 61 N. W. 151. Waiver. In an action upon a note given for purchase money of a separator, the court directed a verdict for plaintiff, moved for on ground that defendants had waived damages or for counterclaim for breach of warranty; held, that no other question than that of waiver was properly considered in passing upon the motion; thai the di- rection of verdict in this case was proper. Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145. Bona Fide Purchaser. In a suit upon a note by an alleged bona fide purchaser, plaintiff moved for direction of verdict, severally and distinctly stating the grounds, which grounds were invalid; held, no error to deny the motion. First Natl. Bank of Decorah v. Laughlin et al, 4 N. D. 391, 61 N. W. 473; Belcher v. Murphy, (Cal.) 22 Pac. 264; Shain v. Forbes (Cal.) 23 Pac. 198; Coffey v. Greenfield, 62 Cal. 602; Haynes, New Tr. & App. section 116; Mattoon v. R'y. Co S. D. , 60 N. W. 740. Agency. In a suit for damages from fire, under sec- tion 2392, Comp. Laws, against one who is claimed to have caused the fire to beset, held, that the court, improperly directed a verdict for defendant, that the question of whether defendant directed his employee to set the fire should have been submitted to the|jury, as also the question whether the employee was acting within the scope of his authority. Knight v. Towles, .... S. D , 62 N. W. 964; R. R. Co. v. Stout, 17 Wall. 657. Negligence. Where, in a suit for damages for killing livestock, the presumption of neg- ligence arising from killing is overcome by defendant's evidence, but the rebuttal evidence raises a material conflict in evidence as to negligence in fact, held, the case was properly submitted to jury, and motion to direct verdict for defendant properly denied. Sheldon et al v. Chicago, M. & St. P. Ry. Co S. D., .... 62 N. W. 955; Lighthouse v. R. Co. 3 S. D. 518, 54 N. W. 320. Harrison v. R. Co S. D , 60 N. W. 405. Deed Ten- der. Plaintiff sued on notes given for part of purchase price of land, he having given defendant a bond for deed; plaintiff quitclaimed the land to OF THE CONDUCT OF THE TRIAL. 19 one who conveyed to defendant, but never tendered a deed under his bond to defendant, and retained the notes; held, that a verdict for plaintiff for value of the notes was erroneously directed. Shelly v. Mikkelson, . . . . N. D., , 63 N. W. 210; Sons of Temperance v. Brown, 9 Minn. 157 (Gil. 144); Ten Eickv. Simpson, 1 Sandf. Ch. 246; Mackreth v. Symmons, 15 Ves. 350; Champion v. Brown, 6 Johns. Ch. 403; 2 Story Eq. Jur. section 784; Bur- well v. Jackson, 9 N. Y. 535; Wyvell v. Jones, 37 Minn. 68, 33 N. W. 43; Bennett v. Phelps, 12 Minn. 326 (Gil. 216); Taylor v. Read, 19 Minn. 372, (Gil. 317.) Fire Bisk. In a suit on an insurance policy, involving repre- sentations as to the fire risk, held, under the facts stated, that there was no disputed question of fact and a verdict for defendant was properly directed. Fromherz v. Yankton Fire Ins. Co S. D , 63 N. W. 784. Deceit. Ir> a suit to recover money alleged to have been paid by plaintiff through deceit, in a transaction involving the erection of houses, held, that the trans- action on its face constituted a legal fraud upon plaintiff, and that the court properly directed verdict for plaintiff at close of trial upon its own motion. Caldwell v. Maxfield, et al, S. D , 64 N. W. 166. Conditional Notes. In an action on promissory notes, defendant alleging they were signed conditionally by him and to be signed by another before taking ef- fect, held, upon examination of evidence, that the material evidence on part of defendant was undisputed, and the court committed no error in directing verdict for defendant. McCormick Harvesting Mach. Co. v. Faulkner, .... S. D ,64 N. W. 163; Bates v. R. Co., 4 S. D. 394, 57 N. W. 72. No Be- quest. At close of plaintiff's evidence defendant moved for verdict in his favor, which was denied, and, no evidence being offered by defendant, verdict was, on motion, directed for plaintiff, no request being made by de^ fendant to submit the case to the jury; held, no error, if there was sufficient evidence to support the verdict, which there was. Yankton Fire Ins. Co. v. Freemt, E. & M. V. Co., . . S. D. . ., 64 N. W. 514; Ormes v. Dauchy, 82 N. Y. 443; Grigsby v. Telegraph Co. 5 S. D. 561, 59 N. W. 734. Covenant Evic- tion. Covenants of general warranty or for quiet enjoyment are prospective; and, in absence of fraud or anything to overcome the presumption that vendor is able to respond in damages, a purchaser of realty in possession under deed with such covenants, who has neither been evicted nor disturbed in poses- sion or enjoyment, cannot by showing mere defect of title, defeat an action for balance of purchase price; and it was not error to withdraw the evi- dence from the jury and direct verdict for plaintiff. Price v. Hubbard, S. D 65 N. W. 436; Morgan v. Henderson (Wash. T.) 8 Pac. 491; Hef- flin v. Phillips, (Ala.) 11 South. 729; Wilson v. Irish (Iowa) 17 N. W. 511; Hamilton v. Lusk (Ga.) 15 S. E. 10; Cheney v. Straube, [Neb.] 53 N. W. 479; Fitzhugh v. Croghan, 19 Am. Dec. 139; Ferriss v. Harshea, 17 Am. Dec. 782. Partners Complaint. In an action against partners on a note, the omis- sion from title of complaint of the statement that defendants are partners does not make it bad on general demurrer; and the trial court erroneously 20 CODE OF CIVIL PROCEDURE. directed verdict in favor of defendants. Van Brunt & Davis Co. v. Harri- gan, et al, S. D , 65 N. W. 421, Bliss Code PI. section 145. Riding in Caboose. In an action for personal injury to one riding in caboose with immigrant movables, under a shipping contract, held, under the evidence, that deceased was guilty of contributory negligence sufficient to defeat a recovery, and the trial court should have sustained a motion to direct a verdict against plaintiff. Humph reus v. Fremont, E. & M. V. R. Co., . . . ., S. D., 65 N. W. 466. Payment. In a suit for a balance due on settlement, certain notes being turned over to plaintiff which were to be accepted in payment of the balance if approved by plaintiff, held, that plaintiff having failed for over forty days to notify defendant that it did not approve them, it was a question for the jury whether it had not waited beyond a reason- able time to manifest disapproval and were to be deemed to have accepted them; and a motion to direct a verdict for plaintiff was properly denied. Acme Harvester Co. v. Axtell, . . . . S. D., 65 N. W. 680; 19 Encyc. of Law, 642, note 2; Washington v. Johnson, 7 Humph. 468. Guaranty. In an action against guarantors of an agency contract for selling machinery, held, under the evidence, that the trial court rightly directed verdict for plaintiff. William Deering & Co. v. Russell et al, S. D , 65 N. W. 691; Penny v. Mfg. Co. 80, 111. 244; Sigourney v. Wetherell, 6 Mete. Mass. 553; Forbes v. Rowe, 48 Conn. 413; Bingham v. Mears, 4 N. D. 437, 61 N. W. 808. Surety Extension. In an action on a note, one of the defendants de- fended as surety, claiming time for payment had been extended without his consent, by memorandum on the note; held, upon the question whether the extension contract was upon good consideration, the facts should have been submitted to the jury, and the court erred in directing verdict for plaintiff. Corbett et al v. Clough et al, S. D , 65 N. W. 1074. Sale. In an action for balance due plaintiff from defendant on merchandise alleged to have been sold, where plaintiff had a small stock of goods which tbe evi- dence tended to prove defendant consented to take as they might be needed in his store, held, that the court properly instructed the jury, that if the plaintiff took the goods and placed them in the stock with defendant's goods and with his knowledge, she is entitled to a verdict for the reasonable value thereof; and an instruction that if defendant did not expressly authorize her to charge the goods to him the verdict must be for the defendant, was properly refused. Stewart v. Gilruth, . . . S. D. . . . , 65 N. W. 1065. Claim and Delivery. In an action of claim and delivery for grain, held, un- der the tacts in evidence, that the court properly directed a verdict for de- fendants as to ownership, after striking out all evidence of plaintiff's owner- ship; held, also, that the question of value was properly submitted to the jury. Haveron v. Anderson et al, 3 N. D. 540, 58 N. W. 340. In an action for possession of property covered by mortgage, lield, that upon the ques- tion of identity of the engine mortgaged, the court properly directed a ver- dict for defendant upon the theory that there was no evidence showing the OF THE CONDUCT OF THE TRIAL. 21 mortgage covered the engine. Russell & Co. v. Amundson, 4 N. D. 112, 59 N. W. 477. Negligence. In an action for negligent killing of an animal, held, under the factd stated, that the statutory presumption of negligence was overcome, and the court erred in refusing to direct a verdict for de- fendant. Hodgins v. Minpls., St. P. & S. Ste. M. R. Co., 3 N. D. 382, 56, N. W. 139; Smith v. R. Co. 3 N. D. 17, 53 N. W. 173. 5. Negligence. Question for Jury. It was not error for the court to refuse to in- struct the jury upon the question of negligence, in an action for damages by fire, in effect ignoring the element of due care by defendant. Gram. v. Northern Pac. R. Co. 1 N. D. 252, 46 N. W. 972. The mere fact that the fire in question was started 118 feet from the track is not sufficient in itself to warrant submission of the question of negligence to the jury. Smith v. Northern Pac. R. Co. 3 N. D. 17, 53 N. W. 173; R. R. Co. v. McClelland, 42 III. 355. In a suit for negligently killing an animal at a private railroad crossing, held, that the question of negligence is usually one for the jury, and that that question was properly submitted to the jury in this case. Bishop v. Chicago, M. & S. P. Ry. Co. 4 N. D. 536, 62 N. W. 605. In an action against a city for damages resulting from injury caused by negli- gence of defendant in permitting an obstruction to stand upon its street, held, that a court cannot say as a matter of law that such obstruction (a steam thresher) is not calculated to frighten horses of ordinary gentleness; that that is a question for the jury. Ouverson v. City of Grafton, N. D , 65 N. W. 676. Evidence of Negligence Question of Law. Whether evidence tending to prove the setting of two fires by the engine causing the destruction of plaintiff's property is admissible as tending to prove negligence of defendant, is a question of law for the court; and the giving of an instruction accordingly is proper, and the repetition of it in another instruction asked by plaintiff, does not constitute error. Smith v. Chicago, Milwaukee & St. Paul Ry. Co. 4 S. D., 71, 55 N. W. 717. Contributory Negligence. It is reversible er- ror to charge the jury that liability of defendant depended solely upon freedom of plaintiff from contributory negligence, defendant's negli- gence not being established by evidence as matter of law. Bennett v. Northern Pac. R. Co. 4. N. D. 348, 61 N. W. 18. Where the facts or condi- tions which increase the ordinary hazard of a servant are so open and ob- vious as to be plainly apparent to and understood by the servant, without effort on his part, he is bound to see and understand; and if he continue work without objection, he will be held to have assumed such risk; and the court's instruction in this case, to that effect, was proper. Carlson v. Sioux Falls Water Co. (on rehearing) S. D , 65 N. W. 419; Money v. Coal Co., 55 Iowa, 671, 8 N. W. 652; Anderson v. Winston, 31 Fed. 528; Water Supply Co. v. White, 124 lid. 376, 24 N. E. 747. Proximate Cause Ques- 22 CODE OF CIVIL PROCEDURE. tion for Jury. lu an action for damages by fire, held, under the facts, that whether the fire in question was the proximate cause of the injury, was a question for the jury, and the court did not error in submitting- it with in- structions as to law. Gram v. Northern Pac. R. Co. 1 N. D. 252,46 N. W. 972; Clemens v. R. Co. 53 Mo. 366; Kellogg v. R. Co., 26 Wis. 223; Higgins v. Dewey, 107 Mass. 494. Contributory Negligence Burden of Proof. The burden of showing contributory negligence rests upon defendant, and un- less such negligence conclusively appears from plaintiff's testimony, the court cannot take the case from the jury. Ouverman v. City of Grafton, . . . . N. D , 65 N. W. 676; Gram v. Railroad Co. 1 N. D., 252, 46 N. W. 972, and cases cited. 6. Damages Measure of. Rule Of. In an action for balance of purchase money, the trial court gave the jury two different rules as to measure of damages; held, the proper rule is, the difference between the value of what the ven- dee would have obtained had the representations been true and the value of what he actually receives. Fargo Gas & C. Co. v. Fargo G. & E. Co., 4 N. D. 219, 59 N. W. 1066, and many cases there cited (cited more at large un- der section 5088, Comp. Laws, subd. 7.) Interest. In an action for destruc- tion of or damages to property through negligence, an instruction requiring the jury to compute interest on damages, if any, is erroneous. Uhe v. Chi- cago, M. & St. P. Ry. Co., 4 S. D. 505, 57 N. W. 484; Garrett v. R. R. Co., 36 Iowa, 121. Personal Injuries. It is error to instruct the jury, in an ac- tion for personal injuries, that they may take into account, in estimating damages, the effect of the injury upon plaintiff's mental powers, no claim being made in the complaint or evidence upon that head. Comaskey v. Northern Pac. R. Co., 3 N. D. 276, 55 N. W. 732. 7. Other Cases. Ultra Vires National Bank. Want of authority in a national bank to purchase a negotiable note cannot be used by the maker as a de- fense in an action upon it; and the court, under the evidence, properly directed a verdict for plaintiff. First Ntl. Bank of Pierre v. Smith et al . .S. D 65 N. W. 437; Bank v. Mathews, 98 U. S. 621; Bank v. Whitney, 103 U. S. 99; Bank v. Hanson, 33 Minn. 40, 21 N. W. 849; Bank v. Butler, 157 Mass. 548, 32 N. E. 909; 16 Enc. of Law, 167. Malicious Prosecution Ad- vice Probable Cause. To relieve a defendant from liability for malicious prosecution, on the ground that he acted on advice of counsel, he must have made a full statement of all facts known to him relevant to the prose- cution, and have received advice thereon to institute the prosecution, and must have acted on such advice in good faith, believing plaintiff to be guilty. Jackson v. Bell, 5-S. D. 257, 58 N. W. 671; Manning v. Finn, (Neb.) 37 N. W. 314; Donnelly v. Daggett, (Mass.) 14 N. E. 161; and the question of probable cause is a mixed one of law and fact, to be considered OF THE CONDUCT OP THE TRIAL. 23 by the jury under instructions as to what facts, if proved, constitute proba- ble cause. Id.; Acker v. Gundy (Pa. Sup.) 12 Atl. 595; Stewart v. Sonne- born, 98 U. S. 187; Walker v. Camp, (Iowa) 27 N. W. 800; Murry v. Long, 1 Wend. 140; and these questions were properly submitted to the jury. Id. Falsus in Uno, Falsus in Omnibus. It is error to instruct a jury that, if they believe a witness has testified falsely to any material fact they have a right to wholly disregard his testimony, except so far as corroborated by other credible evidence; they should be told that this is the rule only in cases where he has willfully or knowingly or intentionally testified falsely. McPherson v. Jones, . . . N. D , 65 N. W. 685; Gold Co. v. Skillicorn, (N. M.) 41 Pac. 533; Linck v. Whipple,31 111. App. 155; Follettv. Territory, (Ariz.) 33 Pac. 869; Barney v. Dudley, (Kan. Sup.) 19 Pac. 550; 2 Thomp. Tr. section 2432 and cases cited; People v. Sprague, 53 Cal. 494; Pope v. Dodson, 58 111. 365. Bastardy Preponderance Sufficient. In a prosecu- tion under the bastardy act, chap. 24, Laws 1893, the court properly in- structed the jury that a preponderence of the evidence on the part of plain- tiff will sustain a recovery. State v. Bunker, S. D ,65 N. W. 33; Altschuler v. Algaza (Neb.) 21 N. W. 401; Lewis v. People, 82111.104; Strickler v. Grass (Neb.) 49 N. W. 804; Harper v. State, 101 Ind. 109; State v. Roroaine, 58 Iowa 46, 11 N. W. 721; Bobbins v. Smith 47 Conn. 182. ORDER OF READING JURY TAKE EXCEPTIONS. 5049 Comp. Laws. All instructions given by the judge shall be read to the jury in the following order: 1. Defendant's instructions by defendant's counsel. 2. Plaintiff's instructions by plaintiff's counsel. 3. Instructions given by the judge, of his own motion, if any, by the judge giving the same; and all instructions so given and read shall be taken by the jury in their retirement, and returned into court with their verdict. Exceptions to the giving or refusing any instrnction, or to its modification or change, may be taken at any time before the entry of final judg- ment in the case. SAME. 5433 Rev. Codes N. D. All instructions given to the jury must be read to them by the court without disclosing to them whether such instructions were requested or not and must be signed by the judge and delivered to the jury and shall be taken by the jury in their retirement and returned with their verdict into court, and upon the close of the trial all in- structions given or refused must be filed with the clerk and lM CODE OF CIVIL PROCEDURE. either party may within twenty days from the date of such fil- ing file with the clerk exceptions to any such instructions or refusals to instruct and the same shall thereupon be deemed duly excepted to; provided, that with the consent of both par- ties entered in the minutes the court may instruct the jury orally, in which case said oral instructions shall be taken down by the official stenographer and written out at length and the shorthand notes' thereof together with such instructions so written out shall be filed in the case with the clerk, and either party may except to any of such instructions within twenty days after the date of such filing as heinbefore provided; pro- vided, that the official stenographer shall receive for writing out such instructions the same fees as for making transcripts; and provided, further, that when oral instructions are given, the jury shall not take the charge in their retirement, unless so ordered by the court. (Laws 1893, sec. 1, chap. 84.) Sec. 249 C. C. P.; Levisee p. 74. Consult decisions under preceding section. This Section Anomalous Exceptions, When Taken. In the case of St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497, the court say relative to this section of the code: "As to this section, and section 248 (C. C. P.) it may be remarked that they are anomalous in our system of practice. They were not reported by the codifiers, but were mostly taken from the practice act of Illinois. See Rev. St. of 111. (1874,) p. 781. Noth- ing like them can be found in our old Codes, or in those of New York and California. By the organic law (section 1868 of the Rev. St. U. S.) our district courts are declared to have common-law jurisdiction; and are not the powers of the judge, as defined by the common law, largely trenched upon by these sections ? On this point see Model v. Burrows, 1 Otto, 426; Houston v. Williams, 13 Cal. 24. However this may be, taking the two sec- tipns as they stand, the instructions referred to are of two classes: First, those given by the judge of his own motion; secondly, those specifically asked for by counsei. It would appear, therefore, that exceptions to the former must be taken at the time, so that, the attention of the court being drawn to the points, the judge may have an opportunity to correct, if necessary, any inadvertance or mistake before the jury retires. As to the latter, the same reason does not apply, for attention is beforehand called by the speci- fic requests, and a reasonable opportunity for answering them is afforded. It does not, consequently appear unreasonable that so far as the responses of the judge to such requests are concerned, exceptions may be taken at any time be- fore the entry of final judgment." Any Time Before Judgment Origin of OF THE CONDUCT OF THE TRIAL. 25 This Section. Under section 5049 Comp. Laws, "Exceptions to the giving or refusing any instruction, or to its modification or change, may be taken at any time before the entry of final judgment in the case;" under this section there is no distinction, in respect to the time within which exceptions may be taken, between instructions given at the request of counsel and instruc- tions given by the judge of his own motion. (Cheatam v. Wilber. 1 Dak. 335, 46 N. W. 580, Boss v. R. R. Co., 2 N. D. 128, 49 N. W. 655, and St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497, explained.) Uhe v. Chi. Mil. & St. P. Ry. Co., (on rehearing), 4 S. D. 505, 57 N. W. 484. In construing section 5049 Comp. Laws, Kellam, J. in the case last cited (p 488) says: "Returning to section 5049, we do not see that the further expres- sion, or to its modification or change, is applicable only to the instructions asked for by counsel. The modification or change which may thus be ex- cepted to is the modification or change referred to and forbidden in respect to either class of instructions in the preceding section. These two sections are probably the result Of an attempt to improve upon sections 53 and 54, chap. 110, Rev. St. 111. 1885. The first of these sections (53) simply pro- hibits oral instructions. The second [54] requires the judge to mark 'Re- fused' on such rejected instructions as he cannot give, and 'Given' on such as he does give, and forbids any modification or explanation of an instruc- tion given, except in writing. Then, in a new paragraph added in 1872, it provided that 'exceptions to the giving or refusing any instructions may be entered any time before the entry of final judgment in the case.' Here the same expression is used as in our law, 'exceptions to the giving or refusing any instruction,' etc.; but we find no case from that state in which any dis- tinction is made between instructions given at the request of the counsel and those given by the judge of his own motion. They are treated precise- ly alike, and both are subject to the same rule. The Illinois cases, as we should expect under this law, all hold that exceptions to instructions must be taken at the trial, for that is without doubt the general rule, and there is nothing in the Illinois law to change; and it is the rule in this jurisdic- tion, unless changed by statute. Several of these Illinois cases, however, recognize a difference between taking an exception that is, making it known to the court; notiug it and writing it out in form for entry of rec- ord. The taking of it, under their decisions, must be at the time, but it may be entered after the trial. See the recent case of England v. Vandermark, [111. Sup.] 35 N. E. 465, where the object and form of this provision are explained. * * * Our statute extends, not the time for entering excep- tions to instructions, but the time for taking them. The Illinois provision was thus changed when adopted by our legislature, and we do not feel au- thorized to say that it was not done del iberately, and for the very purpose of effecting the change indicated." Exceptions Impolicy of Statute. In the case of McPherrin v. Jones, N. D , 65 N. W. 685, Corliss, J., in the course of deciding the point that it is not necessary, in order to have 26 CODE OF CIVIL PROCEDURE. error in the charge of the court to the jury reviewed on appeal, to move for a new trial, and in commenting upon section 5433 Rev. Codes N. D. [which is a modification of section 5049 Comp Laws.], as amended by laws of 1893. N. D. section 1 chap. 84, as amended by Revision Commissioners, says: "We think it is due to the learned judge who tried the case to say that the error committed was undoubtedly committed through inadvertance. * * * This case illustrates the impolicy of the statute allowing the party twenty days in which to file exceptions to the instructions of the district court to a jury. Laws 1893, chap. 84, section 1. Where a charge is oral, as was the charge in this case, it is unfair to both court and opposing counsel that a party should be allowed to except to instructions, the cor- rectness of which he did not challenge at the time, at a subsequent time, when it is too late to rectify the error without granting a new trial. It is due to the learned trial judge to state also that he was given no opportunity to correct the error himself by granting a new trial, as no such motion was made." The case was reversed for error in the charge in question, upon the record as above stated. Exceptions Stipulation. In the case of Boss v. Northern Pac. Ry. Co., 2 N. D. 128, 49 N. W. 655, it was agreed by counsel, at the close of the instructions, "that at any time within which a stay was granted, either party might take his or its exceptions to the charge, or any part thereof." Within the life of this stay defendant took exception to the giving of oral instructions, but not to the matter of the instructions so given. Held, that the agreement could cover exceptions to the matter of the charge only. Error Must Appear.. There being nothing in the rec- ord warranting the court in saying that the instructions in this case were not given to the jury explicitly, as pointed out by the statute, and in the or- der contemplated by the statute, no error appears as to the manner and reg- ularity of giving instructions to the jury. Uhe v. Chi., Mil. & St. P. Ry. Co., 3. S. D. 563, 54 N. W. 601. VIEW BY JURY. Sec. 5050 Comp, Laws; 5434 Rev. Codes N. D. When, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occur- red, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial. Sec. 250, C. C. P.; Levisee p. 75; Harst Pr. Deer. Code I 610. Consult decisions under the next three sections. OF THE CONDUCT OF THE TRIAL. 27 JURY ADMONISHED. Sec. 5051 Comp. Laws; 5435 Rev. Codes N. D. If the jury are permitted to separate, either dur- ing the trial or after the cause is submitted to them, they shall be admonished by the court that is their duty not to converse with, or suffer themselves to be addressed by any other person on any subject of the trial, and it is their duty not to form or express an opinion thereon until the case is finally submitted to them. Sec. 251 C. C. P.; Levisee p. 75; Harst. Pr. Deer. Code I 611. Consult decisions under next two sections. ;Error Without Prejudice. Where, upon undisputed facts, no other verdict than the one returned could have been properly rendered, this court will not examine an alleged error in allowing the jury to separate tempor- arily without being admonished by the trial court not to converse among themselves, or with others, upon the subject of the trial, as it is evident that no prejudice resulted therefrom. Kirby v. Western Union Tel. Co., 4 S. D. 105, 55 N. W. 759. PAPERS TAKEN BY JURY. Sec. 5052 Comp. Laws; 5436 Rev. Codes N. D. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony or other proceedings on the trial taken by themselves, or any of them, but none taken by any other person. Sec. 252 C. C. P.; Levisee p. 75; Harst Pr. Deer. Code g 612. Consult decisions under two preceding sections and the following sec- tion. Oral Instructions Waiver. Where instructions are given orally, and taken down in short-hand by the court stenographer, but are not taken by the jury in their retirement, and no objection is made at the time, a right to except thereto is waived. Stamm v Coates, 4 Dak. 69, 22 N. W. 593. As to what papers jurors in criminal cases may take with them to the jury room, see \ 7411 Comp. Laws, 8224, Rev. Codes, N. D. RETIREMENT CONDUCT OF JURY. Sec. 5053 Comp. Laws; 5437 Rev. Codes N. D. When the case is finally submitted to the jury they may decide in court or retire for deliberation. If 28 CODE OF CIVIL PROCEDURE. they retire, they must be kept together in some convenient place, under charge of an officer, until they agree upon a ver- dict or are discharged by the court, Unless by order of the court, the officer having them under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon a verdict; and he must not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Sec. 253 C. C. P.; Levisee p. 75; Harst Pr. Deer. Code 613, DISAGREEMENT INFORMATION. Sec. 5054 Comp. Laws; 5438 Rev. Codes N. D. After the jury have retired for de- liberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the casa, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. Sec. 254 C. C. P.; Levisee p. 76; Harst Pr. Deer. Code 614. SICK JUROR NEW JURY. Sec. 5055 Comp. Laws; 5439 Rev. Codes N. D. If, after the impaneling of a jury, and be- fore -a verdict, a juror become sick, so as to be unable to per- form his duty, the court may order him to be discharged. In that case the trial may proceed with the other jurors, or an- other jury maybe sworn, and the trial begin anew; or the jury may be discharged, and a new jury then or afterwards impan- eled. Sec. 255 C. C. P.; Levisee p. 76; Harst Pr. Deer. Code \ 615. PREVENTED VERDICT NEW TRIAL Sec. 5056 Comp. Law?; Sec. 5440 Rev. Codes N. D. lu all cases where the jury are discharged, or prevented from giving a verdict, by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately, or at a future time, as the court may di- rect. Sec. 256 C. C. P.; Levisee, p. 76; Harst. Pr. Deer. Code \ 617. OF THE CONDUCT OF THE TRIAL. 29 SEALED VERDICT-ADJOURNMENT. Sec. 5057 Comp. Laws; 5441 Rev. Codes N. D. While the jury are absent, the court may adjourn from time to time, in respect to other business; but it is nevertheless open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged. The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess or adjournment for the day. A fin- al adjournment of the court for the term discharges the jury. Sec. 257 C. C. P.; Levisee p. 76; Harst. Pr., Deer. Code, I 616. Verdict Delivered to Judge Irregular. After the cause was submit- ted and while same was being considered in a jury room adjacent to the court building, court took a recess until the following day, and thereupon the clerk's office and the cou-t room were closed. The jury, in charge of a bailiff, and in the room to which it was assigned, continued its deliberations until two o'clock on the following morning, when, at the request of the jury, the judge was notified that a verdict had been agreed upon. The judge immediately went from his home to the jury room, and in absence of the clerk and other officers of court and of all the attorneys and parties to the suit, asked the jury if they had agreed upon a verdict. The foreman an- swered affirmatively, and delivered the verdict to the judge, who asked him if it was his verdict. Being answered in the affirmative, the court ad- dressed the jury as follows: "So say you all, gentlemen of the jury?" The unanimous answer was, "We do," or something to that effect. The judge then discharged the jury, and allowed the members thereof to separate. The verdict, which was for the defendant, was kept by the judge until court opened at nine o'clock A. M. of that day, when in the absence of the jury he delivered it to the clerk, who thereafter recorded it upon the min- utes of the court, plaintiff thereupon excepting To the verdict and the man- ner in which it had been received. Held, that such verdict was fatally ir- regular, and insufficient to support a judgment entered thereon against the objection of plaintiff's counsel. Peart v. Chi., Mil. & St. P. Ry. Co., 5 S. D. 337, 58 N. W. 806; Martin v. Morelock, 32 111. 485; Abb. Tr. Brief, 181, and cases there cited; Bond v. Wood, 69 111. 282; City of Chicago v. Rogers, 61 111. 188; Rosser v. McColly, 9 Ind. 587; Young v. Seymour, 4 Neb. 86; 3 Cooleys Bl. Comm. 377. RENDITION OF VERDICT POLLING JURY. Sec. 5058 Comp. Laws; 5442 Rev. Codes N. D. When the jury have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. The verdict must be in writing, signed by the fore- 30 CODE OF CIVIL PROCEDURE. man, and must be read by the clerk to the jury, and the in- quiry made whether it is their verdict. If any juror disagrees, they must be sent out again; but if no disagreement be ex- pressed, and neither party requires the jury to be polled, the verdict is complete, and the jury discharged from the case. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict. If any one answer in the negative, the jury must again be sent out. Sec. 258 C. C. P.; Levisee p. 76; Harst Pr. Deer. Code 618. Consult decisions under preceding section. The following provisions were enacted by the legislature of South Da- kota in 1893 [Ses. Laws. chap. Ill], entitled "An act to provide for a ver- dict by three-fourths of the jury in certain civil cases." THREE-FOURTHS OF JURY RENDER VERDICT. Sec. 1. In all civil actions cognizable by a justice of the peace, except actions for the forcible entry and detainer or detainer of real property, tried in the circuit or county court, the verdict may be rendered by three-fourths of the jury in the manner provided in section 2 of this act. RENDITION OF VERDICT NINE JURORS SUFFICIENT. Sec. 2. When the jury have agreed upon their verdict they must be conducted into court, their names called by the clerk and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury and the inquiry made whether it is their verdict. If four or more of the jury disagree they must be sent out again. If nine of the jury agree to the verdict, ft shall be the verdict of the jury and so recorded, and if neither party requires the jury to be polled the verdict is complete and the jury dis charged from the case. Either party may require the jury to be polled, which is done by the court or clerk asking each jur- or if it is his verdict. If more than three answer in the nega- tive the jury must be sent out. Sec. 3. All acts and parts of acts in conflict with the provisions of this act are hereby repealed. [AUTHOR'S NOTE.] The above provisions are understood to have been construed by the nisiprins judges in South Dakota to apply to and govern OF THE CONDUCT OF THE TRIAL. 31 the practice in the circuit and county courts on trial of cases appealed from justice's courts, except as to the class of cases expressly excepted from the operation of the act. They seem to have been adopted pursuant to section 6 art. VI constitution of S. D. [set forth in full under 5032, Comp. Laws.] Bight to Poll Jury. Unless it is expressly waived, either party has an absolute right to have the jury polled on the announcement of the verdict, whether oral or sealed, and at any time before the same is recorded.. Peart v. Chi. Mil. & St. P. Ry. Co., 5 S. D. 337, 58 N. W. 806; Martin v. Morelock 32 111. 485; Abb. Tr. Brief, 181, and cases there cited; Bond v. Wood, 69 111. 282. Irregular Verdict. Where the judge received the verdict in the ab- sence of the officers of court, the parties and their attorneys, late at night after adjournment, and allowed the jury to separate, and the verdict was thereafter handed by the judge to the clerk and by him recorded, it is privy verdict and of no force or validity, because not affirmed by the jury in open court. Peart v. Chi. Mil. & St. P. Ry. Co., supra. [Reported more fully under preceding section.] Young v. Seymour, 4 Neb. 86; 3 Cooley's Bl. Comrn. 377. VERDICT CORRECTED IN FORM. Sec. 5059 Comp. Laws; 5443 Rev. Codes N. D. When the verdict is announced, if it be informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out. Sec 259 C. C. P.; Levisee, p. 77; Harst. Pr., Deer. Code, g 619. Consult decisions under next two sections. Sufficient Finding All Issues. A verdict, not objected to when re- turned, finding for plaintiff upon all the issues, and that plaintiff is entitled to the immediate possession of the property described in the complaint, the value of which is therein specified, is sufficient to support a judgment for plaintiff accordingly entered, where the evidence fully sustains allegations of ownership, right to immediate possession, and wrongful detention. Her- mann v. Sberin, S. D , 60 N. W. 145; Arthur v. Wallace, 8 Kan. 267; Ingle v. Mudd, 86 Mo. 217; Smith v. Dodge, 37 Mich. 354; Coit v. Wap- les, 1 Minn. 134 [Gil. 110]; Anderson v. O'Laughlin, 1 Mont. 81; Williams v. Porter, 41 Wis. 422. General Verdict What Damages. In a case where the sole issue is plaintiff's right to recover anything of defendant, and where the amount due, if anything, is admitted by the pleadings, and where the jury returns a general verdict for plaintiff and against defendant, with- out fixing the amount of recovery, it is not prejudicial error for the court to order judgment for plaintiff for the amount admitted by the pleadings. English v. Goodman etal, 3 N. D. 129, 54 N. W. 540; Hodgkins v. Mead, 119 N. Y. 166, 23 N. E. 559. Sureties Damages. In an action on a county treasurer's bond for $10,000, the principal making no answer, the sureties 32 CODE OF CIVIL PROCEDURE. setting" up a common defense, the verdict was "for the plaintiff on all the is- sues, and assess plaintiff's damages at ten thousand dollars." The court en- tered judgment thereon against the principal for 10,000, and against each of the sureties for the amount set opposite his name, they having bound themselves ''in the amount set opposite our [their] respective names." Held no error of which the sureties could complain. Custer Co. v. Albien et al, .... S. D , 64 N. W. 533; People v. Love, 25 Cal. 520; Pom. Rem. & Rem. Rights, I 406. CHAPTER IV. ART. 5, CHAP. 12, CODE OF CIVIL PROCEDURE. OF THE VERDICT. VERDICT GENERAL AND SPECIAL DEFINED. 5060 Comp. Laws; 5444 Rev. Codes N. D. The verdict of a jury is either general or special: 1. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; and, 2. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and these conclusions of fact must be so presented as that nothing shall remain to the court but to draw from them conclusions of law. Sec. 260 C. C. P.; Levisee p. 77; Wait's Code 260; Harst Pr. Deer. Code 624. Consult decisions under next three sections, and preceding section. 1. Must Respond to Issues. The verdict of the jury must be respon- sive to all the issues submitted to it. Uhlig v. Garrison et al, 2 Dak. 99, 2 N. W. 258. What Will Support Judgment. In claim and delivery, a ver- dict not objected to, finding for plaintiff upon all issues, and that plaintiff is entitled to immediate possession, and specifying the value, will support a judgment for plaintiff, where the evidence fully sustains the material alle- gations in the complaint. Hermann v. Sherin, S. D , 60 N. W. 145. OF THE VERDICT. 33 See as to a general verdict for plaintiff on all issues, in an action upon a bond, where the sureties bound themselves in certain amounts set opposite their names, Custer Co. v. Albien et al S. D , 64 N. W. 533, more fully explained under preceding section. 2. Verdict Neither General Nor Special. In replevin for goods, plaintiff claiming under two chattel mortgages, defendant as sheriff claim- ing that the first mortgage, marked "Exhibit C" was fraudulent and void, but disclaimed right to possession of more of the goods than might remain after payment of the amount due on the second mortgage, the verdict found "in favor of plaintiff, and against defendant, except as to the mortgage marked 'Exhibit C,' which we find to be null and void, and that the plain- tiff is entitled to the possession of the property described in the complaint," and finding the value of the property, and assessing plaintiff's damages by reason of the taking and detention of the property at a certain amount; the court rendered a judgment that defendant was entitled to possession of the property, or, if a return could not be had, to the value of his interest, the difference between the value of the property and amount of the second mortgage, and that defendant recover costs. Held, that the judgment was erroneous, the verdict being neither general or special. Rudolph v. North, 6 Dak. 79, 50 N. W. 487. The special finding in the verdict, "except as to the mortgage marked 'Exhibit C,' which we find to be null and void," was not sufficient to sustain the judgment. Id. Special Questions. When all the material issues in the case are fairly and fully submitted to the jury un- der proper instructions, and a general verdict covering all the issues is re- turned, it is not error to refuse to submit to the jury special questions of fact, nor is it error in such case if the jury fail to answer such special ques- tion. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39. Special Questions, Discretionary. The submission of special questions to be answered by the jury in addition to a general verdict, is a matter of discretion of the court under our Code. Neither party can require it as a matter of right. That submission being discretionary, they can be withdrawn by the court at any time before the special findings are given, and such withdrawal is not ground of exception. Nat. Refining Co. v. Miller et al., 1 S. D. 548, 47 N. W. 962; Taylor v. Ketchum, 28 N. Y. Super. Ct. 514; Swift v. Mulkey, 14 Ore. 59, 12 Pac. 76; Contra, Ry. Co. v. Fray, 35 Kan. 708, 12 Pac. 98; Ins. Co. v. Hathaway, 43 Kan. 403, 23 Pac. 428; Duester-berg v. State, 116 Ind. 144, 17 N. E. 624. Verdict and Special Findings Consistent. In an action of claim and delivery, the complaint alleging lawful possession of the prop- erty, absolute ownership as to part, special interest as to the remainder, wrongful seizure by one C., and that thereafter it came into defendant's possession, that demand for its return had been made, and return refused, the jury returned a general verdict for plaintiff upon all the issues, found the value of the property and damages for its detention, and a special ver- 3 T P 34 CODE OF CIVIL PROCEDURE. diet, to the effect that defendant purchased the property at private sale from one who took it under a chattel mortgage, and that the property was not placed in charge of defendant by the party who took it by virtue of the mortgage, but of a third person. Held, that the general verdict was not in conflict with the special findings, and that the general verdict settled all disputed facts not passed upon in the special findings. Everett v. Buchanan, 2 Dak. 249, 6 N. W. 339. Jury Finding on Law Question Lien. Neither the submission by the court of a question of law to the jury, nor the finding of the jury thereon is good ground for exception or assignment o f error, pro- vided such finding is right in law under the evidence. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39. It is not error for the jury, to include in a general verdict for plaintiff, assessing his damages at a specified sum, the additional finding "that he is entitled to a lien therefor." McCormack v. Phillips, supra. WHEN EITHER SPECIAL DIRECTED WHICH CONTROLS. 5061 Comp. Laws; In an action for the recovery of money only, or specific real property, the jury in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict in writing upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding must be filed with the clerk, and entered upon the minutes. Where a special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court must give judgment accord- ingly. SAME. 5445 Rev. Codes, N. D. The court in its dis- cretion may, and when either party at or before the close of the testimony and before any argument to the jury is made or waived shall so request, shall direct the jury to find a special verdict. Such verdict shall be prepared by the court in the form of questions in writing, which shall be confined to matters involving the merits of the case and 'shall admit of direct an- swer and the jury shall make their answer thereto in writing. The court may also direct the jury, if they render a general verdict, to find in writing upon any particular questions of fact, to be stated as aforesaid. In every action for the recovery of OF THE VERDICT. 35 money only, or of specific real property, the jury may in their discretion, when not otherwise directed by the court, render a general or special verdict. The special verdict or finding must be filed with the clerk and entered upon the minutes. When the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court must give judg- ment accordingly. (Am'd Rev. Com'rs. ) Sec. 261 C. C. P.; Levisee p. 77; Wait's Code 261, 262; Harst Pr., Deer. Code, 625. Consult decisions under two preceding sections, and the next section; also sections 5048, 5049, Com p. Laws, 5432, 5433, Rev. Codes, N. D. 7. General Verdict. Claim and Delivery. In an action of claim and delivery, the com- plaint alleging ownership and right of possession in plaintiff, and wrongful detention by defendant, a general verdict for plaintiff finds all these issues for plaintiff, and determines that he is owner and entitled to possession. Gaines v. White, sheriff, 1 S. D. 434, 47 N. W. 524; Payne v. June, 92 Ind. 253; Everit v. Wai worth, 13 Wis. 419; Gotloff v. Henry, 14 111. 384; Arthur v. Wallace, 8 Kan. 267. Trustee General Verdict Erroneous. In an ac- tion to recover the value of realty and the products thereof, and of personal property of which plaintiff claimed to be the owner, it was held, that when one receives a deed as security only, or personal property, and with a prom- ise to reconvey the realty upon payment, and to return the personalty on certain contingencies, he becomes a trustee for the owner; that a trustee cannot be sued at law while the trust remains open, unless the exact amount due the cestui que trust has been in some manner, liquidated , and no act remains to be performed except payment; and that it is reversible error in the trial court to refuse to try the case as an equity case, and in submitting it to a jury for a general verdict. Jasper v. Hazen, 1 N. D. 75, 44 N. W. 1018; Pom. Eq. Jur. sec. 1079, 1080, 1421; Davis v. Coburn, 128 Mass. 382; Nor- ton v. Ray, 139 Mass. 230; Wingate v. Ferris, 50 Cal. 105; Heyland v. Bad- ger, 35 Cal. 405; Sandfoss v. Jones, 35 Cal. 481; Judd v. Dike, 30 Minn. 380, 15 N. W. 672. General Verdict, and Finding. In Everitt v. Buchanan, 2 Dak. 249, 6 N. W. 4b9, it was held, under the state of the issues there pre- sented, that a general verdict for plaintiff upon all the issues, in an action of claim and delivery, warranted a judgment for plaintiff, and that said special finding was not inconsistent with the general verdict; Shannon, C. J. concurring in a separate opinion found in 8 N. W. 31, (39.) (See same case more fully explained under preceding section.) Refusal to Submit Question, Discretionary. Where the instructions given by the court ful- ly cover the facts of the case, it is not error to refuse to submit certain special questions to the jury and instruct them that they may in their dis- 36 CODE OF CIVIL PROCEDURE. cretion render a special verdict upon such issues. It is in all cases discre- tionary with the court whether he will so charge or not. Moline Plow Co. v. Gilbert et al. 3 Dak. 239, 15 N. W. 1. Fire Policy. In an action to re- cover upon a fire insurance policy, held, the submission of specific questions to the jury is discretionary with the court, and to refuse is not error. Enos et al, v. St. Paul P. & M. Ins. Co., 4 S. D. 639, 57 N. W. 919; Nat. Refining Co. v. Miller, 1 S. D. 548, 47 N. W. 962. No Bight to Special Question. The submission of special questions to a jury, to be answered by them in ad- dition to a general verdict, is matter of discretion of the court, and not a matter of right; and such submission can be withdrawn by the court at any time before the special findings are given, and such withdrawal furnishes no ground of exception. Nat. Refining Co. v. Miller et al, 1 S. D. 548, 47, N. W. 962. General and Special Stipulation. In an act to foreclose a mechanic's lien, the parties having stipulated for a jury trial, the jury in a general verdict for plaintiff, assessing his damages at a specified sum, in- cluded a finding "that he is entitled to a lien therefor." Held, no error. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39; Mnpls. & St. L. Ry. Co. v. Columbus Rolling Mill Co., 119, U. S. 149, 7 Sup. Ct. Rep. 168. Jury Dis- charged Without Answering. The jury were discharged without objec- tion, after rendering a general verdict, and without answering the following interrogatory snbmitted for special finding, the matter of which was fully covered by the charge: "Did the affidavit and lien made and filed by plain- tiff * * * contain a just and true account of the demand due him after allowing all credits?" Hdd, no error. McCormack v. Phillips, supra. In the case last cited Francis, J. enlarges upon the distinction between a spec- ial verdict or special finding of facts, and answers to interrogatories pro- pounded to the jury to be answered at the same % time that they render a general verdict. Mill Dam Special Question. Where the right to con- struct a dam for water power of eight feet head, granted defendant, and to overflow his lands was involved in an action by the grantor for overflowing his lands, the issue being whether the number of feet head was to be deter- mined by the difference between the water levels above and below the dam when the mill was in operation or when it was idle, and the jury were told to ascertain the proper method of measurement from the evidence, it was proper to submit for a special finding the question: "At an ordinary stage of water, above the mill-wheel and the level of the water is there more than eight feet difference between the level of the water below the mill-wheel in the race while the mill is in operation ?" Lang- ness v. Pettigrew, 5 Dak. 45, 37 N. W. 758. Plaintiff having granted de- fendant the right to construct a dam "eight feet high from a certain rock at the edge of the river where the dam crosses" and the upper surface of the rock being uneven, the question, "was the dam erected more than eight feet high from the point of rock designated in the deed" is properly submit- ted for a special finding, as against the objection that no point of a rock is OF THE VERDICT. 37 so designated. Langness v. Pettigrew, supra. Special Answers When Disregarded. Answers to special interrogatories, submitted to a jury by a court of equity, which are in direct conflict with the undisputed evidence, should be disregarded, and judgment should be entered upon and in accord- ance with findings of fact justified and sustained by the evidence submitted at the trial. Upton v. Hugos et al, S. D , 64 N. W. 523. Exe- cution Against Person- Verdict. Ordinarily, an execution against the person will not issue upon a judgment in an action in which several causes are combined, if either of such causes is one that would not allow a judg- ment upon which execution against the person might issue; but the rule is not applicable where the verdict upon which the judgment is rendered es- tablishes to a certainty that the jury found against defendant only upon a cause which would support a judgment upon which such an execution might issue; so held, in an action for wrongful conversion of personal pro- perty. Hermann v. Sherin, S. D. , 65 N. W. 434. Evidence Sus- taining Verdict. When sustained by competent evidence, a general vei- dict upon all the issues is conclusive as to every averment essential to a re- covery contained in the pleading of the prevailing party. Farmers' Bank of Frankfort, v. Bank of Canton, S, D , 65 N. W. 1070. Special Finding Judgment. Where, in an action at law, the jury, in answer to a specific question of fact, finds and returns a definite amount as due the plain- tiff from the defendants, the con ectness of which answer is not challenged by either side, plaintiff is presumptively entitled to judgmeut for such amount. John A. Tolnmn Co. v. Savage et al, 5 S. D. 496, 59 N. W. 882. Negligence Issue. A special finding of a jury that the negligence of the defendant causing the damage to plaintiff was the condition of the locomo- tive engine is within the allegations of the complaint, alleging that, "the defendant carelessly and negligently ran an engine along its line of railway, which engine then and there was so negligently and insufficiently con- structed and equipped, and so negligently and carelessly operated by the defendant, that it emmitted and threw out large sparks of fire." Smith v. Chi. Mil. & St. P. Ry. Co., 4 S. D. 71, 55 N. W. 717. "Ordinary Care" Special Question. In an action against a railway company for negligently causing a fire which destroyed plaintiff's property, the degree of careful- ness required of the company to avoid liability depends upon circumstances; it should be commensurate with the danger, but, whether the care so re- quired is slight or extreme, it is "ordinary care"; so that a special ques- tion submitted to the jury in such case, as to whether defendant company managed its locomotive "with ordinary care and prudence" on the occasion of the tire, presented the whole subject of the company's duty in handling its locomotive, whether the care required was usual or unusual. Kronkv. Ch^., Mil. & St. P. Ry. Co., 3 S. D. 93, 52 N. W. 420; Ry. Co. v. McDaniels, 107 U. S. 460, 2 Sup. Ct. Rep. 932; Ry. Co. v. Goddard, 25 Ind. 185; Fletcher v. Ry. Co., 1 Allen (Mass.) 9; Brown v. Lynn, 31 Pa. St., 510; Walsh v. Ry., 38 CODE OF CIVIL PROCEDURE. Etc., Co., 10 Ore. 254; Fassett v. Roxbury, 55 Vt. 556; And. Law Diet. Judgment On What Findings. In the trial of an action in the circuit court, upon appeal from the action of the probate court in the appointment of a guardian, questions of fact were submitted to a jury, whose answers, though only advisory, were referred to in the judgment as having been "duly considered," no other or different findings being found or claimed to be in the record, it will be understood that the judgment was based upon such findings. Engle v. Yorks, . . . . S. D , 64 N. W. 132. Partners- Joint Liability. Where, in an action against a firm composed of two per- sons, the jury renders a general verdict only, in favor of plaintiff and against defendant, it is error for the court, while such verdict remains in the record, to render judgment against plaintiff, dismissing the action as to one member of the firm. Kellogg, Johnson & Co. v. Oilman et al, 3 N. D. 538, 58 N. W. 339. Substitution of Court's Findings. In an action by one claiming ownership of land to restrain a sheriff from selling same under execution against plaintiff's grantor, the answer alleging the deed from plaintiff's grantor was fraudulently made with the knowledge of plaintiff, for the purpose of placing the property beyond reach of grantor's creditors, the casejbeing tried and submitted upon that issue, the evidence not being returned, the court having submitted a number of questions of fact to the jury, upon the answers to which both sides moved for judgment; the court on such motions made and substituted findings of its own in lieu of those re- turned by the jury; held, that a finding of the trial court that such deed constitutes a mortgage in favor of plaintiff to secure him for the amount which the court finds was paid by him to his grantor is outside of, and for- eign to the issue litigated and submitted for decision. Harkins v. Cooley et al, 5 S. D. 227, 58 N. W. 560; Mondran v. Goux, 51 Cal. 151; Morenhout v. Barron, 42 Cal. 605; Devoe v. Devoe, 51 Cal. 543; Gregory v. Nelson, 41 Cal. 278. Ownership When Matter of Law. The undisputed evidence show- ing plaintiff the owner and entitled to immediate possession of the pro- perty, in claim and delivery, and seized by defendant as the property of an attachment debtor, the court may determine the question of ownership and possession as matters of law, and withhold the same from the jury under an instruction which in effect requires them to find from the evidence the val- ue of such property at the time it was taken, and to return a verdict accord- ingly in the usual form, in plaintiff's favor and against defendant. Gris- wold v. Sundback et al, [on rehearing], 4 S. D. 441, 60 N. W. 1068; Malone v. Stickney, 88 Ind. 594; Litchman v. Potter, 116 Mass. 371; Elsworth v. Henshall, 4 G. Green [la.], 417; McCourt v. Bond, [Wis.], 25 N. W. 532; Cobby. Repl. 552. Probable Cause Law and Fact. The question of probable cause is a mixed one of law and fact, and when such defense is al- leged and evidence offered in relation thereto, which is conflicting, its credibility is to be considered and determined by the jury, under proper in- structions as to what facts, if they exist, constitute probable cause. Jack- OF THE VERDICT. 39 son v. Bell, 5 S. D. 257, 58 N. W. 671; Acker v. Gundy, (Pa. Sup.), 12 Atl. 595; Stewart v. Sonneborn, 98 U. S. 187; Walker v. Camp, (la.), 27 N. W. 800; Murry v. Long, 1 Wend. 140. Contract Construction of. Where a contract in evidence in an action has been construed by the trial court in its instructions to the jury, no exceptions being taken to such instructions, they will be assumed on appeal to be correct. Brown v. McCaul et al, S. D , 60 N. W. 151. JURY FIND AMOUNT ASSESSMENT. 5062 Comp. Laws; 5446, Rev. Codes, N. D. When a verdict is found for the plaintiff in an action for the recovery of money, or for the de- fendant when a counter-claim for the recovery of money is established, exceeding the amount of plaintiff's claim as estab- lished, the jury must also find the amount of the recovery; and, they may also, under the direction of the court, assess the amount of the recovery, when the court gives judgment for the plaintiff on the answer. [Sec. 5446 Rev. Codes N. D. , is the same, except that in lieu of the words "for the plaintiff on the answer", the words "on the pleadings for either party," are submitted. (Am'd Rev. Com'rs.)] Sec. 262 C. C. P.; Levisee p. 77; Wait's Code 263; Harst. Pr. Deer. Code 626. Consult decisions under three preceding sections, and the next section. Amount Under Pleadings. In a case where the sole issue is plain- tiff's right to recover anything of defendant, and where the amount due, if anything, is admitted by the pleadings, and where the jury returns a gen- eral verdict in favor of plaintiff, and against defendant, without fixing the amount of the recovery, it is not prejudicial error to order judgment for plaintiff for the amount admitted by the pleadings. English v. Goodman et al, 3 N. D. 129, 54 N. W. 540; Hodgkins v. Mead, 119 N. Y. 166, 23 N. E. 559. FIND VALUE AND DAMAGES. 5063 Comp. Laws. In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defend- ant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or, if being in favor of the defendant, they also find that he is entitled to a return thereof, must find the value of the property, and, if so instructed, the value of specific portions thereof, and may at the same time as- sess the damages, if any are claimed in the complaint or an- swer, which the prevailing party has sustained by reason of the taking or detention of such property. 40 CODE OF CIVIL PROCEDURE. SAME PARTY'S INTEREST IN. 5447 Rev. Codes N. D. In an action for the recovery of specific personal property the jury must find by their verdict the facts as the case may be as follows: 1. In case they find against the defendant and the property has not been delivered to the plaintiff, they must find the value of the property, or of the plaintiff's interest therein, if less than its full value, at the time of the taking, and that the plain- tiff is entitled to a delivery of the property, and they must also assess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and deten- tion of such property; or, 2. In case they find against the defendant" and the pro- perty has been delivered to the plaintiff, they must find that the plaintiff is entitled to the property and they must also as- sess the damages, if any are claimed in the complaint, which the plaintiff has sustained by reason of the taking and deten- tion of such property. 3. In case they find against the plaintiff and the property has been delivered to him, and the defendant in his answer claims a return of the property, they must find the value thereof, or of the defendant's interest therein, if less than its full value, at the time of the taking, and they must also assess the damages, if any are claimed in the answer, which the de- fendant has sustained by reason of the taking and detention of such property; or, 4. ]n case they find against the plaintiff and the property has been retained by the defendant, they must find that the de- fendant is entitled to such property. 5. In case the jury finds that each party is entitled to specific portions of the property in controversy and such por- tion has been delivered to the opposite party and a return is claimed in the complaint or answer, they must find 'the value of such portion, or of the party's interest therein, if less than its full value, at the time of the taking, and also assess the dam- ages, if any are claimed in the complaint or answer, in favor of the plaintiff or defendant as hereinbefore provided as to the OF THE VERDICT. portion to which they find the plaintiff or defendant entitled. Whenever the jury are so instructed, they must find the value of specific portions of the property in controversy or of the interest of either party therein, if less than its full value, at the time of the taking, and shall also assess the damages, if any are claimed by the party in whose favor they find sustained by reason of the taking and detention of such property. (Am'd. Rev. Com'rs. ) Sec. 263 C. C. P.; Levisee p. 78; Wait's Code 216; Harst Pr. Deer Code, 627. Consult decisions under two preceding sections. Replevin and Detinue Distinction Abolished. The distinction rec- ognized at common law, between the action of replevin and detinue, does not exist in this state, the Code having abolished all forms of pleading existing prior thereto, and necessarily abolished the distinction between these ac- tions; and the action to recover personal property takes the place of, and is a substitute for, both the former actions of replevin and detinue. Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090.' The primary objects of the actions of replevin and detinue was to recover the possession of specific personal prop- erty, and the gist of the action, in either form, was the unlawful detention of the property at the commencement of the action. The action to recover personal property under our Code has the same object in view, the recov- ery of the possession of the property and the unlawful detention is the gist of the action. Willis v. DeWitt, supra; Hickey v. Hinsdale, 12 Mich. 100; Gildas v. Crosby, 61 Mich. 413, 28 N. W. 153. It is not material in the ac- tion to recover possession of personal property how the defendant acquired possession, so far as the action to recover the property is concerned. The principal issues in this action are, the plaintiff's right to possession, the de- fendant's unlawful detention, the value of the property, and damages for its detention. Willis v. DeWitt, supra. Immaterial Amendment. An amendment to the complaint to make it conform to the proof,. adding there- to an allegation that the defendants unlawfully and wrongfully took the property from the possession of plaintiff, when it is alleged in the original complaint that plaintiff is the owner and entitled to possession of the prop- erty, and that it is unlawfully detained by defendant, is . an immaterial amendment, and authorizes no judgment that could not have been rendered under the original complaint. Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090; Oleson v. Merrill, 20 Wis. 462. Possession Necessary. To enable the plaintiff to maintain his action for the recovery of possession of personal property, defendant must have either the actual or constructive possession of the property at the time the action is instituted. Willis v. DeWitt, 3 S. 3i TP \- CODE OF CIVIL PROCEDURE. D. 281, 52 N. W. 1090; Moses v. Morris, 20 Kan. 208; Feder v. Abrahams, 28 Mo. App. 454; Hall v. White, 106 Mass. 599; Johnson v. Garlick, 25 Wis. 705; McHugh v. Robinson, 71 Wis. 565, 37 N. W. 426; State v. Jennings, 14 Ohio St. 73; Coffin v. Gephard, 18 la. 257; Haughton v. Newberry, 69 N. C. r>ii; Mitchell v. Roberts, 50 N. H. 486; Ames v. Boon Co., 8 Minn. 4(>7 ((ill. 417); Howev. Shaw, 56 Me. 291; Street v. McClerkin, 77 Ala. 580; Cobby Kcpl. sees. 61-64. General Verdict Determines What. When the complain i al- leges ownership and right of possession in plaintiff, and wrongful detention by defendant, a general verdict for plaintiff finds all these issues for plaint- iff. Such a verdict determines that he is owner and entitled to possession. Gaines v. White, sheriff. 2 S. D. 410, 47 N. W. 524. A general verdict for plaintiff will not be set aside because the jury did not find damages. Dam- ages are not the prime object in an action of claim and delivery. They are but the nominal issue. Gaines v. White, sheriff, 2 S. D. 410, 47 N. W. 524. Where the verdict of the jury was that the goods be delivered up to the de- fendant, or that he recover a certain sum as the value thereof, which sum was in excess of the highest value of the goods proved in evidence, held, that although the attention of the trial court was not called to this variance at the rendering of the verdict and before the jury were discharged, and al- though the motion for a new trial was made and denied pro forma without argument, this court will reverse the judgment and order a new trial, unless the parties consent to a modification of the judgment by reducing it to the proved value of the goods. North Star Boot & Shoe Co. v. Braithwaite, 4 Dak. 454, 34 N. W. 68. The evidence fully sustaining allegations of owner- ership, right to possession and wrongful detention, a verdict finding for plaintiff upon all the issues, and that plaintiff is entitled to immediate pos- session of the property, the value of which is therein specified, is sufficient to support a judgment for plaintiff. Hormann v. Sherin, S. D ,60 N. W. 145. Court Determines Ownership When. The undisputed evi- dence showing plaintiff is the owner and entitled to immediate posse&sion of the property described in his complaint in claim and delivery, and seized by defendants as the property of an attachment debtor, the court may deter- mine the question of ownership and possession as matters of law, and with- hold the same from the jury under an instruction which in effect requires them to find from the evidence the value of such property at the time it was taken, and to return a verdict accordingly, and in the usual form, in plain- tiff's favor. Griswold v. Sundback et al., (on rehearing) S. D , 60 N. W. 1068. Value of Use. The fact that a defendant in an action of claim and delivery gives a delivery bond does not render the proceeding analogous to an action for conversion; and if plaintiff recover an alternative judgment, he is not limited in his damages for the detention to interest on the value, but may recover the value of the use of his property that has been wrong- fully detained from his possession, where such property has an active capac- ity for earning money. Northrup v. Cross, sheriff, 2 N. D. 433, 51 N. W. 718. OF THE VERDICT. 43 Cost of Regaining Possession. Where personal property is wrongfully taken by an officer and sold at judicial sale, and the owner purchases at such sale and receives possession thereof, he is not entitled, in an action of claim and delivery against the officer, to judgment for the value of the property, but in lieu thereof is entitled to judgment for the sum it cost him to regain possession, with interest from date of its payment. Northrup v. Cross, sher- iff (on rehearing), 2 N. D. 433, 51 N. W. 718; Ford v. Williams, 24 N. Y. 359; Baker v. Freeman, 9 Wend. 36; Mclnroy v. Dyer, 47 Pa. St. 118; Sprague v. Brown, 40 Wis. 612; Leonard v. Maginnis, 34 Minn. 506, 26 N. W. 733. Ownership Judgment. Where each party claims the right of possession by virtue of absolute ownership, and in no other manner, a verdict which finds plaintiff entitled to possession of the property and fixes its value, will support a judgment for plaintiff for possession of the property, or its value as found by the jury. Branstetter v. Morgan, 3 N. D. 290, 55 N. W. 758; Krause v. Cutting, 32 Wis. 688; Everit v. Bank, 13 Wis. 468; Faulkner v. Meyers, 6 Neb. 415; Underwood v. White, 45 111. 438; Clark v. Heck, 17 Ind. 281; Payne v. June, 92 Ind. 253. Ownership Striking Evidence. Where plaintiff's allegation of ownership is put in issue, and title alleged in defendants, a failure to in- troduce evidence tending to show plaintiff's ownership is fatal to plaintiff's case; and where in such case, at the close of the case it appeared that de- fendants were the owners of the property, held, that it was not error to strike from the record all evidence offered by plaintiff to support his claim of own- ership, on defendants' motion; nor, after striking out such evidence, was it error to direct a verdict to the effect that defendants were owners and enti- tled to a return of the property. Haveron v. Anderson etal., 3 N. D. 540, 58 N. W. 340; held, further, in such case, that it was not error, the value of the property being in dispute, to submit the question of value upon the evidence for the consideration of the jury; and a motion to strike out certain evidence was properly denied. Haveron v. Anderson et al., supra. General Denial. The general denial in actions of claim and delivery under the Code puts in issue not only the unlawful detention of the property, but also the title and right to possession in plaintiff; and under it defendant may not only show that plaintiff has no title or right to possession, but, by way of establishing that fact, may prove title in himself or a stranger; and to disprove unlawful detention he may prove that some other person than himself was in posses- sion and held same at commencement of the action. Pitts Ag'l Works v. Young, S. D 62 N. W. 432; Timp v. Dockham, 32 Wis. 146; Ken- nedy v. Shaw, 38 Ind. 474; Griffin v. R. R. Co., 101 N. Y. 348, 4 N. E. 740; Hinchman v. Doak, 48 Mich. 168, 12 N. W. 39. Presumptively Taken from Defendant. When, however, the property is taken by the officer under his process, the presumption is that it was taken from defendant's possession, and this presumption can only be overcome by evidence on part of defendant that he did not have possession at commencement of the action. Pitts Ag'l Works v. Young, supra; Timp v. Dockham, supra; Willis v. DeWitt, 3 S. D. 1 1 CODE OF CIVIL PROCEDURE. 281, 62 N. W. 1090; and a verdict finding all issues in favor of defendant will ordinarily be construed with reference to this presumption, and not as find- ing that defendant was not in possession at commencement of the action. Pitts Ag'l Works v. Young, supra; Hinchman v. Doak, 48 Mich. 168, 12 N. W. 39. Plea of Property Judgment. The rule seems to be well settled that when defendant pleads property in himself or a stranger, or traverses plaintiff's right to possession, if he prevails in the action he will be entitled to judgment for the return of the property, or its value if return cannot be had. Pitts Ag'l Works v. Young, supra; Witham v. Witham, 57 Me. 447; Quincy v. Hall, 1 Pick. 357; Ingraham v. Hammond, 1 Hill 353; Harrison v. Mclntosh, 10 John. 380; Prosser v. Woodward, 21 Wend. 209; Pico v. Pico, 56 Cal. 455; Williams v. Kessler, 82 Ind. 184; Griffin v. R. R. Co., 101 N. Y. 348, 4 N. E. 740. VERDICT ENTRY OF. 5064 Comp. Laws; 5448 Rev. Codes N. D. Upon receiving a verdict an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length; and where a special verdict is found, either the judgment rendered thereon, or, if the case be reserved for argument or further consideration, the order thus reserving it. Sec. 264 C. C. P. Levisee p. 78; Wait's Code g 264; Harst Pr. Deer. Code I 628. Consult decisions under sees. 5048, 5059, 5061, Comp. Laws; sec. 5432, 5443, 5445, Rev. Codes N. D. Judgment Dismissing Partner. Where in an action against a firm composed of two persons, the jury renders a general verdict only, in favor of plaintiff and against defendant, it is error for the court, while such verdict remains of record, to render judgment against the plaintiff dismissing the action as to one member of the firm, with costs. Kellogg, Johnson & Co. v. Oilman et al., 3 N. D. 538, 58 N. W. 339. Sureties Judgment. In an ac- tion upon a county treasurer's bond, in which bond the sureties bound them- selves in the amount set opposite their respective names, each signing for a less amount than the penal sum, the principal made no answer, and the sure- ties answered setting up a common defense. The verdict was "for the plain- tiff on all the issues, and assess plaintiff's damages at ten thousand dollars." The court entered judgment thereon against the principal for $10,000 (the penal sum) and against each surety for the amount set opposite his name. Held, under sec. 4901 Comp. Laws, no error of which the sureties could com- plain. Custer Co. v. Alvien, S. D , 64 N. W. 533; People v. Love, 25 Cal. 520; Pom. Rem. & Rem. Rights sec. 406. Advisory Answers Judgment. When, upon trial in the circuit court on appeal from probate court, questions of fact are submitted to a jury, whose answers, though only OF THE TRIAL BY THE COURT. 45 advisory, are referred to in the judgment as "duly considered," without any intimation of dissatisfaction with them, and no other or different findings are found in the record or claimed to have been made, it will be understood that the judgment was based upon such findings of the jury. Engle v. Yorks, .... S. D , 64 N. W. 132. CHAPTER V. ART. 6, CHAP. 12, CODE OF CIVIL PROCEDURE. OF THE TRIAL BY THE COURT. HOW JURY WAIVED. 5065 Comp. Laws; 5449 Rev. Codes N. D. Trial by jury may be waived by the several par- ties to an issue of fact in actions arising on contract, or for the recovery of specific real or personal property, with or without damages, and with the assent of the court in other actions, in manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent, in open court, entered in the minutes. Sec. 265 C. C. P.; Levisee p. 79; Wait's Code 266; Harst Pr. Deer. Code 631. Consult sec. 5032, Comp. Laws; sec. 5420 Rev. Codes N. D., and decis-. ions thereunder. Also, the constitutional provisions in South and North Dakota, set forth under sec. 5058 Comp. Laws; also decisions under sec. 5048 Comp. Laws; sec. 5432 Rev. Codes N. D. Question for Jury Waiver. Where the court, upon a trial to a jury assumes that a certain fact was proven, and if such question was one of fact for the jury, appellant waived its submission to the jury by treating the case as presenting questions of law only, and moving the court to direct a verdict in its favor, and making no claim or request to have the case sub- mitted to the jury. Grigsby v. Western Union Tel. Co., 5 S. D. 561, 59 N. W. 734; Barnes v. Ferine, 12 N. Y. 18; Winchell v. Hicks, 18 N. Y. 565; Leggett v. Hyde, 58 N. Y. 275. Where, at the close of plaintiff's evidence, defendant moves for verdict in his favor, which is denied, and, no evidence being offered by defendant, the court on motion directs a verdict for plain- tiff, defendant not requesting the court to submit the case to the jury, it is not error for the court to direct a verdict for plaintiff, if there was sufficient 40 CODE OF CIVIL PROCEDURE. evidence to support that verdict. Yankton Fire Ins. Co. v. Freemont, E. & M. V. R. Co., .... S. D. 64 N. W. 514; Dillon v. Cockroft, 90 N. Y. (Mil; Ormes v. Dauchy, 82 N. Y. 443; O'Neill v. James, 43 N. Y. 84; Trustees v. Kirk, 68 N. Y. 459; Grigsby v. Western U. Tel. Co., 5 S. D. 561, 59 N. W. 734. The court, in the Yankton Fire las. Co. v. Ry. Co. case, supra, cite with approval the following language from Dillon v. Cockroft, supra: "It is well settled that where the defendant moves for a nonsuit, or rests his de- fense upon questions of law, and does not request to go to the jury, and his motion is denied, or the law held adversely to him, he is estopped from raising the point upon appeal, that there were questions of fact which would have been passed upon by the jury." WHEN DECISION GIVEN. 5066 Comp. Laws. Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days af- ter the cause is submitted for decision, and upon a trial of a question of law the decision must be given by the court at the time the question is submitted for decision or within fifteen days thereafter, and no judgment shall be rendered or entered until after the filing of such decision. (As Am'd. 1887, cha.p. 25, sec. 1, as Am'd. 1893 chap. 72, S. D.) SAME. 5449 Rev. Codes N. D. All motions or applica- tions in any action, special proceeding or other matter in the district court must be decided and such decision reduced to writing and filed with the clerk within thirty days after the same shall have been submitted to the court for decision, unless prevented by the sickness of the judge whose duty it is to de- cide the same or by other unavoidable casualty, and upon, the trial of any question or issue of fact by the court its decision thereon and conclusions of law upon such decision, and direc- tion for entry of judgment in accordance with such conclusions must be given in writing and filed with the clerk within sixty days after the cause has been submitted for decision, unless such is prevented for the reason hereinbefore stated, and judg- ment shall be entered by the clerk in accordance with such di- rection upon the application of the party entitled thereto and the filing of such decision and conclusions of law. Each judge of the district court shall not less than five nor more than fifteen days before each quarterly installment of his salary be- OF THE TRIAL BY THE COURT. 47 come due file in the office of the auditor of the state a certificate under his hand stating in effect that no motion, application or question or issue of fact submitted to him remains undecided contrary to the provisions of this section. And in case any such decision has been prevented by any of the causes enumer- ated in this section, such certificates shall state the facts con- stituting the cause of such prevention, and the state auditor is hereby directed not to sign or issue any warrant for the pay- ment of any quarterly installment of salary to any judge of the district court until after such judge shall have filed such cer- tificate as herein provided. (As amended, sec. 1, chap. 89, Laws 1893, N. D. ) Sec. 266 C. C. P.; Levisee p. 79; Wait's Code, 267 ;Harst. Pr., Deer. Code, \ 632. Consult decisions under three following sections; also decisions under sec. 5067, 5068, 5069 Comp. Laws; sec. 5451, 5452, 5453, Rev. Codes N. D. 1. Filing Decision Mandatory. Sec. 5066 Comp. Laws is mandatory and not merely directory, relative to the filing of the decision. That such is the legislative intent is emphasized by the amendment (sec. 1, ch. 25, Sess. Laws 1887) declaring "no judgment shall be rendered or entered until after the filing of such decision." Gaar, Scott & Co. v. Spaulding, 2 N. O. 414, 51 'N. W. 867. Waiver. Where the trial is to the court, it would be irregular, and reversible error to enter judgment without first filing the decision of the trial court, where non-waiver of findings appears affirmatively from the record. In such case the judgment would be illegally entered, and invalid on its face. But the mere absence of a waiver from the judgment roll does not show error affirmatively. Such waiver would not be part of the statutory roll; and, in absence of a bill or statement showing the waiver of record, this court will presume in support of the judgment, the contrary not appearing of record, that a waiver of findings was made and filed in the court below. Gaar, Scott & Co. v. Spalding, supra; Thomas v. Tanner, 14 How. Pr. 426; Reich v. Mining Co. (Utah), 2 Pac. 703; Hayne New Tr. & App. p. 690, 721, 722; Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53 Cal. 34; Carr v. Cronin, 54 Cal. 600. Where the trial court determines the issues of fact without a jury the statutory requirement as to findings is mandatory, and not directory. Gull River Lum. Co. v. School Dist. No. 39 of Barnes Co., 1 N. D. 500, 48 N. W. 427. Separate Signing. Where the record shows that the findings of fact and conclusions of law are made by the court part ot the judgment roll, preliminary to the judgment, in which they are referred to, and are preceded by the declaration, "I make and file the following- findings of fact and conclusions of law," it is no objec* 48 CODE OF CIVIL PROCEDURE. tion to such findings and conclusions that they are not separately signed by the judge, whose signature appears only at the close of the judgment. Nat. Tube Works Co. v. City of Chamberlain, 5 Dak. 54, 37 N. W. 761. 2. Findings and Conclusions Unnecessary When. In an action to foreclose a mechanic's lien, in a case in which no answer was filed nor issue of fact tried, the supreme court of South Dakota, in deciding that the trial court is not required to find the facts or state its conclusions of law before entering judgment, upon an assignment of error that the trial court failed to make and file its decision in writing before entry of judgment, held, that no decision in writing was required in that case; and in passing upon this and the two succeeding sections of the Code, say: "These sections were ev- idently designed to apply only to the trial of issues of fact raised by the plead- ings and not to cases in which there are no issues of fact tried. " Cole v. Custer Co. Ag'l, Mineral & Stock Ass'n, 3 S. D. 272, 52 N. W. 1086. Admissions- No Findings. In an action at law tried to the court without a jury, mater- ial issues tendered by the complaint, and admitted or not denied in the an- swer, require no findings of fact. Anderson v. Alseth (on rehearing), S. D , 66 N. W. 320; Parker v. Bank, 3 N. D. 37, 54 N. W. 313; Humpf- ner v. D. M. Osborne & Co., 2 S. D. 310, 50 N. W. 88; Barto v. Himrod, 8 N. Y. 483; Fox v. Fox, 25 Cal. 587; Swift v. Muygridge, 8 Cal. 445. Immater- ial Finding's Judgment. In the case of Jackson v. Mayor, etc., of Ellen- dale, 4 N. D. 478, 61 N. W. 1030, the findings of fact of the trial court, in- volving liability for the expense of putting in connections with a street wa- ter main, were held sufficient to warrant the judgment appealed from. The court say: "The only attack upon the findings is with respect to a matter which may be eliminated from the findings without affecting the judgment. These alleged *rrors are therefore not prejudicial." Immaterial Evidence. Where a case is tried without a jury, and im- material and incompetent evidence has been admitted over valid objection, such evidence requires no specific finding of fact, and it is not prejudicial error to disregard it. Martin v. Minnekahta State Bank S. D ,64 N. W. 127. Findings Nunc pro Tune. A court who tries issues of fact and makes findings and conclusions of law, which are concurrently filed with the judgment based thereon, has power to seasonably make additional though entirely consistent findings, conforming more specifically to the decision as orally announced at the conclusion of the trial, and to file the same as of the date the original findings were filed and entered. Martin v. Minnekahta State Bank, . . . S. D , 64 N. W. 127; Comp. Laws sees. 4938, 4939, 4941; Ins. Co. v. Boon, 95 U. S. 117; Williams v. Ely, 18-Wi&. 1; M'f'gCo. v. Ad- ams, (Minn.), 50 N. W. 360. Findings Presumptively Right. Findings of the trial court on disputed questions of fact are always presumptively right, and though under our statute not as control) ing upon this court as the verdict of a jury, must stand, unless the evidence clearly preponderates against them. Feldman v. Trumbower. S. D , 64 N. W. 189. OF THE TRIAL BY THE COURT. 49 Duty of Clerk "Decision." It is the duty of the clerk in cases tried by the court without a jury, to annex the decision of the trial court to the judg- ment roll; and where in such case, no decision is found in the record trans- mitted to this court on appeal, it will be presumed, in absence of explana- tion, that no decision was made or filed in the court below. A decision is a paper "which involves the merits, and necessarily effects the judgment," and hence forms a part of the statutory judgment roll, unless findings are waived in writing filed with the clerk, under sec. 5068. Gaar, Scott & Co. v. Spalding, 2 N. D. 414, 51 N. W. 867; Dowd v. Clark, 51 Cal. 263; Gull River Lum. Co. v. School-Dist., 1 N. D. 500, 48 N. W. 427. A decision is a written statement of the court's findings of fact and conclusions of law. DeLendrecie v. Peck, 1 N. D. 4B2, 48 N. W. 342. SEPARATELY STATED. 5067 Comp. Laws; 5451 Rev. Codes N. D. In giving the decision the facts found and the conclusions must be separately stated. Judgment upon the decision must be entered accordingly. Sec. 267 C. C. P.; Levisee, p. 79; Wait's Code g 267; Harst. Pr. Deer. Code I 633. Consult also decisions under sections 5066, 5068, 5069, Comp. Laws; sec- tions 5450, 5452, 5453, Rev. Codes N. D. 1. Conclusions and Judgment Distinct. In an action in equity to set aside certain foreclosure proceedings by advertisement, the trial being to the court, the court say, relative to the state of the record as to the conclu- sions of law in that case: "The conclusions of law reached by the trial court and the formal judgment are thrown together in one instrument. This we think is bad practice. The statute requires the judgment to be en- tered in the judgment book. This practice compels clerks of district courts to enter the conclusions of law as a part of the judgment. This is a useless incumbrance of the record, and one never contemplated by the statute. Trial courts should see to it that attorneys in preparing their conclusions of law and final judgments keep the two entirely distinct." Johnson v. Day et al., 2 N. D. 295, 50 N. W. 701. Findings Mandatory, When. Where the trial court determines the issues of fact without a jury, the requirement of the statute as to findings is mandatory, and not directory. Gull River Lum. Co. v. School Dist., 1 N. D. 500, 48 N. W. 427. 2. Immaterial Findings. Immaterial findings which are not the basis of the judgment, other sufficient findings appearing of record, will not vitiate the judgment or cause its reversal. Caledonia Gold Min. Co. v. Noo- nan et al , 3 Dak. 189, 14 N. W. 426; Golden Terra Mining Co. v. Smith et al., 2 Dak. 377, 11 N. W. 97; (French v. Lancaster, 2 Dak. 276, 9 N. W. 716, distinguished.) A judgment will not be reversed by reason of the failure of the trial court to make a finding upon a particular point in a case where the 4 TP 50 CODE OF CIVIL PROCEDURE. result could not have been different if the court had found the fact exactly as alleged by such party. Joslyn v. Smith et al., 2 N. D. 53, 49 N. W. 382. Finding Foreign to Issue. In an action by one claiming as owner of land to restrain a sheriff from selling it under execution against plaintiff's grantor, the answer alleging the deed from plaintiff's grantor was fraudu- lently made with plaintiff's knowledge for the purpose of placing the prop- erty beyond the reach of grantor's creditors, the abstract showing that the case was tried and submitted upon that issue, the evidence not being re- turned, held, that a finding of the trial court that such deed constitutes a mortgage in plaintiff's favor to secure him for the amount which the court finds was paid by him to his grantor is outside of, and foreign to the issues litigated and submitted for decision. Harkins v. Cooley et al., 5 S. D. 227, 58 N. W. 560; City of Winona v. Minn. Ry. Const. Co., 27 Minn. 427, 6 N. W. 795 and 8 N. W. 148; Mondran v. Goux, 51 Cal. 151; Morenhout v. Barren, 42 Cal. 605; Devoe v. Devoe, 51 Cal. 543; Gregory v. Nelson, 41 Cal. 278; and a judgment based upon such finding cannot be sustained. Id. Findings Supported Materiality. In Stone v. Chi., Mil. & St. P. Ry. Co S. D. ...., 65 N. W. 29, involving the question of liability of the defendant Ry. Co. for the value of a shipment of cattle delivered by it to a third party, and involving also the question whether the party to whom they were thus de- livered received them as owners or as security, it was held, under the facts there appearing, that the findings of the trial court were sustained by the evidence; held, also, that in view of other findings which were material and which supported the judgment, a particular finding objected to was immaterial and could not affect the decision of the trial court. Inconsistent Findings. Where the several findings of the trial court were inconsistent with each other upon the po^nt whether the contract in question was made for and intended only to bind the defendant, and that the improvements upon the homestead were made upon his credit, and such findings were inconsistent with the theory either that the contract was that of the wife, in whose name the homestead stood, or that of the co-defendant, her husband, or the joint contract of both, a judgment for plaintiff upon such findings should be reversed and the case remanded for a retrial; so held in an action to foreclose a mechanic's lien. Cawley et al v. Day et al, 4 S. D. 221, 56 N. W. 749; Ziegler v. Galvin, 45 Hun. 44; Huntley v. Holt, 58, Ct. 446, 20 Alt. 469; Lyon v. Champion (Ct ), 25 Alt. 392. Ambiguous Finding. In construing an ambiguous finding of fact made by the trial court the appellate court may consider all the findings in order to determine what is intended; it is the duty of the latter court, when it can be done without violence to the language used, to so construe a finding as to support a conclusion of law that follows. Moore v. Booker et al, 4 N. D. 543, 62 N. W. 607. Must Support Judgment. Findings of the court must be suffi- cient to support the judgment; and when, in an action under chap. 88, Laws 1889, the court failed to find that the plaintiff's assignor owned and operated OF THE TRIAL BY THE COURT. 51 the threshing machine with which the grain was threshed, and that the lien filed contained the statement of facts required by sec. 3 of the act, such findings are insufficient to sustain the judgment. Anderson v. Alseth, .... S. D , 62 N. W. 435; Holt v. VanEpps, 1 Dak. 206, 46 N. W. 689; Dole v. Burleigh, 1 Dak. 227, 46 N. W. 692; Parker v. Bank, 3 N. D. 87, 54 N. W. 313; Rugg v. Hoover, 28 Minn. 407, 10 N. W. 473; Lavin v. Bradley, 1 N. D. 291, 47 N. W. 384. Findings Sustained When. While under our statute this court will review questions of fact tried by the lower court with- out a jury, the findings of the trial court will not be disturbed, unless the evidence manifestly preponderates against them. Evenson v. Webster, (on rehearing) 5 S. D. 266, 58 N. W. 669. 3. Judgment Entry Notice. It would seem that judgments may be entered, except in cases where the statute otherwise specially directed, with- out notice or other formalities than the simple direction of the court, or of the judge at chambers. There seems to be no necessity for such notice or- dinarily. None is expressly required in cases tried by the court. Sec. 5067 Comp. Laws; Gould v. Duluth & D. El. Co., 3 N. D. 96, (101), 54 N. W. 316 (318). Clerk's Duty File Decision. It is the duty of the clerk of the dist- rict court, in cases tried to the court, to annex the decision to the judgment roll; and it would be reversible error to enter judgment without first filing the decision, where non-waiver of findings appears affirmatively from the record. Gaar, Scott & Co. v. Spalding, 2 N. D. 414, 51 N. W. 867. Review New Trial Ballots. Where, in an election contest case, the question is the legal effect of certain ballots then before the court, to be gathered from the ballots themselves without aliunde evidence, the question is one of law and not of fact; and the decision of the trial court upon such question of law may be reviewed in this court without a motion for a new trial. Le Claire v. Wells, . . . . S. D , 64 N. W. 519; Mercantile Co. v. Faris, 5 S. D. 348, 58 N. W. 813. What Reviewed on Appeal. It not appearing in this case that a motion for a new trial was made in the court below, this court will not review the evidence to determine its sufficiency to support the findings, and will only consider on this appeal the question of the sufficiency of the findings to sustain the judgment. Evenson v. Webster, 3 S. D. 382, 53N.W. 747; following Pierce v. Manning, 2 S. D. 517, 51 N. W. 332. FINDINGS WAIVED HOUR. 5068 Comp. Laws; 5452 Rev. Codes N. D. Findings of fact may be waived by the several parties to an issue of fact: 1. By failing to appear at the trial. 2. By consent in writing, filed with the clerk. Sec. 268 C. C. P. ; Levisee p. 79; Harst Pr. Deer. Code \ 634. Consult also decisions under preceding section. Court Must Make Findings. Upon trial to the court it is the duty of 52 CODE OF CIVIL PROCEDURE. the court without request to make express findings of the ultimate facts which are material and arise upon the pleadings; and the adoption of certain documentary evidence, and a certain stipulation of facts, as findings, and upon which findings certain legal conclusions, upon which judgment was en- tered, were drawn, is reversible error. Gull River Lum. Co. v. School Dist. No. 39, 1 N. D. 500, 48 N. W. 427. Waiver Presumption. As the statute allows parties to waive findings by the court, a waiver will be presumed un- less the fact of non-waiver is shown by the record. Chandler v. Kennedy, S. D , 65 N. W. 439; Smith v. Lawrence, 53 Cal. 34; Mulcahy v. Glazier, 51 Cal. 626; Carr v. Cronan, 54 Cal. 600; Reynolds v. Brumagin, Id. 254. PREPARATION OF FINDINGS. 5069 Comp. Laws; 5453 Rev. Codes N. D. At the time the cause is submitted the judge may direct either or both parties to prepare findings of facts unless they have been waived, and when so directed the party must within two days prepare and serve upon his adversary, and submit to the judge such findings, and may, within two days thereafter, briefly suggest in writing to the judge why he desires findings upon the points included within the findings prepared by himself, or why he objects to findings upon the points included within the findings prepared by his adversary. The judge may adopt, modify, or reject the findings so submit- ted. If, at the time of the submission of the cause, the judge does not direct the preparation of findings, or those prepared are rejected, then he must himself prepare the findings. Sec. 269 C. C. P.; Levisee p. 80. Consult decisions under the three preceding sections. Find Ultimate Facts Request. It is the duty of the court, upon trial to the court, to^make express findings of the ultimate facts in issue, without request. Gull River Lum. Co. v. School Dist. No. 39, 1 N. D. 500, 48 N. W. 427. In the case cited the court say: "Findings were not waived, nor did the district court exercise its right to require counsel to frame and present proposed findings to the court. Prudent practitioners ofteu volunteer and present proposed findings to the court, but this was not done in this case; nor does the statute or rules of practice require it to be done in any case. Findings not having been required by the court nor voluntarily presented by counsel, the duty of preparing and signing findings of fact and of law is one which the statute expressly^devolves upon the court itself. The statutory requirement is explicit and positive in its terms; and the courts of other states, where substantially the same provisions are found, have uniformly construed the language as being mandatory, and not directory merely. Such OF REFERENCES AND TRIALS BY REFEREES. 53 construction accords with our own views. To hold that the statute is direc- tory only would, in our opinion, impair its efficiency," citing Hayne New Tr. & App. sec. 238, 239; People v. Forbes, 51 Cal. 628; Billings v. Everett. 52 Cal. 661; Speegle v. Leese, 51 Cal. 415; Johnson v. Squires, 53 Cal. 37; Bank of Woodland v. Tread well, 55 Cal. 380; Harlan v. Ely, Id. 344. Additional Nunc pro Tune. A court who tries issues of fact and makes its findings and conclusions of law, which are concurrently filed with the judgment based thereon, has power to seasonably make additional though entirely con- sistent findings, conforming more specifically to the decision as orally an- nounced at the conclusion of the trial, and to file the same as of the date the original findings were filed and entered. Martin v. Minnekahta State Bank, S. D. . . . , 64 N. W. 127; Comp. Laws sec. 4938, 4939, 4941; Ins. Co. v. Boon, 95 U. S. 117; Williams v. Ely, 13 Wis. 1; MTg Co. v. Adams (Minn.), 50 N. W. 360. JUDGMENT ISSUE OF LAW. 5070 Comp. Laws; 5454 Rev. Codes N. D. On a judgment for the plaintiff upon an is- sue of law, he may proceed in the manner prescribed by the first two subdivisions of section 5025, upon the failure of the de- fendant.to answer. If judgment be for the defendant upon an is- sue of law, and the taking of an account, or the proof of any fact be necessary, to enable the court to complete the judgment, a reference may be ordered as in that section provided. [Sec. 5454 Rev. Codes N. D., is the same as the above, except that where sec. 5070, Comp. Laws, refers to sec. 5025 Comp. Laws, the North Da- kota section refers to the corresponding section of that Code. (Sec. 5413 Rev. Codes.) (Am'd Rev. Com'rs.)] Sec. 270 C. C. P.; Levisee p. 80; Wait's Code sec. 269; Harst Pr., Deer. Code 636. Consult decisions under sec. 5031, 5032, 5033 Comp. Laws; sec. 5418,5419, 5420 Rev. Codes N. D. CHAPTER VI. ART. 7, CHAP. 12, CODE OF CIVIL PROCEDURE. OF REFERENCES AND TRIALS BY REFEREES. [AUTHOR'S NOTE. Sec. 5071 Comp. Laws, as well as several other sec- tions of the same article of the Code, was amended by sec. 1, chap. 112, Sess. 54 CODE OF CIVIL PROCEDURE. Laws Dak. Territory, 1889. But this act was repealed by sec. 12, chap. 100, Sess. Laws S. D. 1891, which latter act now contains the existing law upon this subject in South Dakota. As the context of the act of 1891 seems to in- dicate that the legislature in enacting it intended to substitute portions of it for the corresponding sections of the Compiled Laws, the author, for the purpose of preserving the identity of the sections of the Compiled Laws throughout this work, has referred certain parts of the provisions of the legislative act of 1891 to the corresponding sections of that compilation; the balance will be referred to as sections of the Act of 1891.] REFERENCE BY CONSENT. 5071 Comp. Laws. A refer- ence may be ordered upon the agreement of the parties filed with the clerk or entered in the minutes. 1. To try any or all of the issues in an action or proceeding, whether of fact or law, and to report a finding and judgment thereon. 2. To ascertain a fact necessary to enable the court to de- termine an action or proceeding. 3. In all other cases provided for reference by law. (Sec. 1, chap. 100, Laws 1891 S. D. ) SAME. 5455 Rev. Codes N. D. All or any of the issues in an action whether of fact or law or both may be referred by the court or judge thereof upon the written consent of the par- ties. The fees of referees shall be fixed by the court and sball in no case exceed ten dollars per day except upon the written consent of both parties to the reference. (As amended, sec. 1, chap. 112, Laws Dak. Am'd. Rev. Com'rs. ) Sec. 271 C. C. P.; Levisee p. 80; Wait's Code 270; Harst Pr. Deer. Code | 638. Consult decisions under sec. 5032 Comp. Laws, sec. 5420 Rev. Codes N. D. Order for, Entered. Under the provisions of sec. 1, chap. 112, Laws 1889, an order of reference should be made by the court or judge, and en- tered of record; but on appeal to this court, in the absence of evidence in the record showing that such order was not made, the court will presume, in support of the judgment, that such an order was duly made. Kent. v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85; Herrick v. Butler, 30 Minn. 156, 14 N. W. 794; Blake v. Mfg. Co., 77 N. Y. 626; Beinig v. Hecht, 58 Wis. 212, 16 N. W. 548; Credit Foncier v. Rogers, 10 Neb. 184, 4 Neb. 1012; Carruthers v. Hensley, (Cal.), 27 Pac. 411. Evidence of Reference. A re- cital in the judgment that the issues "having been duly and legally refer- OF REFERENCES AND TRIALS BY REFEREES. 55 red." in the absence of evidence of record countervailing such recital, or in any manner tending to impeach it, will be taken as true and based upon suf- ficient evidence before the court below. Kent v. Dak. F. & M. Ins. Co., supra; Reining v. Hecht, supra. Conclusions, When Required Record. By. sec. 1, chap. 112, Laws 1889, it is provided that "all or any of the issues in an action, whether of fact or law, or both," may be referred. And by sec. 3 it is provided that referees "must state the facts found and their con- clusions of law separately." Held, construing the two sections together, that referees are only required to state their conclusions of law when all the issues of fact and law are referred. Held, further, that in this case it does not appear what issues were referred, and hence this court cannot say that the report did not conform to the order of reference. Kent v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85. Powers of Referee Consent. An order of reference referring li the action" to a referee, "with the usual pow- ers," based upon the consent of the defendant in open court that the case be referred to take the testimony and report, warrants the referee in making and reporting findings of fact and conclusions of law. Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659, construing sees. 1 and 2, chap. 112, Laws 1889. Referee Under Former Statute. A referee under the statute fn force at the time of the trial of this cause (Code provisions as amended in 1889) was an officer of the court for a specific purpose; that is, "to take testimony," "to ascertain a fact," or, it might have been, to hear and determine any or all the issues of fact in an action, and to report a finding of fact upon which a judgment could have been entered by the court. To determine the power of the referee, the object for which he was appointed, or the nature of the reference, must be continually kept in view. Betts v. Letcher et al, 1 S. D. 182, 46 N. W. 193. Consent Presumed. An order of reference made under the statute as it existed prior to 1889, made upon due notice, the adverse party not appearing at the hearing or interposing any objections to the making of the order, and no motion having been made to vacate or set aside the order, several months elapsing between its date and the hearing, will be presumed to have ben made with the consent of the opposite party, and will be held a valid and binding order. Jerauld Co. v. Williams et al, S. D , 63 N. W. 905; following Kent v. Ins. Co., 2 S. D. 306, 50 N. W. 85. WITHOUT CONSENT. 5072 Comp. Laws, Sec. 5456 Rev. Codes N. D. When the parties do not consent, the court may, upon the application of either party, or of its own motion di- rect a reference in the following cases: 1. When the trial of an issue of fact requires the examin- ation of a long account on either side; in which case the refer- ees may be directed to hear and decide the whole issue, or re- port upon any specific question of fact involved therein. 56 CODE OF CIVIL PROCEDURE. 2. When the taking of an account is necessary for the in- formation of the court before judgment, or for carrying a judg- ment or order into effect. 3. When it is necessary for the information of the court in a special proceeding. (Sec. 2, chap. 100, Laws 1891, S. D. ) [Sec. 5456 Rev. Codes N. D., is substantially the same down to subdi- vision 1. Subdivision 1 is the same as in S. D., except that it uses the word "referee" instead of "referees;" and the word "involved" is omitted. Sub- division 2 is the same as in S. D. Subdivision 3 of Rev. Codes, N. D. is as follows: "When a question of fact other than upon the pleadings shall arise upon motion or otherwise in any stage of the action." (As am'd. sec. 3, chap. 112, Laws 1889.)] Sec. 272 C. C. P.; Levisee p. 80; Wait's Code 271; Harst. Pr. Deer. Code \ 639. Consult decisions under preceeding section, and next section. REFERRED TO WHOM. 5073 Comp. Laws; Sec. 5457 Rev. Codes N. D. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree the court or judge must appoint one or more referees, not exceeding three, who reside within the judi- cial circuit in which the action or proceeding is triable and against whom there is no legal objection (sec. 3, chap. 100, Laws 1891 S. D. ) [Sec. 5457 Rev. Codes N. D. is the same, except that in place of the words "within the judicial circuit," the words "in the county or subdivis- ion" are used.] Sec. 273 C. C. P.; Levisee p. 81; Wait's Code 273, ; Harst Pr., Deer. Code, 640. Consult decisions under sec. 5071 Comp. Laws; sec. 6455 Rev. Codes N. D. [AUTHOR'S NOTE. There being in the act of 1891 S. D., no general repealing clause, and no reference in the special clause to any other statute than the act of 1889, and the Act of 1891, while in all other respects seem- ingly embracing the scope of the Compiled Laws as to referees and the prac- tice before them, yet containing no provision for objections to their appoint- ment, the author is inclined to the view that sec. 5074, and sec. 5075, Com- piled Laws, providing for such objections and the practice thereon, are still in force, and they will be so treated.] OBJECTIONS TO REFEREE. 5074 Comp. Laws; sec. 5458 Rev. Codes N. D. Either party may object to the appointment OF REFERENCES AND TRIALS BY REFEREES. 57 of any person as referee for the same cause for which chal- lenges for cause may be taken to a petit juror in the trial of a civil action. See. 274 C. C. P.; Levisee, p. 81; Harst. Pr., Deer. Code, 641. Consult sec. 5039, 5040 Comp. Laws; sec. 5427, 5428 Rev. Codes N. D. as to challenges to petit jurors. Consent Presumed When. An order of reference made under the statute as it existed prior to 1889, made upon due notice, the adverse party not appearing at the hearing or interposing any objections to the order, and no motion having been made to vacate or set it aside, several months elaps- ing between date of the order and hearing before referee, is presumed to have been made with consent of opposing party, and to be valid and binding. Jerauld Co. v. Williams et al, S. D , 63 N. W. 905. And where it is not stated in the abstract that there was no "agreement of the parties filed with the clerk or entered in the minutes," this court will presume such agreement was made and filed or entered, (following Kent v. Ins. Co., 2 S. D. 306, 50 N. W. 85.) Jerauld Co. v. Williams et al, supra. OBJECTIONS HOW HEARD. % 5075 Comp. Laws; sec. 5459 Rev. Codes N. D. The objections taken to the appointme'nt of any person as referee must be heard and disposed of by the court or judge thereof. Affidavits may be read and witnesses examined as to such objections. Sec. 275 C. C. P.; Levisee p. 81; Harst. Pr. Deer. Code 642. Consult preceding section. OATHS OF REFEREES. % 4, Chap. 100, Laws 1891 S. D. The referees before proceeding to hear the testimony must be sworn to well and truly try the issues, or to determine the ques- ' tions referred and to make a just and true report according to their best knowledge and understanding. SAME. % 5461 Rev. Codes N. D. The referees before pro- ceeding to hear any testimony must be sworn well and truly to hear and determine the facts referred to them and true findings render according to the evidence, and they have power to ad- minister oaths to all witnesses produced before them. (This is sec. 278 C. C. P; sec. 5078 Comp. Laws, as it stood before the act of 1891, S. D. ) Sec. 278 C. C. P; Levisee p. 81; Wait's Code I 421. Consult also sec. 5071, 5076 Comp. Laws, sec. 5, chap. 100, Laws 1891, S. D. (supra), sec. 5455, 5460 Rev. Codes N. D., and decisions thereunder. 58 CODE OF CIVIL PROCEDURE. TRIALNOTICEPOWERS OF REFEREE. 5, Chap. 100, Laws 1891, S. D. The trial by referee of an issue of fact, or of an issue of law must be brought upon at least eight days writ- ten notice, and conducted in like manner, and the papers to be furnished thereupon are the same, and are furnished in like manner, as where the trial is by the court without a jury. The referee exercises upon such a trial the same power as the court to administer oaths, to grant adjournments, to preserve order and punish the violation thereof. Upon the trial of an issue of fact the referee exercises also the same power as the court to allow amendments to the summons or to the pleadings; to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify. Upon the trial of an issue of law the ref- eree exercises the same power as the court to permit a party in fault to plead anew or amend; to direct the action to be divided into two or more actions; to award costs, and otherwise to dis- pose of any question arising upon the decision of the issue re- ferred to him. The powers conferred by this section are exer- cised in like manner, and upon like terms, as similar powers are exercised by the court upon a trial. SAME REPORT POWERS OF COURT APPEAL 5460, Rev. Codes, N. D. The trial by referee shall be conducted in the same manner as a trial by the court. Upon such trial the ref- eree shall have the same power to grant adjournments and al- low amendments to any pleading as the court would have and upon the same terms and with like effect. He shall also have the same power to preserve order and punish all violations thereof upon such trial and compel the attendance of witnesses before him and to punish them as for a contempt for non-atten- dance or refusal to be sworn or testify as is possessed by the court. He shall give to the parties or their attorneys at least eight days' notice of the time and place of trial. He must state the facts found and conclusions of law separately and report his findings together with all of the evidence taken by him and all exceptions taken on the hearing to the district court and the district court may review such report and on motion enter judg- OF REFERENCES AND TRIALS BY REFEREES. 59 merit thereon, or set aside, alter or modify the same and enter judgment upon the same so altered or modified, and may re- quire the referee to amend his report when necessary. The judgment so entered by the district court maybe appealed from to the supreme court in like manner as from judgments mother cases. (As am'd, sec. 3, chap. 112, Laws 1889, N. D., as am'd Rev. Com'rs.) FINDINGS EXCEPTIONS CASE -REVIEW. 5466 Rev. Codes N. D. In any trial by a referee either party may take excep- tions iu the same manner as on trials by the court and the ref- eree shall note in his minutes any exceptions so taken as they are taken. The prevailing party shall serve upon the other a copy of the referee's findings of fact and conclusions of law after the same shall have been filed with a notice of the time and place of such filing, and either party may except to any finding of fact or conclusion of law by a referee by filing writ- ten exceptions with the clerk at any time before the expiration of twenty days after service of such copy and notice. All such exceptions may be incorporated with the statement of the case which may be thereafter settled. When the referee's findings of fact or conclusions of law are set aside or modified by the court, no exceptions shall be necessary to enable a full review of such orders upon appeal. (Adopted through Rev. Com'rs.) SEVERAL REFEREES POWERS OF. 6, Chap. 100, Laws 1891, S. D. Where the reference is to more than one referee all must meet together and hear all the allegations and proofs of the parties; but a majority may appoint a time and place for the trial, decide any question which arises upon the trial, sign a report or settle a case. Either of them may administer an oath to a witness, and a majority of those present at a time and place appointed for the trial may adjourn the trial to a future day. REPORT FINDINGS CONCLUSIONS. 8, Chap. 100, Laws 1891, S. D. The report upon the trial of the whole issue must contain a statement of all the exceptions taken during the trial, the rulings of the referee thereon and a sufficient statement of 60 CODE OF CIVIL PROCEDURE. the facts or so much of the evidence as is material to fairly present the question raised by the exceptions. It must also state, separately, the findings of fact and conclusions of law upon the issues raised, which may be excepted to and reviewed in like manner as if made by the court, and such findings and conclusions shall have the same effect as though made by the court upon the trial of questions of fact. Consult sec. 5, chap. 100, Laws 1891 S. D., supra; sec. 5066, 5067 Comp. Laws, sec. 5450, 5451 Rev. Codes; sec. 5076 Comp. Laws, sec. 5460 Rev. Codes N. D. As to new trials, see sec. 5087 Comp. Laws, sec. 5471 Rev. Codes, N. D., et. seq. Omitted Findings When Error. Where the pleadings present sev- eral issues of fact, and the referee returns findings, omitting to make any upon or more of such issues, and the parties suffer the referee's report to be made the basis of judgment by the court, without any suggestion or ob- jection that all issues are not reported upon, and a judgment consistent with and supported by the findings returned, is entered, it will not be reversed on account of such neglected issues unless appellant shows that evidence was offered upon one or more of such issues, and that such evidence would have supported a finding which would countervail the findings actually made, and thus have required a different judgment. Merchants' Nat. Bank v. McKin- ney et al, 4 S. D. 226, 55 N. W. 929; Edinburg-American Land & Mort. Co. v. City of Mitchell, 1 S. D. 593, 48 N. W. 134; Himmelman v. Henry, 84 Cal. 104, 23 Pac. 1098; Winslow v. Gohransen, 88 Cal. 450, 26 Pac. 504; Dolliver v. Dolliver, 94 Cal. 642, 30 Pac. 4; Fincher.v. Malcolmson (Cal.), 30 Pac. 835. Immaterial Issue. A judgment of a trial court, when fully sustained by the findings of fact and conclusions of law, will not be disturbed because a referee fails to find on all the issues, when it appears that such issues were not material, and no findings of fact were presented by the party complain- ing and no request made for additional or more specific findings, or different conclusions of law. Adams & Westlake Co. v. Deyette et al, 5 S. D. 418, 59 N. W. 214, and cases there cited. Added Conclusions Findings Manda- tory. By sec. 3 chap. 112, Laws 1889, it is provided "that the court may re- view such report [of the referee,] and on motion enter judgment thereon, or set aside, or alter, or modify the same, and enter judgment upon the same so altered or modified, and may require the referees to amend their reports when necessary." Held, that under this provision the court might add con- clusions of law, when they were omitted or imper f ectly stated in the report, and enter judgment upon the modified findings, without re-referring the re- port to the referee for amendment. Held, further, that the provision in said section for reporting findings with all evidence and exceptions, is manda- OF REFERENCES AND TRIALS BY REFEREES. 61 tory. Held, further, that it appearing that all evidence was before the court when the report was confirmed and judgment entered, there was substantial compliance with the statute. Kent v. Dakota Fire & Marine Ins. Co., 2 S. D. 300, 50 N. W. 85; Supervisors v. Ehlers, 45 Wis. 281. Confirmation- Judgment Without. Upon an application for judgment upon a referee's re- port and findings, defendant opposed the application, but did not raise the point that an order confirming the report had not been made. The trial court upon such application did not direct entry of judgment, but resubmit- ted the case, and after taking additional evidence the referee made his final report, upon which plaintiff applied for judgment, defendant's counsel not appearing but duly waived notice of such final application, and at no time in the court below raised the point that the application for judgment was not preceded by an order confirming the report. Held, that defendant waived the irregularity, if such it was, and cannot raise the point for the first time in this court. Little v. Little (two cases), 2 N. D. 175, 49 N. W. 736. Whether, under existing statutes, in cases like this, it is proper practice to procure an order confirming referee's report before applying for judgment, not decided. Little v. Little, supra. Presumption Record. When the evidence upon which a referee bases his findings of fact is not preserved in a bill of exceptions, and the insufficiency of the evidence to sustain such find- ings is not assigned as error, it will be presumed on appeal that the findings accord with and are sustained by the evidence. Adams & Westlake Co. v. Deyette et al, 5 S. D. 418, 59 N. W. 214; Mf'gCo. v. Galloway, . . . .S. D , 58 N. W. 565; Pierce v. Manning, 1 S. D. 306, 51 N. W. 332; Hawkins v. Hub- bard, 2 S. D. 631, 51 N. W. 774; Burnap v. Bank, 96 N. Y. 125; Thomson v. Bank, 82 N. Y. 1; Conklin v. Himes, 16 Minn. 457 (Gil. 411); Foster v. Voigt- lander (Kan.), 13 Pac. 777. TIME FOR REPORT. 7, Chap. 100, Laws 1891, S. D. The referees must make and file with the clerk of the court their re- port within twenty days after the case is finally submitted. But the time may be extended by the consent of the parties or by order of the court or judge. (This provision is evidently intended as a substitute for sec. 5076 Comp. Laws, sec. 276 C. C. P.) Sec. 276 C. C. P.; Levisee p. 81; Harst Pr. Deer. Code 643. Consult sec. 5071 Comp. Laws, sec. 5455, 5460, Rev. Codes N. D., sec. 5, chap. 100, Laws 1891 S. D., (supra). JUDGMENT NOTICE OF REPORT. 9, Chap. 100, Laws 1891, S. D. If the report is accepted by the court, judgment may be entered thereon after the expiration of eight days after written notice of the filing of the report served by either party on the adverse party. 62 CODE OF CIVIL PROCEDURE. Consult sec. 5071 Com p. Laws, sec. 5455, 5460, Rev. Codes N. D.; sec. 5, 8, chap. 100, Laws 1891 S. D., supra. Without Confirmation, When. Judgment may be entered upon the re- port of a referee, though no order confirming the report had been previously made where it is not objected that such order has not been made, and notice of final application for judgment has been waived by the opposing party. Lit- tle v. Little, 2 N. D. 175, 49 N. W. 736. Whether, under existing statutes, in cases like this, it is proper practice to procure an order confirming ref- eree's report before applying for judgment, not decided. Id. Evidence Money Judgment. In an action for an accounting, the case being referred to a I'eferee. involving a transaction in which it was claimed that a sale had been made, the opposing party claiming the property in question was deliv- ered in trust, the evidence was examined, and held to support the findings, and to be inconsistent with the cause of action stated in the complaint, and that a money judgment could not be supported thereunder. Anderson v. Chilson et al, S. D , 65 N. W. 435; Dal ton v. Vanderveer (Sup.), 29 N. Y. Supp. 342; Parrish v. R. R. Co. (Fla.), 9 South. 696; Lewark v. Carter, (Ind. Sup.), 20 N. E. 119; Bradley v. Aldrich, 40 N. Y. 504; Homer v. Ho- mer, 107 Mass. 82; Park v. Lide, 90 Ala. 246, 7 South. 805; 18 Am. & Eng. Ency. Law, p. 515. Incompetent Evidence Waiver. Defendant having objected to referee making any rulings whatever, and having taken no ex- ception to the referee's action in receiving evidence over his objection, he cannot raise the question whether such evidence should have been received, the objection not having been renewed before the court on application for judgment, and no exceptions having been taken on such application. Ills- tad v. Anderson, 2 N. D. 167, 49 N. W. 659; Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000. Irregular Entry Waiver. See Little v. Little, 2 N. D. 175, 49 N. W. 736, holding that the irregularity, if any, in entering judg- ment upon referee's report without first confirming the report, was waived by defendant. Different Judgment. In Bern et al v. Bern et al, 4 S. D. 188, 55 N. W. 1102, the findings of fact of the referee were held to be supported by the evidence, but the court below was directed to enter a different judg- ment thereon. NEW TRIAL APPEAL RE-REFERENCE. 10, Chap. 100 Laws 1891, S. D. A iiew trial may be had or an appeal taken to the supreme court in like manner as in other cases, and the report of the referee may be incorporated in the bill of exceptions. In case a new trial is granted, or if the report is not accepted, the parties may again refer the cause, or the same shall stand open for trial as though it had not been referred. And the party finally recovering shall be entitled to the costs of the former reference. EXCEPTIONS. 63 See sec. 460, Rev. Codes, N. D.; sec. 5088, 5089, 5090, 5091, Comp. Laws; sec. 5472 to 5475, Rev. Codes, N. D. STENOGRAPHER WHO PAYS. 11, Chap. 100, Laws 1891, S. D. The referees may appoint a stenographer whose qualifi- cations and duties shall be the same as those required by law in case of the short-hand reporter of the court. The fees and necessary expense of the referees and the compensation of the stenographer shall be fixed by the court, after the filing of the report, and shall be audited and paid by the county or subdi- vision wherein the court is held which made the reference. Provided, That the fees and charges of the stenographer for making a transcript of the evidence in such cases shall not be a charge against or paid by the county, but when ordered by the referees shall be paid by the parties to the action. (As am'd. sec. 1, chap. 88, Laws 1893, S. D. ) See, as to stenographers, sec. 482, Comp. Laws, as am'd, chap. 67, Laws 1893, S. D. CHAPTER VII. ART. 8, CHAP. 12, CODE OF CIVIL PROCEDURE. EXCEPTIONS. EXCEPTION DEFINED. 5079 Comp. Laws; sec. 5462 Rev. Codes N. D. An exception is an objection upon a matter of law to a decision made, either before or after judgment by a court, or judge, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in section 5080, (sec. 1, chap. 21, Laws 1887.) Harst. Pr. Deer. Code \ 646. Consult sees. 5080, 5081, Comp. Laws; sec. 5463, 5464, Rev. Codes N. D.; 5237, Comp. Laws. When Taken Statute. Sec. 5079 Comp. Laws, defining exceptions, and providing that they "must be taken at the time the decision is made," does not repeal or qualify section 5049 Compiled Laws providing that ex- ceptions to instructions may be taken at any time before entry of final judg- ment. Uhe v. Chicago, M. & S. P. Ry. Co. 3 S. D., 563, 57 N. W. Rep. 64 CODE OF CIVIL PROCEDURE. 484; England v. Vandermark, (111. Sup.), 35 N. 'E. 465. In the South Da- kota ease, supra, the following cases are distinguished and explained, viz: Cheatham v. Wilber, 1 Dak. 335, 46 N. W. 580; Boss v. R. R. Co. 2 N. Dak. 128, 49 N. W. Rep. 658; St. Croix Lum. Co. v. Penniugton, 2 Dak. 467, 11 N. W. 4!i~. Too General. An exception "to all the charges and to the special request asked by defendant for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions," is too general and does not entitle plaintiff to have any question regarding the instructions considered on a motion for a new trial. Alt v. Chi. & N. W. Ry. Co. 5 S. D. 20, 57 N. W. Rep. 1126; Hayne New Tr. & App. sec. 128; 2 Thomp. Trials, 2h>98; Elliott, App. Proc. 791; Smith v. Coleman, (Wis.), 46 N. W. 664; Carroll v. Williston, (Minn.), Id. 352. When Taken Presumption. The words "exception taken," appear- ing in the bill of exceptions following a rule by the judge, will be presumed to have been taken at the time the ruling was -made, and by the party against whom it was made. An objection to the form of an exception, made for the first time in this court, comes too late. Hall v. Harris, (on rehear- ing). 2 So. Dak. 331, 50 N. W. Rep. 98; Simpson v. Dall, 3 Wall. 469. Be- fore Verdict. Exceptions to instructions must be taken when they are given, or at least before verdict, unless further time has been allowed. CheatL.am v. Wilber et al, 1 Dak. 335, 46 N. W. 580. But see, Uhe v. Chi. M. & St. P. Ry. Co., supra. See also, Everett v. Buchanan, 2 Dak. 249, 6 N. W. Rep. 439. In the matter of opening Gold street, Deadwood, D. T., respondent v. Newton, 2 Dak. 149. 3 N. W. Rep. 329. Record. Fora case in which (more fully explained under section 5080) it was held that no exceptions appeared, and no record which was the basis for specification of errors on appeal, see Wood v. Nissen, 2 N. D. 26, 49 N. W. Rep. 103. See also DeLendrecie v. Peck, 1 N. D. 422, 48 N. W. Rep. 342. WHAT DEEMED EXCEPTED TO. 5080 Comp. Laws; 5463, Rev. Codes N. D. The verdict of the jury, the final decision in an action or proceeding, an interlocu- tory order or decision finally determining the rights of the par- ties, or some of them, an order granting or refusing a new trial, an order sustaining or overruling a demurrer, allowing or re- fusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance, an order made upon ex parte application, and an order or decision made in the absence of a party, are deemed to have been excepted to, (sec. 2, chap. 21, Laws 1887.) [Sec. 5463 Rev. Codes N. D., is the same as the above, except that the fol- lowing language is added at the end thereof: "and the same may be re- EXCEPTIONS. 65 viewed both as to questions of law and the sufficiency of the evidence upon motion for a new trial as fully as if exception thereto had been expressly taken." (Am'd. Rev. Com'rs.) Harst. Pr. Deer. Code, sec. 647. 1. Deemed Excepted To. In Benedict v. Johnson, N. D. , 57 N. W. Rep. 66, it was held, that while the record in that case does not show an exception taken to the ruling of the court denying the motion to dismiss, it does not affirmatively appear that defendant's counsel was not present when the order was made; and that under section 5080 de- fendant is deemed to have excepted to the decision. Section Construed. This section was enacted for the benefit of parties who on account of inad- vertance, or absence when the decision or order was made or rendered, failed to take exceptions, and parties not coming within these provisions must save their exceptions as before this section was enacted. Bostwick et al v. Knight et al, 5 Dak. 305, 40 N. W. 344; Lamet v. Miller, 11 Pac. 745; Purdum v. Taylor, 9 Pac. 607; Guthrie v. Phelan, 6 Pac. 107. 2. Must Except Review. The action of the trial court in directing a verdict, and in refusing to allow plaintiff to dismiss her action, cannot be reviewed on appeal without an exception. Sees. 5080, 5237 Comp. Laws, held, not to permit such a review without an exception. DeLandrecie v. v. Peck, 1 No. Dak. 422, 48 N. W. 342; Hayne New Tr. & App. sec. 119; Kirch v. Davis, 55 Wis. 287, 11 N. W. Rep. 689. The action of the trial court in directing a verdict, and refusing to allow plaintiff to dismiss her action, cannot be reviewed on appeal without an exception. DeLendrecie v. Peck, 1 N. D. 422, 48 N. W. Rep. 342. In this case the court say: "The ruling of the court in directing a verdict cannot be construed as either an order or a decision, within the meaning of that section (sec. 5080.) Such ruling, if erroneous, constitutes an error of law occurring on the trial." See also Hayne New Tr. and App. sec. 119. and cases there cited. The court in the Peck case further say: "Only the verdict of a jury, certain orders, and certain decisions are deemed excepted to." And in referring to the contention that an exception should be deemed to have been taken in that case, the court remark: "The result of this doctrine would be that we would have a bill of exceptions without the necessity of any exceptions in it, and the phrase, 'errors of law occurring at the trial,' would cease to have any distinctive significance." See also Kirch v. Davies, 55 Wis. 287, 11 N. W. 689. When Unnecessary. If the ruling was an order sustaining a demurrer, no exception is necessary. Ross v. Waite et al, 2 S. D. 638, 51 N. W. 866. In Smith et al v. Commercial Nat. Bank et al; S. D , 64 N. W. Rep. -529, it was held, that upon appeal from a judg- ment, upon the judgment roll alone, the judgment and the findings of fact are reviewable, without a bill of exceptions. See also Mortgage Co. v. Bradley, 4 S. D. 158, 55 N. W. 1108. 5 TP 66 CODE OF CIVIL, PROCEDURE. HOW STATED. 5081 Comp. Laws. No particular form of exception is required, but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evi- dence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient; but the speci- fication of such particulars as provided in section 5090 shall be sufficient. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the reporter's notes of the evi- dence shall be stated. Documents on file in the action or pro- ceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made. STATEMENT OF CASE DEFINED. 5464 Rev. Codes N. D. A statement of the evidence or a part thereof settled by the court for the purpose of reviewing either errors of law or the sufficiency of the evidence or both is designated in this code a statement of the case. (Adopted through Rev. Com'rs. ) Sec. 279 C. C. P.; Levisee p. 81; Wait's Code 264; Harst. Pr. Deer. Codeg 648. Consult cases cited under sections 5079, 5080, 5083, 5088, subdivision 6 and 7, 5090, sec. 5462, 5463, 5467, 5472, 5474, Rev. Codes N. D. 1. Exceptions State of Record. Under this section, relating to the insufficiency of the evidence to sustain the verdict or decision, the evidence cannot be examined on a mere objection that the evidence is insufficient to justify the decision. Henry v. Dean, 6 Dak., 78, 50 N. W. 487. Judg- ment Boll. An appeal from the judgment brings before the Supreme Court the judgment roll proper for review, and a case which has not been settled by the trial judge and made part of the judgment roll cannot be reviewed on appeal. Fargo et al v. Palmer et al, 4 Dak. 232, 29 N. W. 463. Agreement of Counsel. Evidence not properly preserved cannot, nearly two years after the trial, be made part of the record on appeal, by agreement of counsel, without the concurrence of the trial judge. Gress v. Evans etal, 1 Dak. 371, 46 N. 'W. 1132. See, as to sufficiency of bills of exception, Tolman v. New Mexico & D. M. Co., 4 Dak. 4, 22 N. W. 505; St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497; French v. Lancaster, 2 Dak. 276, 9 N. W. 716. Stenographer's Minutes. The minutes of the sten- ographer upon the trial are not official records, and in order to be made part of the record must be incorporated in a case or bill of exceptions. Golden Terra Min. Co. v. Smith et al, 2 Dak. 377, 11 N. W. 98. Stenograph- er's and referee's notes of evidence cannot take the place of a bill of excep- EXCEPTIONS. 67 tions or statement, even though stipulated by the party. Merchant's Nat. Bank v. McKinney et al, 4 S. D. 226, 60 N. W. 162. Assignment of Error. An assignment alleging error in the ruling of the trial court is un- available on appeal, where the record does not show that such ruling was made, or the facts upon which it is assumed in argument to have been made. Johnson v. Gilmore, . . . S. D , 60 N. W. 1070. Error Must Appear. Where no exceptions are contained in the judgment roll by case, bill, or otherwise, and no error appears on the record, the judgment will be affirmed. Ray- mond v. Spicer, 6 Dak. 45, 50 N. W. 399. Findings. Error in rendering judgment on findings that do not dispose of all material issues, being error of record ascertainable from inspection, may be first urged in the Supreme Court, without a bill of exceptions. Dole v. Burleigh, 1 Dak. 218, 46 N. W. 692. The evidence will not be considered on appeal unless embodied in a bill of exceptions or statement of the case; which rule applies to the review of an order designated for review in this court. Id. Order Oral Evidence. When an order is made in the court below, wholly or in part upon oral evi- dence, all such evidence must be brought to this court on an appeal from the order, by bill or statement. Foley-Wadsworth Implement Co. v. Porteous, : . . . S. D , 63 N. W. 155; Bank v. McKinney, 4 S. D. 226, 60 N. W. 162. 2. Specifications. In order to take advantage of the insufficiency of the evidence to support the verdict, the objection must specify the particu- lar in which the evidence is alleged to be insufficient, designating the statu- tory grounds, or record, on which the motion will be made. Gaines v. White, 2 S. D. 410, 47 N. W. 524; Holcomb et al v. Keliher, 3 S. D. 497, 54 N. W. 535. The objection must be stated, with so much of the evidence as is nec- essary to explain it, and no more. Holcomb v. Keliher, supra. An appeal, alleging generally for error "that the evidence was insufficient to justify the decision," will not be considered. Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511. The objection should have been so specific in the trial court that the appellate court can see that the objection in question was passed upon there or it will not be considered on appeal. Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426; 3 Wait's Pr. 206, 230; Tooley v. Bacon, 70 N. Y. 37; Levin v. Russel, 42 N. Y. 251; Williams v. Sergeant, 4 N. Y. 481; Belk v. Meagher, 104 U. S. 281; Braly v. Reese, 51 Cal. 447; Waterville M'f'g Co. v. Brown, 19 How. Pr. 27; Knapp v. Schneider, 24Wis. 70; City of Ripon v. Bettel, 30 Wis. 614; Columbia Del. Bridge Co. v. Geisee, 38 N. J. Law 39; Burton v. Driggs, 20 Wall. 125; Merril v. Seaman, 6 N. Y. 168; Coon v. R. R. Co., 5 N. Y. 492 (531). Insufficient for Review. A bill of exceptions was settled below, and is embraced in the record here; but con- tains no specifications of error occurring at the trial, nor any exception pointing out wherein any finding of fact is not justified by the evidence; no errors are assigned in appellant's brief; held, under the statutes and rules of court, and upon the authority of Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49, that this court will not examine the record to review errors below. 68 CODE OF CIVIL PROCEDURE. First Nat. Bank of Devil's Lake v. Merchant's Nat. Bank of Devil's Lake et al, N. D , 64 N. W. 941. Negligence. Specifications in a motion for a new trial were, "that the verdict is contrary to the law and the f;u-t>, in that the negligence of ihe defendant was the proximate cause of the in- jury to the plaintiff, and that there is no evidence in the case that shows that the plaintiff was guilty of any negligence whatever." Held, to be a good specification of error under the statute. Alt v. Chi. & N. W. Ry. Co., 5 S. D. 20, 57 N. W. 1126. Too General. But an exception to the judge's charge, as follows: "Plaintiff excepts to all of the charges, and to the special re- quests asked by defendant, for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions," is too general to be available on appeal; Id; Hayne New Tr. and App. sec. 128; 2 Thomp. Tr. 2398; Elliott App. Proc. 791; Smith v. Coleman, (Wis.), 46 N. W. 664. Carroll v. Williston (Minn.), Id. 352. An exception "to that portion of the court's charge commencing with the words (specify* ing the words), and from there to the end," is not an available exception, where the portion of the charge so defined contains two or more distinct and independent propositions. Calkins v. Seabury-Calkins Consol. Min. Co., 5 S. D. 299, 58 N. W. 797; Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723; Bouck v. Enos, 61 Wis. 660, 21 N. W. 825. An exception as follows: "We except to each of the instructions given by the court to the jury, respectively," is not such an exception as entitles appellant to a review of the general in- structions given by the court to the jury. Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723; Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667; Galloway v. Mc- Lean, 2 Dak. 372, 9 N. W. 98. Object Of. The object of specifications in the notice of intention, bill of exceptions, or statement, is to inform the op- posing party in what respect the appealing party deems the evidence insuffi- cient, that the opposing party may see that all the evidence he deems neces- sary or material upon the point suggested may be incorporated into the bill of exceptions, and that counsel may be properly prepared to discuss the questions presented, and the court properly advised of the questions to be considered and decided. When the specifications are sufficient to accom- plish these purposes they are sufficient. Randall et al v. Burk Tp. of Min- nehaha county et al, 4 S. D. 337, 57 N. W. 4. Bill of, Defined. A bill of exceptions is a written statement of the exceptions to the decisions or in- structions of the trial judge upon the trial, with so much of the facts as is necessary to explain the writing, and must be settled, allowed, and signed by the judge in the manner, upon the notice, and within the time pointed out in the statute. Its object is to bring up for review matters occurring at the trial not otherwise appearing of record. St. Croix Lum. Co. v. Penning- ton, 2 Dak. 467, 11 N. W. 497. The objection should point out some definite or specific defect. Id. A pretended bill of exceptions not appearing to have been properly settled or authenticated, will be stricken from the record. In the matter of Gold Street v. Newton, 2 Dak. 149, 3 N. W. 329. Futile Objec- EXCEPTIONS. 69 tion. Under sec. 5081, Comp. Laws, upon objection to the sufficiency of the evi- dence , the evidence cannot be examined on a mere objecti on that the evidence is insufficient to justify the decision. Henry v. Dean, 6 Dak. 78, 50 N. W. 487. The insufficiency of the evidence cannot be assailed in this court when in neither the notice of intention to move for a new trial nor the bill of excep- tions are the particulars specified wherein the evidence is alleged to be in- sufficient. Pickert v. Rugg et al, 1 N. D. 230, 46 N. W. 446. Exception*, to Findings. Where the bill of exceptions contained no specifications of errors of law, such errors, if they exist, will not be considered in this court; which rule applies to cases of trial to the court, where no motion foV a new trial is made below. Where exceptions to findings of fact do not specify wherein such findings are not justified by the evidence, this court will not explore the record to ascertain the fact. Hostetter v. Brooks Elevator Co., N. D , 61 N. W. 49. The court in this decision construe Session Laws of N. D. 1891, chap. 121. Question of Law. Where insufficiency of the evidence to justify the verdict is assigned as error, though no sufficient specification of the particulars, etc., is made, and where the trial court dis- posed of the case as one of law, the question here is not whether the verdict is sustainable as a conclusion of fact, but whether the court was right in treating the case as presenting no question of fact. Sioux Banking Co. v. Kendall et al, . . . . S. D , 62 N. W. 377; Mercantile Co. v. Faris, .... S. D , 60 N. W. 403. SETTLED THEN OR AFTERWARDS. 5082 Comp. Laws; 5465, Rev. Codes N. D. A bill containing the exceptions to any ruling may be presented to the judge at the time the ruling is made, or the exception may be entered on the judge's min- utes, and afterwards settled. The bill must be conformable to the truth, or be at the time corrected until it be so, and signed by the judge and filed with the clerk. [Sec. 5465 Rev. Codes N. D., is the same, except that it substitutes for the term "A bill containing the exceptions," the term "A statement con- taining exceptions;" and for tHe term "The bill must be conformable," the term "Such statement must," etc., is used. (Am'd. Rev. Com'rs.] Sec. 280, C. C. P.; Levisee p. 83; Wait's Code 264; Harst Pr. Deer. Code 649. Consult decisions under section 5079, 5081, 5083, 5084, 5086, 5090, Comp. Laws; sec. 5462, 5464, 5467, 5468, 5470, 5074, Rev. Codes N. D. 1. The Bill The Time. The exceptions should be taken at the time of the ruling or instruction complained of, or afterwards upon the judge's minutes. St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497. To review an affidavit for a continuance it must be made part of the record by being incorporated in a bill of exceptions. Everett v. Buchanan, 2 Dak. 70 CODE OF CIVIL PROCEDURE. 249, 6 N. W. 489. A recital in a record, under the head of "minutes of the court,'' showing disposition of a motion for continuance, is not a bill of ex- ceptions. Id.; Gordan v. Clark, 22 Cal. 534; Stone v. Stone, 17 Cal. 513; People v. Houseshell, 10 Cal. 83; Gates v. Buckingham, 4 Cal. 268; Ritter v. Mason, 11 Cal. 214; Moore v. Temple, 11 Cal. 360. Filing Signing. The filing of the bill of exceptions may precede the signature of the judge. Marble v. Fay, 49 Cal. 585. See, however, Keller v. Lewis, 56 Cal. 466, (469), construing section 650 of the California Code (and which is the same as section 5083 Comp. Laws in this respect), construing the last sentence of that section to require that the bill shall be first certified by the judge, be- fore filing. 2. Its Verity Judge's Duty. After a trial judge has decided and announced what shall be embodied in a bill of exceptions, it is not his duty to engross the bill in accordance with his decision, and he cannot be said to have neglected to settle such bill unless he neglects to sign the bill after it is presented to him for signature, engrossed as settled by him. Edwards & McCullouch Lum. Co. v. Baker, 2 N. D 289, 54 N. W. 1026; Haynes New Tr. & App. sec. 156. See dissenting opinion of Chief Justice Shannon, in Parli- man v. Young et al, 2 Dak. 175, 4 N. W. 711, relative to settlement and sign- ing of bill of exceptions, and to the effect that a case or bill of exceptions settled by the court cannot be gainsaid. ON TRIAL MODE OF SETTLEMENT AMENDMENTS. 5083, Comp. Laws. When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment, if the action were tried with a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which, the action is pending, or a judge thereof, may allqw, prepare the draft of a bill and serve the same, or a copy thereof, upon the adverse party. Such draft must con- tain all the exceptions taken, upon which the party relies. Within twenty days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amend- ments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk, he must immediately deliver them to the judge, if he be in the county; if he be absent from the county EXCEPTIONS. ?1 and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such party, immed iately forward them by mail or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediate- ly after his return to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. At the time designated the judge must set- tle the bill, if no amendments are served, or if served are al- lowed, the proposed bill may be presented with the amend- ments, if any, to the judge for settlement, without notice to the adverse party. ]t is the duty of the judge, in settling the bill, to strike out of it all redundant and useless matter, so that the exceptions may be presented as briefly as possible. When settled the bill must be signed by the judge, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk. (Sec. 4, chap^ 21, Laws 1887, Dak.) SAME SETTLEMENT OF STATEMENT. 5467 Rev. Codes N. D. When a party desires to have a statement of the case set- tled, he may within thirty days after receiving notice of the entry of judgment or such further time as the court may allow prepare the draft of a statement and serve the same upon the adverse party. Such draft must contain all the exceptions upon which the party relies, but no particular form of excep- tion is required. The objection must be stated with so much of the evidence or other matter as is necessary to explain it and no more. Only the substance of the reporter's notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied or the substance thereof stated. There shall be incorporated in every such statement a specifi- cation of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision and of the errors of law upon which the party settling the same intends to rely. If no specification is made the statement shall be dis- regarded on motion for a new trial and on appeal. Within twenty days after the service of the draft of a statement the adverse party may propose amendments to the same and serve 7- CODE OF CIVIL PROCEDURE. such amendments upon the other party. The proposed state- ment and amendment must within twenty days thereafter be presented by the party seeking the settlement thereof to the judge who tried or heard the case upon five days' notice to the adverse party. At the time designated the judge must settle the statement. If no amendments are served, or if served, are allowed, the proposed statement may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party. If the judge is absent from the district at the time when the proposed statement should be presented to him for settlement, the time of such absence shall not be deemed any portion of the time herein limited for the settle- ment thereof. It is the duty of the judge in settling the state- ment to strikeout of it all redundant and useless matter and to make the statement truly represent the case, notwithstanding the assent of the parties to such matter. When settled the statement must be signed by the judge with his certificate to the effect that the same is allowed and shall then be filed with the clerk. (Am'd. Rev. Com'rs. ) As to exceptions before a referee, in N. D., see sec. 5466, Rev. Codes. N. D. in chap. VI. Har&t. Pr. Deer. Code, sec. 650; Wait's Code, sec. 268. Consult decisions under sections 5081, 5085, 5086, Comp. Laws; sections 5464, 5469, 5470, Rev. Codes N. D. 1. The Time Extensions, Etc. In Miller v. Way et al., 3 S. D. 627, 54 N. W. 814, it was held, that where an order extending the time within which a bill of exceptions might be settled was granted upon condi- tions, and such conditions had been complied with, the party in whose favor the order is made thereby acquires a right of which the court cannot de- prive him, either by a revocation of the order imposing the conditions, or inquiring into matters affecting the merits of the order previous to its being , granted. The opposing party, having accepted the conditions, is bound to abide by the results. Id.; Reiver v. Boos (Pa. Sup.), 1 Atl. 422; Van Fliet v. Conrad, 95 Pa. St. 495; Webster-Glover L. & M. Co. v. St. Croix Co., 71 Wis. 317, 36 N. W. 864; Carll v. Oakley, 97 N. Y. 633. Waiver. All objections relative to presentment to the judge are waived where the delay was the result of accommodation between the attorneys and the re- spective parties. Claffey v. Head (Cal.), 10 Pac. C. L. J. 777. Revocation of Certificate. A judge may revoke his certificate to a settled statement on appeal, during the term at which the judgment was rendered, but not after- wards. Branger v. Chevalier, 9 Cal. 172. EXCEPTIONS. 73 Exceptions Before and After Judgment. It was held in Tregambo v. Comanche M. & N. Co., 57 Cal. 501, that under this section bills of excep- tions taken before as well as after judgment may be settled. See also to the same effect Pfister v. Wade, 59 Cal. 273. But compare Sacremento v. C. P. R. R., 61 Cal. 250. If the bill of exceptions is not presented to and settled by the judge it will not be noticed on appeal. Warner v. Holman, 24 Cal. 229. Certificate as Evidence. If respondent did not file amendments, or the judge correct the statement, the certificate of that fact by the judge is sufficient. Redmond v. Gulnac, 5 Cal. 148. The judge's certificate appended to the record certified only that such record contained all testimony "taken" at the trial. Held, insufficient to bring the case within chapter 82, Laws 1893 N. D., which requires that all evidence "offered" in such cases "shall be taken down in writing," and that "all evidence taken as provided by this section shall be certified by the judge." First Nat. Bank of Devil's Lake v. Merchants' Nat Bank of Devil's Lake et al., N. D ,64 N. W. 941, As the statute requires specification of the particular grounds upon which the moving party will rely, in a bill of exceptions or statement, it is not sufficient that specifications of errors of law, or particulars in which the evidence is insufficient, be contained in the notice of intention, or elsewhere, except when the motion for new trial is made upon the minutes of the court. Chandler v. Kennedy, . . . . S. D , 65 N. W. 439. Order Ex Parte. See, as to ex parte orders extending the time for settlement of bill of exceptions, and settling the bill without an order extending the time, Johnson v. Nor. Pac, R. Co., 1 N. D. 354, 48 N. W. 227, cited under sec. 5093. Neglect of Judge. The trial judge cannot be said to have neglected to settle a bill of exceptions, unless it has first been engrossed as settled by him, and then presented. Edwards & McCullough Lum. Co. v. Baker, 2 N. D. 289, 54 N. W. 1026. Consult also Goose River Bank v. Gilmore et al., N. D , 54 N. W. 1032. Agreed Statement. An agreed statement of facts, upon which an ordinary action at law is submitted, is mere evidence, and must be brought into the record by bill of exceptions or statement. Sweet et al. v. Myers et al 3 S. D. 324, 53 N. W. 187. See also St. Croix Lum. Co. v. Pen- nirigton, 2 Dak. 472, 11 N. W. 497; Raymond v. Spicer, 6 Dak. 45, 50 N. W. 399; Leonard v. Warriner, 20 Wis. 41. Stipulation. The attorneys for the parties cannot stipulate what should be considered a bill of exceptions or statement, and thus dispense with the settlement of the bill and the signing thereof by the judge. Raymond v. Spicer and Leonard v. Warriner, supra; Coonrod v. Anderson (Ark), 18 S. W. 373; Ins. Co.Jv. Harris, 108 Ind. 392; 9 N. E. 299; Abrahams v. Sheean, 27 Minn. 401, 7 N. W. 822; Ins. Co. v. De- Graff, 12 Mich. 10; Haynes v. City of Cape May (N. J. Err. & App.) 19 Atl. 176; Howard v. Ross (Wash.), 28 Pac. 526. The agreement of the attorneys for the parties is not sufficient, but the bill must be settled by the judge. Gee v. Terris, 55 Cal. 381. 74 CODE OF CIVIL PROCEDURE 2. Two Methods Clerk Jurisdiction. Under this section (5083 C. L.) a party desiring to have a bill of exceptions settled may pursue one of two methods: First, after the draft of the bill and amendments if any, are prepared and served, the proposed bill and amendments may be presented by the party seeking the settlement, to the judge upon five days' notice to the adverse party; or, secondly, the party seeking the settlement may deliver the proposed bill and amendments to the clerk, for the judge. Pollock v. Aikens, Cir. Judge, 4 S. D. 374, 57 N. W. 1. When a draft of a proposed bill, and amendments, if any, has been filed with the clerk, this shows that the party taking these steps intended that the bill and amendments should be presented to the judge through the clerk's office. When a clerk has re- ceived and filed such papers in his office they are in his custody, and are pa- pers belonging to the case. In the latter case it is the clerk's duty to pre- sent the bill and amendments to the judge if he be within the county; if not, upon written notice of the party, it is his duty to forward them to the judge; otherwise the clerk must deliver them to the judge immediately upon his return. Id. After a paper has been properly received and filed by the clerk and has been taken from the files with his consent by an attorney of the court, and a receipt given for the same by such attorney, they are in con- templation of law in possession of the clerk while absent from his office. The clerk loses no actual control of them at any time. Id. A bill of excep- tions and umendments having been delivered to the clerk for the judge, the jurisdiction to settle the same continues until it is settled or they are with- drawn by consent of parties and the clerk's filing endorsement thereon is cancelled. The clerk cannot, by a failure to present the bill and amend- ments to the judge, nor the judge's delay or failure to settle the same, de- prive a party of a legal right to have the bill settled. Id.; Kellam, J., dis- senting. EXCEPTIONS AFTER JUDGMENT. 5084, Comp. Laws, 5468, Rev. Codes, N. D. Exceptions to any decision made after judgment, may be presented to the judge at the time of such decision, and may be settled or noted as provided in section 5082, and a bill thereof may be presented and settled after- wards, as provided in section 5083, and within like periods after entry of the order, upon appeal from which such decision is re- viewable. [Sec. 5468, Rev. Codes N. D., is the same, except that where reference is made to sec. 5082, Comp. Laws, it refers to sec. 5465, Rev. Codes, and where this section refers to sec. 5083, Comp. Laws, the N. D. section refers to sec. 5467, Rev. Codes.] Sec. 282 C. C. P.; Levisee p. 83; Wait's Code 268; Harst Pr. Deer Cod*e, 651. EXCEPTIONS. Consult sees. 5082, 5083, 5093, Comp. Laws; sec. 5565, 5477, Rev. Codes N. D., and cases cited under those sections. When Taken and. Signed. The exceptions should be taken at the time of the ruling or instruction complained of, and must be settled, allowed and signed by the judge in the manner, upon the notice, and within the time pointed out by the statute. St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497; Muller v. Ehlers, 1 Otto 250; Bryan v. Maume, 28 Cal. 241; Kavanaugh v. Maus, 28 Cal. 263. See, however, as to instructions, sec. 5049 and cases there cited. After judgment is entered, a bill embracing excep- tions may be settled, under sec. 5083 and 5084; no legal reason appears why a bill or statement was not settled in this case after the motion for a new trial was denied. Goose River Bank v. Gilmore et al, N. D. , 54 N. W. 1032. Consult Wood v. Nissen, 2ND. 26, 49 N. W. 103. APPLICATION TO SUPREME COURT. 5085 Comp. Laws; 5469 Rev. Codes N. D. If the judge in any case refuse to allow an exception in accordance with the facts, the party de- siring the bill settled may apply by petition to the supreme court to prove the same. The application may be made in the mode and manner, and under such regulations, as that court may prescribe, and the bill, when proven, must be certified by a justice thereof as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause. [Sec. 5469 Rev. Codes N. D., is the same, except that the word "state- ment" is substituted in place of the word "bill," and the term "in the mode and manner" is changed to read "in the manner." (Am'd. Rev. Com'rs.)] Sec. 283 C. C. P. Levisee p. 83 Harst Pr. Deer. Code I 652. Must Resort to Trial Judge. Where there is any remedy for refusal of a trial judge to sign a fair bill of exceptions, it must be resorted to before the case is passed upon by the appellate court; and a fair bill of exceptions should be first settled, before presenting the case to the Supreme Court upon the merits. Bellows v. Tod et al (la. ), 3 N. W 102. Presumption of Correctness. In an application to this court under this section, to settle a bill of exceptions, on the ground that the trial judge refuses to settle the same according to the facts, every presumption is in favor of the correctness of the bill as settled by the trial judge, and it will stand unless its incor- rectness is shown. Bill of exceptions amended. Baird et al v. Gleckler, 3 S. D. 300, 52 N. W. 1097. Record Destroyed. Consult Golden Terra Min. Co. v. Smith et al, 2 Dak. 374, 11 N. W. 98, where it was held, that the over- ruling of a motion for a new trial, made upon the ground of the destruction 76 CODE OF CIVIL PROCEDURE. of the record and evidence after the submission of the case and before the decision of the trial court, no bill of exceptions having been settled, was not error under the circumstances of that case. EX-JUDGE MAY SETTLE STATEMENT. 5086 Comp. Laws; 5470, Rev. Codes N. D. A judge may settle and sign a a bill of exceptions after, as well as before he ceases to be such judge. If such judge, before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the state, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the supreme court may by its order or rules direct. Judges of the district court and the supreme court shall respectively possess the same power in settling and certifying statements as is by this sec- tion conferred upon them in settling and certifying bills of ex- ceptions. (Sec. 5, chap. 21, Laws 1887, Dak.) [Sec. 5470, Rev. Codes N. D., is the same, except that it employs the term "statement of the case" instead of "bill of exceptions;" and the last sentence in section 5086, Comp. Laws, is omitted from the N. D. section. (Am'd. Rev. Com'rs.)] Object of Section. This section was only intended to supply a man- ner in which a bill might be settled in a case in which otherwise none could be settled. It does not authorize this court to first examine into and de- termine each application, and as to whether the applicant was entitled to have a bill settled; but when an exigency named in the section is shown to exist, it is the duty of this court to direct some manner in which a bill may be settled; and this will generally be done by authorizing some other trial judffe to act, and his decision will be subject to review in tbe same manner as if such action were taken by the trial judge. Severson v. Mil. Mechan- ic's Mutual Ins. Co., 3 S. D. 412, 53 N. W. 860. In the case last cited the question whether the defendant, after the lapse of three years from the en- try of judgment, may have a statement settled, and the question of dili- gence by the moving party, were referred to a trial judge for his action. Jurisdiction. When the original papers are sent to the Supreme Court on appeal, and the case has been argued and submitted in that court upon such record, the trial court has thereafter no authority or power to amend or correct such record, unless, upon application to the Supreme Court, the record is remanded for such purposes. Moore v. Booker et al, N. D 62 N. W. 607 (611, on rehearing); Chesley v. Boom Co., 39 Minn. 83, 38 N. W. 769; Spensley v. Irs. Co., 62 Wis. 443, 22 N. W. 740. The court in the North Dakota case supra, referring to the lack of harmony among the de- OP NEW TRIALS. 77 cisions upon the question of the power of the trial court to make orders or amend the record in a case while pending on appeal, cite the following cases to the point that the trial court has no such power, viz: Levi v. Kar- rick, 15 la. 444; Carmichael v. Vanderburr, 51 la. 225, 1 N. W. 477; Perry v. Breed, 117 Mass. 155; Penrice v. Wallis, 37 Miss. 172; Keyser v. Farr, 105 U. S. 265; State v. Jackson (N. C.), 16 S. E. 906. In Wisconsin the record was amended by the trial court, but the record still remained in that court, no transcript having been sent up though the appeal had been per- fected. State v. Town Bjard, 69 Wis. 264, 34 N. W. 123. But see Rehms- tedth v. Briscoe, 55 Wis. 616, 13 N. W. 687. To the point that the lower court had such power, the following authorities were cited in Moore v. Booker et al, supra, viz: National City Bank v. N. Y. Gold Exchange Bank, 97 N. Y. 645; Elliott, App. Proc. sec. 205; the latter authority draw- ing attention to the difference between the record of the trial court and that on appeal, and holding the proposition that over the former power remains in the trial court while over the latter it resides exclusively in the appel- late court. CHAPTER VIII. ART. 9, CHAP. 12, CODE OF CIVIL PROCEDURE. OF NEW TRIALS. NEW TRIAL DEFINED. 5087, Comp. Laws; 5471, Rev. Codes N. D. A new trial is a re-examination of an issue of fact in the same court, after a trial and decision by a jury or court, or by referees. Sec. 285 C. C. P.; Levisee p. 84; Harst Pr. Deer. Code I 656. Demurrer Not Reviewable. Upon a* motion for new trial, the decision of the court sustaining or overruling a demurrer cannot be reviewed, for a new trial is a re-examination of an issue of fact. Ross v. Wait et al 2 S. D. 638, 51 N, W. 866; Mason v. Austin, 46 Cal. 385; Jacks v. Buell, 47 Cal. 162. Ruling on Evidence. But the ruling of the court on objection to the intro- duction of evidence on the ground that the complaint does not state a cause of action, is reviewable upon such motion. Ross v. Wait et al, supra; Wau- genheim v. Gramah, 39 Cal. 175. CAUSES FOR. 5088, Comp. Laws; 5472, Rev. Codes N. D. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, 78 CODE OF CIVIL PROCEDURE. for any of the following causes, materially affecting the sub- stantial rights of such party: 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or spe- cial verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material to the party mak- ing the application, which he could not, with reasonable dili- gence, have discovered and produced at the trial. 5. Excessive damages, appearing to have been given un- der the influence of passion or prejudice. 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law. 7. Error in law, occurring at the trial and excepted to by the party making the application. Sec. 286 C. C. P.; Levisee p. 84; Harst Pr. Deer. Code 657. Consult the next three sections, and decisions thereunder. SUBDIVISION 1. Irregularity Abuse of Discretion. Consult also decisions under subdivisions 2, 5 and 7. See, for New Trials in Criminal Cases, sec. 7449 to 7451, Comp. Laws, and decisions thereunder, and the corresponding sections of Rev. Codes, N. D. Also, under the chapter on Appeals (sec. 5213 to 5239, Comp. Laws), will be found many decisions touching questions of like character as those found treated under this section, particularly sections 5213, 5235, 5236, 5237, Comp. Laws; sec. 5603, 5625, 5626, 5627, Rev. Codes, N. D. 1. Irregularities. (a). Incompetent Offers Slanderous Statements. Where a party is prevented from having a fair trial, or if any of his rights in issue are prej- udiced by misconduct of his adversary's counsel at the trial, either by re- peated or persistent offers of incompetent or irrelevant testimony, containing insinuations and charges prejudicial to him, or by slanderous statements IRREGULARITY ABUSE OF DISCRETION. 79 made in addressing the jury, or if such misconduct prompted or influenced the jury to render a verdict not warranted by the evidence, or which they presumably would or could not reasonably have rendered had there been no such misconduct, a new trial should be granted. Burdick v. Haggart, 4 Dak. 13, 22 N. W. 589. Misstating Evidence. If counsel in the argument of a case persists, against the objections of counsel for the opposite party, in stating facts to the jury, not in evidence in the case, calculated and intended to arouse the prejudice of the jury against the adverse party, it is an irreg- ularity for which a new trial may be granted. Lindsay v. Pettigrew, 3 S. D. 199, 52 N. W. 873. Subd. 1, of sec. 5088, Comp. Laws, is broad enough to include any such irregularity or misconduct of an attorney, and such mis- conduct may be brought before the court on motion for new trial, supported by affidavit. Id; Burdick v. Haggart, 4 Dak. 13, 22 N. W. 589; Dowdell v. Wilcox, 64 Iowa 721, 21 N. W. 147; Hall v. Wolff, 61 Iowa 559, 16 N. W. 710; Hayne, New Trials, sec. 50; Pierce v. Manning, 1 S. D. 306, 51 N. W. 332; and where this irregularity was made ground on application for a new trial, the facts being presented by affidavit, and the application denied, the ruling is assignable as error in this court. Lindsay v. Pettigrew, 3 S. D. 199, 52 N. W. 873. Counsel Freedom of Speech. The fullest freedom of speech within the duty of his profession should be accorded counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts and appealing to prejudices irrelevant to the case. Lindsay v. Pettigrew, supra; Thomp. on Tr. sec. 963; Hall v. Wolf, supra; People v. Carr, 64 Mich. 702, 31 N. W. 590; Turner v. State, 4 Lea, 206; Festner v. R, R. Co., 17 Neb. 280, 22 N. W. 557; Paper Co. v. Banks, 15 Neb. 20, 16 N. W. 833; Ferguson v. State, 49 Ind. 33; Koelges v. Ins. Co., 57 N. Y. 638; Mitchum v. State, 11 Ga. 615; Rolfe v. Rumford, 66 Me. 564; Bullard v. R. R. Co., 64 N. H. 27, 5 Atl. 838; Bulliner v. People, 95 111. 396; Brown v. State, 60 Ga. 210; Northington v. State, 14 Lea, 424; Flint v. Com., 81 Ky. 186; Sullivan v. State, 66 Ala. 48; Tucker v. Henicker, 41 N. H. 317; Gallinger v. Traffic Co., 67 Wis. 529, 30 N. W. 790; Henry v. R. R. Co., 66 la. 52,- 23 N. W. 260; Palmer v. R. R. Co. (Idaho), 13 Pac. 425. Contempt Arbitrary Action. The judgment of the trial court in punishing for criminal contempt should not be reversed unless the court exercised its authority in a capricious, op- pressive, or arbitrary manner. Noyes et al v. Belding, sheriff et al, 5 S. D. 603, 59 N. W. 1069. Dismissal Receiver. It is not error to refuse fa> dis- charge a receiver, even where both parties consent, his accounts not hav- ing been passed; nor did the court err in setting aside a dismissal of the action, on application of the receiver, where judgment of dismissal had been rendered without making provision for settlement of the receiver's ac- counts, or for his compensation. Hoffman v. Bank of Minot, N. D , 61 N. W. 1031; High on Receivers, sec. 837; Fay v. Bank, Har. (Mich.) 195; Crook v. Findley, 60 How. Pr. 375. Insufficient Complaint Judgment. 80 CODE OF CIVIL PROCEDURE. Where a complaint has been adjudged, upon the trial, to be insufficient to state a cause of action, and the jury discharged, trial postponed, and plain- tiff allowed time to serve an amended complaint, but no time therefor is fixed, a judgment entered without notice before expiration of thirty days from service of an amended complaint, and in absence of an answer, will be set aside, the defendant having duly served a meritorious answer. Bell v. Thomas, S. D , 63 N. W. 907; People v. Rains, 23 Cal. 127; Low v. Graydon, 14 Abb. Prac. 443. Withdrawal of Attorney. Where an at- torney withdraws an answer and his appearance, in hostility to his client, and the grounds and reasons therefor are reduced to writing, presented to the court and filed before a default is declared, and the court thereupon de- clared defendant to be in default for answer, and allowed judgment against him as in default, such judgment is illegal in its inception, and should be set aside as a matter of strict legal right of the defendant. Nichells v. Nichells, . . . . N. D , 64 N. W. 73; Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Herbert v. Lawrence, 18 N. Y. Supp. 95; How v. Lawrence, 22 N. J. Law, 99; Ohlquest v. Farwell (la.), 32 N. W. 277; Haver- ty v. Haverty, (Kan. Sup.), 11 Pac. 364; Quinn v. Lloyd; 36 How. Prac. 378; Dickerson v. Hodges, (N. J. Ch.), 10 Atl. Ill; Sirnpkins v. Simpkins (Mont.), 36 Pac. 759. And this rule applies to. a divorce case. Nichells v. Nichells, supra; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Simpkins v. Simpkins, (Mont.), 36 Pac. 759; Cottrell v. Cottrell, 83 Cal. 457, 23 Pac. 531; Bell v. Peck, (Cal.), 37 Pac. 766. Separate Trial. The discretionary rul- ing of trial court refusing to allow a separate trial in a civil action, is not reviewable on appeal. Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 1069; sec. 5035, Comp. Laws. ( 6 ). Jury Verdict. Oral Instructions Waiver. Where a party sits by and allows the trial court to instruct the jury orally, without objection or request that they be instructed in writing, the charge being taken down by the stenographer, error cannot be assigned upon this method of giving instructions, or upon the failure 9f the court to give the charge to the jury in writing, to be tak- en by them in their retirement, nor upon an omission of the court to in- struct upon a point in respect to which the party asked no instruction. Fryeetal v. Ferguson, S. D , 61 N. W. 161; Stamm v. Coates, 4 Dak. 69, 22 N. W. 593; Thompson on Trials, sec. 2378; Haynes New Tr. & App. sec. 120; 2 Am. & Eng. Ency. of Law, p. 258. Mingling With Jury. It is an irregularity justifying granting anew trial, for a party to mingle with the jurors and converse with them while they are deliberating and in charge of a bailiff; and affidavits not denying such acts, but explaining them, will not cure such irregularity; and such irregularity, though known, need not be brought to the attention of the court before verdict is rendered. Peterson v. Siglinger, 3 S. D. 255, 52 N. IRREGULARITY ABUSE OF DISCRETION. 81 W. 1060; Knight v. Inhabitants of Freeport, 13 Mass. 217; Com. v. Roby, 12 Pick. 496; Hare v. State, 4 How. (Miss.), 193; Martin v. Moremock, 32 III. 485; May v. Ham, 10 Kas. 598; Oleson v. Meader, 40 Iowa, 662; Cole v. Swan, 4 G. Green, (3 la.), 32; Johnson v. Root, 2 Cliff. 108. Waiver. A fail- ure of the moving party to bring such irregularity to the attention of the trial court before verdict is not a waiver of the irregularity, as the trial court could not have corrected the same. Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1060; Oleson v. Meader, 40 Iowa, 662; Hayne, New Trial & App., p. 103. Separation of Jury. It is not prejudic- ial error to allow the jury to separate temporarily without be- ing admonished not to converse, etc., where under the evidence no other than the verdict rendered could have been returned. Kirby v. Western U. Tel. Co., 4 S. D. 105, 55 N. W. 759. Disregarding Testimony. While it is the right of the jury, in general, to judge of the credibility of the witness and the probative value of his testimony, they have no right arbitrarily or capriciously to disregard testimony submitted to them by the court. Drew et al v. Watertown P. Ins. Co., S. D , 61 N. W. 34; McMahon v. People, 120 111. 584, 11 N. E. 883; El wood v. Tel. Co., 45 N. Y. 553; Dickin- son v. Bently, (la.), 45 N. W. 903. General Verdict. Where a jury renders a general verdict against one of two defendants composing a firm, it is error for the court, while such verdict remains of record, to render judgment against plaintiff, dismissing the action as to one member of the firm with costs. Kellogg, Johnson & Co. v. Gilrnan et al, N. D , 58 N. W. 339. Judge Receiving Verdict. Where a jury deliberated upon its ver- dict until 2 o'clock A. M., when, the judge having been called to the jury room, and in the absence of the officers of court, attorneys and parties, a ver- dict was delivered to the judge which was declared by the jurors to be their verdict, and the jury was then discharged, the verdict being kept and brought into court that morning by the judge, who delivered it to the clerk, who recorded it, and plaintiff (the verdict being for defendant) thereupon ex'cepted to it and the manner in which it was received, held, that the ver- dict was fatally irregular, and insufficient to support a judgment entered thereon a,gainst plaintiff's objection. Peart v. Chicago, M. & St. P. Ry., 5 S. D. 337, 58 N. W. 806; Abb. Tr. Brief, 181, and cases there cited; Bond v. Wood, 69 111. 282; City of Chicago v. Rogers, 61 111. 188; Rosser v. McColly, 9 Ind. 587; Young v. Seymour, 4 Neb. 86; 3 Cooley's Bl. Comm. 377. 2. Abuse of Discretion. Amendment Party Misled. Where a complaint alleged a balance of proceeds of a sale in the hands of defendant on the theory that he had sold property to a third person as agent of plaintiff, the court has power to allow an amendment of the complaint on the trial to conform to the proof by inser- tion of an allegation that defendant sold to itself property of the plaintiff; 6 TP 82 CODE OF CIVIL PROCEDURE. and plaintiff having been so misled by defendant's conduct as to believe that defendant had in fact sold to a third person, and defendant's cashier having without objection testified that defendant sold the property to itself, t-Md, it was an abuse of discretion to refuse to allow plaintiff to amend his complaint to conform to the proof. Anderson v. First Nat. Bank of Grand Forks N. D , 64 N. W. 114; Cook v. Croysan (Ore.), 36 Pac. 532; Drew v. Hicks (Cal.), 35 Pac. 563 (565); Cooper v. Wood (Colo. App.), 27 Pac. 884; Yetzer et al. v. Young, 3 S. D. 263, 52 N. W. 1054; Jenkinson et al. v. City of Ver- million, 3 S. D. 238, 52 N. W. 1066; Lefler v. Sherwood, 21 Hun. 573; Smith v. Savin, 141 N. Y. 315, 36 N. E. 338; Culp v. Steere (Kan. Sup.), 28. Pac. 987; Spice v. Steinruck, 14 Ohio St. 213; Esch v. Ins. Co. (la.), 43 N. W. 229; Greenfield Sav. Bank v. Sinons, 133 Mass. 415; Terry v. Munger, '121 N. Y. 161, 24 N. E. 272; Braithwaite v. Aiken et al., 2 N. D. 57, 49 N. W. 419. Proof.* It is not an abuse of discretion for the court to order a complaint amended so as to conform to proof on trial to court, in foreclosure of an in- cumbrance, to show a purchase of the mortgaged premises by two jointly instead of, as originally alleged, by one as agent of another. Moore v. Booker et al. . . .S. D. . . ., 62 N. W. 607; Schley v. Fryer, 100 N. Y. 71, 2 N. E. 280. It is abuse of discretion to refuse to allow plaintiff to amend his complaint to conform to proof, where he had been misled as to the sale by defendant of property to recover value of which the suit is brought. An- derson v. First Nat. Bank of Grand Forks, N. D , 64 N. W. 114; Cook v. Croisan (Or.), 36 Pac. 532; Drew v. Hicks (Cal.), 35 Pac. 563; Cooper v. Wood (Colo. App.) 27 Pac. 884; Yetzer v. Young, 3 S. D. 263, 52 N. W. 1054; Jenkinson v. City of Vermillion, 3 S. D. 238, 52 N. W. 1066; j Lefler v. Sher- wood, 21 Hun. 573. Amended Appeal Bond. It is not an abuse of discre- tion on the part of the trial court, to refuse leave to file an amended appeal bond on an appeal from a justice's court to the circuit court, where the case had been taken to the supreme court on appeal from an order of the circuit court dismissing the appeal from the justice's court, such order having been affirmed and the remittitur having been sent down to the circuit court. The application for leave to file an amended appeal bond is addressed to the sound judicial discretion of the trial court. Rudolph v. Herman, 4 S. D. 203, 56 N. W. 122. The application should have been made to the trial court before it made the order dismissing the appeal, or in connection with a mo- tion to vacate or set aside the order. Id. Setting Aside Judgment. An order, in application under sec. 4939, Com p. Laws, refusing to set aside a judgment entered upon a written stipu- lation of the parties, will not be reversed for abuse of discretion, where the record presents neither the apswer of defendant nor its contents, nor con- tains an affidavit of merits. Pettigrew et al v. City ef Sioux Falls et al, 5 S. D. 646, 60 N. W. 27; Ellis v. Jones, 6 How. Pr. 296. Jurisdiction and Fore- closure. The proviso in section 5411 Comp, Laws, regulating foreclosures MISCONDUCT OF THE JURY. 83 by advertisement, is intended to confer upon judges of the District Courts certain authority, to be exercised at their discretion, which discretion is non-reviewable, except in cases of abuse, and the record in this case fails to show abuse of discretion. McCann v. Mortgage, Bank & Investment Co., Williamson v. Same, Halvorson v. Same N. D ,54 N. W. 1026; but compare Commercial Nat. Bank v. Smith et al, 1 S. D. 28, 44 N. W. 1024. Discontinuance Judgment. Where, under the facts stated, defendant be- lieving the case was discontinued, returned home and in his Absence judg- ment was rendered against him, field, a refusal to vacate the judgment was misuse of discretion. Searles v. Christensen, S. D , 60 N. W. 29; Millspaugh v. McBride, 7 Paige, 509; Sharp v. New York, 31 Barb. 578; Hanson v. Michelson, 19 Wis. 525; Ordway v. Suchard, 31 Iowa, 481; Griel v. Vernon, 65 N. C. 76; Allen v. Hoffman, 12 111. App. 573; Baxter v. Chute, 50 Minn. 164, 52 N. W. 379; Whereatt v. Ellis, 70 Wis. 207, 35 N. W. 314; Black on Judg. sec. 341. New Trial. The decision of the trial court in granting or refusing a new trial will not be disturbed unless it appears that there has been an abuse of discretion. Grant v. Grant, . . . S. D ,60 N. W. 743; 16 Am. & Eng. Encyc. of Law, 693; Elliott, App. Proc. sec. 603. Fraud Intent. In an action of claim and delivery, involving question of fraudulent intent in making a financial statement in a transaction of sale, held, under the facts stated, that the trial court did not abuse its discretion in denying motion for new trial. Tootle et al v. Petrie, sheriff, . . .S. D. . ., 65 N. W. 43; Lumber Co. v. Ott, 142 U. S. 622, 12 Sup. Ct. 318. Be-direct Examination. It is within the sound discretion of a trial court to allow any question to be asked on re-direct examination that was proper and admissible on the examination in chief. Baird et al v. Gleckler, S. D ,64 N. W. 118; Hemmens v. Bentley, 32 Mich. 89. Continuance. An application for continuance during trial is addressed to discretion of the court, and its decision will not be reviewed unless its discretion appears to have been abused. Billingsley v. Hilesetal, S. D , 61 N. W. 687. Discretion Presumption. Where an order may be made in court's discretion, this court will presume that it was so made, in absence of evidence to contrary. Ormsby v. Conrad et al, 4 S. D. 599, 57 N. W. 778. SUBDIVISION 2. Misconduct of the Jury. Consult decisions under subdivisions 1, 5 and 7. Juror's Testimony Inadmissible. The testimony of jurors is inad- missible in support of a motion to set aside a verdict on the ground of mis-, take, irregularity, or misconduct of the jury, or of some one or more of the panel. Murphy v. Murphy, 1 S. D. 316, 47 N. W. 142; Polhemus v. Heiman, 50 Cal. 438; Boyce v. Stage Co., 25 Cal. 474; Ulrick v. Dak. Loan & Trust Co., 2 S. D. 285, 49 N. W. 1054 (on rehearing), 51 N. W. 1023. "Quotient Verdict." Nor is such evidence admissible to impeach their verdict on the ground that the same is what is known as a "quotient verdict." ' Ulrick v, CODE OF CIVIL PROCEDURE. Dak. Loan & Trust Co., supra. Such affidavits will not be received for that purpose, unless authorized by statute, and only then upon the grounds and in the manner permitted by statute. Gaines v. White, sheriff, 2 S. D. 410, 47 N. W. 524. Damages. Nor will the verdict be set aside because the jury did not find damages. Id. See upon this subject, nisi pnics decision of Judge Shannon in Territory v. Taylor et al, 1 Dak. 459. SUBDIVISION 3. Accident or Surprise. Great Caution. An application for a new trial on the ground of sur- prise should be granted with great caution; the party alleging surprise should be required to show it conclusively, and by the most satisfactory evi- dence within his reach. Gaines v. White, sheriff, 2 S. D. 410, 47 N. W. 524. Continuance Waiver. If a party claiming surprise upon the trial, so that he is unable to present his case upon its merits, he should inform the court and apply for a continuance. If he fails to do this he waives his want of preparation, and all right afterwards to object. Gaines v. White, supra; 3 Grah. & W. New Trials, 894; Turner v. Morrison, 11 Cal. 21; Washer v. White, 16 Ind. 136; Shellhous v. Ball, 29 Cal. 608; Alexander v. Byron, 2 Johns. Cases, 318. Discretion Review. An application for a continuance, or a motion for a new trial, based upon the ground of surprise, being ad- dressed to the sound discretion of a trial court, its rulings thereon will be reviewed only where there is manifestly an abuse of such discretion. See Gotzian & Co. v. McCollum, sheriff S. D , 65 N. W. 1068. De- struction of Record. Under this subdivision, it was held- in Golden Terra Mining Co. v. Smith, 2 Dak. 374, 11 N. W. 98, that a motion for a new trial, upon the ground of the destruction of the record and evidence before the de- cision, and difficulty of restoring the evidence and making a case or bill of exceptions, was properly denied. SUBDIVISION 4. Newly Discovered Evidence. What Affidavit Must Show. An application under this subdivision for a new trial must show by affidavit (1) that the applicant has been vigi- lant in the preparation of his case for trial; (2) that new and material facts have been discovered since the trial, which could not by reasonable dili- gence have been produced at the trial; and these facts should be explicitly stated in the affidavits. Gaines v. White, sheriff, 2 S. D. 410, 47 N. W. 524, (on re-hearing) 50 N. W. 901; Moore v. Bank, 5 Serg. & R. 41. Impeach- ing 1 , or Cumulative Evidence. Except under unusual circumstances a new trial will not be granted on the ground of newly -discovered evidence which goes only to discredit or impeach a witness, or which is merely cumulative. Scheffer et al v. Corson et al, 5 S. D. 233, 58 N. W. 555; 16 Am. & Eng. Ency. Law p. 572 and cases cited; Id. 575. Discretionary. Applications fora new trial on this ground are addressed to the discretion of the court, and its action will not be disturbed except for abuse of discretion; the presumption being EXCESSIVE DAMAGES. 85 that it was not properly exercised. Long-ley v. Daly, 1 S. D. 257, 46 N. W. 247; Baker v. Joseph, 16 Cal. 180; Arnold v. Skaggs, 35 Cal. 684; Grab. & W. on New Trials, Vol. 1 p. 473. Probable Different Result. To warrant the granting of a new trial on such grounds affidavits must show such new facts as will probably lead to a different result on a new trial, which must be es- tablished by affidavits of persons who are personally familiar with them, unless some strong reason is shown why this requirement should be dis- pensed with. Braithwaite v. Aiken et al, 2 N. D. 57, 49 N. W. 419. Disfavor and Distrust. Applications for new trial on this ground are looked upon with disfavor and distrust. Affidavits in this case held insufficient. Braithwaite v. Aiken et al, 2 N. D. 57, 49 N. W. 419; Hayne New Trial & App., sec. 91, 93, 87 and cases cited; Spottiswood v. Weir, 80 Cal. 448, 22 Pac. 289; Grace v. McArthur, 76 Wis. 641, 45 N. W. 518; People v. Sutton, 73 Cal. 243, 15 Pac. 86. Decision Seldom Disturbed. The decision of the trial judge in granting a new trial on the ground of newly-discovered evidence will seldom be disturbed on appeal. Hatch et al v. Northern Pac. R. R. Co., N. U. . . . , 63 N. W. 207. SUBDIVISION 5. Excessive Damages. Consult decisions under subdivision 6. Materially Greater. A verdict will not be disturbed because excess- ive, when it does not appear that the damages awarded were materially greater than the evidence will justify. Larson v. City of Grand Forks, 3 Dak. 307, 19 N. W. 414; Treanor v. Donahoe, 9 Cush. 228; Baker v. Briggs, 8 Pick. 126; Bass v. C. & N. W. R. Co., 39 Wis. 640. Aggravation Per- sonal Mortification. The circumstances which merely tend to aggravate the ordinary damages which necessarily result from an alleged wrong as the natural consequences of the acts set out in the complaint for a malicious prosecution need not be specially pleaded, and when evidence of injury to feelings has been admitted without objection, an instruction upon such evi- dence, to the effect that a person who has been charged with a crime, and prosecuted maliciously and without probable cause, may recover for per- sonal mortification or injury to his feelings, is not eri-oneous. Jackson v. Bell, 5 S. D. 257, 58 N. W. 671; 3 Suth. Dam. .704, 705; 14 Am. & Eng. Enc. Law 71; Hamilton v. Smith, 39 Mich. 222; M'fg Co. v. Fields (Ind. Sup.) 36 N. E. 529; Lombard v. Lenox (Mass.) 28 N. E. 1125, and cases there cited; (as to the pleading), Daylies Code PI. 156; Solis v. Manning, 37 How. Pr. 13. Consequential. Damages which are not the direct or natural result of a party's default, but of intervening and exceptional causes, are consequential, and are only recoverable against such party when it is shown that he knew or ought to have foreseen that such causes or conditions did or would likely exist, and so may be considered to have contracted with reference to or in contemplation of them. Simpson Brick-Press Co. v. Marshall, 5 S. D. 528, 59 N. W. 728; 1 Suth. Dam. p. 74, and cases cited in notes. On Court's Motion. CODE OF CIVIL PROCEDURE. A verdict of the jury, to which neither party has objected, should not bo va- cated by the court on its own motion, unless there has been such clear disre- gard of the instructions or the evidence that the court is at once satisfied without mature reflection or the aid of argument that such verdict is the re- sult of passion or prejudice, or was rendered under a misapprehension of the instructions, and the order should be promptly made upon the coming in and entry of the verdict. Clement v. Barnes, S. D , 61 N. W. 1126; Gould v. Elevator Co., 2 N. D. 216, 50 N. W. 970. SUBDIVISION 6. Insufficiency of the Euidence Against Law. Consult decisions under subdivisions 5 and 7, and sec. 5048, Comp. Laws. 1. Insufficiency of Euidence. (a) Generally. Any Legal Evidence. Where there is any legal evidence which fairly warrants the verdict of a jury such verdict will not be set aside. Franz Falk Brewing Co. v. Mielenz et al, 5 Dak. 136, 37 N. W. 728; Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511; Finney v. R. R. Co., 3 Dak. 270, 16 N. W. 500; Phfftip Best Brewing Co. v. Pillsbury & H. E. Co., 5 Dak. 62, 37 N. W. 763; Kile v. Tubbs, 32 Cal. 332; Lick v. Madden, 36 Cal. 213. Is Discretionary Stronger Case Required When. An application for a new trial under this subdivision is addressed to the sound discretion of the trial judge, and his discretion will only be reviewed in case of manifest abuse of discretion; and a stronger case must be made to justify the interposition of an appellate court when a new trial has been granted than when it has been refused. Alt v. Chicago & N. W. Ry. Co., 5 S. D. 20, 57 N. W. 1126; Pianoforte Co. v. Mueller, 38 la. 554: Elliott's App. Proc. p. 518; Grant v. Grant, S. D , 60 N. W. 743; Hodges v. Bierlien, 4 S. D. 258, 56 *N. W. 811; 16 Am. & Eng. Ency. of Law, p. 693, and cases cited; Elliott App. Proc. sec. 306, and cases cited; and a clearer case is required for rever- sal of an order granting a new trial than to reverse an order overruling such motion. Grant v. Grant, supra; Halpin v. Nelson, 76 la. 427, 41 N. W. 62; Hodges v. Bierlien, supra; Stewart v. Town of Dunlap (la.), 16 N. W. 112. Substantial Evidence, Where there is substantial evidence to support the verdict it will not be disturbed. Huron Printing & Bindery Co. v. Kittle- son et al, 4 S. D. 520, 57 N. W. 233. Sustained by Competent Evidence. It is the province of the jury to weigh the testimony, and a verdict sustained by competent evidence will not be disturbed on appeal. Vermillion Artes- ian Well, E., L., M., I. & I. Co. v. City of Vermillion, S. D , 61 N. W. 802. Contract Non-Compliance. In an action to recover upon a con- tract to furnish materials and labor for plastering a house, evidence exam- ined, and lield that the plastering done by plaintiff for defendant was not ac- cording to the contract, and of no benefit to defendant. Nollman et al v. Evanson, . . . . N. D , 65 N. W. 686. INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 87 Findings Stand When. Findings of the trial court on disputed ques- tions of fact are always presumptively right, and though not as controlling here as the verdict of a jury, must stand, unless the evidence clearly pre- ponderates against them, which is not the case here. Feldman v. Trum- bower, S. D , 64 N. W. 189. Homestead Foreclosure. In an ac- tion to foreclose a mortgage, where the wife of the principal defendant de- fends upon the ground that the mortgaged premises constituted the home- stead, of defendants, held, that the evidence upon the trial warranted a finding that the husband never 1'esided upon the property mortgaged; that the evi- dence doesnot clearly preponderate against such finding. Clark v. Evans et al . ... S. D , 60 N. W. 862. Indorsee for Value. In an action upon anegotiable promissory note, held, upon the evidence, that it showed without conflict that plaintiff bank was an indorsee for value. First Nat. Bank of Pierre v. Smith et al, S. D , 65 N. W. 437. Contempt Prohibitory Law. In a habeas corpus proceeding, based upon a judgment for contempt growing out of an injunction under the Prohibitory Law, held, under the facts stated, that there was evidence tending to support the ruling of the trial court as to the commission of the act constituting the contempt. State v. Marku- son, N. D , 64 N. W. 934. School Bonds Estoppel. In an action on interest coupons against a school district under chap. 44, sess. Laws 1883 of Dak, held, that production of files and records of the county board, of a de- scription of the school district in question, is sufficient, under the circum- stances [existing, in absence of evidence to the contrary, to sustain the pre- sumption that the county superintendent complied with sec. 10, chap. 14, Laws 1879, Dak., relating to division of county into school districts, etc. Coler et al v. Rhoda School Tp., S. D , 63 N. W. 158. Held, also, that the recitals upon the school district bonds in question were sufficient to estop defendant from showing a want of compliance as to conditions prece- dent to issuance thereof, the action being by a bona fide holder. Id. Sur- vey Unauthorized Contract. Where the controlling question is one of fact, as, the true location of a boundary line, it is not material that a resurvey, locating the line as claimed by one of the parties, was made under an unauthorized contract. Hanson v. Tp. of Red Rock, S. D 63 N. W. 156; affirming same case in 4 S. D. 358, 57 N. W. 11. Board and Lodging Agreement. In an action upon an implied contract for furnishing board and lodging at a hotel, to an employee of defendant at his special instance and request, held, on the facts stated, that the original agreement between defendant and a former proprietor of the hotel was not made for the benefit of plaintiff, the employee having formerly boarded with the former proprie- tor under such agreement. Dempsey v. Billinghurst, S. D , 64 N. W. 1124. Advertisement Foreclosure Recital of Ownership. In a sheriff's deed in foreclosure by advertisement, grantee was described as "Globe In- 88 CODE OF CIVIL PROCEDURE. vestment Company, formerly Dakota Mortgage Loan Corporation;" held, such recital was no evidence that Globe Investment Co. had succeeded to rights of Dak. Mort. Loan Corporation. Hannah v. Chase, N. D , 61, N. W. 18; Comp. Laws sees. 5160, 5428, 5437; Costello v. Burke, 63 la. 361, 19 N. W. 247; Hill v. Draper, 10 Barb. 454; Smith v. Penny, 44 Cal. 161; Hardinburg v. Lakin, 47 N. Y. 109; McMurtry v. Keifner 36 Neb. 522, 54 N. W. 844. Disbarment. In a proceeding for disbarment of an attorney at law, held, upon an examination of the facts, that the evidence is insuffi- cient to warrant the finding of any fact that is ground for disbarment. In re Eaton, 4 N. D. 514, 62 N. W. 597; sec. 473 Comp. Laws; Weeks, Att'ys., 175, 176 and cases cited in note; People v. Harvey, 41 111. 277; In re O (Wis.), 42 N. W. 221. Alimony Change of Condition. When a clear pre- ponderance of evidence shows a material change in condition and circum- stances of parties to a decree of divorce, and that defendant should be re- lieved from a decree for payment of money for support and maintenance of minor children, it is error to refuse to set aside and vacate. Greenleaf v. Greenleaf S. D , 61 N. W. 42. Sale Terms Of. In an action for pur- chase price of a straw stacker, the question being whether there was a sale, and also as to the the terms of the sale if one was made, held, upon examination of the evidence, that the verdict for defendants was not justified by the evi- dence. Reeves & Co. v. Corrigan et al, 3 N. D. 415, 57 N. W. 80. Damages Medical Attendance. A married woman who has by contract incurred liability for medical attendance made necessary by an injury for which an- other is liable, may recover as part of her damages a sum equal to the amount of such liability the same as a feme sole, although she has not paid for such medical attendance at the time of trial. Chacey v. City of Fargo, .... N. D 64 N. W. 932; Mort. Co. v. Stevens, 3 N. D. 265, 55 N. W. 578. Findings Sustained Parol Evidence. Under section 25, chap. 120, Laws 1891 of N. D., this court will not try the case de novo; the findings be- low are presumed to be correct, and a finding based upon parol evidence will not be disturbed unless the error clearly appears. Jasper v. Hazen, 4 N. D. 1 68 N. W. 454; Rand'all v. Burke Tp., 4 S. D. 337, 57 N. W. 4. Taking Pos- session Officer's Return. In an action of claim and^delivery, where error was assigned involving sufficiency of the evidence to justify the verdict, held, that where the property is specifically described in the affidavit and the officer takes into his possession such identical property, his return in con- nection with certain oral testimony was sufficient to support the verdict upon the question as to whether the officer took possession of such property, though the officer testified in contradiction of his return. Feury v. McCor- mick H. M. Co., . . . . S. D . . . ., 61 N. W. 162. Clear Preponderance Presumption. The last clause of sec. 5237, Comp. Laws, requires this court, in a cause tried by a court or referee, to review the questions of fact, as well as law; and on such review this court INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 89 will presume that the decision below upon the weight of evidence is correct; only when this court is satisfied that there is a clear preponderance of evi- dence against such decision, will that presumption be overcome and the de- cision reversed; in this case the court finds a clear preponderance of evidence against the findings below. Randall et al v. Burke Tp. et al, 4 S. D. 337, 57 N. W. 4; Snyder v. Wright, 13 Wis. 689; Fisher v. Trust Co., 21 Wis. 73. Prima Facie Case. Where the defendant moved for judgment at the close of plaintiff's evidence, consisting of a school order, which motion was de- nied, held, no error; the order made a prima facie case and was sufficient un- til rebutted. Meyer v. School Dist. No. 31 Minnehaha Co., 4S. D. 420, 57 N. W. 68; Edinburgh American L. & M. Co. v. City of Mitchell, 1 S. D. 593, 48 N. W. 131. Claim and Delivery. Where the evidence fully sustains alle- gations of ownership, right to immediate possession, and wrongful deten- tion of the property, a verdict for plaintiff upon all issues, and that plaintiff is entitled to immediate possession of the property, the value being speci- fied, is sufficient, no objection being made when returned, to support a judg- ment for plaintiff. Hormann v. Sherin, S. D , 60 N. W. 145; Ar- thur v. Wallace, 8 Kan. 267. Ingle v. Mudd, 86 Mo. 217; Smith v. Dodge. 37 Mich. 354; Coit v. Waples, 1 Minn. 134 (Gil. 110); Anderson v. O'Laughlin, 1 Mont. 81; Williams v. Porter, 41 Wis. 422. Indemnity Must Show In- jury. In an action on conti*act to indemnify plaintiff against damages by reason of certain mechanic's liens existing upon a building sold by defend- ant to plaintiff, he cannot recover without showing that he was injured or became liable to another for damages occurring to such building after he sold the same and after foreclosure of the lien; evidence before referee ex- amined and findings; held, unsupported by the evidence and judgment re- versed. Cranmer v. Building & Loan Ass'n of Dak., . . . . S. D , 61 N. W. 35. Attachment Affidavit. The facts set out in the affidavit for an at- tachment in this case being practically unsupported, and specifically denied by the attaching debtors, the proof before the court was sufficient to justify an order vacating the attachment. Perie et al v. Berg et al, S. D , 64 N. W. 1130. Conversion Bill of Lading Draft. In an action for the value of cat- tle alleged to have been converted by defendant, where the shipper drew a draft against the cattle on a firm to whom defendant delivered the cattle, the draft being attached to a bill of lading and payable to another firm by whom it was discounted and the proceeds paid to the shipper, and which draft was not paid, whereupon the shipper turned over to said drawees two car loads of sheep as security, but from which such drawees failed to realize any pro- ceeds, defendant having delivered the cattle without the bill of lading, with- out payment of the draft and without consent of the drawees of the draft; the sheep being subsequently turned over by said drawees to the shipper, who delivered them to another with directions to keep them for the payees 90 CODE OF CIVIL PROCEDURE. in the draft, who claimed them as security for the amount of the draft, but which transaction as to the sheep was not known to the defendant; Iwld, the trial court properly refused to make a finding that the payees in the draft ratified the taking of the sheep as their property by the shipper, there being conflicting evidence upon that point; that the findings made were justified by the evidence, and that the payees in said draft or their assignee could re- cover of defendant the amount of the draft, to the extent of the value of the cattle. State v. Chi., Mil. & St. P. Ry. Co., .... S. D , 65 N. W. 29. Illegal Contract. For a case in which the judgment of the court below, upon findings that the contract in suit was illegal and not binding on defend- ant corporation, was sustained; see Tolman v. New Mexico & Dak. Mica Co., 4 Dak. 4, 22 N. W. 505. Question of Fact County Seat. Whether the place generally known as "Hot Springs" or the territory platted as "Hot Springs" was selected by the electors as the county seat is a question of fact depending upon the understanding and intention of the voters; and where the finding of the trial court upon such question is well supported by the evidence, such finding will be accepted as correct by this court. Fall River Co. v. Powell, 5 S. D. 49, 58 N. W. 7. Professional Employment Pre- sumption. In the absence of facts or circumstances to the contrary, it will be presumed that an attorney at law, acting as such within the scope of his professional duty, has been employed and retained by the person whom he represents; and same presumption applies as to an appointive or elective offi- cer, and as to a proper performance of his official duties. Noyes et al v. Belding, sheriff, et al 5 S. D. 603, 59 N. W. 1069; Shain v. Forbes, 82 Cal. 577, 23 Pac. 198; 1 Rice on Ev. 103. Partners Dissolution Firm Debts. Where co-partners enter into a contract of dissolution and therein make de- tailed arrangements and for division of property and payment of firm debts, held, in the absence of proof to the contrary, such differences will be pre- sumed to have been merged in the contract; and such contract will not be set aside on the sole ground that one of the parties did not read it or know its contents before signing; referee's report examined and his findings held to be supported by the testimony. Little v. Little, 2 N. D. 175, 49 N. W. 736. Instruction of court that there was no evidence contradicting testimony of defendant as to a certain fact held proper. Moe v. Job, 1 N. D. 140, 45 N. W. 700. Agency. Evidence examined in this case, and found not to show that the defendant's agent had authority to make cer- tain declarations and admissions admitted in evidence. Short v. North- ern Pac. Elevator Co., 1 N. D. 159, 45 N. W. 706. Contempt. In a proceed- ing for contempt of court, evidence examined, and held, insufficient to sus- tain a judgment of conviction. Burdick v. Marshall, S. D , 66 N. W. 462; In re Spaulding et al, Id. 4 Ency. of PL & Prac., p. 768 and note. Limitations Rebuttal. In an action on a promissory note, the plea of the statute of limitations being set up, the burden of proving facts showing the INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 91 note is in fact barred devolves upon the party claiming 1 under the note; and in such case, if such party fails to rebut the prima facie case which the in- troduction of the note in evidence makes for the party pleading the statute, the court is justified in findimr that the note is barred. Dielman v. Citizen's Nat. Bank of Madison, .... S. D , 66 N. W. 311; but it cannot be held to be barred, until the opposing party has had an opportunity to rebut such prima facie case made by the note itself. Id; Meyer v. School Dist., 4 S. D. 420, 57 N. W. 68. Freight Regulation "Circular." A regulation promulgated and ob- served by a freight association composed of numerous railway companies, by which the capacity of tank cars owned by shippers, and not listed in what is denominated a "Joint Tank Line Circular," showing the actual weight, shall be estimated at 40,000 pounds, will not be declared unreasonable in ab- sence of a reliable basis for computation, or anything to show the gross amount of freight charged and collected thereunder was excessive. Coates v. Chi. Mil. & St. P. Ry. Co., . . . . S. D . . . . , 65 N. W. 1067. Bill of Exchange Condition. In an action upon a bill of exchange, given in the course of a transaction of exchange of realty, evidence examined, and held sufficient to justify a verdict in favor of defendant who claimed to have given the bill of exchange conditionally to be paid upon receipt of certain goods. Farmers' Bank of Frankfort v. Bank of Canton, . . . . S. D , 65 N. W. 1070. Deed as Mortgage Clear Proof. To sustain a finding that a deed absolute on its face was intended as a mortgage, the evidence must be clear, convincing and satisfactory, and of such character as to leave in the mind no hesitation or substantial doubt; in this case, lield, the evidence was sufficient to sustain the trial court in holding that the deed in question was given as security. Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454; Eames v. Hardin, 111 111. 634; Gas- sert v. Bogk (Mont.), 19 Pac. 281, affirmed in 149 U. S. 17, 13 Sup. Ct. Rep. 738; Locke v. Moulton, 96 Cal. 21, 30 Pac. 957; Ensminger v. Ensminger, 75 la. 89, 39 N. W. 208; Rowland v. Blake, 97 U. S. 624; Kent v. Lasley, 24 Wis. 654; Coyle v. Davis, 116 U. S. 108, 6 Sup. Ct. Rep. 314; Cadman v. Peter, 118 U. S. 73, 6 Sup. Ct. Rep. 957; Nevius v. Dunlap, 33 N. Y. 676; Devereaux v. Sun Fire Office, 51 Hun, 147, 4 N. Y. Supp. 655; Case v. Peters, 20 Mich. 298; Vary v. Shea, 36 Mich. 388; Tilden v. Streeter, 45 Mich. 533, 8 N. W. 502; Reynolds v. Campbell, 45 Mich. 529, 8 N. W. 581; McMillan v. Bissel, 63 Mich. 66, 29 N. W. 737; Low v. Graff, 80 111. 360; Bartling v. Brasuhm, 102 111. 441; Newton v. Holley, 6 Wis. 592; Lake v. Meacham, 13 Wis. 396; Ker- cheval v. Doty, 31 Wis. 477; Harter v. Christoph, 32 Wis. 246; Lavassar v. Washburn, 50 Wis. 200, 6 N. W. 516; Meiswinkel v. Ins. Co., 75 Wis. 147, 43 N. W. 669; Pancake v. Cauffman, 114 Pa. St. 113, 7 Atl. 67; McCall v. Bashnell, 41 Minn. 37, 42 N. W. 545; Bingham v. Thompson, 4 Nev. 224. Commissions Gambling Contract. Action for commissions and advances made by plaintiffs, on account of sale and purchase of wheat as agents for 92 CODE OF CIVIL PROCEDURE. defendant; evidence examined, and held to support finding that plaintiffs knew defendant's purpose was to gamble in wheat, and that they acted as his agents in furtherance of such purpose. Dows et al v. Glaspel, 4 N. D. 251, 60 N. W. 60; Whitesides v. Hunt, 97 Ind. 191; Melchert v. Tel. Co., 11 Fed. 193; Edwards v. Hoeffinghoff, 38 Fed. 639; Embrey v. Jemison, 131 U. S. 336 (344), 9 Sup. Ct. Rep. 776; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 160; Mohr v. Miesen (Minn.), 49 N. W. 862; and when evidence competent to es- tablish a fact is admitted, this court will not assume that the trial court con- sidered the evidence in finding another fact not legally provable, when the latter is fully supported by other evidence. Dows et al v. Glaspel. supra. Lease Purchase Money Lien. In an action for claim and delivery to re- cover hotel furniture, under an alleged contract of sale, and where defend- ant claims possession thereof under a lease from plaintiff's vendors of the furniture and the hotel in which the same is situated, which lease contained a provision for purchase of the furniture by lessees, and containing a pro- vision that the property shall be held by the lessor as a pledge and lien for performance of the agreement, held, upon an examination of the evidence, that the lessor has a lien upon the furniture for installments to be paid as purchase price thereof by the lessees, and also for rent accruing under the lease, as against lessees and persons claiming under them with notice of the lien, and that plaintiff is not entitled to recover; and the trial court rightly granted a new trial on defendant's motion, tisshon v. Watertown Hotel Co., . . . . S. D , 63 N. W. 229; Whiting v. Eichelberg, 16 la. 422; Langdon v. Buel, 9 Wend. 80; Wright v. Butcher, 72 Mo. 179; Jones Chat. Mort. 13-15; 2 Story's Eq. Jur. 1231; Legard v. Hodges, 1 Ves. Jr. 478. Dodsley v. Var- ley, 12 Adol. & E. 632. Statute of Frauds Ownership. When plaintiff alleges ownership of real property in his complaint, which allegation is de- nied, evidence of a witness (without objection to its competency) that plaint- iff was ''the owner, to his knowledge," and this is undisputed, is sufficient to support a finding of ownership in plaintiff; the memorandum agreement signed by plaintiff's agent, together with abstract of title, and a check in part payment given by defendant and deposited in escrow, together with notes and mortgage drawn pursuant to contract and forwarded to defendant, and various correspondence pertaining to the transaction of sale, held, to be sufficient evidence of a note or memorandum in writing within subdivision 5 of sec. 3544 Comp. Laws. Townsend v. Kennedy, S. D , 60 N. W. 164; Wendt v. R. R. Co., 4 S. D. 476, 57 N. W. 226; Fry Spec. Perf, sees. 449, 450; Clasen v. Bailey, 14 John. 484; McCrea v. Purmort, 16 Wend. 460; Da- vis v. Shields, 26 Wend. 362; Williamsv. Bacon, 2Gray (Mass.), 387; Greenl. on Ev. sec. 268; Wharton on Ev. sec. 872; Reed, Stat. of Fr., sec. 341; Fry Spec. Perf. sec. 509, subd. 4 and sec. 20; Roehl y. Haumesser (Ind.), 15 N. E. 345; Peck v. Vandermark, 99 N. Y. 29, 1 N. E. 41; Thayer v. Luce, 22 Ohio St. 62; Christensen v. Wooley, 41 Mo. App. 53; Hewes v. Taylor, 70 Pa. St. INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 93 387; Jelks v. Barrett, 52 Miss. 315; Peabody v. Shyers, 56 N. Y. 230; Schutt v. Society, 41 N. J. Eq. 115, 3 Atl. 398; Wills v. Ross, 77 Ind. 1; Trevor v. Wood, 36 N. Y. 307; Work v. Kowhick, 81 111. 317. Shipment Connect- ing Lines- -Agency. It being out of the usual course of business, the pre- sumption is that a local station agent has no power to bind his company by a contract to ship property over connecting lines of railway, and such auth- ority will not be inferred from the mere fact that freight for the entire dis- tance was collected by such agent. Coates v. Chi., Mil. & St. P. Ry. Co., .... S. D , 65 N. W. 1067; Page v. Ry. Co., .... S. D ,64 N. W. 137; 1 Wood, R. R. (2nd Ed.), 508. Doubtful Question Title. Where the title to property in dispute is in doubt, in a case where an appeal from an order granting or continuing a temporary injunction is taken, the facts not being discussed by counsel on such preliminary appeal, this court will treat the question of title as a doubtful one, and decide only whether the injunction was rightly granted. Huron Waterworks Co. v. City of Huron, 4 S. D. 102, 55 N. W. 759. (6). Conflicting Evidence. Will Not Weigh. Where in a jury trial the evidence is conflicting, this court will not weigh the evidence, or go further than to determine therefrom whether or not the party has given sufficient legal evidence to sustain his verdict without regard to the evidence given on the part of the other party, except so far as such evidence tends to sustain his case. Jeansch v. Lewis et al, 1 S. D. 609, 48 N. W. 128. Bedow v. Tonkin, 5 S. D. 432, 59 N. W. 222. The evidence being voluminous and conflicting, and appearing to support the findings of the court below, judgment will not be reversed. Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426. Whether a verdict will be disturbed upon an exception that it is not sustained by the evidence, or is contrary to evidence, where there is any evidence to support it, quaere. Territory v. Stone, 2 Dak. 155, 4 N. W. 697. Verdict Conclus- ive. So far as the evidence upon any question of fact is substantially con- flicting, the verdict of the jury, if such question were submitted on proper instructions, is conclusive upon this court. Gleckler et al v. Slavens et al, 5 S. D. 364, 59 N. W. 323. Where clearly conflicting evidence on a material issue has been submitted to a jury under proper instructions, its verdict in favor of either party upon the issues is, for purposes of appeal, conclusive as to such questions. Tootle et al v. Petrie, sheriff, S. D. . . ., 65 N. W. 43. Great Injustice Want of Evidence. The verdict of a jury or find- ings of a court upon a question of fact should not be disturbed, the evidence being conflicting, unless great injustice seems to have been done, or there is an entire want of evidence to sustain it; but where, conceding to all the evi- dence offered the greatest probative force which, according to the law of evidence, it is fairly entitled to, it is not sufficient to justify a verdict, it is the duty of the court after the verdict to set it aside and grant a new trial. 94 CODE OF CIVIL PROCEDURE Finney v. Northern Pac. Ry. Co., 3 Dak. 270, 16 N. W. 500; Moline Plow Co. v. Gilbert, 3 Dak. 239, 15 N. W. 1; Orleans v. Platt, 99 U. S. 677; Pence v. Langdon, Id. 578; ComVs v. Clark, 94 U. S. 278, 284; Hendrick v. Linds;iy, 93 U. S. 143; Pleasance v. Fant, 22 Wall, 116. Substantial Conflict Rule of Reversal. The conflict in evidence which prohibits a court from interfering with a verdict of a jury on a ques- tion of 'act should be a substantial, not an illusory conflict. Fuller v. North- ern Pac. R. R. Co., 2 N. D. 220, 50 N. W. 359; and whenever an appellate court conscientiously and irresistably reaches the conclusion that a verdict is against the truth and the undoubted weight of the evidence, and could only have been reached by failure of the jury to exercise unbiased and un- prejudiced judgment, such court should unhesitatingly reverse the order of the trial court refusing to vacate such verdict, Id. Reynolds v. Lambert, 69 111. 495; Mfg. Co. v. Reeves, 68 111. 403; Blake v. McMullen, 91 III. 32; Branson v. Caruthers, 49 Cal. 374; Helfrich v. R. R. Co, (Utah), 26 Pac. 295; Lester v. Sallick, 31 la. 477; McKay v. Thorington, 15 la. 25; Carlin v. R. R. Co., 37 la. 316; Reid v. Colby (Neb.), 42 N. W. 485. Preponderance of Evidence. In an action to foreclose mortgages and for personal judgment for deficiency against subsequent grantees of the mortgaged realty who were charged to have assumed payment of the mortgage, evidence exam- ined, and it is held, evidence being conflicting, that this court cannot say that the finding of the trial court was against the clear preponderance of the evidence. Moore v. Booker et al, 4 N. D. 543, 62 N. W 607. Statute of Frauds Conveyance. In a similar action, where the findings are attacked as being against the weight of evidence, held, that a grantee in a deed of property subject to a prior mortgage is not personally liable for the mort- gage debt in absence of an agreement on his part to assume payment of the mortgage. Granger v. Roll et al, S. D , 62 N. W. 970; nor will the fact that the amount of the mortgage was retained by grantee out of purchase price, render him liable, in absence of such agreement, Id. Jones Mort. (5th Ed.), sec. 748 and cases there cited; Belmont v. Colman, 22 N. Y. 438; Shepard v. May, 115 U. S. 505, 6 Sup. Ct. 119; Society v. Bostwick, 100 N. Y. 628, 3 N. E. 296; nor will the fact that the full value of the property is expressed in the deed as consideration of the purchase; Granger v. Roll et al, supra; Elliott v. Sackett, 108 U. S. 132, 2 Sup. Ct. 375; Fisk v. Tallman, 124 Mass. 254; Fowler v. Fay, 62 111. 375; Hubbard v. Ensign, 46 Conn. 576; Johnson v. Monell, 13 la. 300; Gage v. Jenkinson, 58 Mich. 169, 24 N. N. 815; Mason v. Barnard, 36 Mo. 384; Schley v. Fryer, 100 N. Y. 71, 2 N. E. 280; Johnson v. Zink, 51 N. Y. 333. Charge Presumption of Disregard of. Where there is a substantial conflict in the testimony the jury are the sole judges of the weight of evi- dence; and this court cannot say that a charge that certain propositions must be established by a clear preponderance of evidence, was disregarded INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 95 by the jury, simply because we might think the preponderance of testimony does not favor such proposition. Halley v. Folson, 1 N. D. 325, 48 N. W. 219. One Witness Sustaining Verdict. The claim that a verdict is with- out support in the evidence cannot be maintained when the explicit and consistent testimony of one witness sustains it, even though a number of witnesses as explicitly testified to the contrary. Taylor v. Jones, 3 N. D. 235, 55 N. W. 593. Value of Use of Land. In an action involving the val- ue of the use of land, held, that under the evidence the verdict as to the value of the use is justified. Heger et al v. DeGroat, 3jN. D. 354, 56, N. W. 150. Conflicting Evidence Deposit. In an action to recover funds deposited with defendant bank by and to the credit of plaintiff, evidence exam- ined, and certain findings of fact upon conflicting evidence, concerning the transaction, involving a levy upon defendant bank under a judgment, and a deposit in said bank by the officer making the levy, of the money derived from such levy and payment thereafter by the bank of a check for part of said money, the officer having endorsed his certificate of deposit of the amount so levied, to plaintiff, are held, to be supported by the evidence. Martin v. Minnekahta State Bank, .... S. D , 64 N. W. 127; McLaugh- lin v. Bank, 6 Dak. 406, 43 N. W. 715: Farmer v. Rogers, 10 Cal. 335; Bank v. Mason, 95 Pa. St. 113; Bank v. Alexander (Pa.iSup.), 14 Atl. 402; Bank v. Burkhardt, 100 U. S. 689. Substantial Conflict. Where evidence be- fore a jury is substantially conflicting this court will not substitute its own judgment for that of the jury. Johnson v. Gilmore, S. D , 60 N. W. 1070. (c) Negligence Damages. See "Directing Verdict." See also same headings under Subdivision 7, infra. Proximate Cause. Action for damages caused by fire escaping from defendant's train; Held, that whether the fire was the proximate cause of the injury, or whether such injury was the result of another and independ- ent cause, were, under the evidence, questions for the jury, and it was not error to submit them to the jury with proper directions as to the law. Gram v. Northern Pac. R. R. Co., 1 N. D. 252, 46 N. W. 972; Clemens v. R". R. Co., 53 Mo. 366; Kellogg v. R, R. Co., 26 Wis. 223; Higgins v.'Dewey, 107 Mass. 494. Where undisputed evidence shows that the fire consuming plaintiff's property started on defendant's right of way, immediately after a train passed, no other visible cause for the fire appearing, held, the evidence was sufficient to justify the jury in finding that defendants' train threw out and started the fire. Gram v. N. Pac. R. R. Co., supra; Karsen v. R. R. Co., 29 Minn. 1, 11 N. W. 122, and cases there cited. Firebreak. If plaintiff had not established a firebreak, such omission would not constitute negligence per se, but whether negligence was shown by such omission is a question for the jury under instructions. Gram v. N, Pac. R, R. Co,, supra; Erd v. 96 CODE OF CIVIL PROCEDURE. R. R. Co., 41 Wis. 65. Combustible Materials. An instruction that if the evidence shows that combustible materials were permitted by defendant too grow upon its right of way, and that engines upon the road were furnished with best known appliances to prevent escape of fire and were in good order, and that the fire was accidentally and not negligently communicated to these materials and from there to plaintiff's property, defendant is not lia- ble, was properly refused; due care in one direction does not excuse negli- gence in another. Gram v. N. P. R. R. Co., supra. Proximate Cause Sidewalk Constructive Notice. In an action for injury by stepping into a hole in a sidewalk made by displacement of a loose plank thrown out of po- sition by a passing bicycle, held, that the defendant city, being liable for the defective condition of the walk, was liable to plaintiff for damages: First, because the loose plank was one of the proximate causes of the injury; second, that when two causes combine to produce an injury, both of which are in their nature proximate, one being a culpable defect in^the highway and the other some occurrence for which neither party is responsible, the city is liable if the injury would not have been sustained but for the defect for which the city is responsible. Chacey v. City of Fargo, N. D , 64 N. W. 932; and when the defect is a loose sidewalk plank, it is competent to prove that t"he walk had been in a dilapidated condition for a long time, on the question whether the particular defect which caused the injury had existed for a sufficient time to give the city constructive notice thereof; and such evidence is sufficient for that purpose. Chacey v. City of Fargo, supra. Drawbar. Plaintiff sued defendant R. R. Co. for damages fpr injury to him while coupling an engine to a car, the drawbars of the engine and of the car being unusually short and leaving a space of only about ten inches; Held, the evidence was sufficient to justify a verdict that defendant's negli- gence was one of the proximate causes of the injury. Bennett v. N. Pac. R. R. Co., 2 N. D. 112, 49 N. W. 408; R. R. Co. v. Frederick, 71 111. 294; Green- leaf v. R. R. Co., 29 la. 14; Belair v. R. R. Co. 43 la. 662; Curtchfield v. R. R. Co., 78 N. C. 300; R. R. Co. v. Calibreath (Tex.), 1 S. W. 622. Remote Cause. In an action against a railroad company for killing tresspassing cattle, held, under the evidence in this case, that the case was properly sub- mitted to the jury, since, though plaintiff may have been negligent in allow- ing the cattle to stray upon defendant's track, such negligence may have been only the remote cause of the action, and the negligence of defendant's employees in running the train may have been the immediate cause. Sprague v. Fre. E. & M. V. Ry. Co., 6 Dak. 86, 50 N. W. 617. Contributory Negligence Drawhead. In an action against a rail- way company for personal injuries received in coupling an engine to a car, held, under the facts in this case, involving the length of the drawhead of the car, that there was sufficient evidence of defendant's negligence to re- quire submission of that question to a jury; held, also that plaintiff was not INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 97 negligent as matter of law, in remaining on the engine footboard, on the in- side of a curve, nor guilty of contributory negligence as matter of law for standing there, nor for standing there instead of going ahead and setting the pin and then stepping outside the track before the engine and car came to- gether. Bennett v. N. Pac.RR. Co., 2 N. D. 112, 54 N. W. 314. Shipping Contract Caboose. In an action for damges for loss of plaintiff's husband through alleged negligence of defendant by which he was killed, held, that in the absence of knowledge by defendant, or of anything tending to show that contracts under which certain witnesses had, in isolated cases, shipped livestock over portions of defendant's railway, contained provisions and agreements that the owner and shipper shall feed, water and take care of stock during transit at his own expense and risk, and that persons in charge of livestock who are passed on trains with it are so passed to take care of the stock and must ride in the caboose attached to the train, the mere fact that they had ridden in the car with their stock is no evidence of a waiver of such stipulation, whgn freely entered into and acted upon by the shipper. Heumphreus v. Fre., E. & M. V. Ry. Co., .... S. D 65 N. W. 466. Where a shipper of immigrant movables, including a span of horses, rides in the car with his property against objection of the conductor, and in violation of the contract of shipment in which he expressly agreed to ride in the ca- boose, and by reason of such fact alone sustains a fatal injury, the evidence showing no gross negligence on the part of the defendant company, he is guilty of contributory negligence sufficient to defeat recovery, Corson, P. J., dissenting. Heumphreus v. Fre., E. & M. V. R. R., S. D ,'65N. W. 466. Presumptive Negligence. In an action against a railroad company for damages from prairie fire, lield^ the primary fact that defendant's train threw out the fire in question being shown, such fact constitutes a prima fa- cie case of negligence, and creates a disputable presumption of defendant's negligence. Johnson v. N. Pac. R. R. Co., 1 N. D. 354, 48 N. W. 227; Kel- sey v. Ry. Co., 1 S. D. 80, 45 N. W. 207 and cases cited; White v. Ry. Co., 1 S. D. 326, 47 N. W. 146; Nelson v. Ry. Co. (Minn.), 28 N. W. 215; Carsen v. Ry. Co., 29 Minn. 12, 11 N. W. 122. Primary Case Overcome. Where, in an action against a railroad company for negligently killing trespassing stock, the undisputed evidence is that the train, equipped with proper appliances, in good order, and run- ning at a reasonable rate of speed, could not be stopped so as to avoid the ac- cident between the point where the stock might possibly have been discov- ered and the place of collision, the prima facie case of statutory negligence is overcome; and a verdict finding negligence against the defendant is un- supported by the evidence, and a judgment thereon will be reversed. Heb- ron et al v. Chi. M. & St. P. Ry. Co, 4 S, D. 538, 57 N. W. 494. Locomotive 7 TP 98 CODE OF CIVIL PROCEDURE. Setting Fires. Evidence tending to prove that a locomotive engine which caused a fire destroying plaintiff's property also set two other fires about the same time, is not necessarily overcome by evidence that the engine was equipped with the best known appliances for arresting sparks, was in good condition and managed by a competent and trustworthy engineer. Such evidence tends to raise a conflict in evidence as to defendant's negligence, which must be determined by the jury. Smith v. Chi. Mil. & St. P. Ry. Co., 4 S. D. 71, 55 N. W. 717; R. R. Co. v. Hotham, 22 Kan. 41; R. R. Co. v. McCahill, 56 111. 28: Huber v. Hy. Co. 6 Dak. 392, 43 N. W. 819; R. R, Co. v. Gladmon, 15 Wall. 401; Hough v. R, R. Co., 100 U. S. 213; Hoyt v. City of Hudson, 41 Wis. 105; Johnson v. R. R. Co., 5 Duer, (N. Y.) 21; Shear & R. Neg. (4th Ed.) notes to sections 107, 109, Id. sec. 44; Sanders v. Reister, 1 Dak. 151, 46 N. W. 680; Wharton on Neg. sec. 423; Mares v. R. R. Co., 3 Dak. 336, 21 N. W. 5. Presumption Overthrown Court Determines. The presumption of negligence from setting out of a single fire is one of law, and whether such presumption has been fully met and overthrown is in the first instance a question for the court; evidence examined, and held, suf- ficient to overthrow the presumption in this case. Smith v. N. Pac. R. R. Co N. D , 53 N. W. 173; Spaulding v. R. R. Co., 30 Wis. 110, 33 Wis. 582; Bolkman v. R. R. Co., 5 Dak. 69, 37 N. W. 731; Huber v. R. R. Co., 6 Dak. 392, 43 N. W. 819; Koontz v. R. R. Co., (Ore.), 23 Pac. 820; Kel- sey v. R. R. Co., 1 S. D. 80, 45 N. W. 204; R. R. Co. v. Talbot, 78 Ky. 621; R. R. Co. v. Packwood, 7 Am. & Eng. R. Cas. 584; R. R. Co. v. Reese, 85 Ala. 497, 5 So. 283; and the mere fact that the fire was started 118 feet from the track is insufficient in itself to warrant submission of the question of negligence to the jury. Smith v. N. Pac. R. R. Co. supra. Gist of Ac- tionRebuttal. In an action against a railroad company for negligently killing a cow trespassing on its track, negligence is the gist of the action, and when the presumption of negligence. is overcome by the evidence of de- fendant, plaintiff, to entitle him to recover, must prove facts tending to show the killing caused by negligence of defendant sufficient to warrant a jury in finding such negligence, which evidence need not be direct and pos- tive, but such as to justify reasonable men in finding the killing to be the result of negligence by defendant or its employees. Harrison v. Chi. Mil. & St. P. Ry. Co., S. D. . . ., 60 N. W. 405; and the evidence offered by plaintiff must establish more than a mere probability that the killing was caused by negligence of defendant, it must be sufficient to bring conviction to fair minded men, without resorting to conjecture or uncertain and incon- clusive inferences; Id. Hebron v. Ry. Co., 4 S. D. 538, 57 N. W. 494. Kill- ing and Value Rebuttal. In an action against a railway company for neg- ligent killing of an animal, proof of the killing and of the value constitutes a prima facie case for plaintiff; but if defendant shows conclusively by un- disputed evidence that the train was in good repair and condition, equipped INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 99 with best appliances, etc.. and operated skillfully and with due care, the statutory presumption of negligence arising from the killing is overcome; and the trial court erred in refusing to direct a verdict for defendant, which error was reversible. Hodgins v. Minneapolis St. P. & Ste. M. R. Co., 3 N. D. 382, 56 N. W. 139. Negligence Affirmative Proof . Where a party makes a fire upon his own land for a lawful purpose, and the fire spreads to other land, the person complaining must affirmatively prove negligence of which the fire is no evi- dence; and in the absence of evidence tending to prove such negligence plaintiff cannot recover. Mattoon v. Fre. E. & M. V. R. Co., S. D. ...., 60N. W. 69; Shear. & R. Neg. (4th Ed.), sec. 668; 1 Thomp. Neg. pp. 55-6; Tourtellotv. Rosebrook, 11 Mete. (Mass.), 460; Losee v. Buchan- an, 51 N. Y. 476; Clark v. Foot, 8 Johns. 421; 3 Bl. Comm. 43; Stewart v. Hawley, 22 Bark. 619; Calkins v. Barger, 44 Barb. 424; Lansing v. Stone, 37 Barb. 15; Barnard v. Poor, 21 Pick. 378; Batchelder v. Heagan, 18 Me. 32; Catron v. Nicols, 81 Mo. 80; Higgins v. Dewey, 107 Mass. 494; Sturgis v. Robbins, 62 Me. 289; Sweeney v. Merrell, 38 Kan. 216, 16 Pac. 454; Radcliffe v. Mayor, etc., 4 N. Y. 195; Moe v. Job, 1 N. D. 140, 45 N. W. 706. Express Proof. In an action against a railroad company for negligent injury to a passenger, negligence must be expressly proved, or facts shown supporting an imputation of negligence, and the cause or the nature of the action re.- sulting in the injury must be shown. Saunders v. Chi. & N. W. Ry. Co., S. D , 60 N. W. 148; Lebarron v. Ferry Co., 11 Allen (Mass.), 316; and where plaintiff simply proves that while standing at the open door of the railway coach in which he was riding "there was a fearful shock," re- sulting in his fall and injury, nothing showing or suggesting the cause or nature of the shock there is no evidence of defendant's negligence, and a verdict was rightly directed in its favor. Saunders v. Ry. Co. supra; Hoi- brook v. Ry. Co., 12 N. Y. 236; Curtis v. R. R. Co. 18 N. Y. 534; Thomas v. R. R. Co., 148 Pa. St. 180, 23 Atl. 989; Stern v. R. R. Co., 76 Mich. 591, 43 N. W. 587; Clark v. Barnwell, 12 How. 272. Directing Verdict Latent Hazard Servant. In an action for dam- ages for personal injury for alleged negligence of defendant, Held, that while a servant generally takes upon himself the risks necessarily incident to his employment, still, if the employer has knowledge of a latent hazard which the servant does not know, and which, with proper deligence or reas- onable observation he would not know, he ought not to be held to have as- sumed such concealed hazard; but where the facts or conditions increasing ordinary hazard are or should be plainly apparent to the servant, without effort on his part, he is bound to see and understand, and if he continue work without objection, he will be held to have assumed such risk; that in such case the employer is not required to inform the servant of facts which he is justified in believing the servant already knows and understands; and 100 CODE OF CIVIL PROCEDURE. held, upon the evidence, that plaintiff is not entitled to recover, and the trial court should have granted defendant's motion to direct a verdict in its favor. Carlson v. Sioux Falls Water Co., (on rehearing) S. D. . . ., 65 N. W. 419. Negligence Question for Jury. When the facts are disputed, or when they are not disputed but different minds might honestly draw differ- ent conclusion from them, the question of negligence should be left to the jury for their determination. Williams v. N. Pac. R. R. Co. 3 Dak. 168, 14 N. W. 97. Jury Determines Evidence. It is the jury's right to deter- mine the probative force of evidence; and a positive statement of a witness may be rejected by the jury, in the light of other evidence and circumstan- ces; so held, as to the testimony of an engineer in a stock killing case. Lighthouse v. Chi. Mil. & St. P. Ry. Co., 3 S. D. 518. 54 N. W. 320. Fire Break. In an action to recover damages caused by fire set in violation of sec. 2392 Cornp. Laws, evidence was given tending to prove that defendant directed his employee, by whom it is claimed the fire was set, to make a "fire break" around a tree claim under control of defendant, and to "burn it off;" held, the case should have been submitted to the jury. Knight v. Towles, .... S. D ,62N. W. 964; R. R- Co. v. Stout, 17 Wall. 657; Held, also, that the question whether the employee was acting within the scope of his authority should also have been submitted. Knight v. Towles, su- pra; Meachem on Ag. sec. 745, 746; People v. Roby, 52 Mich. 579, 18 N. W. 365; George v. Gobey, 128 Mass. 289; Worley v. Spurgeon, 38 la. 465; Peter- son v. Knoble, 35 Wis. 85; Osborn v. McMasters, 40 Minn. 103, 41 N. W. 543; Smith v. Reynolds, 8 Hun. 130; Paley on Ag. p. 294, note 1; Id. 302, note 1; Mattoon v. R. R. Co S. D , 60 N. W. 69. Conflicting Evidence. Where the evidence is conflicting upon a question of negligence the verdict will not be set aside on the ground of in- sufficiency of evidence; evidence examined, and held sufficient to support the verdict. Bishop v. Chi., Mil. & St. P. Ry. Co., 4 N. D. 536, 62 N. W. 605. Held, also, that the question of negligence in this case, involving killing an animal at a private crossing, was properly submitted to the jury. Id. Dif- fering Minds. Facts fairly proved, from which different unprejudiced minds mightjproperly draw different conclusions as to cause of death or in- jury proved, are sufficient to send the case to the jury; and the verdict of the jury in such-case, affirmed -on'motion for a new trial, will not be dis- turbed. Sweet v. Chi. Mil. & St. P. Ry. Co S. D , 60 N. W. 77. Nor is an eye witness to the*killing,of stock necessary. Id. Stutsman v. R. R. Co. (la.), 6 N. W. 63; Clark v. R. R. Co., 55 la. 455, 8 N. W. 328. (d) Directing Verdict. Where the court below denied plaintiff's mo- tion to direct a verdict, the facts alleged in the complaint being supported by undisputed evidence, and the facts alleged in defendant's answer and proven on the trial were clearly insufficient as a defense, held, error. Western INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 101 Pub. House v. Murdick et al, 4 S. D. 207, 56 N. W. 120; Western Pub. House v. Bachman et al, 2 S. D. 512, 51 N. W. 214; Western Pub. House v. Twp. of Rock (la.), 50 N. W. 551. Must be Undisputed. When a verdict is direct- ed for either party the evidence of the opposite party must be considered as undisputed, and must be given the most favorable construction for him, he must have the benefit of all reasonable inferences arising therefrom; and only where his testimony thus considered, could not legally sustain a ver- dict in his favor, is a court warranted in directing a verdict against him. Carson et al v. Gillett, 2 N. D. 255, 50 N. W. 710. Collateral Security- Negligence. The mere fact that the creditor selected a reputable firm of attorneys to make collection of notes and mortgages delivered to him as collateral security, he to collect them and apply proceeds to the debt secured, there being a dela,y until the collateral became worthless, caused by negligence of the attorneys, will not warrant the court in directing a verdict in the creditor's favor. Plymouth Co. Bank v. Oilman, 6 Dak. 304, 50 N. W. 194. Evidence Not Preponderating. That the evidence does not preponderate in favor of plaintiff is not ground for direction of a verdict in favor of defendant. Mattoon v. Fre., E. & M. V. Ry. Co., S. D , 60 N. W. 740, affirming same case in 60 N. W. 69. Ownership. Where evi- dence establishes prima facie ownership in plaintiff, it was error in the court below to direct a verdict for the defendant on the ground that plain- tiff had shown no evidence of its title to the property. Warder, Bushnell & Glessner Co. v Ingli, 1 S. D. 155, 46 N. W. 181. A failure to offer evidence supporting material averments entitles defendant to a directed verdict. Hermann v. Sherin, S. D , 60 N. W. 145; but a verdict should not be directed against a plaintiff at the close of his case, when the facts and cir- cumstances fairly tend to prove the allegations of his complaint. Id.; Bates v. R. R. Co., 4 S. D. 394, 57 N. W. 72; Williams v. R. R. Co., 3 Dak. 168, 14 N. W. 97; Mares v. R. R. Co., 3 Dak. 336, 21 N. W. 5. Directed Verdict is Court's Ruling. Where the court at the close of the testimony directed a verdict, the verdict is not that of the jury upon a question of fact, but the court's ruling upon a question of law, and if erron- eous, is an error of law occurring on the trial, and may be reviewed in this court without motion for a new trial. Jones Lum. and Mer. Co. Faris, sheriff, S. D , 60 N. W. 403; Cravens v. Dewey, 13 Cal. 40; Jones Lum. & Mer. Co. v. Faris, 5 S. D. 348, 58 N. W. 813. Any Legal Evidence. The existence of any legal evidence upon which a verdict can be based, is a question of law for a court; and it is error to refuse an instruction asked by defendant after the testimony is closed, directing a verdict in his favor, when upon the evidence in the record such verdict must properly be set aside. Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Thomp. on Tr., sec. 2247 2249; Star Wagon Co. v. Matthiessen, 3 Dak. 233, 14 N. W. 107. Where the court at the close of the trial directed a verdict in defendant's 102 CODE OF CIVIL PROCEDURE. favor, lield, under the evidence in this case, such order was substantial error to plaintiff's prejudice, and a rew trial must be granted, the evidence rea- sonably tending to sustain the allegations of the complaint and should have been submitted to the jury. Slattery v. Donnelly, 1 N. D. 264, 47 N. W. 375. Conversion of Wheat. Where plaintiff held a chattel mortgage, duly filed, upon wheat, which wheat was sold to the defendant Elevator Co. after the mortgage debt was due, the wheat being delivered and warehouse receipt given therefor, which receipt was by direction of the vendee delivered to a co-defendant who claimed the wheat, and the Elevator Co. cashed the re- ceipt, other facts and circumstances existing; and plaintiff sued both de- fendants for value of the wheat and conversion thereof, held, the trial court erred in denying a motion to direct a verdict in favor of the Elevator Co. Sanford v. Bell et al, 2 N. D. 6, 48 N. W. 434; held, further, that the court erred in refusing to charge the jury upon the law of conversion of property, the re- fusal being for the reason that the undisputed testimony showed a conver- sion of the wheat. Id. Claim and Delivery. Where the undisputed evi- dence shows that plaintiff is the owner and entitled to immediate possession of property described in his complaint in claim and delivery, the court may determine the question of ownership and possession as matters of law, and instruct the jury in effect requiring them to find from the evidence the value of the property and to return a verdict in favor of plaintiff. Griswold v. Sundback et al, 4 S. D. 441, 60 N. W. 1068 (on rehearing). Submission to Jury Waived. Where defendant moves for verdict in his favor at close of plaintiff's case, which is denied^ no evidence being of- fered by defendant, and the court thereafter directs a verdict for plaintiff, defendant not requesting submission of case to the jury, it is not error to direct a verdict for plaintiff, if there was sufficient evidence to support it. Yankton F. Ins. Co. v. Fremont, E. & M. V. R. R. Co., S. D ,64 N. W. 514; Dillon v. Cockroft, 90 N. Y. 649; Ormes v. Dauchy, 82 N. Y. 443; O'Neill, v. James, 43 N. Y. 84; Trustees v. Kirk, 68 N. Y. 459 (464); Winchell v. Hicks, 18 N. Y. 558; Grigsby v. Tel. Co., 5 S. D. 561, 59 N. W. 734; Barnes v. Ferine, 12 N. Y. 18; held,, further, that the evidence sup- ports the verdict directed. Yankton F. Ins. Co. v. Fre. E. & M. V. Ry. Co., supra. Void Warrants Ratification. In an action against a school dis- trict upon school district warrants, held, under the evidence, that said war- rants were issued under a void contract, and could not be made binding by subsequent ratification, and the trial court rightly directed a verdicttin fav- or of defendant. Capital Bank of St. Paul v. School Dist. No. 53 of Barnes county, 1 N. D. 479, 48 N. W. 363; Bank v. Willow Lake Tp., 1 N. D. 26, 44 N. W. 1002; Farmers, etc. Bank v. School Dist. No. 53, 6 Dak. 255. 42 N. W. 767; Kane v. School Dist. No. 3, 52 Wis. 502, 9 N. W. 459; Clark v. School Dist. No. 1, 78 111. 474; Dickinson v. City of Poughkeepsie, 75 N. Y. 65; People v. Gleason, 121, N. Y. 631, 25 N. E. 4; Addis v. City of Pittsburg, 85 Pa. INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 103 St. 379. Two Causes One Affirmative Defense. In an action on a fire in- surance policy where defendant put in issue allegations of two causes of ac- tion in the complaint, and set up an affirmative defense good only on the theory that the action was on the policy, lield, no error to direct a verdict for plaintiff where the undisputed evidence established a liability under the policy, although plaintiff failed to prove an alleged promise. Purcell v. St. Paul F. & M. Ins. Co., .... N. D , 64 N. W. 943. Warranty of Title- Eviction. In an action for breach of Warranty in a deed of land, lield, that in the absence of fraud or anything to overcome the presumption that the vendor is able to respond in damages, a purchaser in possession under a deed with covenants of general warranty, who has neither been evicted nor disturbed in his possession or quiet enjoyment, cannot by showing a mere defect in title, defeat an action to recover a balance of the purchase price; and that the trial court properly refused to direct a verdict for de- fendant upon the evidenoe. Price v. Hubbard, S. D , 65 N. W. 436. Contributory Negligence Burden of Proof. The burden of proof showing contributory negligence rests upon defendant, and unless such neg- ligence conclusively appears from plaintiff's testimony, the court cannot take the case from the jury. Ouverson v. City of Graf ton, N. D , 65 N. W. 676; Gram v. R. R. Co., 1 N. D. 252, 46 N. W. 972. Trespass- Reasonable Care. The exercise of reasonable care to prevent injury to trespassing animals upon a railway track relieves the company from liabil- ity in case the animals are struck by a train. Lewis v. Fre. E. &. M. V. Ry. Co., S. D , 63 N. W. 781; and in this case the trial court should have directed a verdict for defendant, though the killing is admit- ted, when the statutory presumption of negligence arising therefrom has been clearly overcome by undisputed evidence. Id. Hebron v. Ry. Co. 4 S. D. 538, 57 N. W. 494; Harrison v. Ry. Co., . . . . S. D , 60 N. W. 405. Fire Policy. In an action on a fire insurance policy, the facts reviewed and it is Mid, that the evidence shows that certain persons were agents of plaintiff and not of the insurance company. Fromherz v. Yankton F. Ins. Co., .... S. D , 63 N. W. 784; Allen v. Ins. Co., 123 N. Y. 6, 25 N. E. 309; Wilber v. Ins. Co., 122 N. Y. 443, 25 N. E. 966; Ins. Co. v. Reynolds, 36 Mich. 502; Lange v. Ins. Co., 3 Mo. App. 591; May on Ins. sec. 123; South Bend Toy Mfg. Co. v. Dak. F. & M. Ins. Co., 2 S. D. 17, 48 N. W. 310; held, further, that there being no disputed questions of fact, a verdict for de- fendant was properly directed. Fromherz v. Yankton F. Ins. Co., supra. Any Material Question. If upon any material question of fact, the jury might reasonably have found for plaintiff under the evidence, it is error for the court to direct a verdict for defendant. Consolidated Land & Irrigation Co. v. Hawley, sheriff, . . . . S. D , 63 N. W. 904. Undisputed Legal Effect Declared. Where the evidence leaves the 104 CODE OF CIVIL PROCEDURE}. facts undisputed, and they are such that different conclusion or inferences could not reasonably be drawn from them, it becomes the duty of the court to declare their legal effect. McCormick Harvester Co. v. Faulkner, S. D , 64 N. W. 163; and upon examination of the evidence, held, that the trial court properly concluded that the material evidence on part of de- fendant was undisputed, and was such that but one conclusion could reasonably be drawn therefrom, and a verdict for defendant was properly directed. Id. Bates v. R. R. Co., 4 S. D. 394, 57 N. W. 72. Fire Policy Other Purposes. In an action by a school district against an insurance company to recover for loss of school house, the contract containing a representation that the building is used for school and church purposes, and that if used for other purposes without consent of insurer, or risk be increased, etc., without the company's consent, it shall be null and void, the court should direct a verdict for defendant when the conclusive undisputed 'evidence shows that without defendant's consent the district officers, duly authorized, knowingly and habitually permitted the building to be used for other purposes thereby greatly increasing the risk, directly resulting in the loss. School Dist. No. 116 of Minnehaha Co. v. Ger. Ins. Co. of Freeport, S. D , 64 N. W. 527. Plaintiffs Theory Equity Contract. In an action against one part- ner for deceit practiced by his partner, the trial court, in excluding ev- idence, asserted that plaintiff cannot recover on the theory he is pursuing; held, plaintiff is not bound, in absence of notice that he must do so, to offer proof of other allegations in his complaint; for purpose of review here they are deemed capable of proof by plaintiff had not the adverse ruling been made. Brundage v. r Mellon, .... N. D , 63 N. W. 209; Loab v. Willis, 100 N. Y. 231, 2 N. E 177. In an action upon notes for purchase money of realty, a bond for deed having been given for the realty by plaintiff to de- fendant, and plaintiff, without tendering a conveyance thereunder, quit- claimed the land to one who conveyed the same to the defendant, plaintiff retaining the notes, held, error to direct a verdict for plaintiff on notes. Shelly v. Mikkelson, . . . . N. D , 63 N. W. 2!0; Bank v. Hagner, 1 Pet. 455; Loud v. Water Co., 153 U. S. 564, 14 Sup. Ct. Rep. 928; Hogan v. Kyle, 7 Wash. 595, 35 Pac. 399; Baumann v. Pinkney, 118 N. Y. 604, 23 N. E. 916; Rock Island Lum. & Mf'g Co. v. Fairmont Town Co., (Kan. Sup.) 32 Pac. 1100; 22 Am. & Eng. Ency. Law 947, note 7; Com p. Laws, sec. 4627-4629, 4635; Johnson v. Wadsworth, (Ore.), 34 Pac. 13; Warv. on Vend. p. 961; Rindge v. Baker, 57 N. Y. 209; held, further, that this was essentially an ac- tion in equity, in which vendor must tender a conveyance or be compellable by decree to perform his contract, or he cannot recover; Id.; held, further, that the notes and bond were one contract embracing mutual dependent cov- enants. Id. Hill v. Grigsby, 35 Cal. 656; Underwood v. Tew (Wash.), 34 Pac. 1100; Classell v. Coleman, 94 Cal. 260, 29 Pac. 508; Devine v. Devine, 58 INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 105 Barb. 264; McCroskey v. Ladd, 96 Cal. 435, 31 Pac. 558; held, further, that defendant might assume, prima facie, that plaintiff, who transferred the land to a stranger without tendering conveyance to defendant, intended to abandon the contract and to turn over to his grantee all his rights and obli- gations under the contract and the trust relation created by it, and if defen- dant purchased of plaintiff's grantee without notice that plaintiff had re- served the right to recover the purchase money, plaintiff could not recover in this suit; Shelly v. Mikkelson, supra; Sons of Temperance v. Brown, 9 Minn. 157 (Gil. 144); Ten Eick v. Simpson, 1 Sandf. Ch. 246; Mackreth v. Symmons, 15 Ves. 350; Champion v. Brown, 6 Johns Ch. 403; 2 Story's Eq. Jur. sec. 784; Burwell v. Jackson, 9 N. Y. 535; Wyvell v. Jones, 37 Minn. 68, 33 N. W. 43; Bennett v. Phelps, 12 Minn. 326 (Gil. 216); Taylor v. Read, 19 Minn. 372 (Gil. 317). Rescinding Contract Warranty. In an action upon a note given for purchase price of a separator, involving a contract of sale and certain war- ranties and representations thereunder, and other specifications in the con- tract, defendant alleging breach of warranty, and a counterclaim, and a ver- dict was directed for plaintiff, on the theory that defendants had waived claims for damages or by way of counterclaim; held, that the proof showed failure of plaintiff to remedy the defect in the machine, and that under the contract defendants were bound to return it, and by failing to do so waiVed any claim for breach of warranty; and that the motion upon this evidence, to direct the verdict, was properly granted. Minn. Thresher Mf'g Co. v. Lincoln et al, 4 N. D. 410, 61 N. W. 145; Fahey v. Machine Co., 3 N. D 220, 55 N. W. 580. A verdict based upon and sustained by legal evidence will not be disturbed on appeal. Demmon v. Mullen, S. D , 62 N. W. 380; Klockenbaum v. Pierson, 22 Cal. 160; Cooper v. State, 120 Ind. 377, 22 N. E. 320; Carson v. Henderson, 34 Kan. 404, 8 Pac. 727; Evans v. Christo- pherson, 24 Minn. 330; Petefish v. Witkins, 124 111. 384, 16 N. E. 248; State v. Oeder, 80 la. 72, 45 N. W. 543; Dollman v. Munson, 20 Mo. 85, 2 S. W. 134; Wieting y. Town of Millston, 77 Wis. 523, 46 N. W. 879. No Question of Fact Sale. Where the court directed a verdict for defendants, on the ground that no question of fact was presented for a jury, the action being one to recover for fraudulent representations on sale of a horse, held, in the absence of an allegation that plaintiff relied upon the representations, the evidence that he did should be conclusive of the fact, and that the evidence would not justify the jury in finding for the plaintiff on that issue, and that the court properly directed a verdict. Sioux Banking Co. v. Kendall et al, .... S. D. ... , 62 N. W. 377; Bank v. North, 2 S. D. 480, 51 N. W. 98; Coo- ley on Torts, 502; Lefler v. Field, 52 N. Y. 621; Slaughter's Admn'r v. Ger- son, 13 Wall. 379; Taylor v. Guest, 58 N. Y. 262; Van de Sande v. Hall, 13 How. Pr. 458; Goings v. White, 33 Ind. 125. Consideration Settlement of Dispute. Action on promissory note, and verdict directed for plaintiff, principal defense being want of considera- 106 CODE OF CIVIL PROCEDURE. tion; evidence examined and found insufficient to show that a compromise was intended to be made, or that the dispute between the parties was finally settled; the note arising out of that transaction. McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460; Anthony v. Boyd (R. I.), 5 Atl. 701; Demars v. Mfg. Co. (Minn.), 35 N. W. 1; Smith v. Farra {Ore. ), 28 Pac. 241; Wahl v. Barnum, 116 N. Y. 87, 22 N. E. 280; Pitkin v. Noyes, 48 N. H. 294; White v. Hoyt, 73 N. Y. 505; Ex Parte Banner, 17 Ch. Div. 480; Miles v. Estate Co., 32 Ch. Div. 266-275; Spahr v. Hollingshead, 8 Blackf. (Ind.) 415; Creutz v. Heil (Ky.) 12 S. W. 926; Bellows v. Sowles, 55 Vt. 39; Kidder v. Blake, 45 N. H. 530; Cline v. Templeton, 78 Ky. 550; Everingham v. Meighan, 55 Wis. 354, 13 N. W. 269; Turner v. Peacock, 13 N. C. 303; Feeter v. Webber, 78 N. Y. 334; 2 Pom. Eq. Jur. 9850; 1 Pars. Cont. pp. 438-9; Kercheval v. Doty, 31 Wis. 476-485; Grandin v. Grandin (N. J. Sup.), 9 Atl. 756. Guaranty of Collectibility. In an action upon a guaranty of collectibility of promissory notes secured by chattel mortgage, new notes and mortgages from debtors and a third party being taken as collateral to the original papers, held, that plaintiffs had the burden of showing, in order to recover, that they had prosecuted all legal remedies against the original debtors, and that in this case they failed to do so, being guilty of laches, notwithstanding insolvency of the original debtors; and the trial court would have been justified in directing a verdict for defendants, and properly instructed for defendants; held, also, in the absence of evidence on the part of the defense, that the verdict is justified by the evidence. Roberts, Throp&Co. v. Laughlinetal, 4 N. D. 167, 59 N. W. 967; Craig v. Parkis, 40 N. Y. 181; McMurray v. Noyes, 72 N. Y. 523; Crane v. Wheeler (Minn.) 50 N. W. 1033; Dewey v. Investment Co., Id. 1032; Brandt on Surety. & G., sec. 98, 99. Fraudulent Mortgage. The undisputed evidence showed that an apparently valid chat- tel mortgage was withheld from record by express agreement of the parties, for the purpose of enabling the mortgagor to purchase more goods, and that while so withheld a large part of the goods for which plaintiff recovered judgment on which execution issued and the sheriff directed to levy, was purchased of plaintiff; held, that the mortgage was presumptively fraudu- lent and void as to such creditor, and the trial court properly directed a ver- dict for plaintiff as matter of law (Ayers, Weatherwax & Reid Co. v. Sund- back, distinguished); Jewett et al v. Sundback, sheriff, 5 S. D. Ill, 58 N.W. 20; Paper Co. v. Guenther, 67 Wis. 101, 30 N. W. 298; Thompson v. Van- Vechten, 27 N. Y. 568; Fearey v. Cummings, 41 Mich. 383, 1 N. W. 946; Crippen v. Fletcher, 56 Mich. 386, 23 N. W. 56; Potts v. Hart, 99 N. Y. 168, 1 N. E. 605; Robinson v. Elliott, 22 Wall 513. Accounting- Burden of Proof The burden of proof is on one suing his agent for moneys received by him for use of plaintiff, to show the amount received and not accounted for; and the agent has the burden of accounting for all moneys which he admits he received; held, under the facts in this case, it was error to direct INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 107 a verdict for defendant. Anderson v. First. Nat. Bank of Grand Forks, 4 N. D. 182, 59 N. W. 1029. (e). Question for Jury. Different Conclusions on Evidence. Where the evidence leaves the facts undisputed, and different conclusions or inferences could not reasona- bly be drawn therefrom, the court should declare their legal effect; but if the facts are disputed or, if undisputed, are such that different impartial minds might fairly draw different conclusions from them, they should be submitted to the jury. Bates v. Fremont E. & M. V. R. Co., 4 S. D. 394, 57 N. W. 72; Williams v. R. R. Co., 3 Dak. 168, 14 .N. W. 97; Mares v. North. Pac. R. R. Co., 3 Dak. 336, 21 N. W. 5; R. R. Co. v. Van Steinburg, 17 Mich. 122; R. R. Co. v. Stout, 17 Wall. 657; Norton v. Ittner, 56 Mo. 351; Abbott v. Ry. Co., 30 Minn., 482, 16 N. W. 266; Totten v. R. R. Co., 10 N.Y. Supp 572; 11 Am. & Eng. Ency.. of Law, p. 463 et seq.; 2 Thomp. Neg. p. 1236. Bank Draft Agency. In an action upon a draft drawn by the cash- ier of a banking partnership upon himself and endorsed by him to plaintiffs, held, in view of the evidence, that the presumption that said draft was drawn without authority was overcome by the facts and circumstances in eviedence, which evidence should have been permitted to go to the jury under proper instructions relating to acquiescence or authority. Noyes et al v. Crandall etal, S. D , 61 N. W. 806. "Beer," Judicial Notice. In the ab- sence of a statute declaring that "beer" shall be deemed an intoxicating liquor, the mere statement of witnesses that they bought beer, without evi- dence as to the purpose for which it was bought, or that it contained malt, or of its effect when used, or of the manner of its making, is insufficient to show it an intoxicant; and the court will not take judicial notice that beer so sold was a malt or intoxicating liquor. State v. Sioux Falls Brewing Co. et al, 5 S. D. 39, 58 N. W. 1. (Rehearing denied, 5 S. D. 360, 58 N. W. 928); Blatz v. Rohrback, 116 N. Y. 450 22 N. E. 1049; 11 Am. & Eng. Ency. of Law, pp. 579, 580; Nesto v. State (Fla.) 5 So. 8; Hansberg v. People, 120 111. 21, 8 N. E. 857; Com. v. Chappel, 116 Mass. 7; Com. v. Bios, Id. 56; State v. Starr, 67 Me. 242; State v. Wall. 34 Me. 165; State v. Biddle, 54 N. H. 379; State v. Beswick, 13 R. I. 211; Kerkow v. Bauer, 15 Neb. 150, 18 N. W. 27; Black on Intoxicating Liquors, sec. 521 and cases there cited; Rice on Ev. p. 97. Same Question for Jury. Under a statute which does not specifi- cally name the liquors the sale of which it prohibits, but considers all liquors intoxicating which are spirituous, malt, vinous, or fermented, as well as all mixtures thereof which will produce intoxication, the malt or in- toxicating quality of beer is a matter of evidence, the weight and sufficiency of which is for the court or jury, as the case may be. State v. Sioux Falls Brew. Co. et al supra, and cases there cited. "Lager Beer." Courts will take judicial notice that the drink known in this state as "lager beer" is an intoxicating liquor; the evidence being positive and uncontra- 108 CODE OP CIVIL PROCEDURE. dieted, there being no evidence tending to show a sale of anything else; there is nothing to be reconciled between the holdings in State v. Brewing Co., 5 S. D. 39, 56 N. W. 1, and this case; State v. Church, S. D , 60 N. Y. 143. Acceptance of Security Law Question. Where the undisputed evi- dence shows that at a creditor's request the debtor promised security with- out mentioning any property for security; the filing of a chattel mortgage of which the debtor notified the creditor, the creditor accepting the secur- ity; lield, as between the mortgagee and an execution creditor of the mort- gagor whose lien did not attach until after the mortgage was filed, that there was no question as to delivery and acceptance of the mortgage to be submitted to the jury. Keith v. Haggart, 2 N. D. 18, 48 N. W. 432. Exe- cution of Mortgage. And in an action between such mortgagee and a rep- resentative of the creditor of such mortgagor whose debt existed prior to the execution of the mortgage, and where the only evidence that the mort- gage was witnessed by parties whose name appeared thereon as witnesses, came from a witness against whom impeaching testimony was introduced, and the evidence also tended to show that one of the alleged witnesses left the territory before the mortgage was executed and did not return, held, that the question of tLe proper execution of the mortgage should have been sub- mitted to the jury. Keith v. Haggert, supra. Invoice Price. Where the question of the purchase of an invoice of lumber, and the price thereof, was involved, held, under the facts in this case, that it was error to refuse to sub- mit to the jury the question whether the agreed price differed from the in- voice price; and that defendant was not bound by the price stated in the in- voice. Edwards & McColloch Lum. Co. v. Baker, 2 N. D. 289, 50 N. W. 718; Strohn v. R. R. Co., 21 Wis. 562; King v. Woodbridge, 34 Vt. 5H5; 2 Whart. Ev. sec. 927; 4 Lawson Rights, Rem. & Pr., sec. 1853; Black v. R. R. Co., Ill 111. 351. Notes in Payment Time for Approval. Where creditors, who had received from a debtor certain notes of third persons, to be accept- ed in payment if approved by a creditor, lield, a delay of over forty days after receiving the notes, in notifying debtor of the disapproval of them, raised a question of fact for the jury as to whether more than a reasonable time was taken in which to manifest disapproval. Acme Harvesting Co. v. Axtell, . . . . N. D , 65 N. W. 680; 19 Am. & Eng. Ency. Law 642, note 2; Wash- ington v. Johnson, 7 Humph. 468. 'Rescission of Sale Property State- ment. In an action in claim and delivery to recover possession of an invoice .of merchandise sold by plaintiffs, held, under the evidence appearing, that a statement of assets and liabilities made as basis for credit, and itemizing the property, is not sufficient as matter of law, as basis of rescission of a sale and delivery of goods upon the grounds of false and fraudulent representations, it appearing from undisputed evidence that plaintiffs knew when the credit was extended that defendants were unable to pay their debts as they fell due INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 109 in course of business; and the fact that defendants omitted to notify plaint- iffs of a pending- suit upon a portion of their indebtedness, for the alleged reason that they believed the creditor in the suit never intended to proceed to judgment, was a circumstance to be considered by the jury with other ev- idence. Tootle et al v. Petrie, sheriff, S. D. . . . ., 65 N. W. 43. (/). Pleadings Issues. See same headings under Subd. 7, Infra. Improper Evidence. Upon a material issue evidence which this court regards as important, consisting of a statement of the cashier of the defend- ant bank that the failure to collect the note and mortgage with reference to which the bank was charged with negligence, was the fault and negligence of the bank, was improperly admitted by the trial court; such statement not be- ing a statement of fact and not within the scope of the authority of the cashier; and this court cannot say that such evidence did not unjustly prejudice plaintiff's case. Plymouth Co. v. Oilman, 3 S. D. 170, 52 N. W. 869 (af- firmed on rehearing 4 S. D. 265, 56 N. W. 892.) Countervailing Proof. Findings. Where several issues of fact are involved in a pleading, and the referee returns findings omitting findings upon some issues, and judgment is rendered upon such findings without suggestion or objection of the par- ties, which judgment is consistent with and supported by the findings, the judgment will not be reversed unless appellant shows that evidence was of- fered upon one or more of such issues not found upon by the referee, and that such evidence would have supported a finding wnich would countervail the findings made. Merchant's Nat. Bank v. McKinney et al, 4 S. D. 226, 55 N. W. 929; Edinburgh-Amercan L. & M. Co. v. City of Mitchell, 1 S. D. 593, 48 N. W. 134; Hutchings v. Castle, 48 Cal. 152; Himmelman v. Henry, 84 Cal. 104, 23 Pac. 1098; Winslow v. Gohransen, 88 Cal. 450, 26 Pac. 504; Dolliver v. Dolliver, 94 Cal. 642, 30 Pac. 4; Fincher v. Malcolmson (Cal.), 30 Pac. 835. Appellant Cannot Complain, When. An appellant cannot complain in this court that no finding was returned upon an issue, when the record shows that such finding if made must have been against him. Mer- chants Nat. Bank v . McKinney et al supra, and cases last above cited. Admis- sion in Answer. The question of sufficiency of the evidence to sustain the verdict will not be considered as to an allegation not controverted by the answer. Bauder v. Schamber et al, S. D , 63 N. W. 227. Amend- ment Proof. In an action to recover an alleged balance in defendant's hands arising from a supposed sale by defendant as agent for plaintiff, it ap- pearing on a review of the evidence that plaintiff was misled by defendant's conduct to believe the latter had sold to a third person, on which theory the complaint was framed, defendant's cashier having testified to the un- disputed fact that defendant sold the property to itself, held, an abuse of dis- cretion for the trial court to refuse to allow plaintiff to amend his complaint to conform to the proof. Anderson v. First Nat. Bank of Grand Forks, 110 CODE OF CIVIL PROCEDURE N. D , 64 N. W. 114; Cook v. Croysan (Ore.), 36 Pac. 532; Drew v. Hicks (Cal.) 35 Pac. 563, 565; Cooper v. Wood (Colo. App.), 27 Pac. 884; Yetzer v. Young, 3 S. D. 263, 52 N. W. 1054; Jenkinson v. City of Vennil- lion, 3 S. D. 238, 52 N. W. 1066; Lefler v. Sherwood, 21 Hun. 573. Incom- petent Evidence -Prejudice Presumed. When error is shown in the re- fusal of the court to strike out material incompetent evidence, the presump- tion is that prejudice resulted to the party; and unless this court can see that no such result ensued the case must be reversed and a new trial granted. Wendt v. Chi. St. P. M. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226. Effect of Findings Claim and Delivery. A verdict of a jury in an action of claim and delivery finding the issues in favor of defendant, will ordinarily be con- strued with reference to the presumption that the property in question was taken from the possession of defendant, and not as finding that defendant was not in possession at commencement of the action. Pitts Agricultural Works v. Young, S. D , 62 N. W. 432. Immaterial Issues. And a judgment below, fully sustained by the findings of fact and conclusions of law, will not be disturbed because a referee fails to find on immaterial is- sues, and no findings were presented by the complaining party and no re- quest for additional findings or different conclusions of law. Adams & Westlake Co. v. Deyette et al, 5 S. D. 418; 59 N. W. 214. Burnap v. Bank, 96 N. Y. 125; Thompson v. Bank, 82 N. Y. 1; Conklin v. Hinds, 16 Minn. 457 (Gil. 411); Foster v. Voigtlander (Kan.); 13 Pac. 777. (g) Instructions. See "Directing Verdict," supra. See also, same heading under subdi- visions 1 and 7 of this section. Assuming Facts. An instruction is properly refused which assumes and is predicated upon a fact, as established, which the evidence leaves in dispute. Rapp v. Giddings, 4 S. D. 492, 57 N. W. 237. Fraud Assuming- Facts. In an action for the value of wheat of which plaintiffs claim to be owners, the evidence examined, and it is held, that the verdict in favor of the plaintiff is supported by the evidence; that the trial court properly in- structed the jury that proofs of fraud must be clear and convincing; and that instructions asked requiring the court to assume existence of a fact in issue are properly refused. Cavello et al v. Taylor, N. D. , 63 N. W. 889. Assuming Facts. Where the court instructed the jury as to what a wit- ness testified, and that there was no evidence to dispute such testimony, held, in the light of the proofs in this case, such instruction was not error. Moe v. Job, 1 N. D. 140, 45 N. W. 700. Proceeds of Wheat Prejudice. There being a conflict in the evidence as to whether plaintiff au- thorized certain persons to draw wheat to the elevator and pay them- selves for services performed for him from the proceeds, an instruc- tion to the effect that although the jury find the men were auth- orized to do so, yet if a third person notified defendant not to pay them, the INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. Ill defendant is liable for paying over the money, is erroneous, and the court cannot say that it was without prejudice. Linton v. Minneapolis, N. & Ele- vator Co., 2 N. D. 232, 50 N. W. 357. Arbitrary Disregard. The positive testimony of an uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. Drew et al v. Watertown F. Insurance Co., S. D , 61 N. W. 34; Newton v. Pope, 1 Cow. 109; Lomer v. Meeker, 25 N. Y. 361; McMahon v. People, 120111. 584, 11 N. E. 883; Elwood v. Tel. Co., 45 N. Y. 553; Dickenson v. Bently (la.), 45 N. W. 903. Specific Question Presumption. The jury, in an action at law, answering a spe- cific question of fact, found a definite amount due, the correctness of which answer was not challenged by either party; held, plaintiff is presumptively entitled to judgment for such amount. John A. Tolman & Co. v. Savage et al, 5 S. D. 496, 59 N. W. 882. (h). The Record. Findings New Trial. Insufficiency of evidence to justify the findings of the court or verdict of the jury will only be reviewed by this court when made one of the grounds for motion for a new trial, and the order denying or granting the motion is brought to this court for review. Gade v. Collins et al, S. D , 66 N. W. 466; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Norwegian Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17; Evanson v. Webster, 3 S. D. 382, 53 N. W. 747. Part of Evidence Shown. A verdict of conviction will not be set aside on the ground that the evidence does not support it when the bill of exceptions only purports to set out a part of the evidence. Bill or Case Necessary. The evidence not being presented herein by a case or bill of exceptions, a motion for a new trial on the ground that the findings were not supported by the evidence, must be overruled. Golden Terra Mining Co. v. Smith et al, 2 Dak. 377, 11 N. W. 98. Findings Presumption. When the evidence before a referee is not preserved in a bill of exceptions, and the insufficiency of the evidence to sustain his findings is not assigned as error, it will be presumed on appeal that the findings accord with and are sustained by the evidence. Adams & Westlake Co. v. Deyette et al, 5 S.D. 418, 59 N. W. 214; Mf'g Co. v. Galloway, 5 S. D. 205, 58 N. W. 565; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774. Error -When Not He versible. Where it appears that upon the uncontroverted facts the plaintiff cannot recover, a verdict and judg- ment for defendants will not be disturbed by this court even when the record shows errors in procedure. Prairie School Twp. v. Haseleu et al, 3 N. D. 328, 55 N. W. 938. Motion for New Trial Necessary. In order to review the evidence in this court, to determine the sufficiency of the same to justify the verdict of a jury or the findings of the court, a motion for a new trial must have been made below upon that ground, in the absence of which mo- tion this court will not review the evidence, Evanson v. Webster, 3 S. D, 112 CODE OF CIVIL PROCEDURE. 382, 53 N. W. 747 (on rehearing 68 N. W. 669), Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Lingerman v. Nave, 31 Ind. 222; Kirch v. Davis, 55 WK 287, 11 N. W. 689; Ingraham v. Gildermester, 2 Cal. 483; Nesbit v. Hines, 17 Kan. 316; R. R. Co. v. McCartney, 1 Neb. 398; Kemp v. Lawson, 12 Ind. 678; Ford v. Wilson (Ga.), 11 S. E. 559; Westfall v. Dungan, 14 Ohio St. 276; Smith v. Gillett, 50 111. 299; Polk v. State, 4 Mo. 544; Smith v. Hollis, 46 Ark. 21; Whitmore v. Shiverick, 3 Nev. 288; Byrne v. R. R. Co., 29 Minn. 200, 12 N. W. 698. But see, Waldron v. Evans, 1 Dak. 10, 46 N. W. <><>7. The question of the sufficiency of the evidence to support the findings will not be examined upon appeal, when no motion for a new trial is made. Nor- wegian Plow Co. v. Bellon et al, 4 S. D. 384, 57 N. W. 17. (/). Specification of Particulars. Notice of Intention Particulars. Where the notice of intention states as ground for a new trial, the insufficiency of the evidence, but no further specification of the particulars in which such evidence is insufficient is made in the statement or the assignments of error, such objection will not be considered. Nat. Cash Reg'r. Co. v. Pfister et al, 5 S. D. 143, 58 N. W. 270; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332 and cases there cited. Statutory Language Insufficient. Where the notice of intention to move for a new trial states as grounds the insufficiency of the evidence, and er- rors in law occurring at the trial, but no further specification occurs in the record, the trial court may properly deny the motion. Billingsly v. Hik;s etal, S. D 61 N. W. 687. Must Specify. Under Code of Civil Procedure, sec. 279 (sec. 5081 Com p. Laws), providing that when an excep- tion is to the verdict or decision for insufficiency of evidence to sustain it, the objection must specify particulars, etc., the evidence cannot be examin- ed on a mere objection that the evidence is insufficient to justify the decis- ion. Henry v. Dean, 6 Dak. 78, 50 N. W. 487. Sufficiency of the evidence to support the verdict cannot be assailed in this court when in neither the notice of intention nor the bill of exceptions are particulars specified wherein the evidence is alleged to be insufficient. Pickert v. Rugg et al, 1 N. D. 230, 46 N. W. 446. Assignment of Error. An assignment that the verdict is not .sustained by the evidence will not be considered where such was noj, made ground in the motion for a new trial, the record containing no specification of particulars, etc. Prye et al v. Ferguson, S. D , 61 N. W. 161. Government Survey. When the only issue tried by the court was whether a certain survey corresponded with the original government sur- vey, the specifications in the statement as to the particulars in which the evidence was insufficient to justify the findings are, that the evidence shows that the resurvey was not made in accordance with the original survey, and that the section and quarter section corners in question, as established by the resurvey, do not correspond with the original government corners; held, INSUFFICIENCY OF THE EVIDENCE AGAINST LAW. 113 that the specifications are sufficient. Kellam, J ., dissenting. Randall et al v. Burke Township of Minnehaha County et al. 4 S. D. 337, 57 N. W. 4. Exceptions to Findings. Where exceptions to findings of fact do not specify wherein such findings are not justified by the evidence this court will not explore the record to determine the question. Hostet. ter v. Brooks Elevator Co., N. D , 61 N. W. 49: sec. 5090 Comp. Laws; Laws N. D. 1891, Ch. 121; Sup. Ct. Rule No. 13; held, however, that the findings in this case are supported by the evidence, action being to re- cover value of wheat. Id. 2. Verdict or Decision Against Law. Consult decisions under "Verdict," Subd. 1, 2 and 7 of this section. Verdict Which Cannot Stand. A verdict that must be either with- out support in the evidence, or contrary to the instructions of the court can not be permitted to stand; McMillan et al v. Aitchison, 3 N. D. 183, 54 N. W. 1030; Puller v. Elevator Co., 2 N. D. 220, 50 N. W. 359. Inconsistent Findings Joint Contract. Where the several findings of the trial court are inconsistent with each other, and inconsistent with the theory either that the contract in question was that of the wife, or that of the husband, or the joint contract of both, the judgment for plaintiff upon such findings should be reversed and a new trial granted. Cawley et al v. Day et al, 4 S. D. 221, 56 N. W. 749. Value of Notes in Settlement. Where defendants selected certain notes from those taken in payment for machinery sold by plaintiff's assignor, under a contract, which notes were sufficient at face value to pay commissions due to plaintiff's assignor, they so far com- plied with the contract as to be liable only for actual value for notes selected; and the verdict for the face value thereof was erron- eous, and a new trial should have been granted, as the evidence was undis- puted that the actual value of the notes selected was much less than their face value. Brown v. McCaull et al, . . . . S. D. . . ., 60 N. W. 151. Special Questions Answers Disregarded. Answers to special interrogatories sub- mitted to a jury by an equity court, which are in direct conflict with undis- puted evidence, should be disregarded and judgment entered upon findings justified and sustained by evidence upon the trial. Upton v. Hugos et al, S. D , 64 N. W. 523. Usury Running Account Note. To en- title the party to recover usurious interest under sec. 5198 Rev. Stat. U. S., such interest must have been actually paid either in money or its equiva- lent; and the mere charging of such interest in a running account is not a payment of the same within the meaning of that section. Davey et al v. First Nat. Bank of Deadwood, S. D 66 N. W. 122; Brown v. Bank, 72 Pa. St. 209; Hall v. Bank, 30 Neb. 99, 46 N. W. 150. Neither will the including of such usurious interest in a promissory note entitle the maker to recover it, until such note is in fact paid. Davey et al. v. First Nat. Bank of Deadwood, supra. 8 TP 114 CODE OF CIVIL PROCEDURE. Neither General Nor Special. In replevin for goods taken by defend- ant as sheriff under attachment and claimed by plaintiff under chattel mort- gages, a verdict "in favor of plaintiff and against defendant, except as to the mortgage * * * which we find to be null and void, and that plaintiff is entitled to possession of the property," and finding value of the property and assessing plaintiff's damages for taking and detention of the property, a judgment that defendant was entitled to possession of, or, if return could not be had, to the value of his interest in the property, and for costs, was erroneous, the verdict being neither general or special; and the special finding was insufficient to fustain the judgment. Rudolph v. North, 6 Dak. 79, 50 N. W. 487. Thresher's Lien Location of Grain. In an action by the owner of grain for conversion of same, defendant having sold same un- der claim of a threshers lien, held, that where defendant rested his defense without testimony tending to show where the grain was grown, plaintiff tes- tifying that no grain was grown in the year in question upon land described in the lien statement, it was error to deny plaintiff's motion to strike out all evidence relating to the lien. Martin v. Hawthorne et al, 3 N. D. 412, 57 N. W. 87. SUBDIVISION 7 Error in Law. See subd. 1, supra, and subd. 6. and subheads "Instructions," "Direct- ing Verdict," and "Against Law," supra. 1. Generally. Priority of Liens Changing Plans. In an action to enforce a me- chanic's lien involving priority between the lien and a mortgage, held, under the facts stated, that the trial court properly excluded evidence tending to show that changes were made in the plans and specifications in question after the loan to secure which the mortgage was made, was advanced. Hax- tun Steam Heater Co. v. Gordan et al, 2 N. D. 246, 50 N. W. 708; Neilson v. Ry. Co., 44 la. 71; Dubois v. Wilson, 21 Mo. 213; Ins. Co. v. Pringle, 2 Serg. & R. 138; Gordon v. Torrey, 15 N. J. Eq. 112; Myer v. Construction Co., 100 U. S. 457; Davis v. Bilsaland, 18 Wall. 659; Parrish & Hazard's Appeals, 83 Pa St. Ill; Ins. Co. v. Paulison, 28 N. J. Eq. 304; Brooks v. Ry. Co. 101 U. S. 443; Getchell v. Allen, 34 la. 559; Ins. Co. v. Slye, 45 la. 613; Phillips' Mechanic's Liens, sec. 220; Norris, App. 30 Pa. St. 122. Waiver of Lien Other Security. A statutory lien is not waived by taking other security unless the intent to waive the lien and rely exclusively on the security ap- pears. Joslyn v. Smith et al, 2 N. D. 53, 49 N. W. 382; Pratt v. Eaton, 65 Mo. 165; Clark v. Moore, 64 111. 274; Gilcrest v. Gottschalk, 39 la. 311; Mon- teith v. Printing Co. 16 Mo. App. 450; Peck v. Bridwell, 10 Mo. App. 524. Restoring Record, of Prior Mortgage Notice. When the rights of inno- cent third parties will not be prejudiced, a court will restore the record and give a first mortgage priority, where the junior mortgage was taken sub- ERROR IN LAW. 115 ject to and with actual knowledge of the existence and record of the prior mortgage, when the same has been subsequently discharged of record by mistake and in ignorance of such intervening lien, for the purpose of substi- tuting a new mortgage for such prior mortgage. Upton v. Hugos et al, S. D , 64 N. W. 523. Enjoining Liquor Sales Common Nuisance. In an action in equity on behalf of the state by the district attorney under sec. 13, chap. 110, Laws N. D. 1890, to enjoin defendants from further prosecu- tion of their liquor business, held, since passage by congress of the "Wilson Bill," that evidence showing either illegal sales, or the illegal keeping of intoxicating liquors in a place makes it a common nuisance, and that the judgment of the trial court dismissing the action, under the facts stated, must be reversed and a new trial granted. State ex rel Bartlett, Dist. At- torney, v. Fraser et al, 1 N. D. 425, 48 N. W. 343; Mugler v. Kansas, 123 U. S. 623. 8 Sup. Ct. Rep. 273; Kansas v. Ziebold, Id.; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6; In re Spickler, 43 Fed. 653; In re Van Vliet, Id. 761; State v. Chapman et al, 1 S. D. 414, 47 N. W. 411. Elector Mark in Circle. When the elector makes a mark or cross in the circle at the head of a party ticket, and erases no name thereon, the vote must be counted for the entire party ticket. (Following Valliar v. Brakke, . . . .S. D 64 N. W. 180.) McKittrick v. Pardee, . . . .3. D , 65 N. W. 23; and a cross made at the head of a party ticket, but not in the circle, is a nullity, and the vote cannot be counted for candidates on that ticket not otherwise marked as prescribed by law; Id. Cross at Left. When across is made in the circle, and no name on the party ticket is erased, cross- es at the left of the names of candidates thereon are without effect; Id. Writing Name. The law confers no authority upon an elector to write the name printed on one party ticket upon another party ticket. McKittrick v. Pardee, supra. Two Circle Crosses Neutralize. Crosses in the circle at the head of two or more party tickets neutralize each other as indicating the intent of the elector to vote either of the party tickets; Id. Erasures. An elector who erases the name?' of all candidates on all party tickets ex- cept one does not thereby vote the ticket on which the names are not erased, unless he makes a cross in the circle at the head of such party ticket, or at the left of the names of candidates for whom he desires to vote upon such ticket; Id. No Cross. When no cross is made in the circle at the head of any party ticket, no erasures are necessary; the elector may de- signate the candidate for whom he desires to vote by making a cross at the left of his name; Id. At Right. A cross at the right of a candidate's name is a nullity, and should be disregarded; Id. Thresher's Lien Striking Out Evidence. In an action for the value of wheat alleged to have been converted by defendants under a claim for thresher's lien, held, in the absence of proof, that the grain was grown on the land described in the lien statement, it was error to deny plaintiff's mo- 116 CODE OF CIVIL PROCEDURE tion to strike out all evidence relating to the lien. Martin v. Hawthorne et al, 3 N. D. 412, 57 N. W. 87. Mortgage "Threshing Rig" Earnings Filing, In this state it is competent for the owner and operator of a "thresh- ing rig" to mortgage the future earnings thereof. Sykes v. Hannawalt N. D. ..-.., 65 N. W. 682; Preston Nat. Bank v. Geo. T. Smith Middlings Purifier Co., 84 Mich. 364, 47 N. W. 502; Kirkland v. Brune, 31 Grat. 127; Tingle v. Fisher, 20 W. Va. 497; Bacon v. Bonham, 27 N. J. Eq. 209; Will- iamson v. R, R. Co., 26 N. J. Eq. 398; Mf'g Co. v. Robinson, 88 Iowa 567, 49 N. W. 1031; sec. 4328, Comp. Laws; Bank v. Mann, 2 N. D. 456, 51 N. W. 946; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49. But such mort- gage must be filed for record as any other chattel mortgage, and if not so filed is void as against a creditor of mortgagor who became such in ignor- ance of the existence of the mortgage, after it was executed and before fil- ing, relying upon mortgagor's apparent ownership of such earnings. Sykes v. Hannawalt, supra. Percolating Water To Owner of Soil. Water per- colating through the soil or coming to the surface in a spring belongs to the owner of the soil in such a sense and to such an extent that he is entitled to the exclusive right to use and dispose of the same. Metcalf v. Nelson, S.D , 65 N. W. 911; sec. 2771 Comp. Laws; Wilson v. City of New Bed- ford, 108 Mass. 265; Roath v. Driscoll, 20 Ct. 533; Village of Delhi v. You- mans, 45 N. Y. 362; Frazier v. Brown, 12 Ohio St. 294. City of Emporia v. Sodem, 25 Kan. 588; R, R. Co. v. Dufour, 95 Cal. 615, 30 Pac. 783; Clark v. Con roe, 38 Vt. 469; Taylor v. Fickas, 64 Ind. 167. Natural Spring Perco- lations. In the absence of evidence as to its source, it is presumed that a natural spring of water is formed by the ordinary percolation of water in the soil. Metcalf v. Nelson, .... S. D , 65 N. W. 911; Hanson v. McCue, 42 Cal. 303; Elster v. City of Springfield (Ohio Sup.), 30 N. E. 278; Swett v. Cutts, 50 N. H. 439; Davis v. Spaulding (Mass.), 32 N. E. 650; Buffum v. Harris, 5 R. I. 243; Bliss v. Greeley, 45 N. Y. 671. Color of Office Acts Valid as to Whom. To protect the public and prevent failure of justice, the apparently official acts of one having color of authority to hold and per- form the duties of a public office are valid in respect to rights of interested third persons, but void so far as they may be of exclusive interest or ulti- mate benefit to him. Flypaa v. Brown Co., S. D , 62 N. W. 962; Andrews v. Portland, 79 Me. 484, 10 Atl. 458; Mayor, etc., of Memphis v. Woodward, 12 Heisk. (Tenn.), 499; McVeney v. Mayor, etc.. 80 N. Y. 185; People v. Smyth, 28 Cal. 21. 2. Pleadings. See "Practice Procedure," infra. (a). Complaint. Negligence Locomotive. An allegation that the engine "was so neg- ligently, carelessly, and insufficiently constructed and equipped" as to emit and throw out large sparks of fire, included the condition of such engine for ar- ERROR IN LAW. 117 resting sparks, whether resulting from its original construction or from de- fects from use, wear, or injury to its parts. Smith v. Chi. Mil. & St. P. Ry. Co. 4 S. D. 71, 55 N. W. 717. Complaint Natural and Direct Damages. A complaint showing a contract, a breach, and alleging damages directly resulting therefrom, states a cause of action permitting evidence as to dam- ages naturally and directly resulting. Johnson v. Gilmore, S. D. . . ., 60 N. VV. 1070; Hudson v. Archer, 4 S. D. 128, 55 N. W. 1099; Peters v. Cooper (Mich.) 54 N. W. 694; Richter v. Meyer, (Ind. App.), 31 N. E. 582. Obstruction in Street Allegation of Contact With. In an action against a city to recover damages resulting from injury caused by the negligent act of defendant in permitting an obstruction to stand upon the traveled portion of the street, at which the horse behind which plaintiff was riding became frightened, and the injury resulted, it is not necessary to allege any actual contact with such obstruction. Ouverson v. City of Grafton, N. D 65 N. W. 676. Complaint - Water From Spring, A complaint showing plaintiff to be the owner of land upon which such a spring is located, and that defendant, against his objection and in defiance of his protest has wilfully, wrongfully and habitually taken large quantities of water from such spring, states acause of action in favor of plaintiff and against defendant. Fuller, J. dissenting. Metcalf v. Nelson, S. D , 65 N. W. 911; 5 Am. & Eng. Ency. of Law, p. 2 and cases cited. Insurance Alleging Two Causes of Action De- fendant's Evidence. Where a complaint stated a cause of action on an in- surance policy, and also one on a promise to pay an amount in settlement of loss thereunder, plaintiff not being required to elect on which cause of ac- tion he would stand, and defendant set up a defense good on the theory that the action was on the policy, with general denials as to both causes of ac- tion, but offered no evidence to sustain the defense to the action on the pol- icy, held, no error to direct a verdict for plaintiff, the undisputed evidence showing liability under the policy, but no proof of the promise. Purcell v. St. Paul F. & M. Ins. Co., N. D , 64 N. W. 943; 2 Wood Ins. sec. 450; Stephen PI. 251; 1 Chit. PI. 226; Bliss Code PI. sec. 288, 292, 293; Conaughty v. Nichols, 42 N. Y. 83; Hawley v. Wilkinson, 18 Minn. 525 (Gil. 468); Plumber v. Mold, 22 Minn. 15; Fern v. Vanderbilt, 13 Abb. Prac. 72; Seymour v. Lorillard, 51 N. Y. Super. Ct. 399; Blank v. Hartshorn, 37 Hun 101; Rothchild v. Ry. Co. (Supra.) 10 N. Y. Supp. 36. Allegation of Value Evidence of Contract Theory. Where the complaint alleged an agree- ment to pay plaintiff a reasonable value for his services, and the evidence showed the agreement to be based upon and the services measured by the amount due upon a contract for quarrying certain stone, held, plaintiff could not recover on the theory of his complaint, but if, without objection, the case was being tried on the theory of the evidence, it was error to exclude defendant's evidence of what the contract was, and how much was due upon it. Zeimet v. Phillips et al, S. D , 65 N. W. 418. 118 CODE OF CIVIL PROCEDURE. Election Contest Necessary Allegations. To authorize an election contest under sec. 1489 Coinp. Laws, the plaintiff must allege facts prima facie entitling him to the office and must claim a right to the office; and held, that the notice of contest in question is insufficient and confers no jur- isdiction upon the court. Batterton v. Fuller, S. D , 60 N. W. 1071. Same New Cause of Action Limitations. An amended contest notice, alleging contestant to be in office under appointment by the gov- ernor to fill vacancy, by virtue of which incumbency at the time of the elec- tion he seeks to hold the office, taken with the statement in original contest notice that defendant was ineligible, states a new cause of action. Batter- ton v. Fuller, supra; and such amended notice made and served more than forty days after canvass of the election votes, was barred by the statute of limitations. Id. Anderson v. Mayers, 50 Cal. 525; Bowler v. Eisenhood, 1 S. D. 577, 48 N. W. 136; McCrary on Elect, sec. 295; Com. v. Cluley, 56 Pa. St. 270; Saunders v. Haynes, 13 Cal. 145; State v. Smith, 14 Wis. 497; State v. Boal, 46 Mo. 528; State v. Vail, 53 Mo. 97; People v. Clute, 50 N. Y. 451; Opinion of the judges, 52 Me. 597; Abbott's Case Sen. No. 58; Const. S. D. Art. 5, sec. 36, 37; Laws 1890, chap. 78, sec. 2; State v. Har- rison, 113 Ind. 434, 16 N. E. 384; State v. Benedict, 15 Minn. 198 (Gil. 153); State v. Sullivan, (Minn.), 47 N. W. 802; Advisory Opinion (Fla.), 5 So. 613; State v. Lusk, 18 Mo. 333; Com. v. Hanley, 9 Pa. St. 513; People v. Parker, 37, Cal. 639; People v. Tilton, Id. 614; 9 Am. & Eng. Ency. Law p. 562 and cases cited. Unincorporated Association Individual Liability. Parties uniting in a voluntary unincorporated association, and who for convenience contract under an associate name, render themselves personally liable, and a com- plaint stating such tacts states a cause of action. Winona Lum. Co. v. Church et al, S. D , 62 N. W. 107; Mechem Ag. sec. 557; Lewis v. Tilton, 64 la. 220, 19 N. W. 911; Davison v. Holden, 55 Conn. 103, 10 Atl. 515; Herod v. Rodman, 16 Ind, 241; Ash v. Guie, 97 Pa. St. 493; Heath v. Goslyn, 80 Mo. 310. Partners Parties in Complaint. In an action by or against partners it is not absolutely necessary that the title describe the parties as partners and give the partnership name, if the facts appear in the body of the complaint. VanBrunt & Davis Co. v. Harrigan et al, S. D. , 65 N. W. 421; nor is such complaint bad on demurrer as not stating facts sufficient to constitute a cause of action. Id. Seed Lien Foreclosure Complaint. In an action to foreclose a statutory seed lien the complaint need not allege that the seed was sold to be sown on a particular tract, it is sufficient to allege tbat it was sown on land "owned, used, occupied, or ren- ted" by the purchaser. Joslyn v. Smith et al, 2 N. D. 53, 49 N. W. 382. Defective Complaint Waiver of Objection. Where the parties went to trial under a defective but amendable complaint, evidence being received without objection supplying the defect in the complaint, it will be pre- ERROR IN LAW. 119 sumed in this court that the objection thereto was waived. Lindsay v. Pet- tigrew, (on rehearing) 5 S. D. 500, 60 N. W. 744; Warder v. Ingli, 1 S. D. 155, 46 N. W. 181. Amendment Regarded Made Waiver. Where a party is allowed to amend his pleading on trial, and it is regarded on trial as actually amended, it is too late on review to object that the -pleadings do not present the issue contemplated by the amendment. Connor v. Nat. Bank of Dak. et al, . . . . S. D , 64 N. W. 519; Young v. Glascock, 79 Mp. 574; Mining Co. v. Noonan, 3, Dak. 189, 14 N. W. 426; Noonan v. Mining Co., 121 U. S. 393, 7 Sup. Ct. 911. Attachment Incidental to Main Case- Issue Untried. Attachment proceedings are incidental to the main case, and form no part of the pleadings; and it is error to render judgment on the pleadings while a material issue under the pleadings remains untried. Jor- dan et al v. Frank, 1 N. D. 206, 46 N. W. 171; Harrison v. King, 9 Ohio St. 395; Wap. Attachm. 81: Churchill v. Fullrin, 8 Ohio 46. Stipulation as to Issue Arbitration. A stipulation made on trial to the court, as to what the issue to be tried is, and waiving objection to com- plaint, and that judgment may go in favor of the party found entitled there- to, simply limits issues to be tried, but does not constitute submission to ar- bitration. Randall et al v. Burke Tp. et al, 4 S. D. 337, 57 N. W. 4. Party by Consent Amendment. A proper party to an action was, during the trial, made a party by consent of both parties then in court, with the privi- lege to either party to make necessary amendments to the pleadings at any time before judgment. Before judgment plaintiff filed an amended com- plaint against the new party, and made it a part of the judgment roll in- stead of re-writing the complaint as amended. Held, an immaterial irregu- larity. Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426. (6) Answer Defenses. Negligence Agency Answer Admitting. When the complaint al- leges the setting of lire by defendant's servants and the answer sets up sub- stantially the same, the fact that those setting the fire were defendant's ser- vants and acting within the scope of their authority is admitted, and evidence to prove the same is not required, when the general denial goes to every allegation of complaint not specifically admitted or qualified. Mattoon v. Fre., E. & M. V. Ry. Co., . . . . S. D , 60 N. W. 69. Claim and Delivery General Denial Proof. Under a general denial in claim and delivery against the sheriff, defendant may show the goods in controversy are the property of a third person, and that his possession is rightful by virtue of the writ of attachment levied thereon. Conner v. Knott, S. D , 66 N. W. 461; Ag'l. Works v. Young, S. D 62 N. W. 432; Schulen berg v. Harriman, 21 Wall. 44; Bosse v. Thomas, 3. Mo. App. 472; Young v. Glasscock, 79 Mo. 574; Bailey v. Swain, 45 Ohio St. 657, 16 N. E. 370; Jan- sen v. Effey, 10 la. 227; Snook v. Davis, 6 Mich. 156; Richardson v. Steele, 120 CODE OF CIVIL PROCEDURE. 9 Neb. 483, 4 N. W. 83; Bailey v. Bayne, 20 Kan. 657; Davis y. Warfield, 38 Ind. 461; Verry v. Small, 16 Gray 121; Sopris v. Truax, 1 Colo. 89; Timp v. Dockham, 32 Wis. 146; 1 Ency. PL & Prac. p. 822; Baylies, Code PL, p. 233; Cobbey Repl. p. 399. Under a general denial in claim and delivery, defend- ant may show not only that plaintiff has no title or right to possession, but, by way of establishing that fact, may prove title in himself or a stranger, and that some other person than defendant was in possession at commence- ment of the action. Pitts Ag'l Works v. Young, S. D , 62 N. W. 432; Timp v. Dockham, 32 Wis. 146; Kennedy v. Shaw, 38 Ind. 474; Griffin v. R. R. Co., 101 N. Y. 348, 4 N. E. 740; Hinchman v. Doak, 48 Mich. 168, 12 N. W. 39. Plea of Property Judgment for Return. When defendant pleads property in himself or a stranger, or traverses plaintiff's right to possession, in claim and delivery, if he prevails in the action he is entitled to judgment for the return of the property, or its value. Pitts Ag'l Works v. Young, S. D , 62 N. W. 432; Quincy v. Hall, 1 Pick. 357; Ingra- ham v. Hammond, 1 Hill 353; Hoeff ner v. Stratton, 57 Me. 360; Pico v. Pico, 56 Cal. 455; Williams v. Kessler, 82 Ind. 184; Griffin v. R. R. Co., 101 N. Y. 348, 4 N. E. 740. Insufficient Answer Statute of Frauds. In a suit on a promissory note, held, under the facts stated, that the answer stated no de- fense, it not appearing therefrom that the party for whose benefit defendant alleged it was made, orally agreed to pay it. Nat. Ger. Am. Bank v. Lang, 2 N. D. 66, 49 N. W. 414; held, further, that had such oral agreement been made evidence to support it was not admissible, as it would vary the written contract made. Nat. Ger. Am. Bank v. Lang, supra; Comp. Laws sec. 3545; Thompson v. McKee, 5 Dak. 176, 37 N. W. 367; Cowel v. Anderson, 33 Minn. H74, 23 N. W. 542; Harrison v. Morrison, 39 Minn. 319, 40 N. W. 66; Eigh- mie v. Taylor, 98 N. Y. 288; Dixon v. Harris, 60 la. 727, 13 N. W. 335; Allen v. Furbish, 4 Gray 504. Frivolous Demurrer Bail Bond State as Plaintiff. This action was instituted in the name of the State as plaintiff, upon a bail bond given by defendants in a criminal ac- tion. A demurrer to the complaint, on the grounds that it did not appear that plaintiff has legal capacity to sue, and that the com- plaint does not state facts sufficient, etc., was interposed, which was, on motion, stricken out as frivolous, and judgment rendered for plaint- iff. Held, that the demurrer was so clearly and plainly without merit that the court was justified in treating it as frivolous, and rendering judgment upon the complaint. State v. Newson et al, S. D , 66 N. W. 468; sec. 7608, 7611, 4870, 4872 Comp. Laws; Hudson v. Archer, 4 S. D. 128, 55 N. W. 1099. Counterclaim Survives to Administrator. In replevin, an answer setting up damages by way of counterclaim, states a cause of action which survives to defendant's administrator. O'Neill v. Murray, 6 Dak. 107, 50 N, W. 619, ERROR IN LAW. 121 Illegality of Contract Must be Pleaded. The defense of illegality in the contract sued on is not available as a basis of evidence on trial unless pleaded. Illstad v. Anderson, 1 N. D. 167, 49 N. W. 659; Cardoze v. Swift, 113 Mass. 250; R. R. Co. v. Miller (Neb.), 21 N. W. 451. Informal Answer Summons Unnecessary. An entry in justice's docket that defendant ap- peared and waived "service of summons, and admitted the allegations of the complaint to be true, and consented that judgment be entered against him by confession, in favor of the plaintiff," constitutes a sufficient pleading by defendant, and was prima facie evidence of jurisdiction of person of defend- ant. Jewett et al v. Sundback, sheriff, 5 S. D. Ill, 58 N. W. 20. When de- fendant appears and pleads no summons is required to give a justice's court jurisdiction. Id.; sec. 6050 Com p. Laws. ( c ) Pleadings Relevancy. Superseded Complaint Admissions Against Plaintiff. An original superceded complaint, signed and verified by an attorney, is inadmissible as evidence against plaintiff in support of an issue tendered by the answer to his amended complaint, unless it is shown that the recitals thereof sought to be used as an admission were inserted under his personal direction, or have since knowingly received his sanction and ratification. Corbett et al v. Clough et al, . . . . S. D. . . . , 65 N. W. 1074; Ponce v. McElvey, 51 Cal. 222; Vogel v. Osborne (Minn.), 20 N. W. 129; Meacham v. McKay, 37 Cal. 154. Foreign Law Pleading. It is error to admit testimony as to what a foreign law is unless such law is averred and wherein it differs from those of this state. Nat. Ger. Am. Bank v. Lang, 2 N. D. 66, 49 N. W. 414; and the court will presume the foreign law to be same as that of the forum, if not alleged. Id; 2 Pars. Bills & N. p. 371; Cooper v. Reaney, 4 Minn. 528, (Gil. 413); Leavenworth v. Brockway, 2 Hill 201; Porsyth v. Baxter, 2 Scam. 9; Brimhall v. Van Campen, 8 Minn. 13 (Gil. 1); Pars. Bills & N. p. 334; Whidden v. Seelye, 40 Me. 247; Hoyt v. McNeil, 13 Minn. 390 (Gil. 362); Legg v. Legg, 8 Mass. 99; Holmesv. Broughton, 10 Wend. 75. Copy Foreign Judgment Boll Pleading. In an action on a judgment rendered in an- other state, allegations that the court in which the judgment was rendered was one of general jurisdiction, and that the summons and copy of complaint were personally served on the defendant, are sufficient to admit in evidence a certified copy of the judgment roll in said action, although the complaint in that action failed to state that the defendant corporation was doing busi- ness in that state or had an agent therein when the action was commenced. Gude'et al v. Dak. F. & M. Ins. Co. , . . . . S. D , 65 N. W. 27. General Objection Under Complaint Waiver. A general objection to introduction of evidence under a complaint as not stating facts constitut- ing a cause of action, will not be considered on appeal, when evidence was received without objection proving allegations wanting in the complaint. 8i TP 122 CODE OF CIVIL PHOCEDURE Bowman v. Eppinger, 1 N. D. 21, 44 N. W. 1000; Thoreson v. Harvester Works, 29 Minn. 341, 13 N. W. 156; Isaacson v. R. R. Co., 27 Minn. 463, 8 N. W. 600. Evidence -Issue. A party cannot complain of the admission of competent evidence to sustain an allegation of fact which by his answer he has put in issue, although such fact may not appear to be material. Gleckler et al v. Slavens et al, 5 S. D. 364, 59 N. W. 323. Conversion- Waiving Tort Assumpsit. The owner of personal property, in a suit for its value, may waive a tort on the part of the defendant and treat the con- version of the property by the defendant as a purchase, and recover in as- sumpsit the value of the property at the time of the conversion, with inter- est from date thereof. Anderson v. First Nat. Bank of Grand Fork (on rehearing), . . . . N. D. . . . ., 64 N. W. 114. Inference Refutation of. A plaintiff may introduce evidence to re- fute an inference or presumption of fact that might arise from matters drawn from him on cross examination, though the evidence has no direct bearing upon the issues, and the time of introduction of such evidence is in discre- tion of the trial court. Branstetter v. Morgan, 3 N. D. 290, 55 N. W. 758; State v. McGahey, 3 N. D. 293, 55 N. W. 753. Relevant Evidence Waiv- er. Where relevant evidence is received without objection, and no motion made to strike out, such evidence cannot be objected to on appeal nor its probative force questioned, and the objection is waived. Warder, Bushnell & Glessner Co. v. Ingli, 1 S. D. 155, 46 N. W. 181; Goode v. Smith, 13 Cal. 84; Janson v. Brooks, 29 Cal. 223; Becker v. Becker, 45 la. 239; Hayne New Tr. & App. sec. 98. Irrelevant and Tending to Prejudice. The admis- sion of testimony having no bearing upon the issues, but which would natu- rally tend to prejudice the jury against the party objecting, constitutes re- versible error. McMillan et al v. Aitchison, 3 N. D. 183, 54 N. W. 1030; Jones v. Bacon, 19 N. Y. Supp. 553; R. R. Co. v. Hepner, (Tex. Sup.), 18 S. W. 441; Bank v. Carson, 30 Neb. 104, 46 N. W. 276. 3. Examination of Witnesses. See "Practice-Procedure," "Evidence," "Findings," infra. (a). Direct. Permitting Incompetent Question. A party cannot permit an in- competent or 4 improper question to be asked a witness, and, when he finds the answer prejudicial to^him, move to strike out the answer, if it is respon- sive to the question. He should object to the question, and, 'if overruled take his exception. Way v. Johnson^et al, 5 S. D. 237, 58 N. W. 552. Must Offer to Prove, When. Where an objection to a question put to a witness is sustained, and_the'competency of the question is not apparent on its face, the party must offer to prove the facts sought to be elicited before he can assign error upon'such ruling. Halley v. Folsom, 1 N. D. 325, 48 N. W. 219; Mordhorse v. Telephone Co. (Neb.), 44 N. W. 469. Objection Waiting for Response. An objection to a question after a responsive answer has been ERROR IN LAW. given, where presumptively counsel waited to ascertain whether the re- sponse would be favorable, comes too late. Vermillion Artesian Well, E. L. M. I. & I. Co. v. City of Vermillion, S. D , 61 N. W. 802; Green v. Hughitt School Twp., 5 S. D. 452, 59 N. W. 224; Wendt v. R. R Co., 4 S. D. 476, 57 N. W. 226; Gould v. Day, 94 U. S. 405; 1 Thomp. Tr. 718 and cases cited. Not Responsive ^Striking Out Sitting By. When a question is not objectionable of itself, but the answer is not responsive and goes beyond the question and contains improper or imcompetent evidence, a motion to strike out so much as may not be responsive, or as may be improper or in- competent, may be made; and the fact that the party did not object to the question does not preclude him from moving to strike out. Wendt v. Chi. M. St. P. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226; Gould v. Day, 94 U. S. 405; McCabe v. Bray ton, 38 N. Y. 196; Ryan v. People, 19 Hun 188; City of Atchison v. Rose (Kan.), 23 Pac. 561; Thomp. on Tr. sec. 718. It is only when the question is objectionable and not objected to, and the answer re- sponsive, that the rule applies that one who sits by during reception of in- competent or improper evidence without objection, thus taking chances of advantage derivable therefrom, has not, when he finds the evidence preju- dicial to his case, a right to require same to be stricken out. Wendt v. Chi. Mil. St. P. & O. Ry. Co. supra; Caumont v. Morgan (N. Y. App.), 9 N. E. 861. Blind Preliminary Question Offer. Where a question is put on direct examination, which is preliminary, and does not indicate whether the answer will be material or not or would necessarily disclose material evidence, and where there is no offer to prove the facts sought to be elicited, it is not material error to exclude the question. Hanson v. Twp. of Red Rock et al, . . . .S. D , 63 N. W. 156 (on rehearing); Houghton v. Clarke, 80 Cal. 417, 22 Pac. 288. No Prejudice Could Result. The allowance of a question calling for incompetent testimony, is not reversible error, where the answers and other testimony show that no prejudice resulted or could have resulted therefrom. Johnson v. Gilmore, S. D , 60 N. W. 1070. Leading Questions Discretion. Generally, the allowance or disallowance of leading questions is in the discretion of the court, and only when they go directly to the substance of the matter in controversy and give the examin- ing party an improper advantage, will their allowance be held reversible error. John A. Tolman Co. v. Bowerman et al, 5 S. D. 197, 58 N. W. 568. ( b ). Cross-Examination. Confined to Matters in Chief. Although cross examination is under control and within discretion of the trial court, it must usually relate to a material issue and be confined to matters brought out by examination in chief. Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 1069. Scope of Prejudice, Discredit. The cross examination of a witness cannot go beyond subject-matter of his examination in chief, except to show his bias or prejudice, or lay foundation for discrediting his evidence by showing 124 CODE OF CIVIL PROCEDURE. prior contradictory statements. Wendt v. Chi. Mil. & St. P. &O. Ry. Co., 4 S. D. 476, 57 N. W. 226; Greenl. on Ev. sec. 447; Jackson v. Water Co., 14 Cal. 19; and within these limits the examination may touch every matter testified to in chief, so that his temper, leanicgs, relation to parties and cause, his intelligence, accuracy of his memory, disposition to tell the truth, means of knowledge, and his acquaintance with the subject-matter, may be fully interrogated. Id. Whole Conversation. A party on cross examin- ation, is only entitled to call out the entire conversation, part of which has been given by the witness, so far as it relates to the same subject-matter. Id.; and is not entitled, under the rule that he has a right to the whole conver- sation part of which has been given, to a conversation relating to another subject, or which occurred at another time or place. Wendt v. Chicago M. St. P. & O. Ry. Co. 4 S. D. 476, 57 N. W. 226. Other Conversation In- cidental Reference. When a witness voluntarily refers to a conversation he had with another party not shown to be relevant, for the purpose of fixing the time he first had knowledge of the facts to which he was testify- ing, the opposite party is not entitled to the details of that conversation, under objection. Uhe v. Chi. Mil. & St. P. Ry. Co., 4 S. D. 505, 54 N. W. 601. Surprise Cross Examining Own Witness Impeachment. Where a party is surprised by his witness's testimony, which not only fails to prove but disproves his case, he may ask the witness whether he has not made a statement to plaintiff conflicting with his testimony, and which if true would tend to prove plaintiff's case. George v. Triplett, N. D ,63 N. W. 891; Hurley v. State, (Ohio Sup.), 21 N. E. 645; Humble v. Shoe- maker, 70 la. 223, 30 N. W. 492; Hildreth v. Aldrich, 15 R. I. 162, 1 Atl. 249; Bullard v. Pearsall, 53 N. Y. 230; Melhuish v. Collier, 15 Adol. & E. (N. S.), 878; State v. Sorter, (Kan. Sup.), 34 Pac. 1037; Hickory v. TJ. S., 151 U. S. 303, 14 Sup. Ct. 334; Hall v. Ry. Co. (la.), 51 N. W. 150; 1 Whart. Ev. sec. 549; 1 Thomp. Tr. sec. 512; Cox v. Eayres, 55 Vt. 24; Hemingway v. Garth, 51 Ala. 530; whether, if witness denies making such statement, plaintiff may be allowed to prove the contrary, in discretion of court, for purpose of impeachment, not decided. George v. Triplett, supra. Interest of Witness. On cross examining a witness it is competent to question him as to his interest in the subject-matter to which he has testified. Hanson v. Township of Red Rock et al, S. D , 63 N. W. 156 (on rehearing). Attorney's Compensation TTnskillfulness Cross Examination. In an ac- tion for compensation as attorney at law, it is error to sustain objections to questions on cross examination of the attorney tending to show his careless- ness or unskillfulness and that his services were worth less than claimed, he having testified to their reasonable value. Cranmer v. Bld'g. & Loan Ass'n, of Dak S. D , 61 N. W. 35; Caverly v. McOwen, 123 Mass. 574; Bowman v. Tallman, 40 How. Pr. 1; Reynolds v. McMillan, 63 111. 46; 2 Greenl. Ev. 143; Weeks, Attys. at Law, 302 and cases cited. ERROR IN LAW. 125 Opening Case By. The rule that a party who has not opened his case cannot introduce it to the jury by a cross examination of witnesses of ad- verse party, applies only to such matters as the examining party has pleaded affirmatively in defense, counterclaim, or reply, and does not apply when defendant, on cross examination of plaintiff's witness, simply aims to disprove by witness the case the witness himself has made. Wendt v. Chi- cago, Mil. & St. P. & O. Ry. Co. 4 S. D. 476, 57 N. W. 226. Introducing Defense On, When. A defendant cannot, on cross examination of a witness examined by plaintiff, introduce his own affirmative defense, against objec- tion, unless witness has in his examination in chief testified to matters con- cerning which defendant seeks to cross examine him. First Nat. Bank of Pierre v. Smith et al, (on rehearing), .... S. D , 65 N. W. 439; Wendt v. Ry Co., 4 S. D. 476, 57 N. W. 226. (c). Re-Direct. Same Scope as in Chief. It is within the sound discretion of the court to allow any question to be asked on re-direct examination that was proper on examination in chief. Baird et al v. Gleckler, S. D , 64 N. W. 119; Hemmens v. Bently, 32 Mich. 89. Commission on Realty Sale Agency Offer of Proof. In an action to recover commission on sale of realty, a plaintiff having testified to the sale and to an oral agreement by defendant to pay commission if sale was consumated, defendant's counsel of- fered to prove by defendant on re-direct examination that the sale was not consummated, that plaintiffs were not authorized to sell, and never had any- thing to do with sale of same; held, error to deny the offer, on the ground that the question was incompetent, irrelevant and immaterial. Baird et al v. Gleckler, . . . . S. D , 64 N. W. 119. 4. Evidence, (a) Records, Writings, Depositions. Copies of Public Records Certificate. In the absence of a statute making a certificate of an officer evidence as to the legal effect of copies of judicial and other public records, such certificate is incompetent. (Dictum.) Billingley et al v. Hiles et al, . . . .S. D , 61 N. W. 687; Meyer v. School Dist., 4 S. D. 420, 57 N. W. 70; Tessman v. Supreme Commandery (Mich.), 61 N. W. 261; Lansing v. Russell, 3 Barb. Ch. 325. Record of Foreign Garnishment Admission. An exemplified copy of record of garnishee pro- ceedings against defendant in an action in Minnesota, in which appeared de- fendant's disclosure therein, is competent evidence that such disclosure was' made, and admissible against defendant as an admission by its officer in the course of his duty. Purcell'v. St. Paul F. & M. Ins. Co., N. D ,64 N. W. 943. Best Evidence Only Receivable. As a rule, in absence of prelimi- nary foundation proof, no evidence should be received which presupposes 126 CODE OF CIVIL PROCEDURE. better evidence in the party's possession or control, or within reach. Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 1069; R. R. Co. v. Strick- land, 80 Ga. 776, 6 S. E. 27; Crane v. Andrews, 6 Colo. 353; McPhaul v. Laps- ley, 20 Wall. 264; Clifton v. U. S., 4 How. 242. Law of the Case Record. A question decided by the Supreme Court of the late territory becomes the law of the case in all stages, and will not ordinarily be reversed upon a sec- ond appeal when the facts are substantially the same. Plymouth Co. Bank v. Oilman, 3 S. D. 170, 52 N. W. 869; and the record on former appeal may be examinefl on this appeal as to the facts and questions formerly before the appellate court. Id; St. Croix Lum. Co. v. Mitchell et al, 4 S. D. 487, 57 N. W. 236; McKinley v. Tuttle, 42 Cal. 571; Donner v. Palmer, 51 Cal. 629; Russell v. Harris, 44 Cal. 489; Page v. Fowler, 37 Cal. 100; Yates v. Smith, 40 Cal. 662; Davidson v. Dallas, 15 Cal. 75; Smith v. City of San Luis Obispo (Cal.), 34 Pac. 830; Little v. McAdaras, 38 Mo. App. 187; sees. 1-4, art. 26, Const. S. D. Ruling Before Former Judge. Evidence is properly admis- sible before a State Circuit Judge who succeeded a Territorial Judge, to show that the former judge had overruled a motion for a new trial. Jeansch v. Lewis et al, 1 S. D. 609, 48 N. W. 128. Proof of Reference. On appeal, in the absence of record evidence showing that an order of reference was made pursuant to sec. 1, ch. 112, Laws 1889, this court will presume, in sup- port of the judgment, that such order was made. Kent v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85; and where the judgment recites that the issues were referred, it will be taken as true and based upon sufficient evidence, in absence of countervailing record evidence. Id. Docket Entries Justice's Jurisdiction. Entries made in a docket by a J. P. under sec. 6123 Comp. Laws, are, by sec. 6124, made prima facie evi- dence of the facts so stated, including time when parties appeared, and a concise statement of material parts of pleadings; and an entry that plaint- iffs filed complaint claiming defendant was indebted to them in the sum of $48 for goods, wares, and merchandise sold by plaintiffs to defendant at his special instance and request, is prima facie evidence of jurisdiction of the justice's court over the subject-matter. Jewett et al v. Sundback, sheriff, 5 S. D. Ill, 58 N. W. 20; Black, Judgm. sec. 287. If records show affirma- matively jurisdiction of justice's court over subject-matter and person of de- fendant, the same presumptions are indulged in favor of regularity of pro- ceedings as are extended to superior courts, and they cannot be collaterally impeached for errors or irregularities. Jewett et al v. Sundback, sheriff, supra. Justice's Docket Recovery of Land. In an action to recover land and damages for withholding it, the court, in excluding from the jury the record in justice's court upon which a writ of execution was issued and plaintiff ousted from the land, did not err in holding that the justice had no jurisdiction. Hegar et al v. DeGroat, 3 N. D. 354, 56 N. W. 150. Value- Book Memoranda Testimony From. The testimony of a witness whose ERROR IN LAW. 127 knowledge of value of an article is derived from inspection of a day book memoranda not connected with the action, it not being shown by whom or when the entry was made, or that the party making it had any knowledge of market value of the articles, is incompetent to 'establish its value. Keith v. Haggert, 2 N. D. 18, 48 N. W. 432. Extension of Note Evidence of Con- sideration. The writing, "Extended to December 1st, 1891," placed by the payee thereof on a promissory note, pursuant to an agreement with the ma- ker to extend the time of payment, is a written extension, and presumptive evidence of a consideration, under subd. 2 of sec. 3538 Comp. Laws. Corbett et al v. Clough et al, S. D , 65 N. W. 1074. Instrument For One Purpose, In for All. Where one party introduces a written instrument in evidence, without any limitation of the purpose for which it is introduced, it is in evidence for all purposes, and the adverse party may avail himself of it in support of his pleading, the same as though formally offered in evidence by himself. Dielmann v. Citizen's Nat. Bank of Madison, . . . .S. D , 66 N. W. 311; Esshom v. Hotel Co., . . . . S. D , 63 N. W. 229. Depositions Notice not Stating Hour. A notice of taking a depo- sition, though not stating the hour at which the taking will commence, but which states it will be taken between certain specified hours, is sufficient. J. I. Case T. M. Co. v. Pedersou S. D , 60 N. W. 747; 1 Wade No- tice, 1230; Weeks Dep. 251; Walk. Am. Law 674; Scharfenburg v. Bishop, 35 la. 60; King v. State, 15 Ind. 64; Wadingham v. Gamble, 4 Mo. 465; Sweitzer v. Meese, 6 Vin. (Wis.), 500. Suppression of Deposition Loca- tion of Notary Certificate. It is not error to refuse to suppress a deposi- tion taken in another state on notice, because the notice did not locate the office of the notary before whom it was to be taken, by street and number,-no prejudice appearing. Moore v. Booker et al, 4 N. D. 543, 62 N.W. 607; Brit- ton v. Berry, 20 Neb. 325, 30 N. W. 254; nor is it error to refuse to suppress a deposition because the certificate does not show that the notary was uot a relative of either party, or otherwise interested in the action; such fact, if it exists, must be made to appear affirmatively; our statute does not require the certificate to speak upon that point. Moore v. Booker et al, supra. (b). Parol Evidence. Parol Varying Instrument Between Parties Only. The rule that parol evidence is inadmissible to contradict, change, or vary the terms of a written instrument applies only to parties thereto or those claiming under it, and not to creditors claiming adversely to it. Jewett et al v. Sund^back, Sheriff, 5 S. D. Ill, 58 N. W. 20; Potts v. Hart, 99 N. Y. 168, 1 N. E. 605. Bill of Sale as Mortgage. Defendant can show by parol evidence that the bill of sale under which plaintiff claims right of posession of the property, was intended as a mortgage. O'Neil v. Murray, 6 Dak. 107, 50 N. W. 619. Receipt as Contract. Parol evidence is admissible to vary the terms of a writing in the form of a receipt, to show that the same const!' Ills CODE OF CIVIL PROCEDURE. tuted a contract; but only as to that part which is a mere receipt. Prairie Si-hool Tp. v. Haseleu et al, 3 N. D. 328, 55 N. W. 938; 7 Am. & Eng. Kricy. Law, p. 95; Morris v. R. R. Co., 21 Minn. 91; Burke v. Ray, 40 Minn. ::i. 11 X. \V. iMO. Note Witness Parol Evidence. Where a promissory note is signed by one of two signers at the lower left hand corner, parol is admissible to show that such signature was that of a witness and not that of a maker. Aultman & Taylor Co. v. Gunderson et al, S. D ,60 N. W. 859; Garrison v. Owens, 1 Pin. (Wis.), 471; Steininger v. Hoch ? s Ex'r. 39 Pa. St. 263; Camden v. McCoy, 3 Scam. 437. Coal Contract Parol. In an action on contract for the price of coal sold, lield, under the fact stated, that parol evidence to show the amount of coal to be taken was the amount defendant used the season before, instead of one-half to two-thirds, as stated in defendant's letter, was inadmissible, as varying the terms of the written contract. N. W. Fuel Co. v. Bruns, 1 N. D. 137, 45 N. W.699. Notes Exe- cuted on Condition Parol Proof. In suit upon notes claimed by defendant to have been executed upon express condition that they shall not be deemed hid notes, or as delivered, unless executed by another, evidence tending to prove the condition and that it had never been complied with, is competent and not within the rule of inadmissibility to contradict or vary terms of written instrument. McCormick Har. M. Co. v. Faulkner, , S. D , 64 N. W. 163; Jenkinsonv. City of Vermillion, 3 S. D. 238, 52 N. W. 1066; Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057; Burson v. Huntington, 21 Mich. 415; Whitaker v. Salisbury, 15 Pick. 534; Pawling v. U. S., 4 Cranch 219; Wilson v. Powers, 131 Mass. 539; Ware v. Allen, 128, U. S. 590, 9 Sup. Ct. 174. Agency Guaranty Contract Prior Parol State- ments. Where an agency contract was guaranteed, a general agent of the corporation appointing the agent having made the contract of guaranty for the corporation, the agency contract stating on its face that the corporation would not be bound thereby until it was accepted and approved at the home office, held, that the guarantors could not enforce against the corporation, certain prior parol statements of the general agent, not incorporated in the written contract subsequently approved by the corporation. William Deer- ing & Co. v. Russell, N. D , 65, N. W. 691. Held, further, that when the guaranty contract recited that the liability of the guarantors could not be modified or cancelled, except as therein specified, the guarantors could not insist upon a modification of such liability on other and excluded grounds. Id. Bight of Way Oral Evidence. In an action for damages, no question of owne'rship of the railroad in question being involved, held, oral evidence was proper to show the width of right of way. Gram v. No. Pac. Ry. Co. 1 N. D. 252, 46 N. W. 972. Mutual Mistake -Witness' Understanding. In order to admit parol evidence to contradict terms of written contract, on ground of mistake, it must clearly appear that such mistake was mutual. Hence, When a witness" testimony showed he had talked with but one party ERROR IN LAW. 129 to the contract, it was not error to refuse to let him state his understand- ing of what the contract between the parties was, for the purpose of estab- lishing a mistake in the written contract. William Deering- & Co. v. Rus- sell et al, . . . . N. D , 65 N. W. 691. (c). Res Geste. Res Geste Statement of Agent. In an action against an elevator company for the value of grain alleged to have been stolen from plaintiff by a third party, held, under the facts stated, that a statement of defendant's agent as to receipt of the grain by defendant and issuance of tickets therefor to the third party, were inadmissible, not being part of the res gestae, and not within the authority of the agent. Short v. No. Pac. Elevator Co., 1 N. D. 159, 45 N. W. 706; 1 Greenl. Ev. sec. 113; Story on Ag. sec. 134; Packett Co. v. Clough, 20 Wall. 540; R. R. Co. v. O'Brien, 119 U.S. 99, 7 Sup. Ct. Rep. 118; Mechem Ag. sec. 714; Randall v. Telegraph Co., 54 Wis. 140, 11 N. W. 419; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Waldele v. Ry. Co., 95 N. Y. 274; Lund v. Pyngsborough, 9 Cush. 36; McDermott v. Ry. Co., 73 Mo. 516: Durkee v. R. R. Co., 11 Pac. 130; Bank v. North, 6 Dak. 136, 41 N. W. 736; People v. Vernon, 35 Cal. 49; O'Conner v. Ry. Co., 27 Minn. 166, 6 N. W. 481; Keyser v. Ry. Co., 33 N. W. 867; Pinkerton v. Ry. Co., 7 S. W. 805; Cleveland v. Newsom, 45 Mich. 62, 7 N. W. 222. Exclam- ations of Pain Res Geste. Exclamations and expressions of present pain may be proved by any one who hears them, although made subsequently to the injury. Bennett v. No. Pac. R. Co., 2 N. D. 142, 49 N. W. 408; R.R. Co. v. Newell, 104 Ind. 254, 3 N. E. 836 and cases cited; State v. Gedicke, 43 N. J. Law 86; Eckles v. Bates. 26 Ala. 655; Yeatman v. Hart, 6Humph.(Tenn.). 374; Hagenlocher v. R. R. Co., 99 N. Y. 136, 1 N. E. 536. Transaction with Administrator Testimony to Payment. A party to an action is not pro- hibited by sec. 5260 Comp. Laws, from testifying in his own behalf to a per- sonal transaction (payment) had with a deceased administrator, as against the latter's successor suing to enforce a claim which the defendant testifies he paid to the deceased administrator as such. St. John v. Lofland, . ... .N. D , 64 N. W. 930; Voss v. King (W. Na.), 10 S. E. 402; Palmateer v. Til- ton (N. J. Err. & App.), 5 Atl. 105; Jones v. Smart, 1 Termr. Rep. 44; Was- sell v. Armstrong, 35 Ark. 247; Lobdell v. Lobdell, 36 N. Y. 327; Clapp v. Hull, 29 Atl. 687; Wood v. Stewart, (Ind. App.), 36 N. E. 658; Ass'n v. New- man (Tex. Civ. App.), 25 S. W. 461; Hay ward v. French, 12 Gray 453; Bel- lows v. Litchfield (la.), 48 N. W. 1063; Johnson v. Johnson, 52 la. 590, 3 N. W. 661; Sprague v. Bond (N. C.), 18 S. E. 701; Hodge v. Correll, 44 N. J. Law 456; Crimmins v. Crimmins, (N. J. Ch.), 10 Atl. 800; Goulding v. Hor- bury, 85 Me. 227, 27 Atl. 127; Newton v. Newton, 77 Tex. 508, 14 S. W. 157; Roberts v. Yarboro, 41 Tex, 451; McBrien v. Martin, 87 Tenn. 13, 9 S. W, 201. 9 TP i;)0 CODE OF CIVIL PROCEDURE. (d). Communications. Agent -Communications Explaining Instructions. When one acts on instructions given after communications on the subject have passed be- tween him and his principal, such communications are admissible to explain the instructions. Anderson v. I^irst Nat. Bank of Grand Porks, 4 N. D. 182, 59 N. \V. lOL*.*. Husband and Wife -Communications Between. The le- gal effect of sec. 5260 Com p. Laws, is that so long as the relation of husband and wife exists neither can testify for or against the other except by con- sent, nor after such relation is terminated, as to communications between them while such relation existed. Clark v. Evans et al, S. D ,60 N. W. 862. Confidential Communications Attorney Drawing Papers. An attorney employed to draw a deed and bill of sale to be executed by his employer, may testify, on behalf of the other party to the instruments, as to what was said between the parties, and between them and himself, to show the bill of sale was intended as a mortgage. O'Neill v. Murray, 6 Dak. 107, 50 N. W. 619. (e). Expert, Opinion Evidence, Etc. Expert Testimony Object on Street Fright. Whether or not a given object, standing on the street, is calculated to frighten horses of ordi- nary gentleness, is not a question for expert testimony. Ouverson v. City of Grafton N. D , 65 N. W. 676; Abb. Tr. Brief, 54. Expert- Matters Requiring No Skill. A witness need not qualify as an expert in order to testify to matters requiring no special knowledge nor peculiar skill. Vermillion Artesian Well, E. L. M. I. &. I. Co. v. City of Vermillion, S. D 61 N. W. 802. Water Co. v. Standart, (Cal.), 32 Pac. 532; Com. v. Sturtivant, 117 Mass. 122. State v. Pipe, 49 N. H. 399; Baldwin v. Park- er, 99 Mass. 79; 1 Greenl. Ev. 529. Opinion Observations Belief. Upon a question of identity witness may state his opinion based upon observations, but may not .give his belief resulting from facts and circumstances which can be intelligently considered by the jury. Smith v. No. Pac. R. Co., 3 N. D. 555, 58 N. W. 345; 1 Greenl. Ev. sec. 440; Hatheway v. Brown, 22 Minn. 214; Williams v. Clark, (Minn.), 49 N. W. 398; People v. N. Y. Hos- pital, 3 Abb. N. C. (notes pp. 234-5.) Value Opinion Evidence. Opinion evidence by one who testifies that at a time and place he was a general dealer in fat stock, is competent as to value of stock. Johnson v. Gilmore, -- S- D ,60 N. W. 1070; Enos v. Ins. Co. 4, S. D. 639, 57 N. W. 924; Glecklerv. Slavens, 5 S. D. 364, 59 N. W. 323; Whitney v. Thatcher, 117 Mass. 527; Ins. Co. v. Wharton, 28 Mich. 173. Opinion Water Pressure. It is not error to sustain an objection calling for opinion of witness as to amount of water discharged "under a pressure such as was on the pumps at the time this test was made," it not appearing that the valve in question was open when a test was made, nor that witness knew the pressure under which the pumps were working. Vermillion Artesian Well, E. L. M. I & I. ERROR IN LAW. 131 Co. v. City of Vermillion, S. D ,61 N. W. 802. Ownership "Family Talk." In an action between a son and a third person over the ownership of personal property claimed by the son, the "talk and conversa- tion of the family" that the son was owner is heresay and inadmissible. Stevens v. Wm. Deering & Co., S. D , 60 N. W. 739; so also is the statement of the plaintiff made to neighbors, that he was the owner. Id. Attorney's Services Testimony of Foreign Attorney. It is not error to allow an attorney to testify to the value of legal services with which he Is familiar, though he has not practiced in the county or state where the ser- vices were rendered. Frye et al v. Ferguson, S. D , 61 N. W. 161; Enos v. Ins. Co., 4 S. D. 639, 57 N. W. 924; Gleckler v. Slavens, .... S. D. . . . , 59 N. W. 323; Johnson v. Gilmore, S. D , 60 N. W. 1070. (f). Objections to, Waiuer of Estoppel. Specific Objection Waives Others. A party objecting to evidence on a specific ground waives all other grounds. Bailey v. Chi. Mil. & St. P, R. Co., 3 S. D. 531, 54 N. W. 596; State v. Leehman, 2 S. D. 171, 49 N. W. 3 and cases cited. Where the record is not sufficiently full for examination of the main questions of error assigned, appellant will be confined to such assignments of error as arise upon the record. Ellis v. Wait, 4 S. D. 31, 54 N. W. 925. Proof of "Waiver of Notice of Loss Tardy Objection Pleading. When evidence is offered to a fact from which the law infers waiver of notice of loss, no objection to its competency being made, it is too late in this court to raise the point that the complaint alleges a perform- ance relative to notice of loss, instead of waiver. Purcell v. St. P. F. & M. Ins, Co., (on rehearing), N. D , 64 N. W. 943. Insufficient Objec- tion. An objection to the admission of copies of articles of incorporation as "incompetent, immaterial and irrelevant," is not sufficient, on appeal, to raise the objection that such copies were not properly certified and authen- ticated. Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426; 3 Wait's Pr. 206; Id. 230; Tooley v. Bacon, 70 N. Y. 37; Levin v. Rus- sell, 42 N. Y. 261; Williams v. Sergeant, 4N. Y. 481; Belk v. Meagher, 104 U. S. 288; Braly v. Reese, 51 Cal. 447; Waterville Mfg. Co. v. Brown, 9 How. Pr. 27; Knapp v. Schnider, 24 Wis. 70; City of Ripon v. Bettel, 30 Wis. 614; Columbia Del. Bridge Co. v. Geisse, 38 N. J. Law 39; Burton v. Driggs, 20 Wall. 125; Merrill v. Seaman, 6 N. Y. 168; Coon v. L. & N. R. R. 5 N. Y. 492. Objections to Order or Sufficiency Not Good. Objections to evidence that go simply to the order, or sufficiency, of proof, are proper- ly overruled. Bowman v. Eppinger, 1 N. D. 21, 44 Northwest 1000; Commissioners v. Dam, 107 Mass. 210; Hutchins v. Kimmell, 31 Michi- gan 126. Preliminary Collateral Question Offer Proof, A ruling- sustaining an objection to a preliminary question on a collateral and apparently immaterial subject, must, in order to receive attention on ap- peal, be followed by an offer to prove the facts sought to be thereby elici- 132 CODE OF CIVIL PROCEDURE ted. Tootle et al v. Petrie, sheriff, . . . . S. D , 65 N. W. 43; Hanson v. Tp. of Red Rock, S. D , 63 N. W. 156. Notice of Loss ^Proof of Loss Is Waiver. Proofs of loss constitute notice of loss. If furnished too late to constitute notice of loss under the policy, the company waives time, under sec. 4179 Comp. Laws, by omitting to promptly object to them on that ground. Purcell v. St. P. F. & M. Ins. Co., (on rehearing) N. D. . . . ., 64 N. W. 943; Weed v. Ins. Co. (N. Y. App.) 31 N. K 231; Johnson v. Ins. Co., 1 N. D. 167, 45 N. W. 799. Referee Objection to Evidence Re- newal of. Defendant, who objected to any rulings being made by referee, cannot raise the question whether evidence admitted by the referee, not ex- cepted to, should have been received, the objection not being renewed on application for judgment on the report, and no exceptions being taken on the application. Illstad v. Anderson, 1 N. D. 167, 49 N. W. 659. Sess. Laws 1889, chap. 112, sec. 3. Estoppel Competency. Where a party introduces a written instru- ment in evidence she thus asserts its competency, and cannot afterwards, to avoid a benefit claimed by the opposite party under it, object that there was no proof of its execution and delivery. Evenson v. Webster, (on rehearing), 5 S. D. 266, 58 N. W. 669. Agreement as to Proof. When parties agree as to what shall constitute proof of a fact, they take such question out from under the ordinary rules of evidence, and the fact may be established in the manner agreed upon. John A. Tolmann Co. v. Bowerman et al, 5 S. D. 197, 58 N. W. 569. 5. Instructions. See, decisions under "Instructions, how Given and Refused," sec. 5048, Comp. Laws, sec. 5432, Rev. Codes, N. D.; also, "Instructions," under sub- division 6, supra, and "Practice Procedure," infra. Good as a Whole. A verdict will not be set aside because detached portions of the charge, stated separately, do not correctly state the law, where it clearly appears that, taken as a whole, the charge correctly stated the law of the case, and the jury could not have been misled. State v. Bren- nan, 2 S. D. 384, 50 N. W. 625. Erroneous Instruction Harmless Error. While the giving of an erroneous instruction raises a presumption of preju- dice, yet a case will not be reversed therefor where ths record clearly shows that prejudice could not have resulted. Nat. Bank of No. Dak. v. Lemke, 3 N. D. 154, 54 N. W. 919; McKay v. Leonard, 17 la. 569; Hook, adm'r, v. Craghead, 35 Mo. 380; Freeman v. Rankins, 21 Me. 446: Hayne New Tr. sec. 287 and cases cited. Oral Charge No Objection. Error cannot be as- signed upon an oral charge to the jury, made without objection or request that they be instructed in writing, the charge being taken down by the sten- ographer. Frye et al v. Ferguson, S. D , 61 N. W. 161; Stamm v. Coates, 4 Dak. 69, 22 N. W. 593; Head v. Langworthy, 15 la. 236; Thomp. on Tr. sec. 2378. Omitted Point Request. Nor can a party assign error upon ERROR IN LAW. 133 an omission of the court to instruct upon a point in respect to which no in- struction was asked. Frye et al v. Ferguson, supra; Haynes NewTr. & App. sec. 120; 2 Am. & Eng. Ency. of Law, p. 258 and cases cited. Assuming Facts. An instruction is properly refused which assumes and is based upon a supposed fact, which the evidence leaves in dispute. Rapp v. Giddings, 4 S. D. 492, 57 N. W. 237. Pertinent Redundant Instructions Refused. Refusal to give instructions requested that are correct in law and applicable to the case, is not error, where the charge already given fairly covers the point. Daeley et al v. Minn. & N. Elevator Co., 4 N. D. 269, 60 N. W. 59. Construction of Contract Waiver. Where a contract is construed by the trial court in instructing the jury, without objection, such construction will be assumed to be correct, by this court, and its correctness will not be questioned. Brown v. McCall et al, S. D , 60 N. W. 151. Sale Order Refusal to Receive Stacker. In an action for purchase price of a straw stacker, held, under the facts stated, that the court erroneously in- structed the jury that plaintiff had the right to refuse to receive the ma- chine under the terms of a written order. Reeves & Co. v. Corrigan et al, 3 N. D. 415, 57 N. W. 80; Fahey v. Machine Co., 3 N. D. 220, 55 N. W. 580. Withdrawing Testimony Instructions Curing. In instructing the jury the court withdrew from them certain specified testimony and stated that it must not be considered; held, under the circumstances stated, that the error, if any, in admitting the evidence, was in this particular case cured by such instructions. Bishop v. Chi., Mil. & St. P. Ry. Co., 4 N. D. 536, 62 N. W. 605; Thomp. Tr. sec. 723, 351 and cases cited in notes; Id. sec. 2354; State v. McGahey, 3 N. D. 293, 55 N. W. 753. Jury's Disregard of Submitted Testimony. A jury has no right to arbitrarily or capriciously disregard testimony submit- ted to them by the court. Drew et al v. Watertown F. Ins. Co., S. D. , 61 N. W. 34; Lomer v. Meeker, 25 N. Y. 361; Emerson v. Santa Clara Co., 40 Cal. 543; Newton v. Pope, 1 Cow. 109; and where the instruction to the jury is unchallenged, and its correctness unquestioned either in the trial court or here, a verdict in open disregard of the instruction cannot stand. Drew et al v. Watertown F. Ins. Co., supra; McMahon v. People, 120 N. Y. 584, 11 N. E. 883; Elwood v. Telegraph Co., 45 N, Y. 553; Dickinson v. Bent- ly (la. ), 45 N. W. 903. Value of Wheat Conversion. An instruction, in an action for the value of wheat seized by defendant as sheriff under attach- ment against the father and agent of plaintiff, charging the jury that they must deduct certain wheat taken for settlement of other claims, from what- ever amount defendants are shown to have seized, held, correct under the evidence. Pickert v. Rugg et al, 1 N. D. 230, 46 N. W. 446. Fraudulent Transfer Attachment Ruling Ignoring Fraud. In an action against a sheriff for the value cf a stallion taken by defendant under warrant of attachment, the defense being that^an alleged sale by the defend- 134 CODE OF CIVIL PROCEDURE. ant in attachment to the plaintiff in the present suit was fraudulent and void under sec. 4657 Comp. Laws, because no change of possession was made 3 licld, that the trial court erred in refusing to submit any other than the question of damages to the jury. Conrad v. Smith, sheriff, 2 N. D. 408, 51 N.W. 71M. 6. Verdict See, %l Verdict," chap. IV. page 32. (a). Generally. Nothing to Review "Verdict Against Law." When the correct- ness of the instructions is not questioned, and it is not claimed that the ver- dict is inconsistent therewith, there is nothing for this court to examine un- der an assignment that "the verdict is against the law." Bauder v. Scam- ber, et al, S. D , 63 N. W. 227; Haynes New Tr. & App. sec. 99, and cases cited. Possession Through Ownership Judgment. Where each party claims right of possession solely through ownership, a verdict in an action of claim and delivery, finding plaintiff entitled to posses- sion, and fixing value will support a judgment for plaintiff for its possession, or its value. Branstetter v. Morgan, 3 N. D. 290, 55 N. W 758; Krause v. Cutting, 32 Wis. 688; Everit v. Bank, 13 Wis. 468; Faulkner v. Meyers, 6 Neb. 415; Underwood v. White, 45 111. 438; Clark v. Heck, 17 Ind. 281; Payne v. June, 92 Ind. 253. Finn General Verdict Judgment. Upon a general verdict for plaintiff and against defendant, in an action against a firm composed of two persons, it is error to render judgment against plain- tiff dismissing the action as to one member with costs. Kellogg, Johnson & Co. v. Gilman, 3 N. D. 538, 538, 58 N. W. 339. Ownership, Prima Facie. Where the proof shows prima facie ownership in plaintiff, it is error for the court to direct a verdict for defendant on the question of title. Warder, Bushnell and Glessner Co. v. Ingli, 1 S. D. 155, 46 N. W. 181. Not Sup- ported, or Against Instructions. A verdict that must be either without support in the evidence, or contrary to instructions, cannot stand. McMil- lan et al v. Aitchison, 3 N. D. 183, 54 N. W. 1030. Construction of Verdict. Where co-partners are sued, held, that a verdict in favor of plaintiff "and against the defendant," was properly construed against the two defendants, and a judgment rendered thereon was valid, the omission of the letter "s" in defendant being a mere clerical error, which should be disregarded. Jeansch v. Lewis et al, 1 S. D. 609, 48 N. W. 128; Kelsey v. R. R. Co., 1 S. D. 80, 45 N. W. 204. Special Finding Negligence. A special finding of a jury that the negligence of defendant causing damage to plaintiff was the condition of its engine is within the allegations that "defendant carelessly and negligently" ran an engine along its line, "which engine then and there was so negli- gently and insufficiently constructed and equipped, and then and there was so negligently and carelessly operated by the defendant, that it emitted and threw out large sparks of Ore. Smith v. Chi. Mil. & St. P. Ry. Co., 4 S. D. ERROR IN LAW. 135 71, 55 N. W. 717. Neither General Nor Special. In an action of replevin, held, under the facts stated, that the verdict, being neither general nor spec- ial, did not support the judgment for defendant entered thereon. Rudolph v. North, 6 Dak. 79, 50 N. W. 487. (b). Directing Verdict Motion to Direct Subsequent Evidence. Error cannot be assigned on a ruling overruling a motion for verdict where defendant subsequently put in evidence; he should have renewed his motion upon all the evidence. Bowman v. Eppinger, 1 North Dakota, 21, 44 Northwest 1000; Railway Company v. Cummins, 106, U. S. 700, 1 Supreme Court; 493; Insur- Company v. Crandal, 7 Sup. Ct. .685; Ass'n. v. Willard, 48 Cal. 617; Bradley v. Poole, 98 Mass. 169. Motion Improperly Granted. The trial court having set aside a verdict which had been directed for plaintiff, upon the ground that the motion to direct the verdict was not properly granted, defendants being bound, under the facts stated, to return the machine in question, lield, that the order setting aside the verdict and granting a new trial is erroneous. Minn. Thresher Mfg. Co. v. Lincoln, et al, 4 N. D. 410, 61 N. W. 145. Directing "Error of Law." The direction of a verdict upon the evidence, if erroneous, is an "error of law occurring at the trial." Sioux Banking Co. v. Kendall et al, S. D ,62 N. W. 377; Donahue v. Gallavan, 43 Cal. 573. Is Error of Law Review. The directing of a verdict at the close of testimony, if erroneous, is error of law occurring on the trial, and may be reviewed without motion for a new trial. Jones Luna. & Mer. Co. v. Faris, 5 S. D. 348, 60 N. W. 403. Negligence Statutory Presumption Overcome. A motion to direct a verdict for defendant at close of all tebtimony should be sustained, although the killing in question is ad- mitted, when a statutory presumption of negligence arising therefrom ^ is clearly 'overcome by undisputed evidence. Lewis v. Fre E. & M. Valley Railroad Company, S D. , 63 Northwestern 781. Sale Note Waiver of Warranty. In an action upon a note for purchase price of a separator, plaintiff moved at the close of the evidence, for ver- dict; held, under the facts stated, that the only question the trial court could consider in ruling on the motion is whether the testimony did or not show a waiver as to warranty. Minn. Thresher Mfg. Co. v. Lincoln et al, 4 N. D. 410, 61 N. W. 145; Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473. (c) Vacation on Court's Motion What Should Appear. A verdict to which neither party has objected should not be vacated on the court's own motion, unless there has been such clear disregard of instructions or evidence that the court is at once satisfied without mature reflection or aid of argument that such verdict resulted from passion or prejudice, or from misapprehension of instructions; and the order should be made promptly upon coming in and entry of verdict. Clement v. Barnes, S. D . . ., 61 N. W. 1126; sec. 5091 Comp. Laws; Gould v. Elevator Co., 2 N. D. 216; 50 N. W. 970; Hayne New Tr. & App. pp. 10 and 11. 136 CODE OF CIVIL PROCEDURE. 7. Findings. Order of Reference Powers Conferred. An order referring "the ac- tion" to a referee, "with the usual powers," made upon consent of defendant that the case be referred to take testimony and report, warrants the referee in making and reporting findings of fact and conclusions of law. Illstad v. Anderson, 1 N. D. 167, 49 N. W. 659; Sess. Laws 1889, ch. 112, sec. 1. Con- sent Presumed When Record. An order of reference may under provisions of the statute as they existed prior to 1889, made upon due notice, no appear- ance or objection being made by opposing party, or motion to vacate the or- der, several months elapsing between date of order and hearing before ref- eree, is presumed to have been made with consent of opposite party, and will be held valid and binding. Jerauld Co. v. Williams et al, S. D. , 63 N. W. 905; Kent v. Ins. Co., 2 S. D. 300, 50 N. W. 85; and where it is not stated in the abstract that there was no agreement of parties filed or entered, this court will presume such agreement was made and filed or en- tered. Id. Referee Order Confirming- Report Waiver. When a case tried to a referee is resubmitted to the referee on motion for judgment, and goes to judgment on the referee's final report, defendant not raising the point that an order confirming the report was not previously made, the ir- regularity is waived, and the point cannot be raised for the first time in this court. Little v. Little, 2 N. D. 175, 49 N. W. 736; but the question whether it is proper practice to procure such order of confirmation before applying for judgment, is not decided. Id. Neglected Issues -Reversal. Where several issues are involved, and the referee omits findings upon some issues, which findings are suffered to be made the basis of a judgment without objection, the judgment being con- distent with and supported by the findings, this court will not reverse on ac- count of such neglected issues unless appellant shows that evidence was offered upon one or more of such issues which would support a finding coun- tervailing findings made, and requiring a different judgment. Merchants' Nat. Bank v. McKinney, 4 S. D. 226, 55 N. W. 929; Edinburgh-American L. & M. Co. v. City of Mitchell, 1 S. D. 593, 48 N. W. 134; Hutchings v. Castle, 48Cal. 152; Himmelman v. Henry, 84 Cal. 104, 23 Pac. 1098; Winslow v. Gohransen, 88 Cal. 450, 26 Pac. 504; Dolliver v. Dolliver, 94 Cal. 642, 30 Pac. 4; Fincher v. Malcolmson (Cal.), 30 Pac. 835; and an appellant cannot complain that no finding was returned upon an issue, when the record shows that such finding, if made, must have been against him. Id. Inconsistent Findings. In foreclosure of mechanic's lien upon a homestead standing in the wife's name, involving the question of agency of the husband, the findings of the trial court were inconsistent with each other and with the theory that the contract was that of the wife, or of the husband, or jointly by both; held, a judgment for plaintiff upon the findings should be reversed and a new trial granted. Cawley et al v. Day et al, 4 S. D. 221, 56 N. W. 749. Ambiguous ERROR IN LAW. 137 Intention Other Findings Considered. In construing an ambiguous finding of fact made by the trial court, this court may consider all the find- ings to determine what was intended, and its duty is to so construe a finding as to support a conclusion that follows, when it can be done without violence to language used. Moore v. Booker et al, 4 N. D. 543, 62 N. W. 607. Addi- tional Nunc pro Tune. Where on trial to the court findings and conclus- ions of law are filed with the judgment, the court has power to make addi- tional though entirely consistent findings, conforming more specifically to the decision as orally announced at conclusion of trial, and file them .nunc pro tune. Martin v. Minnekahta State Bank, S. D ,64 N. W. 127; Comp. Laws sec. 4938. 4939, 4941; Ins. Co. v. Boon, 95 U. S. 117; Williams v. Ely, 13 Wis. 1; Mf'g Co. v. Adams (Minn.), 50 N. W. 360. Added Con- clusions of Law. Under sec. 3 of chapter 112, Laws 1889, the trial court was authorized to add conclusions of law, omitted or imperfectly stated in the referee's report, and enter judgment accordingly, without re-referring the report. Kent v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85; and referees are only required to state their conclusions of law, under sees. 1 and 3 of said chapter, when all issues of fact and law are referred. Id. Waiver of, Presumed When. The statute allows parties to waive findings by the court, and a waiver will be presumed unless the fact of non- waiver is shown of record. Chandler v. Kennedy, S. D , 65 N. W. 439. Improper Evidence no Foundation For. Where a case is tried to the court, and im- material and incompetent evidence has been improperly admitted, such evi- dence requires no specific finding of fact, and it is no error to disregard it. Martin v. Minnekahta State Bank, . . . . S. D , 64 N. W. 127. Where Result Not Different Reversal. A judgment will not be reversed for failure of trial court to make a finding on a particular point, where th re- sult could not have been different had the fact been found as alleged by the objecting party. Joslyn v. Smith et al, 2 N. D. 53, 49 N. W. 382. Imma- terial Finding's. Immaterial findings which are not the basis of the judg- ment, other sufficient findings appearing in the record, will not vitiate the judgment or cause its reversal. Caledonia Gold Min. Co. v. NooHan et al, 3 Dak. 189, 14 N. W. 426; Golden Terra Min. Co. v. Smith, 11 N. W. 97. Findings, and Report of Evidence, Mandatory. The provision in sec. 3 of chapter 112, Laws 1889, that a report be made of findings, with all evi- dence and exceptions taken on the hearing, is mandatory. Kent v. Dak. P. & M. Ins. Co., 2 S. D. 300, 50 N. W. 8-5. 8. Exceptions. No Specifications, No Review. To be available here, errors of law occurring at the trial, and excepted to, must be particularly specified; and when the appeal is taken only from an order overruling a motion for a new trial, errors neither urged nor presented in a statement or bill at the hear- 9| TP i;;s CODE OF CIVIL PROCEDURE. ing of said motion will not be reviewed. Tootle et al v. Petrie, sheriff, S. D , 65 N. W. 43. No Specifications of Error Review. Alleged er- rors of law occurring at tho trial, and discussed in appellants brief, will not be reviewed on appeal, where the bill of exceptions embodied no specifica- tions of error, the appeal being -from an order denying motion for a new trial. Schmitz v. Heger, .... N. D , 64 N. W. 943; sec. 5090 Com p. Laws; Hostetter v. Elevator Co. 4 N. D. 357, 61 N. W. 49; First National Bank of Devil's Lake v. Merchant's National Bank of Devil's Lake, . . . . N. D , 64 N. W. 941; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659; 3 Estee PI. & Prac., sec. 4896 and cases cited. Specific Exception- Negligence. A exception to instructions by the court "for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions," is too general to be available on appeal or on motion for a new trial. But a specification in a motion for a new trial, "that the verdict is contrary to the law and the facts, in that the negligence of the defendant was the proximate cause of the injury to the plaintiff, and that there is no evidence in the case that shows that the plain- tiff was guilty of any negligence whatever," sufficiently conforms to the statute. Alt. v. Chi. & N. W. By. Co. 5 S. D. 20, 57 N. W. 1126. 9. Assignment of Error. No Assignment Reference to Specifications. There being no assign- ment of errors in appellant's brief and no reference to specifications of error required by the statute, Jield, that the judgment below should be affirmed. O'Brien v. Miller, 4 N. D. 308, 60 N. W. 841; Sup. Ct. Rule No. 15 N. D.; Investment Co. v. Boyum, 3 N. D. 538, 58 N. W. 339. Unspecified Errors Dis- regarded. Errors not specified in bill of exceptions, where motion for a new trial is made on a bill, must be disregarded by the trial court and on appeal. Illstad v. Anderson. 2 N. D. 167, 49 N. W. 659; sec. 5090 Comp. Laws, subd. 2. Must Affirmatively Appear. Error alleged in this court must affirmatively appear of record or this court will not reverse the judg- ment. Kent v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85; Herrick v. Butler, 30 Minn. 156, 14 N. W. 794. Immaterial Matters. Errors assigned upon immaterial matters will not be reviewed; so held, where a charge to the jury did not injure appellant. Daeley et al v. Minn. & N. Elevator Co. , 4 N. D. 269, 60 N. W. 59. Ruling Record Must Show. An assignment alleging error in the ruling of the trial court is unavailable here, the record not showing that such ruling was made. Johnson v. Gilmore, S. D. , 60, N. W. 1070. Assignment Not Relied On. An assignment of er- ror which is not relied upon or mentioned by counsel in argument will not be considered. Franz Falk Brew. Co. v. Mielenz et al, 5 Dak. 136, 37 N. W. 728; Phillip Best Brew. Co. v. Pillsbury & H. E. Co. , 5 Dak. 62 37 N. W. 763. Reference to Abstract Rule. Assignments of error in this court which do not refer to the abstract, are insufficient, under rule 15 of this court, and ERROR IN LAW. 139 will not be considered unless, for reasons satisfactory to the court, the rule is relaxed in furtherance of justice and on terms. Hostetter v. Brooks Elevator Co., 4 N. D. 357, 61 N. W. 49. Assignment in Brief Abstract. At- tempted assignment of error in a brief, where no specifications of error are found in the abstract, and no reference being made in the assignments of er- ror in the brief to any page of abstract where they could be found, are of no avail, under rule 15 of supreme court rules (61 N. W. p. IX); Schmitz v. Heger, supra. Must Assign Error in Overruling Motion. Where an action is tried to the court, and a motion for a new trial on the ground of the insuffi- ciency of the evidence to sustain the findings is overruled, an appeal from the judgment does not present the evidence for review in this court unless error is assigned in overruling the motion for a new trial. Pierce et al v. Manning, 2 S. D. 517, 51 N. W. 332; Clark v. Schnur, 40 Kan. 72, 19 Pac. 327; Struthers Fuller, 45 Kan. 735, 26 Pac. 471; Carson v. Funk, 27 Kan. 524; Lingerman v. Nave, 31 Ind. 222. W. The Record. Judgment Roll Appearance. The question whether voluntary ap- pearance of defendant in the county court of this state, being one of limited and special jurisdiction does away with necessity for summons as part of judgment roll for purpose of proving judgment, as against a stranger, raised but not decided. Ayers, Weatherwax & Reid Co. v. Sundback, sheriff, 5 S. D. 362. 58 N. W. 4; and see as bearing on this point, Black, Judgm. sec. 282; Cooper v. Sunderland, 3 la. 114; Wilkinson v. Moore, 79 Ind. 397; Hen- ry v. Estes, 127 Mass. 474; sees. 4892, 4904 Comp. Laws. Appeal Questions Considered. Where the record on appeal consists only of pleadings, special verdict, and judgment, the only error assigned being that the judgment is not supported by the special verdict, no other question not jurisdictional can be considered. John A. Tolman Co. v. Savage et, al, 5 S. D. 496, 59 N. W. 882. Appeal From County Com'rs De Novo. An appeal from the action of a Board of County Commissioners must be tried Ue novo in the District Court; and to enable this court to review the evidence offered before such Board it must be again offered in the District Court and incorporated in a bill of exceptions. Nothing appearing in the record to the contrary, every presumption is in favor of the regularity of the proceedings below. In the matter of opening Gold street, Deadwood v. Newton, 2 Dak. 149, 3 N. W. 329. Supplemental Abstract Affidavit of Publication. Leave to file a supplemental abstract solely to present a corrected printer's affidavit of pub- lication, not before the trial court but filed therein, nunc pro tune, long after an appeal had been perfected, will not be allowed. Iowa State Sav. Bank v. Jacobson, S.D ,66 N.W. 453; Ladd v. Couzins, 35 Mo. 514; Clelland v. People, 4 Colo. 244; Kirby v. Superior Ct., 68 Cal. 604, 10 Pac. 119. Motion Renewal of. A motion once heard and decided cannot be renewed in the same court upon the same facts without leave of court, whether there has 110 CODE OF CIVIL PROCEDURE. been a change of judges or not; and the question whether the application is a second one or not may be determined upon evidence, though no record \vns made of the former ruling. Jeansch v. Lewis et al, 1 S. D. 609, 48 N. W. 128. 77. Error Reuersal, Etc. Not Affecting Result. A judgment will not be reversed on account of the admission of improper evidence, when it appears that without such evi- dence the verdict, or findings of the court must have been the same. John A. Tolman Co. v. Bowerman et al, 5 S. D. 197, 58 N. W. 568; 1 Greenl. Ev. sec. 435. Error, if Evidence May Prejudice. The appellate court will not inquire whether the improper evidence received, did in fact prejudice the objecting party, but whether it could reasonably and properly have been so understood by the jury as to prejudice him; and where the jury may fairly and reasonably have understood the improper evidence in a way to in- juriously prejudice the party objecting, a new trial must be granted. Yank- ton Co. v. Rossteuscher, 1 Dak. 120, 46 N. W. 575; 47 N. Y. 186; 43 N. Y. 200; 4 Waifs Pr. 239 and cases there cited. Prejudice Must Appear. Error in excluding legal evidence or admitting illegal evidence, must appear to be prejudicial in order to warrant a reversal or new trial. Burdick v. Hag- gart, 4 Dak. 13, 22 N. W. 589; Yankton county v. Rossteuscher, 1 Dak. 120, 46 N. W. 575; Baird v. Gillette, 47 N. Y. 186; Starbird v. Barrens, 43 N. Y. 200; 4 Wait's Pr. 239. The rule is, could the improper evidence reasonably and properly have been so understood by the jury as to prejudice the object- ing party. Yankton county v. Rossteuscher, supra. Error Prejudice Pre- sumed. When error is shown in refusal to strike out material, incompetent evidence, the presumption is that prejudice resulted, and unless this court can see that no such result ensued, the case must be reversed and new trial granted. Wendt v. Chi. Mil. St. P. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226. Presumed Misapplication of Evidence. This court will not assume that the trial court considered evidence, admitted to establish one fact, in finding another fact which it was not legally competent to prove. Dows et al v. Glas- pel, 4 N. D. 251, 60 N. W. 60. Immaterial Evidence. Error in the admis- sion of immaterial evidence which worked no injury to defendants, is not a ground for reversal. Davis v. Iverson et al, 5 S. D. 295, 58 N. W. 796. Fav- orable Testimony Harmless Error. Testimony wholly favorable to de- fendant, admitted against his objection, does not constitute prejudicial error if improperly admitted. Bishop v. Chi. Mil. & St. P. Ry. Co., 4 N. D. -536, 62 N. W. 605. Unresponsive Answer. An unresponsive answer contain- ing improper testimony should be stricken out, and refusal to do so is rever- sible error if prejudicial to a suitor. Smith v. No. Pac. R. Co., 3 N. D. 555, 58 N. W. 345; 1 Thomp. Tr. sec. 718. 12. Practice Procedure. [Under these heads are arranged decisions upon various stages of ac- tions and proceedings, many of which might properly be referred to some ERROR IN LAW. 141 special subject heading found under this subdivision of the general sec- tion under consideration, and some of which, on the other hand, are within the scope of decisions arranged under those headings; but which properly come under the subjects of practice and procedure, and are accordingly so treated.] See "Instructions," "Pleadings," "Examination of Witnesses," . "Verdict," "Exceptions," and "Assignment of Error," supra. (a). Jurisdiction. Jurisdiction of Superior Ccturt Presumption. The jurisdiction of a superior court need not affirmatively appear in the judgment roll. If it does not, and the contrary does not therein affirmatively appear, jurisdiction will be conclusively presumed. Seaman v. Galligan etal, S. D 66 N. W. 458; Hahm v. Kelly, 34 Cal. 391; Richards v. Matteson, S. D 65 N. W. 428; Black Judgm. sec. 270-279 and cases cited. Adoption Illegiti- mate Child Mother's Consent. When it reasonably appears to the satis- faction of the judge of the county court that for a period of one year a moth- er has abandoned her illegitimate child, an order of adoption may be made without the consent and against the objection of such mother. Richards v. Matteson ot al, .... S. D ...., 65 N. W. 428. Habeas Corpus Jurisdic- tion. Inquiry upon habeas corpus is limited to the grounds enumerated in sec. 7841 Comp. Laws; and where a want of jurisdiction does not expressly or by necessary implication appear, the jurisdiction of a court of record to make an order relating to a subject over which it has general original juris- diction will be presumed. Richards v. Matteson et al, . . . . S. D ,65 N. W. 428. Venue Removal of Cause Ad Damnum. The amount de- manded in the complaint controls in determining whether the matter in dis- pute exceeds $2000, on application to remove the cause to the Federal Court on ground of diverse citizenship. Smith v. No. Pac. R. Co., 3 N. D. 17, 53 N. W. 173; Fost. Fed. Pr. sec. 16 and cases cited; Desty Rem. Causes p. 246, sec. 10; Dill. Rem. Causes, Ch. 16; DeCamp v. Miller, 44 N. J. Law 617. (b). Demand Before Suit. Conversion Fruitless Demand. In an action for conversion of per- sonal property, where defendant denied plaintiff's ownership and his posi- tion and claim made it evident that a demand would have been fruitless, no demand is required. Consolidated Land & Irrigation Co. v. Hawley, sheriff, . . . . S. D 63 N. W. 904; Rosum v. Hodges, 1 S. D. 313, 47 N. W. 140; Myrick v. Bill, 3 Dak. 284, 17 N. W. 268; Smith v. McLean, 24 la. 322; Raper v. Harrison, 37 Kan. 243, 15 Pac. 219; Rosenau v. Syring (Ore.), 35 Pac. 844. Mortgagee v. Purchaser. An action for the value of mortgaged chattels, cannot be maintained by the mortgagee against a purchaser thereof who merely buys, pays for and takes possession of the property, unless demand of possession and refusal to deliver before suit is shown. Sandford v. Bell et 142 CODE OF CIVIL PROCEDURE al, 2 N. D. 6, 48 N. W. 434; Bigelow, Lead. Gas. Torts, pp. 446-7; Gilmore v. Newton, 9 Allen 171; Kellog v. Olson (Minn.), 24 N. W 364; sees. 4330, 4338, 434(5, 4348, 4356, 4358, Comp. Laws; Jones Chat. Mort. sec. 455; Cad- well v. Pray, 41 Mich. 307, 2 N. W. 52; Kohl v. Lynn, 34 Mich. 360. Pre- senting Claim to Administrator Mechanic's Lien. A debt secured by a mechanic's lien made of record is not a claim that must, under sec. 5790 Comp. Laws, be presented to an administrator for allowance or rejection. Fish et al v. De Laray et al, . . . . S. D , 66 N. W. 465; Phil. Mech. Liens, p. 494; sec. 5795 Comp. Laws; Purdin v. Archer, 4 S. D. 54, 54 N. W. 1043; Kelsey v. Welch S. D , 66 *N. W. 390; 5 Am. & Eng. Ency. Law, 213; Fallen v. Butler, 21 Cal. 32. (c). Parties. Party Plaintiff Grantee of Land. In an action to recover possession of land, and damages for wrongfully withholding ii f held, that one to whom the plaintiff conveyed the land while defendant was in actual possession claiming title adversely to plaintiff, was properly joined as party plaintiff. Hegar et al v. DeGroat, 3 N. D. 354, 56 N. W. 150; sees. 3303, 4870 Comp. Laws. State's Attorney Authority to Sue Presumption. Where a civil action is brought by the state's attorney in his official capacity in the name of a county, against the county treasurer and his sureties, to recover money alleged to be due from the treasurer to the county, a court will pre- sume, in absence of contrary showing, that the action was brought by order of the county commissioners. Jerauld Co. v. Williams et al, . . . .S. D , 63 N. W. 1)05. Equitable Owner of Judgment. The equitable owner of a judgment, being the real party in interest, may in his own name maintain an action thereon. J. I. Case T. M. Co v. Pederson et al, . . . . S. D ,60 N. W. 747; Compton v. Davidson, 31 Ind. 62; Fitnam Tr. Proc. 326. Cor- porate Interests Action Protecting Plaintiff. While as a general rule an action to protect corporate interests must be brought by the corporation itself, still the right of stockholders to bring such action in their individual names is recognized, where the corporation, by its directors, refuses to bring the action, or where their conduct is equivalent to a refusal. Loftus et al v. Farmers' Shipping Ass'n. et al S. D , 65 N. W. 1076; sec. 4719 Comp Laws; Spelling, Priv. Cor. Vol. 2, sec. 612; Pom. Eq. Jur. sec. 1095; Brewer v. Boston Theater, 104 Mass. 378; Eschweiler v. Stowell, 78 Wis. 316, 47 N. W. 361; Moyle v. Landers' Adm'rs. 83 Cal. 579, 23 Pac. 798; Miller v. Murray, (Colo. Sup.), 30 Pac. 46; City of Chicago v. Cameron, 120 111. 447, 11 N. E. 899; Young v. Drake, 8 Hun 61; Heath v. R. R. Co. 8 Blatchf. 347, Fed. Gas. No. 6306; Kelsey v. Sargent, 40 Hun 150; Mussini v. Goldthwaite, 34 Tex. 125; Talbot v. Scripps, 31 Mich. 268; Cogswell, v. Bull, 39 Cal. 320. Wrongdoing of Majority Directors Director's Suit. If the alleged facts show the defendants charged with the wrongdoing, or some of them, constitute a majority of the directors of managing body at the time of ERROR IN LAW. 143 commencing- suit, or that the directors or a majority thereof are still under the control of the wrongdoing defendants, so that a refusal of the managing body, if requested to bring a suit in the name of the corporation, may be in- ferred with reasonable certainty, then an action by a stockholder may be maintained without alleging or proving any notice, request, demand, or ex- press refusal. Loftus'et al v. Farmers' Shipping Ass'n. et al, S. D , 65 N. W. 1076, and above cases there cited. Property in Trust Suit at Law, When. No action can be main- tained at law by the cestui qui trust against the trustee where the trust re- mains open, unless the exact amount due has been liquidated, and no act remains undone except payment; so held in an action involving property conveyed absolutely, but as security, to a trustee. Jasper v. Hazen, 1 N. D. 75, 44 N. W. 1018; Pom. Eq. Jur. sees. 1079, 1080, 1421; Johnson v. Johnson, 120 Mass. 466; Davis v. Coburn, 128 Mass. 382; Norton v. Ray, 139 Mass. 230; Wingate v. Ferris, 50 Cal. 105; Heyland v. Badger, 35 Cal. 405; Sanfoss v. Jones, 35 Cal. 481; Judd v. Dike, 30 Minn. 380, 15 N. W. 672. Notice of Motion Defendant's Names. Notice of motion where there are numerous defendants is sufficient which gives the names of the first-named defendant, followed by the abbreviation "et al", in the absence of proof that the adverse party has been misled or prejudiced thereby. Jerauld Co. v. Williams et al, ....S.D , 63 N. W. 905. (d). Process Native Corporation Foreign Insurance. Where an insurance company of this state issued a fire policy to parties in another state, insuring property in that state, it is subject, in an action on such pol- icy, to the laws of that state as to the service of process upon such corpora- tion. Gude et al v. Dak. F. & M. Ins. Co S.D , 65 N. W. 27. Publication of Summons Order Before Attachment. In an action against a non-resident defendant having property within this state, an order for publication of summons may be granted before said property has been actu- ally seized under attachment, and upon an affidavit containing a statement of all jurisdictional facts, together with evidence relating thereto sufficient to convince the court of the existence of a case authorizing a substituted ser- vice under the statute. Iowa State Sav. Bank v. Jacobson, .... S. D , 66 N. W. 453. Publication Notice "Six Successive "Weeks." Proof that a notice is published in a weekly newspaper for seven successive issues com- mencing on December 25, 1891, and concluding on February 5, 1892, is suffi- cient to show publication thereof "once in each week for six successive weeks," as required by statute. Iowa State Sav. Bank v. Jaeobson, S. D , 66 N. W. 435. (e). Attachment. Claim and Delivery Attachment -Wrongful Release of Levy. A sheriff, defendant in an action in claim and delivery, is precluded from ques- tioning the bona fides of a prior sale of the property in question by the de- 144 CODE OF CIVIL PROCEDURE. fendnnt in an attachment suit (under which proceeding the officer holds the goods) to the plaintiff in the present suit, when such olh'cer has previously relinquished the attachment lien by unlawfully delivering the property to an aarty at the trial is prevented from having a fair trial, or is preju- diced in any of his rights at issue, by misconduct of his adversary's counsel, in offering incompetent or irrelevant testimony, containing prejudicial in- sinuations, or by slanderous statements to the jury, and which in fact, or pre- sumably influenced the jury, a now trial should be granted. Burdick v. Haggert, 4 Dak. 13, 22 N. W. 589. Opening Case Omitted Fact. It is discretionary with the court, to permit plaintiff, after having rested, to introduce further evidence tending to prove an omitted fact. Johnson v. Gil more, S. D , 60 N. W. 1070; Calkins v. Mining Co., 5 S. D. 299, 58 N. W. 797. Offers to Prove Reversal Substantial Injury. The matter being within the exercise of judicial discretion, the rulings of the trial court upon offers to prove specific facts, at the time apparently inadmissible, will not be disturbed unless sub- stantial injury has resulted therefrom. Fall v. Johnson, S. D ,65 N. W. 909. Excluding Evidence Offer Deemed Provable. Where the trial court in excluding evidence asserts that plaintiff cannot, as matter of law, recover on thetheory he is pursuing, he is not bound, in absence of notice that he must, to offer proof of other allegations of his complaint, as they are deemed, in reviewing such ruling, to be capable of proof, and that plaintiff could have proved them had he not been met by such ruling, rendering fur- ther evidence without force in the case. Brundage v. Mellon, .... N. D. ...., 68 N. W. 209; Loeb v. Willis, 100 N. Y. 231, 2 N. E. 177. Question for Jury Waiver. If the question of an agent's authority was one of fact for the jury, appellant waived its submission to the jury by treating the case as presenting questions of law only, and moving for a verdict in its favor; and the court having adopted appellant's theory that the case presented questions of law only, the fact that it decided the law questions adversely did not relieve appellant from the effect of his concession. Grigsby v. W. U. Tel. Co., 5 S. D. 561, 59 N. W. 734. Must Show Plaintiff's Title. If a plaintiff, in an action to recover real property, fails to show his own title or right as ground of recovery, he cannot complain that the evidence does not establish defendant's right to possession. Evenson v. Webster (on rehear- ing), 5 S. D. 266, 58 N. W. 669. (h). Defenses. Affidavit of Merits Attorney. An affidavit of merits by an attorney must show him acquainted with the facts. Pettigrew et al v. City of Sioux Falls, et al, 5 S. D. 646, 60 N W. 27; Ellis v. Jones, 6 How. Pr. 296. Ans- wer After Time Affidavit of Merits. Where, on an application for leave to serve an answer after the statutory time has expired, the party moving is required by the rules of court to serve with his notice of motion an affi- davit of merits and copy of proposed answer, if he fails to serve either the motion is properly denied. Searles v. Lawrence et al, S. D ,65 N. W. 34. Statute of Limitations Void Tax Deed. A tax deed void on ERROR IN LAW. 147 its face, cannot operate to set the statute of limitations in motion. Heger et al v. DeGroat, 3 N. D. 354, 56 N. W. 150; sec. 1640 Comp. Laws; Moore v. Brown, 11 How. 414; Waterson v. DeVoe, 18 Kan. 223; Hall v. Dodge, Id. 277; Nichols v. McGlathery, 43 la. 189; Burke v. Cutler (la.), 43 N. W. 204; Towle v. Holt (Neb.), 15 N. W. 203; Sheeny v. Hines, 27 Minn. 259, 6 N. W. 781; Hurd v. Brisner (Wash.), 28 Pac. 371; Bird v. Benlisa, 142 U. S. 664, 12 Sup. Ct. 323. Payment Advances to Owner on Agency Sale. A plea of payment is ordinarily good without specifying time, place or manner thereof; and when money has either been advanced to the owner by one to whom he has delivered property for the purpose of sale, with the express understanding that it shall be deducted from the proceeds of the sale when consummated, or when he has directed the person thus intrusted with the property to pay a portion of such proceeds to a third person, from whom he had obtained money on account of the delivery and prospective sale of his property, and such payment has actually been made, the facts and circumstances of the transaction may be shown under a plea of payment in an action to recover the amount received for the property less certain other credits. Fall v. Johnson, S. D , 65 N. W. 909; 2 Pars. Cont. (6th Ed.) 625; Hughes v. Kellogg, 3 Neb. 195; Max. Code PI. 495. Ultra Vires Bank Purchasing Note Defense. Want of authority in a national bank to purchase a negotiable note cannot be used by the maker as a de- fense in an action upon it. First Nat. Bank of Pierre v. Smith et al, .... S. D , 65 N. W. 437. Lease Pledge Plea of Lien. Upon trial in claim and delivery, a lease providing for purchase of hotel furniture by lessees, and for holding the same as pledge for performance of the terms of the lease by lessees, being introduced by plaintiff, the defendant, lessor, may avail itself of the stipulations in such lease establishing its lien upon the property and as precluding recovery by plaintiff, without pleading the lien affirmatively in defense. E&shon v. Watertown Hotel Co., S. D. , 63 N. W. 229. Purchase Note Warranty Bona Fide Holder. In an action on a note given for purchase price of a horse, the defense of breach of warranty being interposed and counterclaim for damages for communica- tion of disease of the horse to other horses, the note being taken by agents of plaintiff who supposed it was taken in payment for machinery, lield, that the defense of breach of warranty was properly interposed, even though plaintiff took the note from his agent upon settlement of agency account and gave credit for full amount thereof and was ignorant of the transation out of which the note arose, and that plaintiff was not a bona fide holder for value of the note as commercial paper. McCormick H. M. Co v. Taylor, N. D 63 N. W. 890; sec. 4487 Comp. Laws; Band. Com. Paper, sec. 988, sec. 1875; Aldrich v. Stockwell, 9 Allen 45. Motion to Dismiss "Renewal at Close of Evidence." A motion to dismiss made at close of plaintiff's case, is waived, unless renewed after all CODE OF CIVIL PROCEDURE. evidence is in. Illstad v. Anderson, 1 N. D. 167, 49 N. W. 659. Bowman v. Kppinger, 1 N. D. 21, 44 N. W. 1000. Fraudulent Representations- Dismissing Action. In an action for damages arising from fraudulent rep- resentations of the defendant, held, under the facts stated, that the trial court erred in dismissing the case at conclusion of plaintiff's evidence, the point involving the weight of evidence and the qnestion whether plaintiff was the real party in interest. Davenport v. Buchanan et al, ---- S. D ..... , 61 N. W. 47. Submission of Question to Jury Nonsuit Statute. Our statutes regulating exceptions and new trials are in the main copied from the California statutes; there the practice prevails of directing non-suits, but such practice, as concerns the question in this case, (viz. refusal to direct a verdict, or to submit a question to the jury,) is substantially the same as directing a verdict. In both cases the court passes upon the legal suffi- ciency of the evidence to warrant a judgment. Sanford v. Bell, 2 N. D. 6 48 N. W. 434; Marshall v. Mfg. Co., 1 S. D. 350, 47 N. W. 290; Hayne New Tr. & App. sec. 100, p. 284. Res Judicata Former Action. Former Judgment Purchase Note Rescission. In an action for purchase price of a harvester, on theory of a breach of warranty and rescis- sion of contract, defendant cannot rely on a judgment against plaintiff in favor of the indorsee for value of a note given by plaintiff on purchase of the harvester, as settling the issue of breach of warranty and rescission of con- tract, there being nothing to show on what ground the judgment was ren- dered. Fahey v. Esterley H. M. Co., 3 N. D. 220, 55 N. W. 580, and cases there cited; but the judgment in the present suit should provide that upon return of the note in question to plaintiff, and his release from liability thereon growing out of any judgment recovered thereon, and on payment of costs, the judgment should be satisfied. Id. Thayer v. Manley, 73 N. Y. 305. Res Judicata Same Question. When it is not certain that the same question was determined in favor of the party, in another action, who relies on the judgment therein as conclusive, the judgment is not final on the point. Fahey v. Esterley Har. M. Co., 8 N. D. 220, 55 N. W. 580; in such^cases the judgment is final only as to matters which were in fact determined in the former case and adjudicated by the judgment. Id; Foie v. Patch, 132 Mass. 105 and cases cited; Stone v. Stamping Co. (Mass.), 29 N. E. 623; Cromwell v. County of Sac, 94 U. S. 351; Nesbit v. Independent Dist., 144 U. S. 610, 12 Sup. Ct. 746: Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55; Russell v. Place, 94 U. S. 606; Stowell v. Chamberlain, 60 N. Y. 272; Cook v. Burnley, 45 Tex. 97; McDowell v. Langdon, 3 Gray 513; Downer v. Shaw, 22 N. H. 277; Chrisman v. Harman, 29 Grat. 494. Estoppel by Former Judgment Notes. In an action on a judgment based on promissory notes, where it appeared that in the former action, on the notes, defendants had answered and proved that said notes had been mergsd in a judgment in a former ac- ERROR IN LAW. 149 tion between the parties, which defense resulted in a judgment of dismissal, lield, defendants are estopped from denying the validity of such judgment. J. I. Case T. M. Co. v. Pederson et al, S. D! , 60 N. W. 747; White v. Coatsworth, 6 N. Y. 137; Woodhouse v. Duncan, 106 N. Y. 527, 13 N. E. 334; Pray v. Hegeman, 98 N. Y. 351; Dunham v. Bower, 77 N. Y. 76; Davis v. Tallcot, 12 N. Y. 184; Rogers v. Higgins, 57 111. 244. Former Party De- fendant. In a former action plaintiff sued a county and city to enjoin sale of lands for taxes and to annul the tax record; lield, that had judgment been entered it would have been ineffectual, as the county treasurer was the proper party defendant. Bode v. New England Inv. Co., 1 N. D. 121, 45 N. W. 197; nor would such judgment bar this action, the parties defendant be- ing different and not in privity with each other. Id. Former Action Pend- ing Foreign Garnishment Parties. In an action in one state, the pend- ency of garnishment proceedings against the same corporation which is defendant, in another state, is no defense when it appears that at the time they were commenced, defendant in present suit knew that the defendant in the action in which said proceedings were instituted did not own the claim against the present defendant. Pureell v. St. P. P. & M. Ins. Co., N. D. , 64 N. W. 943; Mansfield v. Stevens (Minn.), 16 N. W. 455; Williams v. R. R. Co. (Minn.), 6 N. W. 445; MacDonald v. Kneeland, 5 Minn. 352 (Gil. 283); Lewis v. Lawrence (Minn.), 15 N. W. 113; Williams v. Ingersoll, 89 N. Y. 508. Foreclosure Allegation of Inferior Interest Res Judicata. In an action to foreclose a mechanic's lien, one claiming an interest in the property was made a defendant, the allegation being that such defendant "has or claims to have some interest in the land, * * * but she has no claim prior or superior to that of plaintiffs," and such allegations were admitted in her answer, and she failed to set up any superior or paramount title to the prop- erty; held, she is concluded by a verdict of a jury in such action finding all issues for plaintiff, and a judgment rendered thereon, and cannot be permit- ted to litigate or dispute the title as against one claiming the property by virtue of a sale under said judgment. Southard v. Smith et al, S. D. , 66 N. W. 316; Wilts. Mort. Forec. sec. 421; Helck v. Reinheimer, 105 N. Y. 470, 12 N. E. 37; Wolfinger v. Betz, 66 la. 594, 24 N. W. 228; Hemp- stead v. City of Des Moines, 63 la. 36, 18 N. W. 676; and Bother Iowa cases there cited. (i), Judgment Decree. Default Money Judgment Notice of Application. Where a party applies for judgment under first clause of subd. 1, sec. 5025 Comp. Laws, and the action is one arising on contract for money only, and the complaint is duly sworn to, and proof of the service required by the section is made, and no answer received, the defendant, who has not answered, but has ap- peared, is not entitled to notice of such application. Searles v. Lawrence et al, . . . .S. D 65 N. W. 34; Dix v. Palmer, 5 How. Pr. 233; South worth 150 CODE OF CIVIL PROCEDURE v. Curtis, 6 How. Pr. 271; Wait's Code sec. 246, note g. Judgment Con- fessed -Corporation Trust Fund Creditors. The assets of a corporation for profit being a trust fund for its creditors, its officers being unauthorized to diminish its capital in anticipation of insolvency, and release its stockhold- ers from liability, resulting in defeating rights of bona fide creditors, a judgment confessed in favor of persons who loaned to its directors money for the purpose of, and with actual knowledge that the funds advanced were to be used in, the purchase of shares in itself, is void as to such creditors, because: (a) When insolvency occurs, a corporation has no authority to prefer creditors: (b) A corporation, as such, has no power to create a debt by borrowing money with which to purchase its own stock; Kellam, J. dis- senting. Adams & Westlake Co. v. Deyette et al (on rehearing), S. D. ....,65N. W. 471. Entry of Judgment Stay. It is error to enter judgment on verdict when a stay of all proceedings has been ordered, if the entry of judgment is within the time in which the stay order is operative. Uhe v. Chi. Mil. & St. P. Ry. Co., 4 S. D. 505, 57 N. W. 484; Morewood v. Hollister, 6 N. Y. 3 19; Gordan v. State, 4 Kan. 501; And Law Diet. p. 16; Yeager v. Wright, 112 Ind. 235, 13 N. E. 707; said decis- ions construing the term "proceedings." Final Judgment Order for Entry. Where a demurrer to an answer was overruled, and in the same order the demurrer is sustained to the complaint, with a provis- ion for dismissal with costs to be taxed, unless plaintiff amends within 20 days, such order is not a final judgment in praesenti, but an order that judg- ment might be entered in futuro upon a specified contingency, and cannot be converted into a judgment by the voluntary act of the clerk. Bode v. New England Investment Co., 1 N. D. 121, 45 N. W. 197; Comp. Laws, sees. 5101, 5102, 5105, 5024, 5095. Attachment Sale Judgment Need Not Direct. A judgment in a' suit aided by attachment need not direct a sale of the property in satisfaction thereof, as the law explicitly imposes that duty upon the attaching officer. Iowa State Sav. Bank v. Jacobson, S. D , 66 N. W. 435: Ander- son v. Goff (Cal.), 13 Pac. 73; Low v. Henry, 9 Cal. 538; Wap. Attachm. 510. Election Contest Judgment Self -Excusing. The right to an office being the only issue determined by a statutory contest proceeding, the judg- ment is self-executing, except as to costs, and an appeal from the judgment does not stay or obstruct the right of the successful party to perform duties and receive emoluments thereof. Pyypaa v. Brown Co., S. D ,62 962; Jayne v. Drorbaugh, 63 la. 711, 17 N. W. 433; Allen v. Robinson, 17 Minn. 113 (Gil. 90); Honey v. Davis, 38 Tex 63; Payne on Elec. 852; sec. 1497, 5226 Comp. Laws. Correctness Presumed. Every presumption is in favor of the correct- ness of the judgment of a court of general jurisdiction until the contrary af- ERROR IN LAW. 151 firmatively appears. Kent v. Dak. P. & M. Ins. Co., 2 S. D. 800, 50 N. W. 85; Gemmell v. Rice, 13 Minn. 400, (Gil. 371); Williams v. McGrade, 13 Minn. 46 (Gil. 39); Jorgenson v. Griffin, 14 Minn. 464 (Gil. 346); Holmes v. Campbell, 12 Minn. 221 (Gil. 141); Piper v. Packer, 20 Minn. 274 (Gil. 245); Blake v. Mfg. Co., 77 N. Y. 626; Reinig v. Hecht, 58 Wis. 212, 16 N. W.- 548; Credit Poncier v. Rogers, 10 Neb. 184, 4 N. W. 1012; Carruthers v. Hensley, (Gal.), 27 Pac. 411. Presumptions Supply Omissions. The pre- sumption which goes to support a judgment on appeal will supply omis- sions, but cannot prevail against positive error. John A. Tallman Co. v. Savage et al, 5 S. D 496, 59 N. W. 882. Setting Aside Judgment Defense Stipulation. To justify a court in setting aside a judgment under sec. 4939 Comp. Laws, the mistake, inad- vertance or excusable neglect, and a probable meritorious defense, must ap- pear. Pettigrew et al v. City of Sioux Palls et al, 5 S. D. 646, 60 N. W. 27. 12 Am. & Eng. Ency. of law, p. 139, note and cases cited; 15 Id. p. 382; and an order, in an application under that -section, refusing to set aside a judg- ment entered into upon stipulation of parties, will not be reversed where the record shows neither the answer nor suggests its contents, nor contains an affidavit of merits. Id. Neglect of Counsel. It was held, under the facts stated, that the judgment in this case should have been opened for ne- glect of defendant's counsel. Searles v. Christensen 5 S. D. 650, 60 N. W. 29; Millspaugh v. McBride, 7 Paige 509; Sharp v. N. Y., 31 Barb. 578; Hanson v. Michelson, 19 Wis. 525; Ordway v. Suchard. 3! la. 481; Griel v. Vernor, 65 N. C. 76; Allen v. Hoffman, 12 111. App. 573; Baxter v. Chute, 50 Minn. 164, 52 N. W. 379; Whereatt v. Ellis, 70 Wis. 207, 35 N. W. 314; Black, Judgm. sec. 341; Bradford v. Coit, 77 N. C. 72; Wynne v. Prairie, 86 N. C. 75; Tay- lor v. Pope, (N. C.), 11 S. E. 259; Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955. Authority of Attorney. Where new attorneys appear and move to set aside a judgment under sec. 4939 Comp. Laws, an objection made for the first time in this court that such attorneys have no authority to appear, will not be entertained. Searles v. Christensen, 5 S. D. 650, 60 N. W. 29. o Judg- ment Vacation of By Justice Mistake, Etc. Under sec. 6065 Comp. Laws, a justice of the peace may vacate and set aside a judgment by default taken against a party by mistake, surprise, inadvertance, or excusable neg- lect. Perrott v. Owen, J. P., S. D , 64 N. W. 526. Modifying Decree in Part Alimony. The courts have power to modify or set aside that part of a decree of divorce providing for custody, support and mainten- ance of minor children, under changed circumstances of the party. Green- leaf v. Greenleaf, . . . . S. D , 61 N. W. 42; sees. 2582, 2584 Comp. Laws. (j). New Trial. Motion Unnecessary When. Errors of law occurring at the trial, and duly excepted to, may be reviewed in this court when presented by a proper bill or statement, on appeal from the judgment, although no motion 152 CODE OF CIVIL PROCEDURE. for a new trial was made in the court below. Jones Lum. & Mercantile Co. v. Faris, 5 S. D. 348, 58 N. W. 813; Brown v. Tolles, 7 Cal. 398; Carpentier v. Williamson, 25 Cal. 167; Caldwell v. Parks, 47 Cal. (540; Haynes New Tr. A A pp. sec. 100;Earp. v. R. R. Co., 12 Ohio St. 621. Motion Unnecessary to Review Court Errors. It is not necessary to lay a foundation to bring- a case into the Supreme Court for review of errors by the trial court, that a mo- tion for a new trial bo made in the court below. Waldron v. Evans, 1 Dak. 10, 46 N. W. 607. Review of Court's Charge Without Motion For. An er- ror in the charge of the court to the jury can be reviewed on appeal from the judgment without a motion for new trial being made. McPherrin v. Jones. N. D , 65 N. W. 685. Review of Errors Without Motion For. On appeal from a judgment, upon bill of exceptions and judgment roll, this court will review alleged ''errors of law occurring at the trial," without a motion for a new trial. Sandford v. Bell et al 2 N. D. 6, 48 N. W. 434; Cravens v. Dewoy, 13 Cal. 42; Walls v. Preston, 25 Cal. 61; Donahue v. Gallavan, 43 Cal. 576; Caldwell v. Parks, 47 Cal. 642; Levy v. Getleson, 27 Cal. 685; Hayne New Tr. & App. sec. 112, p. 311; Nichols v. Bruns, 5 Dak. 28, 37 N. W. 753; sec. 5094 Comp. Laws. New Trial Appeal From Order is Surplusage, When. On an appear from judgment, and assignment of error upon an order on motion for a new trial, no appeal from the order is necessary, and if taken in connection with appeal from the judgment, will be considered surplusage. Granger v. Roll et al, S. D , 62 N. W. 970; Williams v. Williams S. D , 61 N. W. 38. Re- view Error of Law, Involves Law Not Discretion. A motion for a new trial on the ground of "errors in law occurring at the trial" involves only the correctness of the court's rulings and its decis- ion thereon will be reviewed here as a question of law only, and not as involving discretion of the court. Aultman & Taylor Co. v. Gunderson et al, .... S. D. ... , 60 N. W. 859; Sandmeyer v. Ins. Co., 2 S. D. 346, 50 N. W. 353; O'Brien'v. Brady, 23 Cal. 243; Cochran v. O'Keefe, 34 Cal. 554; Hinkle v. R. R. Co., 55 Cal. 627. Denying New Trial Review as Intermediate Order. An order denying a new trial, made before judgment, is reviewable on an appeal from the judgment as an intermediate order, when error is as- signed upon making of such order. Granger v. Roll et al, S. D , 62 N. W. 970; the corresponding sections of the Wisconsin and California statutes compared and their differences commented upon; Id. New Trial Without Authority. After hearing a motion for judgment on the verdict, the court denied the- motion, and in its order also directed that the verdict be set aside, and granted a new trial; a bill of exceptions having been allowed when said motion was determined, the order being predicated upon error as shown in the bill of exceptions. No application was ever made for a new trial, and no notice of intention served. Held, that the order vacating the verdict and granting a new trial was without authority of law and is rever- sible error. Gould v. Duluth & Dak. E. Co., 2 N. D. 216, 50 N. W. 969. ERROR IN LAW. 153 (h). Execution. Levy Actual Possession Purchaser. To make good a levy under attachment the officer must take actual possession of property as far as prac- ticable, and enforce dominion over it adverse to the attachment debtor, and must as against a subsequent purchaser, maintain possession visibly adverse; and the levy in this case was insufficient, the property being left in the debt- or's building for over three months. Jones Lum. & Mer. Co. v. Faris, 5 S. D. 348, 60 N. W. 403; Bagley v. White, 4 Pick. 395; Sanderson v. Edwards, 16 Pick. 144; Flanagan v. Wood, 33 Vt. 332; Drake, Attachm. sec. 292 a. Money on Execution Divestiture of Subject-Matter Judgment Va- cated. Where an execution was levied upon money in defendant's posses- sion, and taken by the officer, who satisfied the judgment and deposited the money to his own credit in defendant's bank, taking negotiable certificate therefor which was transferred by endorsement to plaintiff and placed to his credit in said bank subject to check, part of which was paid out on plaint- iff's check, the bank refusing to honor a check for the balance, and the court vacated the judgment to allow a defendant to answer, held, in absence of stay of execution or order of restitution, that defendant bank was legally divested of the subject-matter of the suit, and not entitled to withhold the money from plaintiff. Martin v. Minnekahta State Bank, S. D ,64 N. W. 127. Void Mortgage Tender on Levy Indemnity. Sec. 4389 Com. Laws, relating to tender by officer of amount of a mortg-age debt be- fore levying on personalty, has no application to a mortgage fraudulent and void as to mortgagor's creditors. Jewett et al v. Sundback, sheriff, 5 S. D. Ill, 58 N. W. 20. When an officer is directed by judgment creditor to levy an execution in his hands upon specified property, and gives indemnity if requested, he must levy upon the property though described in a chattel mortgage apparently valid. Id.; Meechem Pub. Off. sees. 749, 751; Mar- shall v. Hosmer, 4 Mass. 63; Bond v. Ward, 7 Mass. 123. Judgment Sale Re-Sale After Redemption. Where property of the judgment debtor has been sold for less than the amount of the judgment, and redeemed from such sale by the judgment debtor, the property may again be sold on a second execu- tion issued on the same judgment for the balance due thereon. Seaman v. Galligan et al, S. D ,66 N. W. 458; sec. 5150 Comp. Laws; Bodine v. Moore, 18 N. Y. 347; Phyfe v. Riley, 15 Wend. 248; Warren v. Fish, 7 Minn. 432 (Gil. 347); Settlemire v. Newsome, 10 Ore. 446; Boyce v, Wight, 2 Abb. N. C. 163. Civil Execution Coercive Order. When a party refuses to do some- thing he is ordered to do for benefit of the opposite party, the order is looked upon as a civil execution, though the proceedings are carried on in the shape of a criminal process, and the order is not punitive, but coercive. State v. Knight ct al, 3 S. D. 509, 54 N. W. 412; Blackstone's Com. book 4, 101 T P 154 CODE OF CIVIL PROCEDURE. 4, ch. 20; and see New Orleans v. Steamship Co., 20 Wall. 387; R. R. Co. v. Wheeling, 13 Grat. 57; Ex parto Kearney, 7 Wheat. 38; Stuart v. People, 3 Seam. 395; Ex parte Thatcher, 2 Gilin. (111.) 170; Crook v. People, 16 111. 536; Fischer v. Hayes, 6 Fed. 63; but if the contempt comsists in doing a for- bidden act injurious to the opposite party, the process is criminal, and con- viction is followed by fine and imprisonment or both, which is purely puni- tive. Id. Execution Against Person "Judgment Debtor. " In an action in which the defendant might have been arrested under sec. 4945 Comp. Laws, execution may issue "against the person of the judgment debtor." Winton v. Knott, sheriff, S. D , 63 N. W. 783; Comp. Laws sec. 5115; and if in such action judgment is against plaintiff for costs, he becomes the "judgment debtor," and is subject to "execution against the person"; Id.; Miller v. Scherder, 2 N. Y. 264; Parce v. Halbert, 1 How. Pr. 235; Par- ker v. Spear, 62 How. Pr. 394; Kloppenberg v. Neefus, 4 Sandf . 655; Phil- brook v. Kellogg, 21 Hun. 238. Unauthorized Execution Sale Publica- tion Trespass. Under a statute requiring public notice to be given for at least ten days before an officer can sell property seized on execution, a sale and delivery thereof upon eight days' notice is unauthorized, and renders the seiz- ure and all subsequent proceedings the acts of a trespasser from the begin- ning. Bowman v. Knott, S. D , 66 N. W. 457; Griswold v. Sund- back, S. D , 60 N. W. 1068; Carrier v. Esbaugh, 70 Pa. St. 239; Smith v. Gates, 21 Pick. 55; sec. 5141, 6117, Comp. Laws. (I). Exemptions. Debtor to Indicate Exemptions. An execution debtor must indicate to tbe officer the specific property claimed as exempt; which requirement is satisfied by a selection which the officer ought, under the circumstances, to understand. Northrup v. Cross, sheriff, 2 N. D. 433, 51 N. W. 718; Thomp. Homest. & Exemp. sec. 834, 820, et seq.; Zielke v. Morgan, 50 Wis. 560, 7 N. W. 651. Exemptions Wife of Debtor. Our exemption law was de- signed for the benefit of the debtor and family and should be liberally con- strued, and extends to the wife of the partnership debtor, and she may make claim of exemptions if her husband fails to do so. Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 1069; Stewart v. Brown, 37 N. Y. 350; Blanchard v. Paschal, 68 Ga. 32; Scott v. Kenan, 94 N. C. 296; Skinner v. Shannon, 44 Mich. 86, 6 N. W. 108; O'Gorman v. Fink, 57 Wis. 649, 15 N. W. 771; Servanti v. Lusk, 43 Cal. 238; Sutherland St. Const, p. 474; and 32 days' time after notice of levy, was held a reasonable time within which the wife might make the claim of exemptions. Noyes et al v. Belding, sheriff, et al supra; Freem. Ex'ns 212; Shepard v. Murrill, 90 N. C. 208; Chesley v. Francisco, 12 Neb. 626, 12 N. W. 94; Robinson v. Hughes (Ind. Sup.), 20 N. E. 220; Rice v. Nolan, 33 Kan. 28, 5 Pac. 437; Daniels v. Hamilton, 52 Ala. 108; Thomp. Homest. & Ex. 839; State v. Emmerson, 74 Mo. 607. Exemptions Cannot Be Fraudulently Alienated. Possession of exempt property creates no fictitious or delusive credit, and is not suscepti- ERROR Itf LAW. 155 ble of being fraudulently alienated or disposed of to the prejudice of a cred- itor. Noyes et al v. Belding, sheriff, et al, 5 S. D. 603, 59 N. W. 1069; Bank v. North, 2 S. D. 480, 51 N. W. 96; Bates v. Callender, 3 Dak. 256, 16 N. W. 506; State v. Carson, (Neb.), 43 N. W. 361; Sanoner v. King (Ark.), 5 S. W. 327; Airey v. Buchanan (Miss.), 1 So. 101; Sears v. Hanks, 14 Ohio St. 298; Me Abe v. Thompson (Minn.), 6 N. W. 479; Elder v. Williams, 16 Nev. 416; Vaughn v. Thompson, 17 111. 78; Bell v. Devore, 96 111. 217; 1 Freem. Ex'ns 214, and cases cited. Homestead Locus of Office Holder. Upon the question of residence, involving homestead rights, it is competent to show that a person was elected to, qualified, and held public office to which he would not have been eligible had his residence been upon the premises in question. Clark v. Evans et al, S. D , 60 N. W. 862; Abb. Tr. Ev. 108, and cases cited. Fraud Upon Creditors Homestead. Fraud upon creditors cannot be predicated upon the disposition of a homestead. Kvello et al v. Taylor, . . . . N. D , 63 N. W. 889. (m). Appeals. Appeal From Judgment Alone New Trial Review. An appeal from the judgment alone does not bring to this court for review an order de- nying or granting a new trial made after judgment. Gade v. Collins et al, S. D , 66 N. W. 466; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332. Questions For Review Statute Construed. The last clause of sec. 5237 Comp. Laws, relating to review on appeal from judgment on trials by court or referee, requires this court to review questions of fact as well as law. Randall et al v. Burke Tp. et al 4 S. D. 337, 57 N. W. 4. The entire chap- ter, including sec. 5237 Comp. Laws, was copied substantially from the Wis- consin statutes and has been construed by the Wisconsin court; Id. Snyder v. Wright, 13 Wis. 689; Fisher v. Trust Co., 21 Wis. 73. Review on Ex- ceptions to Findings De Novo. This court is required upon appeal, un- der sec. 25, chap. 120, laws of 1891, to review questions of fact when excep- tions to the findings are taken, but will not try the case de novo. Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454; Comp. Laws sec. 5237. Appellate Trial on Different Theory. A case cannot be tried on one theory of defendant's liability, pursuant to the complaint, and in this court on appeal on a differ- ent theory not indicated in the complaint. Aultman & Taylor Co. v. Gun- derson et al, S. D , 60 N. W. 859; Brooks v. Yocum, 42 Mo. App. 516; Ag'l. Works v. Hooks (la.), 49 N. W. 61; Brunfield v. Mf'G. Co. (Com. PI. N. Y.), 23 N. Y. Supp. 1025. Rehearing Immaterial Constitutional Question. This court will not consider, and therefore will not allow a rehearing for the discussion of, the constitutionality of a law in a respect or particular not affecting the controversy to be decided. Valliar v. Brakke (on rehearing), S. D , 64 N. W. 1119. Certiorari Adequate Remedy Appeal. Certiorari will not lie where the law affords a plain, speedy, and adequate remedy. Perrott v. Owen, 156 CODE OF CIVIL PROCEDURE. Justice of the Peace, S. D , 04 N. W. 526; sec. 5507^Comp. Laws; Id. sees. 6129, 6130; Stevens v. Ross, 1 Cal. 94; Hallock v. Jaudin, 34 Cal. 172; Rickey v. Superior Court, 59 Cal. 661; Burnham v. Turner, 14 Wid. 622; State v. Goodrich, 15 Wis. 445; Laufferty v. Prickett, 50 Ind. 24; But- ler v. Heeb, 38 la. 429; Ry. Co. v. Forbes, 37 Kan. 445, 15 Pac. 595; Pearson v. Carson, 69 Mo. 569; 12 Am. & Eng. Ency. Law, 483 and cases cited; and appeals from inferior courts are regarded with favor, no distinction being recognized between parties defaulting and those appearing in the action; Id; and an appeal lies from a default judgment under section 6129 Com p. Laws. Perrott v. Owen, J. P., supra. Appeal From Probate Court Re-Trial When. Upon appeal, on questions of both law and fact, to circuit court from action of probate court in appointing guardian, the circuit court should retry the case and pro- nounce judgment. Engle v. Yorks, S. D , 64 N. W. 132; Goss v. Stone, 63 Mich. 319, 29 N. W. 735; In re Leonard's estate (Mich.), 54 N. W. 1082; Broadwater v. Richards, (Mont.), 2 Pac. 544; Comp. Laws sec. 5976; and in such case the circuit court is not confined to affirming 1 , reversing or modifying the judgment below, as when the appeal is upon "questions of law alone." Id; Haynes' New Tr. & App. sec. 234. Appeal From Probate- Jury's Answers as Findings Judgment. When, upon trial in circuit court on appeal of questions of law and fact from probate court, questions of fact are submitted to a jury, whose answers are recited in the judgment as "duly considered," being the only findings claimed to have boon made, the judgment will be regarded as based upon such findings. Engle v. York, S. D , 64 N. W. 132; and in such case the question for review in this court is, could the judgment of the circuit court properly follow such findings. Notice of Appeal From Justice. Under sec. 89 Justice's Code (sec. 6129 Comp. Laws) the notice of appeal must state whether the appeal is tak- en on questions of law or fact, or both. Purcell v. Booth, 6 Dak. 17, 50 N. W. 196. Appeal To County Court New Trial New Judgment Re- mand. Upon an appeal from justice to county court upon questions of law only, the appellate court may "set aside, affirm or modify" the judgment ap- pealed from, or it may order a new trial in justice's court, but cannot in such case upon the statement provided by statute, set aside the judgmentap- pealed from, and render new judgment on the merits against the opposite party. Coughran v. Wilson, S. D , 63 N. W. 774; Comp. Laws, 6136; Gunsolus v. Lormer, 54 Wis. 630, 12 N. W. 62; and if in such case this court finds prejudicial error, it should reverse the judgment and remand the case to the justice's court for new trial; Id. Griffin v. Marquardt, 17 N. Y. 28; Schroeder v. Versicherungs Gesellschaft, 60 Cal. 467. New Trial in County Court, On Appeal Judgment Execution. Where the action was commenced in justice court and plaintiff recovered, and defendantjappealed, ERROR IN LAW. 157 and the action was tried anew in county court, the judgment there is that of the county court, and "may be enforced in the same manner as judgments in actions commenced therein." Winton v. Knott, sheriff, S. D , 63 N. W. 783; Comp Laws 6136; chap. 78, laws 1890; Ryan v. Parr (Sup,), 16 N. Y. Supp. 829; Parker v. Spear, 62 How. Pr. 394; and in such case execution may issue against the person of the judgment debtor. Id, 13. Foreclosures. Advertisement Foreclosure Filing Certificate Attorney's Affida- vit. In an action of foreclosure by advertisement, held, that the failure of the officer to file a duplicate certificate of sale within ten days after sale, un- der sec. 5420 Comp. Laws, does not invalidate the sale. Held, further, that the failure of mortgagee's attorney to file the affidavit required by sec. 5429 Comp. Laws, does not invalidate the sale, but prevents mortgagee from re- covering such fee. Johnson v. Day et al, 2 N. D. 295, 50 .N. W. 701; Mill- ard v. Truax, 47 Mich. 251, 10 N. W. 358; Kennedy v. Brown, 50 Mich. 336, 15 N. W. 498; Jackson v. Young, 5 Cow. (N. Y.) 269; Barnes v. Kerlinger, 7 Minn. 82 (Gil. 55); Robbins v. Rice, 7 Gray 202; Suth. Stat. Const, sec. 446 et seq.; San Francisco v. Pixley, 21 Cal. 59; Cunningham v. Cassidy, 17 N. Y. 276; Osman v. Traphagen. 23 Mich. 85; Bunker v. Rand, 19 Wis. 258. Cloud on Title Void Record. In an action to set aside proceedings in foreclosure by advertisement as a cloud on plaintiff's title, held, that such suit is not maintainable where proceedings are void on the face of the record as not showing legal title in the party foreclosing. Morris v. McKnight et al, 1 N. D. 266, 47 N. W. 375; Hayes v. Frey (Wis.), 11 N. W. 695; Miller v, Clark (Mich.), 23 N. W. 35; Lee v. Clary, 38 Mich. 223; Holcombe v. Rich- ards (Minn.), 35 N. W. 714; Benson v. Markoe (Minn.), 42 N. W. 787. Insurance Divestiture of Title Void Foreclosure. In an action on an insurance policy, defendant having proved a divestiture, before loss, of plaintiff's interest in the property by virtue of foreclosure proceedings, reg- ular on their face, followed by a deed conveying defendant's interest, held, error to receive in evidence against defendant a judgment annulling such foreclosure, In an action commenced subsequently to the loss (defendant herein not being a party and having no notice thereof), to establish the fact that the foreclosure proceedings were void. Tierney et al v. Phenix Ins. Co. of Brooklyn, 4 N. D. 565, 62 N. W. 642; 2 Black, Judgm. sec. 600; Barr v. Gratz's Heirs, 4 Wheat. 213; Freem. Judgm. sec. 416. Rents and Profits Waiver. Failure of the trial court to allow the mortgagor rents and profits of the mortgaged property, in an action to foreclose a chattel mortgage, can- not be assigned as error, where the trial court was not asked or given oppor- tunity to make such allowance. Geo. W. Van Dusen & Co. v. Arnold et al, 5 S. D. 588, 59 N. W. 961. 14. Contracts. (a). Partnership- Conclusions of Law Sustained. In an action involving a partnership, conclusions of law upon trial to the court, that certain property i:,s CODE OF CIVIL PROCEDURE, was vested in the partnership, that the partnership contract is plain and un- ambiguous, and parol to explain it must be disregarded, and that a convey- ance in question vested title to certain property in the corporation, that the assignment complied with the partnership contract, and that the corpora- tion thereby became the equitable thereof, and that plaintiff was estopped from claiming it as against the corporation, were held, to be proper under the facts. Hennessy v. Griggs et al, 1 N. D. 52, 44 N. W. 1010; Lindley Partn. 408; Crawford v. Edwards, 33 Mich. 354. Parol Partnership Con- tract, Not Sale of Land. Parol evidence is permissible to establish the contract in question, and that same was a partnership agreement and not one for sale of land. Davenport v. Buchanan et al, S. D ,61 N. W. 47; Bates v. Babcock, 95 Gal. 479, 30 Pac. 605; Penny backer v. Leary (la.); 21 N. W. 575; Flower v. Barnecoff, 20 Ore. 132, 25 Pac. 370; Treat v. Hiles, 68 Wis. 344, 32 N. W. 517; Richards v. Grinnel, <>3 la. 44, 18 N. W. 688; New- ell v. Cochran, 41 Minn. 374, 43 N. W. 84; Holmes v. McCray, 51 Ind. 358; King v. Barnes, 109 N. Y. 267, 16 N. E. 332; Wallace v. Carpenter, 85 N. Y. 590. Parol to Identify Property Sale of Land. In a contract for sale of land, if the description of the property therein is defective, it is competent to identify and locate the same by parol evidence. Farrell v. Edwards, S. D , 66 N. W. 812; Ames v. Lowry, 30 Minn. 283, 15 N. W. 247; Tice v. Freeman. 30 Minn. 389, 15 N. W. 674; Hurley v. Brown, 98 Mass. 545; Todd v. Taft, 7 Allen 371; Stout v. Weaver, (Wis.), 39 N. W. 375; Easton v. Thatcher (Utah), 25 Pac. 728. Partner Liable for False Representations of Partner. Every partner is liable for fraudulent representations of every other partner made in the sale of partnership property as a means of effecting such sale. Brundage v. Mellon, .... N. D , 63 N. W. 409; 1 Bates Partn. sec. 472; Chester v. Dickerson, 54 N. Y. 1; Mechem Ag. sec. 743; Wolfe v. Pugh,' 101 Ind. 293; Story Partn. sec. 108; Strang v. Bradner, 114 U. S. 555, 5 Sup. Ct. 1038; Locke v. Stearns, 1 Mete. 560; Haney Mf'g Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073; Stanhope v. Swafford, 80 la. 45, 45 N. W. 403; Comp. Laws 3997. Invoice as Contract Price. In an action to recover balance of purchase price for lumber, held, proper for defendant to show that he never accepted the invoice in question as the contract of the parties. Edwards & McCul- loch Lum. Co. v. Baker, 2 N. D. 289, 50 N. W. 718. Boundary Line Un- authorized Contract. Where the controlling question is one of fact, as, the true location of a boundary line, it is not material that a re-survey, locating the line as claimed by one of the parties, was made under an unauthorized contract. Hanson v. Township of Red Rock (on rehearing), S. D , 63 N. W. 156. Gambling Commissions Counterclaim for Margins. In an action for commissions and advances made on a board of trade sale of wheat, held, that defendant could not recover upon counterclaim for moneys paid ERROR IN LAW. 159 plaintiffs as margins. Dows et al v. Glaspel, 4 N. D. 251, 60 N. W. 60; Craw- ford v. Spencer, 92 Mo. 498, 4 S. W. 713; Irwin v. Willilar, 110 U. S. 499, 4 Sup. Ct. 160; Phelps v. Holderness (Ark.), 19 S. W. 921; Enibrey v. Jemi- son, 131 U. S. 336, 9 Sup. Ct. 776; McCormick v. Nichols, 19 111. App. 334; Beverage v. Hewitt, 8 111. App. 467; Miles v. Andrews, 40 111. App. 155;Coff- man v. Young, 20 111. App. 82; Mohr v. Miesen (Minn.), 49 N. W. 862; Cobb v. Prell, 15 Fed. 774; Watte v. Wickersham (Neb.), 43 N. W. 259; Sprague v. Warren (Neb.), 41 N. W. 1133; Sondheim v. Gilbert, 117 Ind. 71, 18 N. E. 687; Shaw v. Clark, 49 Mich. 384, 13 N. W. 786; Bank v. Harrison, 10 Fed. 243; Higgins v. McCrea, 116 U. S. 671, 6 Sup. Ct. 557; White v. Barber, 123 U. S. 392, 8 Sup. Ct. 221; Kahn v. Walton (Ohio Sup.), 20 N. E. 210. Rescission Inability to Restore Status Quo. Where the right to rescind a contract is based upon the wrongful act of oneof its parties, by rea- son of which the consideration has failed in whole or in part, inability to re- store such party to his former condition, when occasioned solely by such wrongful act, is not alone sufficient to defeat an action to rescind such con- tract and recover the consideration paid thereunder. Hilton v. Advance Thresher Co., . . S. D. . ., 66 N. W. 816. Rescission Offer Too Late Court's Holding. Where the trial court was neither called upon to decide, as mat- ter of law, that an offer to rescind was made too late, nor to submit the ques- tion to a jury, a holding that such offer was made with sufficient promptness will not be disturbed, in absence of an available exception thereto. Hilton v. Advance Thresher Co., S. D , 66 N. W. 816. Statute of Limitations Rescission of Contract. An action to rescind a contract may be brought at any time within the statutory limit- ation, by one who offered to rescind in the manner provided by statute, and with reasonable promptness after discovery of facts entitling him to a rescission. Hilton v. Advance Thresher Co., S. D , 66 N. W. 816. (b). Agency. Agent Scope of Authority. Testimony of a bank cashier, that the failure to collect the note and mortgage in question was the fault and ne- glect of the bank, is inadmissible, not being the statement of a fact in the line of his duty as cashier nor within the scope of his authority as such bank officer; and this court cannot say that such evidence did not unjustly pre- judice plaintiff 's case. Plymouth Co. Bank v. Oilman, 3 S. D. 170, 52 N. W. 869. Agent's Authority Presumed. Where an agreement or lease was made by appellant's local agent, and the circumstances show the agent's au- thority to make it, and appellant, presumed to have knowledge thereof, makes no attempt to disprove his authority, the trial court may treat his authority as proven. Grigsby v. Western U. Tel. Co. 5 S. D. 561, 59 N. W. 734; Gates v. Ry. Co., 2 S. D. 422, 57 N. W. 202. Ownership Bailee's Statement. Declarations of a mere bailee of property, as to its ownership, are not admissable against bailor. Parliman v. Young et al, 2 Dak. 175, 4 160 CODE OF CIVIL PROCEDURE N. W. 139; Shannon C. J. dissenting. Usage Custom Cashier's Au- thority. Usages and customs must yield to legislative expressions, and the decisions of the courts; so held, upon the question of the cashier's authority to bind a partnership upon a draft payable to the order of the cashier who signed it. Noyes et al v. Crandall et al, .... S. D , 61 N. W. 806. Loan Agent Retaining Lawyer Through Sub- Agent. A non-resident agent authorized by his principal and charged with the exclusive manage- ment of a real-estate loan business in this state, including examination of .titles and foreclosure of mortgages, has implied authority to direct a local sub-agent, through whom all the business has been transacted, to retain a lawyer, whenever the interests of his principal demand professional atten- tion. Davis et al v. Mathews, S. D ,66 N. W. 456; sec. 4003 Comp. Laws; Mechem Ag. 395; Ins. Co. v. Grunert, 112 111. 68; Bodine v. Ins. Co., 51 N. Y. 117; Bank v. Martin, 45 Am. Dec. 87; Briggs v. Town of Georgia, 10 Vt. 68; Clark v. Randall, 9 Wis. 138. Agency Mortgage in Settlement. An action in claim and delivery lies to recover possession of horses covered by a chattel mortgage taken in settlement of a note, the agent making the settlement having only authority to merely collect the note; the suit being between principal and agent. Hermann v. Sherin, . . . . S. D 60 N. W. 145; Meechem Ag. 375; Williams v. Johnson, 92 N. C. 532; Williams v. Por- ter, 41 Wis. 422. Ambiguous Instructions Estoppel of Principal. When one gives his agent ambiguous instructions, which the latter executes in good faith, according to a reasonable interpretation of them, the principal is estopped to say that he intended them to be construed otherwise. Ander- son v. First Nat. Bank, of Grand Forks, 4 N. D. 182, 59 N. W. 1029; Mechem Ag. sees. 314-15, 484; Nat. Bank of Commerce v. Merchant's Nat. Bank, 91 U. S. 92; Shelton v. Transportation Co., 59 N. Y. 258; Barney v. Newcomb, 9Cush. 46; Noonan v. Bradley, 9. Wall. 394; Comp. Laws sec. 3556; Saund- ers v. Clark, 29 Cal. 300; Comp. Laws sec. 3564; People v. Utica Ins. Co., 15 Johns, 380. Agent Contract in His Name. Where an agent contracts on behalf of his principal he must do so in the principal's name; if he contracts in his own name he alone is bound. Nat. Ger. Am. Bank v. Langc, 2 N. D. 66, 49 N. W. 414; Comp. Laws sec. 3984; Mechem Ag. sec. 432-438; Sencer- box v. McGrade, 6 Minn. 484 (Gil. 334); Heffner v. Brownell, (la.), 31 N. W. 947; 39 Id. 640; Deering v. Thorn, 29 Minn. 120, 12 N. W. 350; Mayhew v. Prince, 11 Mass. 54; Spencer v. Field, 10 Wend. 87. Agent Personally Bound, When. When a party purporting to act as agent makes agree- ments on behalf of his principal, if he was in fact acting in his own interest, or in a matter in which he and his alleged principal were jointly interested, he will be personally bound. Moore v. Booker et al, 4 N. D. 543, 62 N. W. 607. Guaranty Agency Contract Exhausting Collateral. An agent defaulted largely in complying with his agency contract, and turned over o his employers notes and accounts collateral to his indebtedness under the ERROR IN LAW. 161 contract. Held, that his. employers were not obliged to exhaust the collat- eral before proceeding against the guarantors of the agency contract, nor were the guarantors entitled to be credited with the value of such collater- al. William Deering & Co. v. Russell, . . . . N. D , 65 N. W. 691. (c). Sales. Warranty Useless Machine. In an action for breach of warranty on sale of a harvester, held, reversible error to allow defendant's counsel to ask witness to testify to the value of the machine, on the theory that it was use- less, the evidence showing it could be and was used though it failed to bind all the sheaves. C. Altman & Co. v. Ginn, 1 N. D. 4Q2, 48 N. W. 336. Con- ditional Sale Order Non-Delivery of. Parol testimony is admissible to show that a written order for school apparatus was signed by members of the school board and delivered to soliciting agents upon express conditions n.ot complied with, for the purpose of showing it was not delivered and had no binding effect. Manufacturer's Furnishing Co. v. Kramer et al, . . . .S. D. . . . ., 64 N. W. 528; Machine Co. v. Faulkner, . . . . S. D . . . ., 64 N. W. 163. Breach, of Warranty Notice of. A warranty upon sale of an engine re- quired written notice by letter from vendee as to wherein it failed to satisfy the warranty. Held, that verbal notice to the local agent was insufficient. Aultman & Taylor Co. v. Gunderson et al, .... S. D , 60 N. W. 859; Cornell v. Ins. Co., 18 Wis. 387; and it is not error in such case to refuse evi- dence of the local agent of his subsequent notification to the vendor "by let- ter or otherwise," without showing how, or that such notice ever reached the principal. Aultman & Taylor Co. v. Gunderson et al, supra. Warranty Vendee's Credit to Rebut. In an action for damages for breach of War- ranty in sale of wheat, held, that the poor credit of vendee cannot be shown to rebut evidence of warranty where the sale was made on credit, but at a price above market value, and security taken for purchase price. Halley v. Folsom, 1 N. D. 325, 48 N. W. 219. Sale Order Oral Arrangement. In an action for price of a straw stacker, held, that defendants, while said writ- ten order was in force, could not enter into an oral arrangement the terms of which were inconsistent with the writing. Reeves & Co. v. Corrigan et al, 3 N. D. 415, 57 N. W. 80. Millinery Goods Agreed Price. Where an employee in charge of a millinery store had a small stock of millinery goods which she proposed to sell to her employer at a fixed price, the evidence tending to prove he consented to take them as they might be needed in the store the employe to keep an account of the same and they were from time to time taken to the store with employer's knowledge, and sold in the usual course of business and proceeds received by him, held, in absence of any proof of fraud or concealment by the employee, she was entitled to recover the agreed price. Stewart v. Gilruth, S. D , 65 N. W. 1065; Me- chem Ag. sec. 455. Sale Fraudulent Statement to Stranger. It is not 11 TP 162 CODE OF CIVIL PIIOCEDUHK. ordinarily error to refuse to admit evidence of uncommunicated fraudulent representations made to a stranger, and not brought to the knowledge of the party seeking to rescind a sale of personal property, and regain possession thereof, upon the sole ground that defendants rendered to plaintiffs a state- ment of their financial condition, in which the val,ue of property was over- estimated, and upon which plaintiffs relied. Tootle et al v. Petrie, sheriff, S. D , 65 N. W. 43. Symbolical Delivery. In an action by the alleged owner against a sheriff for possession of personal property, held, un- der the facts stated, that there was a sufficient delivery and symbolical change of possession to meet requirements of sec. 4657 Comp. Laws. Morri- son v. Oium, sheriff, 3 N. D. 76, 54 N. W. 288; Packard v. Dunsmore, 11 Cush. 282; Russell v. O'Brien, 127 Mass. 349; Viniug v. Gilbreth, 39 Me. 49(5; McKee v. Garcelon, 60 Me. 165; Benford v. Schell, 55 Pa. St. 393. (d). Negotiable Instruments. Negotiable Note Attorney Fee Statute. Sec. 1, chap. 16, laws 1889, containing a provision relative to payment of an attorney fee in case of default or proceedings upon a note, bond or mortgage, and that such pro- vision in the contract is against public policy and void, yet a stipulation for attorney's fee in an otherwise negotiable note does not destroy its negotiabil- ity; and the note in suit is held negotiable, whether regarded as an Iowa or a South Dakota contract. Chandler v. Kennedy, S. D ,65 N. W. 439. Corporation Pledge of Notes Re-pledge By Officer Indorsement Damages. A corporation indebted to its officer for funds advanced, turned over to him notes payable to itself, the resolution under which this was done not authorizing the indorsement of the notes nor their negotiation by the officer; he re-pledged them to plaintiff to secure a loan to himself, with an unlimited endorsement by him in the corporate name. Plaintiff took with notice of the facts. Held; (1) That the resolution did not authorize, nor had the officer implied authority to indorse the paper for his individual use. (2) The loan transaction was prima facie illegal upon its face. Plaintiff had the burden of showing the officer had authority to indorse and transfer the paper; no such evidence being offered. (3) If the defense Of fraud and failure of consideration were made out, plaintiff, as sub-pledgee, with knowledge that the officer held it simply as a pledge, could only recov- er the amount due from the corporation to the officer. Security Bank of Minnesota v. Kingsland et al, N. D , 65 N. W. 697; Wilson v. R'y. Co. 120 N. Y. 145, 24 N. E. 384; Meads v. Bank, 25 N. Y. 143; Shaw v. Spen- cer, 100 Mass. 382; Roberts v. Hall, 37 Conn. 205; Clarke v. Wallace, 1 N. D. 404, 48 N. W. 339; Oolebrooke, Collat. Sec. 180, 181. Purchase Price Warranty Negotiable Note. In a suit by vendor against vendee for value of a binder, held, that the defendant is liable therefor though he has rescinded the contract of sale for breach of warranty, and though he gave a negotiable note to plaintiff for purchase price, wMch note is in the ERROR IN LAW; 163 hands of a bona fide endorsee before maturity and unpaid; (Fahey v. Har- vesting Co., 3 N. D. 220, 55 N. W. 580 followed.) Canham v. Piano Mfg. Co., 3 N. D. 229, 55 N. W. 583. Guaranty of Paper Partner. In an ac- tion on a guaranty made by a member of a partnership ou its behalf, of com- mercial paper for accommodation of third parties, held, that the firm was not bound by such guaranty, under the evidence, and that the judgment be- low must be reversed and a new trial granted. Clark v. Wallace et al,' 1 N D. 404, 48 N. W. 339; Sweetser v. French, 2 Gush. 309; Schermerhorn v. Sohermerhorn, 1 Wend. 119; Bank v. Bowen, 7 Wend. 158; Footev. Sabin, 19 John. 154; Bank v. McDonald, 127 Mass. 82; Moynahan v.Hannaford, 42 Mich. 329, 3 N. W. 944; Lindley on Part. 341 (bottom paging); Moore v. Stevens, 60 Miss. 809; Macklin v. Kerr, 28 U. C. C. P. 90. Note in Settlement- Want of Consideration. In an action upon a promissory note given in set- tlement of a controversy, the defense of want of consideration may be inter- posed where one party to the controversy in fact had no claim and knew it. McGlynn v. Scott, 4 N. D. 18, 58 N. W. 460; Anthony v. Boyd, (R. I.), 8 Atl. 701; De Mars v. Mfg. Co. (Minn.), 35 N. W. 1; Smith v. Farra (Ore.), 28 Pac. 241, 1 Pars. Cont. pp. 438-9; Wahl v. Barnum, 116 N. Y. 87, 22 N. E. 280; Pitkin v. Noyes, 48 N. H. 294; Miles v. Estate Co., 32 Ch. Div. 266; Spahr v. Hollingshead, 8 Blackf. (Ind.), 415; Creutz v. Heil (Ky.), 12 S. W. 926; Bellows v. Sowles, 55 Vt. 39; Everingham v. Meighan, 55 Wis. 354, 13 N. W. 269; Turner v. Peacock, 13 N. C. 303; 2 Pom. Eq. Jur, 9850; Gran- din v. Grandin, (N. J. Supp.), 9 Atl. 656. Guaranty of Collection. In an action on promissory notes, lield, that under a guaranty of "the collection of the within note" the guarantors undertook only .that the makers were solv- ent when the guaranty was entered into, and that the notes were collectible by usual legal proceedings if taken with reasonable diligence. Roberts, Throp & Co. v. Laughlin et al, 4 N. D. 167, 59 N. W. 967; sec 4280 Comp. Laws. Deposit Liability on Check. A bank receiving a deposit and placing same to general credit of depositor, is liable upon implied contract to pay checks drawn thereon, and it is general policy of law to permit the bank, in an action by a depositor for the money, to claim to be owner there- of. Martin v. Minnekahta State Bank, S. D , 64 N. W. J27; Mc- Laughlin v. Bank, 6 Dak. 406, 43 N. W. 715; Farmer v. Rogers, 10 Cal. 355; Bank v. Mason, 95 Pa. St. 113; Bank v. Alexander, (Pa Sup.), 14 Atl. 402; Bank v. Burkhardt, 100 U. S. 689. (e). Corporations. Discharge of Mortgage Securities in Exchange Bank Officers. A bank officer conveyed to the bank, in his individual capacity, for full value, realty incumbered by mortgage executed by him. Held, such bank is not liable to the mortgagee for loss sustained by him because of worthless secur- ities received by him in exchange for a discharge of the mortgage, where such securities were the individual property of such bank officers, and such 164 CODE OF CIVIL PROCEDURE. discharge was obtained by such officers in their individual capacities and not as officers of the bank. Staples v. Huron Nat. Bank (Lostutter, Intervenor), S. D. ...,66N. W. 314. Bank's Liability to Mortgagee. Neither will the fact that the bank officers at the time of such sale received from the bank full cash value of such property, render the bank liable for such loss by the mortgagee; the bank taking the property with full covenants of war- ranty, and having the agreement of the two parties interested in the prop- erty at the time of the sale that they would save the bank harmless against such mortgage. Id. Release of Chattel Mortgage Agency. In absence of evidence to contrary, the authority of a managing agent of a non-resident corporation to execute, in name of his principal, a release and discharge of a chattel mortgage, will be presumed. Hilton v. Advance Thresher Co., S. D , 66 N. W. 816. Conditional Deed for Creditors Mort- gage Deficiency Adjudication. Where a debtor conveyed mortgaged premises to a trustee for a creditor bank, the deed containing a condition, of which the grantee had no notice, that he should pay the mortgage, and the grantee deeded to the bank who took possession of the property and collect- ed the rents, held, that as between the trustee and the bank, the latter was equitably liable for deficiency of the mortgage debt; and a court of equity having all parties before it, can determine the rights and liabilities as be- tween the defendants. Connor v. Nat. Bank of Dak. et al, .... S. D , 64 N. W. 519; Pom. Eq. Jur. sec. 181. Municipal Bonds Estoppel Conditions Precedent. Municipal cor- porations are estopped as against bona fide holders of municipal bonds, from setting up the defense that the preliminary steps necessary to authorize the issue of bonds were not taken, when officers who have charge of their issue are especially or impliedly authorized to determine whether conditions prec- edent to issue of valid bonds are complied with, and recite in the bonds that they have been complied with, by declaring that they are issued pursuant to a certain specified statute. Coler et al v. Dwight School Tp. of Richland Co., 3 N. D. 249, 55 N. W. 587; Inhabitants of Morrison, 133 U. S. 523, 10 Sup. Ct. 333; Oregon v. Jennings, 119 U. S. 74, 7 Sup. Ct. 124; County of Moultrie v. Rockingham, &c., Bank, 92 U. S. 631; Venice v. Murdock, id. 494; Town of Colona v. Eaves, id. 484; Dixon Co. v. Field, 111 U. S. 83, 4 Sop. Ct. 315; Humboldt Tp. v. Long, 92 U. S. 642; Com'rs of Knox Co. v. Aspinwall, 21 How. 539; Fulton v. Town of Riverton (Minn.), 44 N. W. 257; 15 Am. & Eng. Ency. of Law, 1295 et seq.; Burr Pub. Secur. 299. School Bonds Want of Consideration Error. Under the decision of the court on the former appeal in this case (58 N. W. 499, 4 N. D. 30), it was held that the defendant could show a want of consideration for the bonds sued on by proving that defendant received neither cash nor audited and canceled warrants as consideration for them. For error in refusing to allow such proof the judg- ment is reversed. Flagg v. School Dist. No. 70, Barnes County, . . . . N. D. ERROR IN LAW. 165 . . . ., 65 N. W. 674. School Bonds De Facto Corporation. In an action upon interest coupons of school district bonds, held, that the defendant, be- ing a de facto municipal corporation, cannot defend on the ground that the district had no legal existence and that the bonds were void. Coler et al v. Dwight School Tp., 3 N. D. 249, 55 N. W. 587, and many Michigan, Kansas, Illinois, Wis., Nev., Minn., Fla., Mo. and Fed. cases there cited; 2 Dill. Mun. Cor. sec. 894. Sureties Township Treasurer Negotiating Bonds. In an action upon the official bond of a school township treasurer, held, un- der the facts stated, that the sureties thereon were not liable for proceeds of township bonds negotiated. Prairie School Township v. Haseleu et al, 3N. D. 328, 55 N. W. 938; U. S. v. Boyd, 15 Pet. 187; Bank v. Ziegler, 49 Mich. 157, 13 N. W. 496; Taylor v. Parker, 43 Wis. 78; State v. Conover, 78 Am. Dec. 54; Gerber v. Ackley, 37 Wis. 43; Murfree, Off. Bonds, sees 461-2; Me- chem Pub. Off. sees. 282-3. Agency Sales Guaranty Notice Offsetting Commissions. In an action upon an agency guaranty contract, held, that while the agent, R., agreed by parol with the general agent that his com- missions for handling an article should be used to reduce his prior indebted- ness to the employer corporation, the corporation was under no duty to im- part this agreement to the guarantors, and their ignorance of it furnished no defense to an action on a contract of guaranty. William Deering & Co. v. Russell, N. D , 65 N. W. 691. Corporate Assets- Speculation by Director. A director of a corporation cannot be permitted to speculate in the assets or indebtedness of his corporation for his own per- sonal profit, at the expense of the corporation. Loftus et al v. Farmers' Shipping Ass'n et al, S. D ...,65N. W. 1076; Thomp. Cor. sec. 4061, 4071 et seq.; Mor. Priv. Corp. sec. 517; Gardner v. Butler, 30 N. J. Eq. 702; Butts v. Wood, 37 N. Y. 317; Paine v. R. R. Co., 31 Ind. 283; Hoyle v. R. R. Co., 54 N. Y. 314; Jones v. Morrison, 31 Minn. 148, 16 N. W. 854; R. R. Co. v. Poor, 59 Me. 277; Torrey v. Bank, 9 Paige 649; Gillett v. Gillett, 9 Wis. 194; Iron Co. v. Sherman, 30 Barb. 553; Perry Trusts, sec. 207. 75 Negligence. See "Instructions," "Evidence," supra; "Damages," infra; and see "Negligence," page 21. (a). Cattle at Large Owner's Care Defendant's Recklessness. While within certain limitations, the owners of cattle have a license to al- low them to run at large, yet if they are in places extra hazardous, the own- ers are required to exercise extra care in taking care of them, and if an ac- cident occurs preventable by the use of such care as the circumstances re- quired of the owners, they cannot recover unless the loss was occasioned by wanton or reckless misconduct of defendant or its employees. Williams v. No. Pac. R. R. Co., 3 Dak. 168, 14 N. W. 97. Although plaintiff has negligently exposed himself or his property to an injury, yet if defendant, after discovering the exposed situation, inflicts the injury through a failure 166 CODE OF CIVIL PROCEDURE. to exercise ordinary care, plaintiff may recover damages. Id. Trespassing Animal -Due Care. In an action for negligence for killing a colt, licld, un- der the facts stated, that the animal was not trespassing, and that defend- ant was bound to use due care in approaching the private crossing in ques- tion. Bishop v. Chi. Mil. & St. P. Ry. Co., 4 N. D. 536, 62 N. W. 605; 4 Am. & Eng. Ency. Law pp. 915, 91 6 and cases cited. Negligence Abstract Proposition. An instruction, in an action for negligence for killing a cow, to the effect that if the jury believed from the evidence that after the cow was seen by the engineer no efforts were made to slacken the train to avoid the accident, and that it might have been done without injury to train or passengers, by use of ordinary care after the cow was seen, and that he was careles&ly negligent, by reason of which the ac- cident occurred, then defendant will be liable, though stating the law cor- rectly, was not applicable to the facts of this case. Harrison v. Chi. Mil. & St. P. Ry. Co., . . . . S. D , 60 N. W. 405. Passenger Bide By Certain Route Rule. In an action for dam- ages arising from being wrongfully ejected from a train, lield, that the trial court improperly instructed the jury that the passenger's right, by virtue of her ticket, to transportation by a certain route, depended upon her knowledge of the rule of the company. Church v. Chi. Mil. & St. P. R. Co., S. D , 60 N. W. 854; Deitrich v. R, R. Co., 71 Pa. St. 436; Johnson v. R. R. Corp. 46 N. H. 221; R. R. 'Co. t v. Randolph, 53 111. 515; Plott v. Ry. Co., 63 Wis. 516, 23 N. W. 412; Bennett v. R. R. Co., 69 N. Y. 594; Hall v. Ry. Co., 15 Fed. 65: Cheney v. R. R. Co., 11 Mete. (Mass.), 121. Care Proportionate To Danger Error. In an action for damages for injury to property caused by prairie fire an instruction upon the question of negligence, that "the care must be proportionate to the danger, a higher degree of care is required when the wind is high than when it is calm, and where combustible matter is very dry than when it is wet," was held, er- roneous, under the evidence. Johnson v. No. Pac. R. Co., 1 N. D. 354, 48 N. W. 227; R. R. Co. v. Anderson, 20 Mich. 244. Held, further, that such error is not reversible error, plaintiff having conclusively established his right to recover on other grounds. Id; Brobst v. Brock, 10 Wall. 519; Ross' Case, 112 U. S. 395, 5 Sup. Ct. 184. Negligence Responsibility Re- gardless of Title. Defendant is responsible for negligence committed by it on the right of way in its possession and use, regardless of title or right of possession. Gram v. N. Pac. R. Co., 1 N. D. 252, 46 N. W. 972.. (b). Contributory Negligence. Plaintiff's Freedom From. It is er- ror to charge the jury that defendant's liability depended solely upon free- dom of plaintiff from contributory negligence, defendant's negligence not being established by evidence as matter of law. Bennett v. No. Pac. R. Co., 4 N. D. 348, 61 N. W. 18. Contributory Negligence Question For Jury. In an action for negligence, whether plaintiff should have gone ahead and ERROR IN LAW. 167 set the pin, and stepped aside before the engine and car came together, is a question for the jury, and it was not contributory negligence as matter of law for him to remain on the foot board. Bennett v. No. Pac. R. R. Co., 3 N. D. 91, 54 N. W. 314. Ordinary Care By Traveler Contributory Negli- gence Burden. A traveler is not required to forego travel on a street be- cause he may know of an obstruction thereon, nor is he required to show that in passing he used extraordinary care to avoid the injury in question. But he is required to use ordinary care, in view of all the circumstances, and if an ordinarily prudent person would not undertake to pass the obstruc- tion under the circumstances, it would be contributory negligence to do so. The burden of showing contributory negligence is upon defendant, and un- less such negligence conclusively appears from plaintiff's testimony, the court cannot take the case from the jury. Ouverson v. City of Grafton N. D 65 N. W. 676; Gram v. R. R. Co., 1 N. D. 252, 46 N. W. 972. Riding With Third Person Imputed Negligence. When plaintiff at her own request was riding with a third person who owned and controlled the horse and conveyance, and whose judgment and capacity to drive she had no reason to doubt, such person being in no manner under plaintiffs control, and not being a parson for whom plaintiff was responsible, the negligence of such person, contributing to the injury, cannot be imputed to plaintiff to defeat a recovery. Ouverson v. City of Grafton, . . . . N. D , 65 N. W. 676: Beach, Contrib. Neg. pp. 108-118; Town of Albion v. Hetrick, 46 Am. Rep. 233; Robinson v. Railroad Co., 66 N. Y 11; Bennett v. Transporta- tion Co., 36 N. J. Law, 225; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391; Transfer Co. v. Kelly, 36 Ohio St. 86; Cuddy v. Horn, 46 Mich. 596; 10 N. W. 32; Nisbet v. Town of Garner, (Iowa) 39 N. W. 516; Pollman v. City of Mankato, 35 Minn. 522, 29 N. W. 317; Land Co. v. Mingea (Ala.), 7 South. 666; Town of Knightstown v. Musgrove, (Ind. Sup.) 18 N. E. 452. (c). Proximate Cause One of Two Causes. When two causes unite in producing injury, one the negligent act or omission of a municipality, the other something for which neither the municipality nor the party in- jured was responsible, and when the injury could not have resulted but for the negligent act or omission of the municipality, such act or omission is the proximate cause of the injury. Ouverson v. City of Grafton, N. D. 65 N. W. 676; Shear. & R. Neg. (4th ed.) 346; Elliott, Roads & S. 451; Ring v. City of Cohoes, 77 N. Y. 83; Lowery v. R. R. Co. 99 N. Y. 158, 1 N. E. 608; Lake v. Mill i ken, 62 Me. 240; Ricker v. Freeman, 50 N. H. 420; Forney v. Gelmacher, 75 Mo. 113; Binford v. Johnston, 82 Ind. 426; Pastine v. Adams, 49 Cal. 87; sec. 4600, Comp. Laws. Frightened Horse Natural Re- sult. And when a horse of ordinary gentleness becomes frightened at an object negligently and wrongfully permitted to stand in the public street, and becomes unmanageable, resulting in an accident, no contributory negli- gence being imputed to the injured party, the city is liable, provided the in- 168 CODE OF CIVIL PROCEDURE. jury be one reasonably anticipated as a natural result of such negligent and wrongful act or omission; and sec. 4600, Comp. Laws makes a defendant li- able when the injury is proximate, though not reasonably anticipated. Ouv- erson v. City of Grafton, supra. Section Foreman Res Geste. A statement of a section foreman made the day after the lire in question occurred, and while the foreman is on or at the railroad track at or near which the fire is claimed to have started, that: "Certain it was started right here. Now I shall catch hell, because of the fire getting away," is incompetent, and should have been stricken out on de- fendant's motion; the statements, representations, or admissions of an agent, to be admissible in evidence to bind his principal, must have been made at the time of doing the act he is authorized to do, and must have been concerning the act he was doing, either while actually engaged in the transaction or so soon thereafter as to be in reality a part of it, and constitute a part of the res gestae. Wendt v. Chi., Mil., S. P. & O. Ry. Co., 4 S. D. 476, 57 N. W. 226; La Rue v. Elevator Co., 3 S. D. 637, 54 N. W. 806; Bank v. Oilman, 3 S. D. 170, 52 N. W. 869; (on rehearing 4 S. D. 265, 56 N. W. 892). Another Steam Engine Incompetent. Evidence that a certain steam engine (not the one in question) an hour before a horse became frightened at a steam en- gine, resulting in an accident, and a few minutes thereafter, held, incompe- tent to establish the fact that such engine was in operation when the acci- dent occurred, it being shown that such engine was operated very irregu- larly. Ouverson v. City of Grafton, N. D , 65 N. W. 676. Defendant's Orders to Servant. In an action for damages caused by fire alleged to have set by defendant's servants. or agents, held, proper to prove defendant's orders to his hired man not to set any fires. Moo v. Job, 1 N. D. 140, 45 N. W. 700. (d). Fellow-Servant-Gang- Foreman. In an action against a railway company for negligence of the gang foreman in failing to block a pile which was shoved against the plaintiff, working under him, held, that the trial court erred in instructing the jury that the defendant company was liable for such negligence to a fellow-servant of the foreman, under sec. 3753 Comp. Laws, or otherwise. EH v. No. Pac. R. Co., 1 N. D. 336, 48 N. W. 222; Hoi- den v. R. R. Co., 129 Mass. 268; Cooley on Torts, 543; Judge Dillon, in 24 Am. Law Rev. 175; Farwell case, 4 Mete. (Mass.), 60; Steamship Co. v. Mer- chant, 133 U. S. 375, 10 Sup. Ct. 397; Ry. Co. v. Welch, 72 Tex. 298, 10 S.W. 529; Elliott v. R. R. Co., 5 Dak. 523, 41 N. W. 758; Pagundes v. R. R. Co., 79 Cal. 97, 21 Pac. 437; McMasters v. R. R Co. (Miss.), 4 So. 59; Connelly v. R. R. Co. (Minn.), 35 N. W. 582; Gormley v. R. R. Co. , 72Ind. 31; Keys. v. R. R. Co. (Pa.),3Atl. 15; Whaalan v. R. R. Co., 8 Ohio St. 249; Valtez v. R. R. Co., 85 III. 500; Besel v. R. R. Co., 70 N. Y. 171; Cooper v. R. R. R. Co., 23 Wis. 668; Blake v. R. R. Co., 70 Me. 60; and see other Federal, Cal., Mass., Wis., Ind. and N. Y. cases cited in the principal (N. D.) case. Fellow-Servant De- ERROR IN LAW. 169 pends on Character of Work. Whether a negligent servant is the fellow- servant of an employee injured by carelessness of the former depends, not up- on the relative ranks of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury. Ell v. No. Pac. R. Co., 1 N. D. 336, 48. N. W. 222; Crispen v. Babbett, 81 N. Y. 516; Lindvall v. Woods (Minn.), 42 N. W. 1020; Davis v. R. R. Co., 55 Vt. 84; State v. Mals- ter, 57 Md. 287; Car Co. v. Parker, 100 Ind. 191; Hussey v. Coger, 112 N.Y. 614, 20 N. E. 556; Copper v. R. R. Co. (Ind.), 2N. E. 749; Yates v. Iron Co. (Md.), 16 Atl. 280; Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; McGovern v. M'fgCo. (Ga.), 5 S. E. 492; Lewis v. Seifert (Me.), 11 Atl. 514; Olson v. R. R. Co. (Minn.), 35 N. W. 866; Anderson v. Winston, 31 Fed. 528; Webb v. R. R. Co. (N. C.), 2 S. E. 440. Negligence of Fellow-Servant What Is. The negligent per- formance or omission to perform a duty the master owes his employees is at common law the negligence of the master, whatever the grade of the ser- vant who is careless. The negligence of a servant engaged in the same gen- eral business with the injured servant is negligence of a fellow-servant, whatever position the former occupies with respect to the latter, as to all acts pertaining to duties of a mere servant, as contradistinguished from the duty of the master to his employees. Ell v. No. Pac. R. Co., 1 N. D. 336, 48 N. W. 222. 16. Damages Measure of, See "Negligence," "Evidence," supra. (a). Contract Is Measure of. In an action for breach of contract the contract furnishes the measure of damages, and the amount recovered can- not, except in cases under section 4617 Comp. Laws, exceed the amount the party could have gained by full performance on both sides. Cranmer v. Kohn et al, S. D 64 N. W. 125. Percentage on Sales Monthly Sales, Not Salary. Where, on trial of an action for damages for services performed by a traveling salesman, the contract is shown to be one for pay- ment of a percentage upon sales, the measure of damages is the amount plain- tiff could have made on the sales had he not been prevented by defendant from completing his contract; and it is error to allow plaintiff to testify as to the value of his monthly services generally. Cranmer v. Kohn et al, .... S. D , 64 N. W. 125; Mueller v. Spring Co. (Mich.), 50 N. W. 319; Loud v. Campbell, 26 Mich. 239; Leonard v. Beaudry, 68 Mich. 312, 36 N. W. 88. Stipulation in Contract Measure of Damages Land Sale. A stipula- tion that grantor may retain all payments made or secured, in case grantee fails to perform a contract for sale of land, containing covenants and condi- tions, the number and nature of which made it impracticable to fix the actual damage in case of breach thereof, is not void under sec. 3581, Comp. Laws; so held, in an action for money had and received under such contract. Barnes v. Clement, S. D , 66 N. W. 810. Agency Statute of 1H T P 170 CODE OF CIVIL PROCEDURE. Frauds- Land Sale. The power of an agent to execute a binding contract for sale of lands may be established by letters and telegrams received from his principal. Farrell v. Edwards, S. D ,66 N. W. 812. Delay in Prosecuting Market Value. A delay of eleven months in bringing ac- tion, held, fatal to plaintiff's claim that he had prosecuted with reasonable diligence, under subdi. 2, sec. 4603 Comp. Laws, giving highest market value between date of conversion and verdict. Pickert v. Rugg et al, 1 N. D. 230, 46 N. W. 446; 1 Suth. Dam. 237, 238 and cases in note; Wright v. Bank, 110 N. Y. 237, 18 N. E. 79; Gallagher v. Jones, 129 U. S. 193, 9 Sup. Ct. 335; Baker v. Drake, 53 N. Y. 211; Gruman v. Smith, 81 N. Y. 25; Brew- ster v. Van Liew, 119 111. 561, 8 N. E. 842; Ball v. Campbell, 30 Kan. 180, 2 Pac. 165; Page v. Fowler, 39 Cal. 412. Commissions Value of Paper. In an action for commissions on sales of farm machinery, payments to be ma.de in paper or money as the sale may be made, the measure of recovery is only the actual value of paper selected under the contract. Brown v. McCall et al, S. D. ... , 60 N. W. 151. Nominal Damages Reversal to Re- cover. When essential to the determination and preservation of an import- ant legal right, a judgment will be reversed to enable a party to recover merely nominal damages. Olson v. Huntimer et al (on rehearing), .... S. D , 66 N. W. 313; 2 Ency. PI. & Prac. p. 535; sec. 4601 Comp. Laws. Costs Counterclaim. The defendant recovers costs in the District Court as matter of course, unless plaintiff is entitled to costs; so held, where a counterclaim was set up. Dows et al v. Glaspel, 4 N. D. 251, 60 N. W. 60; Ury v. Wilde, (Super. N. Y.), 3 N. Y. Supp. 791. Judgment Treasurer and Sureties Penalty. If the county recover judgment in an action brought by a state's attorney in its name against the county treasurer and sureties, the judgment may include the twenty per cent, penalty specified in sec. 617 Comp. Laws, as against sureties as well as principal. Jerauld Co. v. Williams et al, S. D 63 N. W. 905; Tappan v. People, 67 111. 339. (b). Deceit Representations Actual Worth. In an action for dam- ages for deceit in sale of property, the measure of damages is the difference between what the property would have been worth if as represented and what it was actually worth at the time. Fargo Gas & Coke Co. v. Fargo Gas & E. Co., 4 N. D. 219, 59 N. W. 1066; Comp. Laws sec. 4593; Moore v. Hutchins, 102 Mass. 440; Page v. Wells, 37 Mich. 415; Williams v. McFad- den, 23 Fla. 143, 1 So. 618; Nyeswander v. Lowman, 124 Ind. 584, 24 N. E. 355; Noyes v. Blodgett, 58 N. H. 502; Stiles v. White, 11 Mete. (Mass.) 356; Lunn v. Schermer, 93 N. C. 164; Vail v. Reynolds, 118 N. Y. 297, 23 N. E. 301; Doran v. Eaton, (Minn.), 41 N.W. 244; Woolman v. Wirtsbaugh (Neb.), 35 N. W. 216; Drew v. Beall, 62 111. 167; Home v. Walton (111. Sup.), 7 N. E. 100; Jackson v. Armstrong (Mich.), 14 N. W. 702; Matlock v. Reppy, (Ark.), 14 S. W. 546; Woodward v. Thatcher, 21 Vt. 580; 3 Suth. Dam. pp. 389, 390, 392 Deceit Means of Discovering Truth. In an action for un- ERROR IN LAW. 171 paid purchase price of a gas and electric light plant, where a counterclaim was set up for damages for deceit, held, under the facts stated, that it was error to charge the jury that, if means were at defendant's hands to discover the truth or untruth of plaintiffs statements, he must be presumed to have had knowledge of the facts, which would require investigation by defend- ant. Fargo Gas & Coke Co. v. Fargo Gas & E. Co., 4 N. D. 219, 59 N. W. 1066; Mead v. Bunn, 32 N. Y. 280; Redding v. Wright (Minn.), 51 N. W. 1056; Gardner v. Trenary, 65 la. 646, 22 N. W. 912; Schumaker v. Mather, 133 N. Y. 590, 30 N. E. 755; Caldwell v. Henry, 76 Mo. 254; Oswald v. McGe- hee, 28 Miss. S40; Cottrill v. Kraum, 100 Mo. 397, 13 S. W. 753; Campbell v. Frankern, 65 Ind. 591. Kerr, Fraud & M. 77, 80, 81; Alfred Shrimpton & Sons v. Philbrik (Minn.), 55 N. W. 551; Brandt v. Frederick (Wis.), 47 N. W. 6; Big. Fraud 522-528. Excessive Alimony Gross Sum. The court may in its discretion, in granting the wife a divorce, make suitable allow- ance to be paid her by the husband in a gross sum instead of monthly or an- nual payments. Williams v. Williams, S. D , 61 N. W. 38; Robin- son v. Robinson, 79 Cal. 511, 21 Pac. 1095; Burrows v. Purple, 107 Mass. 432; sec. 2584 Comp. Laws; held, also, that $30,000, in addition to $3,000 tempo- rary alimony and counsel fees, is, under the facts stated, an excess- ive allowance for support and maintenance. Williams v. Williams, supra. Personal Injury Mental Powers. In an action for personal injuries, no claim being made that plaintiff's mental powers were impaired by the injury, it is error to instruct the jury that, in estimating damages they may consider the effect of the injury upon plaintiff's mental powers. Comaskey v. No. Pac. R. Co., 3 N. D. 276, 55 N. W. 732. Complaint Penalty Statute. A com- plaint for recovery of statutory penalty should contain a reference to the statute and a specification of acts or omissions of defendant in violation thereof; and if it is faulty in these respects, the evidence being confined to actual damages, an instruction that if the jury find for plaintiff the statutory penalty must be added to amount of actual damages, is erroneous. Kirby v. Western Union Tel. Co., .... S. D , 60 N. W. 152; Kirby v. Tel. Co., 4 S. D. 105, 57 N. W. 202; People v. Brooks, 4 Denio 469; Briscoe v. Hin- man, Deady, 588, Fed. Cas. No. 1887; Fish v. Manning, 31 Fed. 340 and cases cited. (c). Ejectment Conveyance Pending Litigation. In an action of ejectment and to recover damages for withholding the property, held, plain- tiff is entitled to recover damages though he has conveyed the land pending the litigation. Dunstan v. No. Pac. R. Co., 2 N. D. 46, 49 N. W. 426; sec. 5454 Comp. Laws. Interest on Value of Land. In an action to recover land, held, that the court properly instructed the jury that they might, or might not, at their option, allow interest on the annual value of the use of the land. Heger et al v. De Groat, 3 N. D. 354, 56 N. W. 150. Attorney's Fees Ejectment. In an action to recover possession of land 172 CODE OF CIVIL PROCEDURE. and for damages for its wrongful occupation, held, error to admit testimony as to attorney's fees claimed as damages. Heger et al v. De Groat, 3 N. D. 354, 56 N. W. 150; White v. Clack, 2 Swan 230 (Tenn.); Baron v. Abell, 3 John. 481; Aslin v. Parkin, 2 Burrows 665; Delatouche v. Chubb, 1 N. J. Law 466; Hunt v. O'Neil, 44 Id. 566; Sedg. & W. Tr. Title Land, sec. 679; sec. 4601 Com p. Laws. (d). Claim and Delivery Value of Use. The giving of delivery bond by defendant in an action of claim and delivery does not render the pro- ceeding analogous to an action for conversion; and if plaintiff recover an alternative judgment he is not limited in damages for detention, to interest on value, but may recover value of use of property wrongfully detained, where it has an active capacity for earning money. Northrup v. Cross, sher- iff, 2 N. D. 433, 51 N. W. 718. Value of Property Third Party. In an action in claim and delivery the plaintiff in such action is liable for the value of the property taken by the officer, to a third party who was the actual owner thereof when taken. Feury v. McCormick H. M. Co., S. D , 61 N. W. 162; Cooley Torts (2d Ed.), pp. 148, 129; Corner v. Mackintosh, 48 Md. 374; Peterson v. Foli, 67 la. 402, 25 N. W. 677; Shaw v. Rowland, 32 Kan. 154, 4 Pac. 146. Claim and Delivery Cost of Regaining Property. Where property wrongfully taken is sold at judicial sale and is purchased by the owner and delivered to him, he is not entitled, in an action in claim and delivery against the officer who took it, to judgment for its value, but only for the sum that it cost him to regain possession, with interest. North- rup v. Cross, sheriff, (on rehearing) 2 N. D. 433, 51 N. W. 718; Ford v. Will- iams, 24 N. Y. 359; Baker v. Freeman, 9 Wend. 36; Mclnroy v. Dyer, 47 Pa. St. 118; Sprague v. Brown, 40 Wis. 612; Leonard v. McGinnis, 34 Minn. 506, 26 N. W. 733. 17. Statutes. Trespassing 1 Livestock Constitutionality of Special Law. In an action involving special laws applicable to Black Hills counties, relative to trespassing livestock, held, that such law is not unconstitutional as being a special law; and that the common law, not being in accordance with the common usage and necessities of Black Hills, does not apply to that country. Sprague v. Fre. E. & M. V. Ry. Co., 6 Dak. 86, 50 N. W. 617. Mechanic's Lien Hauling Materials. One who under a contract with the owner or contractor, hauls material for a building, erection, or other improvements, and which is used in the erection of the same, is entitled to a lien therefor under the mechanic's lien laws of this state. Kehoe v. Hansen et al, .... S. D. 65 N. W. 1075; Hill v. Newman, 38 Pa. St. 152; Pinkerton v. LeBeau, 3 S. D. 440, 54 N. W. 97; Dixon v. LaFarge, 1 E. D. Smith (N. Y.) 722; Ec- cleston v. Hetting, (Mont. ), 42 Pac. 105. Eminent Domain Jury Trial Appeal Constitutionality. Sec. 1302 Comp. Laws, relating to damages from laying out highways, etc., and section 1324 Comp. Laws, giving right ERROR IN LAW. 173 of appeal and jury trial, are not in conflict with sec. 13, art. 6, State Consti- tution, prohibiting taking of private property without just compensation, etc. Town of Dell Rapids v. Irving, S. D , 64 N. W. 149; the pro- visions of the constitution are satisfied by giving appeal to a court in which a jury trial may be had. Id. The term "municipal corporation," in chap. 94, laws 1891, does not include townships. Town of Dell Rapids, v. Irving, S. D , 64 N. W. 149; Dill Mun. Cor. sec. 20; 15 Am. & Eng. Ency. Law, 954-5; Hamilton Co. v. Mighels, 7 Ohio St. 109; Riddle v. Proprietor, etc., 7 Mass. 169; School Dist. v. Wood, 13 Mass. 193; Beach v. Lehhey, 11 Kan. 23; Mower v. Inhabitants of Leicester, 9 Mass. 247; Eastman v. Merid- ith, 36 N. H. 284; Bailey v. Lawrence Co., . . . . S. D , 59 N. W. 219; Heller v. Stremmel, 52 Mo. 309; State v. Leffingwell, 54 Mo. 458; Const. Art. 9, 10; Id, Art. 13, sec. 1; Art. 5, sec. 23; sec. 773, 1022-1188 Comp. Laws; Norton v. Peck, 3 Wis. 714: Eaton v. Manitowoc Co., 44 Wis. 489; Chap. 112, sec. 1, laws 1887; Van Antwerp v. Dell Rapids Tp. 3 S. D. 305, 53 N. W. 82, (on rehearing) 5 S. D. 447, 59 N. W. 209. Chattel Mortgage Not Filed- Creditor. By the provisions of sec. 4379 Comp. Laws a chattel mortgage executed and delivered, but not properly deposited in the office of the reg- ister of deeds is void, as against creditors of the mortgagor who became such while such mortgage was withheld from the record; following Kim- ball Co. v. Kirby, 4 S. D. 152, 55 N. W. 1110, and Jewett v. Sundback, 5 S. D. Ill, 58 N. W. 21. Noyes et al v. Brace et al, S D , 65 N. W. 1071; Crippen v. Fletcher, 56 Mich. 386, 23 N. W. 56; Haynesv. Leppig, 40 Mich. 607, and other Michigan cases there cited; Vreeland v, Pratt (Sup.), 17 N. Y. Supp. 307; Karst v. Gane (Sup.), 16 N. Y. Supp. 385. As- signment of Exempt Property Attachment. Under the statute regulat- ing assignments for benefit of creditors, and under sec. 2023 Civil Code, an assignment of all the debtor's property, reserving therefrom all property "exempt from execution" is valid, in the absence of actual fraud, and not subject to attack under the attachment laws. Red River Val. Nat. Bank of Fargo, v. Freeman, 1 N. D. 196, 46 N. W. 36; Severson v. Porter, (Wis.), 40 N. W. 577; Bank v. Hinman (Wis.), 21 N. W. 280; Lininger v. Ray- mond, 9 Neb. 40, 2 N. W. 359; Brooks v. Nichols, 17 Mich. 38; Garnor v. Frederick, 18 Ind. 507; Story's Eq. Jur. Sec. 367; Heckman v. Messinger, 49 Pa. St. 465; Mulford v. Shirk, 26 Pa. St. 473; Dow v. Platner, 16 N. Y. 562; Simpson v. Robert, 35 Ga. 180; Bank v. Cox, 6 Me. 395. "Municipal" Corporations Quasi Corporations. Ch. 94, Laws 1891, was designed to affect "municipal" and "other corporations" referred to in section 18, Art. 17 of Constitution only, and has no application to quasi corporations organ- ized under the laws of this state for political and governmental purposes. Town of Dell Rapids v. Irving, S. D , 64 N. W. 149. Disbar- mentStatutory Grounds Only. Where the statute enumerates grounds for disbarment of an attorney, no other grounds can be considered by the 174 CODE OF CIVIL PROCEDURE. court. In re Eaton 4 N. D. 514, 62 N. W. 597; Sec. 473, 465 Comp Laws. Repeal by Implication Two Affirmative Statutes. The doctrine of repeal by implication will not be applied when two affirmative enactments relat- ing to the same subject are clearly susceptible of a construction that will ren- der both operative; Jield, on this principle, that chap. 24, Laws 1881, confer- ring power upon school districts to issue bonds, was not repealed by any pro- visions of laws of 1883. Coler et al v. Rhoda School Tp S. D , 63 N. W. 158. APPLICATION FOR NEW TRIAL ON WHAT PAPERS. 5089, Comp; Laws; 5473 Rev. Codes, N. D. When the applica- tion is made for a cause mentioned in the first, second, third and fourth subdivisions of the preceding section, it must be made upon affidavits; for any other cause it may be made, at the option of the moving party, either upon a bill of excep- tions or a statement of th'e case, or upon the minutes of the court. On such hearing reference may be had in all cases to the pleadings and orders of the court on file; and where the motion is made on the minutes, reference may also be had to any depositions, documentary evidence and stenographic re- port of the testimony or other papers used upon the trial. (Sec. 2, chap. 21 Laws 1887, Dak.) [Sec. 5473 Rev. Codes, N. D., is the same, except that the word "affi- davit" is used instead of "affidavits," and the words "bill of exceptions or a" are omitted. (Am'd. Rev. Com'rs.) Sec. 287 C. C. P.; Levisee p. 85; Harst Pr. Deer. Code $ 658. Consult subdivisions 1 to 4, of preceding section, and the various sub- divisions of the next section. What Papers or Evidences Not Part of Record. Neither the rulings of the court in admitting or excluding evidence, instructions to jury, the judge's minutes or stenographer's notes, depositions nor affidavits used in the court below, are part of the record unless made so by a bill of excep- tions. St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497; Reed v. Gardiner, 17 Wall. 409; and minutes of stenographer taken at the trial, form no part of the record, and are not binding upon the judge in settling bill of exceptions. Golden Terra Min. Co. v. Smith et al, 2 Dak. 377, 11 N. W. 98. Destruction of Papers No Ground. The destruction or loss of testimony and proceedings of trial, taken by the stenographer, does not of itself constitute ground for new trial. Golden Terra Mining Co. v. Smith et al, 2 Dak. 377, 11 N. W. 98. [AUTHOR'S NOTE. The following authorities are cited from other states, as bearing upon this section.] APPLICATION WHEN HEARD WHAT PAPERS. 175 When Must Be Made On Affidavits. In the specified cases the mo- tion cannot be made on other papers than affidavits. Hayne, New Tr. & App., sec. 135; Beans v. Emanuelli, 36 Cal. 118. But the motion may be made upon grounds which must be supported by affidavits, and upon other grounds which must be supported by a statement or bill of exceptions. Id. On Minutes. Where the motion is made upon the minutes of the court it is to be heard and decided without any formal record. Hayne on New Tr. & App. Sec. 134. Statement When Made up Before Decision. After the decision the grounds which were argued in support of the motion, together with so much of the evidence or other matter as may be necessary to explain such grounds, may be incorporated into a statement, which constitutes the rec- ord upon which the order may be reviewed. But in every other civil case the record upon the motion must be made up before the motion is decided. Haynes, New Tr. & App. sec. 134. It is otherwise in criminal cases. Id. note 1; Lin Tai v. Hewell, 56 Cal. 117; People v. Fisher, 51 Cal. 322; Peo- ple v. Ah. Fat, 47 Cal. 631. Decision Before Record Made Reversal. If the motion be granted before the record is made up the order granting the motion will be reversed. Hayne on New Tr. & App. sec. 134; Hill v. White, 2 Cal. 306; Hart v. Burnett, 10 Cal. 64; Budd v. Drais, 50 Cal. 120. Motion Denial of Without Record Affirmance. But if the motion be denied without a record, the order denying it will be affirmed. Hayne on New Tr. & App. sec. 134; Linn v. Twist, 3 Cal. 89; Doyle v. Sewall, 12 Cal. 425; Smith v. Fagan, 17 Cal. 181; Fee v. Starr, 13 Cal. 170; Visher v. Webster, 13 Cal. 60; Mclntyre v. Willis, 20 Cal. 177; Hoadley v. Crow, 22 Cal. 265; Wilson v. Dougherty, 45 Cal. 35. Appeal Dismissed, When. Where the motion was denied without a record the appeal has been dismissed. Hayne on New Tr. & App. sec. 134 note 3; Cosgrove v. Johnson, 13 Cal. 510; Weg- gemheim v. Hook, 35 Cal. 217. Newly Discovered Evidence What Sufficient Record. A motion by plaintiff for a new trial for newly discovered evidence, founded on the complaint, a copy of the phonographer's minutes of the evidence on file, and affidavits showing the character of the newly discovered evidence, held, to be sufficient in form, under sec. 2879 Rev. St.. which provides that such motion may be made and heard without a bill of exceptions, upon affidavits, and the papers in the action, and a transcribed copy of the phonographer's minutes. Smith v. Smith et al,.(Wis.) 8 N. W. 868. NOTICE OF INTENTION MOTION ON AFFIDAVITS ON BILL- ON STATEMENT ON MINUTES. 5090, Comp. Laws; 5474 ? Rev. Codes, N. D. The party intending to move for a new trial roust, within twenty days after the verdict of the jury, if the action were tried by jury, or after notice of the decision of the 176 CODE OF CIVIL PROCEDURE. court, if the action were tried without a jury, serve upon the adverse party a notice of his intention, designating the statu- tory grounds upon which the motion will be made and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case. Subdivision 1. If the motion is to be made upon affidavits, the moving party must, within twenty days after serving the notice, or such further time as the court in which the action is pending, or a judge thereof may allow, serve a copy of such affidavits upon the adverse party, who shall have ten days to serve counter affidavits, a copy of which must be served upon the moving party. Motions for new trial on the ground of newly discovered evidence may be made at any time before the close of the term next succeeding that at which the trial was had. Subdivision 2. If the motion is to be made upon a bill of exceptions, and no bill has already been settled as hereinbe- fore provided, the moving party shall have the same time after service of the notice to prepare and obtain a settlement of a bill of exceptions as is provided after the entry of judgment, or after receiving notice of such entry, by section 5083, and the bill shall be prepared and settled in a similar manner. If a bill of exceptions has been already settled and filed, when the no- ticie of motion is given, such bill shall be used on the motion. When the notice designates as the grounds of the motion errors in law occurring at the trial and excepted to by the moving party, such bill of exceptions shall specify the particular errors upon which the party will rely. Subdivision 3. If the motion is to be made upon a state- ment of the case, the moving party must, within twenty days after service of the notice, or such further time as the court in which the action is pending, or the judge thereof, ma> allow, prepare a draft of the statement and serve the same, or a copy thereof, on the adverse party. If such proposed statement be not agreed to by the adverse party, he must with in twenty days thereafter prepare amendments thereto and serve the same, or a copy thereof, upon the moving party. If the amendments be APPLICATION WHEN HEARD PAPERS. adopted the statement shall be amended accordingly, and then presented to the judge who tried or heard the cause, for settle- ment, or be delivered to the clerk of the court for the judge. If not adopted, the proposed statement and amendments shall within ten days thereafter be presented by the moving party to the judge, upon five days' notice to the adverse party, or deliv- ered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk, and judge, as are required for the settlement of bills of exception by section 5083. If no amendments are served within the time designated, or, if serv- ed, are allowed, the proposed statement ami amendments, if any, may be presented to the judge for settlement, without no- tice to the adverse party. When the notice of intention desig- nates as the ground of the motion the insufficiency of the evi- dence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates as the ground of the motion errors in law occurring at the trial and excepted to by the moving party, the statement shall specify the partic- ular errors upon which the party will rely. If no such specifi- cations be made, the statement shall be disregarded on the hearing of the motion. It is the duty of the judge in settling the statement, to strike out of it all redundant and useless mat- ter, and to make the statement truly represent the case, not- withstanding the assent of the parties to such redundant or useless matter, or to any inaccurate statement. When settled, the statement shall be signed by the judge, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk. Subdivision 4. When the motion is to be made upon the minutes of the court, and the ground of the motion is the in- sufficiency of the evidence to justify the verdict or other decis- ion, the notice of intention must specify the particulars in which the evidence is alleged to be insufficient; and, if the ground of the motion be errors in law occurring at the trial, and excepted 12 TP 178 CODE OF CIVIL PROCEDURE. to by the moving party, the notice of intention must specify the particular errors upon which the party will rely. If the notice do not contain the specifications here indicated, when the motion is made on the minutes of the court, the motion must be denied. (Sec. 6, chap. 21, Laws 1887, Dak). [Sec. 5474, Rev. Codes, N. D., is the same in the first part of the section preceding subd. 1 except that the words "or a bill of exceptions" are omitted. Subd . 1 is the same, except that the word "thirty" is substituted for "twenty", and the words "or a judge thereof" are omitted. Subd. 2 of the N. D. section relates to settlement of statements (omit- ting all reference to bills of exception), is substantially a substitute for sub- division 3 in the Cornp. Laws, and is as follows: "If the motion is to be made upon a statement of the case and no state- ment has already been settled as hereinbefore provided the moving party shall have the same time after service of the notice of intention to move for a new trial to prepare and obtain a settlement of a statement of the case as is provided in section 5467." (As Am'd, Rev. Com'rs). Subd. 3 of the N. D. section is the same as subd. 4 in Comp. Laws, down to and including the word "rely". Then follows this language: "If the no- tice does not contain the specifications herein stated and the motion is made on the minutes of the court, the motion must be denied. If an appeal is taken from the decision on such motion the party appealing shall have the same time after such decision in which to prepare and have settled a state- ment of the case to be used on appeal as is provided in section 5467." (As Am'd, Rev. Com'rs.)] Sec. 288 C. C. P.; Levisee p. 86; Harst. Pr., Deer. Code, 659. Consult sees. 5089, 5092, 5093, Comp. Laws; sees. 5473, 5476, 5477, Rev. Codes, N. D.; also, the preceding chapter on ''Exceptions," particularly sees. 5081, 5082, 5083, Comp. Laws, sees. 5464, 5465, 5467, Rev. Codes, N. D. SUBDIVISION 1. Notice of Intention Affidavits. (a). Explaining the Section. In Gaines v. White, sheriff, 2 S. D. 410, 47 N. W. 524, the court, referring to this section, say: "The specifica- tions thus provided for are that the moving party must serve on .the op- posite party a notice of intention, designating the statutory grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case. The defendant has not made the specifications of particulars wherein the evidence is insufficient to support the verdict according to the requirements of the statute, either in his notice of intention to move for a new trial, or in the bill of exceptions. It will not, therefore, be considered." Notice of Intention Necessary. The object of this section being to give APPLICATION WHEN HEARD PAPERS. 179 the opposite party time to prepare for the motion, the notice of intention must be given before the court can entertain the motion for a new trial. First Nat'l. Bank v. Comfort, 4 Dak. 167, 28 N. W. 855. Notice of Intention Not Jurisdictional. Under existing statutes, giving notice of intention to move for new trial is not Jurisdictional. Johnson v. Northern Pac. R. Co., 1 N. D. 354, 48 N. W. 227; Volmer v. Stagerman, 25 Minn. 244. Indis- pensable, Unless Waived. The motion for new trial may be made either upon -the minutes of the court, upon affidavits, upon a bill of exceptions, or statement of the case; but in all these methods a notice of intention to move is indispensable to the motion, unless waived. Gould v. Duluth & Dak. Elevator Co., 2 N. D. 216, 50 N. W. 969. (b). Sufficiency of Evidence Unassailable, When. Sufficiency of the evidence to support the verdict cannot be assailed here, when in neither the notice of intention nor the bill of exceptions are the particulars specified wherein the evidence is alleged to be insufficient. Pickert v. Rugg, et al, 1 N. D". 230, 46 N. W. 446. What a Sufficient Record. A record showing the motion for new trial was made on a bill of exceptions which contains a notice of intention to move for a new trial which specifies and definitely points out the particulars in which the evidence is insufficient, etc., is suffi- cient to present that question. Mattoon v. P. & M. V. R. Co., S. D . . ., 60 N. W. 740. What an Insufficient Record. Where the notice of inten- tion alleges insufficiency of evidence, and errors in law occurring at the trial, the record upon which the motion for new trial is heard containing no further specification, either of alleged errors in law or the particulars in which the evidence is insufficient, the trial court may properly deny the motion as to those grounds. Billingsly v. Hiles S. D , 61 N. W. 687; Haynes, New Tr. & App. sec. 149, et seq. (c). Statutory Grounds General Statement Insufficient. Where the notice of intention states generally the statutory grounds for a new trial, including the insufficiency of the evidence, but no further specification of the particulars in which such evidence is insufficient is made, either in the statement upon which the motion for a new trial is made or in the assign- ments of error or argument in this court, such objection will not be con- sidered. Nat'l. Cash Register Co. v. Pfister et al, 5 S. D. 143, 58 N. W. 270; Pierce v. Manning, 1 S. D. 306, 51 N. W. 332. General Notice Followed by Specifications. Where the notice of intention, made after the entry of judgment, designated ''errors in law occurring at the trial, and excepted to by the defendant, which are fully stated in said bill of exceptions, and errors of the court in making the findings of fact in said action, and excepted to by the said defendant," followed by a specification of error as to each finding of fact, such notice of intention is sufficient, though the ground designated is not stated in the language of the statute. Barnard & Leas Mfg. Co. v. Galloway et al, 5 S. D. 205, 58 N. W. 565. What For Review. Held, how- 180 CODE OF CIVIL PROCEDURE. ever, in that case, that the only matters before the court for review are the errors of law occurring at the trial; citing Hawkins v. Hubbard, 2 S. D. 631, 61 N. W. 774; Morris v. Nilea, 67 Wis. 341, 30 N. W. 353; Latitner v. Mur- rain, 43 Wis. 107. SUBDIVISION 2. Bill Statement (a). Settlement of Bills, Etc., Not Jurisdictional Discretion. Un- der existing statutes, settling bills of exceptions and statements, and giving notice of intention, etc., are not Jurisdictional in nature. Until time for ap- peal has expired all steps leading up to and including motion for new trial may be taken at any time allowed in sound judicial discretion, and this court will presume that such discretion is properly exercised. Johnson v. North- ern Pac. R. Co., 1 N. D. 354, 48 N. W. 227; sec. 5093, Comp. Laws. Where no Bill Existed. For a case where it was lield, in absence of notice of set- tlement of bill of exceptions or of service of proposed bill, or of an order pur- porting to settle one, that no bill of exceptions existed, see Wood v. Nissen, 2N. D. 26, 49N.W. 103. (b). Sufficient Specification in Motion. A specification in a motion for a new trial, "that the verdict is contrary to the law and facts, in that the negligence of the defendant was the proximate cause of injury to the plaint- iff, and that there is no evidence in the case that shows that the plaintiff was guilty of any negligence whatever," sufficiently designates the statutory ground, and entitles plaintiff to have the subject therein specified examined on motion for a new trial. Alt v. Chicago & N. W. Ry. Co., 5 S. D. 20, 57 N. W. 1126; 2Thomp. Trials, 2755; Elliott, App. Proc., 854. Point Out Particular Error. The particular error upon which the motion for a new trial or a reversal of the judgment is relied upon, should be pointed out. Assignments of error in this case held bad. Bush et al v. Northern Pac. Ry. Co., 3 Dak. 444. 22 N. W. 508; Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511. Insufficient Exception. An exception to "all charges and to the special charge asked by defendant for the reason that they are liable to mislead the jury, and for the reason that the jury in its verdict would pass upon these questions," is insufficient, and does not entitle plaintiff to have instructions considered on motion for new trial. Alt v. Chicago & N. W. Ry. Co., 5 S. D. 20, 57 N. W. 1126; Hayne, New Tr. & App. sec. 128; 2 Thomp. Trials, 2398; Elliott, App. Proc. 791; Smith v. Coleman (Wis.), 46 N. W. 664; Carroll v. Williston (Minn.), Id. 352. Unspecified Errors Disregarded. Errors not specified in bill of ex- ceptions, where motion for new trial is based thereon, must be disregarded. Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659. No Specifications, No Re- viewCourt Trials. Where the bill of exceptions embodied no specifica- tions of error, held, on appeal from an order denying motion for new trial, that alleged errors of law occurring at the trial will not be reviewed. APPLICATION WHEN HEARD PAPERS. 181 Schmitz v. Heger, N. D , 64 N. W. 943; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49; First Nat. Bank v. Merchant's Nat. Bank of Devil's Lake, .... N. D , 64 N. W. 941; and this rule applies to cases of trial to the court, where no motion for new trial is made below; Hostetter v. Brooks Elevator Co., supra; Laws 1891, N. D., Ch. 121; Sup. Ct. Rule No. 13. (c.) Agreed Statement Mere Evidence. An agreed statement of facts is not a sufficient record, but is mere evidence. And whether the rec- ord for use in the appellate court be by bill of exceptions, or statement used on motion for a new trial, as in section 5090, it must be certified to and signed by the judge. Sweet et al v. Myers et al, 3 S. D. 324, 53 N. W. 187; Coonrod v. Anderson (Ark.), 18 S. W. 373; Ins. Co. v. Harris, 108 Ind. 392, 9 N. E. 299; Abrahams v. Sheehan, 27 Minn. 401, 7 N. W. 822; Ins. Co. v. De Graff, 12 Mich. 10; Haynes v. City of Cape May (N. J. Err. & App.) 19 Atl. 176; Howard v. Ross (Wash.), 28 Pac. 526. Evidence to Be in Bill Order. The evidence will not be considered on appeal, unless embodied in a bill of exceptions, and this applies to review of an order. Merchants' Nat. Bankv. McKinney et al, S. D , 60 N. W. 162. Ex Parte Orders Extending 1 Time, Presumed Valid. Ex parte or- ders extending time for settling a bill of exceptions, no reason being stated of record therefor, are priina facie valid under objection, and will be pre- sumed, nothing to contrary appearing, that they were made for good cause. Johnson v. Northern Pac. R. Co., 1 N. D. 354, 48 N. W. 227; 4 Wait's Pr. 595; sec. 4828 Com p. Laws. Settled After Time Without Order. A bill may be settled after expiration of statutory time, without making an order extending the time; the order settling the bill operating to extend time. Johnson v. Northern Pac. R. Co., 1 N. D. 354, 48 N. W. 227; sec. 4939, 5093, Comp. Laws; Volmer v. Stagerman, 25 Minn. 244. Inexcusable Delay. A delay of over four years after a verdict in seeking to settle a bill of excep- tions, the excuse being "deponent's misconstruction of the law in relation to bills of exception," is not justified, and such showing is not good cause un- der sec. 5093, Comp. Laws. Moe v. Northern Pac. R. Co., 2 N. D. 282, 50 N. W. 715; Welch v. County Court (W. Va.), 1 S. E. 337. SUBDIVISION 3, On Statement. Must Specify What Insufficiency. When a party claims the evidence is insufficient to justify the verdict, he must specify the particulars in which such evidence is insufficient. The objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Holcomb et al v. Keliher, Tr, 3 S. D. 497, 54 N. W. 535; Hidden v. Jordan, 28 Cal. 312. Exceptions Disregarded. This court will disregard excep- tions contained in the bill of exceptions, and so would the court below on motion for new trial, as none of the errors in the bill have been particularly specified. Gould v. Duluth & Dak. Elevator Co., 2 N. D. 216, 50 N. W. 969; CODE OF CIVIL PROCEDURE. sec. 5090, Comp. Laws, subd. 3. Statement of Case Insufficient Incur- able. Treating the record in question as a statement of the case and not a bill of exceptions, it failing to specify errors of law relied on, and failing to specify particulars wherein evidence is insufficient, the trial court rightly denied the motion for new trial; and these omissions are not cured by as- signment of errors in this court. Billingsley et al v. Hiles et al, ---- S. D. . . ., 61 N. W. 687; Haynes, New Tr. & App. sec. 149, et seq. SUBDIVISION 4, On Minutes. Specifications Nothing- For Review. Where the motion for a new trial was made upon the minutes of the court, the notice of intention assign- ing errors in law, but making no specifications, as required by subdivision 4, there is nothing for review in this court except the sufficiency of the evi- dence to justify the verdict. Bauder v. Schamber, . . . . S. D ..... , 63 N. W. 227. When Only Statutory Statement Required. The notice of intention, except when the notice is upon the minutes of the court, is only required to state generally "the statutory grounds upon which the motion will be made;" but a bill of exceptions or statement on motion for a new trial, used on appeal, must specify the particular grounds upon which the moving and appealing party will rely. Chandler v. Kennedy, . . . . S. D ..... , 65 N. W. 439. VERDICT VACATED ON COURT'S MOTION. 5091, Comp. Laws; 5475, Rev. Codes, N. D. The verdict of a jury may also be vacated, and a new trial granted by the court in which the action is pending, on its own motion, without the applica- tion of either of the parties, when there has been such plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the \rerdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice. Sec. 289 C. C. P.; Levisee, p. 86; Harst. Pr., Deer. Code, I 662. Consult decisions under subd. 1, 2, and 5, of sec. 5088, Comp. Laws; sec. 5472, Rev. Codes, supra. Vacating of Without Authority No Application. Where no notice of intention was served, and service thereof was not waived, and a motion for judgment on the verdict was served by plaintiff, which motion was de- nied, in the order denying which motion the verdict was set aside, and a new trial granted; field, that the order vacating the verdict was without' authority of law, and is reversible error; no application for a new trial hav- ing been made by either party. Gould v. Duluth & Dak. Elevator Co., 2 N. D. 216, 50 N. W. 969; Hayne New Tr. & App., sees. 10, 11, pp. 50, 51. Clear Disregard of Instructions Passion or Prejudice. A verdict of a jury, to which neither party has objected, should only be vacated on APPLICATION WHEN HEARD PAPERS. 183 the court's own motion, where there has been such clear disregard of the instructions or evidence that the court is at once satisfied without mature reflection or the aid of argument that the verdict is the result of passion or prejudice, or was rendered under a misapprehension of the court's instruc- tions; and the order should be made promptly upon the coming in and entry of the verdict. Clement v. Barnes, S. D , 61 N. W. 1126; Gould v. Elevator Co,, 2 N. D. 216, 50 N. W. 969; Hayne New Tr. & App., sec. 10, 11. The court in Clement v. Barnes, supra, quote with approval the follow- ing language of the court in Gould v. Elevator Co., supra: "In this state, and in the late territory, the instances of vacating verdicts and granting new trials without application of the parties have been exceedingly rare, and no such summary action should be taken except in cases falling clearly within the statute, and then the order should be made promptly on coming in of the verdict." And the following language is quoted approvingly from Hayne on New Tr. & App., sec. 10: "With respect to verdicts, the better opinion seems to be that the judge can grant a new trial of his own motion only at the time the verdict is rendered, * * * as the statute gives the power in those cases only in which the error of the jury is so gross as to be at once apparent, and requires the court to exercise it as soon as the verdict is rendered." APPLICATION WHEN AND WHERE HEARD NOTICEPAPERS. 5092 Comp. Laws; 5476 Rev. Codes, N. D. The application for a new trial shall be heard at the earliest practicable period after service of notice of intention, if the motion is to be heard upon the minutes of the court, and in other cases, after the affi- davits are served or the bill of exceptions or statement, as the case may be, is filed, and may be brought to a hearing in open court or before the judge at chambers, in any county in the dis- trict in which the action was tried, by either party, upon notice of eight days to the adverse party, specifying the time and place of hearing. On such hearing reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions, documentary evidence and stenographic report of the testimony on file. (Sec. 7, chap. 21, Laws 1887, Dak.) [Sec. 5476, Rev. Codes, N. D. , is the same, except that the words "or the bill of exceptions or statement, as the case may be," are substituted by the term "or the statement of the case." (As am'd, Rev. Com'rs.)] Harfet. Pr. Deer. Code, sec. 660. 184 CODE OF CIVIL PROCEDURE. Consult sec. 5090, Comp. Laws, sec. 5474 Rev. Codes N. D. and decisions thereunder. [Sec. 290 C. C. P. relating to hearing the motion before a trial judge ivsiilinjr in another county than that in which the trial was had, in the county of his residence, is understood to have been repealed by the Act of Notice of Intention, and of Motion, United Time. It is bad prac- tice to unite in the same instrument notice of intention to move and notice of motion for a new trial. Anderson v. First Nat. Bank of Grand Forks, ---- N. D ..... , 64 N. W. 114. In this case the court say: "It was urged on the argument that the order denying the motion for a new trial should be af- firmed, for the reason that it appears that the notice of intention to move for a new trial was not served within the statutory time. But an examina- tion of the record satisfies us that the time in which to serve such motion was extended by the court, and that the notice was served within the time as so extended. Nor do we think.there is any force in the contention that the paper so served was not a notice of intention. It is true that it was bad in form, in that it embodies a notice, not only that plaintiff intended to move for a new trial on the grounds therein stated on a statement of the case, but that he would bring his motion for such new trial on to a hearing at a speci- fied time and place. The notice of intention and the notice of motion are two distinct and utterly different notices, and it is not good practice to em- brace both elements in one paper. Sections 5090, 5092, Comp. Laws. The notice of intention should not state when and where the motion for a new trial will be heard. As a general rule, the person who desires to make such motion is not in position to notice his motion for a hearing at the time he serves his notice of intention, for it often happens that at that time the bill or statement has not been settled." Neither a Bill nor Statement No Notice of Settlement. In Wood v. Nissen, 2 N. D. 2H, 49 N. W. 103, upon an appeal from a judgment, it was held, where no proposed bill of exceptions or statement of case was ever served, and no notice given stating the time and place when and where a bill or statement would be presented to the trial court for settlement and allowance, and no order was made by the trial court purporting to settle or allow one; and where no attempt was made in the transcript to specify er- rors of law, or to indicate wherein the evidence is insufficient to justify the findings of fact, but where, after the appeal, a transcript of proceedings at the trial, embracing the stenographer's transcript of evidence, was annexed to the judgment roll by order of the trial judge and sent up as part of the record; that such transcript is neither a bill of exceptions nor a statement of the case, and constitutes no part of the judgment roll. Citing Harper v. Minor, 27 Cal. 107; Hutton v. Reed, 25 Cal. 479. [AUTHOR'S NOTE. The following California decisions, bearing upon a somewhat similar section of the Code of that state (sec. 660, cited supra), are cited as bearing upon the section under consideration.] APPLICATION WHEN HEARD PAPERS. 185 Due Diligence Dismissal. If the motion is not prosecuted with due diligence, it should be dismissed. Eckstein v. Calderwood, 27 Cal. 413. Statement After Time Dismissal. Where the statement was not served in time, an order dismissing a motion for a new trial was sustained. Chase v. Evoy, 58 Cal. 348. See, further, as to dismissing the motion for writ of prosecution, Liquore v. Mariscaus, 11 Pac. C. L. J. 56; People v. Center, 6 Cal. 191. Rule of Court. A rule of court that a motion for a new trial must be brought to hearing within thirty days after the trial cannot be up- held. Warden v. Mendocina Co., 32 Cal. 655 (658). Delay Discretion. The question of delay is largely in the discretion of the. court below, and un- less there is clearly abuse it will not be interfered with. Boggs v. Clark, 37 Cal. 237; Chavot v. Tucker, 39 Cal. 435; Hopkins v. R. R. Co., 44 Cal. 389. Terms Costs. Equitable terms may be imposed upon granting a new trial. Rice v. Gashirie, 13 Cal. 54; such as payment of costs: Sherman v. Mitchell, 46 Cal. 577; Cordor v. Morse, 57 Cal. 301; or unless plaintiff will remit some portion of his demand: Gillespie v. Jones, 47 Cal. 264; Dreyfus v. Adams, 48 Cal. 132; Gregg v. R. R. Co,, 59 Cal. 312. Where costs are imposed as such terms, accepting the same is not a waiver of right of appeal. Tyson v. Wells, 1 Cal. 379. Order Dismissing Motion, Appealable. An order dis- missing a motion for a new trial for want of prosecution, is regarded as an order denying the motion, and appealable as such. Voll v. Hollis, 60 Cal. 569; Warden v. Mendocino Co., 32 Cal, 655. Sec. 5093, Comp. Laws; 5477, Rev. Codes, N. D. The court or judge may, upon good cause shown, in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done. (Sec. 8, chap. 21, Laws 1887, Dak. ) [Sec. 5477, Rev. Codes, N. D., is the same, except that where sec. 5093 refers to sec. 5083, Comp. Laws, the N. D. section refers to sec. 5467, Rev. Codes, and where the former refers to sec. 5090, Comp. Laws, the latter re- fers to sec. 5474, Rev. Codes. (As Am'd, Rev. Com'rs.)] Consult sees. 5090, 5092, Comp. Laws, sec. 5474, 5476, Rev. Codes, N. D., and decisions thereunder. Section Construed Judicial Discretion Record. In Moe v. North. Pac. R. Co., 2 N. D. 282. 50 N. W. 715, this section is construed; and it is held, that the authority therein conferred to extend the time and settle bills of exception and statements after the statutory periods therefor have ex- pired is not an absolute, non-reviewable discretion, but is a sound judicial discretion, exercisable only upon the conditions named in the statute i. e., "upon good cause shown in furtherance of justice." Where the cause shown is upon the record in the court below, and objection to the action of the 186 CODE OF CIVIL PROCEDURE. court below in settling the bill or statement is properly made, this court, upon a motion to purge its records, will review the cause shown; and if in the opinion of this court good cause was not shown for settling the bill or statement after time, such motion will be granted, and the bill or statement stricken out. Id. Delay Misconstruction of Law. In Moe v. Northern Pac. R. Co., supra, the bill was not settled, nor sought to be settled for nearly four years after verdict; the only excuse offered for plaintiff's laches and default, and for extending the time, being that "Such error was occas- ioned by opponent's misconstruction of the law in relation to bills of excep- tion upon appeal to the supreme court." Held, that this is not "good cause shown," within the meaning of this section. Ignorantia legis non excusat. Citing Welch v. County Court (W. Va.), 1 S. E. 337. Ex Parte Extension of Time Presumption. Where the district court by ex parte orders duly served, enlarged the time for settling a bill, no reason being brought upon record for granting such orders, respondent's counsel objecting to the settlement, held, such orders were such as the court had authority to make ex parte, and were prima facie valid. Nothing ap- pearing to the contrary, this court will assume that they were based upon a proper showing. Johnson v. North. Pac. R. Co., 1 N. D. 354, 48 N. W. 227. In this case the decisions in various other states, in holding otherwise, are held to be not in point, being based upon statutes which, either in terms or by implication, inhibit such action being taken after the time limited bylaw has expired. Order Settling. Operates to Extend Jurisdiction Pre- sumption. After the time granted for settling a bill had expired, the dis- trict court, without making an order extending time, and against objection, settled and allowed the bill. Held, not error. The order of settlement op- erated to extend the time until date of actual settlement; that it is within the power of the court under the Code, either to enlarge time, or allow an act to be done after the time limited by the Code. Comp. Laws, sees. 4939, 5093. That under the statutes, settling bills of exception and statements, and giving notice of intention to move for a new trial, are not jurisdictional in nature. That until the time for appeal has expired, all steps leading up to and including motion for new trial may, after statutory time has elapsed, be taken at any time allowed by the sound judicial discretion of the trial court. This court will presume such discretion is properly exercised in all cases unless the contrary appears. Johnson v. North. Pac. R. Co., 1 N. D. 354, 48 N. W. 227; Volmer v. Stagerman, 25 Minn. 244; 4 Wait's Pr. 595. Notice of Intention Too Late Constructive Extension. The fact that notice of intention is not served within the statutory time is not good ground for dismissing the appeal, but might preclude this court from re- viewing any question of sufficiency of the evidence, which can only be re- viewed after a motion for a new trial has been made and determined. In this case, however, it appears from the abstracts that a motion was made APPLICATION WHEN HEARD WHAT PAPERS. 187 by the respondent in the court below to strike from the files the appellant's amended and substituted notice of intention, on the ground that it was served too late. That court denied the motion, and granted the appellant further time in which to move for a new trial. This in effect was an exten- sion of time, or the fixing of a new time, under sec. 5093, Comp. Laws, 'which confers upon the trial court the power to grant such extension or fix another time, upon good cause shown. McKittrick v. Pardee, S. D. . . . . , 65 N. W. 23; Johnson v. R, R. Co. 1 N. D. 354, 48 N. W. 227. Bill of Ex- ceptions Too Late Presumptive Extension. In Gade v. Collins et al, S. D , 66 N. W. 466, in passing upon the question of the scope of the review of the case in the supreme court, and in considering the objec- tion that the bill of exceptions was not served and settled within the statu- tory period, the court holds that the objection is not good in that case, "for the reason that it does not affirmatively appear that the time within which said notice of intention and bill of exceptions could be served was not extended, or another time fixed, as provided by sec. 5093,. Comp. Laws." That when it is not affirmatively shown that no such extension has been granted, or another time fixed, as provided by the statute, this court will presume that the court below proceeded regularly and according to the statute; citing Johnson v. R. R. Co., 1 N. D. 354, 48 N. W. 227. Incomplete Record- Remedy After Appeal Trial Judge. In Foley-Wadsworth Implement Co. v. Porteous, S. D , 63 N. W. 155, the court, in holding that the record there before it was not complete as to the evidence, and that the proper practice is to bring the fact of such omission to the appellate court by motion, on affidavits or the certificate of the judge of the court making the order appealed from, refer to the remedy of appellant, and say: "We feel inclined to permit appellant to perfect his record if he can, by procur- ing a bill of exceptions to be settled by the judge, containing the oral evi- dence given on the hearing. We have recently held in mandamus proceed- ings that a bill of exceptions may be settled by the judge after an appeal is perfected. We presume that, in view of the unsettled practice heretofore in such matters, the judge who tried this motion in the court below will be inclined to exercise the power conferred upon him by section 5093, Comp. Laws. Must Be "Good Cause Shown." Neither the trial court nor the judge thereof is authorized to extend the time for serving and settling a bill of exceptions or a statement, or to fix another time in which the same may be served and settled after the statutory and extended time has expired, ex- cept by consent of the adverse party or for "good cause shown." McGilly- cuddy v. Morris et al, S. D , 65 N. W. 14; Johnson v. R. R. Co., 1 N. D. 354. 48 N. W. 227; Moe v. R. R. Co., 2 N. D. 282,50 N. W. 715. . BILL OR STATEMENT USED ON APPEAL CONTENTS OF. 5094, Comp. Laws. A bill of exceptions or statement of the case used upon the hearing of a motion for a new trial, or a CODE OF CIVIL PROCEDURE. bill of exceptions prepared as provided in section 5083, or a statement of the case, prepared after judgment in the manner provided in section 5090, and within the same time after judg- ment as is allowed for the preparation of a bill of exceptions, may be used on appeal from the final judgment; such statement. shall only contain the grounds argued before the court for a new trial, and so much of the evidence or other matter as may be necessary to explain them, and it shall be the duty of the judge to exclude all other evidence or matter from the state- ment. (Sec. 9, chap. 21, Laws 1887, Dak.) SAME. 5478 Rev. Codes N. D. A statement of the case settled as provided in section 5467, whether the same is used upon a motion for a new trial or not, may be used on appeal from the final judgment. (As Am'd, Rev. Com'rs. ) Consult sec. 5090, 5081, Comp. Laws; sec. 5464, 5474, Rev. Codes, N. D. and decisions thereunder. For appeals, see sec. 5213, Comp. Laws; sec. 5603, Rev. Codes, N. D. et seq. Review of Errors Without Motion For New Trial, When. Where the rulings complained of were preserved in a bill incorporated with the judgment record, but no motion for a new trial was made, this court will, on appeal from the judgment, review alleged "errors of law occurring at the trial," appearing of record, without motion for a new trial below. Sec. 5094, Comp. Laws, indicates that a bill of exceptions not used on mo- motion, for new trial may be used on appeal from a final judgment. San- ford v. Duluth & Dak. Elevator Co. (or Sanford v. Bell et al), 2 N. D. 6, 48 N. W. 434; Cravens v. Dewey, 13 Cal. 42; Walls v. Preston, 25 Cal. 61; Don- ahue v. Gallavan, 43 Cal. 576; Caldwell v. Parks, 47 Cal. 642; Levy v. Getle- son, 27 Cal. 685; Hayne New Tr. & App. p. 311, sec. 112. Transcript After Appeal Judgment Boll. Where, after appeal from judgment, a trans- cript of proceedings at the trial, embracing the transcript of the evidence, was annexed to the judgment roll on the court's order, and sent to this court as part of the record, but no bill or statement served or settled, or at- tempted to be settled, no specifications of error appearing in the transcript, held, such transcript is neither a bill of exceptions nor a statement of case, and is no part of the judgment roll; and no error appearing upon the face of the record proper, the judgment below is affirmed. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Harper v. Minor, 27 Cal. 107; Button v. Reed, 25 Cal. 479. Certified Record Under N. D. Law Purging Record. Upon an appeal from an order denying a new trial, the motion for a new trial hav- ing been heard in part upon certain papers and documents which, on ap- OF APPEALS IN CIVIL ACTIONS. 189 peal, have been properly identified by the judge] and "certified^by^the clerk of the district court, a motion to purge the record of such papers and docu- ments because same are not authenticated by bill or statement, cannot be sustained. Under sec. 5, chap. 120, laws 1891, N. D., no bill or statement is inquired to bring such papers and documents be fore the court. Goose River Bank v. Gilmore, et al, 3 N. D. 188, 54 N. W. 1032; Bailey v. Scott, 1 S. D. 337, 47 N. W. 286. Error Not Made Ground For New Trial. An assign- ment of error that the verdict is not sustained by the evidence, which al- leged error was not made ground upon which new trial was asked, is not available on appeal, no specification of particulars in which the evidence is claimed to be insufficient appearing of record. Prye et al v. Ferguson, .... S. D , 61 N. W. 161. CHAPTER IX. OF APPEALS IN CIVIL ACTIONS. APPEALS TO SUPREME FROM CIRCUIT COURT WHEN. 5213 Comp. Laws. Appeals to the supreme court may be taken from the circuit courts when no other court of appeal is provided by law. (Sec. 1, chap. 20, Laws 1887, Dak.) SAME FROM DISTRICT COURT. 5603 Rev. Codes N. D. A judgment or order in a civil action or in a special proceeding in any of the district courts may be removed to the supreme court "by appeal as provided in this chapter and not otherwise. (Sec. 1, chap. 120, Laws 1891, N. D. ) Rev. Stat. Wis. 1878, sec. 3047; Wait's Code sec. 323; Harst Pr., Deer. Sec. 403 C. C. P.; Levisee p. 118. Consult the next'three sections and decisions thereunder. Also consult sections 4819, 4820, Comp. Laws, section 5165 Rev. Codes N. D., at commencement_of Chap. 10. Past. Constitutional Provisions. Sec. 2, art. 5, of the Constitution of South Dakota and sec. 86, Constitution of North Dakota, contain the following pro- vision: "The supreme court, except as^otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law," Sec. 87, Constitution of North Dakota, is as follows; 190 CODE OF CIVIL PROCEDURE. "It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall Imvt! authority to hear and determine the same; Provided, however, that no jury trials shall be allowed in said supreme court, but in proper cases questions of fact may be sent by said court to a district court for trial." Sec. 3, art. 6, Constitution of South Dakota, is as follows: "The supreme court and the judges thereof shall have power to issue writs of habeas corpus. The supreme court shall also have power to issue writs of mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same in such cases and under such regulations as may be prescribed by law; Provided, however, that no jury trials shall be allowed in said supreme court, but in proper cases questions of fact may be sent by said court to a circuit court for trial before a jury." (a) Jurisdiction Primarily Appellate. The jurisdiction conferred upon the supreme court by the constitution is primarily appellate, and that of exercising a superintending control over all inferior courts. Everitt v. Board County Corn's Hughes Co. et al, 1 S. D. 365, 47 N. W. 296. Sections 86 and 87, Constitution N. D., vests in this court First, appellate jurisdic- tion; second, general superintending control over inferior courts; third, power to issue the writs specified, not only in furtherance of other jurisdic- tion, but also in the exercise of original jurisdiction; fourth, authority to issue such other original and remedial writs as may be necessary to the proper exercise of the jurisdiction vested in this co*urt. * * * The grant of appellate jurisdiction, and of the power of superintending control, carries with it all writs necessary to the proper exercise of such jurisdiction and of such power. State ex rel Moore v. Archibald, N. D , 66 N. W. 234; Attorney General v. Chi. & N. W. R. Co., 35 Wis. 425, 515; Marbury v. Madison, 1 Cranch 137; Wheeler v. Irrigation Co., 9 Col. 248, 11 Pac. 103. Judgments and Court Orders Appealable. In Commercial Nat. Bank v. Smith, 1 S. D. 28, 44 N. W. 1024, in dismissing an order there involved, as not appealable, the court say: "The statute authorizes appeals from judgments or orders of the court only. Sections 5213, 5236, Comp. Laws." Penalty Municipal Ordinance. An action to recover a penalty prescribed by municipal ordinance, not made a criminal act by the general law of the state, but forbidden by such ordinance, is a civil action, and may be brought to this court by appeal. City of Sioux Falls v. Kirby, S. D , 60 N. W. 156; City of Huron y. Carter, 5. S. D. 4, 57 N. W. 947. Common Law and Chancery Territorial Courts. The supreme and district courts of this territory possess common law as well as chancery jur- isdiction, and may, and their judges may grant writs of habeas corpus in all cases, and in similar manner, in which they are granted by the federal OF APPEALS IN CIVIL ACTIONS. 191 courts and judges. U. S. ex rel Scott v. Burdick, marshal, 1 Dak. 137, 46 N. W. 571; Kendall v. U. S., 12 Pet. 624; Decatur v. Paulding, 14 Pet. 601; U. S. v. Williams, 4 Cr. C. C. 376. (b). Habeas Corpus. Fine by Justice Jurisdiction. On application to this court for writ of habeas corpus, where petitioner was convicted in justice's court of a mis- demeanor, and fined, and in default of payment of which it was adjudged that he be imprisoned in the county jail, held, that so much of the judgment as provided that defendant stand committed until the costs be paid was un- authorized. In re Lackey, S. D , 62 N. W. 134. Showing of No Evidence Below Appeal. Where the district court ordered a corporation to convey its realty to a receiver appointed by that court, and for refusal to convey which property its president was adjudged in contempt, and commit- ted to jail, on habeas corpus to this court, held, that defendant could not show that the district court had before it in the contempt proceeding no evi- dence "legal or sufficient" to prove that he was president of the corporation, or that he as such had power to execute the conveyance. Such error can be reviewed only on appeal where the contempt proceeding is civil in its, char- acter, as was this proceeding; the showing offered to be made only going to the point that the court below made an erroneous decision on questions of fact, not that it was without jurisdiction; the original jurisdiction of this court being invoked in this case. State ex rel Mears v. Barnes, sheriff, N. D. .. ., 65 N. W. 688; Church Hab. Corp. p. 451; In re Rosenberg (Wis.), 63 N. W. 1065; People v. Liscomb, 60 N. Y. 570; ex parte Perkins, 18 Cal. 64; Forrest v. Price, (N. J. Ch.) 29 Atl. 218: State v. Houston (La.), 4 South. 131; Ex Parte Perdue (Ark.), 24 S. W. 423. (c). Mandamus. Constitution Enlarges Jurisdiction When Exercised. The clause in art. 5, sec. 2, Constitution of this state, providing that the supreme court "shall have a general superintending control over all inferior courts, under such rules and regulations as shall be prescribed by law," materially en- larges the ordinary appellate jurisdiction conferred upon reviewing courts; and authorizes this court, by mandamus, to control and correct proceedings of an inferior court where the action complained of exceeds the jurisdic- tional powers of such court, or there has been manifest abuse of discretion, and where the case is urgent, and an appeal will not afford an adequate rem- edy, and the circumstances of the case are such as to require an immediate review of the proceedings; and includes the power to review proceedings of such court, and to determine whether the case is a proper one for exercise of the authority vested in this court. City of Huron v. Campbell, Cir. Judge, 3 S. D. 309, 53 N. W. 182;- State v. Judge, 36 La. 578; State v. Judge, 31 La. 794; R. R. Co. v. Cir. Judge, 44 Mich. 479, 7 N. W. 65; Railway Co. v. Judge of St. Clair Circuit, 31 192 CODE OF CIVIL PROCEDURE. Mich. 456; Git}' of Detroit v. Judge, 79 Mich. 384, 44 N. W. 622. Proceeding- Not Pending Before District Judge. In a mandamus pi'oceed- ing in this court, petitioned for as against a district judge, licld, that the writ should be quashed, it appearing that the motion for new trial, which it had directed said judge to decide, was not pending before him for decision. State ex rel N. P. R. Co. v. Judge of Dist. Court of Stutsman Co., 3 N. D. 43, 53 N. W. 433. Stay on Appeal By Corporation. Judgment against a county having been affirmed by Territorial Supreme Court, and an appeal taken to Federal Supreme Court, but no stay of execution procured, this court in exercise of its discretion in mandamus cases, will regard the policy of this jurisdiction, that an appeal to a state court by a municipal corpora- tion shall operate as a stay without an undertaking, and in effect give the stay by withholding mandamus to compel levy of a tax to pay the judg- ment until final decision in the federal court. Territory ex rel Wallace et al v. Woodbury et al, 1 N. D. 85, 44 N. W 1077; U. S. v. County Court, 122 U. S. 306, 7 Sup. Ct. 1171 and cases cited; Comp. Laws, sec. 5229; High Extr. Rem., sec. 9; Devereaux v. City of Brownsville, 29 Fed. 742-751. Discretion Caprice. The granting or withholding of writ of mandamus rests in a measure in the discretion of the court, but that discretion may not be capriciously exercised. Territory ex rel Wallace et al v. Wood- bury et al, 1 N. D. 85, 44 N. W. 1077; High Extr. Rem. sec. 6, 9; People v. Common Council, 78 N. Y. 56-61. (d). Certiorari. No Other Remedy. On application to this court for writ of certiorari against a board of county commissioners, held, under sec. 5507, Comp. Laws, that there is no writ of error, appeal, nor other plain, speedy, and adequate remedy in this case, and that a writ of certiorari properly issued. State ex rel Dollard, attorney general, v. Board of Co. Com'rs Hughes Co. et al, 1 S. D. 292, 46 N. W. 1127; Waterworks Co. v. Hughes Co., 5 Dak. 145, 37 N.W. 733. Has Jurisdiction to Issue Writ. In State ex rel Dollard, attorney general, v. Board of Co. Com'rs Hughes Co. et al, 1 S. D. 292, 46 N. W. 1127, the court say, after quoting sees. 2 and 3, art. 5, Const. S. D.: "The su- preme court, while thus primarily and generally an appellate court, has un- doubted jurisdiction to issue this writ of certiorari,"' etc. Restitution of Property. On certiorari this court has power to order restitution of everything taken from the relator under the void proceeding which is annulled herein. State ex rel Enderlin State Bank v. Rose, Dist. Judge, 4 N. D. 319, 58 N. W. 514; Peacock v. Leonard, 8 Nev. 247; Arrow- smith v. Vandersdale, 21 N. J. Law 471; Ex parte Shotwell, 10 Johns. 304; 2 Spelling Ex. Rel., sec. 2042, 2044; Duncan v. Kilpatrick, 13 Serg. & R., 294; Flemings v. Riddick, 5 Grat. 272; Heabler v. Myers, 132 N. Y. 363, 30 N. E. 963; Ex parte Morris, 9 Wall. 605; Elliott App. Proc., sec., 584; Kennedy v. Haner, 19 Cal. 374; Harlan v f Scott, 2 Scam. 65; Perry v. Tuper, 71 N. OF APPEALS IN CIVIL ACTIONS. 193 C. 385; Lee Chuck v. Quan Wo Chonk, 81 Cal. 222, 22 Pac. 594. Order Not in a Proceeding Void. Property having been attached in hands of an as- signee for benefit of creditors, the district judge made an order directing the sheriff to surrender possession thereof to the assignee on the theory that the property was in custody of the court. Such order was not made in any action or special proceeding pending in court; was granted upon a mere af- fidavit of the assignee, without hearing the sheriff or plaintiff in attach- ment, and without notice to them. Held, the order was absolutely void and should be set aside on certiorari. Party Beneficially Interested. Held, further, that plaintiff in the attachment suit was the person beneficially in- terested, and could therefore sue out the writ. State ex rel Enderlin State Bank v. Rose, Dis. Judge, 4 N. D. 319, 58 N. W. 514; Farmer v. Cobban, 4 Dak. 425, 29 N. W. 12; Wright v. Lee, 4 S. D. 237, 55 N. W. 931; Adler v. Ecker, 2 Fed. 126; Lapp v. VanNorman, 19 Fed. 406; Lesher v. Getman, 28 Minn. 93, 9 N. W. 585; Lehman v.. Rosengarten, 23 Fed. 642; (party bene- ficially interested) People v. Andrews 52 N. Y. 445, Palmer v. Cir. Judge, (Mich.) 47 N. W. 355; Town of Hillsboro v. Smith (N. C ), 14 S. E. 972; Hart v. Scott, 50 N. J. Law, 585, 15 Atl. 272; Staates v. Inhabitants of Washington, 44 N. J. Law 605; Dexter v. Common Council (R. I.), 21 Atl. 347; Miller v. Jones, 22 Cent. Law J., 397; Campau v. Button, 33 Mich. 525. Not an Adequate Remedy. Held, further, that the right of the plaintiff to hold the sheriff responsible for the property attached, for the reason that he could not justify surrender of the property under a void ^jrder, was neither an adequate remedy nor a speedy remedy, under sec. 5507, Comp. Laws; held, further, that such remedy against the sheriff is no remedy un- der that section, because the remedy therein referred to is one which, like an appeal or writ of error, will enable the relator to annul the proceed- ing complained of as void. State ex rel Enderlin State Bank v. Rose, Dist. Judge, 4 N. D. 319, 58 N. W. 514; Starr v. Trustees, 6 Wend, 564; People v. Judges of Suffolk Co., 24 Wend 249; 2 Spelling Extr. Rel., sec. 1911 and cases cited; Cal. Pac. R. Co. v. Cent. Pac. R. Co., 47 Cal. 528; LeGrand v. Fairall (la.), 53 N. W. 115; Ins. Co. v. Duffie (la.), 25 N. W. 117. (e). Review Errors of Law Without Motion for New Trial. On appeal from a judgment this court will review alleged "errors of law occur- ring at the trial," and appearing in a bill of exceptions, without a motion for a new trial in the court below. Sanford v. Bell et al, (or Sanford v. Du- luth & Dak. El. Co.), 2 N. D. 6, 48 N. W. 434; Cravens v. Dewey, 13 Cal. 42; Walls v. Preston, 25 Cal. 61; Donahue v. Gallavan, 43 Cal. 576; Caldwell v. Parks, 47 Cal. 642; Levy v. Getleson, 27 Cal. 685; Hayne New Tr. & App. p. 311, sec. 112; Nichols v. Bruns, 5 Dak. 28, 37 N. W. 753. Judgment Before Motion for New Trial Review. An appeal from a judgment only, that is entered before a new trial is applied for, presents for review errors of law 13 TP 194 CODE OP CIVIL PROCEDURE. brought to this court by bill of exceptions. Baird et al v. Gleckler, S. D 64 N. W. 118; Jones Lum. & Mer. Co. v. Faris, 5 S. D. 348, 58 N. W. 813; Barnard & Leas Mf'g Co. v. Galloway et al, 5 S. D. 205, 58 N. W. 5(55; Pierce v. Manning, 2 S. D. 517, 51 N.W. 332; Miller v. Way, 5 S. D. 468, 59 N. W. 467. Judgment Inconsistent With Complaint - Dismissal. Whore a complaint states a cause of action equitable in character, with a prayer for an accounting with numerous persons charged in a fiduciary capacity, a judgment at law entirely inconsistent therewith, established by evidence against one defendant only, for damages for breach of contract, to pay a stip- ulated sum of money, cannot be entered, and the complaint will be dismissed. Anderson v. Chilson et al S. D , 65 N. W. 435; Dal ton v. Vander- veer (Sup.), 29 N. Y. Supp. 342; Parrish v. B. R. Co. (Fla.), 9 South. 696; Lewark v. Carter (Ind. Sup.), 20 N. E. 119; Bradley v. Aldrich, 40 N. Y. 504; Homer v. Homer, 107 Mass. 82; Park v. Lide; 90 Ala. 246, 7 South. 805; 18 Am. & Eng. Ency. Law, p. 515. WRIT OF ERROR UNNECESSARY WHAT REVIEWED PARTIES. 5214 Comp. Laws. No writ of. error shall be necesary to bring up any judgment for review before the supreme court, but any judgment or any order defined in section 5236 may be reviewed upon an appeal by the party aggrieved. The party appealing is called the appellant; the other, the respondent. (Sec. 2, chap. 20, Laws 1887, Dak. SAME PARTIES ON APPEAL 5604 Rev. Codes N. D. The party appealing is known as the appellant and the adverse party as the respondent, but the title of the action is not to be changed in consequence of the appeal. (Sec. 2, chap. 120, Laws 1891, N. D. Rev. Stat. Wis. 1878, sec. 3048. Sec. 405 C. C. P.; Levisee p. 118; Wait's Code, sees. 323, 325, 11; Harst. Pr. sees. 936, 938. Consult sees. 5236, 5237, 5238, Comp. Laws; sees. 5626, 5627, 5628, Rev. Codes, N. D. 1. "Any Judgment" Insertion of Costs. In the case of Williams v. Waite, 2 S. D. 210, 49 N. W. 209, the term "any judgment," used in this section, is construed, in connection with sec. 5024, Comp. Laws, defining a judgment; and it was held, that a judgment is appealable although the costs below have not been taxed and inserted in the entry of the judgment ap- pealed from; citing Stimson v. Huggins, 9 How. Pr. 88; Cord v. Southwell, 15 Wis. 216; Richardson v. Rogers, 37 Minn. 463, 35 N. W. 270; Adams v. Smith, 6 Dak. 94, 50 N.W. 720; Champion v. Board of Co. Com'rs, 5 Dak. 416, 41 N. W. 739. Judgment- License of Attorney Appeal. In the case OF APPEALS IN CIVIL ACTIONS. 195 of Ih re Houg-hton, 5 S. D. 537, 59 N. W. 733, in holding that the appeal there involved, being one under sec. 477, Comp. Laws, from a judgment re- voking the license of an attorney, came within the general statute requiring appeal within two years after perfection of judgment, the court say: "The statute, commencing with section 5213, Comp. Laws, provides how and with- in what time 'any judgment' may be taken by appeal from the district (cir- cuit) to the supreme court for review." [AUTHOR'S NOTE The cases cited below under this section, although nearly or quite all of them appear under the chapter on "New Trials," su- pra, are here cited, as they are cases of appeals from judgments and orders where the question of new trial was not involved.] 2. Generally. Stable Keeper's Lien Temporary use of Horse. The lien given to a stable keeper by sec. 5486, Comp. Laws, is not lost, even as to an attaching creditor, because the horse is temporarily in the possession of the owner when levied on, who is using it in the usual manner ; it being the purpose of the owner to return the horse to the stable as soon as he finishes his tem- porary use of it; the arrangement under which the horse is being boarded being still in existence at the time of the levy. Welsh v. Barnes, sheriff, .... N. D , 65N. W. 675; Walls v. Long (Ind. App.), 28 N. E. 101; Caldwell v. Tutt, 43 Am. Rep. 307; State v. Shevlin, 23 Mo. App. 598; Young v. Kimball, 23 Pa. St. 193. Percolating 1 Water Ownership Presumption. Water percolating through the soil or coming to the surface in a spring belongs to the owner of the soil in such a sense and to such an extent that he is entitled to the exclusive right to use and dispose of the same. Metcalf v. Nelson, S. D ,65 N. W. 911; Comp. Laws, sec. 2771; Wilson v. City of New Bed- ford, 108 Mass. 265; Roath v. Driscoll, 20 Conn. 533; Village of Delhi v. Youmans, 45 N. Y. 362; Frazier v. Brown, 12 Ohio, St. 294; City of Emporia v. Soden, 25 Kan. 588; R. R. Co. v. Dufour, 95 Cal. 615, 30 Pac. 783; Clark v. Conroe, 38 Vt. 469; Taylo'r v. Fickas, 64 Ind. 167. It will be presumed that a natural spring of water is formed by the ordinary percolation of water in the soil. Metcalf v. Nelson, ....S. D , 65 N. W. 911. Han- son v. McCue, 42 Cal. 303; Elster v. City of Springfield (Ohio Sup.), 30 N. E 278; Swett v. Cutts, 50 N. H. 439. Taxation Unorganized County Situs. Under sec. 1557, Comp. Laws, personal property situated, kept and owned in the unorganized coun- ty of Piatt in the year 1893 was subject to taxation for state purposes in Stanley county, being the nearest organized county. Dupree v. Stanley Co. et al S. D , 65 N. W. 426; Farris v. Vannier, 6 Dak. 186, 42 N. W. 31. Dog Tax -Civil Township CreditedCounty. Under chap. 121, laws 1889, as amended by chap. 149, laws 1890, an organized civil township is entitled to credit for the amount of the "dog tax" collected in 196 CODE OF CIVIL PROCEDURE. such township under said law, notwithstanding the entire county may not be organized into civil townships. Liberty Tp. v.. Hutchinson Co., S. D , 64 N. W. 1117; and where the county board and the treas- urer refuse to allow such amount to be credited or paid over to the township entitled to it, and resist an action therefor on the ground only that the county, and not the township, is entitled to the same, judgment for the amount so collected is properly rendered in favor of the township and against the county. Id. In such action the county cannot raise the ques- tion cf the constitutionality of the act authorizing the tax, for, having col- lected the money, it would not be relieved of its obligation to account for it because the law under which it was collected was invalid. Id. Ability to Pay Debts Presumption. The presumption, in absence of anything to the contrary, is that men are able and willing to pay in due course of business their just debts at maturity. Kelsey v. Welch et al,. . . . S. D , 66 N. W. 390; 1 Rice Ev. 68, 96. 3. Pleadings. (a). Order of Arrest Complaint. To authorize an order of arrest, the plaintiff must, in his complaint and affidavit, where the cause of arrest is identical with the causeof action, state facts which will, prima facie, justify the making of the order; complaint and order in this case examined, and held, insufficient to sustain the order of arrest. Hart v. Grant, S. D. ...., 66 N. W. 322; McClure v. Levy (Sup.), 22 N. Y. Supp. 1006; Tupper v. Morin, (Sup.) 12 N. Y. Supp. 310. Percolating Water Ownership Complaint. A complaint showing plaintiff the owner of land upon which a spring formed by percolations through the soil or coming to the surface is located, and that defendant, against his objection and protest, wilfully and habitually took large quantities of water from such spring, states a cause of action. Fuller, J., dissenting. Metcalf v. Nelson, S. D , 65 N. W. 911; Buffum v. Harris, 5 R. I. 243; Bliss v. Greeley, 45 N. Y. 671; Clark v. Conroe, 38 Vt. 469; 5 Am. & Eng. Ency. Law, p. 2 and cases cited. (b). Frivolous Answer Complaint Alleging Performance. A written contract sued upon and set forth in the complaint, which embraced certain conditions precedent to be performed by plaintiff, the allegation be- ing that "the said plaintiff has fully performed all the conditions of said instru- ment on her part;" and the answer embracing a general denial; the district court struck out the answer, on motion, as frivolous. Held, the answer raised a material issue of fact which defendant had a legal right to have presented to a jury for determination, and was not frivolous. (Sigmund v. Bank, 4 N. D. 164, 59 N. W. 966, followed and applied.) Sifton v. Sifton, .... N. D ,65 N. W.670; Bliss Code PI., sec. 421; Maxw. Code PL, 555 and note 2; Perry v. Reynolds (Minn.), 42 N. W. 471. Parties Defen- dant Mortgage on- Decedent's. Realty. In an action to foreclose a mort- OF APPEALS IN CIVIL ACTIONS. 19? gage given by decedent upon realty, the heirs of such decedent are proper parties defendant. Kelsey v. Welch et al, S. D , 66 N. W. 390; Mnxw. Code PL, p. 66; Carr v. Caldwell, 10 Cal. 380; Comp. Laws, sec. 5860; Deer. Ann. Code, p. 252, c 8; Harwood v. Marye, 8 Cal. 580; Bliss Code PI., 102; Wiltsie, Mott. Forec. 122. Defense and Counterclaim Same Facts. The same facts may constitute a defense to a claim by plaintiff, and at the same time entitle a defendant to an affirmative judgment against plaintiff in excess of the claim made by plaintiff; and when such is the case a defend- ant may plead such facts, both as a defense and as a counterclaim, and can- not be compelled to elect upon which he will rely. Nollman et al v. Evanson, N. D , 65 N. W. 686; Nemetty v. Naylor, 63 How. Pr. 387; Dun- ham v. Bower, 77 N. Y. 76; Mf'g Co. v. Colgate, 12 Ohio St. 344. Contract For Plastering 1 Defenses. Action to recover on a contract to furnish ma- terials and labor for plastering a house, plastering to be of a certain qual- ity; the answer set up that the plastering was not according to contract, and that by reason of inferior materials and unskillful workmanship the plastering was worthless and of no benefit to defendant. Held, a good de- fense. Nollman et al v. Evanson, N. D , 65 N. W. 686; Moulton v. McOwen, 103 Mass, 587; Kelly v. Bradford, 33 Vt. 35; White v. Oliver, 36 Me. 92; Pinches v. Lutheran Church, 55 Conn. 183; Hayward v. Leon- ard, 19 Am. Dec. 268 and note. Evidence examined, and held, the plaster- ing was not according to contract, and of no benefit to defendant. Nollman et al v. Evanson, supra. 4. Practice Procedure. (a). Motion Renewal of Res Judicata. After a motion to set aside an attachment was denied before one district judge, the same motion was made before another judge into whose district the case came by change of venue, on the same facts. No claim of surprise, or that new evidence had been discovered, was made, nor was any reason assigned for renewal of first motion, upon denying which no leave to renew was given. Second motion was granted. Held, error; that one judge has no power to review, on same facts, the decision of another judge of co-ordinate jurisdiction. Enderlin State Bank v. Jennings, 4 N. D. 228, 59 N. W. 1058; Dwight v. St. John, 85 N. Y. 203; Grier v. Jones, 54 Ga. 154; Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201; Com'rs v. Mclntosh, 30 Kas. 234, 1 Pac. 572; Mabry v. Henry, 83 N. C. 298; Burner v. Hevener, 34 W. Va. 774, 12 S. E. 861; Kabe v. The Eagle, 25 Wis. 108; Cothren v. Connaughton, 24 Wis. 134; Austin v. Walker, 61 Iowa 158, 16 N. W. 655; Frauenthal's Appeal, 100 Pa. St. 290; Clagett v. Simes, 25 N. H. 402; Spitley v. Frost, 15 Fed. 299; Bank v. Hansee, 15 Abb. N. S. 488; 1 Herm. Est. sec. 472; Freem. Judg. sees. 325, 326; 2 Black, Judg. sec. 691, 692. Same Rehearing, in Effect. By entertaining the second motion under such circumstances, a rehearing is granted in legal effect. Enderlin State Bank v. Jennings, supra; Harris v. Brown, 93 N. Y. 390; CODE OF CIVIL PROCEDURE. Kenney v. Kelleher, 63 Cal. 442; Riggs v. Purcell, 74 N. Y. 370. Diligence. A person making a motion must bring in all his evidence, or all he might have obtained with due diligence; he cannot be allowed to supply the defic- iency and renew the application. Enderlin State Bank v. Jennings, sjpra; Freem. Judg. sec. 326; Ford v. Doyle, 44 Cal. 635; Ray v. Connor, 3 Edw. Ch. 478; Lovel v. Martin, 12 Abb. Pr. 178; Pattison v. Bacon, 21 How. Pr. 478; Allen v. Gibbs, 12 Wend. 202; Fenton v. Bank, Clarke, Ch. 360; Adams v. Lockwood (Kas.), 2 Pac. 626. The same diligence as required of one mov- ing for new trial on the merits of a case ought to be required of the moving party on a renewed motion. Enderlin State Bank v. Jennings, supra; Hill v. Hoover, 9 Wis. 15; Pierce v. Kneeland, Id. 24; Willett v. Fayerweather, 1 Barb. 72; Lovel v. Martin, 12 Abb. Pr. 178; Pattison v. Bacon, 21 How. Pr. 478; Adams v. Lockwood, 30 Kas. 373, 2 Pac. 626; Witmark v. Herman, 44 N. Y. Super. Ct. 144. (b). Service an Corporation "Managing Agent." In an action against a private corporation the return of the sheriff must affirmatively show service made upon an officer or agent specified in the statute as one upon whom service may be made. Mars et al v. Oro Fino Min. Co. et al, ____ S. D ..... , 65 N. W. 19; Foster v. Lumber Co., 5 S. D. 57, 58 N. W. 9. An attorney in fact, authorized by a private corporation to apply for patent to mining ground claimed by it and to execute such papers as may be neces- sary for that purpose, is not by virtue of such employment a "managing agent," within the meaning of that, term in sec. 4898, Comp. Laws. Marset al v. Oro Fino Min. Co., et al, supra. Mining Adverse Claimant Pro- cess. In an adverse proceeding under sec. 2326, Rev. Stat. U. S., it is not sufficient that the adverse claimant places the summons in the hands of the sheriff within 30 days after filing of the adverse claim, unless he proceeds with reasonable diligence to secure the service of such summons upon the defendant in the action. Mars et al v. Oro Fino Min. Co , ____ S. D ..... , 65 N. W. 19. Where in such an action no service of the summons was made in any manner upon defendant for more than a year after the adverse claim was filed, and the defendant did not appear in the action, "proceedings," within the meaning of that term as used in said section, were not com- menced in time, and the action was properly dismissed. Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 3 Sawy. 634; Fed. Cas. No. 4989; Id., 9 Nev. 240; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. 428; Matting- ly v. Lewisohn (Mont.), 19 Pac. 310; Cronin v. Min. Co. (Idaho), 32 Pac. 204; Golden Fleece G. & S. M. Co. v. Cable Consolidated G. & S. M. Co., 12 Nev. 312. Claim Against Administrator Presentation Mortgage, It is not necessary to present to an administrator a claim secured by mortgage upon realty of a decedent, except as to a deficiency existing after foreclosure sale. Kelsey v. Welch et al . . . .S. D ..... , 66 N. W. 390; Comp. Laws, sec. 5790; Purden v. Archer, 4 S. D. 54, 54 N. W. 1043. OF APPEALS IN CIVIL ACTIONS. 199 Municipal Corporation Enjoining Nuisance. A municipal corpora- tion, in the exercise of a granted power to "restrain, prohibit, or suppress" a public nuisance, may, under proper circumstances, invoke the aid of a court of equity. Citj of Huron v. Bank of Volga, S. D , 66 N. W. 815; 1 Dill. Mun. Cor., (4th Ed.) sec. 379; Wood Nuis. (2d Ed.), sec. 744; 3 Pom. Eq. Jur., p. 380; City of Denver v. Mullen, 7 Colo. 345, 3 Pac. 693; Vil- lage of Pine City v. Munch, 42 Minn. 342, 44 N. W. 197; City of New Orleans v. Lambert, 14 La. 244; City of Waterloo v. Union Mill Co., 72 la. 437, 34 N. W. 197; 15 Am. & Eng. Ency. Law, p. 1184. Parties Tax Shares Bank Stock. The shares of stock of an incor- porated banking association being, under ch. 14, Laws 1891, assessed against the individual owners thereof, and the tax extended thereon being against and payable by such individual shareholders, and not by the bank, such bank cannot, in its own name and for itself, maintain an action to restrain the col- lection of such tax from the individual stock owners. Northwestern Loan & Banking Co. v. Muggli, treas., S. D , 64 N. W. 1122; Bank v. McKenna, 32 Minn. 468, 21 N. W. 556, (on rehearing), S. D. , 65 N. W. 442. Such action cannot be maintained by the bank on the ground of avoidance of a multiplicity of suits, upon a complaint which does not show facts which would or might expose the bank to such suits. Id. Payment Recovery Back. Where defendant had made a payment under a contract for plastering, before he knew of the in- ferior and worthless quality of the plastering, he was entitled to recover back the amount so paid. Nollman et al v. Evanson, N. D ,65 N. W. 686. (c). Attachment Action On Contract Conveyance of Realty. An attachment in an a.ction for breach of contract to convey realty, that has been issued upon affidavit which fails to enumerate any of the acts or omis- sions constituting actionable detriment, under sec. 4586, Comp. Laws, and which states no ground for damages ascertained or ascertainable by refer- ence to the contract, or from which the court can definitely determine, by any fixed rule of law or measure of damages, the amount which plaintiff is entitled to recover, should be vacated and discharged on motion, Kellam, J., dissenting. Narregang v. Muscatine, Mort. & Trust Co., S. D , 64 N. W. 1129; Coats v. Arthur, 5 S. D. 274, 58 N. W. 675. Attachment Claim Not Due Removal of Property. It is only when the action is brought on a claim not due that plaintiff is entitled to an attachment, on the ground that his debtor is about to remove his property with intent "of hindering and delaying" him in the collection of his debt. Foley- Wads- worth Implement Co. v. Porteous, S. D , 65 W. W. 429; Comp. Laws, sec. 5014. Attachment Affidavit Denial of Allegation. When the attachment affidavit shows plaintiff's claim past due, and alleges that defendant "has sold, conveyed, and disposed of his property with a fraudu- 200 CODE OF CIVIL PROCEDURE. lent intent to cheat and defraud his creditors," which allegation is denied by defendant, and on hearing of defendant's motion to discharge, is not sup- ported by plaintiff's evidence, the attachment will not be sustained, because defendant has not properly denied the allegation "that defepdant is about to remove his property with intent and to the effect of hindering and delay- ing plaintiffs in the collection of their debts." Foley- Wads worth Imple- ment Co v. Porteous, S. D , 65 N. W. 429; Crow v. Beardsley, 68 Mo. 439. Affidavits Before Referee Practice. It is not error to deny an application for an order based upon subd. 5, sec. 5324, Comp. Laws, com- pelling persons to attend before a referee appointed for that purpose, and make affidavits to be used in resisting a motion to discharge an attachment, where it neither appears that such persons have refused to make affidavits, nor that they possess any knowledge of material facts. Perie et al v. Berg et al, . . . . S. D , 64 N. W. 1130; Fisk v. Ry. Co., 3 Abb. Prac. (N. S.), 430. Vacation of Attachment Showing Further Time. The facts set out in the affidavit for an attachment being practically unsupported, and specifically denied by the attachment debtor, the proof before the court was sufficient to justify an order vacating the attachment. Perie et al v. Berg et al, S. D , 64 N. W. 1130. The refusal of the court to grant ap- pellants further time in which to procure affidavits in support of the attach- ment, though not in harmony with the usual and better practice, is held, under the circumstances of this case, not sufficient to require a reversal. Id. Sec. 5325, Comp. Laws, as amended by chap. 70, laws 1893, authorizes a court or judge to prescribe, by order to show cause, a shorter time than six days between notice and hearing of motion to vacate an attachment. Perie et al v. Berg et al, . . . , S. D , 64 N. W. 1130; Wyman v. Wilmarth, 1 S. D. 172, 46 N. W. 190. Order of Arrest Affidavit Information and Belief. An affidavit for an order of arrest must either be positive, or upon information and be- lief; and where a material part thereof is made upon information and belief, the facts upon which the information and belief are founded must be stated. Hart v. Grant, . . . . S. D , 66 N. W. 322; Comp. Laws, sec. 4947; Fin- lay v. Castroverde, 22 N. Y. Supp. 716, 68 Hun 59; Sheridan v. Briggs, (Mich.), 19 N. W. 189. An affidavit which asserts that the facts are stated upon personal knowledge of affiant, but which from the facts detailed must necessarily have been stated upon information and belief, and the grounds of such information and belief are not given, is insufficient to support an or- der of arrest. Hart v. Grant, supra. Answer After Time Affidavit Proposed Answer. Where, on ap- plication for leave to serve an answer after the statutory time has expired, the party moving is required by the rules of the court in which the motion is made to serve with his notice of motion an affidavit of merits and a copy of his proposed answer, if he fails to serve either the motion is properly denied. Searlesv. Lawrence et al, S. D , 65 N.W. 34. OF APPEALS IN CIVIL ACTIONS. 201 Instructions Changing Language of Error. At the conclusion of the evidence, certain specific instructions, consistent with the theory of the defense, were prepared and placed before the court, with request that the same be submitted to the jury. Without writing on the margin thereof the word "Given" or "Refused," as required by sec. 5048, Comp. Laws, the court, without consent of counsel, materially changed the language and im- port of each, and gave the same to the jury as coming from defendant with a request that the jury be thus instructed. Held, reversible error. Peart v. Chi., M. & St. P. Ry. Co., .... S. D , 66 N. W. 814; Galloway v. McLean, 2 Dak. 372, 9 N. W. 98. [AUTHOR'S N6TE: The Peart case, supra, properly belongs in the chapter on New Trials, but was decided too late for insertion in that part of this book.] Default Judgment Notice of Application. Where a party applies for judgment under first clause of subd. 1, sec. 5025, Comp. Laws, and the action is one arising on contract for recovery of money only, and the com- plaint is duly sworn to and proof of service duly made, and no answer has been received, the defendant who has not answered, but has appeared, is not entitled to notice of such application. Searles v. Lawrence et al, S. D 65 N. W. 34; Dix v. Palmer, 5 How. Pr. 233; Southworth v. Curtis, 6 How. Pr. 271; Wait's Code, sec. 246, note g. Vacation of Judgment Process Affidavits. A judgment was tak- en by default against two defendants, one of whom only was served with process, although the sheriff's return showed both served. Defendants joined in a motion to vacate the judgment, and asked on the face of the mo- tion papers to come in and defend on the merits. The motion was based in part upon affidavits setting out non-service upon one of defendants, those affidavits not being controverted; another affidavit setting out the facts con- stituting the defenses, which affidavit was met with one on plaintiff's be- half, in which all the material averments in defendant's affidavit were met and denied. A motion to vacate was denied. Held, error as to the defendant not served with process. Held, further, that as to the other co-defen- dant, the order denying the motion should be affirmed for reasons stated in the opinion. Stewart v. Parson, N. D , 65 N. W. 672; Godfrey v. Valentine, 39 Minn. 336, 40 N. W. 163. Judgment By De- fault Belief From. Applying the rule enunciated in Oil Co. v. Lee, 1 S. D. 531, 47 N. W. 955, to the facts disclosed by the record in this case, in- volving an order denying an application to set aside a judgment, which or- der is appealed from, it is held, that appellant should be relieved from a judgment by default. Haney, J., dissenting. Turner v. Coughran, S. D , 66 N. W. 810. Execution Against Person Causes of Action Conversion. An ex- ecution against the person will not ordinarily issue upon a judgment in an CODE OF CIVIL PROCEDURE. action in which several causes of action are combined, if either cause is one that would not allow a judgment upon which execution against the person might issue; but the rule is not applicable where the verdict upon which the judgment is rendered establishes to a certainty that they found against defendant only upon a cause of action which would support a judgment upon which such an execution might issue; an execution against the person may issue upon a judgment for wrongful conversion of personal property. Hor- man v. Sherin, .... S. D ..... , 65 N. W. 434; Winton v. Knott, . . . . S. D. ____ , 63 N. W. 783; Wesson v. Chamberlain, 3 N. Y. 331; Richmeyer v. Remsen, 38 N. Y. 206; Lembke's Case, 11 Abb. Prac. (N. S.), 72. Execu- tion Without Order. And in a case of wrongful conversion of personal property, execution may be issued against the person as in other cases, without an order of the court or judge. Hormann v. Sherin, supra; Gino- chio v. Figari, 4 E. D. Smith 227; Alden v. Sarson, 4 Abb. Prac. 102; Kloppenburg v. Neefus, 4 Sandf. 655; Lockwood v. VanSlyke, 18 How. Pr. 45. 5. Contracts. Control of Corporate Stock Contract Public Policy. Equity will not specifically enforce a contract to give a minority stockholder the right to control stock of another and vote it at a stockholder's meeting, where the sole purpose is to secure control of the corporation by the use of such stock. Gage v. Fisher ..... N. D ..... , 65 N. W. 809; Foil's Appeal, 91 Pa. St. 434. Therefore, when such a contract has been made, on the strength of which the promisee has lost control of stock sufficient to give him control of the corporation, and thereafter the promisor threatens to sell his stock to the opposing faction, thus giving them control of the corporation, and the prom- isee, to save himself from defeat in his project to secui-e its control, pur- chases such stock at a figure much in excess of its market value, such con- tract of purchase cannot thereafter be rescinded, but the purchaser must pay a stipulated price. Gage v. Fisher, supra.- A contract to allow another to control the voting of stock, based upon a promise of the one who is to con- trol such stock to secure for its owner an office in the corporation, is illegal; and the whole contract is void, although the illegal consideration (i. e., the promise to secure for the owner of the stock a corporate office) constitutes only a part of the consideration for the agreement to give such promisee control of the stock. Gage v. Fisher, supra; Greenh. Pub. Pol., p. 17, rule 21, p. 24, rule 25, and cases cited; 2 Add. Cont., pt. 2, bottom paging, 762 and cases in note 1; Tobey v. Robinson, 99 111. 222; Comp. Laws, sec. 3533. Agreement to Pay Indemnity Condition Precedent. There being a well settled distinction between an agreement to indemnify and one to pay, an action upon a breach of covenant to pay to a third party a stipulated amount at a specified time, and to cause certain realty to be released from a mort- gage given by plaintiff to secure payment thereof, is maintainable by the OF APPEALS IN CIVIL ACTIONS. 203 promisee against promisor, although the former has neither paid the money nor sustained actual injury by reason of failure of the former to perform his contract. Callender v. Edmison et al, S. D , 65 N. W. 425; Merri- am v. Lum. Co., 23 Minn. 314; Locke v. Homer, 131 Mass. 93; Dorrington v. Minnick (Neb.) 19 N. W. 456; Wilson v. Stilwell, 9 Ohio St. 468; Sage v. Truslow, 88 N. Y. 240; Stout v. Folger, 34 la. 71; Rector v. Higgins, 48 N. Y. 532; Wicker v. Hoppock, 6 Wall. 94; Port v. Jackson, 17 Johns. 39. Ap- plication of Payments Account Note. One who owed a firm on ac- count, and another sum on his past-due, unsecured note, having paid an amount equal to the amount owing on account without manifesting any de- sire as to the application of payment, held, in an action on a note, that the creditors had the right to use the money to extinguish the account. Fargo et al v. Jennings S. D , 65 N. W. 433; Whiting v. Eichelberger, 16 la, 422; Bank v. Roberts, 2 N. D. 195, 49 N. W. 722; Munson v. Pummer, (la.) 7 N. W. 95; Shortridge v. Pardee, 2 Mo. App. 363; 18 Am. & Eng. P^ncy. Law, p. 237. Realty Sale Landlord and Tenant Crop Lien. Un- der an executory contract of sale of land, where the purchaser was let into possession, with full use of the premises, but bound to pay a stipulated price therefor, and to pay each year "so much as the one-half of all crops on such land shall amount to," held, that no relation of landlord and tenant could arise under such contract, nor would the parties be tenants in common of the crops grown on such land by the vendee, unless the contract created such relationship by express language or necessary implication. Moen v. Lillestal et al, N. D , 65 N. W. 694; 12 Am. & Eng. Ency. Law, p. 662; Stone v. Sprague, 20 Barb. 509; Thompson v. Bower, 60 Barb. 463; Newby v. Vestal, 6 Ind. 412; Fall v. Hazelrigg, 45 Ind. 576; Cole v. Gill, 14 la. 527; Dakin v. Allen, 8 Gush. 33; Hill v. Hill, 43 Pa. St. 528; Stauffer v. Eaton, 13 Ohio 322; Klopfer v. Keller, 1 Colo. 410; Willis v. Wozengraft, 22 Gal. 607. Contract examined, and held, not to constitute a transfer to the vendor, or a reservation in him of any title or ownership in or lien upon the crops to be grown upon the land by vendee. Moen v. Lillestal et al, supra. Statute of Frauds Sale of Land Agency. The facts and circumstances disclosed by correspondence between appellant and his purported agent ex- amined, and lield, sufficient to authorize a contract for sale of land, and to sustain a decree which binds the former to execute and deliver to respond- ent a deed upon payment of purchase price according to terms of said con- tract. Farrell v. Edwards, S. D , 66 N. W. 812; Lyon v. Pollock, 99 U. S. 668; Jackson v. Badger, 35 Minn. 52, 26 N. W. 908; Peabody v. Hoard, 46 III. 243; Vanada v. Hopkins, 19 Am. Dec. 92; Lee v. Cherry, 85 Tenn., 707, 4 S. W. 835; Minor v. Willoughby, 3 Minn. 225 (Gil. 154); Ballou v. Sherwood (Neb.), 49 N. W. 790; Mann v. Higgins, 83 Cal. 66, 23 Pac. 206; Kennedy v. Gramling, 33 S. C. 367, 11 S. E. 1081. Loan by Mistake-Re- vivor of Mortgage Insolvent Guardian. One who through mistake of CODE OF CIVIL PROCEDURE. law loans money with which a mortgage executed by a person since de- ceased, upon his realty, is paid, and who takes therefor the note of the guar- dian of the minor heirs of such decedent, the guardian being owner of one- third interest in the premises, and by whom a mortgage thereon is executed to secure said note, is not entitled to a decree reviving and foreclosing the former mortgage, unless it appears from the complaint and evidence that said guardian is insolvent, or that his mortgaged interest in the land is insuffi- cient to secure payment of the note when due. Kelsey v. Welch et al, ____ S. D ...., 66 N. W. 390. APPEAL HOW TAKEN SERVICE OF NOTICE OF. 5215 Comp. Laws; 5606 Rev. Codes N. D. An appeal must be taken by serving a notice in writing, signed by the appellant or his attorney, on the adverse party, and on the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. The appeal shall be deemed taken by the service of the notice of the appeal, and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof, as hereinafter prescribed. When the ser- vice of a notice of appeal and undertaking cannot in any case be made within this state, the court may prescribe a mode for serving the same. (Sec. 3, chap. 20, Laws 1887, Dak.) |Sec. 5606, Rev. Codes, N. D., is the same, except that in lieu of the language "and on the clerk," the words "and filing the same in the office of the clerk" are used, and in lieu of the words "by the service of the notice of the appeal," the words "by the service of a notice of the appeal" are used. (Sec. 3, chap. 20, Laws 1887, am'd sec. 4, chap. 120, Laws 1891, N. D., am'd Rev. Com'rs.)] Rev. Stat. Wis. 1878; sec. 3049; sees. 407, 423, C. C. P.; Levisee, pp. 119, 125; Wait's Co.de, sec. 327; Harst Pr. Deer. Code, sec. 940. Consult the next three sections, and Rule 4, Sup.. Ct., S. D. and N. D., Rule 27, S. D., Rule 32. N. D. Post. Service of Notice Jurisdictional Waiver Ineffectual. Service of no- tice of appeal is Jurisdictional, and the question can be taken advantage of at any time before an act of submission to the appellate court; and a waiver by stipulation of parties is insufficient. In re Opening of Gold Street, Dead- wood, Newton, appellant, 2 Dak. 39, 3 N. W. 311, 8 N. W. 139; People v. Eldridge, 7 How. Pr. 247; Hastings v. Halleck, 10 Cal. 31, 149; Buffandeau v. Edmundson, 24 Cal. 94; Whipple v. Mills, 9 Cal. 641; Kelsey v. Forsyth, 21 How. 85; Bonds v. Hickman. 29 Cal. 461.' Service of Appeal Notice on OF APPEALS IN CIVIL ACTIONS. 205 Clerk Jurisdictional. Service of notice of appeal upon clerk of court below is Jurisdictional, and where the record fails to show such service this court will not hear the case. Hoffman v. Bank of Minot (three cases), 4 N. D. 473, 61 N. W. 1031; Hoffman v. Mortgage, Bank & In v. Co. Id., 1032. Notice Simply Filed, Insufficient. Where the statute provides that "an appeal must be made by the service of a notice in writing on the adverse party or his attorney, and on the clerk with whom the judgment or order appealed from is entered," etc., a notice of appeal simply filed in the clerk's office is insufficient. Peck v. Phillips, 4 Dak. 430, 34 N. W. 65. Must Bring Bill or Statement, When Loose Practice The Code. An appeal from a judgment brings only the judgment roll proper into this court for review; and where no bill of exceptions or case is settled and made part of the judgment roll, so as to present a case in the record here for re- view, it cannot be considered. The preparation and presentation of this case for consideration here, is in defiance of the rules of court and published decisions, and cannot be too seriously criticised. "This court has been sub- ject too and governed by a Code of Civil Procedure from the organization of the territory a period of almost a quarter of a century; and since 1887 a period cf almost twenty years by the same Code of Procedure it now has, with slight changes only as to the practice on appeal. And, whenever changes have been made, the statutes of other states have been adopted in hec verba, so that the decisions of such state would guide the practitioner in the doubtful construction of such amendments." Fargo et al v. Palmer, 4 Dak. 232, 29 N. W. 463; Gress v. Evans, 1 Dak. 387, 46 N. W. 1132; In re Opening Gold Street, Deadwood v. Newton, 2 Dak. 151, 3 N. W. 329; French v. Lancaster, 2 Dak. 276, 9 N. W. 716; Golden Terra Min. Co. v. Smith, 2 Dak. 377, 11 N. W. 98; St. Croht Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497. Jurisdiction Must Appear. Appellate jurisdiction of this court will not be presumed, but must affirmatively appear of record. Valley Land & Irrigation Co. v. Schone et al, 2 S. D. 344, 50 N. W. 356; Peck v. Phillips, 4 Dak. 430, 34 N. W. 65; Moore v. Vanderberg, 90 N. C. 10; Plummer v. Bank, (Iowa) 33 N. W. 150; Redhead v. Baker, 80 Iowa 162, 45 N. W. 733; State v. Brooks (Iowa), 50 N. W. 43; Noyes v. Lane, 2 S. D. 55, 48 N. W. 322. The statute (sec. 5215, Comp. Laws), prescribes the way by which a case may be transferred for review from the trial court to the supreme court, and the jurisdiction of the latter court depends upon compliance with its provisions. It is just as essential that the notice of appeal be served upon the clerk as upon the adverse party, and filing such notice in the clerk's office does not constitute such service upon the clerk. Valley Land & Irrigation Co. v. Schone et al, 2 S. D. 344, 50 N. W. 356. Abstract Must Show Appeal. Where the abstract does not show an appeal taken, this court will not as- sume jurisdiction, but will dismiss the appeal. First Nat'l Bank v. North- western Elevator Co., 2 S. D. 356, 50 N. W. 356. 1'Ot') CODE OF CIVIL PROCEDURE. Omitting Party's Name, When Immaterial- Appearance Admis- sion. The mere fact that the name of ono of the defendants is omitted in the notice of appeal, is not good ground for dismissing the appeal; the no- tirr intelligently referring to the judgment appealed from, so that respond- ents are informed from what, and for what, the appeal is taken, and no mis- take can be made as to appellant's intent. Marshall et al v. Harney Peak Tin Mining, Milling & Mf'g Co. et al, 1 S. D. 350, 47 N. W. 290. It also ap- pears that respondents have appeared in this tribunal and submitted to con- tinuances by stipulation signed by their attorneys, and to other proceedings, and by filing briefs. While service of notice of appeal is a jurisdictiotml question, yet these acts of submission to this court must be considered as ap- pearance sufficient to give this court jurisdiction of the appeal. But parties and counsel should be more careful in drafting and serving jurisditional pa- pers. Id. F., one of defendants, appeared in court by attorney, and an- swered jointly with another defendant, through the same attorney. Judg- ment was in favor of both defendants. Notice of appeal and an undertaking was served on the attorney of record of defendants, from the title in which papers F.'s name was omitted, but in each the judgment appealed from is referred to as one recovered by "respondents" against appellants; which service is admitted without objection by respondents' attorney. Held, the appeal is properly taken, bringing both defendants within the jurisdiction of this court. Marshall et al v. Harney Peak Tin Mining, Milling & Mf'g Co. et al, 3 S. D. 473, 64 N. W. 272. Undertaking Service on Party, and Filing. On an appeal to this court, service of the undertaking on appeal on the opposite party, and filing it with clerk of trial court, is sufficient. Tolerton & Stetson Co. v. Casper- son, S. D ,63 N. W. 908. Notice* of appeal having been served upon respondent's attorney and the clerk, the service of the appeal under- taking upon respondent in person, and filing it with the clerk, is sufficient. McKittrick v. Pardee, . . . . S. D , 65 N. W. 23. Appeal Pending Former Appeal, Nugatory. An appeal perfected to this court brings here the subject-matter of tne appeal, as to the party appealing; and a subsequent appeal by him while such former appeal is pending, is nugatory. State ex rel Gunderson v. King et al, S. D , 60 N. W. 75; Hill v. Finnigan, 54 Cal. 311. TIME ALLOWED FOR APPEAL 5216 Comp. Laws. The appeal to the supreme court must be taken within sixty days after written notice of the order shall have been given to the party appealing; every other appeal allowed must be taken within two years after the judgment shall be perfected, by fil- ing the judgment roll. OF APPEALS IN CIVIL ACTIONS. 207 SAME TIME AFTER CASE SETTLED. 5605 Rev. Codes N. D. An appeal from a judgment may be taken within one year after the entry thereof by default, or after written notice of the entry thereof in case the party against whom it is entered has appeared in the action, and from an order within sixty after written notice of the same shajl have been given to the party appealing; provided, that in all actions heretofore or hereafter tried, when the appeal from an order is based upon errors assigned or set out in a statement of the case submitted to the court or judge thereof for settlement within sixty days after the service of such written notice and at least eight days prior to the expiration of such time and such court or judge neglects to settle such statement within the said sixty days, the party appealing shall have thirty days after such statement shall have been settled in which to take an appeal. (Sec. 3, chap. 120, Laws 1891, N. D., am'd sec. 1, chap. 81, Laws 1893, am'd Rev. Com'rs. ) Sec. 413, 22, C. C. P.; Wait's Code, sec. 331; Harst Pr. Deer. Code 939. Consult the preceding- and the next section; Rule 4, Sup. Ct. (a). Appealable Orders. Violation of City Ordinance Appeal Proper. In an action for viola- tion of a municipal ordinance, where defendant was acquitted, and the city appealed, respondent moved in this court to dismiss the appeal upon the ground that the case should have been brought here by writ of error, and not by appeal. Held, that an appeal was the proper procedure, the act charged not being 1 punishable by imprisonment. City of Sioux Falls v. Kirby, S. D , 60 N. W. 156 (following City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947). Revoking Attorney's License This Section Applies. A judgment under sec. 477, Comp. Laws, revoking the license of an attor- ney, is appealable under the general statute, and the two year limit applies. It does not matter whether the proceeding should be regarded as civil or criminal in its nature. Whenever an appeal is allowed to the supreme court from a judgment of a district (now circuit) court, and no other or dif- ferent time is named within which it may be taken, sec. 5216, Comp. Laws, must control. In re Houghton, 5 S. D. 537, 59 N. W. 733. Order Dismissing Appeal From Justice "Judgment." An order of the district (now circuit) court, dismissing an appeal from a justice court to the district court, because the judgment in justice court was not appeal- able, and awarding costs against appellant, is a judgment within the mean- ing of sec. 5216, Comp. Laws, and a final determination of the rights of the CODE OF CIVIL PROCEDURE. parties, so far as the district court is concerned, and an appeal may be tak- en therefrom to the supreme court after the expiration of the 60 days with- in which, under that section, appeals from orders are to be taken. Mmiser etal, v. Palmer, 2 S. D. 466, 50 N. W. 967; Zoller v. McDonald, 23 Cal. 136; Bowie v. Kansas City, 51 Mo. 459; Black on Judgm. sec. 27. Order Discharging, etc., Attachment, Before Judgment. An appeal may be taken from an order discharging, continuing, refusing, or modifying an at- tachment, before judgment upon the .main issues in the original cause of action. Quebec Bank v. Carroll et al, 1 S. D. 1, 44 N. W. 723. Order Re- fusing to Vacate Judge's Order on Habeas Corpus. In an appeal from a circuit court order refusing to vacate.a previous order of the judge discharging respondent from custody on habeas corpus, respondent contended that the first or original oider discharging respondent was a court order, from which the appeal should have been taken and that more than 60 days having elapsed, the appeal to this court cannot be used for a review of that order. Held, that it may be so used. Wintonv. Knott, sheriff ..... S. D. . . /., 63 N. W. 783; sec. 7839, Comp. Laws. (b.) Non-Appealable Orders. Mandamus Order Refusing to Vacate "Writ. In a mandamus pro- ceeding, ifsue being joined on a demurrer to the answer, demurrer was sus- tained and answer dismissed by the district court. Without an order ad- judging that the peremptory writ of mandamus should issue, it did issue and was served on defendant, exception being taken, the writ being styled in the exception an "order." No appeal was taken from the order sustaining the demurrer or from the peremptory writ, but after time for appeal had ex- pired, motion was made to vacate such writ, and the district court by order re- fused to vacate it; and defendant attempted to appeal from the last men- tioned order to this court, under subd. 5, sec. 24, chap. 120, Laws 1891. Held, the appeal will not lie; following Travelers' Ins. Co. v. California Ins. Co., 1 N. D. 151, 50 N. W. 706; Travelers' Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706. Order Refusing to Vacate Order Dismissing Appeal from. J. P. No appeal to this court having been taken from an or- der of the district court dismissing an appeal to that court from justice's court, but after the time for appeal had expired a motion was made in the district court to vacate said order, which motion was denied, and defendant attempted to appeal from the order refusing to vacate the first order. Held, the order refusing to vacate the order dismissing the appeal is not appeala- ble. This court will not take jurisdiction of an order of the district court refusing to vacate an appealable order made by that court; nor can the time for appeal to this court be extended by an order of the court below va- cating or refusing to vacate an appealable ordeV. Whether an order dis- missing the appeal from justice court to the district court is appealable, not decided. Travelers' Ins. Co. v. California Ins. Co. (or Travelers' Ins. Co. v. OF APPEALS IN CIVIL ACTIONS. 209 Weber), 1 N. D. 151, 50 N. W. 703; Henly v. Hastings, 3 Cal. 342; Higgins v. Mahoney, 50 Cal. 446; Holmes v. McCleary, 63 Cal. 497; Larkin v. Larkin, (Cal.), ISPac. 396; Thompson v. Lynch, 43 Cal. 482; Kittredgev. Stevens, 23 Cal. 283. In what we have said no reference is made to such orders as the district court may, under the statute, (section 4939, Comp. Laws), vacate on a showing that they were made by mistake, inadvence,or excusable neglect. Travelers' Ins. Co. v. California Ins. Co., supra. Order Denying New Trial Before Judgment Surplusage. The limitation of 60 days in which an appeal from an order may be taken, under this section, has no application to an order denying a new trial made and determined before the entry of judgment, when an appeal is taken from the judgment, and the making of such order is assigned as error. Granger v. Roll et al, .... S. D , 62 N. W. 970; Rev. St. Wis., sec. 3039; Id., sec. 3042,5236, subd. 3, 3070; Machine Co. v. Heller, 41 Wis. 657; Morris v. Niles, 67 Wis. 341, 30 N. W. 353; Ma- chine Co. v. Gurnee, 38 Wis. 533. The notice of appeal from the order de- nying the new trial may therefore be treated as surplusage, and disregarded. Granger v. Roll et al, supra; Williams v. Williams, .... S. D , 64 N. W. 38. (c). When Ripe For Appeal. Taxation of Costs, Unnecessary Entry. A judgment is appealable, though the costs have not been taxed and entered in the judgment when the notice of appeal is served. Williams v. Wait 2 S. D. 210, 49 N. W. 209., The court say: "We think that the several provisions of the Code upon "the subject contemplate that the entry of the judgment by the clerk will be "made prior to the adjustment of the costs." Referring to sees. 5214, 5216, 5024, 5101, 5102, 5103, 5095, 5197, Comp. Laws; Gilmartin v. Smith, 4 Sanf. 684; Scott v. Burton, 6 Tex. 323; Stimson v. Huggins, 9 How. Pr. 92; Cord v. Southwell, 15 Wis. 216; Richardson v. Rogers, 37 Minn. 463, 35 N. W. 270; Adams v. Smith et al, 6 Dak. 94, 50 N. W. 720; Champion v. Board of County Com'rs., 5 Dak. 416; 41 N. W. 739. Appeal Before Judgment Entered Ab- stracts. Appellant's abstract did not expressly show the judgment ap- pealed from entered or perfected prior to appeal. Respondent's additional abstract stated no judgment had then been entered or judgment roll filed. The clerk's endorsement showed the judgment entered at a date nearly four months af ter appeal; his certificate showing that at its date, five months subsequent to appeal, no judgment roll had been filed. Held, the appeal should be dismissed. Greenly v. Hopkins, S. D , 64 N. W. 1128. From Judgment Alone Review. An appeal from the judgment alone does not bring to this court for review an order denying or granting anew trial made after judgment. Gade v. Collins et al, S. D , 66 N. W. 466; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Mf'g Co. v. Galloway, 5 S. D. 205, 58 N. W. 565. 14 TP 210 CODE OF CIVIL PROCEDURE. CLERK SENDS TRANSCRIPT WHEN COPY PAPERS-CERTIFI- CATE. 5217 Comp. Laws. Upon an appeal being per- fected, the clerk of the court from which the appeal is taken shall, at the expense of the appellant, forthwith transmit to the supreme court, if the appeal is from a judgment, the judg- ment roll; if the appeal is from an order, he shall transmit the order appealed from, and the original papers used by each party on the application for the order appealed from. The court may, however, in each case, direct copies to be sent in lieu of the originals. The clerk shall also, in all cases, trans- mit to the supreme court the notice of appeal and undertaking given thereon; and he shall annex to the papers so transmitted a certificate, under his hand and the seal of the court from from which the appeal is taken, certifying that they are trans- mitted to the supreme court pursuant to such appeal. No fur- ther certificate or attestation shall be necessary. (Sec. 4 chap. 20, Laws 1887, Dak. ) SAME WHEN RESPONDENT MAY HAVE RECORD SENT UP COSTS. 5607 Rev. Codes N. D. Upon an appeal being per- fected the clerk of the court from which the appeal is taken shall at the expense of the appellant forthwith transmit to the supreme court, if the appeal is from a judgment, the judgment roll; if the appeal is from an order, he shall transmit the order appealed from and the original papers used by each party on the application for such order. The court may, however, in case of either judgment or order upon motion of either party after notice to the adverse party for good cause shown, direct copies to be transmitted instead of the originals. The clerk shall also in all cases transmit to the supreme court the origin- al notice of appeal and the undertaking given thereon; and he shall annex to the papers so transmitted a certificate under his hand and the seal of the court from which the appeal is taken, certifying that they are the original papers or copies as the case may be, and that they are transmitted to the supreme court pursuant to such appeal. No further certificate or attes- tation shall be necessary; provided, that if the appellant does OF APPEALS IN CIVIL ACTIONS. 211 not within thirty days after his appeal is perfected cause a proper record in the case to be transmitted to the supreme court by the clerk of the district court, the respondent may cause such record to be transmitted by the clerk of the district court to the clerk of the supreme court; and in such case the respondent may recover the expense thereof as costs on such appeal in case the judgment or order appealed from is in whole or in part affirmed. (Sec. 4, chap. 20, laws 1887, Dak., am'd. sec. 5, chap. 120, laws 1891, N. D., am'd. Rev. Com'rs. ) Rev. Stat. Wis. 1878, sec. 3050; sec. 408, C. C. P.; Levisee p. 119; Wait's Code, sec. 328; Harst. Pr. Deer. Code, sec. 950,951, 953; Rules 7 and 27, Sup. Ct. S. D.; Rules 8 and 12 Sup. Ct. N. D. Post. (a). Clerk May Require Fees Paid. The clerk of the court below is not required to transmit the record of a case after appeal is taken until hia fees and other necessary expenses in the case have been paid by appellant or other person interested in prosecuting the appeal. State v. Sioux Falls Brewing Co. et al, 2 S. D. 363, 50 N. W. 629. Copy Notice of Appeal Transmitted. The transmission of a certified copy of the notice of appeal, by the clerk below, to this court, is essential to give the supreme court jur- isdiction. In the Matter of Opening Gold Street, Dead wood, D. T., George N. Newton, Appellant, 2 Dak. 39, 3 N. W. 311, 8 N. W. 139. It was held in Jasper v. Hazen, 1 N. D. 210, 46 N. W. 173, that, under sec. 5217, Comp. Laws, the statute, except in cases where a special order is made, abrogates the rule of court (rule 7). requiring the clerk of the district court to send up transcripts in all cases. Clerk Annexes Decision Presumption. It is the clerk's duty, in cases tried by the district court without a jury, to annex the decision to the judgment roll, and where same is not found in the record transmitted here on appeal from a Judgment, it will be presumed in absence of explanation, that no decision was made or filed. Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Thomas v. Tanner, 14 How Pr. 426; Reich v. Mining Co. (Utah), 2 Pac. 703; Hayne New Tr. & App. p. 690, 721, 722; Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53 Cal. 34; Carr v. Cronin, 54 Cal. 600. Service of Appeal 'Notice Recital in Abstract Presumption Contents of Abstract. A statement in appellant's abstract that due ser- vice of notice of appeal and undertaking was made and admitted is accepted as true, in absence of anything to the contrary, and presumption is that the appeal was duly perfected as required by statute. Bell v. Thomas, S. D 63 N. W. 907; Day v. Ins. Co., 72 la. 597, 34 N. W. 435. It is fur- ther presumed, in absence of an amended or additional abstract, that appel- lant's abstract .contains all pleadings, files and evidence the parties and trial court deemed essential to a proper determination of questions presented on '2 \ "2 CODE OF CIVIL PROCEDURE. appeal. Bell v. Thomas, supra; Randall v. Burke Tp., 4 S. D. 387, 57 N. W. 4. (b). Only Judgment Boll a Certified Record. Nothing more than the papers constituting the judgment roll, as defined in sec. 299, Code of Civil Procedure (Comp. Laws, sec. 5103) can be made part of the record on appeal to the supreme court, by a certificate of the clerk or judge of the trial court, unless a bill of exceptions or statement of the case shall have been duly settled and certified and made part of the record. Minutes or memoranda of what takes place, made by the judge below, or by his author- ity, are no part of such record, or transcript. St. Croix Lumber Co. v. Pen- nington, 2 Dak. 467, 11 N. W. 497; Fargo et al v. Palmer et al, 4 Dak. 232, 29 N. W. 463; Gress v. Evans, 1 Dak. 387, 46 N. W. 1132; French v. Lancaster, 2 Dak. 276, 9 N. W. 716; Golden Terra Mining Co. v. Smith, 2 Dak. 377, 11 N. W. 98. Papers Not Part of Record. Papers attached to the judg- ment roll, by the clerk, as part of the transcript on appeal, but not appear- ing to have been settled or allowed as an exception, or part of a bill of ex- ceptions, and not specifically referred to in either the clerk's or judge's cer- tificate, are not a part of the record on appeal. Fargo v. Palmer, 4 Dak. 232, 29 N. W. 463. Stenographer's Transcript Not Part of RoU. A tran- script embracing evidence extended by stenographer, annexed to the judg- ment roll by order of the court below and sent up as part of the record, is neither a bill exceptions nor a statement of the case, and no part of judgment roll. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Harper v. Minor, 27 Cal. 107; Huttou v. Reed, 25 Cal. 479. The stenographer's transcript of proceed- ings on trial below, used on motion for new trial to show errors of law occur- ring at the trial, is not an authenticated record. Id. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Bailey v. Scott, 1 S. D. 337, 47 N. W. 286. Review of Order Bill or Statement Necessary Stenographer's Notes. On appeal from a judgment the evidence will not be considered unless embodied in a bill or statement, which rule applies to the review of an order designated for review in notice of appeal. Merchants' Nat. Bank v. McKinney, S. D , 60 N. W. 162. Stenographer's or referee's notes of the evidence cannot take the place of a bill or statement settled by the judge, even when so stipulated by the parties. Id. Mandamus Judgment In Appeal Record. On appeal from a judgment in a mandamus proceeding awarding a peremptory writ, there having been no alternative writ, the record here is plaintiff's affidavit, the answer, and the certified judgment required by sec. . 5217, Comp. Laws. Hardy v. Purinton, treasurer, S. D , 61 N. W. 158. Appeal from Order Exceptions. On an appeal from an order made upon affidavits, or other written evidence, no bill of exceptions is necessary. Sec. 5217, Comp. Laws, provides that in such case the clerk of the trial court shall certify and transmit to the su- preme qourt the original papers used by each party on the application, or OF APPEALS IN CIVIL ACTIONS. 213 copies if so directed by the court, and does away with the necessity for a bill of exceptions. Bailey v. Scott, 1 S. D. 337, 47 N. W. 286. (c). New N. D. Statutes. Judge's Certificate to Record "All Evidence Taken." The judge's certificate to the record certified only that it contained all testimony "taken" at the trial. Held, this does not bring the case within the terms of chap. 82, laws 1893, N. D., requiring that all evidence "offered" in such cases "shall be taken down in writing," and that "all eviden.ce taken as provided by this section shall be certified by the judge". First Nat. Bank of Devil's Lake v. Merchants' Nat. Bank of Devil's Lake et al, N. D , 64 N. W. 941. Specifications in Bill No Review When. The bill of excep- tions settled below and in the record here contains no specifications of error occurring at the trial, nor any exception pointing out wherein any finding of fact is not justified by the evidence. No errors are assigned in appellant's brief. Held, under the statutes and rules of court, and the authority of Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49, that this court will not examine the record to review errors in procedure below. First Nat. Bank of Devil's Lake v. Merchants' Nat. Bank of Devil's Lake et al, N. D 64 N. W. 941. Trial De Novo Judge's Certificate Evidence New Statute. We cannot try this case de novo, owing to insufficiency of judge's certificate certifying the evidence. Laws 1893, ch. 82, sec. 1. It does not ap- pear that all evidence offered is before us, but only such as was both offered and received. Doran v. Dazey, N. D , 64 N. W. 1023; First Nat. Bank of Devil's Lake v. Merchants' Nat. Bank of Devil's Lake et al, . . . .N. D , 64 N. W. 941. While the certificate of the trial judge as to the evi- dence is not technically such as this court said in Taylor v. Taylor, 5 N. D. , 63 N. W. 893, was necessary to enable us to try the case anew, we are not disposed to permit a mere technicality to throttle a full investigation. This case was tried before the practice had been settled under chap. 82, laws 1893, as to a trial de novo. The certificate recites that the record contains "all the proceedings had and testimony given on the trial of the action," and the record shows that no testimony offered was excluded. We pass up- on the whole case in this instance, without establishing it as a precedent that we will in any future case look beyond the certificate. Nollman et al v. Evenson, . . . . N. D 65 N. W. 686. Papers Identified by Court and Clerk Purging Record. Where the motion for a new trial was beard in part upon papers properly identified by the judge and certified by the clerk below, and appeal is taken from an order denying new trial, a motion to purge the record of such papers because same are not authenticated by bill or statement, cannot be sustained. Under sec. 5, ch. 120, laws 1891, no bill or statement is required to bring such pa- pers and documents before the court. Goose River Bank v. Gilmore et al t 3 N. D. 188, 54 N. W. 1032. l! \ i CODE OF CIVIL PROCEDURE. (d). Amending Record Evidence Practice. On appeal from an order, respondent claiming evidence was received on the hearing in court below not in the record, the proper practice is to bring the fact of such omission to this court by motion, supported by affidavits, or certificate of the trial judge, or both, not by filing additional abstract. Poley- Wads- worth Implement Co. v. Porteous, S. D , 63 N. W. 155. Oral Evi- dence Used on Order Below. AD oral evidence used in court below when an order is made, must be brought here on appeal from the order, by bill or statement; and until it is made part of the record the appeal is not per- fected for a hearing in this coxirt. Id. Bank v. McKinney (on rehearing) . . . . S. D . . ., 60 N. W. 162. Power of Trial Court To Amend, After Ar- gument Above. When the original papers are sent to this court on appeal from district court, and the case has been fully argued and submitted upon such record, the trial court has thereafter no authority or power to amenp or correct such record, unless upon application to this court the record is remanded for such purposes. Moore v. Booker et al, 4 N. D. 543, 62 N. W. 607 (on rehearing); Levi v. Karrick, 15 la. 444; Carmichael v. Vandeburr, 51 la. 225, 1 N. W. 477; Perry v. Breed, 117 Mass. 155; Penrice v. Wallis, 37 Miss. 172; Keyser v. Farr, 105 U. S. 265; State v. Jackson (N. C.), 16 S. E. 906; Elliott App. Proc., sec. 205; Chesley v. Boom Co., 39 Minn. 83, 38 N. W. 769; Spensley v. Ins. Co., 62 Wis. 443, 22 N. W. 740. Additional Ab- stract, When Proper. Where appellant includes in his abstract evidence which respondent claims was not before the court below and does not con- stitute part of bill of exceptions, the proper practice is to bring same to the attention of this court by an additional abstract. Tollerton & Stetson Co. v. Casperson S. D , 63 N. W. 908. (e). Reinstating Appeal Default Diligence Rule 9. The appeals in these cases having been dismissed for failure to file transcripts within the time prescribed by rule 9, held, on motion to reinstate such appeals, that appellants have not excused their default. Said rule does not deny appel- lant a right to be heard on the question whether he hae failed to send up the record in time. The excuse for the delay in sending up the records is the alleged failure of the judge before whom the motion to dissolve the at- tachments, from the orders vacating which these appeals are taken, to set- tle the question as to what papers were used on such motions, in time to en- able appellants to comply with the rule. We are not satisfied that appel- lants were diligent in presenting this matter to the judge. Walter A. Wood Har. Co. v. Heidel etal, (Black intervenor). Duluth Dry-Goods Co. v. same (two cases). Merchant's State Bank of Fargo v. same, 4 N. D. 427, 61 N. W. 155; Grigsby v. Purcell, 99 U. S. 505; Richardson v. Green, 130 U. S. 104, 9 Sup. Ct. 448; Fayolle v. R. R. Co., 124 U. S. 519, 8 Sup. Ct. 588; Spoore v. Fannan, 16 N. Y. 620; Smith v. Solomon (Gal.), 24 Pac. 286; Tile Works T. Hall (Neb.), 44 N. W. 45. OF APPEALS IN CIVIL ACTIONS. 215 Appeal Pending Former Appeal Nugatory. An appeal to this court being: perfected, a subsequent appeal while such former appeal is pending, is nugatory. State ex rel Gunderson, S. D , 60 N. W. 75. MONEY IN LIEU OF BOND NOTICE WAIVER. 5218 Conip. Laws; 5608 Rev. Codes N. D. When the appellant is re- quired, under any provision of this act, to give an undertaking, he may in lieu thereof deposit with the clerk of the court in which the judgment or order appealed from is entered (who shall give a receipt therefor), a sum of money equal to the amount for which such undertaking is required to be given, and in lieu of the service of such undertaking, serve a notice of the making of such deposit. Such deposit and notice shall have the same effect as the service of the required undertaking, and be held to answer the event of the appeal upon the terms prescribed for the undertaking, in lieu of which the same is deposited. Any such undertaking and deposit may be waived in writing by the respondent for whose benefit the same is re- quired to be made, and such waiver shall have the same effect as the giving of the undertaking would have had. (Sec. 5, chap. 20, Laws 1887, Dak.; sec. 6, chap. 120, Laws 1891, N. D.) Rev. Stat. Wis. 1878, sec. 3051; and see sec. 414, C. C. P.; Levisee, p. 122; Harst. Pr. Deer. Code, sec. 941. Consult following sections in this chapter. UNDERTAKING REQUIRED STATE EXEMPTED. 5219 Comp. Laws; 5609 Rev. Codes N. D. To render an appeal effect- ual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; Provided, that no bond shall in any action or proceeding be required of the State of South Dakota, or any county, incorporated town or city thereof, on any appeal to any court of the State of South Dakota, when the state, or any county, incorporated town or city shall be the party directly interested therein. (Sec. 6, chap. 20 Laws 1887, Dak.; sec, 1, chap. 26. Id.) 210 CODE OF CIVIL PROCEDURE. [Soc. 6609, Rev. Codes, N. D., i8 the same, except that the proviso is omitted; (sec. 7, chap. 120, laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3052. Sec. 414, 420, C. C. P.; Levisee p. 122, 124; Waifs Code 334; Harst Pr. Deer. Code 941. Consult preceding section, and following sections. STAY OF EXECUTION CONDITIONS OF UNDERTAKING. 5220, Comp. Laws; 5610 Rev, Codes N. D. If the appeal be from a judgment directing the payment of money it shall not stay the execution of the judgment unless an undertaking be executed on the part of the appellant, by at least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the ap- pellant on appeal (Sec. 7, chap. 20, Laws 1887, Dak.; sec. 8, chap. 120, Laws 1891, N. D. ) Rev. Stat. Wis. 1878, sec. 3053. Sec. 415 C. C. P.; Levisee p. 122; Wait's Code 335; Harst. Pr. Deer. Code \ 942. Consult preceding section, and sees. 5226, 5227, Comp. Laws; sees. 5616, 5617, Rev. Codes. N. D. Contest Proceeding No Stay Statutes Construed. In Flypaa v. Brown Co., S. D , 62 N. W. 962, in holding that no stay of proceed- ings can be effected under the statute, on appeal from a final judgment in a contest proceeding, the court say: "No provision of chapter 16 of the Com- piled Laws authorizes a stay of execution, unless the judgment appealed 'direct th payment of money'; "the assignment or delivery of documents or personal property'; 'the execution of a conveyance or other instrument'; 'the sale or delivery of possession of real property'; 'the sale of mortgaged prem- iss'; 'the abatement or restraint of the continuance of a nuisance'; or unless 'the judgment appealed from direct the doing of any particular act or thing, and no express provision is made by the statute in regard to the undertak- ing to be given on appeal therefrom.' " Promisee in Undertaking Interpretation of Statute Its Origin. Under our statute the undertaking on appeal to stay execution of the judg- ment appealed from does not run to any named promisee, but, prima facie, the promisee is the party the execution of whose judgment is stayed. Bern et al v. Shoemaker et al, S. I>. , 64 N. W. 544; Van Dyke v. Weil, 18 Wis. 277; Northwestern Mut. L. Ins. Co. v. Park Hotel Co., 37 Wis. 125; OF APPEALS IN CIVIL ACTIONS. 217 Comp. Laws, sec. 5218. In the Bern case, supra, the court say: "In some of the states this security on appeal either for costs or for a stay is in the form of a bond; in others, it is an undertaking 1 . By some statutes the security runs to the 'adverse party'; by some, to the 'opposite party'; by some, to the 'respondent,,' or 'appellee.' Our provision was taken from Wisconsin, and while no promisee is expressly named, it is clear that the purpose of the leg- islature was to afford a protection or benefit to the party against whom the appeal was taken." Citing- the above Wisconsin cases, and the following: Eastman v. Wright, 6 Pick. 316: Pearson v. Nesbit (N. C.), 17 Am. Dec. 569; McElhanon v. McElhanon, 63 111. 457. Reversal in Part Liability of Sureties. In an action by heirs, the administrator refusing to sue, against decedent's widow, to bring in as as- sets of the estate certain realty and personal property standing in her name and claimed by her, plaintiffs had judgment adjudging all the property, real and personal, to belong to and should be turned into the estate. De- fendants appealed, and gave the statutory undertaking to stay execution. This court held the judgment was right as to the personalty, but wrong as to the realty, reversed the judgment as entered, remanded the case with di- rections to enter judgment accordingly. Jleld, this was not such an abso- lute reversal as discharged the undertaking, but was in effect an affirmance in part and a reversal in part, and that in an action on such undertaking a complaint alleging these facts was not on that account demurrable, as not stating a cause of action. Bern et al v. Shoemaker et al, S. D ,64 N. W. 544; Butt v. Stinger, 4 Cranch C. C. 252, Fed. Cas. No. 2246; Trent v. Rhomberg, 66 Tex. 253, 18 S. W. 510; Krone v. Cooper, 43 Ark. 554; Thom- son v. Chapman, 83 Va. 223, 2 S. E. 273; Chapman v. Shepherd, 24 Grat. 391; Wood v. Orford, 5<> Cal. 157. [AUTHOR'S NOTE. Below are cited some Wis. cases.] Policy of Law to Stay Proceedings Power of Supreme Court Appeal Effects Stay, When. It is the general policy of the law to allow the party against whom judicial proceedings are commenced to stay pro- ceedings under the decision of an inferior tribunal against him, from which he has appealed, on giving just and adequate security; and it is usual for the legislature, in providing for an appeal, to provide adequate security, and for stay of proceedings pending appeal; and in case of omission. by the legislature to provide for such stay, the appellate court may order the same, and fix the amount of security to be given. Hudson et al v. Smith, 9 Wis. 122. If it depends entirely on the general power to stay proceedings, in any matter appealed to it then upon a proper case made the court will order such stay. This power is not dependent upon any statutory enactment, but rests on the policy of the law allowing the appeal. Id. In absence of positive provisions of statute to the contrary, an appeal perfected as the law re- quires does propia viyore stay proceedings under the order appealed from. Id CODE OF CIVIL PROCEDURE. Power of Supreme Judge in Vacation. The supreme court has power to order a stay of proceedings in the court below touching any matter of ap- peal to the supreme court; and a justice thereof has power in vacation, to make a provisional order staying proceedings below, to enable a party to make or renew, if need be, a similar motion in term. But in such cases the justice ought to look into the nature, circumstances and merits of the order appealed from. Waterman v. Raymond et al, 5 Wis. 185. Appeal Not Dismissed, When. A sufficient unde-taking on appeal having been filed and the appeal regularly taken, this court will not compel appellant to stay proceedings on the judgment below by executing an undertaking for that purpose, or in default of his so doing dismiss the appeal. Whether he does so or not in no way affects the appeal. Bird v. Morrison et al, 9 Wis. 651. SAME ON ASSIGNMENT, ETC., OF DOCUMENTS OR PERSONAL PROPERTY. 5221 Comp. Laws; 6511 Rev. Codes N. D. If the judgment appealed from direct the assignment or delivery of documents or personal property, the execution of the judg- ment shall not be delayed by. the appeal, unless the things re- quired to be assigned or delivered be brought into the court or placed in the custody of such officer or receiver as the court or presiding judge thereof shall appoint, or unless an under- taking be entered on the part of the appellant, by at least two sureties, in such sum as the court or presiding judge thereof shall direct, to the effect that the appellant will obey the order of the appellate court on the appeal. (Sec. 8, chap. 20, laws 1887, Dak. ) [Sec. 5611, Rev. Codes, N. D., is the same, except that the words "an undertaking be entered" are changed to read "an undertaking is entered into." (Sec. 9, chap. 120, laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3054. Sec. 416, 422 C. C. P.; Levisee p. 123, 124; Wait's Code 336; Harst. Pr. Deer. Code 943. Consult preceding section, and three following sections. Consult also, particularly Bern et al v. Shoemaker et al, and Flypaa v. Brown Co., cited under preceding section. Libel in Admiralty This Section Not Applicable Common Law Bond. In a libel in a possessory action in rem, the judgment from which the appeal was taken merely adjudged that claimant was entitled to posses- sion, and ordered the marshal, who was legally in custody of the property, to deliver it to him. Held, (by Corliss, J.), that this was not a judgment di- recting delivery of personal property within the meaning of sec. 416, C. C. OF APPEALS IN CIVIL ACTIONS. 21 9 P. (Comp. Laws, sec. 5221), assuming such statute to be applicable to ad- miralty cases, and that, therefore, on this assumption, appellants could have secured a stay of proceeding's on the giving of a mere cost bond. Code Civ. Proc., sec. 421, Rev. Codes 1877. Braithwaite v. Jordan et al, N. D 65 N. W. 701. The undertaking on appeal given in this case, which was giv- en to secure a stay of proceedings, was therefore, so far as it was' more than a mere cost undertaking, without consideration, and void as a statutory un- dertaking. But the majority of the court thought the undertaking would be valid, even under the statute. But held, that the practice on appeal in admiralty cases to the territorial supreme court was not regulated by the territorial statutes, but by rules and usages of courts of admiralty, which give no absolute right to perfect appeal and secure stay of execution, on giving of a mere cost bond; though the undertaking in question wan treated by respondent as entitling appellant to a stay; held, further, that the under- taking was valid as a common law obligation supported by a sufficient con- sideration. Braithwaite v. Jordan et al, supra; In re Schedel's Estate (Cal.), 10 Pac. 334; Pennie v. Superior Ct. (Cal.), 26 Pac. 617; Born v. Horst- man (Cal.), 22 Pac. 169; Powers v. Crane (Cal.), 7 Pac. 135; Powers v. Cha- bot(Cal), 28 Pac. 1070; McCallion v. Society (Cal.), 33 Pac. 329; Post v. Doremus, 60 N. Y. 371; Freeman v. Hill (Kan. Sup.), 25 Pac. 870; Snow v. Holmes, 64 Cal. 232, 30 Pac. 806; The City of Panama, 1 Wash. T. 615; Nickels v. Griffin, 1 Wash. T. 374, 394, 395; Zephyr v. Brown, 2 Wash. T. 44, 3 Pac. 186. Same Good Voluntary Bond. The vessel at time of ap- peal was in actual possession of appellants, which fact appeared of record. The bond recited that the judgment was against them for delivery of pos- session to claimant. Having been given to secure a stay of proceedings un- der these circumstances, it was necessarily given to enable appellants to re- tain possession pending appeal. Held, it was in the nature of a stipulation for value, and claimant, in reliance thereon, actually refrained from dis- turbing appellant's possession pending appeal, the instrument was valid as a voluntary bond. Braithwaite v. Jorden et al (on rehearing,) .... N. D. . . . , 65 N. W. 701 (718); Messonier v. Kauman, 3 Johns. Ch. 66; Brad well v. Weeks, 1 Johns, Ch. 325; Brewster v. Cowan (Conn.), 10 Atl. 509-511; Al- len v. Hopper, 24 N. J. Law 514; Entwistle v. Shepard, 2 Term R. 78; Kempland v. Macauley. 4 Term. R. 436; The John, 2 Hagg. Adm. 305-317; The Elize, 2 Spinks 34; The Gram Para, 10 Wheat. 497. Replevin Parties to Bond New Liability. Where defendant's sureties on appeal in replevin are the same as the sureties on the replevin bond, against whom the judgment was entered as well as against defendant, it seems that the undertaking on appeal is not sufficient to stay proceedings on the judgment; (following S. C., 23 Wis. 506.) Bonesteel et al v. Orvis, 20 Wis. 646; but the undertaking to pay costs and damages on appeal, is the assumption of a new liability by such sureties, and is sufficient to per- fect the appeal. Id. CODE OF CIVIL PROCEDURE. SAME-ON EXECUTION OF CONVEYANCE, ETC. 5222, Comp. Laws; 5612 Rev. Codes N. D. If the judgment appealed from direct, the execution of a conveyance or other instrument the execution of the judgment shall not be stayed by the appeal, unless the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. (Sec. 9, chap. 20, Laws 1887, Dak. ; sec. 10, chap. 120, Laws 1891, N. D. ) Rev. Stat. Wis. 1878, sec. 3055. Sec. 417 C. C. P.; Levisee, p. 123; Wait's Code I 337; Harst. Pr. Deer. Code ? 5)44. Consult two preceding sections, and decisions thereunder. SAME ON SALE, ETC., OF REALTY. 5223 Comp. Laws; 5613 Rev. Codes N. D. If the judgment appealed from direct the sale or delivery of possession of real property (except in actions for foreclosure of mortgage), the execution of the same shall not be stayed unless an undertaking be executed on the part of the appellant, by at least two sureties, in such sum as the court or presiding judge thereof shall direct, to the effect that during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment. Sec. 10, chap. 20, Laws 1887, Dak.; sec. 11, chap. 120, Laws 1891, N. D. ) Rev. Stat. Wis. 1878, sec. 3056. Sec. 418 C. C. P.; Levisee p. 123; Wait's Code 338; Harst Pr. Deer Code, g 945. Consult three preceding, and the following section: Possession of Realty Changing- Wording of Bond. On appeal to this court from a district court order refusing to vacate an order for dismis- sal of an appeal from justice's court, in an action for possession of realty, an appeal undertaking was given in which, in the language constituting the condition, the term "if the judgment be affirmed" was used; lield, in an ac- tion on the undertaking, that the word "judgment" could not be expunged and the word "order"' substituted, as a clerical error; there being no at- tempt to reform the instrument on ground of mistake. Travelers' Ins. Co. v. Weber et al, 4 N. D. 135, 59 N. W. 529. OF APPEALS IN CIVIL ACTIONS. 221 SAME ON SALE OF MORTGAGED PREMISES, 5224 Comp. Laws; 5614 Rev. Codes N. D. If the judgment appealed from direct the sale of mortgaged premises, the execution thereof shall not be stayed by the appeal, unless an undertaking be ex- ecuted on the part of the appellant, by at least two sureties, conditioned for the payment of any deficiency which may arise on such sale, not exceeding such sum as shall be fixed by the court or presiding judge thereof, to be specified in the under- taking, and all costs and damages which may be awarded to the respondent on such appeal. (Sec. 11, chap. 20, Laws 1887, Dak.; sec. 12, chap. 120, Laws 1891, N. D.) Rev. Stat. Wis. 1878, 3057; Wait's Code, 338; Harst Pr. Deer. Code, 945. Consult two preceding sections, and decisions under sec. 5220, Comp. Laws, sec. 6610, Rev. Codes, N. D., supra. SAMEABATEMENT, ETC., OF NUISANCE. 5225, Comp. Laws; 5615 Rev. Codes N. D. If the judgment appealed from direct the abatement, or restraint of the continuance of a nuisance, either public or private, the execution of the judg- ment shall not be stayed by the appeal unless an undertaking be entered on the part of the appellant, by at least two sure- ties, in such sum as the court, or presiding judge thereof, shall direct, to the effect that the appellant will pay all damages which the opposite party may sustain by the continuance of such nuisance, (Sec. 12, chap. 20, Laws 1887, Dak.) [Sec. 5615, Rev. Codes, N. U., is the same, except that the words "un- less an undertaking be entered" are changed to read "unless an undertaking is entered into." (Sec. 13, chap. 120, Laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3058. SAME -WHERE NO STATUTORY PROVISION APPLIES. 5226, Comp. Laws; 5616 Rev. Codes N. D. If the judgment ap- pealed from direct the doing of any particular act or thing, and no express provision is made by the statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by the appeal therefrom unless an un- dertaking be entered on the part of the appellant, in such sum as the court, or presiding judge thereof, shall direct, and by a.t >2'2'2 CODE OF CIVIL PROCEDURE. least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by not doing the particular act or thing directed to be done by the judgment appealed from, and to such further effect as such court or judge shall in discretion direct. . (Sec. 13, chap. 20, Laws 1887, Dak. ) ' [Sec. 5616, Rev. Codes, is the same, except that the words "unless an undertaking be entered" are changed to read "unless an undertaking is en- tered into." (Sec. 14, chap. 120, Laws 1891, N. D.)] Rev. Stat. Wis. 1878, 3059; I 422 C. C. P.; Levisee p. 124. Consult sees. 5218, 5219, Comp. Laws, sees. 5608, 5609, Rev. Codes, N. D.; also, Wisconsin decisions cited under sec. 5220, Comp. Laws, sec. 5610, Rev. Codes, N. D., supra. Election Contest No Stay. A stay of proceedings cannot be effected under the statute, on appeal from a final judgment in an election contest proceeding; the provisions of the statute commented upon. Flypaa v. Brown Co., . . . . S. D , 62 N. W. 962. APPEAL FROM ORDER STAY UNDERTAKING INTERMEDIATE ORDER. 5227 Comp. Laws; 5617 Rev. Codes N. D. When the appeal is from an order the execution or performance there- of shall not be delayed, except upon compliance, as the court or presiding judge thereof shall direct, and when so required, an undertaking shall be executed on the part of the appellant, by at least two sureties in such sums and to such effect as the court or presiding judge thereof shall direct; such effect shall be directed in accordance with the nature of the order ap pealed from, corresponding to the foregoing provisions in respect to appeals from judgments, where applicable, and such provision shall be made in all cases as shall properly protect the respondent, and no appeal from an intermediate or- der before judgmenl shall stay proceedings, unless the court or presiding judge thereof shall, in his discretion, so specially order. (Sec. 14, chap. 20, Laws 1887, Dak.) [Sec. 5617, Rev. Codes, N. D., ia the same, except that in lieu of the words "except upon compliance," the words "except upon compliance with such conditions" are used. (Sec. 15, chap. 120, Laws 1891, N. D.)] Rev. Stat. Wis. sec. 3060. Consult sees. 5218, 5219, 5226, Comp. Laws; sees. 5608, 5609, 5616, Rev. Codes, N. D.; also Wisconsin decisions cited under sec. 5220, Comp. Laws, sec. 5610, Rev. Codes, N. D., supra. OF APPEALS IN CIVIL ACTIONS. 223 Order Granting Injunction Property in Statu Q,uo. Where an appeal is from an order granting or continuing a temporary injunction upon a sufficient bond, the only purpose and effect of which injunction is to hold the property involved in statu quo during the pendency of the litigation, the title to the property being in dispute and in doubt, depending upon many questions of law, and probably of fact, not considered or discussed by coun- sel on such preliminary appeal, this court will treat the question of title as a doubtful one, and decide only whether, under such circumstances, the tem- porary injunction was rightly granted. Huron Waterworks Co. v. City of Huron (on rehearing), 4 S. D. 102, 55 N. W. 759. Habeas Corpus No Discharge by Perfecting Appeal. On habeas corpus, it was urged in this court, upon appeal, that the petitioner has be- come entitled to his discharge by reason of his having perfected an appeal from the contempt order. But the perfecting of an appeal does not stay the execution of such order To secure such stay appellant (petitioner here), should have complied with sec. 15, chap. 120, Laws 1891. No application was made to the district court lo have the terms on which it would allow a stay of proceedings fixed. State ex rel Mears v. Barnes, sheriff, N. D. ....,65 N. W. 688. Appeal from Intermediate Order Does Not Stay Proceedings. An appeal from an intermediate order before judgment, does not stay proceedings in the action unless the court so orders. Thus, the pendency of an appeal from an order striking out some other portion of the answer will not prevent the making of a subsequent order sustaining or overruling a demurrer to a counter-claim in such answer. Noonan v. Orton, 30 Wis. 356. Setting Aside Order Appealed From, After Appeal Nullity. Where an order was made fixing the amount of an undertaking to perfect appeal, and four days afterward the respondent procured an order to set aside and stay tho proceedings under the first order, and the appellants had complied with the first order, and perfected the appeal before service of the second: Held, that the appeal itself stayed all proceedings in the circuit court; and that the last order was a nullity. Spaulding et al v. Mil. & Horicon R. Co. et al, 11 Wis. 157; Hudson v. Smith, 9 Wis. 122; Beesan v. Eilers, 11 Wis. 289; Grant v. Conn. M. L. Ins. Co., 28 Wis. 388. SAME ATTACHMENT, INJUNCTION UNDERTAKING JUDGE'S ORDER RESPONDENT'S UNDERTAKING. 5228, Comp. Laws; 5618 Rev. Codes N. D. When a party shall give immediate notice of appeal from an order vacating or modifying a writ of attachment, or from an order denying, dissolving, or modify- ing an injunction, he may within three days thereafter serve an undertaking executed on his part by at least two sureties in such sum as the court or presiding judge thereof shall direct, CODE OF CIVIL PROCEDURE. to the effect that if the order appealed from or any part thereof be affirmed the appellant will pay all costs and damages which may be awarded against him on appeal, and all which the ad- verse party may sustain by reason of the continuance of the at- tachment, or the granting or continuance of the injunction, as the case may be. Upon the giving of such undertaking such court or judge shall order the attachment to be continued, and in his discretion, may order the injunction asked to be allowed, or that before granted to be continued until the decision of the appeal, unless the respondent shall, at any time pending the ap- peal, give an undertaking, with sufficient surety in a sum to be fixed by the court or presiding judge, to abide and perform any final judgment that shall be rendered in favor of the appel- lant in the action, but may at any time subsequently vacate such order if the appeal be not diligently prosecuted. (Sec. 15, chap. 20, laws 1887, Dak. ) [Sec. 5618, Rev. Codes, N. D., is the same, except that in lieu of the words "three days," the words "six days" are used. (Sec. 16, chap. 120, laws 1891, N. D.)] Rev. Stat. Wis 1878, sec. 3061. Sec. 424, 425, 22, C. C. P.; Levisee p. 125, 4, 5; Wait's Code, sec. 457; Harst. Pr. sec. 946. Consult preceding section. Section Construed Relates To Continuance Of Attachment. Sec. 5228, Comp. Laws, has no reference to the right of appeal, but re- lates solely to the continuance of the attachment in full force and effect pend- ing appeal; so held, where it was contended that no appeal lies from an or- der dissolving attachment, when no stay-bond or undertaking is granted upon such order. Quebec Bank v. Carroll et al, 1 S. D. 1, 44 N. W. 723; Wyman et al v. Wilmarth, 1 S. D. 35, 44 N. W. 1151. Consult State ex rel v. Rose, 4 N. D. 319, 58 N. W. 514 (520), where is found a dictum concerning appeal undertaking on appeal from order vacating attachment. Injunction Judge at Chambers. A party applying for an injunction, under laws of 1861 (Wis.), to a judge at chambers, who wishes to appeal to supreme court fi'om an order refusing his application, must give immediate notice of appeal, and must within three days tender to the opposite party a written undertaking, etc. Punch et al v. Town of New Berlin et al, 20 Wis. 189; Couldren v. Caughey, 29 Wis. 317. APPEAL BY STATE; STAYS EXECUTION-COURT MAY REQUIRE SURETY CAUSE ADVANCED. 5229 Comp, Laws. When the OF APPEALS IN CIVIL ACTIONS. 225 state or any state officer, or state board, in a purely official ca- pacity or any municipal corporation or its officers in a purely official capacity, within the state, shall take an appeal, the case appealed shall be placed on the supreme court calendar im- mediately following the criminal cases, and shall have preced- ence over all other business before the court, except criminal business, and shall be heard and determined next in order. Service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order ap- pealed from and no undertaking need be given. But the su- preme court may, on motion, require surety to be given in such form and manner as it shall in its discretion prescribe as a con- dition of the further prosecution of the appeal. (Sec. 16, chap. 20, laws 1887, Dak., am'd, sec. 1, chap. 59, laws 1893, S. D. ) SAME. 5619 Rev. Codes N. D. When the state or any state officer or state board, in a purely official capacity, or any mu- nicipal corporation within the state, shall take an appeal, ser- vice of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order ap- pealed from, and no undertaking need be given. But the su- preme court may on motion require surety to be given, in such form and manner as it shall in its discretion prescribe, as a condition of the further prosecution of the appeal. (Sec. 16, chap. 20, laws 1887, Dak., am'd, sec. 17, chap. 120, laws 1891, N. D. ) Rev. Stat. Wis. 1878; sec. 3062; Sec. 24, C. (J. P.; Levisee, p. 7. NEW UNDERTAKING, WHEN CONSEQUENCE OF DEFAULT. 5230 Comp. Laws; 5620 Rev. Codes N. D. The supreme court, upon satisfactory proof that any of the sureties to an un- dertaking given under this act has become insolvent, or that his circumstances have become so precarious that there is rea- son to apprehend that the undertaking is insufficient security, iray in its discretion require the appellant to file and serve a new undertaking, with such sureties and in such time as shall 15 TP CODE OF CIVIL, PROCEDURE. be prescribed, and that in default thereof the appeal shall be dismissed or the stay of proceedings vacated, and the execu- tion or performance of the judgment or order be allowed to be enforced without further delay. (Sec. 17. chap. 20, Laws 1887, Dak.; sec. 18, chap. 120, Laws 1891, N. D.) Rev. Stau Wis. 1S7& sec. 3063. Consult sees. 3231. 323*. Comp. Laws; sees. 5621, 5625, Rer. Codes, N. D. Design of this Section Neglect. This section is only designed to meet cases where a surety once accepted has subsequently become insolvent. Winton v. Kirby et al, ____ S.D ..... , 60 N. W. 409. Where respondent has neglected to except to such sureties, he cannot afterwards in this court ob- tain an order for a new undertaking upon a showing of a surety's irresponsi- bility, existing and known to respondent when the undertaking was served. Id. Elliott, A pp. Proc. sec. 684; Johnston v. King, 83 Wis. 10, 53 N. W. 28. Hew Undertaking Allowable, When. When a motion to dismiss the appeal is made in the appellate court on the ground that the undertaking filed is insufficient, and the appeal appears to have been taken in good faith, the appellate court has the power, and it is its duty, to permit appellant to file a new undertaking, upon such terms as may be just, and when such undertak- ing is filed, to deny the motion to dismiss the appeal. Tbwle v. Bradley, 2 S. D. 472, 50 N. W. 1057: Howard v. TTrnnm t 5 CaL 78; Coulter v. Stark, 7 CaL 244: Billings v. Road house. 5 Cal. 71; Cunningham v. Hopkins, 8 CaL 34. These views do not conflict with the views expressed by this court in Rudolph T. Herman, 2 S. D. 399, 50 N. W. 833. Towle v. Bradley, supra. Insufficient Affidavit Additional Abstract. When respondent claims thai the affidavit to the undertaking on appeal is insufficient in form, it is proper practice to bring the same before this court by an additional abstract. Tollerton & Stetson Co. v. Casperson, ____ S. D. ____ , 63 X. W. 908. In- effectual Undertaking New One. An affidavit to an undertaking on ap- peal that does not substantially comply with the provisions of sec. 5233, Comp. Laws, renders the undertaking ineffectual as an undertaking on ap- peal. This court, upon a proper showing, and upon such terms as may be just, is authorized to permit a new and sufficient undertaking to be filed in this court, where the original undertaking does not comply with sec. 5232. Tollerton & Stetson Co. v. Casperson, ... S. D. ..... 63 N. W. 908; Hel- den v. Helden, 9. Wis. 508: Falk v. Goldberg, 45 Wis. 94." UHDERJAKIHGOKE IHSTRUUEMT OR SEVERAL FILING AMD SERING FIXING AMOUNT PRACTICE. 5231 Comp. Laws; 5621 Rev. Codes N. D. The undertaking required by this act may be in one instrument or several, at the option of the appel- lant; the original must be filed with the notice of the appeal, OF APPEALS IN CIVIL ACTIONS. L'l'7 and a copy showing the residence of the sureties must be served < with the notice of appeal. When the sum or effect of any under- taking is required under the foregoing provisions to be fixed by the court or judge, at least twenty-four hours' notice of the ap- plication therefor shall be given the adverse party. When the court, or the judge thereof, from which the appeal is taken, or desired to be taken, shall neglect or refuse to make any order or direction not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal, the supreme court, or one of the justices thereof, shall make such order or direction. (Sec. 18, chap. 20, Laws 1887, Dak.; sec. 18, chap. 120, Laws 1891, N. D.) Rev. Stat. Wis. 1878, sec. 3064. Sec. 420, 423, C. C. P.; Levisee p. 124, 125; Wait's Code 340, 343; Hurst Pr., Deer. Code, 947, 948. Consult sees. 5226, 5232, 5235, Comp. Laws; sees. 5616, 5622, 5623, Rev. Codes, X. D. Undertaking and Notice Served on Attorney. This section pro- vides: "The original (undertaking) must be filed with the notice of appeal and the copy * * * must be served with the notice of appeal." Construing this section, together with sec. 5215 and sec. 5336, Comp. Laws, it would seem that when the adverse party has an attorney of record, the notice of appeal and undertaking should be served upon such attorney. Such seems to have hern the view taken by the supreme court of California under quite similar provisions of the code of that state. McKittrick v. Pardee, S. D , (io N. W. 23; Abrahms v. Stokes, 39 Cal. 150. Undertaking Executed Be- fore Appeal, Valid. The fact that an undertaking such as is required ua- der this section, reciting that appellant "hereby intends to appeal" was ex- ecuted and filed more than three months before the notice of appeal did not invalidate it, where a copy of it was served with the notice of appeal, and tin- original was refiled with such notice. Pierce et al v. Manning, 1 S. D. ."mi, 47 N. W. 295. Not Applicable to Appeal from Justice. Sec. 5232, Comp. Laws, does not apply to Sureties on an appeal from justice's court to the county court. Towle v. Bradley, 2 S. D. 472, 50 N. W. 1057. AFFIDAVIT OF SURETIES EXCEPTION TO-JUSTIFICATION. 5232 Comp. Laws; 5622 Rev. Codes N. D. An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a certain sum mentioned in such affidavit, over and above all his debts and liabilities, in property within this L!:> CODE OF CIVIL PROCEDURE. state not by law exempt from execution, and which sum so sworn to by such sureties shall, in the aggregate, be double the amount specified in said undertaking. The respondent may, however, except to the sufficiency of the sureties within ten days after such notice of the appeal, and unless they or other sureties justify in the same manner as upon bail on ar- rest within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days. (Sec. 19, chap. 20, laws 1887, Dak. ) [Sec. 5622, Rev. Codes, N. D., is the same, except that for the words "upon bail on arrest," the words "as bail upon an arrest" are substituted. (Sec. 20, chap. 120, Laws 1891 N. D.)] Rev..Stat. Wis. 1678, sec. 3065. Sec. 421, C. C. P.; Levisee, p. 124; Wait's Code, sec. 341; Harst Pr. Deer. Code 948. For proceedings upon bail on arrest see sees. 4959, to 4962, Cornp. Laws; sees. 163 to 166, C. C. P.; Levisee, p. 47, 48; Wait's Code, sec. 193 to 196, Harst Pr. Deer. Code, sees. 493 to 496. Attorney Cannot be Surety Scope of Statute. Section 469, Comp. Laws, providing that "no practicing attorney and counselor shall be a surety in any suit or proceeding which may be instituted in any of the courts of this territory," applies to all suits and proceedings pending in the courts of this state, and is not limited to those with which an attorney may be connected in his professional capacity. Towle v. Brad- ley, 2' S. D. 472, 50 N. W. 1057; Gilbank v. Stephenson, 30 Wis. 156; Cothren v. Connaughton, 24 Wis. 137; Schuek v. Hagar, 24 Minn. 341. Held, further, that the statute deprives an attorney of the legal power of ability to become a surety in any suit or proceeding; that it is not a person- al privilege which an attorney, or a party to the action in which an attorney executes an undertaking as surety, may waive, but on grounds of public policy the statute intends to and does disqualify him absolutely from enter- ing into any such contract. Towle v. Bradley, supra. Neglect to Except Waiver. If respondent deliberately neglect to avail himself of the oppor- tunity afforded under sec. 5232, Comp. Laws, to except to the sufficiency of the sureties, he will be held to have accepted such sureties as sufficient. Winton v. Kirby et al S. D 60 N. W. 409; Elliott App. Proc. sec. 684; Johnston v. King, 83 Wis. 10, 53 N. W. 28. PERFECTING APPEAL STAYS PROCEEDINGS POWER OF COURT BELOW. 5233 Comp. Laws; 5623 Rev. Codes N. D. When- ever an appeal shall have been perfected and the proper under- OF APPEALS IN CIVIL ACTIONS. 229 taking given, or other act done prescribed by this act to stay the execution or performance of the judgment or order ap- pealed from, all further proceedings thereon shall be thereby stayed accordingly, except that the court below may proceed upon any other matter included in the action, not affected by the judgment or order appealed from and except that the court or presiding judge thereof may order perishable property, held under the judgment or order appealed from, to be sold, and the proceeds paid into the court to abide the event. (Sec. 20, chap. 20, laws 1887, Dak.; sec. 21, chap, 120, laws 1891, N. D.) Rev. Stat. Wis. 1878, sec. 3066. Sec. 419, 422, C. C. P.; Levisee p. 124; Wait's Code, 339, 342; Harst. Pr., Deer. Code, sec. 946, 949. Consult sec. 5235, Comp. Laws, sec. 5625, Rev. Codes, N. D. Entry of Judgment After Stay Error "Proceedings." It is error to enter judgment in a case when, after verdict, a stay of all proceedings has been ordered, if entry of judgment was within the time in which the order is operative. Uhe v. Chi., M. & St. P. Ry. Co., 3 S. D. 563, 54 N. W. 601, (affirmed on rehearing, 4 S. D. 505, 57 N. W. 484.) In passing upon the meaning of the word "proceeding," the court in this case quote with ap- proval the following definition, found in Morewood v. Hollister, 6 N. Y. 319: u The term proceedings, in its more general sense in law, means all the steps or measures adopted in the prosecution or defense of an action." Cit- ing also, Gordon v. State, 4 Kan. 501; Bouvier, Law Die. vol. 2, p. 340; And. Law Die. 816; Yeager v. Wright, 112, Ind. 235, 13 N. E. 707. Payment of Money Time for Extended Modifying Judgment. Where a time is prescribed within which money must be paid to entitle a party to the bene- fit of the judgment, the court may, even after such time has expired, extend it by a modification of the judgment in furtherance of justice; and it may modify a judgmerit directing payment to be made to a party by providing for payment to the clerk of court for the benefit of such party. Tyler v. Shea, 4 N. D. 377, 61 N. W. 469; 2 Dan. Ch. PI. & Pr. (3rd Am. Ed.) pp. 1017, 1018; Rauth v. R. R. Co. (Sup. Ct. N. Y.) 23 N. Y. Supp. 750; Conk- lin v. R. R. Co. (Sup.)Ct. N .Y. Supp. 782, 3Freem. Judgm. sec. 70; Genet v. Canal Co. 113 N. Y. 475, 21 N. E. 390; Jones v. Davenport (N, J. Ch.) 17 Atl. 570. Amending Record Power of Trial Court After Argument Above. When upon appeal from district court, the original papers are sent to su- preme court, and when the case has been fully argued and submitted in this court upon such record, the trial court has thereafter no authority or power to amend or correct such record, unless, upon application to this court, the record is remanded for such purposes. Moore v. Booker et, 4 N. D. 543, 62 230 CODE OF CIVIL PROCEDURE. N. W. 607 (on rehearing); Levi v. Karrick, 15 Iowa, 444; Carmichael v. Vandeburr, 51 Iowa, 225, 1 N. W. 477; Perry v. Breed, 117 Mass. 155; Pen- rice v. Wallis, 37 Miss. 172; Keyserv. Farr, 105 U. S. 265; State v. Jack- son (N. C.), 16 S. E. 906; Elliott, App. Proc. sec. 205. The court, in Moore v. Booker, supra, after citing with approval the above cases, say: "From these authorities it appears that, while in some jurisdictions the record re- maining in the trial court may be amended or corrected by the trial court after an appeal is perfected, yet the prevailing doctrine would seem to deny any power in the trial court to change the record in any manner that would affect the disposition of the case in the appellate court, without an applica- tion to the appellate court to have the record remanded for amendment or correction. The facts of this case require us to go no further than to hold that when, upon an appeal to this court, the original papers are sent up, and when the case has been argued and submitted upon the record as thus sent to this court, the trial court has thereafter no power to amend or cor- rect the bill of exceptions as contained in the record, unless, upon applica- tion to this court, the bill is remanded for that purpose." DAMAGES REFERENCE BELOW AFTER DECISION WHAT DEEMED BREACH OF UNDERTAKING. 5234 Comp. Laws; 5624 Rev. Codes N. D. When the amount of damages to be paid by the appellant on affirmance of the judgment or order appealed from, pursuant to any undertaking, is not fixed by the judg- ment or decision of the supreme court on the appeal, the dis- trict court may, after the remittitur of the record from the su- preme court is filed, order a reference to ascertain such dam- ages, the expense of which shall be included and recoverable with such damages. In all cases a neglect for the space of thirty days after the affirmance on appeal of a judgment direct- ing the payment of money, to pay the amount directed to be paid on such affirmance, shall be deemed a breach of the un- dertaking on such appeal. A neglect for a space of thirty days after the confirmation of the report of a referee, to whom a ref- erence has been ordered for the purpose of ascertaining the damages to be paid, on the affirmance of any other judgment or order appealed from, to pay the amount of damages so ascer- tained and the costs of such reference, shall be deemed a breach of the undertaking on such appeal. The dismissal of an appeal or writ of error by the appellant or plaintiff in error, or by the court for want of prosecution, unless the court shall, at the time, OF APPEALS IN CIVIL ACTIONS. 231 .. . . * otherwise expressly order, shall render the sureties upon any undertaking or bond, given under this act, liable in the same manner and to the same extent as if the judgment or order ap- pealed from, or the judgment brought up on error had been affirmed. (Sec, 21, chap. 20, Laws 1887, Dak.) [Sec. 5624, Rev. Codes, N. D., is the same, except that in lieu of the words "for a space of thirty days after the confirmation", etc., it reads "for the space of sixty days", etc.; and the last sentence in theN. D. section reads: "The dismissal of an appeal by the appellant or by the court for want of prose- cution, unless the court shall at the time otherwise expressly order, shall ren- der the sureties upon the undertaking or bond given under this chapter lia- ble in the same manner and to the same extent as if the judgment or order appealed from had been affirmed." (Sec. 22, chap. 120, Laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3067. Surety Principal Holding 1 Other Security Resort Thereto. It is no defense to an action against sureties on an appeal undertaking that plain- tiff holds security amply sufficient to pay the claim for which the sureties have become bound, and that plaintiff has refused on demand to resort to such security for payment, there being no proof that the sureties were prejudiced by such refusal. Bingham v. Mears et al, 4 N. D. 437, 61 N. W. 808; 1 Brandt Sur., sec. 97, 237; Fuller v. Loring, 42 Me. 481; Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718; Morrison v. Bank, 65 N. H. 253, 20 Atl. 300; Aber- crombie v. Knox, 3 Ala. 728; Allen v. Woodward, 125 Mass. 400; Jones v. Tincher, 15 Ind. 308; Brick v. Banking Co., 37 N. J. Law 307; Buck v. San- ders, 1 Dana 187; Day v. Elmore, 4 Wis. 190; Penn v. Ingles, 82 Va. 65;' Da- vis v. Patrick, 6 C. C. A. 632, 57 Fed. 909; Callahanv. Mitchell, 29 Ind. 419; Aultman v. Smith, 52 Mo. App. 351; 24 Am. & Eng. Ency. Law, p. 799 and cases cited; Burge Sur^ 341; Hayes v. Ward, 4 Johns. Ch. 123. Whether a surety may not, under exceptional circumstances, compel a creditor to ex- haust collateral security being suing him, not decided. Bingham v. Mears et al, supra. AMENDMENT JO PERFECT APPEAL MISTAKE OR ACCIDENT. 5235 Comp. Laws; 5625 Rev. Codes N. D. When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, may permit an amendment, or the proper act to be done on such terms as may be just. (Sec. 22, chap. 20, Laws 1887, Dak., sec. 23, chap. 120, Laws 1891, N. D.) 282 CODE OF CIVIL PROCEDURE. Rev. Stat. Wis. 1878, sec. 3068. Consult sees. 5230, 5231, 5232, Corap. Laws; sees. 5620, 5621, 5622, Rev. Codes, N. D., and decisioi s thereunder. Lower Court Cannot Amend Record, When. When the case has been fully argued here on appeal upon the original papers, and submitted, the trial court has thereafter no authority or power to amend or correct the record, unless upon application to this court ths record is remanded for such purposes. Moore v. Booker et al (on rehearing), 4 N. D. 543, 62 N. W. 607, and cases there cited; (see said cited cases, under sec. 5233, Comp. Laws, su- pra). Ineffectual Appeal New Affidavit. An affidavit to an undertaking that does not substantially comply with sec. 5232, Comp. Laws, renders the undertaking ineffectual on appeal. Tolerton & Stetson Co. v. Casperson, S. D ,63 N.W. 908. Where the defect was evidently made through mistake or accident, as in this case, we are of opinion that under the liberal provisions of sec. 5235, Comp. Laws, appellant should be permitted to file a new undertaking. Id.; Helden v. Helden, 9 Wis. 508; Falk r. Goldberg, 45 Wis. 94. Undertaking Appeal from Justice Omitted Condition. On appeal to this court from an order of district court dismissing appeal to that court from justice's court, held, that the fact that the undertaking on appeal from justice's court omits the condition binding appellant to obey any order of district court, in case it should dismiss the appeal or affirm the judgment (J. C. sec. 93), does not warrant the district court in dismissing the appeal, where appellant offers to amend the undertaking by inserting such condi- tion. Keehl v. Schaller, 6 Dak. 499, 50 N. W. 195. APPEALABLE ORDERS ENTRY, FOR APPEAL 5236 Comp. Laws; 5626 Rev. Codes N. D. The following orders, when made by the court, may be carried to the supreme court: 1. An order affecting a substantial right, made in any ac- tion, when such order in effect determines the action and pre- vents a judgment from which an appeal might be taken. 2. A final order affecting a substantial right, jnade in spe- cial proceedings, or upon a summary application in an action for judgment. 3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial; or when it sustains or overrules a demurrer. 4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor, on account of the frivolousness of a demurrer, answer or reply, or OF APPEALS IN CIVIL ACTIONS. 233 strikes off such demurrer, answer or reply on account of the frivolousness thereof. 5. From orders made by the district (circuit) court, va- cating or refusing to set aside orders made at chambers, where, by the provisions of this act, an appeal might have been taken, in case the order so made at chambers had been granted or de- nied by the district (circuit) court in the first instance. For the purposes of an appeal from an order, either party may re- quire the order to be entered by the clerk of record, and it shall be entered accordingly. (Sec. 23, chap. 20, Laws 1887, Dak.) [Sec. 5626, Rev. Codes, N. D., is the same, down to subd. 5, which is as follows: "Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made with- out notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice." (Sec. 24, chap. 120, Laws 1891; sec. 1, chap. 83, Laws 1893, N. D.)] Rev. Stat. Wis. 1878, sec. 3069. Sec. 22, 425 C. C. P.; Levisee p. 5, 6, 125; Wait's Code 11, 457; Harst. Pr. Deer. Code 963. Consult sees. 5213, 5214, 5216, Com p. Laws; sees. 5603, 5604, 5605, Rev. Codes, N. D.; Rula 27, Sup. Ct. S. D.; Rule 32, Sup. Ct. N. D. Post. Generally. Denying Motion to Set Aside Service Not Appealable. An order denying a motion to set aside the service of a summons is not within either provision of sec. 5236, Comp. Laws, and is not appealable. Ryan v. Daven- port, 5 S. D. 203, 68 N. W. 568; Orton v. Noonan, 32 Wis. 104; Rahn v. Gun- nison, 12 Wis. 528; Haynes on New Tr. & App., 188, and cases there cited. Refusing to Vacate Judgment Presumption From Abstract. Upon ap- peal from an order refusing to vacate a judgment against appellant, and to allow him to defend, it was objected by respondent that the abstract fails to show that the judgment was ever entered, and that until that is done the or- der is not appealable. Held, that where the abstract sets out such matter, not jurisdictional, as could only be gathered from a duly authenticated rec- ord, it will be construed as claiming that the record was duly authenticated, and in absence of denial such facts will be considered as admitted. Searles v. Christensen, S. D , 60 N. W. 29; Mercantile Co. v. Faris, 5 S. D. 348. SUBDIVISION 7. Consult decisions under following subdivisions. 234 CODE OF CIVIL PROCEDURE. (a). Appealable Orders. Presumably a Court Order, When Final Judgment. An order made by a circuit judge within his circuit, in an action tried without a jury, is presumably a court order and not a judge's order, unless the contrary clearly appears. Lawrence Co. v. Meade Co S. D ,62 N. W. 957; Evans v. Bradley, 4 S. D. 83, 55 N. W. 721. Said order is appealable. Id. An order reciting at its close: "And, the court being fully advised in the premises, it is ordered and adjudged that said objection be sustained, and the complaint herein be dismissed, with costs." etc., is a final judgment. Lawrence Co. v. Meade Co S. D , 62 N. W. 957. Certiorari Re- fusing to Set Aside Order Second Execution Sale Mechanic's Liens. On certiorari to this court for purpose of having reviewed the question of jurisdiction of the circuit court to order a second sale of certain premises, which had once been sold under foreclosure of mechanic's liens, where peti- tioner, assignee of the certificate of such former sale, had commenced an action upon an indemnity undertaking given by former owner, ot the property, and their sureties, to protect petitioner from such liens, in which action the defense that the property had been conveyed to petitioner in con- sideration of satisfaction of petitioner's bond and mortgage for a loan on the property, and of payment by it of said liens, was interposed, and the action dismissed; whereupon holders of certain liens which had been adjudicated but not satisfied, applied for execution, which was ordered issued, and which, upon application of petitioner, the court refused to set aside, which order occasioned application for this writ; Held, that it is not clear that the order in question was not appealable, as one affecting a substantial right, made upon a summary application after judgment. American Sav. & Loan Ass'n. v. Campbell, Judge, S. D , 65 N. W. 815; Carney v. R. R. Co. 15 Wis. 503; Jessup v. Bank, Id. 604. Refusing to Vacate Judg- mentEvidence in Abstract. Where, on appeal from an order of the county court refusing to vacate a judgment and allowing appellant to de- fend, respondent claims the abstract does not show that the order appealed from was ever entered by the clerk, the abstract will be considered as claiming that the record was properly authenticated, where it sets out such matter, not jurisdictional, as could only be gathered from an authenticated record, in absence of any denial of such facts. Searles v. Christensen, S. D ,60N. W. 29; Mercantile Co. v. Faris, 5 S. D. 248, 58 N. W. 813. (b). Non-Appealable Orders. Refusing Application For Judgment Effect Of. An order of the dis- trict court refusing an application for judgment upon findings of a jury is not appealable under subd. 1 of this section; such order neither determines an ac- tion nor any issue in an action, nor is it the legal effect of such an order to prevent entry of an appealable judgment. For reasons which meet with our OF APPEALS IN CIVIL ACTIONS. 235 full approval, the holdings of the Wisconsin court have, without exception, been against the appealibility of such orders. Persons et al v. Simons, Sheriff, 1 N. D. 243, 46 N. W. 969; Murray v. Scribner (Wis.), 35 N. W. 311; School District v. Kemen (Wis.), 32 N. W. 42; Treat v. Hiles (Wis.) 44 N. W. 1088. Such order is not rendered appealable by a previous denial of defendant's application for. judgment on the findings. Persons v. Simons, supra, See Travelers' Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706. He- fusing: to Vacate Appealable Order Time For Appeal. This court will not review an order of the circuit court refusing to vacate an appealable or- der therefore made by such court, and which it had jurisdiction to make. Vert v. Vert, 3 S. D. 619, 54 N. W. 655. To review such order would be in effect to pass upon the merits of the first order, and the time for an appeal from and review of the first order cannot be thus extended, Id. Thompson v. Lynch, 43 Cal. 482; Ins. Co. v. Weber, 2 N. D. 239, 50 N. W. 703. Judge's Order, What is Appeal Duplicity. Where under the statute a judge, as distinguished from the court, has power to make a cer- tain order, and it is evident that the judge intended to make it as his and not the court's order, it will be here regarded as made by the judge, not by the court; and such order is not appealable. An appeal from a subsequent order of court refusing to set aside such judge's order, and also from such first or judge's order in one notice, will not be dismissed for duplicity. Brown et al v. Edmunds et al, 5 S. D. 508, 59 N. W. 731; Black Hills F. & M. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342. Order Dismissing Action, Must be Entered. An order of the district court dis- missing an action for jurisdictional reasons, will authorize the clerk of the district court to enter judgment, but such an order does not itself constitute a judgment, and is not a final determination of any question. An order of dismissal, entered in the minutes of the court or recorded in an "Order Book," or written out, signed by the judge, and filed, is still an order, and does not constitute a final determination or final judgment, and is not ap- pealable. In re Weber, 4 N. D. 119, 59 N. W. 523; Hayne New Tr. & App. p. 555; Lamb v. McCanna, 14 Minn. 513 (Gil. 385); Hodginsv. Heaney, 15 Minn. 185 (Gil. 142); Thorp v. Lorenz (Minn.), 25 N. W. 712; Mouser v. Palmer, 2 S. D. 466, 50 N. W. 967; Brady v. Burke (Cal.), 27 Pac. 52. No appeal will lie from an order of the district court dismissing an action orig- inating in that court or an appeal from a justice court for jurisdictional reasons. It is not appealable under the first subdivision of sec. 24, chap. 120, laws 1891. The order is authority for entry of judgment; hence it does not "prevent the entry of a judgment from which an appeal might be tak- en." In re Weber, 4 N. D. 119, 59 N. W. 523, and above cases there cited. Same - Dismissal For Want of Jurisdiction. Where an action is dis- missed in district court for want of jurisdiction, sec. 5194, Comp. Laws, ex- pressly authorizes judgment for costs; and the right to enter judgment for 236 CODE OF CIVIL PROCEDURE. costs depends upon the validity of the dismissal, and this court on appeal from such a judgment will review the dismissal upon the merits, as well as any question touching costs properly arising upon the record. Bartholomew, C. J., dissenting. In re Weber, 4 N. D. 119, 59 N. W. 523; Gould v. Ele- vator Co., 3 N. D. 96, 54 N. W. 316. For Delivery of Attached Property to Assignee- Certiorari "Ac- tion" "Special Proceeding." After an assignee for benefit of creditors had token possession of the assigned goods, relator, a creditor of assignor, commenced an action against the assignor, in which action an attachment w;is levied on the property; whereupon, on application of the assignee, the dis- trict judge, without notice, ordered the sheriff to deliver the property to the assignee, and that the latter hold it or the proceeds of it until the valid- ity of the attachments could be determined. Held, the order was not made in any action or special proceeding pending before the lower court and is not appealable. It was granted upon the mere affidavit of the assignee, without hearing the sheriff or the plaintiff in attachment, and without no- tice to them, and is absolutely void, and should be set aside on certiorari. Nothing said by this court in Bank v. Freeman, I N. D. 196, 46 N. W. 36, conflicts with these views. State ex rel Enderlin State Bank v. Rose, Dis- trict Judge, 4 N. D. 319, 58 N. W. 514; Starr v. Trustees, 6 Wend. 564; Peo- ple v. Judges of Suffolk Co., 24 Wend. 249; 2 Spell. Extr. Rel. sec. 1911; Cal- ifornia Pac. R. Co. v. Central Pac. R. Co., 47 Cal. 528; LeGrand v. Pairall, (Iowa) 53 N. W. 115; Insurance Co. v. Duffie (Iowa), 25 N. W. 117. Con- temptWhen Order is Not Appealable. An order punishing a person for contempt in disobeying an injunction, where the proceeding is not usable as a remedy to enforce obedience to the injunction or to indemnify the party injured by the contempt, is not an order made in an action or special pro- ceeding, and is not appealable. State ex rel Edwards v. Davis, 2 N. D. 461, 51 N. W. 942; State v. Giles, 10 Wis. 101; In re Pierce, 44 Wis. 411-422; State v. Drophy, 38 Wis. 414; In re Murphy, 39 Wis. 286; 5 Crim. Law Mag. p. 652; Yates v. Lansing, 9 Johns. 395; Rap. Contempt, sec. 13; State v. Dist. Court (Minn.), 42 N. W. 598; People v. Court of Oyer & Terminer, 101 N. Y. 245, 4 N. E. 259; In re Chiles, 22 Wall. 157. Final Judgment Entry by Clerk. Under the statutes of this state, a final judgment does not be- come such, in district court, and has no force or effect, until entered by the clerk in the judgment book. In re Weber, 4 N. D. 119, 59 N. W. 523; Rock- wood v. Davenport, 37 Minn. 533, 35 N. W. 377; Williams v. McGrade, 13 Minn. 46 (Gil. 39); Brown v. Hatheway, 10 Minn. 303 (Gil. 238); Washburn v. Sharpe, 15 Minn. 63 (Gil. 43); Hodgins v. Heaney, 15 Minn. 185 (Gil. 142); Thompson v. Bickford, 19 Minn. 17 (Gil. 1); Hunter v. Stove Co., 31 Minn. 505, 18 N. W. 645; Gould v. Elevator Co., 3 N. D. 96, 54 N. W. 316; Bowman v. Tallman, 28 How. Pr. 482; Knapp v. Roche, 82 N. Y. 366. SUBDIVISION 2. Consult decisions under subds. 1, 3, 4 and 5. OF APPEALS IN CIVIL, ACTIONS. 237 (a). Appealable Orders. Vacating Order Vacating- Former Order Foreclosure Sale. An or- der vacating an order which vacated a former order setting- aside a sheriff's sale under foreclosure judgment is appealable, as affecting a substantial right upon a summary application after judgment. Bailey v. Scott, 1 S. D. 337, 47 N. W. 286. Vacating Judgment "For Judgment" A Clerical Error. An order vacating a judgment as to the moving defendant, and let- ting him in to defend, is appealable under this subdivision. Weber et al v. Tschetter et al, 1 S. D. 205, 46 N. W. 201. The phrase "for judgment" in this subdivision should read "after judgment", the word "for" having been erroneously substituted for "after" in copying the Wisconsin statute. Id. Refusing Vacation of Appealable Order Rule Applying. The rule that an order refusing to set aside an appealable order is not appealable is not imperative where the first order is plainly and obviously made without jur- isdiction; so held, upon an appeal from an order refusing to set aside an or- der requiring a defendant to pay over moneys to respondents, made in a pro- ceeding supplementary to execution. Thompson & Sons Mf'g Co. v. Guen- thner et al, 5 S. D. 504, 59 N. W. 729. Said order was not only erroneous, but void. Id. Bank v. Pugsley, 47 N. Y. 368; Bank y. Trapp, 21 How. Pr. 20; People v. Hurlbut, 5 How. Pr. 446; Crounse v. Whipple, 34 How. Pr. 333; Haggerman v. Tong Lee, 12 Nev. 331; Parker v. Page, 38Cal. 526; Vert v. Vert, 3 S. D. 619, 54 N. W. 655. (b). Non-Appealable Orders. Judgment Irregular Entry Should Move to Vacate. Where judgment is irregularly entered, good practice requires that it be first as- sailed by motion, and the order made on such motion is appealable, under subd. 2, sec. 5236, Comp. Laws. Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Stocking v. Hanson, 22 Minn. 542; Thomas v. Tanner, 14 How. Pr. 426; 3 Wait's Pr. 668; 4 Id. 637; Railroad Co. v. Murphy, 19 Minn. 500 (Gil. 433); Covert v. Clark, 23 Minn. 539. Contempt Order Special Pro- ceeding. An order punishing a person for contempt in disobeying an in- junction, is not an order made in an action or special proceeding, and is not appealable; such proceeding being not remedial but criminal in its nature. State ex rel Edwards v. Davis, 2 N. D. 461, 51 N. W. 942. Consent Order for Alimony Discretion. The making of a consent order for temporary alimony in an action for divorce, will not be reviewed on appeal except in case of abuse of discretion. Grant v. Grant, 5 S. D. 1,, 57 N. W. 948. To Show Cause in Injunction Chambers Order. An order to show cause why an order of injunction should not be made, returnable before the cir- cuit judge, concluding with the words "done in chambers," and reciting that "the judge of said court" had considered the return, is an order of the judge and not of the court, and is not appealable under sec. 5236, Comp. Laws. Black Hills F. M. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342. l':)S CODE OF CIVIL PROCEDURE. Foreclosure by Advertisement Refusing Vacation of Order for Court Proceedings --Discretion. Where several orders were made by the district court, directing discontinuance of foreclosure proceedings by adver- tiM-ment, and requiring further proceedings to be had in court, such orders, being based on sati.xfaclory affidavits, are valid. Held, further, that the remedy given by the proviso of sec. 5411, Comp. Laws, is merely cumula- tive, and not to be classed with or regulated by the principles of law and rules of practice obtaining in civil action"* in which equitable relief by in- junction is sought. McCann v. Mortgage, Bank & Investment Co.; Will- iamson v. Same; Halvorsan v. Same, 3 N. D. 172, 54 N. W. 1026. Held, fur- ther, that the proviso in said sec. 5411 is intended to confer upon judges of the district courts certain authority, exercisable at their discretion, and such discretion is non-reviewable, except in cases of abuse. McCann v. Mort., Bank & Invest. Co., supra. Nor would an appeal, in our judgment, lie in this case from the order of the court refusing to set aside the judge's order, under subd. 3, sec. 24, ch. 120, Laws 1891. We shall not pass decisively up- on the appealability of the order appealed from in this case, further than to say that it can be sustained, if at all, only as an appeal from "a final order affecting a substantial right, made in a special proceeding." Id. Consult State ex rel Enderlin State Bank v. Rose, Dist. Judge, 4 N. D. 319, 58 N. W. 514, cited under sub. 1, supra, upon the question as to what is an action, and a special proceeding. SUBDIVISION 3. Consult Subd. 1, 2, 4 and 5 of this section. (a). Appealable Orders. Discharging, etc., Attachment Appeal Before Judgment. An or- der discharging, continuing, refusing or modifying an attachment is appeal- able under this subdivision, and may be taken before judgment in the origin- al cause of action. The words "when it sets aside or dismisses a writ of attach- ment for irregularity," do not restrict the rightof appeal, as provided in the first clause of the section. Quebec Bank v. Carroll et al, 1 S. D. 1, 44 N. W. 723; Couldren v. Caughey, 29 Wis. 320; Rice v. Jerenson, 54 Wis. 250, 11 N. W. 549;Howetl v. Kingsbury, 15 Wis. 299; Wyman et al v. Wilmarth, 1 S. D. 35, 44 N. W. 1151. Consult Pearson v. Post, 2 Dak. 2'20,9N. W. 684 (686.) Upon an appeal from an order discharging an attachment made before judg- ment, and also from the judgment, Held, on authority of Quebec Bank v. Carroll, 1 S. D. 1, 44 N. W. 723, that the order is appealable, and motion to dismiss appeal is denied. Wyman et al v. Wilmarth, 1 S. D. 35, 44 N. W. 1151. Vacating Attachment. An order vacating an attachment is an ap- pealable order. Red River Valley Bank v. Freeman, 1 N. D. 196, 46 N. W. 36. Act of 1887 Not Conflicting With Organic Act. The act of 1887, authorizing an independent appeal from an order sustaining or overruling OF APPEALS IN CIVIL ACTIONS. 239 a demurrer, is not in conflict with sec. 1869 of the organic act of Dakota Territory, providing that "writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court," etc. (Mfg. Co. v. Walsh, 2 Dak. 41, 3 1ST. W. 307, ex- plained and held not inconsistent with this decision.) Greeley v. Winsor, et al 1 S. D. 618, 48 N. W. 214; White v. Railway Co., 5 Dak. 508, 41 N. W. 730; Hoi combe v. McKusick, 20 How. 552; Sleeth v. Murphy, 1 Mor- ris, 321; Long v. Long, Id, 458; Bank v. U. S. Id. 482, 5 How. 213. Granting New Trial. An order gran ting a new trial is an appealable order. Sec. 5236, subd. 3, Comp. Laws; laws 1891, N. D., regulating ap- peals, sec. 24, subd. 3. This clearly indicates that the trial judge granting a new trial must act, not arbitrarily, but upon facts showing legal ground for new trial. Braithwaite v. Aikin et al, (Rea et al, Intervenors,) 2 N. D. 57, 49 N. W. 419. (b). Non-Appealable Orders. Ruling on Evidence, Not Decision of Demurrer. A ruling sustain- ing an objection to introduction of evidence, on the ground that the com- plaint does not state facts sufficient, etc., is rfot the decision of a demurrer, within the meaning of subd. 3, sec. 5236, Comp. Laws, and is not appeal- able. Ross v. Wait et al, 2 S. D. 638, 51 N. W. 866. Sustaining Demur- rer to Answer No Judgment. An appeal cannot be taken to the supreme court from an order sustaining a demurrer to an answer, upon which no final judgment has been entered. H>rris Mfg. Co. v. Walsh, 2 Dak. 41, 3 N. W. 307. Granting Temporary Injunction. Nor from an order grant- ing a temporary injunction having the fo~ce and effect of a writ of restitution. Cole et al v. Cady et al, 2 Dak. 29, 3 N. W. 322. Order on New Trial Ap- peal From Judgment Review. Where the statute provides for a motion for new trial, and appeal from the order made thereon, quaere, whether the supreme court will, on appeal from a judgment alone, review the evidence apart from the findings. Wambole v. Foote, 2 Dak. 1, 2 N. W. 239. Order Discharging Receiver Abuse of Discretion. An order refusing to discharge a receiver is so peculiarly in the discretion of the trial court that it is only in exceptional cases, and where abuse of discretion is clearly shown, that this court would interfere with such an order. Hoffman v. Bank of Minot, 4 N. D. 473, 61 N. W. 1031. Where the trial court had, under a stipulation, dismissed an action, without knowledge that a receiver existed in the case; and the receiver applied for an order setting aside the dismiss- al, setting up want of notice of application for same, and the receivership, fraud, etc., upon which application of receiver the former order was set aside, from which order setting aside the dismissal an appeal was taken; Held, such order is not appealable, under laws 1893, Ch. 83. Hoffman v. Bank of Minot, 4 N. D. 473, 61 N. W. 1031; Hoffman v. Mortgage Bank & Inv. Co., 4 N. D. 477, 61 N. W. 1032. Order Not Mentioned In Appeal 240 CODE OF CIVIL PROCEDURE. Review Appeal From Judgment Quaere. In Wambole v. Foote, 1 Dak. 1 (28), 2 N. W. 239 (252), the question is raised, but not decided, by Shannon, J., whether in that case, being one of appeal from a judgment, an order denying a new trial not mentioned in the notice of appeal, could be reviewed on such appeal, under subd. 2 of Sec. 22, C. C. P., ie, will the ev- idence be reviewed without an appeal from the order? SUBDIVISION 4. Consult three preceding subdivisions, and subd. 5, and the next sec- tion. (a). Appealable Orders. Denying New Trial, Before Judgment Review on Appeal From Judgment. An order denying a new trial, made before judgment, is re- viewable on appeal from a judgment as an intermediate order, when the making of such order is assigned as error on the appeal from the judgment. Granger v. Roll et al S. D . . ., 62 N. W. 970. The court in this case say, in comparing our statute with that of Wisconsin: "By section 3039, Rev. St. Wis., an appeal is alkfwed from 'any judgment or order' within two years. But by section 3042 it is provided that 'the time within which an ap- peal may be taken directly from an order is further limited to thirty day?.' Sec. 5236, subd. 3 provides that an appeal may be taken from an order 'when it grants or refuses a new trial." And after quoting sec. 5237, Comp. Laws, the court proceeds to state: "The above section (5237) is copied from sec- tion 3070 of the Wisconsin statutes; but by reason of the peculiar provision of the Wisconsin statute upon the subject of appeals from orders, as above no- ticed, the decisions of that state afford us but a little aid. In a similar sec- tion in the Code of Civil Procedure of California (section 956), 'a decision or order from which an appeal might have been taken' is excepted. Hence the decisions of the California courts furnish us but little light upon this question." And after referring to the holding in Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774, to the effect that when the order denyiny new trial was made after judgment, an appeal from the order as such was required, but might be included in the notice of appeal from the judgment, t>ay: "An appeal from the order in such case is necessary, for the reason that the ord- er, being made after the rendition of the judgment, if erroneous, does not become error in the judgment, and the order can only be reviewed upon an appeal taken from the same. But, when the order is made and denied be- fore judgment is rendered, it becomes error in the judgment, and may be reviewed on appeal from the judgment, as an intermediate order involving the merits and necessarily affecting the judgment." Citing, as represent- ing the view of the Wisconsin court, Machine Co. v. Heller, 41 Wis. 657; Morris v. Niles, 67 Wis. 341, 30 N. W. 353; Machine Co. v. Gurnee, 38 Wis. 533. Appeal From Order When Surplusage. In the Granger OF APPEALS IN CIVIL ACTIONS. 241 case, supra, it was further held, that the notice of appeal from the order in that case denying a new trial may be treated as surplusage, and disre- garded. Citing Williams v. Williams, S. D , 61 N. W. 38. Sixty Day Limitation Application Of. The limitation of 60 days in which an appeal from an order may be taken, has no application to an order denying a new trial made and determined before entry of judgment, when an appeal is taken from the judgment, and the making of such order is assigned as er- ror. Granger v. Roll et al, S. D , 62 N. W. 970. Order, Amending Complaint Without Vacating Judgment. After a judgment sustaining a demurrer to the complaint, and for costs to defend- ant, was entered, and the judgment and costs were satisfied on execution, an order allowing plaintiff to serve and file an amended complaint, without va- cating the judgment, was made. Held, that such order involves the merits and is an appealable order, under subd. 4, sec. 5236, Comp. Laws. Greeley v. Winsor et al, 2 S. D. 36], 50 N. W. 630. Dismissing Complaint as In- sufficient Final Judgment. Upon a trial to the circuit court without a jury, an order was made dismissing the action, and for costs in favor of de- fendant, on objection to introduction of evidence under the complaint as not stating a cause of action, the order reciting that it was "done in chambers." On motion to dismiss an appeal from this so-called order, on the grounds that it was made by the judge and not by the court, and that it was not an appealable order, lield, that it was a final judgment, by the court, and ap- pealable. Lawrence Co. v. Meade Co., . . . S. D , 62 N. W. 957; Evans v. Bradley, 4 S. D. 83, 55 N. W. 721. Intervenor Refusing Withdrawal of Complaint by. An order refusing the right to withdraw a complaint of intervention, "involves the merits of the action or some part thereof," and is appealable. Schaetzel v. City of Huron (White, Intervenor, S. D. ...., 60 N. W. 741; McLeod v. Bertschy, 30 Wis. 324; Cooke v. Beach, 25 How. Pr. 356; Mullen v. Peck, 57 towa 430, 10 N. W. 829; Mason v. Byus,26 Kas. 464: In re Butler, 101 N. Y. 307, 4 N. E. 518; De Wolf v. Mf'g Co., 12 R. I. 133; Burns v. Reigelsberger, 70 Ind. 522; Peck v. McKellar, 33 Tex. 234; Keithley v. May, 29 Mo. 220; 1 Am. & Eng. Enc. af Law, 184 g; 5 Id. 676, note 1. Denial of Change of Venue. The denial of an application for a change of venue, based upon the ground that an impartial trial cannot be had in the county where the action is pending, is appealable, as being an or- der involving the merits, within sections 5236, 523T. Comp. Laws. White v. Chicago, M. & ST. P. Ry Co., 5 Dak. 508, 41 N. W. 730; Bank v. Tallman, 15 Wis. 101; Oatman v. Bond, Id. 23; Haas v. Weinhagen, 30 Wis. 326; Schatt- schneider v. Johnson, 39 Wis. 387; Leland v. Hathorn, 42 N. Y. 547; St. John v. West, 4 How. Pr. s29; Cram v. Bradford, 4 Abb. Pr. 193. Consult Huron Waterworks Co. v. City of Huron, 4 S. D. 102, 55 N. W. 759, as to a case of appeal from an order granting a temporary injunction. 16 TP 242 CODE OF CIVIL PROCEDURE. (b). Non-Appealable Orders. Refusing' Application for Judgment. An order of district court re- fusing application for judgment on findings of a jury, is not appealable un- der subd. 4 of this section, as involving the merits. Persans et al v. Simons, sheriff, I N. D. 243, 46 N. W. 969; Treat v. Hiles (Wis.), 44 N. W. 1088. Temporary Alimony Order For. An order for temporary alimony and counsel fees does not involve the merits af the action, or necessarily affect the judgment, and cannot be reviewed as an intermediate order on appeal from the judgment and order denying a new trial. Williams v. Williams, .... S. D ,61N. W.38. SUBDIVISION 5. (a.) Appealable Orders. Court Order Dismissing Appeal From J. P. "Judge District Court." An order of the judge of the district court to show cause "before the court at chambers," followed by an order dismissing an appeal from a justice's court, not made at a general or special term, and not reciting that it was made "by the court," but signed by the judge as "Judge District Court," etc., renders the latter prder an order of the court and not a mere "chambers order." Travelers' Ins. Co. v. Weber, 2 N. D. 239, 50 N. W. 703. Form of Order Not Optional. Held, further, that under sec. 4828, Comp. Laws, providing that district courts are "always open" except for trial of issues of fact in actions, a judge of said court cannot, at his option, by the form of an order or the style of his signature thereto, determine whether a given matter is or not a court matter. Id. (b). Non-Appealable Orders. Refusing Vacation of Order Dismissing Appeal From Justice Court Time for Appeal. Where an order of the district court dismissing an appeal from justice's court was sought to be vacated, after time for ap- peal therefrom to this court had expired, which motion to vacate was de- nied, and defendant attempted to appeal from such order refusing to vacate, held, that the order refusing to vacate the order dismissing the appeal is not appealable. This court will not take jurisdiction of an order of the district court refusing to vacate an appealable order of that court; nor can the time for appeal to this court be extended by an order of court below vacating or re- fusing to vacate an appealable order. Travelers' Ins. Co. v. Weber, 2 N. D. 239, 50 N. W. 703; Henly v. Hastings, 3 Cal. 343; Higgins v. Mahoney, 50 Cal. 446; Holmes v. McCleary, 63 Cal. 497; Larkin v. Larkin (Cal.), 18 Pac. 396; Thorn psonv. Lynch, 43 Cal. 482; Kittredge v. Stevens, 23 Cal. 283. Orders by Mistake- Vacating. This holding, however, does not extend to such orders as the district (circuit) court may, under sec. 4939, Comp. Laws, vacate on a showing that they were made by mistake, inadvertence, or ex- cusable neglect. Travelers' Ins. Co. v, Weber, supra, The Weber case, OF APPEALS IN CIVIL ACTIONS. 243 supra, is commented upon in the case of In re Weber, 4 N. D. 119 (121), 59 N. W. 523 (524). Setting Aside Order Dismissing Case. Where an ac- tion was dismissed and costs awarded, under stipulation, without knowledge on part of the judge so ordering, that a receiver existed in the case, and such order was thereafter set aside on application of receiver, from which order setting it aside an appeal was taken to this court; held, that the order appealed from is not appealable under Laws 1893, ch. 83. Hoffman v. Bank of Minot, 4 N. D. 473, 61 N. W. 1031; Hoffman v. Mortgage Bank & Inv. Co., 4 N. D., 477, 6t N. W. 1032. Judge's Order Must Move Vaca- tion of. The supreme court is not authorized by either the law or the con- stitution to review an order made by a judge; and before a review can be had, a motion must be made to the court below to vacate the order, as pro- vided in subd. 5, sec. 5236, Comp. Laws. Black Hills P. & M. Co. v. Grand Island & W. C. R. Co., 2 S. D. 546, 51 N. W. 342. Chambers Order No Appeal. Under subd. 5 of said section, an appeal directly from a chambers order cannot be sustained; there should first be a motion to vacate the or- der, then an appeal from the order of the court refusing to do so. Bostwick et al v. Knight et al, 5 Dak. 305, 40 N. W. 344. Mandamus Order Denying Vacation of Writ. In mandamus, where demurrer to the answer was interposed and sustained, and the answer dis- missed by the court, and a peremptory writ issued, the exception to the is- suance of which referred to the writ as an "order"'; and after expiration of time for appeal from the order sustaining the demurrer, and from the order for issuance of the writ a motion was made to vacate the writ, and a court order was made denying the motion. Held, that an appeal from the last mentioned order will not lie under subd. 5, sec. 5236, Comp. Laws The Travelers' Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706; Hayne, New Tr. & App. 981; sec. 5536, Comp. Laws; The Trav- elers* Ins. Co. v. Weber, 2 N. D. 239, 50 N. W. 703. Mandamus Sustain- ing Demurrer to Answer Court Order. An order sustaining demurrer to answer in mandamus, and dismissing the answer, which did not recite that it was made "by the court", and signed "W. S. Lauder, Judge", is an order of the district court and not one made "at chambers." Travelers ^ Ins. Co. v. Mayer, 2 N. D. 234, 50 N. W. 706. APPEAL FROM JUDGMENT WHAT REVIEWED WITHOUT EX- CEPTIONSCOURT AND REFEREE TRIALS. 5237, Comp. Laws. Upon an appeal from a judgment, as well as upon a writ of er- ror, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not; nor shall it be necessary in any 244 CODE OP CIVIL PROCEDURE. case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record. Any questions of fact or of law, decided upon trials by the court or by referee, may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned. (Sec. 24, chap. 20, Laws 1887. Dak.) SAME WHEN MOTION FOR NEW TRIAL NECESSARY. 5627 Rev. Codes N. D. Upon an appeal from a judgment the supreme court may review any intermediate order or determin- ation of the court below, which involves the merits and neces- sarily affects the judgment, appearing upon the record trans- mitted or returned from the district court, whether the same is excepted to or not; nor shall it be necessary in any case to take any exceptions or settle a statement of the case to enable the supreme court to review any alleged error which would with- out a statement appear upon the face of the record. Any ques- tion of fact or law decided upon trials by the court or by a ref- eree and appearing upon the record properly excepted to in -a case in which an exception is necessary may be reviewed by the supreme court, whether a motion for a new trial was or was not made in the court below, but questions of fact shall not be reviewed in the supreme court in cases tried before a jury, un- less a motion for a new trial is first made in the court below. (Sec. 25, chap. 120, Laws 1891, am'd sec. 1, chap. 121, Laws 1891, N. D., am'd Rev. Com'rs.) Rev. Stat. Wis. 1878, sec. 3070. Sec. 411 C. C. P.; Levisee p. 121; Wait's Code 329; Harst Pr. Deer Code, 0956. Consult decisions under preceding section, and the next, section; Chap- ter VII, on Exceptions, pp. 63 to 77; Chap. V, on Trials to Court, pp. 45 to 53; Chap. VI, on Trials by Referee, pp. 53 to 63; also the various headings of "Exceptions", in Chap. VIII, on New Trials, ante. As to judgments in supreme court upon writ of error, see sec. 7520 to 7525, Comp. Laws; sees. 8348 to 8355, Rev. Codes, Post. (a). Involving the Merits. Alimony Order Allowing 1 . An order for temporary alimony and counsel fees does not involve merits or necessarily affect the judgment, and OP APPEALS IN CIVIL ACTIONS. 245 cannot he reviewed on appeal from the judgment and order denying new trial. Williams v. Williams, S. D , 61 N. W. 38. Transcript on Judge's Order No Bill "Merits." After appeal from a judgment, a transcript of proceedings at the trial, including stenographer's transcript of evidence, was by order of court below annexed to the judgment roll and sent up, but no bill of exceptions was attempted to be or was settled; no specifi- cations of error were in the transcript; held, the transcript was no part of judgment roll, nor is same an order "involving the merits", within meaning of Comp. Laws, 1887, sees. 5237, 5103. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Harper v. Minor, 27 Cal. 107; Hutton v. Reed, 25 Cal. 479. Appeal Before Jugment, and From Order After Double. An ap- peal before judgment from an order refusing to set aside a verdict, and to grant a new trial on the ground of insufficiency of the evidence, and from a subsequent order refusing the same relief on the ground of newly-discovered evidence, is a double appeal, and will be dismissed on motion. An appeal from the judgment might bring up both of said orders for review as inter- mediate orders involving the merits, and necessarily affecting the judg- ment, but the orders themselves, each being the subject of an independent appeal, cannot be thus united before judgment in a single appeal. Hackett v. Gunderson. 1 S. D. 479, 47 N. W. 546. Appeal from Judgment and Or- der When not Double Appeal. An appeal from a judgment and from an order overruling a motion for new trial, made after judgment, on the ground of insufficiency of the evidence to sustain the verdict, will not be dismissed as a double appeal. Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; distin- guishing Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546. From Judg- ment and Order, and Appealable Order Surplusage. When appeal is taken from a judgment and an order denying a new trial, and also fronj an- other appealable order, it will be presumed the appeal was intended to be taken from the judgment and order denying a new trial, and the appeal from the independent order will be treated as surplusage. Williams v. Williams, . . . . S. D , 61 N. W. 38. (b ). Correction of Errors Exceptions. Appeal From Judgment Bill Necessary for Review of Order. This court on an appeal from judgment will not consider the evidence unless embodied in a bill or statement, which rule applies to the review of an ord- er designated for review in the notice of appeal. Merchants' Nat. Bank v. McKinney et al, S. D , 60 N. W. 162. Motion for New Trial After Judgment Appeal From Judgment. Although au appeal from a judgment does not present questions of fact to this court for review, where motion for new trial was made after judgment and no appeal from the order denying it, errors of law occurring at the trial, excepted to, are reviewable on appeal from the judgment only, when presented by bill or statement, without motion for new trial. Miller v. Way et al, 5 S. D. 468, 59 N. W. 246 CODE OF CIVIL PROCEDURE. 467; Mercantile Co. v. Paris, 5 S. D. 348, 58 N. W. 813; M'fg. Co. v. Gal- loway, 5 S D. 205, 58 N. W. 565; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Evenson v. Webster, 3 S. D. 382, 53 N. W. 747. Review Without Mo- tion for New Trial Of Errors. On appeal from a judgment, this court will review errors of law occurring at the trial, whether a motion for new trial was or was not made below. Edwards & McCulloch Lum. Co. v. Bak- er, 2 N. D. 289, 50 N. W. 718; Sanford v. Bell, (or Sanford v. Duluth & Dak. El. Co.) 2 N. D. 6, 48 N. W. 434. Sufficiency of Evidence Necessity for Motion Below. This court can examine questions raised by assignments of error, whether motion for new trial is made below or not. Such motion is only necessary where the question is the sufficiency of the evidence to sus- tain a finding of fact of the court or jury. No question of fact was here in- volved, and the court decided the effect of each of the ballots in question just as it would construe and determine the effect of any other instrument before it. If such decision is wrong it is an error of law reviewable without motion for new trial. LeClaire v. Wells, . . . .S. D . . . ., 64 N. W. 519; Mer- cantile Co. v. Paris, 5S. D. 348, 58 N. W 813. The insufficiency of the evi- dence to justify the findings of the court or verdict of the juiy will only be reviewed by this court when made ground for motion for a new trial below, and the order denying or granting a new trial is properly brought to this court for review on appeal. Gade v. Collins et al, S. D ,66 N. W. 466. Judgment Before New Trial Review. An appeal from a judgment only, that is entered before a new trial is applied for, presents for review errors of law brought to this court by bill of exceptions. Baird et al v. Gleckler, S. D , 64 N. W. 118. Directing Verdict No Review Without Exception. The action of the trial court in directing a verdict, and in refusing to allow plaintiff to dismiss her action, cannot be reviewed on appeal without an exception. Sections 5080, 5237, Comp. Laws, held, not to permit such review without an exception. DeLendrecie v. Peck, 1 N. D. 422, 48 N. W. 342; Hayne, New Tr. & App., sec. 119. Such ruling is neith- er an order or decision under sec. 5080, nor an order or determination under sec. 5237, Comp. Laws, Id. Kirch v. Davis, 55 Wis. 287, UN. W. 689. When Must Settle Bill. In Gress v. Evans, 1 Dak. 371, 46 N. W. 1132, it was held, that under the Code of Civ. Proc. of Dakota Ter'y. (1868), by which the distinction between actions at law and suits in equity was abolished, the evidence in a suit to remove a cloud on a title will not be reviewed on ap- peal, unless embodied in a case or bill of exceptions. Reviewed on Peti- tion Without Motion for New Trial. In Waldron v. Evans, 1 Dak. 10, 46 N. W. 607, the case came to the supreme court by petition in error. There was a trial to the jury in the court below and various charges of the court to the jury, and questions as to admission of evidence, were reviewed in the su- preme court. A motion to dismiss the appeal on the ground that no motion for new trial was made in the court below, was denied, and the case decided OF APPEALS IN CIVIL ACTIONS. 247 on the merits. In First National Bank v. Comfort, 4 Dak. 167, 28 N. W. 855, it was held, that it is not necessary, in order to obtain a review of the whole case on appeal, to move for a new trial in the court below. The de- cision was under subd. 2 of sec. 22, Code Procedure of Dakota Ter'y, which provides that upon an appeal from final judgment the appellant may have "any intermediate order enumerated in this section reviewed by the su- preme court." The court say: "The appeal from the judgment does not depend upon the motion fora new trial. It is undoubtedly the intention of the statute that the question of the insufficiency of the evidence can only be raised by a motion for a new trial." In that case the trial judge directed a verdict, which was the only alleged error assigned on appeal. Review of Or- der Not Mentioned Quaere. In Wambole v. Poote, 2 Dak. 1 (28), 2 N. W. 239, the question was raised but not decided, whether, under Subd. 2, sec. ' 22, Code Civ. Proc. Dak., an order denying a new trial can be reviewed upon appeal from the judgment of the court below, there being no mention of such order in the notice of appeal. No Trial De Novo. In Caledonia Gold Min. Co. v. Noonan et al, 3 Dak. 189, 14 N. W. 426, Held, that the supreme court is precluded from trying anew the cause; that under the practice act of Dak. Territory that court is only empowered to correct errors occurring in district court. Questions of Fact On Exceptions. Under sec. 25, chap. 120, laws 1891, this court is required, upon appeal, to review questions of fact in cases tried by the court or referee, when exceptions to findings are duly made. But this court will not try the case denovo. Jas- per v. Hazen, 4 N. D. 1, 58 N. W. 454; Paulson v. Ward et al, 4 N. D. 100, 58 N. W. 792; Snyder v. Wright, 13 Wis. 689; Fisher v. Loan & Trust Co., 21 Wis. 73; Garbutt v. Bank, 22 Wis. 384. Act Not Retrospective. Chap. 82, Jaws 1893, construed, and field, not to apply to a case tried in 1892, where the trial was had and record thereof completed by filing judgment roll, embracing findings and a bill of exceptions. Hostetter v. Brooks Ele- vator Co.,' 4 N. D. 357, 61 N. W. 49. No Specifications, No Review. Where the bill of exceptions contained no specifications of errors of law, such er- rors, if they exist, will not be considered in this court on review. This es- tablished and statutory rule applies to cases of trials to the court, where no motion for a new trial was made below, the same as in other cases. Laws 1891, chap. 121; Sup. Ct. rule No. 13; Hostetter v. Brooks Elevator Co., 4 N. D. 357, 61 N. W. 49. Where exceptions to findings of fact do not spec- ify wherein they are not justified by the evidence, this court will not ex- plore the record to ascertain whether or not the finding is supported by the evidence. Hostetter v. Brooks Elevator Co., 4 N. D. 357, 61. N. W. 49. Whole Case Open Here, When. When a party appeals for a new trial in the appellate tribunal, the whole case is open to investigation, and not merely that portion of the judgment which is adverse to appellant. Tyler v. Shea, 4 N. D. 377, 61 N. W. 468; Bank v. Wheeler, 28 Conn. 433; CODE OF CIVIL PROCEDURE. Curtis v. Beardsley, 15 Conn. 518; Campbell v. Howard, 5 Mass. 376; Shar- on v. Hill, 26 Fed. 337; Eafl v. Hart, (Mo. Sup.) 1 S. W. 238; Burns v. Howard, 9 Abb. N. C. 321; Yeaton v. U. S. 5 Crancb, 281; State v. Forner, (Kas.)4Pac. 357. (c). On the Record Alone. Judgment Boll What Reviewed. Where the record on appeal con- sists only of the pleadings, the special verdict, and the judgment, and the only error assigned is that the judgment is not supported by the special ver- dict, no other question of error, not going to the jurisdiction of the court, can be considered. John A. Tolman Co. v. Savage et al, 5 S. D. 496, 59 N. W. 882. No Bill Appeal Not Dismissed, When. The fact that no bill of exceptions or statement was settled by the trial judge is no ground for dismissing an appeal, where some of the errors assigned are predicated on the judgment roll proper. Kehoe v. Hanson et al, ---- S. D ..... , 60 N. W. 31. Abstract Stricken Remaining Record. Where, from the showings made in the respective abstracts, relative to the question whether a bill of exceptions or statement was ever settled, the purported evidence is stricken from the abstract, only such assignments of error will be considered as can be examined on the record remaining. Hodges v. Bierlein, 4 S. D. 219, 56 N. W. 748. Record on Former Appeal, Used When. On appeal from a judgment resulting from the granting of a new trial, which new trial had been ordered by the supreme court on a former appeal, the records on the former appeal in the action may be looked into to ascertain what facts and questions were before the court, so as to see the proper application of the rule that such decision is the law of the case. Plymouth Co. Bank v. Oil- man, 3 S. D. 170, 52 N. W. 869; (affirmed, 4 S. D. 265, 56 N. W. 892); Mc- Kinley v. Tuttle, 42 Cal. 571. Void Judgment Reversal Without Rais- ing Question. A judgment appearing by the record to be void will be reversed on appeal, though neither party raises the question. Miller v. Sunde, 1 N. D. 1, 44 N. W. 301; Robinson v. Navigation Co., 112 N. Y. 315, 19 N. E. 625. Appeal From Judgment Roll Review of Judgment. On appeal from a judgment in a case tried to the court, appeal being from judg- ment roll only, it was contended by respondent that, there being no bill of exceptions or statement, neither the judgment nor findings of fact are re- viewable. Held, that the judgment is deemed excepted to, under first clause of sec. 5080, Comp. Laws, and the question whether the judgment ap- pealed from is justified by the findings is reviewable here. There is a plain distinction between this case and one where motion is made for judgment upon the pleadings, in which latter case it has been held that a bill of ex- ceptions is necessary to show an exception to the order granting such mo- tion. Smith et al v. Commercial Nat. Bank et al, ____ S. D ..... , 64 N. W. 529; Mort. Co. v. Bradley, 4 S. D. 158, 55 N. W. 1108. No Bill-Findings Stand. Where the appeal is from a judgment rendered upon findings of OP APPEALS IN CIVIL ACTIONS. the court, and there is no bill of exceptions or statement, the findings stand as the established facts, and this court only inquires whether the judgment is such as ought to follow such facts. Connor v. Nat. Bank of Dak. et al, .... S. D , 64 N. W. 519. (d). Questions of Fact Court and Referee Trials. When Appeal Does not Present Evidence for Review New Trial. Where an action is tried by the court without a jury, and a motion for new trial on the ground of the insufficiency of the evidence to sustain the find- ings is overruled, an appeal from the judgment does not present the evi- dence for review in this court unless error is assigned in the overruling of the motion for new trial. The supreme court will not examine the question of sufficiency of the evidence to support either the verdict of a jury or the findings of a court until such question has been presented to the trial court by motion for new trial. Pierce et al v. Manning, sheriff, 3 S. D. 517, 51 N. W. 332; Clark v. Schnur, 40 Kas. 72, 19 Pac. 327; Struthers v. Fuller, 45 Kas. 735, 26 Pac. 471; Carson v. Funk, 27 Kas. 524; Lingerman v. Nave, 31 Ind. 222. The court, in Pierce v. Manning, supra, say: "The making of a motion for a new trial, in any case where it is required, is not a mere per- functory ceremony to precede an appeal. The fact of making the motion is of importance only in connection with the ruling of the court upon such mo- tion; and the ruling is important because it is the decision of the court up- on the questions presented in the motion, and to that extent fixes the rights of the parties. It is an adjudication of all the matters necessarily involved in a determination of the motion. In this case the denial of the motion for a new trial was a judicial determination that the evidence was sufficient to support the findings. With the correctness of such decision unchallenged by appeal or by an allegation of error, can appellant be heard to argue in this court that the judgment ought to stand, because the evidence did not sustain the findings; the very question which he submitted to the trial court in his motion for new trial, and of whose decision he does not complain? The cases from Indiana and Kansas are against it. The ruling appears tech- nical, but is a logical growth from the facts. Appellant appeals from the judgment, but plainly the judgment is right if the findings are correct. The correctness of the findings has been adjudicated by the court below. To al- low a reagitation of the same matters in this court, in a proceeding in which the determination of the court below is not directly attacked, woyld be akin to permitting such adjudication of the trial court upon the motion for new trial to be impeached collaterally." Hearing on Merits Without Motion Below. In Waldron v. Evans, 1 Dak. 10, 46 N. W. 607, which went to the supreme court by "petition in error," that court overruled a motion to dis- miss, made on the ground that plaintiff in error did not make a motion fora new trial; and proceeded to hear the case on its merits. No Motion for New Trial Sufficiency of Evidence. When an appeal is taken from the 250 CODE OF CIVIL PROCEDURE. judgment, and appellant has failed to make a motion for a new trial in the court below, the question of sufficiency of evidence to support findings will not be examined on appeal. This court will only examine such matters re- hit ing to facts complained of below as are brought to its attention by motion for a new trial. Norwegian Plow Co. v. Bellon et al, 4 S. D. 384, 57 N. W. 17; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332. Must Review Facts and Law. In Randall et al v. Burke Tp. of Minnehaha County et al, 4 S. D. 337, 57 N. W. 4, it was held, that the last clause of sec. 5237, Comp. Laws, requires the su- preme court, in a cause tried by a court or referee, to review questions of fact, as well as law. See Snyder v. Wright, 13 Wis. 689; Fisher v. Trust Co., 21 Wis. 73. Appeal From Order Review of Evidence. In the case of Black Hills Mer. Co. v. Gardiner et al, 5 S. D. 256, 58 N. W. 557, which was a case of appeal from an order discharging an attachment, the court, in considering the questions of fact involved, obseive: "Under section 5237, Comp. Laws, however, we do not treat the finding of the court upon a ques- tion of fact as equally conclusive with the verdict of a jury. Randall v. Burke Tp., 4 S. D. 337, 57 N. W. 4. We will, therefore, examine the evi- dence", etc. Appeal From Judgment Review Must Be Bill. Under Code Civil Proc. Dak., 1868, the evidence in a suit to remove a cloud on title will not be reviewed on appeal, unless embodied in a case or bill of exceptions. The appeal was from a judgment on trial to ttie court. Gress v. Evans, 1 Dak. 371, 46 N. W. 1132. When Findings Presumed Justified Appeal From Judgment. Where a motion for a new trial is made after the entry of judgment, and the insufficiency of the evidence to sustain the decision is not assigned as error, it will be presumed that both the findings and decis- ion are justified by the evidence, when the appeal is from the judgment only, as errors occurring after judgment are not presented for review. Barnard & Leas Manufacturing Co. v. Galloway et al, 5 S, D. 205, 58 N. W. 56o; Mor- ris v. Niles, 67 Wis. 341, 30 N. W. 353; Latimer v. Morrain, 43 Wis. 107. POWER OF SUPREME COURTON APPEAL REMITTIEUR-REHEAR- ING -CLERK'S DUTIES. 5238 Comp. Laws; 5628 Rev. Codes N. D. Upon an appeal from a judgment or order, or upon a writ of error, the supreme court may reverse, affirm or modify the judgment or order, and as to any or all of the parties; and may, if necessary, or proper, order a new trial; and if the ap- peal is from a part of the judgment or order, may reverse, af- firm or modify as to the part appealed from. In all cases the supreme court shall remit its judgment or decision to the court from which the appeal or writ of error was taken, to be en- forced accordingly; and if from a judgment, final judgment shall thereupon be entered in the court below in accordance OF APPEALS IN CIVIL ACTIONS. 251 therewith, except where otherwise ordered. The clerk of the supreme court shall remit to such court the papers transmitted to the supreme court on the appeal or writ of error, together with the judgment or decision of the supreme court thereon, within sixty days after the same shall have been made, unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such parties to move for a rehearing. In case such motion for a rehearing is denied, the papers shall be remitted within twenty days after such denial. The clerk of the supreme court shall in all cases, except when the order or judgment is affirmed, also transmit with the papers so returned by him a certified copy of the opinion of the supreme court, and his fees for such copy shall be taxed and allowed with his other fees in the case, (Sec. 25, chap. 20, laws 1887, Dak,) [Sec. 5628 Rev. Codes N. D. is the same, except that the terms "or upon a writ of error," and "or writ of error," are omitted. (Sec. 26, chap. 120, laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3071. Sec. 23, 412 C. C. P.; Levisee p. 121; Wait's Code 330; Harst. Pr. Deer. Code \ 957, 958. Consult two preceding sections, and next section; on writ of error, see sec. 7521, Comp. Laws, sec. 8349 Rev. Codes, N. D. et seq, Post. Rules 24, 25, Sup. Ct. S. D.; Rules 29, 30, Sup. Ct. N. D. Post. Waiver of Appeal Benefit Under Judgment Modification. One does not waive right to appeal from a judgment by accepting a benefit thereunder, if the benefit is one to which he is so absolutely entitled that a reversal will not affect his right to it; nor when the appellate court has power to modify the judgment, making it more favorable to him. But in buch case he must appeal from only the portion of the judgment which is ad- verse to him and this court will on the appeal only modify the j udgment in that Tyler v. Shea, 4 N. D. 377, 61 N. W. 468; Reynes v. Dumont, 130, U. S. 354, 9 Sup. Ct. 486; Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25; Higbie v. Westlake, 14 N. Y. 281; Mellen v. Molten (N. Y. App.) 33 N. E. 545; Con- truction Co. v. O'Neil (Or.) 32 Pac. 764; Morriss v. Garland, 78 Va. 215; Mfg. Co. v. Huiske (Iowa) 29 N. W. 621; Monnet v. Merz, (Supper. Ct. N. Y.) 17 N. Y. Supp. 380, affirmed 131 N. Y. 646, 30 N. E. 866; Tarlton v. Goldhwaite. 23 Ala. 346; Inverarity v. Stowell, 10 Or. 261. No Reversal in Part, When Faulty Record. In Cady v. Chicago, M. & St. P. Ry. Co. 5 Dak. 97, 37 N. W. 221, held, that a judgment based on a verdict for plain- tiff for the killing of cattle, where the only error assigned on appeal was to CODE OF CIVIL PROCEDURE. the charge of the court as to killing one of the cows, cannot be reversed or modified, under Code of Civ. Proc. Dak., sec. 23, providing that "the su- preme court may reverse, affirm, or modify the judgment appealed from in whole or in part," etc., -it not appearing of record how much of the judg- ment was erroneously awarded. After Remand Appearance Waiver as to Remittitur. After a cause has been heard in the supreme court, and re- manded for a new trial, the general appearance entered by appellee or de- fendant in error, in the court below, and submitting to its jurisdiction, by having a trial on the merits, without objection, is a waiver of any error which might have been committed in the transmission of the decision of the supreme court to the district court. Bently et al v. Fraley, 1 Dak. 36, 4(> N. W. )>. Cartioiari Jui?U3nt Entarai Above Restitution. The judgment on certiorari is entered in this court. No mandate is sent to the inferior tribunal to render judgment; and the judgment in this case annull- ing the order of the court below, will contain a direction that a writ of res- titution issue out of this court to restore to the sheriff the property taken from him under the order annulled. State ex rel Enderlin State Bank v. Rose, Dist. Judge, 4 N. D. 319, 58 N. W. 514. Void Judgmant R3varsal Without Request. This court will re- verse a judgment shown by the record to be void for want of jurisdiction, al- though the point is not raised by either party. Miller, Adm'r, v. Sunde, 1 N. D. 1, 44 N. W. 301; Robinson v. Navigation Co., 112 N. Y. 315, 19 N. E. 625. Directing Amendment Below, When Proper. This court has the power, on i-emitting a case appealed to this court to the trial court, to direct that an amendment to a pleading may be made in the trial court, and such power should be liberally exercised in furtherance of justice. Kellam, J., dissenting. Evans v. Hughes Co., 4 S. D. 33, 54 N. W. 1049; Greeley v. Mc- Koy, 3 S. D. 624, 54 N. W. 659; Lamming v. Galusha, 135 N. Y. 239, 31 N. E. 1024; Mitchell v. Thome. 134 N. Y. 536, 32 N. E. 10; Rothschild v. Whit- man, 132 N. Y. 472, 30 N. E. 858, and other N. Y. cases cited in principal case: Rigg v. Parsons, 29 W. Va. 522, 2 S. E. 81; Railroad Co. v. Lohges (Ind.), 33 N. E. 449; Jones v. Shay, 72 Iowa 237, 33 N. W. 650; Sewing Ma- chine Co. v. Moore, 2 Dak. 280, 8 N. W. 131; Feldenheimer v. Tressel, 6 Dak. 94, 50 N. W. 720. On appeal from an order sustaining a demurrer to complaint, this court, in affirming the order, may, unless judgment has been rendered, which it also affirms, grant leave to amend; leave having been given on sustaining the demurrer below. People v. Jackson, 24 Cal. 630, distin- guished. Greeley v. McCoy, 3 S. D. 624, 54 N. W. 659; Sewing Machine Co. v. Moore, 2 Dak. 280, 8 N. W. 131; Adams v. Smith, 6 Dak. 94, 50 N. W. 720. When Record Remanded for Judgment Below. In actions tried here under provisions of chap. 82, Laws 1893, while this court will determ- ine the final judgment or decree to be entered, such entry will not be made OF APPEALS IN CIVIL ACTIONS. 253 in this court, but the record will be remanded to the lower court, under sec. 26, chap. 120, Laws 1891, and it is the duty of that court to order entry of a judgment in conformity with the determination of this court. Taylor v. Taylor N. D , 63 N. W. 893. FURTHER PROCEEDINGS BELOW WITHIN ONE YEAR DISMIS- SAL. 5239 Comp. Laws; 5629 Rev. Codes N. D. In every case in error, or on appeal, in which the supreme court shall order a new trial, or further proceedings in the court be- low, the record shall be transmitted to such court, and pro- ceedings had therein within one year from the date of such or- der in the supreme court, or in default thereof, the action shall be dismissed, unless upon good cause shown, the court shall otherwise order. (Sec. 26, chap. 20, Laws 1887, Dak.) [Sec. 5629, Rev. Codes, N. D., is the same, except that the words "in error" are omitted. (Sec. 27, chap. 120, Laws 1891, N. D.)] Rev. Stat. Wis. 1878, sec. 3.072. Consult two preceding sections; sec. 7524, Comp. Laws; sec. 8354, Rev. Codes, N. D. ALL EVIDENCE RECEIVED COURT TRIAL OBJECTIONS SET- TLEMENT OF STATEMENT NEW TRIAL ABOVE. 5630 Rev. Codes N. D. In all actions tried by the district court without a jury in which an issue of fact has been joined all the evidence of- fered on the trial shall be received. All testimony which eith- er party desires to offer, or any part thereof, may at his option be taken by deposition. In any trial under the provisions of 'this section either party may have his objection to any evidence noted as the evidence is offered. Any objection so made may be preserved in the statement of the case herein provided for and reviewed in the supreme court upon appeal; but if no ob- jection is made to the introduction of testimony offered on the trial, no objection to its consideration can be urged upon its re- view' upon appeal in the supreme court. For the purpose of reviewing upon appeal questions as to the sufficiency of the ev- idence to sustain the findings of fact in any action tried under the provisions of this section a statement of the case may be prepared and settled within the time and in the manner pro- vided in article 8 of chapter 10 of this code, which statement shall contain in a narrative form without unnecessary repeti- 254 CODE OF CIVIL PROCEDURE. tion all the evidence offered at the trial. The supreme court shall try the case anew and render final judgment therein ac- cording to the justice of the case. (Sec. 1, chap. 82, laws 1893, N. D. am'd Rev. Com'rs.) Consult sec. 5464, to 5469, Rev. Codes, N. D. pp. 66 to 75, ante, as to set- tlement of statements. PRINTED ABSTRACTS AND BRIEFS, WHEN NOT REQUIRED- TYPEWRITTEN COPIES. 563 L Rev. Codes N. D. In civil ac- tions appealed to the supreme court in which the amount of the judgment appealed from, exclusive of costs, does not exceed two hundred dollars no printed abstracts or briefs shall be re- quired of either party; but in case printed copies of the same are not furnished three typewritten copies thereof shall be filed with the clerk of the supreme court at such time as may be re- quired by law or the rules of such court. (Adopted through Rev. Com'rs.) Consult Supt. Ct Rules 16, 18, 19, 22, N. D.; Rules 12, 14, 15, 18, S.. D. Post. CIVIL CASES, WHEN HEARD AT NEXT TERM. 5632 Rev, Codes N. D. Unless continued for cause all civil cases ap- pealed to the supreme court shall be heard at the next succeed- ing term of court in either of the cases following. 1. When the appeal is taken sixty days before the first day of the term. 2. When by either party a printed abstract and a printed brief are served twenty-five days before the first day of the term. (Sec. 1, chap. 107, laws 1895, N. D.) CHAPTER X. CHAP. 2, CODE OF CIVIL PROCEDURE. OF THE SUPREME COURT. JURISDICTION TWO KINDS. 4819, Comp. Laws. The jurisdiction of the supreme court is of two kinds. OF THE SUPREME COURT. 255 1. Original; and, 2. Appellate. Sec. 20 C. C. P.; Levisee p. 4; Harst Pr. Deer. Code 42. Consult, for constitutional provisions, and decisions thereunder, sec. 5213, Comp. Laws; sec. 5603, Rev. Codes, N. D., at commencement of chapter 9, ante. ORIGINAL JURISDICTION. 4820 Comp. Laws. Its original jurisdiction extends to all writs which by law may issue from this court, and to all writs necessary to the exercise of its ap- pellate jurisdiction. Sec. 21 C. C. P.; Levisee p. 4; Harst. Pr. Deer. Code \ 43, 50, 51. Consult references given under preceding section. SAME ORIGINAL AND APPELLATE CLASSIFICATION OF WRITS. 5165 Rev. Codes N. D. The supreme court shall have and exercise appellate jurisdiction only, except when otherwise specially provided by law or the constitution. The supreme court has power in the exercise of its original jurisdiction to is- sue writs of habeas corpus, mandamus, quo warranto, certior- ari and injunction; and in the exercise of its appellate jurisdic- tion and in its superintending control over inferior courts it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction; provided, that said court shall exercise the said original jurisdiction only in habeas corpus cases and in such cases of strictly public concern as in- volve questions affecting the sovereign rights of the state or its franchises or privilege. (Sec. 1, chap. 118, laws 1891, N. D.) Consult references given under sec. 4819, Comp. Laws, supra. TERMS-' CALENDAR RULES SECOND APPEAL OFFICIAL A PARTY. 4821 Comp. Laws. The supreme court shall annu- ally hold two terms of such court at the seat of government on the first Tuesdays of April and October, and at no other place. The court may provide what causes shall have a preference on the calendar, and regulate the practice and proceedings therein by general rules not inconsistent with the constitution of the state of South Dakota and statutes of this state. On a second and each subsequent appeal to the supreme court, or when an appeal has once been dismissed for defect or irregularity, the 256 CODE OF CIVIL PROCEDURE. cause shall be placed upon the calendar as of the time of filing the first appeal; and whenever, in any action or proceeding in which the state of South Dakota, or any state officer, or any board of state officers, is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or or- der for or against him or them, in any court, such appeal shall have a preference in the supreme court, and may be moved by either party out of the order on the calendar. (Sec. 24. C. C. P., am'd, sec. 1, chap. 73, Laws 1890.) Sec. 24 C. C. P.; Levisee p. 7; Wait's Code I 13. Consult Sup. Ct. Rules 8 and 9, Post; sec. 5172, Rev. Codes, N. D., in- fra. SAME TERMS. Sec. 377 Rev. Codes N. D. There shall be two general terms of the supreme court held each year at the seat of government, as follows: One on the first Tuesday in April and one the first Tuesday of October of each year. (Sec. 1, chap. 108, Laws 1895, N. D.) Consult following section. SPECIAL TERM JUDGES APPOINT NOJICE OF. 378, Rev. Codes N. D. Whenever from any cause it appears to a major- ity of the judges of said court that the public interests demand that a special term of said court be held, the majority of the said judges have authority to appoint a special term of the su- preme court to be held at the seat of government, giving twen- ty day's previous notice thereof by advertisement published in a newspaper at the seat of government of the state. (Sec. 2, chap. 169, Laws 1890; am'd sec. 2, chap. 108, Laws 1895, N. D. ) Consult preceding section. SECOND APPEAL PLACE ON CALENDAR OFFICIAL A PARTY. 5172 Rev. Codes N. D. On a second and each subsequent ap- peal to the supreme court or when an appeal has once been dis- missed for defect or irregularity, the cause shall be placed upon the calendar as of the time of filing the first appeal; and whenever in any action or proceeding in which the State of North Dakota, or any state officer or any board of state officers is or are sole plaintiff or defendant, an appeal has been or shall be brought from any judgment or order for or against him or OF THE SUPREME COURT. 257 them in any court, such appeal shall have a preference in the supreme court and may be moved by either party out of the order on the calendar. (Sec. 24, C. C. P.) Consult sec. 4821, Comp. Laws, supra; Supt. Ct. Rules, Post. ADJOURNMENT JUDGE OR CLERK ADJOURNS TERM, WHEN. 5170 Rev. Codes N. D. If any two judges of said court shall not attend on the first or on any other day of the term, the clerk shall enter such fact on record, and the judge present shall adjourn the court to the next day and so on from -day to. day for six days, if neither of the absent judges appear; at the end of which period said court shall be adjourned, and all matters pending therein shall stand continued until the next regular or special term. If none of the judges appear, the clerk of said court may adjourn from day to day as provided in this section. (Sec. 5, chap. 118, laws 1891, N. D. ) Consult sec. 378, Rev. Codes, N. D. supra. CAUSES STAND OVER, WHEN NO TERM CONTINUANCE OF. 5171 Rev. Codes N. D. Whenever there is no general term of said court at the time fixed therefor by law for any cause, or whenever there is a continuance of the term of said court or a change in the time of holding any term by act of the legislative assembly, all causes then upon the calendar of said court, all writs, recognizances, appeals and proceedings com- menced, taken or made returnable to" said court at said term shall stand over to and be heard at the next general term with like effect as if no such failure, continuance or change had occurred. (Sec. 6, chap. 118, laws 1891, N. D.) Consult sec. 4821, Comp. Laws, sees. 378, 5172, Rev. Codes, N. D. supra. EXECUTES JUDGMENTS PRESCRIBES RULES PUBLICATION OF. 5168 Rev. Codes N. D. Said court is vested with full power and authority necessary for carrying into com- plete execution all its judgments, decrees and determina- tions in the matters aforesaid and for the exercise of its jurisdiction as the supreme judicial tribunal of the state; and shall by order made at general or special term from time to 17 TP CODE OF CIVIL PROCEDURE. time make and prescribe such general rules and regulations for the conduct and hearing of causes in said court, not inconsis- tent with the statute law of the state, as it may deem proper; and the said court shall by order prescribe the manner of pub- lication at the expense of the state of such rules and regula- tions; and the same shall not be in force until thirty days after the publication thereof. (Sec, 3. chap. 118, laws 1891, N. D. ) Consult sec. 4821, Comp. Laws, supra. JUDGMENT TI/I/O JUDGES MUST CONCUR REHEA RINGS 4822 Comp. Laws. The concurrence of two judges is necessary to pronounce a judgment. If two do not concur the cause must be reheard. But no more than two rehearings shall be had: and if on the second hearing two judgts do not concur, the judgment shall be affirmed. (Sec. 25, C. C. P. ) SAME. 5173 Rev. Codes N. D. The concurrence of a majority of the judges is necessary to pronounce judgment. If a majority does not concur the case must be reheard. But no more than two rehearings shall be had; and if on the sec- ond rehearing a majority of the judges does not concur, the judgment shall be affirmed. (Sec. 25, C. C. P, am'd Rev. Com'rs. ) Levisee, r. 7; Wait's Code, sees. 14, 19; Harst, Pr. Deer. Code, sec. 47. Consult sec. 4821, 5238, Comp. Laws, sec. 5628, Rev. Codes, N. D. supra. COURT HELD IN OTHER BUILDINGS, ETC. ADJOURNMENTS. 4823 Comp. Laws; 5174 Rev. Codes N. D. The supreme court may be held in other buildings than those designated by law as places for holding courts, and at a different place in the same city from that at which it is appointed to be held. Any one or more of the justices may adjourn the court with the like effect as if all were present, and may announce and have placed on file the opinion of the court. (Sec. 26, C. C, P., am'd sec. 1, chap. 53, laws 1879, Dak. ) [Sec. 5174, Rev. Codes, N. D., is the same, except that the concluding sentence is omitted. (Sec. 26, C. C. P., am'd sec. 1, chap. 53, laws 1879 T Dak., am'd Rev. Com'rs.) ] COURT ALWAYS OPEN FOR WHAT PURPOSESHABEAS CORPUS POWER OF DISTRICT JUDGE. 5166 Rev, Codes N. D. The OF THE SUPREME COURT. 259 supreme court shall be always open for the issue and return of all writs and process which it may lawfully issue and for the hearing and determination of the same, subject to such regula- tions and conditions as the court may prescribe. And any judge of said court may order the issuance of any such writ or process, and prescribe the time and manner of service and the time and place of return of the same; provided, that in cases of habeas corpus the judge of the supreme court who issues or causes the writ to issue may, at his discretion, direct that the writ shall be made returnable and heard and determined, either before the supreme court or any judge thereof, or before any district court of the state or any judge of any district court of the state; provided, further, that any district court or judge thereof before whom any writ is made returnable as prescribed in this section is hereby vested with full power and authority necessary for carrying into complete execution all of its judg- ments, decrees and determinations, subject to appeal as pro- vided bylaw. (Sec. 2, chap. 118, laws 1891, N. D.) Sec. 87, Constitution, N. D. Consult constitutional provisions under sec. 5213, Comp. Laws; sec. 5603, Rev. Codes, N. D. at beginning of chapter 6, ante. DECISIONS IN WRITING WHEN FILED -JUDGMENT-SYLLABUS. 5169 Rev. Codes N. D. The said court shall in all cases decided by i\i give its decision in writing, which shall be filed with the clerk of said court with the other papers in the case. Decis- ions in cases heard at a general or special term and all orders affecting the same may be filed in vacation, and judgment en- tered thereon in pursuance of the finding and order of the court with the same effect as upon decisions made and filed in term. Said court at the time of announcing its decisions in any action determined by said court shall file with the clerk thereof a syl- labus of the decision in such action, so prepared as to embody as briefly as practicable the principles settled in and by such decision. (Sec. 4, chap. 118, laws 1891, N. D.) Consult sees. 4822, Comp. Laws; sees. 5173, Rev. Codes, N. D. supra. ISSUE OF FACT, SENT TO JURY HOW DETERMINED. 5167 Rev. Codes N. D. Whenever an issue of fact shall be joined or 260 COUNTY COURTS SOUTH DAKOTA. assessment of damages by a jury be necessary in any action or proceeding commenced in the supreme court the court may, in its discretion, send the same to some district court, and it shall be there determined in the same manner as other issues of fact are tried or assessments made and return be made thereof as directed by the supreme court. In such cases the supreme court may order a special verdict to be found and re- turned. (Adopted through Rev. Com'rs. ) [AUTHOR'S NOTE. This section does not properly belong in this book, as it pertains exclusive!}' to the original jurisdiction of the supreme court, but is inserted for the reason that all other sections of the chapter of which it forms a part are published in this chapter.] Consult constitutional provisions under sec. 5603, Rev. Codes, N. D. at commencement of chap. 9, ante. CHAPTER XI. COUNTY COURTS SOUTH DAKOTA. [AUTHOR'S NOTE. Owing to the dissimilarity between the respective chapters upon county, probate and justice courts, in the laws of the two states, it is deemed admissable to publish each set of laws by itself in a separate chapter, and that plan is accordingly followed in this instance, and in the chapters in justices' and probate codes, the provisions of the respective acts being inserted completely, so far as to embrace the subjects of trial and ap- pellate procedure. See chap. 12, Post, as to county court, N. D.] An Act, defining the jurisdiction of the County Courts, providing for the practice therein, and fixing the terms and the salary of the judges thereof; being chap. 78, laws 1890, S. D. For the provisions of the North Dakota laws governing practice in county court, see chap. 12, Post. A COURT OF RECORD STYLE SEAL Sec. 1. That there shall be in each of the counties of this state, now organized, or which may hereafter be created and organized, a court of rec- ord to be styled the County Court of County; and said court shall have a seal. Confcult sections 4 to 7, infra. COUNTY COURTS^SOUTH DAKOTA. 261 COMMON LAW JURISDICTION NATURALIZATION. Sec. 4. Said court shall have common law jurisdiction, as provided herein, and shall have jurisdiction in all matters pertaining to the naturalization of citizens, pursuant to the laws of congress relating thereto, and in all such other cases as are now or may hereafter be provided by law. Consult two following sections, and decisions and constitutional pro- visions thereunder. Of Limited Jurisdiction. The county courts of this state are courts of limited and special jurisdiction. Ayers, Weatherwax 4 COUNTY COURTS SOUTH DAKOTA. Smith, 65 Mich. 1, 31 N. W. W; VanTassel v. State, 59 Wis. 351, 18 N. \V. 328; Davis v. State, 58 Ga. 171; Wm. H. T. v. State, 18 Fla. 883; Devinney v. State, Wright (Ohio), 564; 3 Enc. Prac. & PI., p. 268. The provisions of chap. 24, laws 1893, are not in conttict*with sec. 20, 21, art. 5, state consti- tution. State v. Bunker, S. D , 65 N. W. b3. Bastardy State as Plaintiff. Proceedings in bastardy cases are properly instituted and car- ried on in the name of the state. State v. Bunker, S. D 65 N. W. 33. Bastardy Preponderance of Evidence to Convict. On the trial of bastardy cases under the statute, it is sufficient for the state to prove its case by a pre- ponderance of evidence. State v. Bunker, S. D , 65 N. W. 33; Alt- schuler, v. Algaza (Neb.) 21 N. W. 401; Lewis v. People, 82 111. 1()4: Strickler v. Grass (Neb.) 49 N. W. 804; Harper v. State, 101 Ind. 109; State v. Romaine, 58 la. 46, 11 N. W. 721; Robbins v. Smith, 47 Ct. 182. JURISDICTION IN CRIMINAL CASES FINES, ETC. Sec. 7. They shall have concurrent jurisdiction in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death, or where the judgment may be a removal from, or forfeiture of, office. They have also power to remit fines, forfeitures and recognizances and to accept and approve the same as provided for by law. Consult preceding section, and constitutional provisions and decisions under same, and sec. 4; sec. 6043, Comp. Laws. See as to jurisdiction in bastardy cases, State v. Scott S. D 65 N. W. 31; State v. Bunker, S. D ,65 N. W. 33, cited under preceding section. ISSUE NECESSARY WRITS. Sec. 8. They shall have the power and authority to issue all writs necessary to carry into effect their judgments, decrees and orders. . Consult constitutional provisions under sec. 6, sup?'a; also, sec. 6596, Rev. Codes, N. D., next chapter CONCURRENT APPELLATE JURISDICTION, FROM JUSTICES AND MAGISTRATES APPEALS. Sec. 9. They shall have jurisdiction concurrent with the circuit courts in appeals from all final judgments of justices of the peace or police magistrates for cit- ies or towns, and the proceedings on such appeal shall be the same as now provided for appeals from judgments of justices of the peace to the circuit court. Consult chapter 18, on appeals from justice's court, sec. 6129 to 6135, Comp. Laws, Post; sec. 933, Comp. Laws. Power of County Court on Appeal, on Law Only. Upon appeal from justice to county court on questions of law only, the appellate court COUNTY COURTS SOUTH DAKOTA. 265 may "set aside, affirm, or modify" the judgment appealed from, or order a new trial in justice's court; but it cannot in such case, and upon the state- ment provided by statute, set aside the judgment appealed from, and render a new judgment on the merits against the opposite party. Coughran v. Wilson, S. D , 63 N. W. 774; sec. 6136, Comp. Laws; Gonsolus v. Lormer, 54 Wis. 630, 12 N. W. 62; Griffin v. Marquardt, 17 N. Y. 28; Schroederv. Versicherungs Gesellschaft, 60 Cal. 467. If, in such case and upon such statement, the appellate court finds prejudicial error, it should reverse the judgment, and remand the case to justice's court for a new trial. I'd. NEW TRIALS AFFIRM, ETC., JUDGMENTS BELOW BILL OR CASE, Sec. 10. They shall have jurisdiction to grant new trials, affirm, modify or set aside judgments in actions tried in such courts upon a bill of exceptions or case made. Consult preceding section . For "Exceptions," see chap. 7, pp. 63 et seq. ante, and "New Trials," chap. 8, pp. 77, et seq. ante. APPEAL TO CIRCUIT COURT, IN WHAT CASES-PROCEDURE CIRCUIT TO SUPREME, WHEN. Sec. 11. An appeal may be taken to the circuit court from a judgment, decree or order of the county court in all those cases enumerated in section 312 of the Probate Code and the procedure upon such appeals shall be the same as is provided for in article 2, of the Probate Code; Provided, however, that nothing herein shall be construed to prevent an appeal being taken to the Supreme Court from the decisions of the circuit court in such cases upon questions of law alone. See, for sec. 312, Prob. Code, sec. 5962, Comp. Laws, Levisee p. 268; which section is the begining of art. 2 of that Code, treating of appeals from Probate to Circuit Court. New Trial on Appeal County Court Judgment. Where the ac- tion was originally commenced in justice court, where plaintiff recovered judgment, defendant appealed, and the action was tried anew in the county court, the judgment there rendered is the judgment of the county court, and "may be enforced in the same manner as judgments in actions com- menced therein." Comp. Laws, sec. 6136; Winton v. Knott, sheriff S. D , 63 N. W. 783. To the same effect, see Winton v. Kirby et al, S. D 64 N. W. 528. APPEAL WRIT OF ERROR TO SUPREME COURT WHAT CASES PROCEDURE. Sec. 12. Appeals from, and writs of er- 171 T P 266 COUNTY COURTS SOUTH DAKOTA. ror to the county court shall be allowed to the supreme court from all judgments, orders and decrees of said county court, ex- cept in cases enumerated in section 11. hereof, and shall be governed by the law of appeals as provided in the code of Civil Procedure applicable to appeals from the circuit courts in like cases. Consult, for appeals to supreme court from circuit court, sec. 5213, Comp. Laws, et. seq., chap. 9, ante; and for writs of error, see sec. 74'.)',), Com p. Laws, Post. PROCESS PLEADINGS PRACTICE AND PROCEDURE AS IN CIRCUIT COURT FORCE EFFECT CLERK'S FEES. Sec 13. The process, pleadings, practice and modes of procedure in the county courts shall be the same as provided for in the circuit courts of this state by the Code of Civil Procedure, or as may hereafter be provided for by law, and the process, orders, judg- ments and decrees of such county courts shall have the same forms, force, lien and effect as in the circuit court, and the clerks of said county courts shall charge and collect like fees in the county courts as in the circuit courts for similar ser- vices. Sec. 5651, Comp. Laws, sec. 2. Prob. Code, Levisee, p. 200. And con- sult sec. 6588, Rev. Codes N. D., at beginning of following chapter. The following is sec. 307, Prob. Code, S. D., Levisee, p. 266, Sec. 5957, Comp. Laws: "All issues of fact joined in the probate court must be tried by said court, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. After the hearing, the court shall give, in writing, the findings of fact and conclusions of law. Judgments thereon, as well as for costs, may be entered and enforced by execution or otherwise, by the probate court, as in civil actions. If the issues are not sufficiently made up by the written pleadings on file, the court, on due no- tice to the opposite party, must settle and frame the issues to be tried, and upon which the court may render judgment." Jurisdiction Over Parties Service in Other County. In Benedict v. Johnson, 4 S. D. 387, 57 N. W. 66, it was objected that the county court of Minnehaha county had no jurisdiction over the defendant, service having been made in Lincoln county, which objection was held good; the court con- struing sections 6 and 13 of chap. 78, laws 1890, to that effect. New Trial on Appeal County Court Judgment Execution. Where the action was tried anew in county court, on appeal from justice, the judg- COUNTY COURTS SOUTH DAKOTA. 267 ment rendered is that of the county court, and "may be enforced in the same manner as judgments in actions commenced therein. v Comp. Laws, sec. 6136. Winton v. Knott, sheriff, S. D , 63 N. W. 783. In such case execution may issue against the person of judgment debtor, where the action is such as that defendant, against whom judgment went below, might have been arrested under sec. 4945, Comp. Laws, Id; Miller v. Scherder, 2 N. Y. 264; Parce v. Halbert, 1 How. Pr. 235; Parker v. Spear, 62 How. Pr. 394; Kloppenberg v. Neefus, 4 Sanf. 655; Philbrook v. Kellogg, 21 Hun. 238. Change of Venue Practice Act Not Applicable. The provisions of the civil practice act relating to change of place of trial are not applicable to actions brought in the county courts. Austin, Tomlinson & Webster Mfg. Co. v. Heiser et al, S. D ,61 N. W. 445. Defective Complaint Dismissal as to One Defendant. In an action in the county court, where summons issued against two defendants, but the complaint only states a cause of action against one, that defendant is not entitled to have the action dismissed as to him solely because no cause of action is stated against his co-defendant. Austin, Tomlinson & Webster Mfg. Co. v. Heiser et. al., S. D , 61 N. W. 445. Variance. Neither is the defendant against whom the cause of action is stated entitled to a dis- missal as to him, upon ground of variance between summons and com- plaint, when both contain the same title. Id. Bank v. Kellogg, 4 S. D. 312, 56 N. W. 1071. Causes of Action Separate Statement Remedy. When several causes of action a-re stated, but not separately, as required by sec. 4932, Comp. Laws, a motion to require plaintiff to elect upon which cause of action he will proceed to trial cannot be sustained. The remedy is to move at proper time to make the complaint more definite and certain. Austin, Tomlinson & Webster Mfg. Co. v. Heiser et al, S. D , 61 N. W. 445; Pom. Rem. & Rem. Rights, sec. 447, 575, and cases cited. PROSECUTION BY INFORMATION ALLEGATIONS PROCEDURE JUSTICES' JURISDICTION. Sec. 14. All offenses of which the county court shall have jurisdiction shall be prosecuted by in- formation of the state's attorney or attorney general, and every information shall set forth the offense with reasonable cer- tainty, substantially as required in an indictment, and may be filed either in term time or in vacation, and the proceedings thereon shall be the same as near as may be, as upon indict- ment in the circuit court, except as herein otherwise provided. Nothing in this act shall be construed to affect the jurisdiction of justices of the peace. See, as to indictments, sec. 7246, Comp. Laws, et. seq., sec. 214, C. Cr. Proc., Levisee, p. 1305, et. seq. COUNTY COURTS SOUTH DAKOTA. And consult sec. 6606, Rev. Codes N. D., in next chapter, and decisions thereunder. For the act of 1895, S. D., on prosecutions by information, see chap. 64, Laws 1895, p. 69; from which the following sections are taken: "Sec. 4. That all provisions of law now in force on the statutes of this applying to prosecutions upon indictment, to writ and processes therein, and the issuing and service thereof to motions, pleadings, trials and punish- ments, or the execution of any sentence and to all other proceedings in cases of indictment, whether in courts of original or appellate jurisdiction, shall in the same manner and to the same extent as near as may be, apply to in- formations and all prosecutions and proceedings thereon." See, as to informations, sec. 6602, Rev. Codes, N. D., next chapter. "Sec. 8. No information shall be filed against any person for any offense until such person shall have had a preliminary examination thereof as provided by law before a justice of the peace or other examining magis- trate or officer, unless such person shall waive such right; Provided however, That informations may be filed without such examinations against fugitives from justice, and any fugitive from justice against whom an information shall be filed may be demanded by the governor of this state of the execu- tive authority of any other state, territory or of any foreign government in the same manner and the same proceedings may be had thereon as pro- vided by law in like cases of demand upon indictments filed." Information Burglary Allegations as to Degree. Upon appeal from a judgment of conviction in circuit court, -upon an information for burglary, under sec. 3, chap. 64, Laws 1895, S. D., requiring that an offense charged in an information "shall be stated with the same precision and ful- ness in matters of substance, as is now required in indicting in like cases," it was objected that the information was deficient in not stating the degree of burglary charged, it being admitted that the formal parts, and the par- ticular circumstances of the offense were properly charged. Held, That the information sufficiently charged the cffense, under the above mentioned statute, as well as under sec. 7249, Comp. Laws, prescribing the manner of charging offenses in indictments, though the degree of the offense is not stated; that if the facts constituting a public offense are charged in ordi- nary and concise language, so that a person of common understanding may know that the crime described is burglary in the third degree, the informa- tion is sufficient. State v. LaCroix, ____ S. D ..... , 66 N. W. 944. Burg- laryOwnership of Store Allegations and Proof. The information charged that plaintiff in error entered "the store building of William J. Hughes and Henry Slechta, partners doing business in the firm name and style of Hughes & Slechta," it appearing that the firm was composed of William J. Hughes and Christina Slechta, wife of Henry Slechta, and that the store building, occupied by said fhm of Hughes & Slechta, was owned COUNTY COURTS SOUTH DAKOTA. 269 by a third party. Held, the variance between the allegations and proof was immaterial, and motion to direct verdict in favor of defendant was properly overruled. State v. LaCroix, S. D , 66 N. W. 944; Abb. Tr. Brief (Cr.) p. 411; Coats v. State, 20 S. W. 585; State v. Emmons, 33 N. W. 672; Smith v. State, 29 S. W. 775; Leslie v. State, 17 So. 55; Winslow v. State, 41 N. W. 1116. Preliminary Examination Presumption. It will be presumed on appeal, in absence of evidence to the contrary, in favor of an order of the court below overruling an unsupported motion to set aside the information, under sec. 8, chap. 64. laws 1895, S. D., that the information was not filed until a preliminary examination had either been held or waived by defend- ant. State v. LaCroix, S. D 66 T. W. 944. Intoxicating Liquors Defective Information. Sec. 1, chap. 101, laws 1890, declares that "any person * * * who shall sell * * * any such intoxicating liquors as a beverage shall, for the first offense, be deemed guilty of a misdemeanor," etc. An information charging that defendant "did sell intoxicating liquors maliciously and wilfully" does not charge an offense under that section. State v. Hafsoos, 1 S. D. 382, 47 N. W. 400; 1 Whar. Cr. Law, (5th Ed.) sec. 364; Vanderwood v. State, 50 Ind. 26; Com. v. Byrnes, 126 Mass. 249. BAIL COURT OR JUDGE FIXES ENDORSEMENT OF. Sec. 15. The court in term time or the judge in vacation, shall fix the amount of bail to be required of the accused, and the clerk shall endorse the same upon the warrant, except that when the warrant is issued in term time, the same may be made return- able forthwith when it shall not be necessary to fix the amount of bail until the accused is brought into court. As to bail, see sec. 4959, 4960 and 7604, et. seq., Comp. Laws, sec. 163, C. C. P., Levisee, p. 47; sec. 552, C. Pr. Proc., Levisee, p. 1350, et. seq. PLEA OF GUILTY RECEIPT OF COURT TRIAL, WHEN AT WHAT TERM. Sec. 16. The court may receive the plea of guilty and pass judgment, or, if the accused will waive a jury and be tried by the court without a jury, the court may, upon notice being first given to the state's attorney, try the cause and pass judgment as well at a probate as a law term of said court. See, as to plea of guilty, sec. 277, 278, C. Cr. Proc., Levisee, p. 1315, Comp. Laws, sec. 7304, 7305, Post, and see sec. 6605, Rev. Codes, N. D., next chapter. 270 COUNTY COURTS SOUTH DAKOTA. JUDGE INTERESTED OR RELATED JO PARTY CERTIFICATION TO CIRCUIT COURT. Sec. 17. Whenever the county judge of any county is a party to or personally interested in any pro- ceeding in any probate matter therein or conn acted by blood or affinity to any person so interested nearer than the fourth degree, or when he is named as a legatee or devisee, or execu- tor or trustee in a will or is a witness thereto, such fact or facts shall be entered upon the records of such court and cer- tified to the circuit court of such county; Provided, That in case the judge is interested only as a creditor, no change need be made except in relation to his claim. Consult following section. JURISDICTION OF CIRCUIT COURT ON CERTIFIED RECORD. Sec. 18. Upon the filing of a copy of such certificate in the office of the clerk of the Circuit Court, such circuit court shall have full and complete jurisdiction in all matters pertaining to such estate and may make all orders and take all proceedings therein, which might have been made or taken in the county court, if the judge thereof had not been interested or a party as aforesaid. Consult preceding section. CLERK CIRCUIT COURT AUTHORITY WHERE&RECORD CERTI- FIED. Sec. 19. In all cases transferred to the circuit court under the two preceding sections, the clerkjof such court shall have the same authority to grant citations, and letters testa- mentary and of administration in vacation as is given to clerks of the county courts and such authority shall be exercised by him as clerk of the circuit court. As to citations generally, see sees. 302 to 305, Prob. Code, Levisee p. 266; Comp. Laws, sec. 5952 to 5955. BIAS OR PREJUDICE OF JUDGE TRIALlBYuADJOINING JUDGE. Sec. 20. In any civil or criminal cause of^which this court has jurisdiction, whenever at any time before the case is called for trial it shall appear to the satisfaction of the court by affidavit, or if the court should so order, uponjother testimony, that a fair and impartial trial cannot be hadj[in such court by reason of the bias or prejudice of the judge or ^otherwise, the COUNTY COURTS SOUTH DAKOTA. 271 court shall call the judge of the county court of any adjoining county to try such cause. As to change of venue in civil cases, see sees. 94, 95, C. C- P.; Levisee, p. 23; sec. 4890, 4891 Comp. Laws; in criminal cases, sec. 285, C. Cr. P. ; Levisee, p, 1315; sec. 7312, Comp. Laws, et seq. Consult also, sec. 6593, Rev. Codes, N. D., next chapter. What Affidavits Must Show Exception Error. Upon application for change of trial judge, under this section, on account of bias and preju- dice, the party making the application must establish such facts and circum- stances, by affidavit or other extrinsic testimony, as clearly shows existence of bias and prejudice on the part of the judge against the defendant as to raise a strong presumption that a fair and impartial trial cannot be had before such judge. It must be of sucb a showing, and strong enough to overthrow the presumption in favor of the integrity of the trial judge, be- fore a change will be made. State v. Chapman et al, 1 S. D. 414, 47 N. ^V. 411; Territory v. Egan, 3 Dak, 125, 13 N. W. 568; People v. McCauley, 1 Cal. 383; People v. Mahoney, 18 Cal. 181; Posey v. State, 73 Ala. 491; Table Mountain Gold, etc., Min. Co. v. Waller's Defeat Silver Min. Co. 4 Nev. t 218; State v. Gordon, 3 Iowa, 410; State v. Barrett, 8 Iowa, 539; Findley v. State. 5 Blackf. 576; Spence v. State, 8 Blackf. 281; Boswell v. Flockheart, 8 Leigh, 364; Malone v. R. R. Co. 35 Fed. 625; Short v. Railway Co., 34 Fed. 225. The decision of the trial court on the question of indifference of a jur- or, or for actual bias, is, not reviewable in this court, except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies. State v. Chapman, supra. Where an application is made under this section, for change of judge on account of bias or prejudice of presiding judge, such bias or prejudice must appear ui to the satisfaction of the court;" affidavits stating merely the fact of such bias or prejudice do not necessarily prove the same ''to the satisfaction of the court." A record showing denial of the application, upon such affidavits, exhibits no error. Following State v. Chapman, 1 S. D. 414, 47 N. W. 411. State v. Rodway, 1 S. D. 575, 47 N. W. 1061. JURY FOR LAW TERM VENIRE IN CRIMINAL GASES POWERS OF COURTJURY FEE JUROR'S PAY BAILIFF. Sec. 21. Un- less the court shall otherwise order, the jury for the law terms of the county court shall be drawn and summoned in the man- ner as is now or may hereafter be provided ,by law for the drawing and summoning juries for the terms of the circuit court. Wher^ajury is not summoned as above provided, it shall be the duty of said court on the first day of each term thereof to ascertain whether a jury shall be required; if a jury COUNTY COURTS SOUTH DAKOTA. shall be demanded by either party to any suit pending, or by any defendant, or the state's attorney, in any criminal action, the court shall thereupon set such case or cases for trial, and direct the clerk of said court to issue a venire for twelve com- petent jurors, and deliver the same to the sheriff, who shall summon such jurors from the body of the county to be and ap- pear before said court at the term set for the return of said venire; and if by reason of non attendance, challenge or other- wise, said jury shall not be full, the panel shall be filled by talesmen. Said court shall have the same power to compel the attendance of jurors and witnesses as has the circuit court and shall be governed by the same rules in empaneling the jury, antl the court may retain such jury for all the jury trials of said term; Provided, that there shall be taxed as a part of the costs of each civil case tried by a jury the sum of ten dollars as a 'jury fee, which shall be paid into the county treasury and placed to the credit of the general fund of the county. The per diem and mileage of said jurors shall be the same as they are for similar services in the circuit court, to be paid out of the county treasury upon the certificate of the county clerk or county auditor; Provided, that in case the sheriff, coroner or bailiff be interested in any jury cases pending, or in case any party interested or any attorney may object to any sheriff, cor- oner or bailiff selecting the jury, if the court shall think such objection reasonable, the court shall appoint an impartial bail- iff to summon such jury. See, for "Formation of Trial Jury" in civil cases, in circuit court S. D. chap. 2, pp. 9 to 12, ante; in criminal cases, sec. 7322, et seq, Comp. Laws, Post. TERMS WHEN SPECIAL TERM CALLED ALWAYS OPEN, FOR WHAT PURPOSES. Sec. 22. The terms of the county court for all matters relating to probate jurisdiction shall be held as pro- vided for in section 90, of chapter 21, of the political code; and for the transaction of all other business within their jurisdic- tion the county courts shall annually hold two Iferms of court at the county seat of their respective counties, in the court house, or in such rooms as the county may provide, on the first COUNTY COURTS. 273 Tuesdays in January and July: Provided, that if in any county the terms of the circuit court are fixed for such months, or a term of the circuit court is being held in any county at the time fixed for a term of the county court, or if for any reason a term of the county court cannot be held at the time fixed herein, then the county judge shall call a term of the county court within three months after the adjournment of the term of the circuit court; and said courts shall always be open within said counties for the purpose of hearing and determin- ing all matters pertaining to probate jurisdiction, all actions, special proceedings, motions and applications, of whatever kind or character, and whether of a civil or criminal nature, arising under the laws of the state, and of which the county courts have jurisdiction, original or appellate. For sec. 90, chap. 21, Pol. Code, see Levisee, p. 372; Comp. Laws, sec. 686; consult sec. 6589, Rev. Codes, N. D., next chapter. STENOGRAPHER SAME AS IN CIRCUIT COURT. Sec. 25. The laws relating to the employment and pay of stenographers in the circuit court shall apply to this court in all counties where the population is fifteen thousand or more. As to stenographers, generally, see Comp. Laws, sees. 481 to 486; Levi- see, pp 733-4, and p. 63, ante. CHAPTER XII. CHAP. 8, PROBATE CODE. PRACTICE IN COUNTY COURTS WITH INCREASED JURISDIC- TIONNORTH DAKOTA. See note at beginning of Chapter 11, ante. PROCEDURE GENERAL PROVISION'S AS TO DISTRICT COURT APPLY RULES. 6588 Rev. Codes N. D. The general provis- ions of law which may at any time be in force relating to the district courts, and to civil and criminal proceedings therein 18 TP '27 \ PROBATE CODE NORTH DAKOTA. shall relate also to the county courts having increased jurisdic- tion and the rules of practice of district courts shall be in force in said county courts, unless inapplicable and except as herein otherwise provided. (Sec. 1, chap. 43, Laws 1895.) See, as to formation of trial jury and trials in district court, in civil cases, chap. 2 and 3, pp. 9 to 32, ante, and as to subsequent proceedings, see subsequent chapters, ante; as to trial juries in criminal cases, see sees. 8127 to 8140, Rev. Codes N. D., and for trials in such cases, see sees. 8175 to 8221, Rev. Codes, N. D.; and subsequent chapters for other proceedings, Post. Consult also sec. 13 of preceding chapter as to proceedings in county court of S. D., and the provisions of said chapter at large, and decisions thereunder. TERMS BUSINESS TRANSACTED AT. 6589 Rev. Codes N. D. The regular term of the county court shall be held at the county seat, commencing at 9 o'clock a. m. on the first Tues- day of each calendar month for the trial of such ci\ril and criminal actions as may be brought before such court. (Sec. 2, chap. 43, laws 1895. ) Consult next section; and sec. 22 of preceding chapter, as to -terms of county court, etc., in S. D. CALENDAR ORDER OF CAUSES ON TRIAL. 6590 Rev. Codes N. D. The county judge shall, on the first day of each term, or as soon thereafter as may be, prepare a calendar of the causes standing for trial at such term, placing the causes upon such calendar in the order in which the same are num- bered on the docket and setting the causes for trial upon con- venient days during such term; provided, that no cause shall be set for trial upon the first day of said term without the con- sent of all parties thereto. (Sec. 3, chap. 43, Laws 1895.) Consult preceding section and sec. 6611, infra; sec. 21, preceding chapter. APPEAL TO DISRTICT OR SUPREME COURT PROCEDURE- UNDERTAKING. 6591 Rev. Codes N. D. In all actions brought under the provisions of this chapter an appeal may be taken to the district court of the county or to the supreme court, and if the appeal is to the district court it shall be taken in the same manner as appeals from justice's court and if the appeal is to the supreme court it shall be taken in the same manner COUNTY COURTS. 275 and pursuant to the same rules as appeals from the district court; provided, that in civil actions when the amount in con- troversy, exclusive of costs, is less than two hundred and fifty dollars an appeal to the district court only shall lie; and pro- vided, further, that an appeal to the district court shall not be effectual for any purpose unless an undertaking is filed with two or more sureties in a sum equal to the amount in contro- versy or to the value of the specific property in controversy plus one hundred dollars. (Sec. 4, chap. 43, Laws 1895.) Consult a.s to appeals from district to supreme court, chap. 9, p. 189, et seq. supra; sec. 12, chap. 11, ante. JURISDICTION ON APPEAL PROCEDURE. 6592 Rev. Codes N. D. Such county courts shall have concurrent jurisdiction with the district courts in appeals from all final judgments of justices of the peace, police, city or township justices, and the proceedings on such appeals shall be the same as now or may hereafter be provided for appeals from judgments of justices of the peace to district courts. (Sec. 5, chap. 43, Laws 1895.) Consult preceding section; and sees. 6771 to 6780, Rev. Codes, N. D.; sees. 6129 to 6136, Cotnp. Laws, Post, as to appeals from justices; sec. 12, preceding chapter. CHANGE OF VENUE CERTIFICATION TO DISTRICT COURT- TRIAL 6593 Rev. Codes N. D. In any civil or criminal cause of which this court has jurisdiction, whenever at any time before said cause is called for trial it shall appear to the court by affi- davit, or if the court shall so order upon other testimony, that a fair and impartial trial cannot be had in such court by reason of the bias or prejudice of the judge or otherwise, the court shall direct said cause and all papers and documents connected therewith to be certified to the district court of the county wherein said county court is held; and such papers shall be de- livered to the clerk of the district court at least one day before the first day of the next term thereof and shall be placed upon the trial calendar and stand for trial the same as cases orig- inally commenced in the district court. (Sec. 6, chap. 43, Laws 1895. ) 276 PROBATE CODE NORTH DAKOTA. Consult sec. 20, preceding chapter; and as to change of venue gener- ally, sec. 5243, Rev. Codes, N. D., et. seq.; sec. 94, et. seq., C. C. P.; Lev- isee, pp. 22-3. JURIES, HOW SUMMONED AND SELECTEDCHALLENGES. 6594 Rev. Codes N. D. Juries in the county court shall be se- lected by the county judge and summoned in the same manner as is now provided by law for selecting juries before justices of the peace; provided, that each party shall be entitled to the same number of challenges as is now or may hereafter be al- lowed in the district court in like actions. (Sec. 7, chap. 43, Laws 1895. ) Consult, for mode of selection of juries in justice's court, sees. 6686 to 6691, Rev. Codes N. D.; and for challenges in district court, chap. 2, p. 9, ante; and see sec. 21, preceding chapter. NEW TRIALS AFFIRMANCE, ETC. STATEMENT. 6595 Rev. Codes N. D. The county court shall have authority to grant new trials, affirm, modify or set aside judgments in actions tried in such court upon a statement of the case prepared and settled in the manner provided in the code of civil procedure. (Sec. 8. chap. 43, Laws 1895.) For statements and exceptions, see chap. 7, ante. pp. 63 to 77; also, va- rious heads under chap. 8, on New Trials, ante, pp. 77, et. seq.; sec. 9, pre- ceding chapter, and decisions thereunder. POWER TO ISSUE SUMMONS, PROCESS, ETC. WITNESSES, 6596 Rev. Codes N. D. The several county courts shall have power to issue all summons, citations, subpoenas, executions, warrants and process authorized by law which may be neces- sary to carry into effect any order, judgment or decree thereof, to compel the attendance of witnesses or to carry into execu- tion the powers with which they are vested. (Sec. 9, chap. 43, laws 1895. ) Consult sec. 8, preceding chapter. ABSENCE OF JUDGE WAIT ONE HOUR ADJOURNMENT. 6598 Rev. Codes N. D. When for -any cause the county judge fails to attend at the commencement of any regular term or at the time to which any cause is assigned for trial or at the time to which any cause may be continued, the parties shall not be obliged to wait more than one hour, and if he does not attend within the hour and no other disposition of the case is made by COUNTY COURTS. 277 such judge, the parties in attendance shall be required to at- tend at 9 o'clock a. m. of the following day and if such judge shall not attend at that time the cause shall stand continued until the first day of the next regular term. (Sec. 11, ch. 43, 1895.) Consult sec. 6593, supra, and sec. 21, preceding chapter. JURISDICTION IN CRIMINAL CASES SAME AS DISTRICT COURT BELOW FELONY. 6601 Rev. Codes N. D. Concurrent juris- diction, power and authority with the district court is hereby conferred and imposed upon county courts having increased jurisdiction of all criminal offenses of which the district court of said county has jurisdiction, below the grade of felony, and of any person accused thereof, and to hear, try, determine, pronounce judgment and sentence and take and have all neces- sary proceedings concerning or relating thereto as provided by law. The necessary jurisdiction, power and authority is here- by conferred and imposed upon the county court. (Sec. 14, ch. 43, 1895.) See, as to jurisdiction of district court in criminal cases, sees. 7753, 7750, Rev. Codes, N. D. BAIL INFORMATION IN COUNTY COURT CERTIFICATION TO DISTRICT COURT WHEN, AND VICE VERSA. 6602 Rev. Codes N. D. In any criminal action or proceeding for any criminal offense of which the county court has jurisdiction, any justice of the peace or other examining magistrate having jurisdiction must admit to bail, bind over or commit for trial the accused to the county court of such county and the information shall be filed in such county court. If any person accused of a criminal of- fense is so bailed, bound over or committed for trial to the county court for a crime for which such court has not jurisdic- tion, such proceeding shall not abate and such county court shall not lose jurisdiction of such person and proceeding, but shall certify the same to the district court of such county, and such proceeding shall thereupon be tried in the district court with the same force and effect as if such action or proceedings had been originally commenced therein. If any examining magistrate shall at any time bind over a defendant to the dis- 278 PROBATE CODE NORTH DAKOTA. trict court for an offense of which the county court has jurisdic- tion or if it shall appear by evidence or otherwise at any time to the judge of the district court that the offense with which the defendant is or should be charged is triable in the county court, the judge of the district court may certify such cause and all proceedings relative to any person accused of such of- fense to the county court of such county for trial, determina- tion and adjudication, and thereupon the same and all the pa- pers and files therein shall be transferred by the clerk of the district court to the county court without any further order or certificate and such cause shall thereupon be tried in the county court with the same force and effect as if such cause had orig- inally been commenced therein. (Sec. 15, chap. 43, Laws of 1895. ) Consult sec. 6601, supra; also sec. 14, preceding chapter, as to prose- cution by information. JURY TRIAL, WHEN DEMAND FOR CRIMINAL ACTIONS- WAIVER. 6603 Rev. Codes N. D. In civil actions when the value in controversy or sum demanded exceeds fifty dollars, either party may demand a jury trial, but suc'h demand shall be made on or before the first day of the term upon the calendar of which said cause appears. In criminal actions when the de- fendant is arraigned he shall be informed by the court of his right to trial by jury and if he waives his right to a jury trial, an entry to that effect shall be made in the court minutes. (Sec. 16, ch. 43, 1895. ) Consult sec. 6594, Rev. Codes, N. D. supra; sec. 5420, 5449, Rev. Codes, U. D. ante, pp. 3, 45. PLEA OF GUILTY TRIAL BY COURT, WHEN. 6605 Rev. Codes N. D. The court may receive the plea of guilty and pass judgment in term time or vacation; if the accused waives a jury he may be tried by the court without a jury in term time upon notice being first given to the state's attorney. (Sec. 18, chap. 43, 1895. ) Consult sees. 6601, 6603, supra; and sec. 16, preceding chapter. PRELIMINARY EXAM/NATION UNNECESSARY. 6606 Rev. Codes N. D. No preliminary examination shall be necessary COUNTY COURTS. 279 before trial in criminal actions in the county court. (Sec. 19; chap. 43, 1895.) Consult sec. 14, preceding chapter; and chapter 64, laws 1895, S. D. p. 69, and particularly sec. 8 of that act, as to preliminary examinations. Preliminary Examination Before Information Waiver Pleading.. Sec. 8, chap. 71, laws 1890, providing that, with certain specified excep- tions, "no information shall be filed against any person for any crime or of- fense until such person shall have had a preliminary examination therefor, as provided by law, before a committing magistrate or other officer having authority to make preliminary examinations, unless such person shall waive his right to such examination," etc., construed. Held, where a criminal complaint filed against the accused with an examining magistrate, after al- leging time and place, designates the offense in general language,, giving its name, and in addition thereto sets out such of the facts and circumstances constituting the offense as will fairly apprise a person of average intelli- gence of the nature of the accusation, is sufficient, within the meaning of the statute, to authorize the state's attorney to file an information against the accused for the same offense, if he has had or waived an examination on such complaint. State ex rel Peterson v. Barnes, sheriff, 3 N. D. 131, 54 N. W. 541; State v. Tennison (Kas.) 18 Pac. 948; State v. Reedy, (Kas.) 24 Pac. 66; State v. Bailey (Kas.) 3 Pac. 769. Same Jurisdiction to Decide Question. Where a defendant pleaded in abatement to an information filed against him in the district court that he had neither had nor waived a pre- liminary examination for the offense charged in the information, the plea being overruled, held, such ruling was made by a court having jurisdiction of the person and subject-matter, and therefor the ruling cannot be re- viewed by habeas corpus. State ex rel Peterson v. Barnes, sheriff, 3 N. D. 131, 54 N. W. 541; Petition of Semler, 41 Wis. 518; Eisner v. Shingley (Iowa) 45 N. W. 393; In re Elli-s (Mich.) 44 N. W. 616; Ex parte Ah Sam (Cal.) 24 Pac. 276; Ex parte Seibold, 100 U. S. 375; Wood v. Brush, 11 Sup.. Ct. 738; Ex parte Max, 44 Cal. 579. COUNSEL ASSIGNED IN CRIMINAL CASES, WHEN COMPENSA- TION. 6607 Rev. Codes N. D. In all criminal cases triable in the county court when it is satisfactorily shown to the court that the defendant has no means and is unable to employ coun- sel, the court shall in such cases assign counsel for the defense and allow and direct to be paid by the county in which said court is held a reasonable and just compensation to the attorney or attorneys assigned for such services as they may render; provided, however, that such compensation shall not exceed twenty-five dollars in any one case. (Sec. 20, chap. 48, laws 1895.) L'sO OF APPEAL AND APPEAL BONDS. Consult sec. 7749, Rev. Codes, N. D. CAUSE STANDS FOR TRIAL WHEN ANSWER. 6611 Rev. Codes N. D. When the time to answer does not expire at least ten days before the first day of the next term of court, the cause shall stand for trial at the next succeeding term thereafter without further notice to defendant. (Sec. 24, chapter 43, 1895. ) Consult sees. 6590, 6598, 6599, supra. STENOGRAPHER APPOINTMENT OF DUTIES AND PAY WHAT COUNTIES. 6617 Rev. Codes N.D. The judge of any county court having civil or criminal jurisdiction is authorized in his discre- tion to appoint a court stenographer of such court. Such ste- nographer shall qualify in the same manner and his duties and compensation shall be the same as the court stenographer of a district court; such compensation shall be paid in the same manner as that of the court stenographer of the district court; provided, that such court stenographer shall not be appointed in any county having less than eight thousand inhabitants, un- less the board of county commissioners shall first authorize such appointment. (Sec. 30, chap. 43, 1895.) Consult sec. 414, Rev. Codes, N. D. et seq; and sec. 25, preceding- chapter. CHAPTER XIII. ART. 2, CHAP. 12, PROBATE CODE SOUTH DAKOTA. OF APPEAL AND APPEAL BONDS. [AUTHOR'S NOTE. There being no general provisions in the Probate Code, S. D., relating to trials of issues, except sec. 5957, Comp. Laws (being sec. 307, Prob. Code, Levisee, p. 266), no chapter upon that subject appears in this book. See the section above referred to, set forth in full under sec. 13 of the County Court Act of S. D., ante, chap. II.] APPEAL TO CIRCUIT COURT FROM WHAT JUDGMENTS, DE- CREES AND ORDERS. 5962 Comp. Laws. An appeal may be OF APPEAL AND APPEAL BONDS. 281 taken to the circuit court from a judgment, decree or order of the probate court: 1. Granting, or refusing, or revoking letters testamen- tary or of administration, or of guardianship. 2. Admitting, or refusing to admit, a will to probate. 3. Against or in favor of the validity of a will or revoking the probate thereof. 4. Against or in favor of setting apart property, or mak- ing an allowance for a widow or child. 5. Against or in favor of directing the petition, sale or conveyance of real property. 6. Settling an account of an executor, or administrator or guardian. 7. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy or distributive share; or, 8. Prom any other judgment, decree or order of the pro- bate court, or of the judge thereof affecting a substantial right. (Sec. 312Prob. C.) Levisee, p. 268. Consult next two sections; sec. 6254, Rev. Codes, N. D., chap. 15, Post. WHO MAY APPEAL Sec. 5963, Comp. Laws. Any party aggrieved may appeal as aforesaid, except where the decree or order of which he complains, was rendered or made upon his default. (Sec. 313, Prob. C.) Levisee, p. 268. Consult preceding section; sees. 6254, 6255, Rev. Codes, N. D., chap. 15, Post. SAME ANY PERSON INTERESTED PARTY SHOWING. 5964 Comp. Laws. A person interested in the estate or fund affect- ed by the decree or order, who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard therein, upon his application, or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired, may also appeal as prescribed in this article. The 181 T P 282 PROBATE CODE SOUTH DAKOTA. facts which entitle such a person to appeal, must be shown by an affidavit which must be filed with the notice of appeal. (Sec. 314, Prob. C.) Levisee. p. 268. Consult two preceding sections; sec. 6255, Rev. Codes, N. D., chap. 15, Post. TIME IN WHICH APPEAL TAKEN. 5965 Comp. Laws. An appeal by a party, or by a person interested who was present at the hearing, must be taken within 10 days, and an appeal by a person interested, who was not a party and not present at the hearing, within thirty days from the date of the judgment, decree, or order appealed from. (Sec. 315, Prob. C. ) Levisee, p. 268. APPEAL, HOW TAKEN NOTICE OF NO NOTICE OF TRIAL ABOVE. 5966 Comp. Laws. The appeal must be made: 1. By filing a written notice thereof with the judge of the probate court, stating the judgment, decree, or order appealed from, or some specific part thereof, and whether the appeal is on a question of law, or of fact, or of both, and, if of law alone, the particular grounds upon which the party intends to rely on his appeal; and, 2. By executing and filing within the time limited in the preceding section, such bond as is required in the following sections. It shall not be necessary to notify or summon the appellee or respondent to appear in the circuit court, but such respondent shall be taken and held to have notice of such ap- peal in the same manner as he had notice of the pendency of the proceedings in the probate court. (Sec. 316, Prob. C. ) Levisee, p. 268-9. Consult preceding section; sees. 6256, 6270, Rev. Codes, N. D., chap. 15, Post. APPEAL BOND, REQUISITES OF. 5967 Comp. Laws. The appeal bond shall be in such sum as the judge of the probate court shall require and deem sufficient, with at least two suffi- cient sureties to be approved by the judge, conditioned that the appellant will prosecute his appeal with due diligence to a de- termination, and will abide, fulfill and perform whatever judg- OF APPEAL AND APPEAL BONDS. ment, decree or order may be rendered against him in that pro- ceeding by the circuit court, and that he will pay all damages which the opposite party may sustain by reason of such ap- peal, together with all costs that may be adjudged against him. (Sec. 317, Prob. C.) Levisee, p. 269. Consult next two sections, and sec. 5971, infra; sec. 6263, Rev. Codes, N. D., chap. 15, Post. STAY BOND, REQUISITES OF. 5968 Comp. Laws. If the judgment, decree or order appealed from be for, or direct, the payment of money, or the delivery of any property, or grant leave to issue an execution, the appeal shall not stay the exe- cution thereof, unless the appeal bond be furthermore condi- tioned to the effect that if the judgment, decree or order, or any part thereof be affirmed, or the appeal be dismissed, the appellant shall pay the sum so directed to be paid or levied, or, as the case may require, shall deliver the property so directed to be delivered, or the part thereof as to which the judgment, decree or order shall be affirmed. (Sec. 318, Prob. C. ) Levisee, p. 269. Consult preceding, and next section; sec. 6265, Rev. Codes, N. D., chap. 15, Post. SAME COMMITMENT OF PERSON VIOLATION OF BOND PROS- ECUTION OF. 5969 Comp. Laws. An appeal from any judg- ment, decree or order directing the commitment of any person, does not stay the execution thereof, unless the appeal bond be also to the effect that if the judgment, decree or order ap- pealed from be affirmed, or the appeal be dismissed, the appel- lant shall, within twenty days after such affirmance or dismis- sal, surrender himself in obedience to the judgment, decree or order, to the custody of the sheriff to whom he was committed. If the condition of such bond be violated, it may be prosecuted in the same manner and with the same effect as an administra- tor's official bond; and the proceeds of the action must be paid or distributed, as directed by the probate court, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them, and the balance, if any, must be paid into the county treasury. (Sec. 319, Prob. Code.) 284 PROBATE CODE SOUTH DAKOTA. Levisee, p. 269. Consult preceding section; sec. 6257, Rev. Codes, N. D., chap. 15, Post. JUSTIFICATION BY SURETIES INCREASE OF BOND NEW ONE. 5970, Comp. Laws. The sureties in every appeal bond must justify in the manner required in article 6 of chapter 3, of this code; and the respondent may apply to the appellate court or the judge thereof, upon notice, for an order requiring the ap- pellant to increase the sum fixed by the judge of the probate court, or to give additional security; and if the applicant make default in giving a new bond, pursuant to an order to increase the same, or to give additional security, the appeal may be dis- missed. (Sec. 320, Prob. C.) Levisee, p. 269-70. See, as to justification, sec. 75, et. seq., Prob. Code, Levisee, pp. 214, et seq., sees. 5724, et seq., Comp. Laws. Consult sec. 6264, Rev. Codes, N. D., chap. 15, Post. FORM OF BOND ACTION UPON, ORDERED DAMAGES DIS- TRIBUTED. 5971 Comp. Laws. Every appeal bond must be to the state of South Dakota; must contain the name and resi- dence of each of the sureties thereto, and must be filed in the probate court. The judge of the probate court may, at any time, in his discretion, make an order authorizing any person aggrieved to bring an action on the bond, in his own name or in the name of the state. When it is brought in the name of the state, the damages collected must be paid over to the pro- bate court, and therein distributed as justice may require. (Sec. 321, Prob. C.) Levisee, p. 270. Consult sec. 5967, supra. APPEAL DOES NOT STAY PROBATE OF WILL LETTERS, ETC. SELLING REALTY, ETC. 5972 Comp. Laws. An appeal from a decree or order admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing of letters where, in the opinion of the probate judge, manifested by an entry upon the minutes of the court, the pres- ervation of the estate requires that such letters should issue. OF APPEAL AND APPEAL BONDS. 285 But the letters so issued do not confer power to sell real prop- erty by virtue of any provision in the will, or to pay or satisfy legacies or to distribute the property of the decedent among the next of kin, until the final determination of the appeal. (Sec. 322, Prob. C. ) Levisee, p. 270. Consult sec. 5968, supra; sec. 6267, Rev. Codes, N. D. chapter 15, Post. REVOKING PROBATE OF WILL ETC., NOT STAYED BY AP- PEAL. 5973 Comp. Laws. An appeal from a decree or order revoking probate of a will, letters testamentary, letters of ad- ministration or letter? of guardianship, or from a decree or or- der suspending or removing an executor, administrator or guardian, of removing or suspending a testamentary trustee or a person appointed by the probate court, or appointing an appraiser of personal property, does not stay the execution of the decree or order appealed from. (Sec. 323, Prob. C. ) Levisee, p. 270. Consult preceding section; sec. 6268, Rev. Codes, N. D. chapter 15, Post. TRANSCRIPT ON APPEAL CONTENTS OF HEARING ON APPEAL DEFAULT DISMISSAL. 5974 Comp. Laws. The judge of the probate court must, within ten days from the filing of the no- tice of appeal and the giving of the required bond, cause a cer- tified copy thereof and of the judgment, decree or order, or specific part thereof appealed from, and the minutes, records, papers and proceedings in the case, to be transmitted to the clerk of the circuit court of the county or judicial subdivision, to be filed in his office; and the appeal may be heard and de- termined at any day thereafter by said court, at any general, special or adjourned term; and if the appellant make no ap- pearance when the case is called for tria\ or otherwise fail to prosecute his appeal, the respondent may, on motion, have the appeal dismissed, or may open the record and move for an af- firmance. (Sec. 324, Prob. C.) Levisee, p. 270. Consult sec. 5977, 5978, infra; sec. 6269, Rev. Codes, N. D. chap. 15, Post. 286 PROBATE CODE SOUTH DAKOTA. WHO PLAINTIFF ABOVE POWER OF APPELLATE COURT NEW HEARING EVIDENCE. 5975 Comp. Laws. The plaintiff in the probate court shall be the plaintiff in the circuit court, and when the appeal is on questions of law alone the appellant court may reverse, affirm or modify the judgment, decree or order, or the part thereof appealed from, and every interme- diate order which it is authorized by law to review, in any re- spect mentioned in the notice of appeal, and as to any or all of the parties, and it may order a new hearing! Upon such ap- peal, so much of the evidence as may be necessary to explain the grounds, and no more, may be certified into the appellate court. (Sec. 325, Prob. C.) Levi8ee, p. 271. Consult as to parties, sec. 5214, Comp. Laws, p. 194, 'ante. Consult also, next section; sec. 6274, Rev. Codes, N. D. chap. 15, Post. TRIAL DE NOVO ABOVE, WHEN PROCEDURE. 5976 Comp. Laws. When the appeal is on questions of fact, or on ques- tions of both law and fact, the trial iu the circuit court must be de novo, and shall be conducted in the same manner as if the case and proceedings had lawfully originated in that court; and such appellate court has the same power to decide the questions of fact which the probate court or judge had, and it may, in its discretion, as in suits in chancery, and with like ef- fect, make an order for the trial by a jury of any or all the ma- terial questions of fact arising upon the issues between the par- ties, and such an order must state distinctly and plainly the questions of fact to be tried. ( Sec. 326, Prob. C. ) Levisee, p. 271. Consult preceding section; sec. 6275, Rev. Codes, N. D. chapter 15, Post. When Circuit Court Should Retry Case. Upon appeal, on questions of both law and fact, to circuit com t from action of probate court in appoint- ment of a guardian, the circuit court should retry the case and pronounce judgment. Engle v. Yorks, S. D , 64 N. W. 132. In such case the circuit court is not confined to simply affirming, reversing, or modifying the judgment below, as where the appeal is upon "questions of law alone." Id.; Goss v. Stone, 63 Mich. 319; 29 N. W. 735; In re Leonard's estate (Mich.), 54 N. W. 1082; Broadwater v. Richards (Mont.), 2 Pac. 544. Judgment Above When Deemed Based on Findings. When, upon such trial in OF APPEAL AND APPEAL BONDS. 287 circuit court, questions of fact are submitted to a jury, whose answers, although only advisory, are referred to in the judgment as having been "duly considered," and no other or different findings are found or claimed to have been made, or that findings were waived, such judgment will be re- garded as based on such findings. Id. Haynes, New Tr. & App., sec. 234. Question for Review. In such case the question for review in this court, on appeal from judgment of circuit court in "affirming" the judgment of probate court (except that it appointed another guardian) is, could the judg- ment of the circuit court properly follow such findings? Engle v. Yorks, supra. Held, that the facts so found did not justify or allow the judgment rendered by circuit court. Id. NEGLECT TO SEND TRANSCRIPT ORDER REQUIRING CON- TEMPT. 5977 Comp. Laws. If the judge of the probate court ne- glect or refuse to make or transmit such certified copies as are hereinbefore required to be transmitted to the clerk fo the circuit court in cases of appeal, he may be compelled by the circuit court by an order entered, upon motion, to do so; and he may be fined, as for contempt, for any such neglect or refusal. A certified copy of such order may be served upon the probate judge by the party or his attorney. (ISec. 327, Prob. C. ) Levisee, p. 271. Consult sec. 5974, supra; sec. 6269, Rev. Codes N. D., chap. 15, Post. DISMISSAL OF APPEAL IS AFFIRMANCE AMENDMENT. 5978 Comp. Laws. The dismissal of an appeal by the circuit court is in effect an affirmance of the judgment, decree or order appealed from; and when an appellant shall have given, in good faith, notice of appeal, but omits, through mistake, to do any other act necessary to perfect the appeal or to stay pro- ceedings, the appellate court may permit an amendment, on such terms as may be just. (Sec. 328, Prob. C. ) Levisee, p. 271. Consult sec. 5974, supra; sec. 6273 Rev. Codes, N. D., chap. 15, Post. COSTS OF APPEAL, COME OUT OF ESTATE, OR DEFEATED PARTY. 5979 Comp. Laws. Such appellate court may award to the successful party the costs of the appeal; or it may direct that such costs abide the event of a new hearing, or of the sub- sequent proceedings in the probate court. In either case the costs may be made payable out of the estate or fund, or per- PROBATE CODE SOUTH DAKOTA. sonally by the unsuccessful party, as directed by the appellate court; or, if no such direction be given, as directed by the pro- bate court. (Sec. 329, Prob. C.) Levisee, p. 271-2. Consult set. 6278, Rev. Codes, N. D., chap. 15, Post. JUDGMENT ON APPEAL ENFORCED BELOW REMITTITUR. 5980 Comp. Laws. When a judgment, decree or order, from which an appeal has been taken, is wholly or partly affirmed, or is modified by the judgment rendered by the circuit court upon such appeal, it must be enforced, to the extent author- ized by the latter judgment, by the probate court, in like man- mer as if no appeal therefrom had been taken; and the circuit court must direct the proceedings to be remitted for that pur- pose to the probate court, or to the judge thereof. (Sec. 330, Prob. C. ) Levisee, p. 272. Consult sees. 5975, 5976, 5977, supra; sec. 6279, Rev. Codes, N. D., chap. 15, Post. OFFICIAL BONDSMEN HELD, ON APPEAL BY EXECUTOR, ETC. 5981 Comp. Laws. When an executor or administrator who has given an official bond appeals from a judgment, decree or order of the probate court or judge, made in the proceedings had upon the estate of which he is administrator or executor, his said bond stands in the place of an appeal bond, and the sureties therein are liable as on such appeal bond. (Sec. 331, Prob. C. ) Levisee, p. 272. Consult sec. 5967, supra; sec. 6258, Rev. Codes, N. D., chap. 15, Post. LAWFUL ACTS BELOW, VALID, NOTWITHSTANDING REVERSAL 5982 Comp. Laws. When the order or decree appointing an executor, or administrator, or guardian, is reversed on appeal for error, and not for want of jurisdiction of the court, all law- ful acts in administration upon the estate, performed by such executor, or administrator or guardian, if he have qualified, are as valid as if such order or decree had beea affirmed. (Sec. 332, Prob. C.) Levisee, p. 272. Consult sec. 6277, Rev. Codes, N. D., chap. 15, Post. POSTPONEMENT, HEARING AND TRIAL. 289 CHAPTER XIV. ART. 5, CHAP. 3, PROBATE CODE NORTH DAKOTA. POSTPONEMENT, HEARING AND TRIAL. APPEARANCE ON CITATION NEW CITATION, WHEN POST- PONEMENT. 6227 Rev. Codes* N. D. When a respondent fails to appear at the time specified in a citation the court must ascertain from the proofs of service, whether he has been duly cited to appear; and unless the service is deemed sufficient a new citation must be issued to such party or parties and the hearing 1 must be postponed until the time therein specified. (Adopted through Rev. Com'rs. ) Consult next two sections. POSTPONEMENT AFTER ISSUE JOINED SICKNESS OF JUDGE -OTHER GROUNDS. 6228 Rev. Codes N. D. After issue is joined by the pleadings either party is entitled to a postpone- ment for a reasonable time to procure the attendance or depo- sition of a witness or otherwise prepare for the trial. A rea- sonable postponement may also be granted at any time to al- low a party to plead, or for any other meritorious cause. A postponement may also be ordered because the judge is sick or otherwise engaged, or because he desires time in which to pre- pare his decision. (Adopted through Rev. Com'rs.) Consult next section. POSTPONEMENT WITHOUT APPLICATION DAY CERTAIN- EFFECT OF. 9229 Rev. Codes N. D. A postponement may be ordered without a written application and an adjournment of the court from time to time in the progress of a hearing operates as a postponement without a formal order. Every postponement must be to a day certain; but an indefinite post- ponement or a failure to resume the hearing at the appointed time by reason of the absence of the judge or for other cause does not invalidate or otherwise affect any act previously done, but operates only as a postponement of the hearing until farther notice. (Adopted through Rev. Com'rs.) 19 -T P 290 PROBATE CODE NORTH DAKOTA. Consult preceding section. TRIAL OF ISSUES DEC IS ION- ON WHAT PROOFS TRIED. 6230 Rev. Codes N. D. After the respondents have had an op- portunity to plead the court must try the issues, hear the alle- gations and proofs of the respective parties, and make such decision upon the facts thereby found as justice and equity re- quires. Every issue prescribed by section 6226 of this chap- ter must be tried upon the testimony of witnesses sworn and examined in open court or taken in the form of deposition ac- cording to the rules of evidence applicable in a civil action ex- cept when the same are modified by the following provisions of this article. (Sec. 307, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 266; Consult, for sec. 307, Prob. Code, sec. 13, chap. 11, ante, under which that section is set forth. ALL FACTS INQUIRED INTO DEPOSITION, WHEN NOT USED. 6231 Rev. Codes N. D. The court may examine the parties and other witnesses and inquire into all the facts and circum- stances as to any material fact, although no issue is joined thereon; and may also in its discretion refuse to hear the depo- sition of any witness residing within the state, who is compe- tent and able to appear and give testimony in person, unless satisfied that the necessary expense or inconvenience of pro- curing his attendance ought not to be incurred. (Adopted through Rev. Com'rs. ) Consult preceding section. TESTIMONY OF SICK, ETC., WITNESS HOW TAKEN. 6232 Rev. Codes N. D. When it is satisfactorily shown by affidavit that a material witness within the county is so aged, sick or in- firm that his attendance cannot be compelled without endanger- ing his life or health and there is no good reason to suppose that he will be able to attend within a reasonable time to which the hearing may be postponed, the judge shall proceed to the place where the witness is and there take his testimony as iri open court; but if the party so requests, the testimouy of such witness must be taken in the form of a deposition. (Adopted through Rev. Com'rs. APPEALS. 291 [AUTHOR'S NOTE. The following section is taken from art. 4 chap. 3, Probate Code, N. D.] ISSUE IN PROBATE COURT ORIGIN OF. 6226 Rev. Codes N. D. An issue arising upon each of the following allegations of a pleading: 1. Upon each averment in the petition of the execution of a will, or of the death of any person when necessary to juris- diction, or of any tact allegod as cause for setting aside a de- cree or order of the court, although not controverted by an- swer. 2. Upon every other material allegation of a petition which is controverted by answer. 3. Upon every fact alleged in the answer except an ad- mission of a fact alleged in the petition. ("Adopted through Rev. Com'rs. ) Consult, ato issues in district court, sec. 5415, Rev. Codes, chap. 1, ante, p. 1. CHAPTER XV. ART. 9, CHAP. 3, PROBATE CODE NORTH DAKOTA. APPEALS. APPEALS WHO MAY TAKEFROM WHAT. 6254 Rev. Codes N. D. Any party or other person specified in the next section who deems himself aggrieved may appeal, as pre- scribed in this article, from a decree or from any order affect- ing a substantial right made by a county court to the district court of the same county. (Sec. 312, Prob. C., Am'd Rev. Com'rs.) Levisee, p. 268. Consult next section; sees. 5962, 5963, Comp. Laws, chap. 13, ante. PARTY TO APPEAL INTEREST IN APPEAL 6255 Rev. Codes N. D. Each person who was a party to the proceeding in the county court and each other person, who has or claims in the subject matter of the decree or order, a right or interest 292 PROBATE CODE NORTH DAKOTA. which is affected by an appeal must be made a party to the appeal. (Sec. 314, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 268. Consult preceding section; sec. 5964, Comp. Laws, chap. 13, ante. APPEAL, HOW EFFECTED NOTICE OF, HOW GIVEN. 6256 Rev. Codes N. D. To affect an appeal the appellant must cause a notice of the appeal to be served on each of the other parties and file such notice with the proofs of service, and an undertaking for appeal in the county court within thirty days from and after the date of the order or decree; but when the party taking an appeal files such notice and announces the fil- ing orally in open court at the time when the decision is given no other or further service of the notice is necessary. (Sec. 315, Prob. Co., am'd Rev. Com'rs.) Levisee, p. 268. Consult two preceding sections; sec 5966, Comp. Laws* chap. 13, ante. FROM CONTEMPT ORDER, HOW EFFECTED-DEPOSIT. 6257 Rev. Codes N. D. An appeal from an order which directs the payment of a fine as a punishment for a contempt is not ef- fected, unless the amount of the fine is also deposited with the county judge within the prescribed time to abide the order of the appellate court. (Sec. 319, Prob. C., am'd Rev. Com'rs.) Levisee, p. 269. . Consult preceding section; sec. 5969, Comp. Laws, chap. 13, ante. EXECUTOR, ETC. NO APPEAL BOND OFFICIAL BOND IN LIEU OF. 6258 Rev. Codes N. D. An executor, administra- tor or guardian may appeal without filing an undertaking from a decree or order made in any preceding in a case in which he has given an official bond; and when he appeals in that man- ner the bond stands in place of such undertaking. A special guardian may appeal without filing an undertaking although he has not given bond, but the appeal will not operate as a stay unless taken from an order which grants or refuses a transfer of the case. (Sec. 331, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 272. Consult sec. 6256, supra; sec. 5981, Comp. Laws, chap. 13, ante. APPEALS. 293 NEGLECT TO PERFECT APPEAL EXTENDING TIME AMEND- MENT. 6259 Rev. Codes N. D. When the appellant season- ably and in good faith serves a notice of appeal on some of the parties, but through mistake or excusable neglect fails to ob- tain service on all, or in like manner omits to do any other act necessary to perfect the appeal or effect a stay, the county court upon proofs of the facts by affidavit may, in its discre- tion, extend the time for perfecting the service or other act and permit an amendment accordingly upon such terms as jus- tice requires. (Sec. 328, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 271. . Consult sec. 6256, supra; sees. 5977, 5978, Comp. Laws, chap. 13, ante. PARTIES TO APPEAL, HOW BROUGHT IN APPEARANCE ABOVE. 6260 Rev. Codes N. D. A party specified in section 6255, who was not served with notice by reason of the fact that his interest or claim did not appear upon the records of the county court at the time when the appeal was taken, is deemed to have been duly served from the time when he appears in the district court for any purposd connected with the appeal, or he may be brought in by order of the district court on such notice as the court shall prescribe. (Adopted through Rev. Com'rs. ) Consult sees. 6254, 6255, supra. APPEAL ON LAW QUESTIONS ALONE, HOW PERFECTED-RESTRIC- TION OF APPEAL 6261 Rev. Codes N. D. For the purpose of taking an appeal on questions of law alone, the notice must con- tain a statement to that effect, and specify the errors in law which the appellant intends to rely on as grounds of the ap- peal and the time and place at which the appeal will be brought on for trial. Every other notice of appeal is sufficient which designates the party who appeals and the order or de- cree from which the appeal is taken and the intermediate ord- ers if any upon which the appellant desires a review. And ev- ery appeal must be held to have been taken upon the facts and matter in law generally, unless the notice clearly indicates an intention to appeal on questions of law alone, but the appel- lant may by his notice restrict the appeal to any specific direc- tion or award contained in a decree, if the issue upon which 294 PROBATE CODE NONTH DAKOTA. the same depends can be separately tried and determined with- out prejudice to any other part of the decree. (Sec. 316, Prob. C. , am'd Rev. Com'rs. ) Levisee, p. 268. Consult sees. 6256, supra; sec. 6271, infra; sec. 5975, Comp. Laws, chap. 13, ante. SPECIFICATION OF ERRORS. 6262 Rev. Codes N. D. A specification of errors may contain a reference to each particu- lar error appearing of record in the decree or order in the pro- ceedings on which it is founded to which the appellant ob- jects without giving any reason for the objection and no other form of exception is necessary. (Adopted through Rev. Conrrs. ) Consult sees. 6274, 6271, infra. UNDERTAKING ON APPEAL SAME, FOR STAY. 6263 Rev. Codes N. D. An undertaking on appeal must be executed in favor of the appellees in such sum as the county court shall prescribe by the appellant or his agent or attorney in his name and sufficient sureties approved by the judge, to the effect that the subscribers will pay to the parties entitled thereto all costs of the appeal that shall be awarded against the appellant by direction of the district court not exceeding the sum therein stated. But the execution or enforcement of the decree or ord- er appealed from shall not be stayed, unless the instrument contains a further undertaking to the effect that the subscribers will also pay all damages which the appellees or any of them shall sustain by reason of the appeal or a separate undertaking to that effect executed and filed in like manner. (Sec. 317, Prob. C., am'd Rev. Com'rs.) Levisee, p. 269. Consult next two sections; sec. 5967, Comp. Laws, chapter 13, ante. UNDERTAKING, AMOUNT OF SURETIES EXAMINED NEW UN- DERTAKING, WHEN DISMISSAL. 6264 Rev. Codes. The sum prescribed in an undertaking for costs must not be less than one hundred dollars. The sum prescribed in an undertaking for damages shall be such further sum as the judge deems suf- APPEALS. 295 ficient, and to aid him in determining the same or the suffi- ciency of the sureties, the judge may examine the sureties and other witnesses under oath. After an appeal is perfected the district court may by order require the appellant to give a new undertaking in a larger sum or with other sureties when the sum specified in the original undertaking is deemed insuffi- cient or a surety is found to be insolvent, has removed from the state or is of doubtful financial responsibility, and unless the order is complied with the appeal may be dismissed or the stay dissolved as the case requires. (Sec. 320, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 269-70. Consult preceding section; sec. 5967, Comp. Laws, chapter 13 ante. UNDERTAKING, OBLIGATIONS OF MATURITY OF ACTION ON. 6265 Rev. Codes N. D. The prescribed undertaking for the payment of damages creates an obligation on the part of the principal and sureties executing the same to compensate each of the appellees for all pecuniary loss and injury which he shall sustain in consequence of the appeal respecting each and every right or claim which was determined or enforced in his favor by the decree or order from which the appeal is taken so far as the same shall be affirmed or otherwise sustained by the appellate court. When the decree or order directs the appel- lant or another party to pay or deliver money or other pro- perty, or to perform any other act to which the stay applied, all loss and injury sustained by an appellee in consequence, of its detention from the time when the direction was given, or by reason of any failure on the part of the appellant or such other party to pay or deliver the same in accordance with the decision or direction of the appellate court, ^,nd in as good con- dition as at the time when he was directed to do so by the county court, is deemed to be sustained in consequence of the appeal. When the order directs the commitment of the appel- ant or another person for disobeying any order except for the payment of a tine, all loss and injury resulting from his dis- obedience is likewise deemed to have been suffered in conse- quence of the appeal. The obligation matures at the time of 296 PROBATE CODE NORTH DAKOTA. the decision in the appellate court, but no action can be main- tained thereon until ten days thereafter. (Sees. 315-319, Prob. C., am'd Rev. Com'rs. ) Levisee, pp. 268, 269. Consult two preceding sections, and next section; sec. 5968, Comp. Laws, chap. 13, ante. APPEAL STAYS PROCEEDINGS, WHEN, UNTIL WHEN. 6266 Rev. Codes N. D. Except when there is an express provis- ion to the contrary in this article, a perfected appeal stays the execution or enforcement of the decree or order^appealed from until there has been a determination of the appeal or a dissolu- tion of the stay in the district court; and an appeal from an order granting or refusing a transfer of the case likewise stays all further proceedings in that case. In other respects the de- cree or order of the county court remains unaffected until re- versed or modified by direction of the appellate court. (Adopt- ed through Rev. Com'rs. ) See sec. 318, Prob. C.; Levisee, p. 269. Consult sees. 6256, 6263, supra; sec. 5968, Comp. Laws, chap. 13, ante. APPEAL DOES NOT STAY PROBATE OF WILL, OR LETTERS, WHENREALJY SALES DISTRIBUTION. 6267 Rev. Codes N. D. An appeal from a decree or order admitting a will to probate or granting letters testamentary, or letters of administration, does not stay the issuing of letters when, in the opinion of the county judge manifested by an entry upon the journal, the preservation of the estate requires that such letters should is- sue. But the letters so issued do not confer power to sell real property by virtue of any provision in a will or to pay or satis- fy legacies, or to distribute the property of the decedent until the determination of the appeal. (Sec. 322, Prob. C. ) Levisee, p. 270. Consult preceding section; sec. 5972, Comp. Laws, chap. 13, ante. DECREE FOR SPECIAL ADMINISTRATOR, OR REVOKING PRO- BATE OF WILL APPEAL NO STAY. 6268 Rev. Codes N. D. An appeal does not stay the execution or enforcement of a decree or order which appoints a special administrator or revokes the APPEALS. 297 probate of a will or suspends or removes an executor, adminis- trator or guardian, or revokes his appointment. (Sec. 323, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 270. Consult preceding section; sec. 5973, Comp. Laws, chap. 13, ante. TRANSCRIPT ON APPEAL, JUDGE PERFECTS ORDER REQUIR- ING, WHEN. 6269 Rev. Codes. When an appeal is perfected, the county judge must make and certify to the district court a com- plete transcript of the papers and other records upon which the appeal is taken or so much thereof as may be material to- gether with the notice of appeal and proof of service, the un- dertaking and other matters, of record relating to the appeal; and unless such transcript is delivered to the clerk within ten days, the district court may on motion of any party interested require and compel him to make and certify the same and may in like manner require him to amend the transcript as often as may be necessary or to certify and send up a will or other writ- ten instrument in its original form. When all the proofs upon which the court acted appear in the transcript the certificate shall so state. (Sees. 324-327, Prob. C., am'd Rev. Com'rs.) Levisee, pp. 270-1. Consult sec. 6272, infra; sec. 5974, Comp. Laws, chapter 13, ante. DOCKETING APPEAL CALENDAR NO NOTICE OF TRIAL, ETC. -DISPOSITION OF CASE 6270 Rev. Codes N. D. Upon the de- livery of such transcript and payment of the clerk's fees, the appeal must be docketed in the district court and placed on the calendar of causes for trial according to the date on which it was perfected and without a notice of trial or note of issue at the next term convening, not less than ten days after the tak- ing of the appeal, and must be disposed of accordingly during the term, unless sooner disposed of in pursuance of the pro- visions of the next section. (Adopted through Rev. Com'rs.) Sec. 316, Prob. C.; sec. 5966, Comp. Laws, Chap. 13, ante. 'APPEAL ON QUESTIONS OF LAW WHEN HEARD NEW NO- TICE. 6271 Rev. Codes N. D. When the appeal is taken upon questions of law alone, the time and place of hearing 194 T P 298 PROBATE CODE NORTH DAKOTA. specified in the notice of appeal may be any time and place at which an issue of law may be tried in the district court, and a hearing may be had accordingly; provided, however, that such time shall not be less than ten days after the service of the no- tice, nor later than the first day of the term specified in the preceding section. Upon a failure to obtain a hearing a new no- tice of the time and place of hearing may be given as often as may be necessary, and the appeal may, notwithstanding any such no- tice, be brought to a hearing at any time by an appellee upon a like notice served on the appellant or his attorney of record in the county court. (Adopted through Rev. Com'rs. ) Consult sees. 6260, 6271, supra; sees. 5792, 5975, Comp. Laws, chap. 13, ante. DISMISSAL OF APPEAL, WHEN COSTS. 6272 Rev. Codes N. D. If the transcript is not certified to the district court on or before the second day of the term designated in section 6270 and the appellant does not make application for an order re- quiring the same to be certified forthwith or if the appeal has not been sooner disposed of and the appellant fails to do any act necessary in order to have the same docketed and brought upon the calendar on or before the second day of such term, any appellee may have the same so entered by order of the court upon the production of a certified copy of the decree or order appealed from and the notice of appeal and thereupon the appeal shall be summarily dismissed with ten dollars costs to such appellee, unless the appellant satisfactorily excuses his default and forthwith pays such costs. (Adopted through Rev. Com'rs.) Consult sec. 6269, supra; sec. 5977, Comp. Laws, chap. 13, ante. DISMISSAL OF APPEAL, IS AFFIRMANCE. 6273 Rev. Codes N. D. A dismissal of an appeal by order of the district court in pursuance of any provision of this article is in effect an affir- mance of the decree or order appealed from. (Sec. 328, Prob. C., am'd Rev. Com'rs. Levisee, p. 271. Consult preceding section; sec. 5978, Comp. Laws, chap. 13, ante. POWER OF APPELLATE COURT, ON LAW APPEAL CORRECTING ERRORS SPECIFICATIONS OF. 6274 Rev. Codes N. D. At a hearing in the district court on an appeal taken upon questions of law alone the decree or order of the county court shall be reviewed only so far as may be necessary and with a view to correct errors appearing upon the record which injuriously af- fect a right or claim of the appellant and are specified in the notice of appeal; but when a specification relates to a discre- tionary award or direction given upon facts shown by the rec- ord, the district court has the same discretion that the county court had. Each specification may be overruled or sustained according as the right of the matter appears and the court shall give its decision accordingly, affirming or reversing the decree or order appealed from or reversing in part and affirm- ing as to the remainder, with such directions as may be neces- sary or proper respecting the decree or order to be entered in the county court. (Sec. 325, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 271. Consult sees. 6260, 6261, 6271, supra; sec. 5975, Comp. Laws, chap. 13, ante. 'TRIAL DE NOVO PROCEDURE REVIEW OF INTERMEDIATE ORDER AMENDMENTS RECORD. 6275 Rev. Codes N. D. When an appeal is taken generally, all the issues must be tried and determined anew in the district court and the court must hear the allegations and proofs of the parties and determine all questions of law and fact arising thereon according to the mode of trying similar issues originating in that court, except that an issue involved in the probate of a will and issues aris- ing upon a petition for the allowance of a claim or demand for money only must be tried according to the mode of trying is- sues to a jury if a jury is demanded. When the appeal is tak- en from a decree or final order, the court may before trying the issues review any intermediate order specified in the notice of appeal, which material ly affected the issues and vacate the same or otherwise make such order as the county court ought to have made. And upon every appeal taken generally the court has the same power that the county court had to permit 300 PROBATE CODE NORTH DAKOTA. or direct a pleading to be filed or otherwise amend the issues and try the same accordingly, but in other respects, when the proofs on which the county court acted were submitted in the form of affidavits or otherwise appear of record, the appeal must be determined upon the certified transcript. (Sec. 326, Prob. C., am'd Rev. Com'rs. ) Levisee, p. 271. Consult preceding section; sec. 5976, Comp. Laws, chap. 13, . After due notice of appeal was given, and appeal bond filed, the sureties justifying in the form attached to the bond, the justice's certificate approv- ing the bond, plaintiff gave notice requiring sureties to justify, but no further justification was had, and on motion the appeal was dismissed by the district court. Held, error, and that the district court had jurisdiction on the appeal. Judson v. Bulin, 6 Dak. 70, 50 N. W. 484. Expunging Word From Bond When Improper. Where the district tourt denied a motion to vacate an order purporting to dismiss an appeal from justice court, which order denying said motion was sought to be reviewed as a chambers order, by motion to set it aside, and where an appeal was taken to the supreme court from an order refusing to vacate the order denying the motion to dis- miss the appeal from justice court, lield, in a suit upon the undertaking giv- en on the last mentioned appeal, that the word "judgment" could not be ex- punged from the undertaking, and the word "order" inserted in its place as a clerical error, no attempt being made to reform the undertaking on ground of mistake. Bartholomew, C. J., dissenting. Travelers' Ins. Co. v. Weber et al, 4 N. D. 135, 59 N. W. 529. Sureties Must Justify in Time Dismissal of Appeal. If under this section the sufficiency of the sureties in the undertaking is excepted to, and they or other sureties do not justify as required in said section, the ap- peal should be dismissed. Barber v. Johnson, 4 S. D. 528, 57 N. W. 225; Rudolph v. Herman, 2 S. D. 399, 50 N. W. 833; Coker v. Superior Ct., 58 Cal. 177; McCracken v. Superior Ct., 86 Cal. 74, 24 Pac. 845. Attorney as Surety Bond Void. Where one of the sureties on appeal from a justice court was a practicing attorney in the courts of this state, held, such un- dertaking was insufficient, and the appellate court on being properly ad- vised of the effect in the undertaking, could proceed no further until a suffi- cient undertaking was filed. Towle v. Bradley, 2 S. D. 472, 50 N. W. 1057: Gilbank v. Stephenson, 30 Wis. 156; Cothren v. Connaughton, 24 Wis. 137; Schuek v. Hagar, 24 Minn. 341. Held, further, that when the court, after the fact that one of such sureties was such practicing attorney was clearly established, proceeded to try the action and enter judgment, without a new undertaking being filed, it committed reversible error. Towle v. Brad- ley, supra. POSSESSION IN FORCIBLE ENTRY, ETC. UNDERTAKING FOR STAY CONDITIONS OF. 6134 Comp. Laws. In Judgments for the delivery of possession in actions of forcible entry and de- tainer, or detainer only, the execution of the same cannot be stayed unless a written undertaking be executed on the part of APPEALS. 319 the appellant, with two or more sureties, to the effect that dur ing the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed, or the appeal be dismissed, he will pay all rents for the use and occupation of the property, and all damages from the time of the appeal until the delivery of the possession thereof. Sec. 94, Jus. C. ; Levisee, pp. 306-7; sec. 6774, Rev. Codes N. D. chap. 23, Post. Consult preceding, and following section. And see, Rudolph v. Herman, 2 S. D. 399, 50 N. W. 833; Rudolph v. Herman, 4 S. D. 430, 57 N. W. 65; and Rudolph v. Herman, 4 S. D. 203, 56 N. W. 122, all cited under sec. 6129, supra. STAY OF EXECUTION RELEASE OF LEVY OFFICER'S FEES. 6135 Comp. Laws. If an execution be issued, on the filing of the undertaking staying proceedings' the justice must, by order, direct the officer to stay all proceedings on the same. Such officer must, upon payment of his fees for services rendered on the execution, thereupon relinquish all property levied upon, and deliver the same to the judgment debtor, together with all moneys collected from sales or otherwise. If his fees be not paid, the officer may retain so much of the property or pro- ceeds thereof as may be necessary to pay the same. Sec. 95, Jus. C.; Levisee, p. 307. Consult two preceding sections; and sec. 6778, Rev. Codes N. D. chap. 23, Post. REVIEW ON APPEAL ON STATEMENT SCOPE OF NEW TRIAL ORDERED, WHEN TRIAL DE NO I/O DISMISSAL OF APPEAL- JUDGMENTS NOTICE OF TRIAL UNNECESSARY. 6136 Comp. Laws. Upon an appeal heard upon a statement of the case, the circuit court may review all orders affecting the judgment appealed from, and may set aside, affirm or modify the judg- ment, or any or all the proceedings subsequent to and depend- ent upon such judgment, and may, if necessary or proper, ord- er a new trial. When the action is tried anew, upon appeal, the trial must be conducted in all respects as trials in the cir- cuit court. The provisions of the Code of Civil Procedure as to changing the place of trial, and all the provisions as to trials 320 JUSTICE'S CODE SOUTH DAKOTA. in the circuit court, are applicable to trials on appeal in that court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the circuit court, after notice, may order the appeal to be dismissed. Judgments rendered in the circuit court on appeal have the same force and effect and may be enforced in the circuit court in the same manner, as judgments in actions commenced therein, except that when a new trial is granted the case must be remanded, and the new trial shall be had in the justice's court. No notice of trial and note of issue shall be required to be served or filed in order to bring the cause appealed upon the trial calendar in the circuit court, but said appeal shall be filed by the clerk, on payment of his costs, and entered upon the calendar, and shall stand for trial as soon as the same is reached in the regular call of the calendar there- after. If not so filed within fifteen days from the time such ap- peal was perfected, then the same shall be dismissed by the order of the court at any time thereafter, upon motion of the appellee, after three days' notice to the appellant or his at- torney. (Sec. 96, Jus. C. am'd sec. 1, chap. 5, laws 1881, Dak.) Sec. 96. Jus. C.; Levisee, p. 307. Consult sees. 6131, 6130, supra. And see Miner v. Francis & Southard, 3 N. D. 549, 58 N. W. 343, cited under sec. 6132, supra; Lyons et al v. Mil- ler, 2 N. D. 1, 48 N. W. 514, Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245, cited under sec. 6131, supra; Edminster v. Rathbun, 3 S. D. 129, 52 N. W. 263, cited under sec. 6129, supra. New Trial Demanded Case on Calendar Must Notice for Dis- missal. Upon appeal from judgment in justice court to the district (now circuit) court, the notice of appeal demanding a new trial, the case goes upon the calendar for trial as an original action, subject, so far as the trial is concerned, to the provisions of the Code of Civil Procedure; and it is er- ror for the trial court to dismiss the appeal for failure to prosecute, except upon notice, as provided in sec. 6136, Comp. Laws. Following Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245; Keehl v. Schaller, 1 S. D. 290, 46 N. W. 934. Order Non- Appealable to Supreme Court What is Jurisdiction. No appeal will lie from an order of the district court dismissing an appeal from a justice court for jurisdictional reasons. Such order is not appealable under the first subdivision of sec. 24, chap. 120, laws 1891. The order is au- thority for the entry of a judgment; hence it does not "prevent the entry of a judgment from which an appeal might be taken." In le Weber, 4 N. OF CRIMINAL PROCEEDINGS IN JUSTICES' COURTS. 321 D. 119, 59 N. W. 523; Lamb v. McCanna, 14 Minn. 513 (Gil. 385); Hodgins v. Heaney, 15 Minn. 185 (Gil. 142); Thorp v. Lorenz (Minn.), 25 N. W. 712. Clerk's Filemark After Time Appeal Good Jurisdiction. Sec. 96, Justice's Code, as amended, cbap. 5, laws 1881, provides that if the appeal is not filed with the clerk of the district court within fifteen days after it is perfected it shall be dismissed. It appeared the clerk received the papers within the time, but, his costs not having been paid, did not endorse them with his filing until after the time had expired. Held, the district court had acquired jurisdiction and it was error to dismiss the appeal under that sec- tion. Harris v. Watkins, 5 Dak. 374, 40 N. W. 536. Appearance Contin- uance Not Default Judgment. In an action before a justice, defendant by attorney, on return-day appeared and had the case continued to another time, when he again appeared and filed a general denial to the complaint, but defendant himself failed to appear within the hour and until after judg- ment was rendered against him. Held, not a judgment by default, and the defendant might appeal therefrom and have the case tried in the district court. Harris v. Watkins, 5 Dak. 374, 40 N. W. 536. CHAPTER XIX. ART. 1, CHAP. 2, JUSTICES' CODE SOUTH DAKOTA. OF CRIMINAL PROCEEDINGS IN JUSTICES' COURTS. PLEA, ORAL COURT EXAMINES WITNESSES ON PLEA OF GUILTY COMMITTAL OF DEFENDANT WHEN. 6151 Comp. Laws. The defendant may make the same plea as upon an indictment. His plea must be oral, and entered in the minutes. If the de- fendant plead guilty the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury. (Sec. 110, Jus. C.) Levisee, p. 310. 21 T P 322 JUSTICES' CODE SOUTH DAKOTA. Consult next section, sec. 7175, Comp. Laws; sec. 6754, 6755, Rev. Codes N. D., chap. 24, Post. PLEA OF NOT GUILTY WHEN TRIAL HAD-JURY. 6152 Comp. Laws. Upon a plea other than a plea of guilty, if the defendant does not demand a trial by jury, or an adjournment 6r change of venue is not granted, the court must proceed to try the case. (Sec. Ill, Jus. C. ) Levisee, p. 310. Consult preceding section; sec. 6756, Rev. Codes, N. D., chap. 24, Post. CHANGE OF VENUE, WHENGROUNDS FOR TRANSFER TO WHAT JUSTICE ONE CHANGE. 6153 Comp. Laws. In crimi- nal proceedings before a justice of the peace, a change of the place of trial or examination may be had at any time before such trial or examination commences, when it appears from the affidavit of the defendant that he has reason to believe and does believe, that he cannot have a fair and impartial trial or exam- ination before the justice about to try or examine such case, by reason of the bias or prejudice of such justice; whereupon the cause shall be transferred to the next nearest justice of the same county, unless the parties otherwise agree; Provided, that a change of the place of trial or examination under the provis- ions of this section can be had but once. (Sec. 1, ch. 82, laws 1887.) Sec. 112, Jus. C.; Levisee, p. 310. Consult next section. TRANSMISSION OF PAPERS NEXT JUSTICE TRIAL BEFORE. 6154 Comp. Laws. When a change of the place of trial is ordered the justice must transmit to the justice before whom the trial is to be had all the original papers in the cause, with a certified copy of the minutes of his proceedings; and upon re- ceipt thereof, the justice to whom they are delivered must pro- ceed with the trial in the same manner as if the proceeding or action had been originally commenced in his court. (Sec. 113, Jus. C.) Levisee, p. 310. Consult preceding section. OF CRIMINAL PROCEEDINGS IN JUSTICES' COURTS. 323 POSTPONEMENT BEFORE TRIAL, FOR CAUSE. 6155 Comp. Laws. Before the commencement of the trial either party may, upon good cause shown, have a reasonable postponement thereof. (Sec. 114, Jus. C.) Levisee, p. 310. Consult sec. 6087, Comp. Laws, chap. 16, ante. DEFENDANT PRESENT. 6156 Comp. Laws. The defend- ant must be personally present before the trial can proceed. (Sec. 115, Jus. C.) Levisee, p. 310; sec. 6760, Rev. Codes, N. D., chap. 24, Post. JURY TRIAL FORMATION OF JURY. 6157 Comp. Laws. Before the court hears any testimony upon the trial, the de- fendant may demand a trial by jury. The formation of the jury is provided for in chapter 1, article 10, of this code. (Sec. 116, Jus. C.) Levisee, p. 310. See, as to formation of jury, chap. 18, ante. Consult sec. 6757, Rev. Codes, N. D., chap. 24, Post. See, Belatti v. Pierce, police justice, S. D , 66 N. W. 1088, where a jury trial was denied defendant by the police justice, and it was held, that a special charter of the City of Watertown, which restricted the right of appeal from a judgment of conviction for violation of an ordinance to cases in which the term of imprisonment imposed exceeds 10 days, or the fine imposed exceeds $20, is in violation of art. 6, sec. 6, of the constitution, providing that the right of trial by jury shall extend to all cases at law without regard to amount in controversy, and of sec. 7 of said article, pro- viding for a jury trial in all criminal prosecutions. And see City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947. CHALLENGES COURT TRIES. 6158 Comp. Laws. The same challenges may be taken by either party to any individ- ual juror, as on the trial of an indictment for a misdemeanor; but the challenge must, in all cases, be tried by the court. (Sec. 117, Tus. C.) Levisee, p. 310. See, as to challenges on trial of indictment, sec. 7353, Comp. Laws, Post; and consult sec. 6758, Rev. Codes, N. D., chap. 24, Post. JUROR'S OATH. 6159 Comp. Laws. The court must ad- minister to the jury the following oath: 324 JUSTICES* CODE SOUTH DAKOTA. You do swear that you will well and truly try this issue between the State of South Dakota and A B, the defendant, and a true verdict render according to the evidence. So help you God. Any juror who is conscientiously scrupulous of taking an oath, shall be allowed to make affirmation, substituting for the words "so help you God," at the end of the oath, the words, ''this you do affirm, under the pains and penalties of perjury." (Sec. 118, Jus. C.) Levisee, p. 311. Consult sec. 6759, Rev. Codes, N. D., chap. 24, Post. JURORS SITTING TOGETHER PROOFS, ETC., PUBLIC. 6160 Comp. Laws. After the jury are sworn they must sit to- gether and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant. (Sec. 119, Jus. C.) Levisee, p. 311. COURT DECIDES LAW NO CHARGE. 9161 Comp. Laws. The court must decide all questions of law which may arise in the course of the trial, but can give no charge with respect to matters of fact. (Sec. 120, Jus C.) Levisee, p. 311. JURY'S CONSULTATION OFFICER'S OATH. 6162 Comp. Laws. After hearing the proofs and allegations, the jury may decide in court, or may retire for consideration. If they do not immediately agree, an officer must be sworn to the follow- ing effect: You do swear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them, nor speak to them yourself, unless by order of the court, or to ask them wheth- er they have agreed upon a verdict; and that you will return them into court when they have so agreed, or when ordered by the court. (Sec. 121, Jus. C.) Levisee, p. 311. VERDICT, GENERAL ENTRY QF. 6163 Comp. Laws. The verdict of the jury must, in all cases, be general. When the jury have agreed on their verdict, they must deliver it publicly to the court, who must enter or cause it to be entered in the docket. (Sec. 122, Jus. C.) OF CRIMINAL PROCEEDINGS IN JUSTICES' COURTS. 325 Levisee, p. 311. Consult next section; and sec. 676!, Rev. Codes, N. D., chap. 24, Post. SEVERAL DEFENDANTS VERDICT AS TO PART RETRIAL OF BALANCE. 6164 Comp. Laws. When several defendants are tried together, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury. (Sec. 123, Jus. C.) Levisee, p. 311. Consult preceding section; and sec. 6762, Rev. Codes, N. D., chap. 24, Post, DISCHARGE OF JURY MUST FIRST AGREE, UNLESS. 6165 Comp. Laws. The jury cannot be discharged after the cause is submitted to them, until they have agreed upon and rendered their verdict, unless for good cause the court sooner dis- charges them. (Sec. 124, Jus. C. ) Levisee, p. 311. Consult next section. TRIAL AGAIN, ON DISAGREEMENT PROCEDURE. 6166 Comp. Laws, If the jury is discharged, as provided in the last section, the court may proceed again to the trial, in the same manner as upon the first trial, and so on until a verdict is rendered. (Sec. 125, Jus. C. ) Levisee, p. 311. Consult preceding section. JUDGMENT, ON PLEA OR CONVICTION. 6167 Com. Laws. When the defendant pleads guilty, or is convicted, either by the court or by a jury, the court must render judgment there- on, of fine or imprisonment, or both, as the case may be. (Sec. 126, Jus. C. ) Levisee, p. 311. Consult sec. 6765, Rev. Codes, N. D., chap. 24, Post. Committal for Non-Payment of Costs When Unauthorized. The law does not authorize a justice of the peace to commit a defendant for non- payment of costs, which are no part of the fine imposed as a penalty for his offense. In re Lackey, ... S. D 62 N. W. 134. A fine of $10 and $54.60 costs, imposed by a justice in a criminal case, and a judgment that 326 JUSTICES 4 CODE SOUTH DAKOTA. defendant stand committed until the fine and costs should be paid, is unau- thorized, in so far as the judgment provides that defendant stand commit- ted, etc.; and defendant was entitled to be discharged after five days' im- prisonment. Id. FINE AND IMPRISONMENTPROPORTIONS BETWEEN. 6168 Comp. Laws. A judgment that the defendant pay a fine may also direct that he be imprisoned until the tine is satisfied, in the proportion of one day's imprisonment for every two dol- lars of the fine. (Sec. 127, Jus. C.) Levisee, p. 312. Consult preceding section, and decisions thereunder. DISCHARGE OF DEFENDANT ON ACQUITTAL COSTS MA- LICIOUS PROSECUTION. 6169 Comp. Laws. When the defend- ant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify in the minutes that the prosecution was malicious or without probable cause, it may order the prosecutor to pay the costs of the action, or to give satisfactory security by a written undertaking, with one or more sureties, to pay the same within thirty days after the trial. (Sec. 128, Jus. C.) Levisee, p. 312. Consult sec. 6764, Rev. Codes, N. D., chap. 24, post. JUDGMENT ENTERED IMMEDIATELY. 6170 Comp. Laws. At the close of the trial, judgment must be immediately ren- dered by the justice, and entered in his docket. (Sec. 129, Jus. Code.) Levisee, p. 312. Consult sees. 6167, 6168, supra. CHAPTER XX. ART. 2, CHAP. 2, JUSTICES' CODE SOUTH DAKOTA. APPEALS IN CRIMINAL PROCEEDINGS. RIGHT OF APPEAL ANNOUNCED ORAL APPEAL NOTICE NEW TRIAL ABOVE, ON WHAT ISSUES. 6177 Comp. Laws. The jus- APPEALS IN CRIMINAL PROCEEDINGS. 327 tice, immediately on rendering judgment against the defend- ant, must inform him of his right to appeal therefrom, and the defendant may thereupon take an appeal to the circuit court of the county or subdivision in which the trial was had, by giving notice orally to the justice that he appeals, and the justice must make an entry on his docket of the giving of such notice; and upon such appeal the action may be tried anew in the circuit court upon questions of law and fact, or fact alone; or the ap- peal may be determined therein upon questions of law alone, and the judgment may be set aside, affirmed or modified, or a new trial granted as provided in section 6136 of the justices' code. (Sec. 136, Jus. C.) Levisee, p. 313. Consult next two sections; sec. 6781, Rev. Codes, N. D., chap. 25, post. APPEAL AS IN CIVIL ACTIONS ALTERNATIVE METHOD. 6178 Com p. Laws. Instead of such appeal, the defendant may at any time within thirty days after judgment, appeal to such cir- cuit court in the same manner as provided in sections 6129, 6130, 6131 and 6132, and such appeal may be determined there- in as provided for in section 6136 of the justices' code. (Sec. 137, Jus. C.) Levisee, p. 313. See chap. 18, ante, as to appeal in civil cases. Consult preceding, and next section; sec. 6782, Rev. Codes, N. D.,chap. 25, post. BAIL FIXED, ON APPEAL STAY UNDERTAKING. 6179 Comp. Laws. Upon an appeal the justice must enter an order on his docket, fixing the amount in which bail may be given by the defendant, and the execution of the judgment shall not be stayed unless he enter into an undertaking in the amount fixed with sufficient surety to be approved by the justice to appear and answer at the next term of the circuit court, and not de- part without leave of the same. (Sec. 138, Jus. C. ) Levisee, p. 313. Consult next two sections; sec. 6783, Rev. Codes, N. D., chap. 25, post. BAIL TAKEN BY ANY MAGISTRATE, OR CIRCUIT COURT OR CLERK. 6180, Comp. Laws. The bail may be taken by the JUSTICES' CODE SOUTH DAKOTA. justice who rendered the judgment, or by any magistrate in the county who has authority to admit to bail, or by the circuit court or the clerk thereof. (Sec. 139, Jus. C.) Levisee, p. 313. Consult preceding section. . WITNESSES' UNDERTAKING OBLIGATIONS OF. 6181 Comp. Laws. When an appeal is taken, the justice must, if applica- tion be made by the district attorney, cause all material wit- nesses on behalf of the prosecution to enter into an undertak- ing in like manner as in a case where a defendant is held to answer on a preliminary examination for an indictable offense. (Sec. 140, Jus. C.) Levisee, p. 313. See, as to commitment, etc., to answer to an indictment, sec. 7181, Comp. Laws. TRANSCRIPT ON APPEAL CONTENTS OF JUSTICE COMPELLED WHEN-FINE FOR NEGLECT-BENEFIT OF OBJECTIONS. 6182 Comp. Laws. Upon an appeal being taken, the justice must, within five days, transmit to the clerk of the circuit court, if the ap- peal be upon questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal, if any, and the undertaking of bail; or, if the appeal be on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions and other papers filed in the cause, the notice of appeal, if any, and the under- takings filed; and the justice may be compelled by the circuit court, by an order entered upon motion, to transmit such pa- pers, and, if the return be defective, to make further return, and may be fined for neglect or refusal to transmit the same. A certified copy of such order may be served on the justice by the party or his attorney. In the circuit court, either party may have the benefit of all legal objections made in the jus- tice's court. (Sec. 141, Jus. C. ) Levisee, p. 313. Consult sec. 6132, Comp. Laws, chap. 18, ante; sec. 6786, Rev. Codes, N. D., chap. 25, post. NO APPEAL DISMISSED ENFORCEMENT OF JUDGMENT NEW TRIAL BELOW, IF GRANTED. 6183 Comp. Laws.- No appeal APPEALS IN CRIMINAL PROCEEDINGS. 329 from the judgment of a justice of the peace in criminal proceed- ings shall be dismissed. All proceedings necessary to carry the judgment upon appeal into effect shall be had in the circuit court; provided, hoivever, that when a new trial is granted the case must be remanded, and the new trial had in the justice's court. (Sec. 142, Jus. C.) Levisee, p. 314. Consult sec. 6787, Rev. Codes, N. D., chap. 25, Post. CHAPTER XXI. ART. 2, CHAP. 3, JUSTICES' CODE NORTH DAKOTA. APPEARANCE, POSTPONEMENT AND CHANGE OF VENUE. APPEARANCE IN PERSON OR BY ATTORNEYWHO MAY ACT AS ATTORNEY. 6644 Rev. Codes N. D. In a justice's court the parties may appear and act in person or by attorney and any person may act as attorney except a practicing attor- ney, or other person occupying the same room in which the justice has his office, or a person employed in serving a sum- mons or venire. (Sec. 12, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 290; sec. 6051, Comp. Laws. Consult next two sections. APPEAR IN ONE HOUR. 6645 Rev. Codes N. D. The parties are entitled to one hour in which to appear after the time stated in the summons or any time fixed for further pro- ceedings in the action and neither party is bound to wait long- er for the other. (Sec. 18, Jus. C. ) Levisee, p. 291; sec. 6084, Comp. Laws, chap. 16, ante. Consult preceding and following section. ACTION DEEMED DISCONTINUED, WHEN CASE CALLED WHEN. 6646 Rev. Codes N. D. If neither party appears within the time limited by the preceding section, the action shall be deemed discontinued and there shall be no further proceedings therein unless by the consent of both parties; if both parties 211 T P S'SO JUSTICES' CODE NORTH DAKOTA. appear, the case may be called when they appear, but if only one or more of the parties appear, the case shall not be called until the expiration of the hour and in either case shall be dis posed of as hereinafter prescribed. (Sec. 44, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 297; sec. 6084, Comp. Laws, chap. 16, ante, Consult two preceding sections. SICKNESS, E7C., OF JUSTICE ANOTHER JUSTICE ATTENDS DOCKET ENTRIES. 8 6647 Rev. Codes N. D. In case of the sickness or other disability or necessary absence of a justice, on a return of a summons or at the time appointed for a trial, another justice of the same township or county may at his re- quest attend in his behalf, and thereupon is vested with the power for the time being of the justice before whom the sum- mons was returnable. In that case the proper entry of the proceedings before the attending justice subscribed by him must be made in the docket of the justice before whom the summons was returnable. If the case is adjourned, the justice before whom the summons was returnable may resume juris- diction. (Sec. 100, Jus. C., am'd Rev. Com'rs.) Levisee, p. 308; sec. 6140, Comp. Laws, chap. 16, ante. POSTPONEMENT OF HEARING-GROUNDS FOR HOW LONG. 6648 Rev. Codes N. D. The court may of its own motion or on application of a party postpone the hearing or trial: 1. For not exceeding one day if at the time specified in the summons or order of the court, the justice is sick or en- gaged in the trial of another action. 2. For not exceeding two days, if by amendment of a pleading or allowance of time to plead or amend, a postpone- ment is rendered necessary. 3. For not exceeding three days, when a jury is required for the trial of an issue of fact. 4. For not exceeding thirty days, when a second sum- mons is issued as prescribed by section 6643 of this code. (Sec. 45, Jus. C., am'd Rev. Com'rs.) Levisee, p. 297; sec. 6085, Comp. Laws, chap. 16, ante. Consult next two sections. APPEARANCE, POSTPONEMENT, CHANGE OF VENUE. 331 POSTPONEMENT BY CONSENT. 6649 Rev. Codes N. D. The court may, by consent of the parties given in writing or in open court, postpone the trial to a time agreed upon by the parties. (Sec. 46, Jus. C. ) Levisee, p. 297; sec. 6086, Com p. Laws, chap. 16, ante. Consult preceding- section. SAME ON PARTY'S APPLICATION SHOWING NECESSARY FOR AFFIDAVITS TAKING DEPOSITIONS, PROCEDURE. 6650 Rev. Codes N. D. The trial may be postponed upon the appli- cation of either party for a period not exceeding sixty days: 1. The party making the application must prove by his own oath or otherwise, that he cannot for want of material tes- timony, which he expects to procure, safely proceed to trial and must show in what respect the testimony expected is ma- terial and that he has used due diligence to procure it and has been unable to do so. 2. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the justice and that the testimony so tak- en may be read on the trial with the same effect and subject to the same objections as if the witness was produced; but the court may require the party making the application to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given and agrees that it be considered as actually given on the trial or offered and overruled as improper, the trial must not be postponed. 3. If the trial is postponld, the depositions of witnesses residing out of the county or state may be taken either upon commission issued by the justice or upon notice to take depo- sitions in the same manner as is provided by the code of civil procedure; and such depositions shall, when completed, be di- rected to the justice and be published by the justice in the same manner as depositions are published by the clerk of the district court. (Sec. 47, Jus. C., Sec. 1, chap. 86, laws 1885, Dak., am'd Rev, Com'rs. 332 JUSTICES' CODE NORTH DAKOTA. Levisee, p. 297-8; sec. 6087, Comp. Laws, chap. 16, ante. Consult two preceding sections. UNDERTAKING ON POSTPONEMENT, WHEN REQUIRED CONDI- TIONS OF. 6651 Rev. Codes N. D. No postponement shall be granted as prescribed in the preceding section for more than five days, unless the party applying for the postponement files an undertaking executed by a sufficient surety approved by the justice to the effect that he will pay to the adverse party all costs which he shall recover in the action. If the application is made by the defendant in an action of forcible detainer, the undertaking must be to the effect that the surety will pay to the plaintiff whatever sum he shall recover in the action including all rents and profits that shall accrue to him during the post- ponement. (Sec. 38, 48, Jus. C., am'd Rev. Com'rs. ) Levisee, pp. 295, 298; sec. 6077, 6088, Comp. Laws, chap. 16, ante. CHANGE OF VENUE IN WHAT CASES SHOWING NECESSARY. 6652 Rev. Codes N. D. The court may at any time before the trial, on motion, change the place of trial in the following cases: 1. When it appears to the satisfaction of the justice be- fore whom the action is pending by affidavit of either party that such justice is a material witness for either party. 2. When either party makes and files an affidavit that he believes he cannot have a fair and impartial trial before such justice by reason of the interest, prejudice or bias of the jus- tice. 3. When from any cause the justice is disqualified from acting. 4. When the justice is sicft or unable to act. (Sec. 5, Jus. C.) Levisee, p. 288; sec. 6045, Comp. Laws, chap. 16, ante; see, as to change of venue in district court, sec. 5244, Rev. Codes, N. D. Consult next section. ONLY ONE CHANGE ALLOWABLE TRANSFER OF ACTION ON TO WHAT JUSTICE. 6653 Rev. Codes N. D. The place of trial cannot be changed on motion of the same party more than once. When the court orders the place of trial to be changed, the ac- TRIAL OF ISSUE OF FACT. 333 tion must be transferred for trial to a justice's court the parties may agree upon, and if they do not so agree, then to the next nearest justice's court in the same county. (Sec. 6, Jus. C. Sec. 1, chap. 88, laws 1881, Dak.) Levisee, p. 289; sec. 6046, Comp. Laws, chap. 16, ante. JURISDICTION OF COURT ON CHANGE OR VENUE TRANSCRIPT -NOTICE OF TRIAL 6654 Rev. Codes N. D. From the time the order changing the place of trial is made, the court to which the action is thereby transferred has the same jurisdiction over it as though it had been commenced in such court. After an order has been made transferring the action for trial to another court the following proceedings must be had: 1. The justice ordering the transfer must immediately transmit to the justice of the court to which it is transferred, on payment by the party applying of one dollar for the trans- cript, all the papers in the action together with a certified transcript from his docket of the proceedings therein. 2. Upon the receipt by him of such papers the justice of the court to which the case is transferred must issue a notice stating when and where the trial will take place, which notice must be served upon the parties at least one day before the time fixed for trial, unless such notice is waived by consent of the parties entered on the docket. (Sec. 9, Jus. C. Sec. 1, ch. 42, laws 1879, Dak. ) Levisee, p, 289; sec. 6047, 6048, Comp. Laws, chap. 16, ante. Consult preceding section. CHAPTER XXII. ART. 6, CHAP. 3, JUSTICES' CODE NORTH DAKOTA. TRIAL OF ISSUE OF FACT. ISSUE OF FACT, ARISES UPON WHAT. 6681 Rev. Codes N. D. An issue of fact arises: 1. Upon a material allegation in the complaint contro- verted by the answer; or, 334 JUSTICES' CODE NORTH DAKOTA. 2. Upon new matter in the answer not admitted in the re ply; or, 3. Upon new matter in the reply. (Sec. 51, Jus. C. am'd Rev. Com'rs. Levisee, p. 298; sec. 6091, Comp. Laws, chap. 17, ante. ISSUE OF FACT TRIED BY JURY WAIVERWHEN COURT TRIES. 6682 Rev. Codes N. D. Issues of fact must be tried by jury unless a jury is waived. When a jury is waived, the court must try the issues, hear the allegations and proofs of the respective parties and render judgment thereon. (Sec. 53, Jus. C., am'd Rev. Com'rs.) Levisee, p. 298; sec. 6093, Comp. Laws, chap. 17, ante. TRIAL WHEN COMMENCES CONTINUANCES, DAY TO DAY. 6683 Rev. Codes N. D. Subject to the provisions of article 2 of this chapter the trial must commence as soon as the issues are joined or as soon as the jury is empaneled, and con- tinued until concluded without an intermission for more than twenty-four hours at any one time; if either party fails to ap- pear at the time fixed for the trial, it may proceed at the request of the adverse party. (Sec. 55, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 298; sec. 6095, Com. Laws, chap. 17, ante. JURY HOW WAIVED. 6684 Rev. Codes N. D. A jury is waived: 1. If neither party before the commencement of the trial demands a jury as prescribed in the next section. 2. If either party fails to appear at the time fixed for the trial. (Sec. 54, Jus. C., am'd Rev. Com'rs.) Levisee, p. 298; sec. 6094, Comp. Laws, chap. 17, ante. JURY, WHEN DEMANDABLEFEES. 6685 Rev. Codes N. D. When an issue of fact is joined, either party may de- mand a trial by jury on depositing with the justice a sum suffi- cient to pay the jurors their fees for one day's attendance. (Sec. 56, Jus. C.; sec. 1, ch. 33, laws 1879, am'd Rev. Com'rs.) Levisee, p. 298; sec. 6096, Comp. Laws, chap. 17, ante, and references and decisions thereunder. JURY, HOW COMPOSED SIX,, LESS IF AGREED. 6686 Rev. Codes N. D. The jury shall be composed of six residents TRIAL OF ISSUE OF FACT. 335 of the county having the qualifications of jurors or of any num- ber less than six if the parties so agree, who shall be selected, summonecTand impaneled as hereinafter prescribed. (Sec. 56, Jus. C.; sec. 1, ch. 33, laws 1879, am'd Rev. Com'rs. ) Levisee, p. 298-9; sec. 6096, Comp. Laws, chap. 17, ante, and refer- ences and decisions thereunder. JURY, HOW SELECTED VENIRE. 6687 Rev. Codes N. D. Unless the persons to be sufnmoned are named in the agreement of the parties, the justice shall write down the names of eighteen residents of the county competent to sit as jurors, and from the list so prepared, the parties alternately, beginning with the party demanding the jury, shall strike out one name each until there remains only the number required to constitute the jury. If either party refuses to strike out a name the justice shall act for him. The justice shall thereup- on issue his venire to the sheriff or any constable of the county commanding him to summon the persons so selected or agreed upon, as the case may be, to appear forthwith or at a fixed time and place stated therein, to serve as jurors in the trial of the action. (Sec. 56, Jus. C. ; sec. 1, ch. 33, laws 1879, am'd Rev. Com'rs.) Levisee, p. 298-9; sec. 6096, Comp Laws, chap. 17, ante, and references and decisions thereunder. SERVICE OF VENIRERETURNDISOBEYING VENIRE, PUN- ISHMENT. 6688 Rev. Codes N. D. The officer shall, without unnecessary delay, serve the venire upon each of the persons therein mamed by reading the same to him and shall state in his return the name of each person served and the name of each person who cannot be found. A person disobeying a ve- nire may be compelled to appear or be punished for a failure to appear in the same manner as a witness who disobeys a subpoena. (Adopted through Rev. Com'rs.) Sec. 56, Jus. C ; Levisee, p. 298-9; sec. 6096, Comp. Laws, chap. 17, ante. ABSENTEES BRO UGH TJN OTHERS SUBSTITUTED, FROM WHAT LIST. 6689 Rev. Codes N. D. If the persons so summoned do not all appear at the proper time, the justice must require 336 JUSTICES' CODE NORTH DAKOTA. the absentees to be brought in or cause others to be substituted, or if any person appearing as a juror is excused for legal cause before the jurors are sworn to try the issue, o'thers must be substituted until the required number of jurors is obtained. The persons so required must be selected and summoned forth- with as hereinbefore prescribed from a list containing three times as many names as there are jurors to be substituted. (Sec. 57, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 299; sec. 6097, Comp. Laws, chap. 17, ante. JURORS SWORN TO ANSWER QUESTIONS EXAMINATION OF. 6690 Rev. Codes N. D. Upon the appearance of a sufficient number, the jurors must at the request of either party be first sworn to answer truly all questions that may be propounded to them by the court or by the parties as to their qualifications to sit as jurors in the trial of the action and may thereupon be examined accordingly. (Sec. 57, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 299; sec. 6099, Comp. Laws, chap. 17, ante. CHALLENGES, SAME AS IN DISTRICT COURT TRIAL OF. 6691 Rev. Codes N. D. Challenges to individual jurors are allowed for the same causes as in a civil action in the district court, but must be taken before the jurors, are sworn to try the issue, and every challenge must be tried in a summary manner by the jus- tice on the examination of the juror or other witnesses under oath. (Sec. 57, Jus. C., am'd Rev. Com'rs.) Levisee, p. 299; sec. 5428, Rev. Codes N. D., ante, pp. 9, 10: sec. 6097, Comp. Laws, chap. 17, ante. OATH OF JURORS. 6692 Rev. Codes N. D. As soon as a sufficient number are secured and accepted, the justice shall administer to the jurors the following oath: "You, and each of you, do solemnly swear (or affirm as the case may be) that you will well and truly try the matters in issue between the plaintiff and defendant and a true verdict rendered according to the evidence." (Sec. 59, Jus. C., am'd Rev. Com'rs;) Levisee, p. 299; sec. 6099, Comp. Laws. chap. 17, ante. SWEARING JURY PROOFS HEARD -^PRACTICE. 6693 Rev. Codes N. D. After the jurors are sworn to try the issue, they must sit together and hear the allegations and proofs of the TRIAL OF ISSUE OF FACT. 337 parties, which must be delivered in public in the presence of the justice and as nearly as may be in accordance with the prac- tice in the district court. (Sec 119, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 311. DISCHARGE OF JURY VERDICT FIRST RETURNED, UNLESS. 6694 Rev. Codes N. D. The jury cannot be discharged after they are sworn until they have agreed upon and returned their verdict, unless for good cause the court sooner discharges them. (Sec. 124, Jus. C., am'd Rev. Com'rs.) Levisee, p. 311. JUSTICE DECIDES LAW JURY NOT INSTRUCTED OPINION. 6695 Rev. Codes N. D. The justice must decide all questions of law arising in the progress of the trial, but must not instruct the jury upon the law of the case, nor express an opinion as to any matters of fact in controversy therein. (Sec. 120, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 311. JURY'S DECISION PROCEDURE OFFICER'S OATH. 6696 Rev. Codes N. D. After hearing the proofs and allegations, the jury may decide in court or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect: You do s'wear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them nor speak to them yourself unless by order of the court, or to ask them whether they have agreed upon a verdict; and that you will return them into court when they have so agreed or when ordered by the court. (Sec. 121, Jus. C., am'd Rev. Com'rs.) Levisee, p. 311. VERDICT IN WRITING HOW SIGNED RENDITION AND ENTRY OF CORRECTION OF. 6697 Rev. Codes N. D. The verdict of the jury must be in writing, and be signed by all the jurors or by one of them as foreman. When they have agreed upon their verdict they must render it publicly to the justice and it must be entered in the docket immediately, but if the verdict is not in proper form, the justice may inform the jury accordingly 22 TP 388 JUSTICES' CODE NORTH DAKOTA. and require them to correct the same. (Sec. 122, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 311. FORM OF VERDICT CLAIM AND DELIVERY FORCIBLE DE- TAINEROTHER CASES FOR LIEN. 6698 Rev. Codes N. D. The verdict shall be as follows: 1. In an action to recover possession of personal prop- erty, to the effect that the jury find the plaintiff or defendant entitled to possession or if not in possession, to a delivery of the property therein described, specifying its value article by article and to damages, if claimed for its detention, in a sum therein stated as assessed by the jury. If the finding is in favor of the plaintiff as to part of the property, the verdict shall con tain a like finding in favor of the defendant as to the residue. 2. In an action of forcible detainer when in favor of the plaintiff, to the effect that he is entitled to a delivery of posses- sion and to rents, profits and damages if claimed, in a sum as- sessed by the jury. If in favor of the defendant a finding to that effect is sufficient. 3. In other actions, when in favor of the plaintiff or plain- tiffs to the effect that the jury find for him or them and assess the amount of the recovery at a sum therein stated in dollars and cents; or if there are several defendants, to the effect that the jury find for the plaintiff and assess his recovery at a sum stated as against all or against one or more of the defendants by name as the case requires. When in favor of the defendant or one of several defendants, to the effect that the jury find for him or them designating each by name if necessary, and assess- ing the amount of his recovery, if determined in his favor, upon a counterclaim. 4. When the plaintiff is entitled to satisfaction of the amount expressed in the verdict out of personal property of the defendant by virtue of a mortgage or other lien, the verdict shall contain a further finding to that effect with a particular description of the property. (Adopted through Rev. Com'rs.) See sec. 39, 32, Jus. C.; Levi&ee, pp. 296, 294; sec. 6078, Comp. Laws, chap. 17, ante. TRIAL OF ISSUE OF FACT. 339 RETRIAL, AFTER DISAGREEMENT PROCEDURE. 6699 Rev. Codes N. D. If the jurors are discharged without rendering a verdict or because they cannot agree, the court shall proceed again to trial as in the first instance until a verdict is rendered. (Sec. 125, Jus. C., am'd Rev. Com'rs.) Levisee, p. 311. NO MOTION IN ARREST, OR TO SET ASIDE VERDICT. 6700 Rev. Codes N. D. No motion in arrest of judgment or to set aside a verdict can be entertained in a justice's court. (Adopt- ed through Rev. Com'rs. ) [AUTHOR'S NOTE. The following sections are taken from Art. 3, Justices' Code.] ISSUES ORIGIN OF. 6657 Rev. Codes N. D. An issue arises upon the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other. Issues are of two kinds: 1. Of law; and, 2. Of fact. (Sec. 49, Jus. C., am'd Rev. Com'rs.) Levisee, p. 298. Consult sec. 6089, Comp. Laws, chap. 17, ante; chap. 1, ante, p. 1. ISSUE OF LAW. 6658 Rev. Codes N. D. An issue of law arises upon the demurrer to the complaint, answer or reply or to some part thereof. (Sec. 50, Jus. C. , am'd Rev. Com'rs.) Levisee, p. 298. Consult sec. 6090, Comp. Laws, chap. 17, ante; sec. 5028, Comp. Laws, ante, p. 2. OF LAW, DETERMINED BY COUR1 ORDER OF TRIAL 6659 Rev. Codes N. D. Issues of la,w must be determined by the court and be disposed of in the order in which they are presented before the trial of an issue of fact. (Sec. 52, Jus. C., am'd Rev. Com'rs.) Levisee, p. 298; sec. 6092, Comp. Laws, chap. 17, ante; sec. 5032, ante, p. 3. GENUINENESS OF SIGNATURE WHEN DEEMED ADMITTED. 6668 Rev. Codes N. D. If the plaintiff annexes to his com- plaint or files with the justice at the time of issuing the sum- mons the original or a copy of the promissory note, bill of ex- 340 JUSTICES' CODE NORTH DAKOTA. change or other written obligation for the payment of money upon which the action is brought, the defendant is deemed to admit the genuineness of the signature of the makers, indors- ers, guarantors, acceptors or assignors thereof, unless he spe- cifically denies the same in his answer and verifies the answer by his oath. (Sec. 61, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 299; sec. 6101, Comp. Laws, chap. 17, ante. Consult sec. 436, C. C. P.; Levisee, p. 127, sec. 5643, Rev. Codes, N. D. CHAPTER XXIII. ARTICLE 1, CHAP. 6, JUSTICE'S CODE NORTH DAKOTA. APPEALS. APPEAL TO DISTRICT COURT, HOW TAKEN NOTICE AND UN- DERTAKING. 6771 Rev. Codes N. D. Any party dissatisfied with a judgment rendered in a civil action in a justice's court whether the same was rendered on default or after a trial, may appeal therefrom to the district court of the county or subdivis- ion at any time within thirty days after the rendition of the judgment. The appeal is taken by serving the notice of appeal on the adverse party or his attorney and by filing the notice of appeal together with the undertaking required by law with the clerk of the district court of the county to which the appeal is taken. (Adopted through Rev. Com'rs. ) Sec. 89, Jus. C.; Levisee, p. 305, sec. 6129, Comp. Laws, chap. 18, ante, and decisions thereunder. Consult the following sections. UNDERTAKING ON APPEAL CONDITIONS OF APPROVED BY DISTRICT CLERK. 6772 Rev. Codes N. D. To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by sufficient surety to the effect that the appellant will pay all costs which may be awarded against him on the appeal not exceeding one hundred dollars, which undertaking shall be approved by and filed in the office of the APPEALS. 341 clerk of the district court of the county to which the appeal is taken. (Adopted through Rev. Com'rs. ) Sec. 93, Jus. C.; Levisee, p. 306; sec. 6133, Com p. Laws, chap. 18, ante, and decisions thereunder. Consult three following sections. STAY OF EXECUTION-CONDITIONS OF UNDERTAKING-IN CLAIM AND DELIVERY APPROVAL OF. 6773 Rev. Codes N. D. If the appellant desires a stay of execution an undertaking must be executed on his part by sufficient surety to the effect, that if the appeal is dismissed, the appellant will pay the amount of the judgment appealed from and all costs or if judgment is ren- dered against him in the appellate court, that he will pay the amount of such judgment and all costs not exceeding a sum specified in the undertaking, which must be at least one hun- dred dollars and not less than twice the amount of the judgment appealed from; or, if the judgment appealed from is for the re- covery of specific personal property, an undertaking must be executed on the part of the appellant by sufficient surety to the effect that if the appeal is dismissed or if judgment is rendered against the appellant in the appellate court, the appellant will deliver the property described in the judgment and pay the damages awarded for the taking or detention thereof and all costs or pay the sum fixed by the judgment as the value of the property together with the damages awarded for the taking or detention thereof and all costs. Such undertaking shall be ap- proved and filed as provided in the last section. (Adopted through Rev. Com'rs.) Sec. 93, Jus. C.; Levisee, p. 306; sec. 6133, Comp. Laws, chap. 18, ante, and decisions thereunder. STAY IN FORCIBLE DETAINER CONDITIONS OF ADDITIONAL UNDERTAKING, 6774 Rev. Codes N. D. In judgments for the delivery of possession in actions of forcible detainer the execu- tion of the same shall not be stayed, unless a written under- taking is executed on the part of the appellant with sufficient surety to the effect that during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon and that if the appeal is dismissed or judg- JUSTICES' CODE NORTH DAKOTA. ment is rendered against the appellant in the appellate court, he will pay all rents for the use and occupation of the property and all damages from the time of the appeal until the delivery of the possession thereof. Such undertaking is in addition to the undertaking provided for in the last section and shall be approved and filed in the manner provided in section 6772. (Adopted through Rev. Com'rs. ) Sec. 94, Jus. C.; Levisee, p. 306; sec. 6134, Comp. Laws, chap. 18, ante, and decisions thereunder. Consult two preceding, and two following sections. MONEY IN LIEU OF UNDERTAKING EFFECT OF DEPOSIT. 6775 Rev. Codes N. D. When the appellant is required under any provision of this article to give an undertaking, he may in lieu thereof deposit with the clerk of the district court in whose office the notice of appeal is required to be filed, who shall give a receipt therefor, a sum of money equal to the amount for which such undertaking is required to be given and in lieu of the service of such undertaking serve a notice of the making of such deposit. Such deposit and notice shall have the same ef- fect as the service of the required undertaking and be held to answer the event of the appeal upon the terms prescribed for the undertaking in lieu of which the same is deposited. (Adopted through Rev. Com'rs.) Sec. 93, Jus. C.; Levisee, p. 306; sec. 6133, Comp. Laws, chap. 18, ante, and decisions thereunder. Consult four preceding sections. UNDERTAKING AND PLEADING SERVED WITH APPEAL NOTICE EXCEPTION TO SURETY JUSTIFICATION DISMISSAL OF AP- PEAL. 6776 Rev. Codes N. D. The undertaking given on appeal and appellant's pleading, if the judgment appealed from was taken by default, must be served with the notice of appeal. The adverse party may except to the sufficiency of the surety upon any undertaking on appeal within five days after its ser- vice upon him. Thereupon the surety must justify upon like notice and in like manner as bail upon an arrest; or a new un- dertaking must be given with new surety and thereupon the same proceedings may be had as upon the original undertak- APPEALS. 343 ing. Unless such surety justifies or a new undertaking with new surety is given and justifies, if required, the appeal must on motion of the respondent be dismissed; but the liability of the surety upon any undertaking given on appeal shall not be thereby released. (Adopted through Rev. Com'rs. ) Sec. 93, Jus. C. ; Levisee, p. 306; sec. 6133, Comp. Laws, chap. 18, ante, and decisions thereunder. Consult sec. 6771, supra. DISTRICT CLERK NOTIFIES JUSTICE OF APPEAL TRANSCRIPT ON APPEAL NEGLECT. 6777 Rev. Codes N. D. Upon the fil- ing of the notice of appeal and undertaking, or the making of the deposit prescribed in section 6775 in the office of the clerk of the district court, such clerk shall immediately mail to the justice of the court in which the judgment appealed from was rendered a written notice thereof, specifying the court in which the judgment was rendered, the names of the parties, the date and amount of the judgment appealed from and stating wheth- er the undertaking filed or deposit made entitles the appellant to a stay of execution and requiring such justice to transmit to such clerk the record required by law. Such justice must with- in ten days after the receipt of such notice transmit to the clerk of the district court a record which shall contain a certi- fied copy of the justice's docket, the pleadings, all notices, mo- tions and other papers filed in the cause. The justice may be compelled by the district court by order entered upon motion to transmit such record and may be fined for neglect or refusal to to do. A certified copy of such order may be served on the justice by the party or his attorney. (Adopted through Rev. Com'rs. ) Consult sec. 6771, supra, and generally, the preceding sections. STAY OF EXECUTION ORDERED, WHEN RELEASE OF LEVY. 6778 Rev. Codes N. D. If an execution has been issued, the justice must, if the written notice received from the clerk states that the undertaking filed or deposit made entitles the appellant to a stay of execution, by order direct a stay of all proceedings on the same. The officer in whose hands such ex- ecution may be must upon payment of his fees for services ren- 344 JUSTICES' CODE NORTH DAKOTA. dered upon the execution relinquish all property levied upon and deliver the same to the judgment debtor together with all moneys collected from sales or otherwise. If his fees are not paid the officer may retain so much of the property or proceeds thereof as may be necessary to pay the same. (Adopted through Rev. Com'rs. ) Sec. 95, Jus. C.; Levisee, p. 307; sec. 6135, Comp. Laws, chap. 18, supra, NEW TRIAL ON APPEAL NOTICE OF TRIAL, NOTE OF ISSUE UNNECESSARY CALENDAR. 6779 Rev. Codes N. D. The action shall be tried anew in the district court in the same manner as actions originally commenced therein. No notice of trial and note of issue shall be required to be served or filed in order to bring the case upon the trial calendar in the district court but the -record of such appeal shall be filed by the clerk of the dis- trict court and the action entered upon the calendar. (Adopted through Rev, Com'rs. ) DISMISSAL OF APPEAL COPY OF ORDER FILED BELOW, WHEN JUDGMENT BELOW ENFORCED -APPEAL TO SUPREME COURT. 6780 Rev. Codas N. D. When an appeal to the district court is dismissed and no appeal is taken to the supreme court from the judgment for costs rendered in the district court upon the dis- missal thereof, a certified copy of the order dismissing the same shall be filed in the justice's court in which the judgment was rendered and thereafter the judgment appealed from shall have the same force and validity, and may be enforced in the sam^ manner as if no appeal had been taken. In case an appeal is taken to the supreme court after a certified copy of the order aforesaid is filed in the justice's court, the judgment therein shall be suspended until the further order of the district court. (Adopted through Rev. Com'rs.) TRIAL PROCEDURE IN CRIMINAL ACTIONS. 345 CHAPTER XXIV. CHAP. 5, JUSTICES' CODE NORTH DAKOTA. TRIAL PROCEDURE IN CRIMINAL ACTIONS. PLEAS, ORAL AND DOCKETED REFUSAL TO PLEAD, 6754 Rev. Codes N. D. The defendant may make the same pleas as to an information or indictment. His plea may be oral and must be entered in the docket. If he refuses to plead, a plea of "not guilty" must be entered. (Sec. 110, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 810. Consult next two sections; sec. 6151, Comp. Laws, chap. 19, ante. PLEA OF GUILTYWITNESSES EXAMINED WHEN PLEA RE- FUSED PRELIMINARY EXAMINATION, WHEN PROCEDURE. 6755 Rev. Codes N. D. If the defendant pleads guilty, the court be- fore accepting the plea may examine witnesses to ascertain the gravity of the offense; and if it appears from the testimony that the offense committed is of a higher grade than that charged in the complaint, the court may refuse to accept the plea and direct a complaint to be filed charging the offense ac- cordingly and proceed with a preliminary examination of the defendant as prescribed in the code of criminal procedure. (Sec. 110, Jus. C., am'd Rev. Com'rs.) Levisee, p. 310. As to preliminary examinations under C. Cr. Proc., see sec. 7950, Rev. Codes, et seq. Consult next section, and preceding section. PLEA OTHER THAN GUILTY- WHO TRIES JURY, WHEN OF TWELVE. 6756 Rev. Codes N. D. When the defendant makes any plea other than the plea of guilty, the issue shall be tried by the court unless a jury is demanded; but if either party demands a jury before the court hears any testimony, the issue must be tried by a jury of twelve persons. (Sec. Ill, Jus. C., am'd Rev. Com'rs.) Levisee, p. 310. 22i T P 346 JUSTICES' CODE NORTH DAKOTA. Consult preceding section; sec. 6152, Comp. Laws, chap. 19, ante. See Belatti v. Pierce, Police Justice, .... S. D ,66 N. W. 1088, as to right of trial by jury for violation of a city ordinance; cited under sec. 6157, Comp. Laws, chap. 19, ante. FORMATION OF JURY, WHAT PROVISIONS APPLY TRIAL 6757 Rev. Codes N. D. The provisions of article 6 of chap- ter 3 of this code apply to the formation of the jury and the conduct of the trial except as otherwise prescribed by this chapter. (Sec. 116, Jus. C., am'd Rev. Com'rs. ) Levisee, p. 310. See, for art. 6, chap. 3 of this code, sees. 6681 to 6698, Rev. Codes, chap. 22, ante. Consult preceding section; sec. 6157, Comp. Laws, chap. 19, ante, and decisions thereunder. CHALLENGES, WHAT PROVISIONS APPLY TO TAKING OF. 6758 Rev. Codes N. D. Challenges may be taken by either party to individual jurors for the same causes as on a trial in the district court for a criminal offense. (Sec. 117, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 310. See, as to challenges, sees. 8160 to 8166, Rev. Codes, chap. 28, Post. Consult preceding section; sec. 6158, Comp. Laws, chap. 19, ante. JUROR'S OATH. 6759 Rev. Codes N. D. The court must administer to the jury the following oath: You do swear (or affirm) that you will well and truly try this issue between the state of North Dakota and A. B. , the defendant, and a true verdict render according to the evidence. So help you God. (Sec. 118, Jus: C., as am'd Rev. Com'rs.) Levisee, p. 311. Consult sec. 6159, Comp. Laws, chap. 19, ante. DEFENDANT PRESENT AT TRIAL 6760 Rev. Codes N. D. The defendant must be personally present during the progress of the trial. (Sec. 115, Jus. C.) Levisee, p. 311. Consult sec. 6156, Comp. Laws, chapter 19, ante. VERDICT ON PLEA OF GUILTY ON OTHER PLEA FORM OF. 6761 Rev. Codes N. D. The verdict of the jury on a plea of not guilty must be to the effect that the jury find the defend- TRIAL PROCEDURE IN CRIMINAL ACTIONS. S47 ant "guilty, " or "not guilty," as the case may be. On any other plea the verdict must be ''for the state," or "for the de- fendant." (Sec. 122. Jus. C., as am'd Rev. Com'rs. ) Levisee, p. 311. Consult next section; sec. 6163, Comp. Laws, chap. 19, ante. VERDICT AS TO SOME OF DEFENDANTS, WHEN RE-TRIAL OF BALANCE. 6762 Rev. Codes N. D. When several defend- ants are tried together, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree on which a judgment must be entered accordingly, and the case as to the rest may be tried by an- other jury. (Sec. 123, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 311. Consult preceding section; sec. 6164, Comp. Laws, chap. 19, ante. JUDGMENT RENDERED AND ENTERED IMMEDIATELY. 6763 Rev. Codes N. D. When the verdict is received the court must immediately render judgment thereon and enter the same in the docket. (Sec. 129, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 12. Consult next two sections; sec. 6170, Comp. Laws, chap. 19, ante. WHEN JUGDMENT OF ACQUITTAL RENDERED DISCHARGE OF DEFENDANT. . 6764 Rev. Codes N. D. When the defendant is acquitted by the court or by a verdict of "not guilty" or, "for the defendant," a judgment of acquittal must be rendered and if the defendant is not detained on legal process for any other cause, he must be immediately discharged. (Sees. 128, 130, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 313. Consult preceding and next section; sec. 6169, Comp. Laws, chap. 19, ante. JUDGMENT OF CONVICTION, WHEN PUNISHMENT PRE- SCRIBEDHOW SATISFIED MITIGATING CIRCUMSTANCES. 6765 Rev. Codes N. D. When the defendant is convicted by the court or by a verdict of "guilty" or a verdict "for the state" which does not also find the defendant not guilty, the court shall render judgment that he be punished by a fine or by imprisonment in the county jail or by both fine and impris- 348 JUSTICES' CODE NORTH DAKOTA. onment, specifying the amount of the fine or time of imprison- ment. A judgment of fine only may also, direct that the de- fendant be imprisoned until the same is satisfied. In a case in which the court has a discretion as to the extent of the punish- ment, it may, upon the suggestion of either party before ren- dering judgment, hear testimony as to circumstances proper to be considered in aggravation or mitigation of punishment. (Sec. 126, Jus. C.) Levisee, p. 311. Consult two preceding sections; sec. 6167, Comp. Laws, chap. 19, ante, and decisions thereunder. RIGHT OF APPEAL DEFENDANT INFORMED OF BAIL ON, AMOUNT OF. 6766 Rev. Codes N. D. If the defendant is con- victed, the justice when he renders judgment must inform him of his right to appeal and prescribe the amount in which he may give bail for his appearance in the district court in case of an appeal. (Adopted through Rev. Com'rs.) Sec. 138, Jus. C.; Levisee, p. 313. Consult preceding section; sec. 6179, Comp. Laws, chap. 20, ante. CHAPTER XXV. ART. 2, CHAP. 6, JUSTICES' CODE NORTH DAKOTA. APPEALS IN CRIMINAL ACTIONS. APPEAL TO DISTRICT COURT NOTICE OF BAIL FOR APPEAR- ANCE. 6781 Rev. Codes N. D. A defendant in a criminal action may appeal from the judgment of a justice of the peace at any time within thirty days by giving notice of the appeal and giving bail for his appearance in the district court as pre- scribed in this article. (Sec. 136, Jus. C., as am'd Rev. Com'rs.) Leyisee, p. 313. Consult next section; sec. 6177, Comp. Laws; chap. 20, ante. NOTICE OF, ORAL, OR BY FILING, AND SERVING COPY. 6782 Rev. Codes N. D. The notice may be given by stating APPEALS IN CRIMINAL ACTIONS. 349 orally to the justice at the time of rendering judgment that the defendant appeals, or by filing with the justice a written notice of appeal and serving a copy thereof on the state's attorney of the county within the prescribed time. (Sec. 137, Jus. C., as am'd Rev. Com'rs. ) Levisee, p. 313. Consult sees. 6177, 6178, Comp. Laws, chap. 20, ante. BAIL ON APPEAL, APPROVED UNDERTAKING, OR DEPOSIT. 6783 Rev. Codes N. D. Bail must be given in the sum fixed by the justice to the effect that the defendant shall appear in the district court on the first day of the next term convening within the county there to answer the complaint and abide the further orders of the court. Such bail may be given by the written undertaking of one or more sufficient sureties approved by the justice or by a deposit of money in lieu of sureties. (Sec. 138, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 313. Consult sec. 6179, 6180, Comp. Laws, chap. 20, ante. APPROVAL OF UNDERTAKING, WHEN BY DISTRICT CLERK. 6784 Rev. Codes N. D. If the justice refuses to approve the undertaking, it may be approved by the clerk of the district court and filed with the justice with the same effect as if ap- proved by him. (Sec. 139, Jus. C. , as am'd Rev. Com'rs.) Levisee. p. 313. Consult preceding section; sees. ^6179, 6180, Comp. Laws, chapter 20, ante. WITNESSES' UNDERTAKING, OBLIGATIONS OF. 6785 Rev. Codes N. D. When an appeal is taken, the justice must, if ap- plication is made by the state's attorney, cause all material witnesses on behalf of the prosecution to enter into an under- taking in like manner as in a case when a defendant is held to answer on a preliminary examination. (Sec. 140, Jus. C., as am'd Rev. Com'rs.) Levisee, p. 313. See, as to witness' undertaking on commitment of defendant on pre- liminary examination, sec. 7972, Rev. Codes; and consult sec. 6181, Comp. Laws, chap. 20, ante. 350 JUSTICES' CODE NORTH DAKOTA. TRANSCRIPT ON APPEAL, CONTENTS OF COMPELLING CERTI- FICATE MONEY FOR BAIL 6786 Rev. Codes N. D. The jus- tice must within five days after an appeal is taken transmit to the clerk of the district court a certified copy of his docket and all papers relating to the case as on appeal in a civil action, and may be compelled to do so or make a further return in like manner. If money has been deposited in lieu of bail it must accompany the return. (Sec. 141, Jus. C., as am'd Rev. Com'rs. ) Levisee, p. 313. Consult sec. 6182, Comp. Laws, chap. 20, ante. EFFECT OF APPEAL TRIAL ANEW ABOVE JURISDICTION OF JUSTICE DEMURRER NEW PLEA-JUDGMENT. 6787 Rev. Codes N. D. An appeal duly perfected transfers the action to the district court for trial anew regardless of any ruling or de- cision of the justice. But the defendant may move to dismiss the complaint on the ground that the justice did not have jur- isdiction of the offense. He may also demur to the complaint because more than one offense is charged therein or because the facts stated do not constitute a public offense. If he does not object to the complaint for the causes above specified or if his objections are overruled he must be required to plead as to an indictment or information without regard to any plea en- tered before the justice. In other respects the proceedings shall be the same as in criminal actions originally commenced in the district court and judgment shall be rendered and car- ried into effect accordingly. (Sec. 141, Jus. C., as am'd Rev. Com'rs. ) Levisee, p. 313. Consult next section; sec. 6182, Comp. Laws, chap. 20, ante. NO APPEAL DISMISSED JUDGMENT BELOW AFFIRMED, WHEN ENFORCEMENT OF. 6788 Rev. Codes N. D. No appeal from the judgment of a justice of the peace in a criminal action shall be dismissed. But if the appeal was not taken in time or if the defendant fails to appear in the district court when his pres- ence is required, the judgment of the justice shall be summar- ily affirmed and entered as the judgment of the district court THE MODE OF TRIAL. 351 and carried into effect as such. (Sec. 142, Jus. C., asam'dRev. Com'rs.) Levisee, p. 314. Consult preceding section; sec. 6185, Comp. Laws, chapter 20, ante. CHAPTER XXVI. CHAP. 6, TITLE 7, CODE CRIMINAL PROCEDURE, S. D. ART. 6, CHAP. 9, CODE CRIMINAL PROCEDURE, N. D. THE MODE OF TRIAL. ISSUE OF FACT, ORIGIN OF. 7319 Comp. Laws; 8123 Rev. Codes N. D. An issue of fact arises: 1. Upon a plea of not guilty; or, 2. Upon a plea of a former conviction or acquittal of the same offense. (Sec. 292, C. Cr. Proc.) [Sec. 8123, Rev. Codes, N. D., is the same, except that a third basis of an issue forms a third subdivision 'of the section, as follows: "3. Upon a plea of once in jeopardy." (As am'd Rev. Com'rs.)] Levisee, p. 1317. When Plea of Not Guilty May be Withdrawn Discretion Sub- stantial Error. It is within the discretion of trial court to allow a plea of not gulty to be withdrawn in order to move to set aside the indictment upon grounds which, if established, would be fatal to verdict. State v. Van Nice, . . . . S. D , 63 N. W. 537; Richards v. State, 82 Wis. 172, 51 N. W. 652; Adams v. State (Fla.), 10 South. 106; Savage v. State, 18 Fla. 909; State v. Collyer, 17 NeV. 275, 30 Pac. 891; Early v. Com., 86 Va. 921, 11 S. E. 795 State v. Jones, 88 N. C. 671; Justice v. State, 17 Ind. 56; State v. Hale, 44 Iowa 96; State v. Riffe, 10 W. Va. 794; People v. Villarino, 66 Cal. 228, 5 Pac. 154. But where the refusal to exercise such discretion results in sub- stantial injury to the'accused, the error will be corrected on appeal. State v. Vac Nice, supra; Schaetzel v. City of Huron, S. D. , 60 N. W. 741; Champion v. Com'rs, 5 Dak. 416, 41 N. W. 739; Tilton v. Beecher, 59 N. Y. 176; Smith v. Dragert, 61 Wis. 222, 21 N. W. 46; Percival v. Perci- val, 124 N. Y. 637, 26 N. E. 540; State v. Fuller (N. C.), 19 S. E. 797; Elliott, App. Proc. 605, and cases cited. TRIAL BY JURY. 7320 Comp. Laws. Issues of fact must be tried by a jury. (Sec. 293, C. Cr. Proc.) 352 CODE OF CRIMINAL PROCEDURE. SAME UNLESS JURY WAIVED. 8124 Rev. Codes N. D. Issues of fact must be tried by a jury, unless a trial by jury is waived in criminal cases not amounting to felony, by the con- sent of both parties expressed in open court and entered in the minutes. (As am'd Rev. Com'rs.) Levisee, p. 1317. DEFENDANT PRESENT AT TRIAL, IN WHAT CASES REQUIRED WHEN. 7321 Comp. Laws. If the indictment is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the district attorney, by an order or war- rant, require the personal attendance of the defendant at the trial. (Sec. 294, C. Or. Proc.) SAME. 8125 Rev. Codes N. D. If the information or in- dictment is for a felony; the defendant must be personally pres- ent at the trial; but if it is for a misdemeanor, the trial may be had in the absence of the defendant; if his presence is neces- sary for any purpose, the court may, upon application of the state's attorney or person appointed to prosecute, by an order or warrant, require the personal attendance of the defendant at the trial. (As am'd Rev. Com'rs.) Levisee, p. 1317. Order for New Information, When No Part of Trial. Where an information was adjudged defective by the supreme court because it did not state that the prosecution was in the name and under the; authority of the state, and the case was reversed, and an order of the trial court permitted a new information to be filed curing such defect, without a new preliminary examination of accused, the making of such order is no part of the trial, within sec. 7321, Comp. Laws, providing that defendant must be personally present at the trial when the offense is felony, and it is therefore not neces- sary that defendant should be personally present when such order is made. State v. Hasledahl, 3 N. D. 36, 53 N. W. 430; 10 Am. & Eng. Encyc. of Law, 709, note 1; Id., 536, note 3; Whar. Cr. PI. sec. 87; McGuire v. State, 72 Am. Dec. 124; State v. McCarty, 54 Am. Dec. 150; State v. Creight, 2 Am. Dec. 656; State v. Jones, 17 Am. Dec. 483; 1 Bish. Cr. Proc. sec. 661, 662; State v. Davidson, 2 Cold. 184; Epps v. State (Ind. Sup.), 1 N. E. 491- 493; Bos well v. Com,, 20 Grat, 860. SameError Without Prejudice. If FORMATION OP THE TRIAL JURY. 353 the notice to defendant or his counsel of application for such order was necessary, the error, if any, in failing to give such notice, was error with- out prejudice, and no reversal can follow; State v. Hasledahl, supra; Epps v. State, supra; Boswell v. Com., supra. PREPARATION FOR TRIAL, AFTER PLEA. 8126 Rev. Codes N. D. After his plea the defendant, if he requests it, is en- titled to at least one day to prepare for trial. (Adopted through Rev. Com'rs. ) CHAPTER XXVII. CHAP. 7, TITLE 7, CODE CRIMINAL PROCEDURE, S. D. ART. 7, CHAP. 9, CODE CRIMINAL PROCEDURE, N. D. FORMATION OF THE TRIAL JURY. WHAT JURORS SERVE IN CRIMINAL ACTIONS. 7322 Comp. Laws; 8127 Rev. Codes N. D. The jurors duly drawn and summoned for the trial of civil actions, are also the jurors for the trial of criminal actions. (Sec. 295, C. Cr. Proc. ) Levisee, p. 1317. See, as to summoning of jurors, generally, sees. 443 to 445e, Comp. Laws; Rev. Codes, N. D., sees. 441 to 459. Consult following section. TRIAL JURIES, HOW FORMED. 7323 Comp. Laws; 8128 Rev. Codes N. D. Trial juries for criminal actions may also be formed in the same manner as trial juries in civil actions. (Sec. 296, C. Cr. Proc.) , Levisee, p. 1318. See, as to formation of trial jury in civil actions, chap. 2, ante, p. 9, et seq. Consult preceding section, and following sections. List of Grand Jurors Objection to Indictment Withdrawal 'of Plea, Right to, to Raise Such Objection Discretion. In the case of State v. Van Nice, S. D , 63 N. W. 537, the question of the insufficiency of an indictment, on the ground that the list of names from which were drawn the names of the persons composing the grand jury finding the indictment, 23 TP 354 CODE OF CRIMINAL PROCEDURE. contained less than the two hundred names required by article 5 of chap. 8 of the Comp. Laws, came before the supreme court; and it was held, that it was error for the trial court to refuse an application to withdraw the plea of not guilty for the purpose of moving to set aside the indictment on said grounds; that, it not appearing that defendant had been previously held to answer the action of a grand jury by an examining magistrate, any chal- lenge that would have constituted a valid objection to the panel was avail- able on a motion to set aside the indictment, and while the motion should have been made before the plea was entered, it was clearly within the dis- cretionary powers of the court to allow the plea of not guilty to be with- drawn, in the interest of justice, for the purpose of such motion. Citing Richards v. State, 82 Wis. 172, 51 N. W. 652; Adams v. Slate (Fla.), 10 South. 106; Savage v. State, 18 Fla. 909; State v. Collier, 17 Nev. 275, 30 Pac. 891; Early v. Com., 86 Va. 921, 11 S. E. 795; State v. Jones, 88 N. C. 671; Justice v. State, 17 Ind. 56; State v. Hale, 44 la. 96; State v. Riffe, 10 W. Va. 794; People v. Villarino, 66 Cal. 228, 5 Pac. 154. It was further held, that a refusal to exercise such discretionary power will be corrected on appeal, and that a reversal must follow. State v. Van Nice, supra; Schaetzel v. City of Huron, S. D , 60 N. W. 741; Champion v. Com'rs, 5 Dak. 416, 41 N. W. 739; Tilton v. Beecher, 59 N. Y. 176; Smith v. Dragert, 61 Wis. 222, 21 N. W. 46; Percival v. Percival, 124 N. Y. 637, 26 N. E. 540; State v. Fuller (N. C.), 19 S. E. 797; Elliott App. Proc. 605 and cases there cited. CLERK PREPARES BALLOTS FOLDINGDEPOSITING. 7324 Comp. Laws; 8129 Rev. Codes N. D. At the opening of the court the clerk must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box. (Sec. 297, C. Cr. Proc.) Levisee, p. 1318. Consult sees. 7326 to 7329, and 7331, Comp. Laws; sees 8131 to 8134, and 8136, Rev. Codes, infra. Consult also, Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003, cited un- der sec. 7326, Comp. Laws, sec. 8131, Rev. Codes, infra. NAMES OF ALL MAY BE CALLED ATTACHMENT FOR ABSENT JURORS. 7325 Comp. Laws; 8130 Rev. Codes N. D. When the case is called for trial, and before drawing the jury, either party may require the names of all the jurors in the panel to be called, and the court in its discretion may order that an attachr FORMATION OF THE TRIAL JURY. 355 ment issue against those who are absent; but the court may, in its discretion, wait or not for the return of the attachment. (Sec. 298, C. Or. Proc.) Levisee, p. 1318. Consult sees. 7329. 7330, Comp. Laws; sees. 8134, 8135, Rev. Codes, in- fra. MANNER OF DRAWING JURY BOX SHAKEN DRAWING BAL- LOTS. 7326 Comp. Laws; 8131 Rev. Codes N. D. Before the name of any juror is drawn, the box must be closed and shaken, so as to intermingle the ballots therein. The clerk must then, without looking at the ballots, draw them from the box. (Sec. 299, C. Cr. Proc.) Levisee, p. 1318. Consult sec. 7324, Comp. Laws; sec. 8129, Rev. Codes, supra; sec. 7332, Comp. Laws, sec. 8137, Rev. Codes, infra. Calling Names From List Not in Box Error. Where the clerk of the district court in calling names for a trial jury, did not obtain the names from any jury-box, and did not use either a jury-box or ballots in calling the jury, but called off the names of those who served as jurors from a list of names before him, held, error. Waiver of Such, Error. Held, further, that had the attention of the trial court been called to such irregularity be- fore the trial began, it would have been its imperative duty to have prompt- ly dismissed from the trial panel all jurors so drawn. But where in a crim- inal case, such irregularities of the clerk were discovered by defendant's counsel while they were going on, and before the trial began, but made no objection, but on the contrary kept silent until after verdict, held, the ir- regularity was waived. Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; (as to waiver) Thomp. & M. Juries, sees. 278, 296 and notes; 1 Thomp. Trials, sec. 113 and note 1, p. Ill; Clough v. State, 7 Neb. 320; U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1; Thrall v. Smiley, 9 Cal. 529; People v. Coffman, 24 Cal. 230; Com. v. Justices, &c., 5 Mass. 435; Wilson v. People, 94 111. 299; Anarchists' Case, 12 N. E. 866; State v. Elliott, 45 la. 486; State v. Davis, 4l la. 311; People v. McGungill, 41 Cal. 429. Too Late, on Motion for New Trial. Held, further, that it was too late to take advantage of such irregu- larity upon motion for a new trial, where defendant's attorney had such pre- vious knowledge of the irregularity, but reserved it and brings it before the court for the first time, by affidavit, upon such motion. Territory v. O'Hare, supra; People v. Roberts, 6 Cal. 215; People v. Cljung Lit, 17 Cal. 321; Peo- ple v. Romero, 18 Cal. 89. Held, further, that such irregularity was of a character which might be waived without impairing defendant's right of trial by jury. Territory v. O'Hare, supra; Robinson v. Randall, 82 111. 522. 356 CODE OF CRIMINAL PROCEDURE. DISPOSITION OF BALLOTS OF NAMES OF SWORN JURORS. 7327 Comp. Laws; 8132 Rev. Codes N. D. When the jury is completed, the ballots containing the names of the jurors sworn must be laid aside and kept apart from the ballots con- taining the names of the other jurors, until the jury so sworn is discharged. (Sec. 300, C. Or. Proc.) Levisee, p. 1318. SAME RETURN OF, TO BOX, WHEN. 7328 Comp. Laws; 8133 Rev. Codes N. D. After the jury are so discharged, the ballots containing their names must be again folded and re- turned to the box, and so on, as often as the trial is had. (Sec. 301, C. Cr. Proc.) Levisee,. p. 1318. BALLOT OF ABSENT JUROR, DISPOSITION OF. 7329 Comp. Laws; 8134 Rev. Codes N. D. If a juror be absent when his name is drawn, or be set aside, or excused from serving on the trial, the ballot containing his name must be folded and re- turned to the box as soon as the jury is sworn. (Sec. 302, C. Cr. Proc. ) Levisee, p. 1318. Consult next section. ALL JURORS NOT APPEARING MORE SUMMONED. 7330 Comp. Laws; 8135 Rev. Codes N. D. When a jury has been duly summoned, if, upon calling the cause for trial, twenty-four of the jurors summoned do not appear, the court may, in its discretion, order the sheriff to summon from the body of the county or subdivision, as many persons as it may think proper, at least sufficient to make twenty-four jurors, from whom a jury for the trial of the cause may be selected. (Sec. 303, C. Cr. Proc. ) Levisee, p. 1318. Consult preceding section; sec. 7334, Comp. Laws, sec. 8139, Rev. Codes, infra. NAMES OF NEW JURORS PUT IN BOX FOLDING OF BALLOTS. 7331 Comp. Laws; ' 8136 Rev. Codes N. D. The names of the persons summoned to complete the jury must be written on distinct pieces of paper, folded each as nearly alike as possible, FORMATION OP THE JURY TRIAL. 357 and so that the name cannot be seen, and must be deposited in the box mentioned in section 7324. (Sec. 304, C. Or. Proc. ) [In sec. 8136, Rev. Codes, N. D., for "7324," read "8129."] Levisee, p. 1318. Consult sec. 7324, Comp. Laws, sec. 8129, Rev. Codes, supra. Consult also, Territory v. O'Hare, cited under sec. 7326, Comp. Laws, sec. 8131, Rev. Codes, supra. DRAWING THE JURY, COURT DIRECTS. 7332 Comp. Laws; b!37 Rev. Codes N. D. The clerk must thereupon, under the direction of the court, publicly draw out of the box so many of the ballots, one after another, as are sufficient to form the jury. (Sec. 305, C. Cr. Proc. ) Levisee, p. 1318. Consult sec. 7326, Comp. Laws, sec. 8131, Rev. Codes, supra; also, Ter- ritory v. O'Hare, cited under sec. 7326, Comp. Laws, sec. 8131, Rev. Codes, supra. JURY OF TWELVESWEARING OF. 7333 Com. Laws; 8138 Rev. Codes N. D. The jury consists of twelve men, chosen as prescribed by law, and sworn or affirmed well and truly to try and true deliverance to make between the state of South Dakota (or North Dakota) and the defendant whom they shall have in charge, and a true verdict to give according to the evidence, which verdict must be unanimous. (Sec. 306, C. Cr. Proc. ) Levisee, p. 1319. As to right of jury trial in civil cases, see sec. 5032, Comp. Laws, sec. 5420, Rev. Codes, N. D., chap. 1, ante, pp. 3-4. Sec. 6, art. 6, Constitution of South Dakota, is as follows: The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy, but the legis- lature may provide for a jury of less than twelve in any court not a court of record, and for the decision of civil cases by three-fourths of the jury in any court. The corresponding provisions of the North Dakota constitution is as follows : Sec. 7. The right to trial by jury shall be secured to all, and remain inviolate; but a jury in civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law. Action for Municipal penalty, not Criminal. An action to recover a penalty prescribed by a municipal ordinance on account of an act not crimi- 358 CODE OF CRIMINAL PROCEDURE. nal by the general law of the state, but forbidden by such ordinances, is a civil, and not a criminal action. City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947; 1 Dill. Mun. Corp. (4th Ed.), sec. 432; Town of Brookville v. Gagle, 73 Ind. 117; Ex parte Hollwedell, 74 Mo. 395; City of Oshkosh v. Schwartz, (Wis.), 13 N. W. 552; Miller v. O'Reilly, 84 Ind. 168; Jenkins v. City of Cheyenne, 1 Wyo. 287. Contempt Proceedings Defendant not Entitled to Jury. In contempt proceedings under sec. 13, chap. 110, laws 1890, being the "Prohibitory Law," the party charged with the contempt is not entitled to have the charge tried to a jury. State v. Markuson, N. D ,64 N. W. 934; Ex Parte Grace, 12 la. 208; Neel v. State, 9 Ark. 259; State v. Matthews, 37 N. H. 450; Ex parte Terry, 128 TI. S. 289, 9 Sup. Ct. 77; Eilen- becker v. District Court, 134, U. S. 31, 10 Sup. Ct. 424. NUMBER FAILING, MORE SUMMONED, FROM TIME TO TIME. 7334 Comp. Laws; 8139 Rev. Codes N. D. If a sufficient number cannot be obtained from the box to form a jury, the court may, as often as is necessary, order the sheriff to sum- mon from the body of the county or subdivision, so many per- sons qualified to serve as jurors as it deems sufficient to form a jury. The jurors so summoned may be called from the list re- turned by the sheriff, and so many of them not excused or dis- charged, as may be necessary to complete the jury, must be im- paneled and sworn. (Sec. 307, C. Or. Proc. ) Levisee, p. 1319. Consult sec. 7330, Comp. Laws; sec. 81^5, Rev. Codes, supra. JUROR MAY AFFIRM, WHEN. 7335 Comp. Laws; 8140 Rev. Codes N. D. Any juror who is conscientiously scrupu- lous of taking the oath above described, shall be allowed to make affirmation, substituting for the words "so help you God,'' at the end of the oath, the following: ' 'This you do affirm un- der the pains and penalties of perjury." (Sec. 308, C. Cr. Proc. ) Levisee, p. 1319. CHAPTER XXVIII. CHAP. 1, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 1, CHAP. 10, CODE CRIMINAL PROCEDURE, N. D. CHALLENGING THE JURY. 359 CHALLENGING THE JURY. CHALLENGES CLASSED. 7337 Comp. Laws; 8142 Rev. Codes N. D. A challenge is an objection made to the trial jur- ors and is of two kinds: 1. To the panel. 2. To an individual juror. (Sec. 310, C. Cr. Proc.) Levisee, p. 1320. SEVERAL DEFENDANTS, MUST JOIN IN CHALLENGES. 7338 Comp. Laws; 8143 Rev. Codes N. D. When several defend- ants are tried together they cannot sever their challenges, but must join therein. (Sec. 311, C. Cr. Proc.) Levisee, p. 1320. PANEL DEFINED. 7339 Comp. Laws; 8144 Rev. Codes N. D. The panel is a list of jurors returned by a sheriff, to serve at a particular court, or for the trial of a particular ac- tion. (Sec. 312, C. Cr. Proc.) Levisee, p. 1320. Consult next three sections. CHALLENGE TO PANEL, DEFINED. 7340 Comp. Laws; 8145 Rev. Codes N. D. A challenge to the panel is an objec- tion made to all the trial jurors returned, and may be taken by either party. (Sec. 313, C. Cr. Proc.) Levisee, p. 1320. Consult next, and preceding section. GROUNDS FOR CHALLENGE TO PANEL 7341 Comp. Laws; 8146 Rev. Codes N. D. A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. (Sec. 314, C. Cr. Proc.) Levisee, p. 1320. Consult two preceding sections, the next section, and sec. 7347, Comp. Laws, sec. 8152, Rev. (/odes, infra. Consult State v. Kent, 4 N. D. 577, 62 N. W. 631, as to bias of sheriff in summoning special jury, cited under sec. 7347, Comp. Laws, sec. 8152, Rev. Codes, infra. WHEN SUCH CHALLENGE TAKEN. 7342 Comp. Laws; 8147 Rev. Codes N. D. A challenge to the panel must be taken 360 CODE OF CRIMINAL PROCEDURE. before a juror is sworn, and must be in writing, specifying plainly and distinctly the facts constituting the ground of chal- lenge. (Sec. 315, C. Or. Proc.) Levisee, p. 1321. Consult two preceding sections. See Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003, cited under sec. 7349, Comp. Laws, sec. 8154, Rev. Codes, infra. SUFFICIENCY OF GROUNDS OF CHALLENGE, COURT TRIES EXCEPTION. 7343 Comp. Laws; 8148 Rev. Codes N. D. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. (Sec. 316, C. Cr. Proc.) Sec. 8148, Rev. Codes, N. D., is the same, except that in lieu of the words "be denied, the adverse party," the words "is controverted by the adverse party, he" are substituted. (As am'd Rev. Com'rs.) ] Levisee, p. 1321. Consult preceding section, and next two sections. CHALLENGE HELD SUFFICIENT WITHDRAWING EXCEPTION*- FACTS DENIED AMENDMENT. 7344 Comp. Laws; 8149 Rev. Codes N. D. If, on the exception, the court deem the chal- lenge sufficient, it may, if justice require it, permit the party excepting to withdraw his exception, and to deny the facts al- leged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge. (Sec. 317, C. Cr. Proc.) Levisee, p. 1321. Consult two preceding sections, and next section. ORAL DENIAL OF CHALLENGE ENTRY OF FACT TRIED. 7345 Comp. Laws; 8150 Rev. Codes N. D. If the challenge is de- nied, the denial may, in like manner, be oral, and must be en- tered upon the minutes of the court, and the court must pro- ceed to try the question of fact. (Sec. 318, C. Cr. Proc.) [Sec. 8150, Rev. Codes, N. D., is the same, except that in lieu of the words "challenge is," the words "facts alleged as the grounds of" are sub- stituted. (As am'd Rev, Com'rs.)] CHALLENGING THE JURY. 361 Levisee, p. 1321. Consult two preceding sections, and next section. WHO EXAMINED ON TRIAL OF CHALLENGE. 7346 Comp. Laws; 8151 Rev. Codes N. D. Upon the trial of the chal- lenge, the officers, whether judicial or ministerial, whose irreg- ularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. (Sec. 319, C. Cr. Proc.) Levisee, p. 1321. Consult preceding section. BIAS OF OFFICER WHEN CHALLENGE FOR, GOODPROCED- URE. 7347 Comp. Laws; 8152 Rev. Codes N. D. When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror. (Sec. 320, C. Cr. Proc.) Levisee, p. 1321. Consult sec. 7341, Comp. Laws; sec. 8146, Rev. Codes, supra. Bias of Sheriff, Summoning: Jury, Test of. Where a challenge was interposed to the panel of the special jury summoned by the sheriffun- der a special venire issued after the regular panel had been exhausted, on the ground of the bias of the sheriff, the test of the sheriff's qualification to summon such special jury is whether he will be qualified to sit as a juror in the case. It has been so held in California under a statute the same as sec. 7347, Comp. Laws; State v. Kent, 4 N. D. 577, 62 N. W. 631; People v. Coyodo, 40 Cal. 592; People v. Welsh, 49 Cal. 174. On his examination un- der this challenge the sheriff testified that he had expressed to others his opinion that the accused was guilty, and it is apparent that his opinion was very strong. It would seem that it was derived from statements made to him by the accomplice of defendant. If so, it is very doubtful whether the sheriff would have been competent as a juror in the case, notwithstanding he testified that, if summoned as a juror, he would give accused a fair and im- partial trial according to the law and the evidence. State v. Kent, supra; Greenfield v. People, 74 N. Y. 277; Jackson v. Co., 23 Grat. 919; Armistead v. Com., 11 Leigh, 657; Black v. State, 42 Tex. 378; Goodwin v. Blachley, 4 Ind. 438; Frazier v. State, 23 Ohio St. 551; Woods v. State (Ind. Sup.), 33 N. E. 901; People v. Wells (Cal.), 34 Pac. 718; Walker v. State, 102 Ind. 502, 1 N. E. 856; Comp. Laws, sec. 7361. 23i T P 362 CODE OF CRIMINAL PROCEDURE. ALLOWANCE OF CHALLENGE, JURY DISCHARGED-NEW JURY- DISALLOWANCE, JURY IMPANELED. 7348 Comp. Laws; 8153 Rev. Codes N. D. If, upon an exception to the challenge, or a de- nial of the facts, the challenge be allowed, the court must dis- charge the jury, and another jury can be summoned for the same term forthwith from the body of the county or subdivis- ion; or the judge may order a jury to be drawn and summoned in the regular manner. If it be disallowed, the court must di- rect the jury to be impaneled. (Sec. 321^ C. Or. Proc. ) [Sec. 8153, Rev. Codes, N. D., is the same except that the words "or subdivision" are omitted.] Levisee, p. 1321. CHALLENGE TO INDIVIDUAL JUROR, WHEN MADE. 7349 Comp. Laws; sec. 8154 Rev. Codes N. D. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn. (Sec. 322, C. Cr.Proc.) Levisee, p. 1321. Consult next two sections. Exhausting- All Challenges as Jurors Appear No Error. In a criminal case, where the jury was called and sworn singly, without calling twelve jurors into the box, and where the parties were required to exhaust all challenges to individual jurors as each juror appeared, and before pro- ceeding further with the call, held, not error. Territory v. O'Hare, 1 N. D. 30, 44 N. N. 1003; State vs. Armington, 25 Minn. 29; State v. Brown, 12 Minn. 538 (Gil. 448). Calling Names, Not From Box, But From List Er- ror Waiver. Where the clerk in calling names for a trial jury did not obtain names from any jury-box, nor use such box, or ballots, in calling a jury, but called off the names from a list before him, held, error. Held, further, that had the attention of the trial court been called to such irregu- larity before the trial began, its duty would have been to have dismissed from the trial panel all jurors so drawn. But where, in a criminal case, such irregularities were discovered by defendant's counsel while they were going on, and before the trial began, but no objection was made, but he kept silent until after verdict, held, the irregularity was waived. Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; (as to waiver) Thomp. & M., Juries, sec. 278, 296, and notes; 1 Thomp. Tr., sec. 113, and note 1, p. Ill; Clough v. State, 7 Neb. 320; U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1; Thrall v. Smi- ley, 9 Cal. 529; People v. Coffman, 24 Cal. 230; Com. v. Justices, etc., 5 CHALLENGING THE JURY. 363 Mass. 435. Same Too Late, On Motion for New Trial. Such irregu- larities cannot be raised for the first time on motion for new trial. Terri- tory v. O'Hare, supra; People v. Roberts, 6 Cal. 215; People v. Chung Lit. 17 Cal. 321; People v. Romero, 18 Cal. 89. Bight of Jury Trial, Unim- paired By. Such irregularity might be waived without impairing defend- ants right to trial by jury. Territory v. O'Hare, supra; Robinson v. Ran- dall, 82 111. 522; Wilson v. People, 94 111. 299; Anarchists' Case, (111.) 12 N. E. 866; State v. Elliott, 45 Iowa, 486; State v. Davis, 41 Iowa, 311; People v. McGungill, 41 Cal. 429. Order of Making Challenges, Not Important, When Unused Challenges. Whether the order in which the peremptory challenges were m ade under direction of the court was exactly that contemplated by statute is not of controlling importance, or available to defendant as error, where the record expressly shows that he accepted the jury with a large number of his peremptory challenges unused. State v. Reddington, S. D , 64 N. W. 170; Erwin v. State, 29 O. St. 186; State v. Lawler, 28 Minn. 216, 9 N. W. 698; Wilson v. People, 94 111. 299; State v. Davis, 41 Iowa 311; State v. Hoyt, 47 Conn. 518; People v. McGungill, 41 Cal. 429; State v. Gaffney, 56 Vt. 451. Consult, also, State v. Chapman et al, 1 S. D. 414, 47 N. W. 411, cited under sec. 7358, Comp. Laws, sec. 8163, Rev. Codes, infra. NATURE OF SUCH CHALLENGE. 7350 Comp. Laws; 8155 Rev. Codes N. D. A challenge to an individual juror is either: 1. Peremptory; or, 2. For Cause. (Sec. 323, C. Cr. Proc.) Levisee, p. 1321. Consult preceding, and next two sections. See decisions under preceding section. TAKEN BEFORE SWORN WHEN OTHERWISE. 7351 Comp. Laws; 8156 Rev. Codes N. D. It must be taken when the juror appears, and before he is sworn; but the court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed. (Sec. 324, C. Cr. Proc.) Levisee, p. 1322. Consult sec. 7349, Comp. Laws; sec. 8154, Rev. Codes, supra. See State v. Reddington, S. D ,64 N. W. 170, cited under sec. "7349, Comp. Laws, sec. 8154, Rev. Codes, supra, as to order of making peremptory challenges; and Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003, upon same head, cited under same section. 364 CODE OF CRIMINAL PROCEDURE. PEREMPTORY CHALLENGE, ORAL DEFINED. 7352 Comp. Laws; 8157 Rev. Codes N. D. A peremptory challenge can be taken by either party, and may be oral. It is an objection to a juror for which no. reason need be given, but upon which the court must exclude him. (Sec. 325, C. Or. Proc.) Levisee, p. 1322. Consult next two sections. Sick Juror, Discharge of Trial Anew, What Challenges, On. On trial of a criminal case, where a juror becomes sick and unable to f-it in the case before the case is submitted to the jury, he may be ordered discharged and a new juror sworn to complete the panel, and the trial ordered begun .anew; or the entire jury may be discharged, and then, or subsequently an- other may be empaneled to try the case; and when the course first above outlined is pursued, the prisoner is not thereby entitled to again exercise all the peremptory challenges given him by statute, or to peremptorily chal- lenge any one of the remaining 11 jurors; and in procuring the new jury de- fendant may exercise only such of his peremptory challenges as he has not already exhausted in procuring the other 11 jurors. State v. Hasledahl, 2 N. D. 521, 52 N. W. 315; Whar. Or. PI. & Pr., note to sec. 508; Jenks v. State, 39 Ind. 9; People v. Stewart, 64 Cal. 60, 28 Pac. 112; People v. Brady, 72 Cal. 490, 14 Pac. 202; Territory v. CTHare, 1 N. D. 30, 44 N. W. 1003. DEFENDANT'S PEREMPTORY CHALLENGES, NUMBER OF. 7353 Comp. Laws; 8158 Rev. Codes N. D. In all criminal cases the defendant is entitled to the following challenges: 1. For capital offenses the defendant may challenge per- emptorily twenty jurors. 2. In prosecutions for offenses punishable by imprison- ment in the state prison, ten jurors. 3. In other prosecutions, three jurors. (Sec. 326, C. Cr. Proc.) [Sec. 8158, Rev. Codes, N. D., is the same, except that the word "twenty" in subdivision 1 is substituted by the word "twenty-five," and the word "ten" in subdivision 2 is substituted by the word "fifteen;" and the word "three" in subdivision 3 is substituted by the word "ten." (Am'd Rev. Com'rs.)] Levisee, p. 1322. Consult preceding, and next section. Discharging Chosen Juror, Selecting Substitute Additional Chal- lenges No Error. The trial court, after nine jurors had been selected, adjourned until next morning, one of the jurors chosen failing to appear, CHALLENGING THE JURY. 365 and said juror was discharged and another one ordered selected in his stead, defendant being given three additional challenges, none of which were used. The absent juror came into court after trial was commenced. Held, that, no prejudice being claimed, the error in discharging the absent juror was not reversible error, no objection being urged against the substituted juror. State v. La Croix, . . . . S. D , 66 N. W. 944; People v. Barker, 60 Mich. 277; People v. Arceo, 32 Cal. 40; State v. Davis, 7 So. 24. See, also, State v. Reddington, S. D , 64 N. W. 170, cited un- der sec. 7349, Comp. Laws, sec. 8154, Rev. Codes, supra. STATE'S CHALLENGES, NUMBER OF. 7354 Comp. Laws; 8159 Rev. Codes N. D. The prosecuting attorney in capital cases may challenge peremptorily six jurors; in other cases three jurors. (Sec. 327, C. Cr. Proc.) Levisee, p. 1322. Consult two preceding sections. CHALLENGE FOR CAUSE, BY EITHER PARTY. 7355 Comp. Laws; 8160 Rev. Codes N. D. A challenge for cause may be taken either by the state or the defendant. (Sec. 328, C. Cr. Proc. ) Levisee, p. 1322. Consult next three sections. FOR CAUSE, CLASSED. 7356 Comp. Laws; 8161 Rev, Codes N. D. It is an objection to a particular juror, and is either: 1. General, that the juror is disqualified from serving in any case on trial; or, 2. Particular, that he is disqualified from serving in the case on trial. (Sec. 329, C. Cr. Proc. ) [Sec. 8161, Rev. Codes, N. D., is the same, except that in lieu of the word "on" in subdivision 1 the word "or" is used.] Levisee, p. 1322. Consult preceding section, and next two sections. GENERAL CAUSES OF CHALLENGES SPECIFIED. 7375 Comp. Laws; sec. 8162 Rev. Codes N. D. General causes of challenges are: 1. A conviction for felony. 2. A want of any of the qualifications prescribed by law, to render a person a competent juror, including a want of knowl- edge of the English language as used in the courts. 366 CODE OF CRIMINAL PROCEDURE. 3. Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as renders him incapable of performing the duties of a juror. (Sec. 330, C. Or. Proc. ) Levisee, p. 1322. Consult two preceding- sections, and next section. PARTICULAR CAUSES OF CHALLENGES SPECIFIED. 7358 Comp. Laws; sec. 8163 Rev. Codes N. D. Particular causes of challenges are of two kinds: 1. For such a bias as when the existence of the facts is as- certained, in judgment of law disqualifies the juror, and which is known in this code as implied bias. 2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satis- fies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the sub- stantial rights of the party challenging, and which is known in this code as actual bias. , (Sec. 331, C. Or. Proc.) Levisee, p. 1322. Consult three preceding sections. Examination of Juror No Fixed Rules Discretion Latitude. The extent to which a party should be allowed to go on examination of a person called as a juror, is not and cannot well be governed by any fixed rules. Much rests in the discretion of the court as to what questions may or may not be answered; but in practice very great latitude is and generally ought to be indulged. State v. Chapman et al, 1 S. D. 414, 47 N. W. 411. Bias of Juror Decision On, When Not Reviewable Error. The decision of the trial judge on the question of indifference of a juror, or for actual bias, is not reviewable in this court, except in absence of any evi- dence to support it, in which case it is an error of law to which an excep- tion lies. State v. Chapman et al, 1 S. D. 414, 47 N. W. 411. GROUNDS OF CHALLENGE FOR IMPLIED BIAS, SPECIFIED. 7.359 Comp. Laws; 8164 Rev. Codes N. D. A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the sixth degree, in- clusive, to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant. CHALLENGING THE JURY. 367 2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or be- ing a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose com plaint the prosecution was instituted, or in his employment on wages. 3. Being a party adverse to the defendant in a civil ac- tion, or having complained against, or been accused by him in a criminal prosecution. 4. Having served on the grand jury which found the in- dictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment. 5. Having served on a trial jury which has tried another person for the offence charged in the indictment. 6. Having been one of a jury formerly sworn to try the indictment, and whose verdict was set aside, or which was dis- charged without a verdict, after the cause was submitted to it. 7. Having served as a juror in a civil action brought against the defendant for the act charged as an offense. 8. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty, in which case he shall neither be permitted nor compelled to. serve as a juror. (Sec. 332, C. Or. Proc.) [Sec. 8164, Rev. Codes, N. D., is the same, except that, In subdivision 1, in lieu of the words "affinity within the sixth degree, inclusive," the word "relationship" is used; and In subdivision 2, the words "or debtor and creditor" follow the word "tenant," and in lieu of the words "his employment on wages" the words "the employ of either" are used; and In subdivision 4 the word "action" is used in the place of the word "indictment"; and In subdivision 5, the concluding words "in the indictment" are omit- ted; and In subdivision 6 the words "feame charge" are used in place of the word "'indictment." (As am 'd Rev. Com'rs.)] See, State v. Chapman, et al, cited under last section. Levisee, p. 1323. 368 CODE OF CRIMINAL PROCEDURE. Consult sec. 7361, Com p. Laws, sec. 8166, Rev. Codes, infra. As to grounds for challenge for bias in civil actions, see, sec. 5040, Comp. Laws, sec. 5428, Rev. Codes, N. D., chap. 2, ante, pp. 9, 10, and de- cisions thereunder. EXEMPTION NOT CAUSE FOR CHALLENGE. 7360 Comp. Laws; 8165 Rev. Codes N. D. An exemption from service on a jury is not a cause of challenge, but the privilege of the per- son exempted. (Sec. 333, C. Cr. Proc.) Levisee, p. 1323. BIAS CAUSES MUST BE ALLEGED WHEN HAVING OPINION, ETC., NOT DISQUALIFICATION. 7361 Comp. Laws; 8166 Rev. Codes N. D. In a challenge for implied bias, one or more of the causes stated in section 7359 must be alleged. In a chal- lenge for actual bias, the cause stated in the second subdivis- ion of section 7358 must be alleged; but no person shall be dis- qualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declara- , tion, under oath or otherwise, that he can and will, notwith- standing such an opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court. (Sec. 334, C. Cr. Proc.) [Sec. 8166, Rev. Codes, N. D., is the same, except that all that part of the section commencing witt the words "but no person" and down to the words "The challenge," is omitted; and the references are to sections "8164" and "8163." (Am'd Rev. Com'rs.)] Levisee, p. 1323. Consult sec. 7359, Comp. Laws, sec. 8164, Rev. Codes, supra. See State v. Kent, 4 N. D. 577, 62 N. W. 631, holding that good ground existed for challenge to the panel, for bias of the officer summoning them; cited under sec. 7347, Comp. Laws, sec. 8152, Rev. Codes, supra. Statements in Public Journals. In Territory v. Egan, 3 Dak. 119, 13 N. W. 568, the question of bias and prejudice in the public mind came up, upon review of the ruling of the trial court upon motion for change of venue upon those grounds. The court, in ruling upon the question involved, and in referring to the affidavits containing the showings for change of venue, say: "The exhibits accompanying the affidavit, (the newspapers contain- CHALLENGING THE JURY. 369 ing the account of and comments upon the homicide published immediately after the occurrence,) either alone or with the affidavits, were not such as the rule contemplates and defines as essential to the sufficiency of an affida- vit, and especially when the statute, (Code of Criminal Procedure, sec. 334,) expressly asserts that 'no person shall be disqualified as a juror by reason of having formed or expressed an opinion * * * founded upon rumors or statements in public journals.' Why should the court ignore the theory of the statute, and conclude that newspaper statements published some eight- een months prior to the application for change of venue, had created such a bias and prejudice in the public mind that a fair and impartial trial could not be had?" Qualifications of Juror Court Decides Question Reversal. Sec. 7361, Comp. Laws, relating to qualifications of a juror, commits to the trial court the question of fact whether a juror can and will act impartially and fairly, and its decision will only be reversed by this court where, in its opin- ion, such decision is plainly wrong. State v. Church, S. D , 60 N. W. 143; Stokes v. People, 53 N. Y. 164; Balbo v. People, 80 N. Y. 484; Spies v. People, 122 111. 262, 12 N. E. 865, 17 N. E. 898; Stout v. State, 90 Ind. 1. EXCEPTION TO CHALLENGE, PROCEEDINGS ON. 7362 Comp. Laws; sec. 8167 Rev. Codes N. D. The adverse party may ex- cept to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon as prescribed in section 7343, except that if the exception be al- lowed the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. (Sec. 335, C. Cr. Proc.) [Sec. 8167, Rev. Codes, N. D., refers to section "8148."] Levisee, p. 1323. Consult sec. 7343, 7344. 7345, Comp. Laws, sec. 8148, 8149, 8150, Rev. Codes, supra. TRIED BY COURT, WITHOUT TRIERS. 7363 Comp. Laws; 8168 Rev. Codes N. D. All challenges, whether to the panel or to individual jurors, shall be tried by the court, without the aid of triers. (Sec. 336, C. Cr. Proc.) Levisee, p. 1324. Consult next three sections. JUROR CHALLENGED, A WITNESS MUST ANSWER QUES- TIONS. 7364 Comp. Laws; sec. 8169 Rev. Codes N. D. Upon the trial of a challenge to an individual juror, the juror 24 TP 370 CODE OF CRIMINAL PROCEDURE. challenged may be examined as a witness to prove or disprove the challenge, and is bound to answer every question pertinent to the inquiry therein. (Sec. 337, C. Cr. Proc.) Levisee, p. 1324. Consult proceeding section, and next two sections. OTHER WITNESSESRULES OF EVIDENCE. 7365 Comp. Laws; 8170 Rev. Codes N. D. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of testimony, on the trial of the challenge. (Sec. 338, C. Cr. Proc. ) Levisee, p. 1324. Consult two preceding sections, and next section. COURT ALLOWS OR DISALLOWS CHALLENGE. 7366 Comp. Laws; 8171 Rev. Codes N. D. On the trial of a challenge, the court must either allow or disallow the challenge, and di- rect an entry accordingly upon the minutes. (Sec. 339, C. Cr. Proc. ) Levisee, p. 1324. Consult three preceding sections. ORDER OF TAKING CHALLENGE. 7367 Comp. Laws; 8172 Rev. Codes N. D. All challenges to an individual juror, ex- cept peremptory, must be taken, first by the defendant, and then by the state, and each party must 'exhaust all his chal- lenges before the other begins. (Sec. 340, C. Cr. Proc.) Levisee, p. 1324. Consult next section. ORDER OF CHALLENGE, FOR CAUSE. 7368 Comp. Laws; 8173 Rev. Codes N. D. The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class: 1. To the panel. 2. To an individual juror for a general disqualification. 3. To an individual juror for implied bias. 4. To an individual juror for actual bias. (Sec. 341, C. Cr. Proc.) THE TRIAL. 371 Levisee, p. 1324. Consult preceding section. PEREMPTORY CHALLENGES ORDER OF TAKING. 7369 Comp. Laws; 8174 Rev. Codes N. D. If all challenges on both sides are disallowed, either party, first the state and then the defendant, may take a peremptory challenge, unless the party's peremptory challenges are exhausted. (Sec. 342, C. Or. Proc.) Levisee, p. 1324. Consult sec. 7350, 7351, 7352, Comp. Laws, sec. 8155, 8156, 8157, Rev. Codes, supra. CHAPTER XXIX. CHAP. 2, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 2, CHAP. 10, CODE CRIMINAL PROCEDURE, N. D. THE TRIAL. ORDER OF TRIAL, AND ARGUMENT TO JURY JUDGE'S CHARGE IN WRITING, UNLESS. 7370 Comp. Laws; 8175 Rev. Codes N. D. The jury having been empaneled and sworn, the trial must proceed in the following order: 1. If the indictment is for felony, the clerk or state's at- torney must read it, and state the plea of the defendant to the jury. In all other cases, this formality may be dispensed with. 2. The state's attorney, or other counsel for the state, must open the case and offer the evidence in support of the in- dictment. 3. The defendant or his counsel may then open his de- fense, and offer his evidence in support thereof. 4. The parties may then, respectively, offer rebutting testimony only, unless the court, for good reason, in further- ance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case. 372 CODE OF CRIMINAL PROCEDURE. 5. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the counsel for the state shall commence, and the defendant or his counsel shall follow; then the counsel for the state shall conclude the argument to the jury. 6. The judge must then charge the jury; he may state the testimony, and must declare the law, but must not charge the jury in respect to matters of fact; such charge must, if so re- quested, be reduced to writing before it is given, unless by tacit or mutual consent it is given orally, or unless it is fully taken down at the time it is given by a stenographic reporter, appointed by the court. (Sec. 343, C. Or. Proc.) [Sec. 8175, Rev. Codes, N. D., is the same, except that, in subdivisions 1 and 2, the words ''information or" precede the word "indictment"; and all after the word "jury" in the first clause of subd. 6 is omitted. (As am'd Rev. Com'rs.)] See general annotations under this section below sec. 8179, Rev. Codes, infra. Although the above section has not been formally amended by the leg- islature of South Dakota, chap. 64, session laws 1895, (pp. 69 to 71) provides for trials upon information of "crimes, misdemeanors and offenses;" and section 4 of that act is as follows: That all provisions of law now in force on the statutes of this state applying to prosecutions upon indictment, to writ and processes therein, and the issuing and service thereof to motions, pleadings, trials and punishment, or the execution of any sentence and to all other proceedings in cases of indictment, whether in courts of original or appellate jurisdiction, shall in the same manner and to the same extent as near as may be, apply to informations and all prosecutions and proceed- ings thereon. SAME CHARGE TO JURY SEPARATE PAPER MODIFICATION, WHEN. 8176 Rev. Codes N. D. In charging the jury, the court shall only instruct as to the law of the case, and all in- structions must first be reduced to writing, unless by consent of both parties entered in the minutes, the instructions are given orally and taken down by the stenographer of the court, in shorthand. Either party may request instructions to the jury. Each instruction so requested must be written on a sep- arate sheet of paper, and may be given or refused by the court, and the court shall write on the margin of such requested in- THE TRIAL. 373 structions which he does not give the word "refused," and all instructions asked for by either party shall be given or refused by the court without modification or change, unless modified or changed by the consent of the counsel asking the same. (Sec. 343, C. Or. Proc., am'd Sec. 1, chap. 84, laws 1893, am'd Rev. Com'rs. ) , SAME DISCLOSURE AS TO WHO REQUESTED SIGNING TAKEN IN RETIREMENT, WHEN. 8177 Rev. Codes N. D. All instructions given to the jury must be read to them by the court without disclosing to them whether such instructions were requested or not, and must be signed by the judge and may be delivered to the jury, and be taken by them in their re- tirement and returned into court with the verdict. But when oral instructions are given the jury shall not take any part of the charge in their retirement unless so ordered by the court. (Sec. 1, chap. 84, laws 1893 N. D., as am'd Rev. Com'rs.) INSTRUCTIONS FILED WHEN DEEMED EXCEPTED TO ORAL CHARGE TAKEN BY STENOGRAPHER, TRANSCRIBING OF FILING EXCEPTIONS. 8178 Rev. Codes N. D. Upon the close of the trial all instructions given or refused together with those pre- pared by the court, if any, must be filed with the clerk, and except as otherwise provided in the next section shall be deemed except- ed to by the defendant. If the charge of the court, or any part thereof is given orally, the same must be taken down by the official stenographer and shall be deemed excepted to by the defendant, and the same as soon as may be after the trial must be written out at length and filed with the clerk of the court by the stenographer thereof; provided, that in case the defendant is acquitted by the jury the oral instructions need not be tran- scribed or filed with the clerk. But exceptions in writing to any of the instructions of the court in any manner given, or the refusal of the court to give instructions requested, may be filed by the defendant at his discretion, with the clerk of the court within twenty days after the instructions are all filed as herein provided. The stenographer of the court shall receive for writing out the oral instructions of the court the same fees as 374 CODE OF CRIMINAL PROCEDURE. for making transcripts. (Sec. 1, chap. 84, laws 1893, N. D., as am'd Rev. Com'rs. ) COURT MAY SUBMIT INSTRUCTIONS TO COUNSEL DUTY OF COUNSEL 8179 Rev. Codes N. D. The court may in its dis- cretion, submit the written instructions which it proposes to give to the jury, to the counsel in the case for examination, and require such counsel after reasonable examination thereof, to designate such parts thereof as he may deem objectionable, and such counsel must thereupon designate such parts of such in- structions as he may deem improper and thereafter only such parts of said written instructions so designated shall be deemed excepted to, or subject to exceptions. (Sec. 1, chap. 84, laws 1893, N. D., as am'd Rev. Com'rs.) Levisee, p. 1324-5. Consult sees. 7396, 7405, Comp. Laws, sees. 8208, 8217, Rev. Codes, in- fra. As to instructions in civil cases, see sees. 5048, 5049, Comp. Laws, sees. 5432, 5433, Rev. Codes, N. D., ante, chap. 3, pp. 14 to 26. The following is sec. 7, art. 6, Constitution S. D.: In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. The corresponding constitutional provision of North Dakota is as follows: Sec. 13. In criminal prosecutions in any court whatever, the party ac- cused shall have the right to a speedy and public trial; to have the pro- cess of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. Sufficiency of Indictment. Under the above constitutional provision of South Dakota touching the nature and cause of the accusation, the of- fense charged in an indictment must be set forth with sufficient certainty to enable the accused to prepare his defense in advance of the trial, to enable the trial court to know that the accused is being tried upon the identical charge passed upon by the grand jury, and to enable the accused to plead his conviction or acquittal in bar of a second indictment. State v. Burch- ard, 4 S. D. 548, 57 N. W. 491. THE TRIAL. 375 (a). Instructions The Law. Instructions Abstractly Wrong, And Irrelevant, Not Reversible Error. An instruction abstractly wrong 1 , but which, is not applicable or pertinent to the case for the reason that there was no evidence calling for a charge upon that point, is no ground for reversal where it is evident that such instruction could not have misled the jury. State v. Church, .... S. D , 60 N. W. 143; Shorter v. People, 2 N. Y. 193; Horner v. Wood, 16 Barb. 391; Satterlee v. Bliss, 36 Cal. 489; Thomp. Char. Jur. sec. 117, and cases cited. Advising That Jury Ought to Agree, When Not Reversi- ble Error. A. jury having been out twenty -eight hours in a prosecution for felony, and being brought in for further instructions, the court after giving the instructions, stated to them: "I think you will be able to arrive at a verdict in this case; the case has been twice tried at a great deal of ex- pense to this county, and it seems to me, gentlemen, that you ought to agree on a verdict." Held, that while his remarks were objectionable, they would not warrant setting aside a verdict. Territory v. King, 6 Dak. 131, 50 N. W. 623. Written Charge Request For. Under sections 343, 346, Code Crim. Proc. (sec. 7370, 7373, Comp. Laws) the failure of the record to show the charge of the court, in absence of proof that it was requested that it be put in writing, is not error; Territory v. Christensen, 4 Dak. 410, 31 N. W. 847; Bilansky v. State, 3 Minn. 427 (Gil. 313); Walker v. State (Ind.), 1 N. E. 856; Kelly v. U. S., 27 Fed. Rep. 616; Bish. Cr. Proc. 1343; Whar. Cr. PI. & Pr. sec. 913. Additional Instructions on Sunday. A jury that has re- tired to deliberate upon their verdict, may request and receive additional instructions on the Sabbath, or the judge may on that day, upon his own motion, have the jury brought in and re-instruct them, for the purpose of correcting a supposed error or mistake in His former charge. People v. Odell, 1 Dak. 189, 46 N. W. 601. Statute Criminal, as to Instructions, Prevails. Sec. 343, C. Cr. Proc., relating to charging juries in criminal actions, in so far as it contra- venes sec. 248, Code Civ. Proc., relating to the giving of instructions to jur- ies, must prevail in criminal causes. Territory v. Christensen, 4 Dak. 410, 31 N. W. 847. (b). Construing Evidence Advising Verdict, Etc. Argumentative Comparison of Witnesses by Court, When Error. Where the trial court in a criminal case, in delivering its charge to the jury, makes an argumentative comparison upon the relative credibility of the principal witness for the defense, and the principal witness for the pros- ecution, where the testimony is vital and diametrically in conflict, and in so doing disparages the credibility of such witness for the defense, and also conveys to the jury in plain, though indirect terms, that the court enter- tains strong 1 suspicions of the credibility of such witness for the defense, 376 CODE OF CRIMINAL PROCEDURE. reversible error. Territory v. O'Hare. 1 N. D. 30, 44 N. W. 1003; 2 Thornp. Tr., sees. 2285-2287; Thomp. Char. Jur.. sec. 36; Dingman v. State, (Wis.), 4 N. W. 668; Lampe v. Kennedy (Wis.), 18 N. W. 730; People v. Lyons, 49 Mich. 78, 13 N. W. 365; Mawrich v. Elsey, 47 Mich. 10, 10 N. W. 57. Same Charge that Jury Judge of Evidence, Does Not Cure. Held, further, that such error is not cured by repeated statements in the charge that the jury are the exclusive judges of the weight of evidence and credi- bility of witnesses. Subdivision 6, sec. 343, C. Or. Proc., declaring that in charging the jury in criminal trials, the judge "may state the testimony, * * but must not charge the jury in respect to matters of fact," has, as to criminal trials, abrogated the common law rule, under which judges were permitted to give juries their own views and opinions upon the weight of the evidence and credibility of witnesses. Territory v. O'Hare, supra. Facts Forming Basis of Charge, Must be Contested. Matters of fact, as to which the court is permitted to charge the jury, are facts contested, or in some degree sought to be established by evidence. In assuming the non- existence of evidence excluded or not offered, the court does not invade the province of the jury. Territory v. Gay, 2 Dak. 125, 2 N. W. 477. Evidence Only Reducing Grade, Not Excuse or Justification. It is proper to instruct the jury that evidence, which only tends to reduce the grade of the offense, is not to be considered by them as tending to excuse or justify the killing. Territory v. Gay, supra; People v. Brothertown, 47 Cal. 338; Yankton Co. v. Rossteuscher, 1 Dak. 125, ____ N. W ...... As- sault With Deadly Weapon Instruction as to Presumption Error. There being, under provisions ot the Penal Code, felonious assaults by the use of deadly weapons, other than assault with intent to kill: Held, erro- neous to instruct the jury that "where an assault, or assault and battery is made with a deadly weapon, there is a presumption of an intent to take life, and can only be rebutted by proof that it was excusable or justifiable." People v. Odell, 1 Dak. 189, 46 N. W. 601. Instruction That No Evidence Excusing, When Good. Upon a trial for homicide, the killing by means of a deadly weapon being admit- ted, there being in fact no legal or competent evidence tending to excuse or justify the killing, it is not error to instruct the jury that "there is no evidence whatever, admitting every word to be true, that will excuse the killing." Territory v. Gay, 2 Dak. 125, 2 N. W. 477. There being no evi- dence tending to excuse or justify the killing, it is not error to instruct the jury that, "if you regard the oaths you have taken, your verdict must be murder or manslaughter." Territory v. Gay, supra; People v. Sanches, 24 Cal. 17; People v. Estrand, 49 Cal. 171; People v. Turley, 50 Cal. 469; People v. King, 27 Cal. 507; People v. Welch, 49 Cal. 174; People v. Dick, 34 Cal. 663. Undisputed Facts Denial of Motion to Advise That Evi- dence Insufficient Error. Upon trial of a defendant under indictment THE TRIAL. 377 framed under sec. 6303, Comp. Laws, for illegally receiving money for offi- cial acts, held, where certain facts were undisputed, the trial court erred in denying a motion to advise the jury that the evidence was insufficient to warrant conviction; State v. Bauer, 1 N. D. 273; 47 N. W. 378. Fees of County Commissioner Instructions as to. The court properly instruct- ed the jury in effect, that the statute relative to fees of county commission- ers is plain and unambiguous, and that three dollars per day and five cents per mile as mileage are all the fees he is entitled to; State v. Bauer, supra; held, also, that the court erred in instructing the jury in effect that the at of demanding and receiving pay upon a private and nonofficial claim is a criminal act under sec. 6303, Comp. Laws. Id; People v. Kalloch, 60 Cal. 116. (c). Witnesses Evidence. Witnesses not Named on Indictment, Competent. Persons whose names are not endorsed upon the indictment may be examined as witnesses upon the trial on the part of the state. (Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481, followed.) State v. Boughner, 5 S. D. 461, 59 N. W. 736; State v. Abrahams, 6 la. 117; People v. Jocelyn, 29 Cal. 562; State v. O'Day, 89 Mo. 559, 1 S. W. 759. Witnesses not Before Grand Jury, Competent. Sec. 7236 and 7283 Comp. Laws, do not forbid the state to use on a trial other witnesses than those examined before the grand jury. State v. Church, supra; Territory v. Godfrey, 6 Dak. 46, 50 N. W 481; State v. Abrahams, 6 la, 117; State v. McClintock, 8 la. 203; People v. Jocelyn, 29 Cal. 562; Gard- ner v. People, 3 Scam. (111.), 83. Refusing to Quash Indictment Omit- ted Witness not Testifying. The overruling of a motion to quash indict- ment, made after plea and on the ground that the name of a witness has been ommitted from the list on the indictment, is not reversible error, when such- witness is not allowed to testify, and it clearly appears that the ac- cused was not injured by exercise of the court's discretion. State v. Isaac- son, S. D ,65 N. W. 430. Oral Notice of Witness Before Trial. It is not necessarily error to allow witnesses on behalf of the state to testify, against objection, where the prosecution gave oral notice before trial that certain witnesses not examined before the grand jury would be called for the state, the objection being that such notice was not in writing and given at an earlier date. State v. Isaacson, .... S. D , 65 N. W. 430; State v. Church, supra. A regardful examination of the record discloses no erron- eous ruling of the trial court on admission or rejection of evidence, for which the judgment should be reversed. Id. Opinion of Guilt. Where a witness in a criminal action testified on cross examination that he testi- fied on the preliminary examination that he thought the prisoner guilty, and admitted on the present hearing that he formed that opinion in ad- vance of any trial, held, that such testimony did not entitle the state to show by witness what his opinion was at the time of trial as to defendant's guilt 378 CODE OP CRIMINAL PROCEDURE. or innocence, and that it was prejudicial error to allow the state to ask and witness to answer, against objection, the question if he still had the opinion that the defendant was guilty. State v. Wilson, 4 S. D. 535, 57 N. W. 338. Handwriting Expert Testimony, When Incompetent. The testi- mony of an expert in handwriting was excluded by the trial court. He tes- tified that he was acquainted with defendant's handwriting, but, being ex- amined by the court, testified he bad seen defendant write but once, and that was during the noon recess of the court, at which time he had at request of defendant's counsel seen defendant write, for the sole purpose of becoming a witness. Held, not error. Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003, 1 Greenl. Ev., sec. 577, note 2; Reese v. Reese, 99 Pa. St. 89; 9 Am. & Eng. Ency. Law, 277, note 3. Compari- son of Handwriting, When Improper Federal Precedents. Where letters purporting to have been written by defendant for the sole purpose of comparison of handwriting with disputed writings put in ev- idence by tire territory, and which letters were excluded, held, not error. Writings not in evidence for other purposes cannot be compared with dis- puted writings, under the common law rule adopted by the supreme court of the United States. The trial court, in making such ruling, was a territor- ial court of subordinate jurisdiction, and as such was bound by federal prece- dents. Should the same question arise in a case commenced after this state was admitted into the Union, we shall feel at liberty to establish a more lib- eral rule, if we shall then deem it expedient so to do. Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; Moore v. U. S., 91 U. S. 270; Strother v. Lucas. 6 Pet. 763; Vinton v. Peck, 14 Mich. 287; 9 Am. & Eng. Ency. Law, 283-289. Cross-Examination of Defendant Same as Other Witness. Defen- dant in a criminal case having taken the stand at his own request as a wit- ness on his own behalf, and on cross examination being required to testify as to his antecedents, stated in so doing that he had passed under names other than his own, and had been in jail at different times and places, such testirnony being objected to as irrelevant, and not proper cross examination no question of privilege having been presented. Ifeld, not error. A de- fendant under such circumstances occupies no better position than any other witness; hence, within bounds of a sound judicial discretion, may be cross- examined as to specific collateral facts for the sole purpose of affecting his credibility. This is the rule that is established by a decided preponderance of authority; but a different rule prevails in certain states, as in Oregon, California, and Missouri, where statutes have restricted the right of cross examination to matters drawn out in chief. Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003; People v. Giblin (N. Y.), 21 N. E. 1062; People v. Brown, 72 N. Y. 571; Yanke v. State, 51 Wis. 464, 8 N. W. 276; McBride v. Wallace, 29 N. W. 75; People v. Cummins, 11 N. W. 184; Anarchists' Case, 12 N. E. THE TRIAL. 379 979; State v. Pfefferle (Kan.), 12 Pac. 406; People v. Clark (N. Y.), 8 N. E. 38; State v. Clinton, 67 Mo. 380; State v. Cox, Id. 392. General Reputation Bawdy House Permitting Same Listed For Taxation. Evidence of general reputation and character of a house is ad- missible in evidence, as tending to show the fact that it is kept as a bawdy house. Territory v. Stone, 2 Dak. 155,4 N. W. .697; Territory v. ('hart- rand, 1 Dak. 379, 46 N. W. 583. Where defendant is charged with permit- ting a house to be used as a bawdy house, evidence that such house was listed for taxation the same year in name of defendant, is admissible on question of ownership. Territory v. Stone supra. One who owns and has control of a house, and with knowledge of its illegal use, remains passive and without wholly approving or consenting, fails to interfere to forbid or prevent, is guilty of permitting such use. Territory v. Stone, supra; Com. v. Adams, 109 Mass. 344; Com. v. Dean, 1 Pick. 387,- Com. v. Bolkom, 3 Pick. 281; Whar. Cr. Law, Vol. 3, see. 2452. Perjury Justice's Docket. In a trial for perjury alleged to have been committed while defendant was testifying in his own behalf before a J. P. investigating an information for selling intoxicating liquors, it is error to admit in evidence and permit the jury to take to their room the justice's docket transcript. Territory v. Jones, 6 Dak. 85, 50 N. W. Rep. 528. Degree of Offense Proof of Intoxication, to Determine. Where an offense is divided into degrees, evidence of intoxication is admissible for the purpose of enabling the jury to determine the purpose-motive or intent with which the act was committed. People v. Odell, 1 Dak. 189, 46 N. W. 601; People v. Rogers, 18 N. Y. 9; Kenny v. People, 31 N. Y. 330. Intoxi- cation, When Excuse or Justification. Intoxication may not under any circumstances be regarded as a defense, excuse or justification for the com- mission of crime, unless in case of a person who performs an act under such a state of intoxication as to be unaccompanied by volition, when he has lost control of his will, and is incapable of forming a purpose. People v. Odell, supra. Assault With Intent Degrees of Crime. The crime of assault, or assault and battery with intent to kill, is divisible into degrees, and de- fendant may be convicted of the offense charged, or of any lesser offense embraced therein. People v. Odell, 1 Dak. 189, 46 N. W. 601; State v. Shepard, 10 la. 126; People v. English, 30 Cal. 214; Beckwith v. People, 26 111. 500. Proof of Substantial Crime Involved in Indictment. It is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified, or one that is necessarily included in and forms a constituent element of the higher offense charged. People v. Odell, 1 Dak. 189, 46 N. W. 601. Judicial Notice Inferior Counts Remand. This court takes judi- cial notice of the jurisdiction of inferior courts, organized pursuant to gen- 380 CODE OF CRIMINAL PROCEDURE. eral laws, within its jurisdiction. State v. Bunker, S. D , 65 N. W. 33; Nelson v. Ladd, 4 S. D. 1, 54 N. W. 809; /t will therefore take judi- cial notice that Brown county has a population of less than 20,000, and a county court, therefore, has been deprived of its jurisdiction in bastardy cases under chap. 64, laws 1893; and by sec. 4, chap. 127, laws 1895, this court is required to remand all actions then pending in this court, to the Supreme Court of the countj- in which such county court was held. State v. Bunker, supra. Charge not Part of Judgment Roll Presumption. A judgment in a criminal case will not be reversed because the charge of the court to the jury is not made part of judgment roll, the record failing to show affirma- tively that defendant requested the judge to charge the jury in writing; the presumption being that the judge charged orally. Territory v. Christen- sen, 4 Dak. 410, 31 N. W. 847; Bilanski v. State, 3 Minn. 427 (Gil. 313); Walker v. State, 1 N. E. 857;. Smith v. State, 71 Ind. 250; Kelly v. U. S., 27 Fed. 616, 8 Grim. Law. Mag. 171; Gilmer v. Grand Rapids, 16 Fed. 708; Jones v. Lewis, 8 Ired. 70; Bish. Cr. Proc. 1343; Whart. Cr. PI. & Pr., sec. 913. (d). Practice Procedure. Prosecution to Elect as to Counts Before Trial. Upon trial of in- dictment for selling intoxicating liquors contrary to statute, evidence being introduced to prove commission of several distinct offenses, the court should before putting defendant on trial, require the prosecution to elect upon which transaction the state will rely for conviction, if requested to do so. State v. Boughner, (on rehearing) S. D ,63 N. W. 542; following State v. Valentine, S. D . . . . , 63 N. W. 541. Beading Whole Statute To Jury Refusal to Allow. In a prosecution for alleged violation of the statute known as the "Prohibitory Law," it is not error to refuse to allow defendant's counsel to read to the jury "the whole of said statute." State v. Church, S. D , 60 N. W. 143; Com. v. Austin, 7 Gray, 51. Plea Failure to Enter Harmless Error. Failure of defendant to enter a plea is not reversible error, he having been deprived of no rights on the trial that he would not have been entitled to had a formal plea been en- tered. State v. Bunker, . . . . S. D . . . ., 65 N. W. 33; State v. Redding- ton, S. D , 64 N. W. 170. Plea of Former Conviction, When a Nulity. A plea that defendant has already been convicted of the offense charged in the indictment and was thereafter acquitted by the judgment of the court, is a nullity. It is not sufficient either as a plea of former convic- tion or acquittal. Territory v. King, 6 Dak. 131, 50 N. W. 623. Stating Plea of Defendant to Jury Opening Remarks. Sec. 343, C. Cr. Proc. provides that in a prosecution for felony, * ; the clerk or district attorney must read (the indictment) and state the plea of the defendant to the jury." Where these directions had not been complied with, but the district attorney stated ,THE TRIAL. 381 the offense charged, and defendant's plea to each juror as he was being em- paneled, and that after the jury had been sworn to try the case, in his open- ing remarks, he stated to them the allegations of the indictment in sub- stance, the plea and the proof he expects to introduce. Held, that the jury were sufficiently informed of the issue they were to try, and the denial of a new trial for the omission stated was proper. Territory v. King, 6 Dak. 131, 50 N. W. 623. People v. Sprague, 53Cal. 494; Osgood v. State, 25 N. W. 529; State v. Green, 23 Id. 154. ORDER OF TRIAL CHANGED, WHEN. 7371 Comp. Laws; 8180 Rev. Codes N. D. When the state of the pleadings re- quires it, or in any other case, for good reasons, and in the sound discretion of the court, the order of trial and argument prescribed in the last section may be departed from. (Sec 344, C. Or. Proc.) [Sec. 8180, Rev. Codes, N. D., is the same, except that the .words "in the last section" are substituted by the words "in section 8175. "J Levisee, p. 1325. Consult preceding section, and decisions thereunder. COURT DECIDES LAW. 7372 Comp. Laws; 8181 Rev. Codes N. D. The court must decide all questions of law which arise in the course of the trial. (Sec. 345, C. Cr. Proc.) Levisee, p. 1325. Consult sec. 7370, Comp. Laws, sec. 8175, Rev. Codes, supra; next two sections, and sees. 7396, 7405, Comp. Laws, sees. 8208, 8217, Rev. Codes, in- fra . See, also, State v. Boughner, 5 S. D. 461, 59 N. W. 736, cited under sec. 7374, Comp. Laws, sec. 8183, Rev. Codes, infra. LIBEL JURY DETERMINES LAW AND FACT. 7373 Comp. Laws; 8182 Rev. Codes N. D. On the trial of an indictment for libel, the jury have the right to determine the law and the fact. (Sec. 346, C. Cr. Proc.) [Sec. 8182, Rev. Codes, N. D., is the same, except that the words "an information or" precede the word "indictment." (Am'd Rev. Com'rs.)] Levisee, p. 1325. Libel. See charge of Justice Shannon, in Territory v. Taylor, 1 Dak. 451 (appendix), upon trial of an indictment for libel. OTHER OFFENSES LAW BY COURT, FACT BY JURY. 7374 Comp. Laws; 8183 Rev. Codes N. D. On the trial of an in- dictment for any other offense than libel, questions of law are CODE OF CRIMINAL PROCEDURE. to be decided by the court, and questions of fact are to be de- cided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court. (Sec. 347, C. Or. Proc.) [Sec. 8183, Rev. Codes, N. D., is the same, except that the words "an information or"' precede the word "indictment," and the clause "and ques- tions of fact are to be decided by the jury" is omitted. (Am'd Rev. Com Vs.)] Levisee, p. 1325. Consult sec. 7370, Comp. Laws, sec. 8175, Rev. Codes, supra; and pre- ceding section; sees. 7296, 7405, Comp. Laws, sees. 8208, 8217, Rev. Codes, infra. Law Court Gives to Jury^Statute Cannot Be Read by Counsel. By sec. 7374, Comp. Laws, the jury in criminal cases, except in case of libel, "are bound to receive as law what is laid down as such by the court." It was not error, therefore, for the court to refuse permission to counsel for accused to read the law to the jury. State v. Boughner, 5 S. D. 461, 59 N. W. 736. Giving Statutory Definition. Giving the statutory definition of manslaughter, in an instruction, cannot be construed as a command to find a verdict of guilty. Territory v. Gay, 2 Dak. 125. 2 N. W. 477. Jury Not Judge of Law. In this state the jury is not the judge of the law, but must take the law from the court. Sec. 7374, Comp. Laws. State v. Church, .... S. D ..... , 60 N. W. 143. "Lager Beer" Judicial Notice. The courts will take judicial notice that the drink known as "lager beer" is an intoxicating liquor. State v. Church, ____ S. D ..... , 60 N. W. 143, (distinguishing State v. Brewing Co., 5 S. D. 39, 58 N. W. 1.) Advising Acquittal on Insufficient Evidence, When Proper, Query. Whether, when the evidence is insufficient to warrant a verdict of convic- tion, the power of the court to "advise an acquittal" is discretionary or ob- ligatory; whether defendant may ask such instruction, and failing to do so, waive any right to present the question after verdict; whether "insuffi- ciency of the evidence," is in all cases a question of law, query. Territory v. Stone, 2 Dak. 155, 4 N. W. 697. Exclusion of Evidence Injury Must Appear. It must appear that the improper exclusion of evidence may have injured defendant; and when evidence excluded only tends to reduce the grade of the offense to that of which defendant, was convicted, this court will not reverse. Territory v. Gay, 2 Dak. 125, 2 N. W. 477; Smith v. State, 28 Ind. 321. Legal Evidence to Sustain, Verdict Not Disturbed. Where there is legal evidence to prove or tending to prove every essential element of the offense, the ver- dict will not be disturbed. Territory v. Stpne, 2 Dak. 155, 4 N. W. 697. THE TRIAL. 383 COUNSEL, RESTRICTION OFDISCRETION. 7375 Comp. Laws; 8184 Rev. Codes N. D. If the indictment is for an of- fense punishable with death, three counsel on each side may argue the case to the jury. If it is for any other offense the court may, in its discretion, restrict the argument to one coun- sel on each side. (Sec. 348, C. Or. Proc.) [Sec. 8184, Rev. Codes, N. D., is the same, except that the words "in- formation or" precede the word "indictment," and the word "for" in the concluding sentence is omitted. (Am'd Rev. Com'rs.)] Levisee, p. 1325. . Consult sees. 7370, 7371, Comp. Laws, sees. 8175, 8180, Rev. Codes, su- pra; sec. 7408, Comp. Laws, sec. 8221, infra. PRESUMED INNOCENT REASONABLE DOUBT. 7376 Comp. Laws; 8185 Rev. Codes N. D. A defendant in a criminal ac- tion is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is sat- isfactorily shown, he is entitled to be acquitted. (Sec. 349, C. Cr. Proc.) Levisee, p. 1325. Consult next section; sec. 7370, Comp. Laws, sec. 8175, Rev. Codes, su- pra, and decisions under heads of "Instructions" and "Evidence" there cited; sec. 7384, 7405, Comp. Laws, sees. 8195,8217, Rev. Codes, and decisions there- under, infra. DOUBT AS TO DEGREE CONVICTION ON LOWEST, 7377 Comp. Laws; 8186 Rev. Codes N. D. When it appears that a defendant has committed a public offense and there is reasona- ble ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only. (Sec. 350, C. Cr. Proc.) Levisee, p. 1326. Consult preceding section, and sections referred to thereunder. SEPARATE TRIAL, WHEN DISCRETIONARY, WHEN. 7378 Comp. Laws; 8187 Rev. Codes N. D. When two or more de- fendants are jointly indicted for a felony, any defendant re- quiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court. (Sec. 351, C. Cr. Proc.) Levisee, p. 1326. 384 CODE OF CRIMINAL PROCEDURE. [Sec. 8187, Rev. Codes, N. D., is the same, except that in place of the clause "jointly indicted for," the words "jointly charged with" are used. (Am'd Rev. Com Vs.)] DISCHARGE OF ONE DEFENDANT JO TESTIFY, WHEN. 7379 Comp. Laws; 8188 Rev. Codes N. D. When two or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of the state's attorney, direct any defend- ant to be discharged from the indictment, that he may be a witness for the state. (Sec. 352, C. Or. Proc. ) [Sec. 8188, Rev. Codes, N. D., is the same, except that the words "in- formation or" precede the word "indictment." (Am'd Rev. Com'rs.) Levisee, p. 1326. Consult sec. 7384, Comp. Laws, sec. 8195, Rev. Codes, infra, as to ac- complice. ACQUITTAL OF DEFENDANT FOR WANT OF EVIDENCE, WH EN- WITNESS FOR CO-DEFENDANT. 7380 Comp. Laws. When two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must, before the evidence is closed, in order that he may be a witness for his codefendant, submit its said opinion to the jury, who, if they so find, may acquit the particular defendant for the purpose aforesaid. (Sec. 353, C. Cr. Proc.) SAME ORDERED DISCHARGED WHEN. 8189 Rev. Codes N. D. When two or more persons are included in the same in- information or indictment, and the court is of the opinion that in regard to a particular defendant there is not sufficient evi- dence to put him on his defense, it must order him to be dis- charged before the evidence is closed, that he may be a wit- ness for his codefendant. (Am'd Rev. Com'rs. ) Levisee, p. 1326. Consult preceding section, and next section. DISCHARGE, IS ACQUITTAL OF WHA T OFFENSES. 8190 Rev. Codes N. D. The discharge of a defendant under either of the last two sections is an acquittal of the offense charged in the information or indictment or any offense for which he THE TRIAL. 385 might have been found guilty thereunder, and is a bar to an- other prosecution therefor. (Adopted through Rev. Com'rs. ) Consult three preceding sections. DEFENDANT, WITNESS IN OWN BEHALF EFFECT OF REFUSAL TO TESTIFY. 7381 Comp. Laws. In the trial of all indict- ments, information, complaints, and other proceedings against persons charged with the commission of any crimes, offenses, and misdemeanors before any court or committing magistrate in this state, the person charged shall, at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him. (Sec. 1, chap. 16, laws 1879.) SAME. 8191 Rev Codes N. D. In the trial of a criminal action or proceeding before any court or magistrate of this state, whether prosecuted by information, indictment, com- plaint or otherwise, the defendant shall at his own request and not otherwise, be deemed a competent witness; but his neglect or refusal to testify shall not create or raise any pre- sumption of guilt against him; nor shall such neglect or refus- al be referred to by any attorney prosecuting the case, or con- sidered by the court or jury before whom the trial takes place. (As am'd Rev. Com'rs.) Following is sec. 9, art. 6, Constitution of S. D.: No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense. That portion of the corresponding provision of the N. D. Constitution, is: "No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself." On question of former jeopardy, consult State v. Hasledahl, 2 N. D. 521, 52 N. W. 315, cited under sec. 7401, Comp. Laws, sec. 8213, Rev. Codes, infra. RULES OF EVIDENCE. 7382 Comp Laws; 8192 Rev. Codes N. D. The rules of evidence in civil cases are appli- cable also to criminal cases, except as otherwise provided in this code. (Sec. 354, C. Cr. Proc.) Levisee, p. 1326. Consult next two sections. 25 TP 386 CODE OF CRIMINAL PROCEDURE. Declarations of Deceased, When Admissible. On a trial for mur- der of a woman in her own house, held, that the declarations of deceased, made at a neighbor's while she was on her way home, and shortly before she was killed (the same night,) and whom she expected to meet at home, including defendant, were properly admitted in evidence. Territory v. Couk, 2 Dak. 188, 47 N. W. 395; Hunter v. State, 40 N. J. Law 496. Testimony of Wife of Defendant U. S. Rule To What Cases Ter- ritorial Statute Inapplicable. The statute of the U. S. permitting a de- fendant to testify in his own behalf makes no provision for the wife testify- ing; and in the absence of a statute allowing a wife to testify for her hus- band in a criminal case, she is not a competent witness. U. S. v. Crow Dog, 3 Dak. 106, 14 N. W. 437. The provisions of the Code of Criminal Proced- ure of this territory making the wife a competent witness for her husband have no application to the district courts when exercising jurisdiction in which the U. S. is a party under the laws of congress. U. S. v. Crow Dog, supra. These provisions in the Code of Criminal Procedure apply only to cases prosecuted in the name of the territory for violation of its laws, in the courts for counties and judicial subdivisions. U. S. v. Crow Dog, supra. Self-Defense Burden of Proof Doubt on Whole Case. When the burden of proof is on defendant to establish the affirmative defense of self- defense, it is not sufficient to warrant an acquittal, for him to raise a rea- sonable doubt as to whether the killing was justifiable or excusable. U. S. v. Crow Dog, 3 Dak. 106, 14 N. W. 437: Foster's Crown Law, 255; People v. Schryver, 42 N. Y. 1; People v. Milgate, 5 Cal. 127; Silvus v. State, 22 Ohio St. 90; State v. Neeley, 20 la. 108; Com. v. York, 9 Mete. 93. The doctrine of reasonable doubt in such case should be applied to the whole proofs and the whole case. U. S. v. Crow Dog. supra. Transcript of Justice's Docket, Incompetent. On a trial in the dis- trict court for perjury, alleged to have been committed while defendant was testifying in his own behalf on a preliminary examination for selling intoxicating liquors, the court, ever an objection of relevancy and in- competency, permitted the prosecution to put in evidence and the jury to take with them on retiring for deliberation a transcript of the committing magistrate's docket showing proceedings on the examination, and his find- ing that there was sufficient cause to believe defendant guilty of the offense. Held, error. Territory v. Jones, 6 Dak. 85, 50 N. W. 528; Somerville v. State, 6 Tex. App. 433; sec. 383, C. Cr. Proc.; People v. Dowdigan, 34 N. W. 411; Littlefield v. State, 5 S. W. 650; People v. Thornton, 16 Pac. 244. Cross-Examination of Defendant, Rule of. In the absence of statu- tory limitation as to the extent to which an accused person testifying in his own behalf can be cross examined, a defendant who does not claim his priv- ilege, but testifies in his own behalf, and without reservation upon all the THE TRIAL. 387 issues, may, within the discretion of the court, be cross examined concern- ing matters which tend to impugn his moral character, or lay the founda- tion for impeachment. The rules which apply to other witnesses in that regard apply with equal force to him. State v. Phelps, 5 S. D. 480, 59 N. W. 471; Shepard v. Parker, 36 N. Y. 517; People v. Clark, 102 N. Y. 736, 8 N. E. 38; State v. Red, 53 la. 69, 4 N. W. 831; Norris v. State, 87 Ala. 85, 6 South. 371; U. S. v. Wood, 4 Dak. 455, 33 N. W. 59; People v. Hite (Utah), 33 Pac. 254; Rice Cr. Ev. 344-352, and notes. CONSPIRACY OVERT ACTS PROOF. 7383 Comp. Laws; 8194 Rev. Codes N. D. Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts alleged be proved; but any other overt act, not alleged in the indictment may be given in evidence. (Sec. 355, C. Cr. Proc. ) [Sec. 8194, Rev. Codes, N. D., is the same, except that the wards "in- formation or" 1 precede the word "indictment." (Sec. 355, C. Cr. Proc., am'd Rev. Com'rs.)] Levisee, p. 1326. TREASON TWO WITNESSES CONFESS/ON ALLEGATIONS. 8193 Rev. Codes N. D. Upon a trial for treason the defend- ant cannot be convicted unless upon the testimony of two wit- nesses to the same overt act, or upon his confession in open court; nor can evidence be admitted of an overt act not express- ly charged in the information or indictment; nor can the de- fendant be convicted unless one or more overt acts are express- ly charged therein. (Adopted through Rev. Com'rs.) The following provision is found in Sec. 19, Constitution of N. D.: "No person shall be convicted of treason unless on the evidence of two witnesses to the same overt act, or confession in open court." ACCOMPLICE, EVIDENCE OF CORROBORATION. 7384 Comp. Laws; 8195 Rev. Codes N. D. A conviction cannot be had upon the testimony of an accomplice unless he be cor- roborated by such other evidence as tends to connect the de- fendant with the commission of the offense, and the corrobora- tion is not sufficient if it merely show the commission of the offense, or the circumstances thereof. (Sec. 356, C. Cr. Proc. ) 388 CODE OF CRIMINAL PROCEDURE. Levisee, p. 1326. Consult sec. 7379, Comp. Laws; sec. 8188, Rev. Codes, supra. Accomplice, What Corroboration Necessary For Conviction on Tes- timony of. The evidence of an accomplice otherwise competent is admis- sible, and when corroborated by the testimony of other witnesses, forcibly tending to connect defendant with the commission of the offense charged, ife sufficient to sustain a conviction. State v. Phlps, 5 S. D. 480, 59 N. W. 471. Same Corroboration Must Tend to Support. The corroborating evidence required by this section is not necessarily such evidence as will of itself support a conviction, and thus render that of the accomplice superflu- ous or redundant, but it is evidence that tends to support or strengthen that of the accomplice in the respect that "it tends to connect ths defend- ant with the commission of the crime." State v. Hicks et al, . . . .S. D , 60 N. W. 66; People v. Everhardt, 104 N. Y. 591, 11 N. E, 62; People v. Elliott, 106 N. Y. 288, 12 N. E. 602; People v. McLean, 84 Cal. 480, 24 Pac. 320; People v. Cloonan, 50 Cal. 449; Ross v. State, 74 Ala. 532; State v. Thornton, 26 la. 79; Smith v. Com. (Ky.), 17 S. W. 182; 1 Greenl. Ev., sec. 381 and note; Rose. Cr. Ev., p. 120; Com. v. Holmes, 127 Mass. 424. Same Other Substantial Evidence. The law is complied with if there is some other substantia^ evidence fairly tending "to connect the defendant with the commission of the crime," so that his conviction will not rest alone upon the evidence of the accomplice. State v. Hicks et al, supra, and above cases there cited. Same Improper Instruction. It was not error in the trial court to refuse an instruction containing: the following: "The purpose of the statute of this state upon this subject is to prohibit a convic- tion unless there is some evidence entirely exclusive of that of the accom- plice, which of itself, and without the aid of that of the accomplice, estab- lishes the guilt of the defendants beyond reasonable doubt." State v. Hicks et al, supra; Malachi v. State, 89 Ala. 134, 8 South 104; State v. Al- len, 57 la. 431, 10 N. W. 805; State v. Townsend (Ore.), 23 Pac. 968; State v. Van Winkle (la.), 45 N. W. 388. No Conviction Without Corroboration of. In this state no person can be convicted on the uncorroborated testimony of an accomplice. The Corroboration must come from some source independent of the accomplice. But it is not necessary that the corroborating evidence should be sufficient in itself to support a conviction. It is enough if it tends to connect the ac- cused with the commission of the offense. Must Tend to Connect Ac- cused. It must, however, tend to connect accused with the commission of the crime. Evidence corroborating the accomplice as to the fact that a crime had been committed, or with respect to the fact that the accomplice is guilty thereof, will not satisfy the requirements of the statutes. State v. Kent, 4 N. D. 577, 62 N. W. 631; People v. Plath, 100 N, Y. 590, 3 N. E. 790; State v. Russell (la.), 58 N. W. 890. THE TRIAL. 389 Accomplice May Swear to Instructions From Accused, When. Instructions given by the accused to the accomplice touching the story the latter was to tell in explanation of the killing may be sworn to by the ac- complice; and it is not error for the court to receive in evidence a book in which such instructions were written down by the accomplice, when the latter swears he wrote them down as they were given to him by the accused, and under his direction. State v. Kent, 4 N. D. 577, 62 N. W. 631; Swift v. Applebone, 23 Mich. 252; R. R. Co. v. Shenk (III. Sup.), 23 N. E. 436; Com. v. Kepper, 114 Mass. 278. Translation of Written Instructions. Nor was it error for the court to allow the accomplice, a Bohemian, to translate into English these written instructions. State v. Kent, supra. Accomplice Cross-Examlnation of Great Latitude. Great lati- tude should be allowed in the cross examination of an accomplice. It was error for the court to refuse to allow counsel for accused to ask the accomp- lice, who had by his own testimony, made out a case of murder against him- self, whether he expected to be hung. State v. Kent, 4 N. D. 577, 62 N. W. 631; Whart. Cr. Ev., sec. 444; 1 Am. & Eng. Ency. Law, 78; Lee v. State, 21 Ohio St. 151. Held, further, it was error to refuse to permit counsel for the accused to prove, as bearing upon the credibility of the accomplice, that no proceedings whatever had been executed against him for the murder he had confessedly committed, although several months had elapsed since he had confessed his connection with the crime. State v. Kent, supra; People v. Hare (Mich.), 24 N. W. 843. FALSE PRETENSE, WRITTEN EVIDENCE OF, OR TWO WIT- NESSES FALSELY PERSONATING. 7385 Comp. Laws; 8196 Rev. Codes N. D. Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal prop- erty or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing, either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one wit- ness and corroborating circumstances. But this section does not apply to prosecution for falsely representing or personat- ing another, and in such assumed character, marrying or re- ceiving money or property. (Sec. 357, C. Cr. Proc. ) Levisee, p. 1326. 390 CODE OF CRIMINAL PROCEDURE. SEDUCTIONCORROBORATING EVIDENCE TO PROVE, WHEN. 7386 Comp. Laws. Upon a trial for inveigling, enticing or taking away an unmarried female of previous chaste character, under the age of twenty-five years, for the purpose of prostitu- tion, or aiding or assisting therein, or. for having, under prom- ise of marriage, seduced and had illicit connection with an un- married female of previous chaste character, the defendant cannot be convicted upon testimony of the person injured un- less she is corroborated by other evidence tending to connect the defendant with the commission of the offense. (Sec. 358, C. Or. Proc.) SAME SEDUCTION, OR ABORTION. 8197 Rev. Codes N. D. Upon a trial for procuring or attempting to procure an abor- tion, or aiding or assisting therein, or for inveigling, enticing, or taking away an unmarried female of previous chaste char- acter, under the age of twenty years for the purpose of pros- titution, or aiding or. assisting therein, or for having, under promise of marriage, seduced and had illicit connection with an unmarried female, under twenty years of age, of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured unless she is corroborated by other evidence. (As am'd Rev. Com'rs.) Levisee, p. 1327. PROOF OF HIGHER OFFENSE THAN CHARGED DISCHARGE OF JURY DEFENDANT HELD. 7387 Comp. Laws. If it appear by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed or continued on, or admitted to bail, to answer any new indictment which may be found against him for the higher offense. (Sec. 359, C. Cr. Proc.) SAME-BAIL OF WITNESSES, WHAT PROVISIONS GOVERN. 8198 Rev. Codes N. D. When it appears, at any time before verdict or judgment that a mistake has been made in charging the proper offense, the defendant must not be discharged, if THE TRIAL. 391 there appears good cause to detain him in custody; but the court must commit him, or require him to give bail for his ap- pearance to answer to the offense, and may also require the witnesses to give bail for their appearance. The provisions of section 8097 of this code as to the manner and time of prosecu- tion, so far as applicable, shall govern the further proceedings under this section. (As am'd, Rev. Com'rs. ) Levisee, p. 1327. Consult next two sections. SAME PLEA FORMER ACQUITTAL OR ONCE IN JEOPARDY, NOT SUSTAINED BY. 7388 Comp. Laws. If an indictment for the higher offense is found by a grand jury impaneled within a year next thereafter, he must be tried thereon, and a plea of former acquittal to such last found indictment is not sustained by the fact of the discharge of the jury on the first indictment. (Sec. 360, C. Or. Proc.) SAME. 8199 Rev. Codes N. D. Upon the trial of an in- formation filed or indictment found, under the provisions of the last section, neither a plea of former acquittal nor of once in jeopardy shall be sustained by the fact of the discharge of the jury on the first information or indictment. (As am'd, Rev. Com'rs. ) Levisee, p. 1327. Consult preceding, and next section. NEW PROCEEDINGS, OR RETRIAL ON ORIGINAL CHARGE. 7389 Comp. Laws. If a new indictment is not found for the higher offense within a year as aforesaid, the court must again proceed to try the defendant on the original indictment. (Sec. 361, C. Cr. Proc.) SAME. 8200 Rev. Codes N. D. If a new information is not filed or a new indictment found within the times limited in section 8097 and the sections therein referred to, of this code, the court must again proceed to try the defendant on the orig- inal charge. (As am'd Rev. Com'rs.) Levisee, p. 1327. Consult two preceding sections. 392 CODE OF CRIMINAL PROCEDURE. NO JURISDICTION, OR NO OFFENSE, JURY DISCHARGED. 7390 Comp. L'aws. The court may direct the jury to be dis- charged, where it appears that it has not jurisdiction of the of- fense, or that the facts as charged in the indictment do not constitute an offense punishable by law. (Sec. 362, C. Or. Proc. ) SAME. 8201 Rev. Codes N. D. The court may direct the jury to be discharged, when it appears that it has not juris- diction of the offense, or that the facts charged in the infor- mation or indictment do not constitute an offense punishable by law. (As am'd Rev. Com'rs. ) Levisee, p. 1327. Consult next two sections, and sec. 7395, Comp. Laws, sec. 8207, Rev. Codes, infra. DISPOSITION OF DEFENDANT IN SUCH CASE REQUISITION. 7391 Comp. Laws. If the jury is discharged because the court has not jurisdiction of the offense charged in the indict- ment, and it appears that it was committed out of the jurisdic- tion of this state, the court may order the defendant to be dis- charged, or to be detained for a reasonable time specified in the order, until a communication can be sent by the state's at- torney to the chief executive officer of the state, territory, or district where the offense was committed. (Sec. 363, C. Cr. Proc. ) SAME . 8202 Rev. Codes N. D. If the jury is discharged because the court has not jurisdiction of the offense charged, and it appears that it was committed out of the jurisdiction of this state, the defendant must be discharged, unless the court orders that he be detained for a reasonable time, to be specified in the order, to enable the state's attorney to communicate with the chief executive officer of the country, state, territory or district where the offense was committed. (As am'd Rev. Com'rs. ) Levisee, p. 1327. Consult preceding, and next section. SAME OFFENSE IN ANOTHER COUNTY BAIL CLERK'S DU- TIES. 7392 Comp. Laws; 8203 Rev. Codes N. D. If the THE TRIAL. 393 offense was committed within the exclusive jurisdiction of an- other county of this state, the court must direct the defendant to be committed for such time as it deems reasonable to await a warrant from the proper county for his arrest, or if the offense be a misdemeanor only, it may admit him to bail in an under- taking, with sufficient sureties, that he will, within such time as the court may appoint, render himself amendable to a war- rant for his arrest from the proper county, and if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, and to be mentioned in the undertaking, and the clerk must forthwith transmit a certified copy of the indictment, and all the papers in the action filed with him, to the state's attorney of the proper county, the expense of which transmission is chargeable to that county. (Sec. 364, C. Or. Proc.) [Sec. 8203, Rev. Codes, N. D., is the same, except that the term "the court may direct" is used instead of "the court must direct," and all after the words "and to be mentioned in the undertaking" is omitted from sec. 8203, but is brought into a special section following. (As am'd, Rev. Com'rs.)] SAME, AS TO CLERK'S DUTIES. 8204 Rev. Codes N. D. In the cases provided for in the last section, the clerk must forthwith transmit a certified copy of the information or indict- ment and of all the papers filed in the action, to the proper county, the expense of which transmission is chargeable to that county. (Sec. 364, C. Cr. Proc., am'd Rev. Com'rs.) Levisee, p. 1328. Consult two preceding sections, and next two sections. DISCHARGED, BAIL EXONERATED, WHEN. 7393 Comp. Laws; 8205 Rev. Codes N. D. If the defendant is not ar- rested on a warrant from the proper county, he must be dis- charged from custody, or his bail in the action be exonerated, or money deposited instead of bail refunded, as the case may be, and the sureties in the undertaking, as mentioned in the last section, must be discharged. (Sec. 365, C. Cr. Proc..) 394 CODE OF CRIMINAL PROCEDURE. [Sec. 8205, Rev. Codes, N. D., is the same, except that the words "mentioned in section 8203" are used instead of "mentioned in the last sec- tion." (As anTd, Rev. Com'rs.)] Levisee, p. 1328. Consult two preceding sections, and next two sections. PROCEEDINGS, IF DEFENDANT REARRESTED. 7394 Comp. Laws; 8206 Rev. Codes N. D. If he is arrested, the same proceedings must be had thereon as upon the arrest of a de- fendant in another county, on a warrant of arrest issued by a magistrate. (Sec. 366, C. Or. Proc.) Levisee, p. 1328. Consult three preceding sections, and next section. See, as to proceedings on arrest in another county, sec. 7126, Comp. Laws, Levisee, p. 1289. DEFENDANT AGAIN DISCHARGED, OR BAIL EXONERATED, WHEN ANOTHER INDICTMENT, WHEN. 7395 Comp. Laws. If the jury be discharged because the facts as charged do not consti- tute an offense punishable by law, the court must order that the defendant, if in custody, be discharged therefrom, or if ad- mitted to bail that his bail be exonerated, or if he have depos- ited money instead of bail, that the money deposited by refund- ed to him, unless in his opinion a new indictment can be framed, upon which the defendant can be legally convicted, in which case it may direct that the case be resubmitted to the same or another grand jury. (Sec. 367, C. Cr. Proc. ) [Sec. 8207, Rev. Codes, N. D., is the same, except that the words "may direct that the case be resubmitted to the same or another grand jury" are substituted by the words "may direct the state's attorney to file a new in- formation, or (if an information cannot be sooner legally filed) direct that the case be submitted to the same or another grand jury; and the provisions of sections 8087 or 8097 of this code, so far as applicable, as to time and manner of the prosecution, shall govern the further proceedings under this section." (As am 'd Rev. Com'rs.)] Levisee, p. 1328. Consult sec. 7390, Comp. Laws, sec. 8201, Rev. Codes, supra. COURT ADVISES ACQUITTAL, WHEN JURY NOT BOUND BY. 7396 Comp. Laws; 8208 Rev. Codes N. D. If, at any time after the evidence on either side is closed, the court deem it insufficient to warrant a conviction, it may advise the jury to THE TRIAL. 395 acquit the defsndant. But the jury are not bound by the ad- vice, nor can the court, for any cause, prevent the jury from giving a verdict. (Sec. 368, C. Or. Proc. ) Levisee, p. 1328. Consult sees. 7370, 7372, 7374, Comp. Laws, sees. 8175, 8181, 8183, Rev. Codes, supra, and sec. 7405, Comp. Laws, sec. 8217, Rev. Codes, infra. Power of Court to Advise Acquittal on Insufficient Evidence De- fendant's Rights Query. Whether, when the evidence is insufficient to warrant a conviction, the power given to the court to "advise an acquittal" is discretionary or obligatory; whether defendant may ask such instruc- tion, and failing to do so, waive any right to present the question after ver- dict; whether "insufficiency of the evidence," is in all cases a question of law. query. Territory v. Stone, 2 Dak. 155, 4 N. W. 697. JURY MAY VIEW PLAGE OFFICER'S OATH. 7397 Comp. Laws; 8209 Rev. Codes. When, in the opinion of the court, it is proper that the jury should view the place in which ttte offense was charged to have been committed, or in which any other material fact occurred, it may order the jury to be con- ducted in a body, in the custody of proper officers, to the place, which must be shown to them by a person appointed by the court for that purpose, and the officers must be sworn to suffer no perison to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a speci- fied time. (Sec. 369, C. Cr. Proc. ) Levisee, p. 1328. JUROR KNOWING FACT, SWORN AS WITNESS. 7398 Comp. Laws; 8210 Rev. Codes N. D. If a juror have any personal knowledge respecting a fact in controversy in a cause, he must declare it in open court during the trial. If, during the retirement of a jury, a juror declare^, fact, which could be evidence in the cause, as of his own knowledge, the jury must return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties. (Sec. 370, C. Cr. Proc.) Levisee, p. 1329. JURY, CUSTODY AND CONDUCT OF OFFICER'S OATH. 7399 Comp. Laws; 8211 Rev. Codes N. D. The jurors sworn to 396 CODE OF CRIMINAL PROCEDURE. ^ try the indictment, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permit- ted to separate, or to be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any sub- ject connected with the trial, and to return them into court at the next meeting thereof . (Sec. 371, C. Or. Proc. ) [Sec. 8211, Rev. Codes, N. D., is the same, except that in lieu of the words "an indictment," the words "a criminal action" are used. (As am'd, Rev. Com Vs.)] Levisee, p. 1329. Consult next section, and sec. 7406, Comp. Laws, sec.. 8218, Rev. Codes, infra, and decisions thereunder. , COURT ADMONISHES JURY OPINION. 7400 Comp. Laws; 8212 Rev. Codes N. D. The jury mast also, at each adjourn- ment of the courb, whether permittad to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves or with any one else on any subject connected with the trial, or to form or ex- press any opinion thereon, until the case is finally submitted to them. (Sec. 372, C. Cr. Proc.) Levisee, p. 1329. Consult preceding section, and references there given. SICK JUROR DISCHARGED NEW ONE RETRIAL. 7401 Comp. Laws. 8213 Rev. Codes N. D. If, before the conclu- sion of a trial, a juror becomes sick, so as to be unable to per- form his duty, the court may order him to be discharged. In that case a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or after- ward impaneled. (See. 373, C. Cr. Proc.) Levisee, p. 1329. See, as to sick juror on trial of civil cases, sec. 5055, Comp. Laws, sec. 5439, Rev. Codes, N. D., p. 28, ante. Sick Juror Discharge of Jury, Retrial, or Another Panel Per- emptory Challenges. When during the trial and before the case is finally submitted a juror becomes sick and unable to sit further in the case, the court may order such juror discharged, and a new one sworn to complete the panel, and that the trial begin anew; or the court may discharge the THE TRIAL. 397 entire jury, and then or subsequently impanel another to try the case. State v. Hasledahl, 2ND. 521, 52 N. W. 315; People v. Stewart, 64 Cal. 60, 28Pac. 112; People v. Brady, 72 Cal. 490, 14 Pac. 202; Whart. Cr. PI. & Pr., note to sec. 508; Jenks v. State, 39 Ind. 9; Territory v. O'Hare, 1 N. D. 30, 44 N. W. 1003. When the first course is pursued, the prisoner is not thereby entitled to again exercise all peremptory challenges given him by statute, or to so challenge any one of the eleven remaining jurors; and in procuring the new juror the prisoner may exercise only such of his per- emptory challenges as he has not already exhausted in procuring the other eleven. State v. Hasledahl, siqira, and cases there cited. Former Jeopardy, When. Plea of Not Good. Where a juror was discharged during a trial, on account of sickness, and a new jury was im- paneled, defendant cannot successfully interpose the plea of former jeop- ardy based upon the proceedings on the former partial trial. State v. Hasle- dahl^ N. D. 521, 52 N. W. 315; Whar. Cr. Pr. & PI. (9th ed.) sec. 508. MURDERBURDEN OF PROOF ON DEFENDANT, WHEN. 7402 Comp. Laws; 8214 Rev. Codes N. D. Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitiga- tion, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the de- fendant was justifiable or excusable. (Sec. 374,0. Cr. Proc. ) Levisee, p. 1329. Consult sec. 7370, Comp. Laws; sec. 8175, Rev. Codes, supra, and de- cisions under heads of '"Instructions," and "'Evidence," there cited. BIGAMY PROOF OF MARRIAGE COHABITATION. 7403 Comp. Laws; 8215 Rev. Codes N. D. Upon a trial for big- amy, it is not necessary to prove either of the marriages by the register, certificate or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases, and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge. (Sec. 375, C. Cr. Proc ) Levisee, p. 1329. FORGERY ATTEMPTING TO PASS PROOFOF INCORPORATION. 7404 Comp. Laws; 8216 Rev. Codes N. D. Upon a trial for forging any bill or note purporting to be the bill or note of CODE OF CRIMINAL PROCEDURE. an incorporated company or bank, or for passing, or attempt- ing to pass or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorpora- tion of such bank or company by the charter or act of incor- poration, but it may be proved by general reputation, and per- sons of skill are competent witnesses to prove that such bill or note is forged or counterfeited. (Sec. 376, C. Or. Proc.) Levisee, p. 1330. CHARGE TO JURY, REQUISITES OF REQUESTED CHARGE- SIGNING DECISION REFUSAL OF PART. 7405 Comp. Laws; 8217 Rev. Codes N. D. In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict and if it state the testimony of the case, it must in addition inform the jury that they are the exclusive judges of all questions of fact. Either party may present to the court any written charge, and re- quest that it be given. If the court thinks it correct and per- tinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused the court must endorse or sign its decision. If part of any written charge be given and part refused the court must distinguish, showing by the en- dorsement or answer what part of each charge was given and what part refused. (Sec. 377, C. Cr. Proc. ) [Sec. 8217, Rev. Codes, N. D., is the same, except that all after the words "or sign its decision" are omitted. (Sec. 377, C. Cr. Proc. am'd Rev. Com'rs.)] Levisee, p. 1330. Consult sees. 7370, 7372, 7374, 7396, Comp. Laws, sees. 8175, 8181, 8183, 8208, Rev. Codes, supra, and decisions thereunder. Instruction, What Evidence to Consider When Not Error. Where a prosecution for selling intoxicating liquors rested on the testimony of the prosecuting witness, the court charged the jury that the only evidence they could consider as to the intoxicating character of the liquor was that of this witness, "who claims that he tasted it the day he bought it, and before it left his hands and control," but informed them ihat they had "a right to believe or disbelieve his testimony," and the matter was purely one one of fact for them, held, there was no error committed under this section. Ter- ritory v. Pratt, 6 Dak. 483, 43 N. W. 711. Evidence Merely Reducing Grade Instruction to Disregard. It is proper to instruct the jury that THE TRIAL. 399 evidence which only tends to reduce the grade of the offense, is not to be considered by them as tending 1 to excuse or justify the killing. Territory v. Gade, 2 Dak. 125, 2 N. W. 477; People v. Sanches, 24 Cal. 17; People v. Estrand, 49 Cal. 171; People v. Turley, 50 Cal. 469; People v. King, 27 Cal. 507; People v. Welch, 49 Cal. 174. JURY AFTER CHARGE REFRESHMENTS OFFICER'S OATH. 7406 Corap. Laws; 8218 Rev. Codes N. D. After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, without food or drink, except bread and water, unless otherwise ordered by the court, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to re- turn them into court when they have so agreed, or when ord- ered by the court. (Sec. 378, C. Or. Proc.) [Sec. 8218, Rev. Codes, N. D., is the corresponding section, and is the same, except that the words "without refreshment except water" are substi- tuted for the words ''without food or drink, except bread and water," and the word "himself" is used in place of "themselves." (Sec. 378, C. Cr. Proc., am'd Rev. Com'rs.)] Levisee, p. 1330. Consult sec. 7399', 7400. Comp. Laws, sec. 8211, 8212, Rev. Codes, supra. See, as to retirement of jury in civil cases, sec. 5053, Comp. Laws, sec. 5437, Rev. Codes, N. D. pp. 27-8, ante. Temporary Separation of, When Not Reversible Error. Where a temporary separation of the jury, during its deliberations, occurred, "not to exceed five minutes at the outside," occasioned by an alarm of fire, and nothing is shown to create suspicion of any improper approach to any juror, the refusal of the trial court to grant a new trial on that account will not be reversed. State v. Church, S. D , 60 N. W. 143; People v. Bem- merly, 98 Cal. 299, 33 Pac. 263. (Peterson v. Siglinger, 3 S. D. 255, 52 N. W. 1060, explained.) Where on their return from dinner one of the jurors stepped into a grocery, picked up a package of tobacco, holding it to view of a clerk, the bailiff and other jurors standing at the door, no word having been spoken, and another juror in passing another grocery stepped in and ordered goods sent home, the officer and other jurors remaining at the door, no conversation occurring relative to the case on trial, the refusal of a new trial on that account will not be disturbed. State v. Church, supra. When Harmless Irregularity. Although a court may in its discretion permit a 400 CODE OF CRIMINAL PROCEDURE. jury in a criminal cause to separate during the intervals of the trial, they should be kept together after a final submission of the case; and where a separation occurs before verdict is reached but after retirement to Hie jury room, and is of such a character that one or more of the jurors might have been improperly influenced by others, and there is nothing reliable to show that such influence has not been exercised to the prejudice of the accused, the verdict should be vacated and the case retired. Kellam, J., dissenting on the ground that it is conclusively shown by the record that defendant was not prejudiced thereby. State v. Church (on rehearing) S. D , 64 N. W. 152; People v. Backus, 5 Cal. 275; Cantwell v. State, 18 Ohio St. 477; State v. Harris, 12 Nev. 114; Jumpertzv. People, 21 111. 374; State v. Par- rant, 16 Minn. 178 (Gil. 157); Com. v. Roby, 12 Pick. 496; State v. Garig (La.), 8 South. 934; State v. Harrison, (W. Va.), 15 S. E. 982; Keenan v. State, 8 Wis 132; State v. Cucuel, 31 N. J. Law 249; State v. Prescott, 7 N. H. 287; Abb. Tr. Brief (Cr.), 180. Separation of Jury, But no Outside Communication. Where, in a prosecution for felony, the jury separated after the case had been finally submitted to them, but it appeared that none of the jurors had had any communication with any one during their separa- tion respecting the matter under consideration, held,, their verdict should not be disturbed. Territory v. King, 6 Dak. 131, 50 N. W. 623; People v. Bonney, 19 Cal. 427; Territory v. Chenowith, 5 Pac. 532; State v. Fertig, 30 N. W. 633; People v. Ransom, 7 Wend. 493; Eastwood v. People, 3 Park. 44; Thorn. & M. Juries, 396. WHEN CONVICTION OR ACQUITTAL A BAR DEGREES. 8219 Rev. Codes N. D. When the defendant has. been convicted or acquitted upon an information or indictment for an offense con- sisting of different degrees, the conviction or acquittal is a bar to another information or indictment for the offense charged, or for any lower degree of that offense, or for an offense neces- sarily included therein. (Adopted through Rev. Com'rs.) Consult sees. 7387, 7388, Comp. Laws, sees. 8198, 8199, Rev. Codes' supra. DEFENDANT MAY BE COMMITTED, ON APPEARANCE FOR TRIAL 7407 Comp. Laws; 8220 Rev. Codes N. D. When a de- fendant who has given bail appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly. (Sec. 379, C. Cr. Proc.) JURY, AFTER CAUSE SUBMITTED. 401 Devisee, p. 1330. Consult sec. 7392, Comp. Laws, sec. 8203, Rev. Codes, supra. STATE'S ATTORNEY, SUBSTITUTE FOR, APPOINTED, I/I/HEN, 7408 Comp. Laws; sec. 8221 Rev. Codes N. D. If the state's attorney fails, or is unable to attend at the trial, the court must appoint some attorney at law to perform the duties of the state's attorney on such trial. (Sec. 380, C. Cr. Proc. ) Levisee, p. 1330. See, as to appointment of state's attorney in South Dakota, sec. 434, Comp. Laws; and as to appointment of a deputy state's attorney, see, chap. 108, Laws 1891, S. D., pp. 247-8. As to appointment of assistant state's at- torney, and of special counsel to assist the state's attorney in North Dakota, see sees. 1987, 1988, Rev. Codes, N. D. CHAPTER XXX. CHAP. 3, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 3, CHAP. 10, CODE CRIMINAL PROCEDURE, N. D. CONDUCT OF THE JURY AFTER THE CAUSE IS SUBMITTED TO THEM. ROOM PROVIDED FOR JURY WHEN COURT MAY ORDER EX- PENSE OF. 7409 Comp. Laws; 8222 Rev. Codes N. D. A room must be provided by the board of commissioners of a county for the use of the jury, upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the commissioners neglect, v the court may order the sheriff to do so, and the expense incurred by him in carrying the order into ef- fect, when certified by the court, are a county charge. (Sec. 381, C. Cr. Proc. ) Levisee, p. 1331. Consult next section. FOOD AND LODGING FOR JURY, ON COURT'S ORDER. 7410 Comp. Laws; 8223 Rev. Codes N. D. While the jury are kept together, either during the progress of the trial or after 26 TP 402 CODE OF CRIMINAL PROCEDURE. their retirement for deliberation, they must be provided by the sheriff, upon the order of the court, at the expense of the county, with suitable and sufficient food and lodging. (Sec. 382, Or. Or. Proc. ) Levisee, p. 1331. Consult preceding section. WHAT PAPERS JURY MAY JAKE. 7411 Comp. Laws; 8224 Rev. Codes N. D. Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, or copies of such parts of public rec ords or private documents, given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession. (Sec. 383, C. Cr. Proc.) [Sec. 8224, Rev. Codes, N. D., is the same, except that after the words "all papers" the following words are inserted: "(except depositions)"; and the following words appear after the concluding word "possession" in the original section: "They may also take with them such parts of the written instructions as the court may direct and notes of the testimony, or other proceedings on the trial, taken by themselves, or any of them, but none taken by any other person." (Am'd Rev. Com'rs.) J Levisee, p. 1331. See, as to what papers the jurors may take in civil cases, sec. 5052, Comp. Laws, sec. 5436, Rev. Codes, p. 27, ante. Transcript of Justice's Docket on Preliminary Examination, Tak- en by Jury Error. On a prosecution for perjury, alleged to have been committed while defendant was testifying in his own behalf on a prelimi- nary examination for selling intoxicating liquors, the court, over an objec- tion of relevancy and incompetency, permitted the prosecution to put in evi- dence and the jury to take with them on retiring for deliberation a tran- script of the committing magistrate's docket showing the proceedings on the examination, and his finding that there was sufficient cause to believe the defendant guilty of the offense. Held, error. Territory v. Jones, 6 Dak. 85, 50 N. W. 528. DISAGREEMENT FURTHER INSTRUCTIONS, OR INFORMATION. 7412 Comp Laws; 8225 Rev. Codes N. D. After the jury have retired for deliberation, if there be a disagreement be- tween them as to any part of the testimony, or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their be- ing brought into court, the information required must be giv- JURY, AFTER CAUSE SUBMITTED. 403 en in the presence of, or after notice to the state's attorney and the defendant or his counsel, or after they have been called. (Sec. 384, C. Or. Proc.) Levisee, p. 1331. Additional Instructions After Retirement, Proper. A jury that has retired to deliberate upon their verdict may request and receive addi- tional instructions on the Sabbath, or the judge may on that day, upon his motion, have the jury brought in and re-instruct them, for the purpose of correcting a supposed error or mistake in his former charge . People v. Odell, 1 Dak. 189, 46 N. W. 601. For a case in which the jury, after being out all night, came in and were further instructed, see Territory v. Taylor, 1 Dak. 553-4 (appendix.) , SICK JUROR, JURY DISCHARGED. 7413 Comp. Laws; 8226 Rev. Codes N. D. If, after the retirement of the jury, one of them become so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be dis- charged. (Sec. 385, C. Or. Proc.) Levisee, p. 1331. Consult next section, and sec. 7401, Comp. Laws, sec. 8213, Rev. Codes, N. D., preceding chapter. See State v. Hasledahl, 2 N. D. 521, 52 N. W. 315, for a case where a juror became sick during the trial and before the case was submitted to the jury; cited under sec. 7401, Comp Laws, sec. 8213, Rev. Codes N. D., in preceding chapter. See also, State v. Church, S. D , 64 N. W. 152, cited under sec. 7406, Comp. Laws, sec. 8218, Rev. Codes N. D., preced- ing chapter. DISCHARGE OF JURY, NOT TILL AGRGEEMENT, UNLESS. 7414, Comp. Laws; 8227 Rev. Codes N. D. Except as pro- vided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court, unless by the con- sent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfac- torily appear that there is no reasonable probability that the jury can agree. (Sec. 386, C. Cr. Proc. ) Levisee, p. 1331. Consult two preceding sections. VERDICT PREVENTED, CAUSE RETRIED TIME OF RETRIAL. 7415 Comp. Laws; 8228 Rev. Codes N. D. In all cases where 404 CODE OF CRIMINAL PROCEDURE. a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defend- ant is discharged from the indictment during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct. (Sec. 387, C. Or. Proc. ) Sec. 8228, Rev. Codes, N. D., is the same, except that the word "when" is substituted for the word "where," as it occurs in the original section, and the words ''information or" occur before the word "indictment." (AmM Rev. Com'rs.)] Levisee, p. 1331. Consult preceding section. See State v. Church, .... S. D , 64 N. W. 152. Also State v. Hasledahl, 2 N. D. 521, 52 N. W. 315, as to the course to be pursued in case of a sick juror; cited under sec. 7401, Comp. Laws, sec. 8213, Rev. Codes, N. D., preceding chapter. ADJOURNMENT WHILE JURY ABSENT, BUT OPEN FOR WHAT- FINAL ADJOURNMENT. 7416 Comp. Laws; 8229 Rev. Codes N. D. While the iury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for every purpose connected with the cause submitted to them, until a verdict is rendered or the jury discharged. A final adjournment of the court discharges the jury. (See 388, 389, C. Cr. Proc. am'd. ) Levisee, p. 1332. Consult three preceding sections. See People v. Odell, 1 Dak. ,189, 46 N. W. 601, relative to calling in the jury, re-instructing them, etc.; cited under sec. 7412, Comp. Laws, sec. 8225, Rev. Codes, N. D., supra. CHAPTER XXXI. CHAP. 4, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 4, CHAP. 10, CODE CRIMINAL PROCEDURE, N. D. THE VERDICT. RETURN OF VERDICT WHEN JURY DISCHARGED WITHOUT VERDICT PROCEDURE. 7417 Comp. Laws; 8230 Rev. Codes THE VERDICT. 405 N. D. When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the cause must be again tried, at the same or an- other term. (Sec. 390, C. Or. Proc. ) Levisee, p. 1332. ' Consult sec. 7419, Comp. Laws, sec. 8232, Rev. Codes, infra. PRESENCE OF DEFENDANT FELONY MISDEMEANOR. 7418 Comp. Laws; 8231 Rev. Codes N. D. If the indiptment is for a felony, the defendant must, before the verdict is received, appear in person. If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence. (Sec. 391, C. Cr. Proc.) [Sec. 8231, Rev. Codes, N. D., is the same, except that the words "in- formation or" appear before the word "indictment." (Am'dRev. Com'rs.)] Presence of Defendant Motion to Quash.. The personal presence of the defendant, though necessary at the rendition of the verdict, is hot necessary on the hearing of a motion to quash the indictment. Territory v. Gay, 2 Dak. 125, 2 N. W. 477. PROCEDURE WHEN JURY APPEAR. 7419 Com. Laws; 8232 Rev. Codes N. D. When the jury appear, they must be asked, by the court or the clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirma- tive, they must, on being required, declare the same. (Sec. 392, C. Cr. Proc.) Levisee, p. 1332. Consult sec. 7417, Comp. Laws, sec. 8230, Rev. Codes, supra. VERDICT, GENERAL OR SPECIAL LIBEL 7420 Comp. Laws; 8233 Rev. Codes N. D. The jury may either render a gen-> eral verdict, or where they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for li- bel, find a special verdict. (Sec. 393, .C. Cr. Proc.) [Sec. 8233, Rev. Codes, N. D., is the same, except that the word "when" is substituted for the word "where," and the words "information or" appear before the word "indictment." (Am'd Rev. Com'rs.) ] Consult next four sections. See, State v. Johnson, 3N. D. 150, 54 N. W. 547, as to form of verdict; cited under sec. 7429, Comp. Laws, sec. 8244, Rev. Codes, N. D., infra. 406 CODE OF CRIMINAL PROCEDURE. ORAL VERDICT, UNLESS REQUIRED IN WRITING BLANK VER- DICTS PREPARED. 8234 Rev. Codes N. D. The verdict of the jury may be rendered orally or in writing as the jury may elect, unless the court at the time the case is submitted to the jury requires that it be rendered in writing. When the court so re- quires the clerk of the court shall, under the discretion of the court, provide blank verdicts of suitable form for any verdict the jury may return in the action and said blank verdicts shall be be taken by the jury when it retires. (Adopted through Rev. Com'rs. ) m Consult preceding section. GENERAL VERDICT, DEFINED INSANE DEFENDANT VAR- IANCE. 7421 Comp. Laws; 8235 Rev. Codes N. D. A gen- eral verdict upon a plea of not guilty, is either ''guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or^cquittal of the same offense it is either ' 'for the state, " or ' 'for the defendant." When the defendant is acquitted on the ground tha the was insane at the time of the commission of the act charg- ed, the verdict must be ' 'not guilty by reason of insanity. " When the defendant is acquitted on the ground of variance between the indictment and the proof, the verdict must be ' 'not guilty by reason of variance between indictment and proof." (Sec. 394, C. Cr. Proc.) Levisee, p. 1332. Consult preceding section, sec. 7426, Comp. Laws, sec. 8240, Rev. Codes, in/ra, and last section in this chapter. [Sec. 8235, Rev. Codes, N. D., is the same, except that the words "in- formation or" appear before the word "indictment;" and after the words ."acquittal of the same offense" the words "or once in jeopardy" appear. (Am'dRev. Cotn'rs.)] See People v. Odell, 1 Dak. 189, 46 N. W. 601, cited under sec. 7429, Comp. Laws, sec. 8244, Rev. Codes, N. D., infra. SPECIAL VERDICT, CONCLUSIONS OF FACT. 7422 Comp. Laws; 8236 Rev. Codes N. D. A special verdict is that by which the jury find the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence and not the evidence to prove them, and the THE VERDICT. 407 conclusions of fact must be so presented as that nothing re- mains to the court but to draw conclusions of law upon them. (Sec. 395, C. Or. Proc.) Levisee, p. 1333. Consult sec. 7420, Comp. Laws, sec. 8233, Rev. Codes, supra; and next two sections. See State v. Johnson, 3 N. D. 150, 54 N. W. 547, cited under sec. 7429, Comp. Laws, sec. 8244 Rev. Codes, infra. SPECIAL VERDICT WRITTEN ENTRY AND READING OF. 7423 Comp. Laws; 8237 Rev. Codes N. D. The special ver- dict must be reduced to writing by the jury, or in their pres- ence entered upon the minutes of the court, read to the jury, and agreed to by them before they are discharged. (Sec. 396, C. Cr. Proc.) Levisee, p. 1333. Consult preceding, and following section. FORM OF SPECIAL VERDICT. 7424 Comp. Laws; 8238 Rev. Codes N. D. The special verdict need not be in any par- ticular form, but is sufficient^ it presents intelligibly the facts found by the jury. (Sec. 397, C. Cr. Proc.) Levisee, p. 1333. Consult two preceding sections. [See State v. Johnson, 3 N. D. 150, 54 N. W. 547, cited uuder sec. 7429, Comp. Laws, sec. 8244, Rev. Codes, infra.] ARGUMENT OF SPECIAL VERDICT. 7425 Comp. Laws; 8239 Rev. Codes N. D. The special verdict may be brought to argument by either party, upon two day's notice to the other, at the same or another term of court. (Sec. 398, C. Cr. Proc.) Levisee, p. 1333. Consult preceding, and next section. JUDGMENT ON SPECIAL VERDICT PLEA NOT GUILTY- FORMER CONVICTION OR ACQUITTAL 7426 Comp. Laws, 8240 Rev. Codes N. D. The court must give judgment upon the special verdict as follows: 1. If the plea is not guilty, and the facts prove the de- defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under the in- 408 CODE OF CRIMINAL PROCEDURE. dictment, judgment must be given accordingly; but if other- wise, judgment of acquittal must be given. 2. If the plea is a former conviction or acquittal of the same offense, the court must give judgment of conviction or ac- quittal, according as the facts prove or fail to prove the for- mer conviction or acquittal. (Sec. 399, C. Or. Proc. ) [Sec. 8240, Rev. ("odes, N. D., is the same, except that the words "in- formation or" appear in subdivision 1 before the word "indictment," and the words "or once in jeopardy" appear in subdivision 2 after the words 'same offense;" and in subdivision 3 the words "the plea" are substituted for the words "the former conviction or acquittal." (Am'd Rev. Com'rs.) ] Levisee, p. 1333. Consult four preceding sections, sec. 7421, Comp. Laws, sec. 8235, Rev. Codes, supra, and next section. See State v. Johnson, 3 N. D. 150, 54 N. W. 547, cited under sec. 7429, Comp. Laws, sec. 8244, Rev. Codes, infra. Former Conviction or Acquittal Must Stand on That Alone. Where a defendant enters a plea of former conviction or acquittal alone, he elects to stand on such plea, and if the issue is found against him, he will not be permitted to enter a plea of not guilty, but the court must give judg- ment of conviction or acquittal according" to the fact. People v. Brtggs, 1 Dak. 289, 46 N. W. 451; 2 Whart. Cr. Law, sec. 572; 2 Bish. Crim. Proc., sees. 755, 782-83; 1 Archbold Cr. PL & Pr. 371. WHEN NEW TRIAL ORDERED. 7427 Comp. Laws; 8241 Rev. Codes N. D. If the jury do not, in a special verdict, pro- nounce affirmatively or negatively on the facts necessary to en- able the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial. (Sec. 400, C. Cr. Proc.) Levisee, p. 1333. See State v. Jonhson, 3 N. D. 150, 54 N. W. 547, cited under sec. 7429, Comp. Laws, sec. 8244, Rev. Codes, infra. DEGREE MUST BE FOUND. 7428 Comp. Laws; 8242 Rev. Codes N. D. Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. (Sec. 401, C. Cr. Proc.) [Sec. 8242, Rev. Codes, N. D., is the same, with the following addition at the end of the original section: "Whenever a verdict of guilty is ren- dered against the accused upon a prosecution for homicide, the jury must THE VERDICT. 409 tine the degree thereof and determine by their verdict the punishment to be inflicted within the limits prescribed by law. (Am'd Rev. Com'rs.)] Levisee, p. 1333. DEGREE ANY INCLUDED IN CHARGE, FOUND. 7429 Comp. Laws; 8244 Rev. Codes N. D. The jury may find the de- fendant guilty of any offense, the commission of which is nec- essarily included in that with which he is charged in the indict- ment, or-of an attempt to commit the offense. (Sec. 402, C. Or. Proc.) [Sec. 8244, Rev. Codes, N. D., is the same, except that the words "in- formation or" appear before the word "indictment." (Am'd Rev. Com'rs.] Levise*. p. 1333. Assault And Battery With Deadly Weapon Conviction of Intent to do Bodily Harm. On a trial for assault and battery cjmm t ! with a deadly weapon, "with intent to kill," the accused, under sec. 6510, Comp. Laws, may be convicted of an assault and battery, armed with a dangerous weapon, "with intent to do bodily harm." The commission of the latter is necessarily included in the commission of the former, under sec. 7429, Comp. Laws. State v. Johnson, 3 N. D. 150, 54 N. W. 547; State v. White, 41 la. 316; State v. Connor, (la), 13 N. W. 327; People v. Davidson, 5 Cal. 134; People v. English, 30 Cal. 216. People v. Congleton, 44 Cal. 93; People v. Lightner, 49 Cal. 226; O'Leary v. People, 4 Park. Grim. R., 187; State v. Burke, (Mo.), 2 S. W. *10; Beckwith v. People, 26 111. 500; People v. Van- ard, 6 Cal. 562; Sullivan v. State, 44 Wis. 595; Territory v. Conrad, 1 Dak. 348, 46 N. W. 605. Assault, Intent to Kill, Charge of Permits Convic- tion for Simple Assault. On an indictment charging an assault, or as- sault and battery with intent to kill, defendant may be convicted either of the crime charged, or of an assault, or assault and battery with intent to do bodily harm, or for assault and battery, or for bimple assault. Territory v. Conrad, 1 Dak. 348, 46 N. W. 605. Assault With Intent to Kill, Verdict, to Do Bodily Harm Mis- demeanor. A verdict on an indictment for "an assault upon and for shoot- ing one P. McM. with a pistol, commonly known as a revolver, loaded with gunpowder and leaden bullets, with intent to kill," finding "the defendant guilty of Dassault with intent to do bodily harm, and without justifiable or excusable cause," is a conviction for a misdemeanor, and will not sustain a judgment as for felony. Territory v. Conrad, 1 Dak. 348, 46 N. W. 605; Hursey v. People, 47 Barb. 503; O'Leary v. People, 4 Park. Cr. Rep. 187; People v. Davidson, 5 Cal. 134; People v. Nugent, 4 Cal. 341; People v. En- glish, 30 Cal. 215; People v. Murat, 45 Cal. 281. Assault With Intent, Di- visible Into Degrees Proof of Offense Included in Higher. The crime 410 CODE OF CRIMINAL PROCEDURE. of assault, or assault and battery with intent to kill, is divisible into de- grees, and defendant may be convicted of the offense charged, or of any lesser offense necessarily embraced therein. People v. Odell, 1 Dak. 189, 46 N. W. 601. It is enough to prove so much of the indictment as shows that defendant has committed a crime therein specified, or one necessarily included in and forming a constituent element of the higher offense charged. Id. Assault With "Weapon, Includes Assault, Not Battery. The offense of an aggravated assault with a dangerous weapon, committed with intent to do bodily harm, as defined by sec. 6510, Comp. Laws, neces- sarily includes in its commission a simple assault, but does not necessarily include the offense of assault and battery. State v. Marcks, 3 N D. 532, 58 N. W. 25; State v. Johnson, 3 N. D. 150, 54 N. W. 547. It was therefore er- ror to overrule a demurrer to the information interposed on the ground that it stated more than one offense. State v. Marcks, supra. The jury were instructed that if the evidence failed to show beyond a reasonable doubt that defendants were guilty of the aggravated assault charged, but did show them guilty of assault and battery, they could find defendants guilty of the latter offense. Verdict of guilty of assault and battery. Mo- tion in arrest, overruled. Held, error, construing sec. 7429, Comp. Laws, State v. Marcks, 3 N. D. 532, 58 N. W. 25; Turner v. Muskegon, Circuit Judge (Mich.), 50 N. W. 310; Territory v. Dooley (Mont.), 1 Pac. 747; Peo- ple v. Keefer, 18 Cal. 637; State v. White, 45 Iowa 325. Ambiguous Verdict "As Charged." The following words found in a verdict, " as charged in the information," are ambiguous, and cannot be resorted to for the purpose of showing that the assault and battery was committed with a dangerous weapon, in view of the fact that the effect of the verdict is to acquit the accused of the offense "charged in the informa- tion." State v. Johnson, 3 N. D. 150, 54 N. W. 547. PREVIOUS CONVICTION CHARGED, FACT MUST BE FOUND- FORM OF VERDICT. 8243 Rev. Codes N. D. Whenever the fact of a previous conviction of another offense is charged in the information or indictment, the jury if they find a verdict of guilty of the offense of which the defendant is charged, must also, unless the answer of the defendant admits the charge, find whether or not he has suffered such previous conviction. In addition to the verdict of "guilty" the verdict of the jury upon a charge of previous conviction may be "we also find the charge of previous conviction true," or "we also find the charge of previous conviction not true, " as they find that the defendant has or has not suffered such conviction. (Adopted through Rev. Cotn'rs. ) THE VERDICT. 411 Consult sees. 7421, 7426, Comp. Laws, sees. 8235, 8240, Rev. Codes, supra. SEVERAL DEFENDANTS, VERDICT AS TO PART. 7430 Comp. Laws; 8245 Rev. Codes N. D. On an indictment against sev- eral, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jurj T . (Sec. 403, C. Cr. Proc. ) [Sec. 8245, Rev. Codes, N. D., is the same, except that the words "in- formation or" appear before the word "indictment." (Am'd Rev. Com'rs.)] Levisee, p. 1334. VERDICT OF GUILTY, NOT CONFORMING TO LAW, RECONSID- EREDPUNISHMENT, VERDICT AS TO LIMIT OF JUDGMENT. 8246 Rev. Codes N. D. If the jury return a verdict of guilty against the accused, the court must before it is accepted ascer- tain whether it conforms to the law of the case. If in the opinion of the court, the verdict does not conform to the re- quirements of the law of the case, the court must with proper instructions as to the error, direct the jury to reconsider the verdict, and the verdict cannot be accepted or recorded until it is rendered in proper form. But, if the punishment imposed by the jury in the verdict, in cases where the jury are author- ized by law to determine the punishment, is not in conformity to the law of the case in that regard, the court may proceed as follows: 1. If the punishment imposed by the jury in the verdict is under the limit prescribed by law, for the offense of which the defendant is found guilty, the court may receive the ver- dict and thereupon render judgment and pronounce sentence for the lowest limit prescribed by law in such cases; or 2. If the punishment imposed by the jury in the verdict is greater than the highest limit prescribed by law, for the of- fense of which the defendant is found guilty, the court must disregard the excess and render judgment and pronounce sen- tence according to the highest limit prescribed by law in the particular case. (Adopted through Rev. Com'rs. ) 412 CODE OF CRIMINAL PROCEDURE. Consult next section. COURT EMPOWERED TO REDUCE PUNISHMENT. 8247 Rev. Codes N. D. The court has the power in all cases of convic- tion, to reduce the extent or duration of the punishment im- posed by a jury, if in its opinion the conviction is proper, and the punishment imposed is greater than under the circumstan- ces of the case ought to be inflicted. (Adopted through Rev. Com'rs. ) Consult preceding section; sec. 7427, sec. 8241, Rev. Codes, supra; sees. 7431, 7432, Comp. Laws, sees. 8248, 8249, Rev. Codes, infra. RECONSIDERATION OF VERDICT, WHEN MISTAKING LAW. 7431 Comp. Laws; 8248 Rev. Codes N. D. When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered. But when there is a verdict of ac- quittal, the court cannot require the jury to reconsider it. (Sec. 404, C. Cr. Proc.) Levisee, p. 1334. Consult sec. 7427, Comp. Laws, sec. 8241, 8246, Rev. Codes, supra; and next section. VERDICT NEITHER GENERAL NOR SPECIAL RECONSIDERATION PROCEDURE. 7432. Comp. Laws; 8249 Rev. Codes N. D. If the jury render a verdict which is neither a general nor a special verdict, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury, whether to render a general verdict, or to find the facts specially, and to leave the . judgment to the court. (Sec. 405, C. Cr. Proc.) Levisee, p. 1334. Consult sees. 7421, 7422, Comp. Laws, sees. 8235, 8236, Rev. Codes, supra. PERSISTING IN INFORMAL VERDICT, WHEN JUDGMENT OF ACQUITTAL 7433 Comp. Laws; 8250 Rev. Codes N. D. If the jury persist in finding an informal verdict, from which, THE VERDICT. 413 however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be en- tered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defend- ant, upon the issue, or judgment be given against him on a special verdict. (Sec. 406, C. Cr. Proc.) Levisee, p. 1334. Consult preceding section. JURY MAY BE POLLED PROCEDURE. 7434 Comp. Laws; 8251 Rev. Codes N. D. When a verdict is rendered, and be- fore it is' recorded, the jury maybe polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the nega- tive, the jury must be sent out for further deliberation. (Sec. 407, C. Cr. Proc. ) Levisee, p. 1334. CLERK RECORDS VERDICT JUROR DISAGREEING JURY DIS- CHARGED, WHEN. 7435 Comp. Laws; 8252 Rev. Codes N. D. When the verdict is given, and is such as the court may receive, the clerk must immediately record it in full upon the minutes, and must read it to the jury and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes, and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. (Sec. 408, C. Cr. Proc. ) Levisee, p. 1334. Consult sec. 7431, Comp. Laws, sec. 8246, 8248, Rev. Codes, supra. JUDGMENT OF ACQUITTAL, WHEN DEFENDANT DISCHARGED ON DETENTION FOR NEW INDICTMENT. 7436 Comp. Laws; 8253 Rev. Codes N. D. If the judgment of acquittal is given on a general verdict, and the defendant is not detained for any other legal cause, he must be discharged as soon as judgment is given, except that when the acquittal is for a variance be- tween the proof and the indictment, which may be obviated by a new indictment, the court may order his detention to the end 414 CODE OF CRIMINAL PROCEDURE. that a new indictment may be preferred in the same manner and with like effect as provided in section 7395. (Sec. 409, C. Or. Proc.) [Sec. 8253, Rev. Codes, N. D., is the same, except that the words "in- formation or" precede the word "indictment;" and in lieu of the words "sec- tion 7395" at the end, the words "section 8097 and the sections of this code therein referred to" are inserted. (Am'd Rev. Com'rs)] Levisee, p. 1334. VERDICT, GUILTY, DEFENDANT REMANDED OR COMMITTED- BAIL 7437 Comp. Laws; 8254 Rev. Codes N. D. If a gen- eral verdict is rendered against the defendant, or a special ver- dict is given, he must be remanded, if in custody; or if on bail, he may be committed to the proper officer of the county, to await the judgment of the court upon the verdict. When com- mitted, his bail is exonerated, or if money is deposited instead of bail, it must be refunded to the defendant. (Sec. 410, C. Or. 'Proc.) Levisee, p. 1335. Consult sec. 7421, Comp. Laws, sec. 8235, Rev. Codes, supra. DEFENSE OF INSANITY, FACT MUST BE STATED IN VERDICT- DISCHARGE OR COMMITTAL. 7438 Comp. Laws; 8255 Rev. Codes N. D. If the defense is the insanity of the defendant, the jury must be instructed, if they acquit him on that ground, to state the fact with their verdict. The court may thereupon, if the defendant is in custody, and they deem his discharge dangerous to the public peace or safety, order him to be com- mitted to the care of the sheriff until he becomes sane. (Sec. 411, C. Cr. Proc.) Levisee, p. 1335. Consult sec. 7421. Comp. Laws, sec. 8235, Rev. Codes, infra. CHAPTER XXXII. CHAP. 5, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 1, CHAP. 11, CODE CRIMINAL PROCEDURE, N. D. BILLS OF EXCEPTION STATEMENT OF CASE. 415 BILLS OF EXCEPTION STATEMENT OF CASE. MATTERS DEFENDANT MAY EXCEP7 TO. 7439 Comp. Laws; 8262 Rev. Codes N. D. On the trial of an indictment, excep- tions may be taken by the defendant to the decision of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise, in any of the following cases: 1. In disallowing a challenge to the panel of the jury, or to an individual juror for implied bias. 2. In admitting or rejecting witnesses or testimony, on the trial of a challenge to a juror for actual bias. 3. In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging or instructing the jury upon the law, on the trial of the issue. (Sec. 412 C. Or. Proc.) [Sec. 8262 Rev. Codes, N. D., is the same, except that the words "an indictment" near the beginning of the section are substituted by the words "a criminal action or proceeding," and all after the words "decision of the court" in that part of the section preceding subd. 1 is omitted; and subd. 3 is as follows: "3. In admitting or rejecting witnesses or evidence or in deciding any matter of law, not purely discretionary, on the trial of the issue." (Am'd Rev. Com Vs.) ] Levisee, p. 1335. Consult next section. Substantial Rights, Prejudice to Section Construed. In State v. Reddington, S. D , 64 N. W. 170, the supreme court, in consider- ing whether the substantial rights of the defendant were prejudiced in the case before it, where the record failed to show an arraignment and plea, construe this section, and say: "By injury is meant effect 'upon the result.' This is the well-defined doctrine of our statute, which allows the defendant to except 'to the decision of the court upon a matter of law by which his substantial rights are prejudiced, and not otherwise.'" Citing State v. Greene, 66 la. 11, 23 N. W. 154; State v. Hayes, 67 la. 27, 24 N. W. 575; State v. Bowman, 78 la. 519, 43 N. W. 302; People v. Tower (Sup.), 17 N. Y. Supp. 395; State v. Cassady, 12 Kan. 550; Hayden v. State, 55 Ark. 342, 18 S. W. 239; Allyn v. State, 21 Neb. 593, 33 N. W. 212; Territory v. Shipley, (Mont.), 2 Pac. 313; Max. Cr. Proc., 541; State v. VanHook, 88 Mo. 105. Decision of Trial Judge, When Reviewable Exception. The de- cision of the trial judge on the question of indifference of a juror for actual bias, is not reviewable in this court, except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies. 416 CODE OF CRIMINAL PROCEDURE. State v. Chapman et al, ;S. D. 414, 47 N. W. 411. Sec. 7439, Comp. Laws, gives no right to except to the decision of a judge on the facts, and we find no provision in the Code for a review of decisions on the trial, other than those to which an exception lies. Id. SECTION CONSTRUED EXCEPTION CONCERNING ANY SUB- STANTIAL RIGHT. 8263 Rev. Codes N. N. Nothing in this code contained is to be construed so as to deprive either party of the right of excepting to any action or decision of the court in a criminal action or proceeding, which affects any other material or substantial right of either party, whether before or after the trial, or on such trial. (Adopted through Rev. Com'rs ) Consult preceding section. BILL OF EXCEPTION, SIGNED AND SETTLED BY JUDGE FILING. 7440 Comp. Laws. A bill containing the exceptions must be settled and signed by the presiding judge, and filed with the clerk. (Sec. 413, C. Cr. Proc.) Levisee, p. 1335. Consult next section, and succeeding sections. See, as to settlement of bill of exceptions or statement, at time of rul- ing, in civil cases, sec. 5082, Comp. Laws, sec. 5465, Rev. Codes, N. D., p. 69, ante. SAME STATEMENT OF CASE. 8258 Rev. Codes N. D. Except as otherwise provided in this chapter, a statement con- taining the exceptions must be settled and certified by the judge who presided at the trial, and filed with the clerk of the district court of the county in which the action was tried. (Sec. 413, C. Cr. Proc., am'd Rev. Com'rs.) Levisee, p. 1335. Consult preceding section, and following sections. STATEMENT OF CASE DEFINED. 8256 Rev. Codes N. D. A statement of the case is a statement, in writing setting forth or showing particularly, one or more of the rulings, decisions or acts excepted to in an action or proceeding, together with the facts and circumstances of the ruling, decision or act and the exception thereto, and settled, certified and filed as provided in this article. (Adopted through Rev. Com'rs.) BILLS OF EXCEPTION STATEMENT OF CASE. 417 Consult next section; and for definition of statement in civil cases, see sec. 5464, Rev. Codes, N. D., p. 66, ante. SAME OFFICE OF. 8257 Rev. Codes N. D. The office of a statement of the case is to make such parts of the proceed- ings or of the evidence in an action, appear of record as other- wise would not so appear. (Adopted through Rev. Com'rs. ) Consult preceding section. MATTERS DEEMED EXCEPTED TO BY DEFENDANT. 8260 Rev. Codes N. D. The decision of the court in a criminal action or proceeding upon a matter of law is deemed excepted to by the defendant in the following cases: 1. In refusing to grant a motion for a change of the place of trial. 2. In refusing to postpone the trial on motion of the de- fendant. 3. In charging or instructing the jury upon the law, upon the trial of the issue, except as otherwise provided in section 8179 of this code. (Adopted through Rev. Com'rs.) Consult next section. CLERK TO ENTER ORDERS DEEMED EXCEPTED TO. 8261 Rev. Codes N. D. It shall be the duty of the clerk of the dis- trict court in which any criminal action or proceeding is pend- ing or tried, to enter carefully and correctly in the minutes of such court, each ruling or decision of the court, made in open court, upon any matter by section 8259 aud subdivisions 1 and 2 of section 8260 and of this article declared to be deemed ex- cepted to, and a certified copy of any or all such entries shall be and become a part of the record of said action. (Adopted through Rev. Com'rs.) Consult preceding section. BILL SETTLED AT TRIAL, UNLESS WHEN POINT SETTLED. 7441 Comp. Laws. The bill of exceptions must be settled at the trial, unless the court otherwise direct. If no such direc- tion be given, the point of the exception must be particularly stated in writing, and delivered to the court, and must imme- 27 TP 418 CODE OF CRIMINAL PROCEDURE. diately be corrected or added [to], until it is made conformable to the truth. (Sec. 414, C, Or. Proc.) Levisee, p. 1335. Consult next three sections. See, as to settlement of bills of exceptions in civil cases, chap. 7, pp. 63 to 77, ante. Vague Assignment of Error Must Be Specific. A general . and vague afesignment of an error will not be considered by this court. A party complaining of error must specify it with precision. It should be specific and explicit, so that by looking at the grounds stated the court can at once see how, when, and where the error arises, and whether it is well or ill taken. State v. Chapman et al, 1 S. D. 414, 47 N. W. 411. Assignment of Error, Without Specification. It seems, that assignments in a motion for a new trial jn a criminal case, that "the verdict is contrary to the evi- dence," and "the verdict is not sustained by the evidence," without specify- ing in what particulars the evidence is insufficient, are sufficiently definite to be considered. Territory v. Stone, 2 Dak. 155, 4 N. W. 697. PROCEEDINGS WITHOUT STENOGRAPHER, WHEN EXCEPTIONS SETTLED SETTLEMENT OF POINT. 8464 Rev/ Codes N. D. In all cases when the court is proceeding without a stenographer, the exceptions must be settled and certified, at the trial, unless the court otherwise directs. If the exceptions are settled at the trial, the point of the exception must be particularly stated in writing and delivered to the court, and must immediately be corrected or added to, until it is made conformable to the truth. The exceptions so settled and certified shall constitute a state- ment of the case. (Sec. 414, C. Cr. Proc., am'd Rev. Com'rs.) Levisee, p. 1335. Consult preceding section. NOT SETTLED AT TRIAL, WHEN SETTLED-NOTICE-PROCEDURE. 7442 Comp. Laws. If the bill of exceptions be not settled at the trial, it must be prepared and served within three days thereafter, on the state's attorney, who may, within three days thereafter, serve on the defendant or his counsel, amendments thereto. The defendant may then, within three days, serve the state's attorney with a notice to appear before the presid- ing judge of the court, at a specified time, not less than five nor more than ten days thereafter, to have the bill of excep- tions settled. (Sec. 415, C. Cr. Proc.) BILLS OF EXCEPTION STATEMENT OF CASE. 419 Levisee, p. 1335. Consult next two sections, and three preceding sections. See, as to settlement of bills of exception, and statements in civil cases, sec. 5083, Comp. Laws, sec. 5467, Rev. Codes, N. D., pp. 70-72 ante, and de- cisions thereunder; also sec. 5090, Comp. Laws, sec. 5474, Rev. Codes, N. D. pp. 175-178, ante, and decisions thereunder. See Territory v. Stone, 2 Dak. 155, 4 N. W. 697, cited under sec. 7446, Comp. Laws, infra. ^ SAME STATEMENT OF CASE EX-JUDGE MAY SE7TLE. 8265 Rev. Codes N. D. If the exceptions are not settled at the trial and in all cases when the testimony is taken down by an official stenographer, a statement of the case containing the ex- ceptions must be prepared and served within thirty days there- after, on the state's attorney or other person appointed to pros- ecute, who may within five days thereafter, serve on the de- fendant or his attorney, amendments thereto. The defendant may then, within five days, serve the state's attorney, or other person appointed to prosecute with a notice to appear before the judge who presided at the trial at a specified place and time, not less than five nor more than ten days thereafter, to have the statement of the case settled. At the place and time appointed, or as soon thereafter as the same can be done, the judge must settle the statement of the case, and certify the same to be correct, and thereupon the same must be filed with the clerk of the district court of the county in which the action was tried. The judge who presided at the trial may settle, and certify a statement of the case after as well as before he ceases to be such judge. (Sec. 415, C. Or. Proc., am'd sec. 5, chap. 21, laws 1887, Dak., am'd Rev. Com'rs. ) Levisee, p. 1335. Consult four preceding sections, and next two sections. And see, as to settlement of bills at.d statements by ex-judge, in civil cases, sec. 5086, Comp. Laws, sec. 5470, Rev. Codes N. D. p. 76, ante. JUDGE SETTLES AT APPOINTED TIME REFUSAL, APPLICA- TION TO SUPREME COURT PROCEDURE EFFECT OF SUCH SET- TLEMENT. 7443 Comp. Laws. At the time appointed the judge must settle and sign the bill of exceptions; provided, Tioiu- ever, if the judge in any case refuse to allow an exception in 420 CODE OF CRIMINAL PROCEDURE. accordance with the facts, the party desiring the bill settled, may apply by petition to the supreme court, to prove the same. The application may be made in the mode and manner and under such regulations as the court may prescribe, and the bill, when proven, must be certified by a justice thereof as cor- rect and filed with the clerk of the court in which the action was tried; and when so filed^it has the same force and effect as if settled by the judge who tried the cause. (Sec. 416, C. Cr. Proc., am'd sec. 1, chap. 20, laws 1885, Dak.) Levisee, p. 1336. Consult proceeding sections, and next three sections. For like application, in civil cases, see sec. 5085, Comp. Laws, sec. 5469, Rev. Codes, N. D., p. 75, ante. See Territory v. Stone. 2 Dak. 155, 4 N. W. 697, cited under sec. 7446, Comp. Laws, infra. SAME THIS SECTION GOVERNS WHERE NO OTHER PROVIS- ION APPLIES. 8266 Rev. Codes N. D. If the judge who pre- sided at the trial in any case refuses to allow an exception in accordance with the facts, or to settle or certify a statement of the case or has died or removed from the state, the party de- siring the statement settled may apply by petition to the su- preme court at any term thereof, or to any judge of said court in vacation, to settle and approve the same. The application may be made in the manner and under such regulations as the court may prescribe by order or in its rules, or as may be re- quired by the judge of said court to whom application is made. The statement of the case or any exception when allowed, must be certified by the chief justice of the court (if applica- tion is made to the court) or by the judge allowing the same, (when made to a judge), as correct, and filed with the clerk of the district court of the county in which the action is tried, and when so filed, it has the same force and effect as if settled by the judge who presided at the trial of the action. In all cases when there is no provision of law governing the allow- ance and settlement of statements or exceptions, the same shall be allowed, settled and certified as directed in this sec- tion. (Sec. 416, C. Cr. Proc., am'd sec 1, chap. 20, laws 1885, Dak., am'd Rev. Com'rs.) BILLS OF EXCEPTION STATEMENT OF CASE. 421 Levisee, p. 1336. Consult preceding sections, and next two sections. TIME MAY BE ENLARGED BY CONSENT, OR ORDER. 7444 Comp. Laws. The time for preparing the bill of exceptions, or the amendments thereto, or for settling the same, may be enlarged by the consent of the parties, or by the presiding judge. (Sec. 417, C. Cr. Proc.; SAME WHEN SUPREME COURT MAY EXTEND TIME. 8267 Rev. Codes N. D. The times for preparing the statement of the case, or the amendments thereto, or for settling and cer- tifying the same, may be extended before or other times fixed, after they have elapsed, by the agreement of the parties or by the judge who presided at the trial, or in the cases provided for in section 8266 of this code, by the supreme court, or by a judge thereof. (Sec. 417, C. Cr. Proc., am'd Rev. Com'rs. ) Levisee, p. 1336. Consult two preceding sections, and next section. As to extending time for settlement of bills and statements, in civil cases, see sec. 5093, Comp. Laws, sec. 5477, Rev. Codes, N. D., p. 185, ante, and decisions thereunder. WHEN EXCEPTIONS DEEMED ABANDONED WHEN DEEMED AGREED TO. 7445 Comp. Laws. If the bill of exceptions be not served within the time prescribed in section 7442, or with-, in the enlarged time therefor, as prescribed in the last section, the exceptions are deemed abandoned. If it be served and the parties omit, within the time limited by section 7442, the one to prepare amendments, and the other to give notice of appear- ance before the judge, they are respectively deemed, the one to have agreed to the bill of exceptions, the other to the amend- ments. (Sec. 418, C. Cr. Proc.) Levisee, p. 1336. WHAT BILL MUST CONTAIN STRIKING OUT MATTER. 7446 Comp. Laws. The bill of exceptions must contain so much of the evidence only as is necessary to present the questions of law upon which the exceptions were taken, and the judge must, upon the settlement of the bill, whether agreed to by the parties or not, strike out all other matters contained there- in. (Sec. 419, C. Cr. Proc.) 422 CODE OF CRIMINAL PROCEDURE. Levisee, p. 1336. Consult next section. For the corresponding section, in civil cases, see, sees. 5181, 5083, Comp. Laws, sec. 5467, Rev. Codes, N. D., pp. 66, 70-71, ante. SAME STATEMENT OF CASE.- 8268 Rev. Codes N. D. The statement of the case must contain so much of the evi- dence only as is necessary to present the questions of law upon which the exceptions were taken, and the judge must upon the settlement of the statement, whether agreed to by the parties or not, strike out all other matters therein. No particular form of exception is required, but the objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more; only the substance of the stenog- rapher's notes of the evidence shall be stated; documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made. (Sec. 419, C. Or. Proc., am'd Rev. Com'rs.) Levisee, p. 1336. Consult preceding section. See, corresponding section, in civil cases, sec. 5081, Comp. Laws, sec. 5467, Rev. Codes, N. D., pp. 66-71, supra. Record Certificate Showing Substance of Evidence. A certificate of the judge that the record contains, in substance, all the evidence given upon the trial, is sufficient to authorize the court to review the evidence. Territory v. Stone, 2 Dak. 155, 4 N. W. 697; People v. York, 9 Cal. 421; People v. Getty, 49 Cal. 581; People v. Fisher, 51 Cal. 321. Insufficiency of Evidence Record Must Contain All Evidence. A verdict of conviction will not be set aside on the ground that the evidence does not support it when the bill of exceptions only purports to set out part of the evidence. In the absence of an averment that the bill of exceptions contains all the evidence offered in the case, the appellate court will in- dulge any reasonable presumption that other evidence was introduced to support the verdict. State v. Brennan, 2 S. D. 384, 50 N. W. 625. FILING OF BILL, AND WHEN. 7447 Comp. Laws. The bill of exceptions must be filed with the clerk of the court at the time of, or before taking the writ of error. (Sec. 420, C. Cr. Proc.) Levisee, p. 1336. Consult sec. 7440, Comp. Laws; sec. 8269, Rev. Codes, supra. BILLS OF EXCEPTION STATEMENT OF CASE. 42$ WHAT DECISIONS MAY BE EXCEPTED TO. 7448 Comp. Laws. Exceptions may be taken by either party to a decision of the court or judge upon a matter of law: 1. In granting or refusing a motion in arrest of judg- ment. 2. In granting or refusing a motion for a new trial (Sec. 421, C. Or. Proc.) Levisee, p. 1336. Consult section 7439, Comp. Laws, sec. 8262, Rev. Codes, N. D. supra, and decisions thereunder; and next section. MATTERS DEEMED EXCEPTED TO BY EITHER PARTY. 8259 Rev. Codes N. D. The decision of the court, in a criminal ac- tion or proceeding upon a matter of law is deemed excepted to by either party in the following cases: 1. In granting or refusing a motion to set aside an infor- mation or indictment. 2. In allowing or disallowing a demurrer to an informa- tion or indictment. 3. In granting or refusing a motion in arrest of judg- ment. 4. In granting or refusing a motion for a new trial. 5. In making or refusing to make an order after judg- ment affecting any substantial right of the parties. (Adopted through Rev. Com'rs. ) Consult preceding section. See, for corresponding section, in civil cases, sec. 5080. Comp Laws, sec. 5463, Rev. Codes, N. D. p. 64, ante. Exception to Decision on Matter of Law Additional to Common Law Bight. By sec. 421, C. Cr. Proc., exceptions are allowed to a decis- ion of the court or judge- upon a matter of law, in refusing a motion for a new trial; which is a step in addition to the common law right. Territory v. Stone, 2 Dak. 155, 4 N. W. 697. INSTRUCTIONS, WHAT DEEMED EXCEPTED TO INSTRUCTIONS AND STATEMENT PART OF RECORD ERROR ON RECORD. 8269 Rev. Codes N. D . The instructions requested by the defend- ant and refused, or by the prosecutor and given, and all the instructions given to the jury, by the court in writing, or or- ally and written out by the stenographer of the court and filed 424 CODE OF CRIMINAL PROCEDURE. with the clerk, except as otherwise provided in section 8179 of this code, are deemed excepted to, and need not be embodied in the statement of the case, but the same and each of them with the indorsements, if any, showing the action of the court thereon, form a part of the record of the action. The decision of the court upon any matters of law in this article declared to be deemed excepted to, need not be embodied in any statement of the case, and forms a part of the record of the action. Any statement of the case or exception, settled, certified and filed as provided in this article also forms a part of the record of the action. Any error committed by the court in or by any decis- ion, ruling, instruction or other act and appearing in the record of the action may be taken advantage of upon a motion for a new trial or in the supreme court on an appeal. (Adopted through Rev. Com'rs.) CHAPTER XXXIII. CHAP. 6, TITLE 8, CODE CRIMINAL PROCEDURE, S. D. ART. 2, CHAP. 11, CODE CRIMINAL PROCEDURE, N. D. NEW TRIALS. NEW TRIAL DEFINED EFFECT OF GRANTING EVIDENCE ANEW FORMER VERDICT NO BAR. 7449 Comp. Laws; 8270 Rev. Codes N. D. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment. (Sec. 422, C. Cr. Proc.) [Sec. 8270, Rev. Codes, N. D., is the same, except that the words "in- formation or" precede the word "indictment."] Levisee, p. 1336-7. NEW TRIALS. 425 Consult next two sections. In connection with this chapter, consult generally, as to instructions in criminal cases, sec. 7370, Com p. Laws, sees. 8175 to 8179, Rev. Codes, N. D., chap. 29, pp. 371-381, ante, and the various sub-heads under the general subjects of instructions, witnesses, evidence, rulings of trial court, errors, etc., there found; as to errors, etc., relative to challenges of jurors, etc. chap. 28, pp. 359-371, ante; as to formation of trial jury, chap. 27, pp. 353- 358, ante; and as to mode of trial, chap. 26, pp. 351-353, ante. Once in Jeopardy, When Plea Not Good Reversal on Erroneous Charge. Where defendant in a criminal action is convicted of the crime charged, and subsequently, on writ of error sued out by himself, procures in this court a reversal of the judgment of conviction, for errors in the charge of the trial court to the jury, he is not entitled to be discharged on the ground that he has once been put in jeopardy. State v. Reddington, .... S. D 66 N. W. 464; Whar. Cr. PI. & Pr. (9th Ed.) 510; Morris- ette v. State, 77 Ala. 71; Kendall v. State, 65 Ala. 442; Cooley, Const. Lim. 400; McGinn v. State (Neb.) 65 N. W. 46; Bohanan v. State, 18 Neb. 57, 24 N. W. 390; Sutcliffe v. State, 18 Ohio, 469; State v. Sommers (Minn.), 61 N. W. 907. On a reversal of the judgment in such case, it is proper for this court to order a new trial in the court below. State v. Serenson, .... S. D. ....,64 N. W. 130. See, concerning the plea of auterfois acquit, the record, etc., the charge of Bennett, Judge, to the jury, in People v. Wintermute, 1 Dak. 60 (102). POWER TO GRANT NEW TRIAL, IN WHAT CASES PROCEDURE ON NEWLY DISCOVE RRD EVIDENCE. 7450 Comp. Laws. The court in which a trial has been had upon an issue of fact, has power to grant a new trial, when a verdict has been rendered against the defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: 1. When the trial has been had in his absence, if the in- dictment is for felony. 2. When the jury has received any evidence out of court other than that resulting from a view of the premises. 3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due considera- tion of the case has been prevented. 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors. 426 CODE OF CRIMINAL PROCEDURE. 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial. 6. When the verdict is contrary to the law or evidence. 7. When new evidence is discovered material to the de fendant, and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evi- dence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defend- ant to produce such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable. (Sec. 423; C. Cr. Proc., am'd sec. 1, chap. 115, laws 1885, Dak.) SAME EXAMINATION OF AFFIANTS ON MOTION, WHEN. 8271 Rev. Codes N. D. When a verdict has been rendered against the defendant, the court in which the trial was had, may upon his application, grant a new trial in the following cases, only: 1. When the trial has been had in his absence, if the in- formation or indictment is for a felony. 3. When the jury has received out of court any evidence other than that resulting from a view of the premises, or any communication, document or paper referring to the case. 3. When the jury have separated without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct by which a fair and due consid- eration of the case has been prevented. 4. When the verdict has been decided by lot, or by any other means than a fair expression of opinion on the part of all the jurors. 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial or has done or allowed any act in the action prejudicial to the substantial rights of the de- fendant. NEW TRIALS. 427 6. When the verdict is contrary to law or clearly against the evidence. 7. When new evidence is discovered material to the de- fense, and which the defendant could not, with reasonable dili- gence, have discovered and produced at the trial. When the application for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the persons by whom such evidence is expected to be given; and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable. But the court may, when the affiants are residents of this state, compel their personal attendance before it; and they may be examined and cross-examined under oath, touching the matters set forth in their affidavits. (Sec. 423, C. .Cr. Proc., am'd sec. 1, chap. 115, laws 1885, Dak., am'd Rev. Com'rs. ) Levisee, p. 1337. Consult preceding section. See, as to grounds of new trial, in civil cases, sec. 5088, Com p. Laws, 'sec. 5471, Rev. Codes, N. D., pp. 77-8, ante, and decisions thereunder; sec. 5089, Comp. Laws, sec. 5473, Rev. Codes, N. D., p. 174, ante. Injury Must Appear Excluded Evidence Grade of Offense. It must appear that the improper exclusion of evidence may have injured de- fendant; and when the evidence excluded only tends to reduce the grade of the offense to that of which defendant was convicted, this court will not re- verse. Territory v. Gay, 2 Dak. 125, 2 N. W. 477. Impeachment of Ver- dict Not by Juror. A verdict cannot be impeached by the affidavits of the jurors. Territory v. King, 6 Dak. 131, 50 tf. W. 623; People v. Carnal, 1 Park. 256; Wilson v. People, 4 Id. 619; People v. Hartung, 17 How. Pr. 87; Dalrymple v. Williams, 63 N. Y. 63; People v. Baker, 1 Cal. 406; Peo- ple v. Doyell, Id. 85; State v. Underwood, 57 Mo. 40; Woodward v. Leavitt, 107 Mass. 453; Territory v. Taylor, 1 Dak. 479. Same Substantial Rights. See, relative to impeachment of the ver- dict, for misconduct of the jury, by affidavits of the jurors, and the showing necessary to make out a case of prejudice to the substantial rights of the de- fendant, for the purpose of granting a new trial, the nisi prius opinion of Shannon, J., in Territory v. Taylor, published in 1 Dak. 459 (Appen- dix.) 428 CODE OF CRIMINAL PROCEDURE. Separation of Jury, Misconduct, Etc. Consult, upon the subject of separation and other misconduct of the jury, State v. Church, S. D. . . . ., 60 N. W. 1-13, and State v. Church .... S. D ,64 N. W. 152, cited under sec. 7406, Com p. Laws, sec. 8218, Rev. Codes, N. D. chapter 29, ante. Election, as Between Counts of Indictment. When the evidence showed more than one sale of whiskey by defendant to persons named in the indictment within one year prior to finding of the indictment, and when the witness could not fix the date of any particular sale, it was not error to re- fuse to require the prosecution to elect upon which specific sale it relied for conviction. State v. Kerr, 3 N. D. 523, 58 N. W. 27; State v. Smith, 22 Vt. 74; State v. Crimmins, 31 Kas. 376, 2 Pac. 574. Remarks of Counsel Matter in Court's Discretion. Control of re- marks of counsel for the state upon the trial is matter of discretion of the trial court, and the failure to strike out such remarks, or caution the jury against them, is not such abuse of discretion as constitutes error, where the remarks are not such as would be likely to prejudice accused. State v. Mc- Gahey, 3 N. D. 293, 55 N. W. 753. Cross-Examination Showing Prejudicial Relations to Defendant. The state has the right on cross-examination, to show the nature of rela- tions existing between witness and accused, so far as they would create a bias on part of witness that might reasonably be supposed to affect his tes- timony, and this rule cannot be changed by the fact that these relations may be such as to prejudice accused before the jury. State v. McGahey, 3 N. D. 293, 55 N. W. 753; 1 Greenl. Ev. 450, note; Cameron v. Montgomery, 13 Serg. & R. 123; Batdorff v. Bank, 61 Pa. St. 179; State v. Bacon, 13 Ore. 143, 9 Pac. 393. Re-Direct Examination, Repelling Prejudicial Infer- ences. It is proper, upon re-direct examination of a witness in a criminal case to permit him to state facts and circumstances tending to correct or re- pel any wrong impressions or inferences that arise from matters drawn out on cross-examination, and this rule is not changed because such facts and circumstances may be of such a character as to prejudice the defendant in the minds of the jury. State v. McGahey, 3 N. D. 293, 55 N. W. 753; Schas- er v. State, 36 Wis. 429; State v. Hopkins, 50 Vt. 316; People v. Smallman, 55 Cal. 185. Rebuttal of Proofs of Practices Affecting Witness' Credibility Im- proper When Collateral. Contradictory rebuttal testimony, to meet state- ments made on cross-examination tending to elicit proof that witness had been guilty of practices that would affect his credit, is improper, where such matters are collateral to the issue. State v. McGahey, 3 N. D. 293, 55 N. W. 753; 1 Greenl. Ev., sec. 449, and cases cited. Witness Volunteering Statements, When Considered Withdrawn From Jury. Incompetent and irresponsive matter, volunteered by a witness, and which is striken out NEW TRIALS. 429 on motion, is practically withdrawn from the iury, and no further caution to the jury to disregard it is necessary. State v. McGahey, 3 N. D. 293, 55 N. W. 753; Thomp. TV., sees. 715-723. Ruling On Evidence, When Not Reversible Error. An error of the court in ruling upon the admission of evidence that conclusively appears to have been innoxious, and could have worked no prejudice to the party ob- jecting, is no ground for reversal. State v. McGahey, 3 N. D. 293, 55 N. W. 753. All Eye-WitnessesUnnecessary for State to Swear Them, When. No duty rests upon the prosecution to produce and swear for the state all eye-witnesses to the transaction, where the testimony of those called is di- rect and positive, and apparently covers the whole transaction. State v. McGahey, 3 N. D. 293, 55 N. W. 753; People v. Deitz, 86 Mich. 419, 49 N. W. 296; People v. Gordon, 40 Mich. 716; People v. Etter, 81 Mich. 570, 45 N. W. 1109. "Reasonable Doubt." Instruction Upon, Approved. For the pur- pose of elucidating, and with a desire to render more intelligible, the phrase, "reasonable doubt," the court instructed the jury as follows: "You are further instructed that the reasonable doubt which entitles an accused to an acquittal is a doubt of guilt reasonably arising from all the evidence in the case. The proof is deemed to be beyond reasonable doubt when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction, on which they would act without hesitation, in their own most important concerns or affairs of life. In otner words, in a legal sense, a reasonable doubt is a doubt which has some reason for its basis. It coes not mean a doubt from mere caprice or groundless conjecture. A reasonable doubt is such a doubt as the jury are able to give a reason for." Held, not reversible error. State v. Serensen, . ...S. D ,64 N. W. 130; State v. Morey, (Or.) 36 Pac. 573; Starkie on Ev. (9th Am. Ed.) 865; Abb. Cr. Brief, 487; People v. Guidici, 100 N. Y. 503, 3 N. E. 493; 2 Thomp. Tr. 1832, and cases cited. Instruction Refused, Though Good, But Covered by Gen- eral Charge. It is not error to refuse an instruction requested that cor- rectly states the law, and is applicable to the case, when the general charge specifically and fully covers the same points. State v. McGahey, 3 N. D. 293. 55 N. W. 753: Elliott, App. Proc., sec. 706, and cases in note; Thorn. Tr., sec. 2352, and cases in note. See, as to trial in absence of defendant, sec. 7321, Comp. Laws, sec. 8125, Rev. Codes, N. D. p. 352, ante, and decisions thereunder; sec. 7418, Comp. Laws, sec. 8231, Rev. Codes, chap. 31, ante. See, as to new trials in civil cases, chap 8, pp. 77, et seq. ante; and as to newly discovered evidence as ground for new trial, in civil cases, see pp. 78, 84-5, ante. APPLICATION FOR, WHEN MADE-SAME, NEWLY DISCOVERED EVIDENCE. 7451 Comp. Laws. The application for a new 430 CODE OF CRIMINAL PROCEDURE. trial must be made before judgment, but the court or judge thereof may upon good cause shown, allow such application to be made at any time within thirty days after the entry of such judgment. And motions for a new trial on the ground of new- ly discovered ' evidence, may be made after judgment at the term in which the cause is tried, or during vacation before the court or judge thereof, at any time before the next succeeding term or at such term. (Sec. 2, chap. 115, laws 1885, Dak.) 'Sec. 424, C. Cr. Proc.; Levisee, p. 1337. Consult next three sections. SAME WHEN MADE ON CERTAIN SPECIFIED GROUNDS. 8272 Rev. Codes N. D. The application for a new trial must be made upon not less than one nor more than five days' written notice, and if based upon any of the grounds mentioned in sub- divisions 2, 3, 4 and 7, of the last section, such written notice must be served and filed within thirty days after the discovery of the facts upon which the party relies in support of his ap- plication; and in all other cases the notice must be served and filed within ten days after the rendition of the verdict, or with- in such further or other time as the court may allow or fix. (Sec. 2, chap. 115, laws 1885, Dak., am'd Rev. Com'rs.) Sec. 424, C. Cr. Proc.; Levisee, p. 1337. Consult preceding section, and following sections. SAME WHEN MADE ON OTHER SPECIFIED GROUNDS STAY OF PROCEEDINGS SETTLEMENT OF STATEMENT, ERRORS SPECI- FIED. -8273 Rev. Codes N.' D. The application for a new trial, if made for any of the causes mentioned in subdivisions 1, 2, 3, 4 and 7, of section 8271 must be based upon affidavits which must be filed before the notice is served; in all other cases the application may be made upon the minutes of the court or upon the record of the action and the notice must des- ignate generally the grounds upon which the motion will be made as near as may be in the language of section 8271. When the application is made upon the minutes of the court, the notice must specify particularly the errors relied upon and upon the hearing reference may be had to any and ail papers on file in the action, the clerk's minutes and the stenographer's WRIT OF ERROR APPEALS. 431 notes of the testimony. The application must be heard on the day specified in the notice, or as soon as practicable thereafter. In all cases when the notice is served before judgment, the court may in its discretion, stay all further proceedings in the action until such application is disposed of. When the appli- cation is made upon the minutes of the court and a statement of the case becomes necessary, the draft thereof, and amend- ments thereto may be proposed and served and the statement settled, certified and filed in the manner and times and after the notices in this article specified. If a review of the decision upon such application is sought on appeal, the errors specified in the notice must be embodied in the statement as settled and certified. (Sec. 2, chap. 115, laws 1885, Dak., am'd Rev. Com'rs.) Sec. 424, C. Or. Proc., Levisee, p. 1337. Consult three preceding sections, and next section. MUST BE MADE WITHIN TIME FOR APPEAL DEATH SENTENCE, APPLICATION WHEN. 8274 Rev. Codes N. D. The applica- tion for a new trial, except in case of a sentence of death, must be made before the time for anappeal has elapsed. In case of a sentence of death, the application may be made at any time be- fore the execution. (Sec. 2, chap. 115, laws 1885, Dak. am'd Rev. Com'rs.) Sec. 424, C. Cr. Proc., Levisee, p. 1337. Consult preceding sections. CHAPTER XXXIV. CHAP. 1, TITLE 10, CODE CRIMINAL PROCEDURE, S. D. ART. 1, CHAP. 13, CODE CRIMINAL PROCEDURE, N. D. WHIT OF ERROR APPEALS. WRIT OF ERROR WHO MAY SUE OUT, TO REVIEW WHAT. 7499 Comp. Laws. Either party may sue out a writ of error to remove to the supreme court, and therein to re-examine and 432 CODE OF CRIMINAL PROCEDURE. review the record and bills of exception in a criminal action, upon matters of law decided in the circuit courts, in manner as prescribed in this chapter. (Sec. 472, C. Or. Proc. ) Levisee, p. 1345. Consult next three sections; sec. 7502. Comp. Laws, sec. 8328, Rev. Codes, infra. SAME APPEAL 8325 Rev. Codes N. D. Either the de- fendant or'the state may take an appeal as provided in this ar- ticle. (Adopted through Rev. Com'rs. ) Consult next section. . APPEAL BY DEFENDANT, FROM ANY JUDGMENT. 8326 Rev. Codes N. D. An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him. (Adopted through Rev. Com'rs.) Consult preceding section. Writs of Error, Under the Statutes, When Allowed. Under our statutes (sees. 7499, 7500, 7502, Comp. Laws,) writs of error are used to re- move to this court for examination and review the record in all criminal ac- tions, and they are allowed in all criminal cases from the final decisions of inferior courts. Criminal contempt proceedings are properly brought to to this court by writ of error. State v. Knight et al, 3 S. D. 509, 54*N. W. 412; Ex parte Rowe, 7 Cal. 175; Ex parte Langdon, 25 Vt. 680; Winkelman v. People, 50 111. 449; Butler v. People, 2 Colo. 295; Storey v. People, 79 111. 45; Myers v. State, (Ohio Sup.) 22 N. E. 43; Wyatt v. People (Colo. Supt.) 28 Pac. 961. Judgment in Contempt Reviewable by Writ of Error What For Review. A judgment imposing a fine and imprisonment for contempt of court under sec. 13, chap. 110, laws 1890, is reviewable by writ of error, and upon such review this court will consider (1) whether or not the alleged act of contempt was in law a contempt of court; (2) whether or not there is any evidence tending to establish the commission of the act; and (3) whether or not the court had jurisdiction to pronounce the judgment. State v. Marku- son N. D , 64 N. W. 934; State v. Davis, 2 N. D. 461, 51 N. W. 942; Gandy v. State, 13 Neb. 445, 14 N. W. 143; In re Smith, 117 111. 63, 7 N. E. 683; Cooper v. People, 13 Colo. 337, 22 Pac. 790; State v. Knight et al, 3 S. D, 509, 54 N. W. 412. Same Rule of Reversal. While an appellate court has jurisdiction to review an order punishing for criminal contempt, so far as to determine whether the lower court had jurisdiction, or whether the words charged constitute criminal contempt, yet the decision of the court making it is not to be lightly reviewed. Its judgment should not be reversed unless it is ap- WRIT OF ERKOR APPEALS. 433 parent that no contempt has been committed, or that the court exercised its authority in a capricious, oppressive, or arbitrary manner. State v. Knight et al, 3 S. D. 509, 54 N. W. 412; Ex parte Reed, 100 U. S. 13-23; Haynes, New Tr. and App., sec. 198; 2 Bish. Cr. Law, sec. 268; Vilas v. Burton, 27 Vt. 56; People v. Kelly, 24 N. Y. 74; Phillips v. Welch, 11 Ne'v. 188; State v. Galloway, 5 Cold. 337; Ex parte Perkins, 18 Cal. 60; People v. O'Neil, 47 Cal. 109; Roe v. Superior Court, 60 Cal. 93; Romeyn v. Caplis, 17 Mich. 455. Same Motion to Dismiss Writ Denied. In State v. Sweet- land, 3 S. D. 503, 54 N. W. 415, a motion was made to dismiss the writ of error upon the ground that a judgment for a contempt cannot be brought to this court for review by such writ; which motion was overruled, upon the authority of State v. Knight et al, 3 S. D. 509, 54 N. W. 412. FROM WHAT DECISIONS ALLOWED PETITION FOR. 7500 Comp. Laws. Writs of error shall be allowed in all cases from the final decisions of said circuit courts, to the supreme court, under such regulations as are herein or may be prescribed by law. The party seeking the writ must apply to the judge, or to a justice of the supreme court, by petition, verified by affi- davit, setting forth clearly and succinctly the chief matters of error complained of. (Sec. 473, C. Cr. Proc. ) Levisee, p. 1345. Consult preceding sections. Procedure in Error Illegal Sentence Directing Judgment Below. In Territory v. Conrad, 1 Dak. 348, 46 N. W. 605, the court makes the fol- lowing recital concerning the bringing of the case into the supreme court on writ of error, after reciting the sentence and the exception of the defend- ant thereto: "And thereupon a writ of error was allowed and a certificate of probable cause therefor given by the court below, in pursuance of ^ecs. 473 and 479 of the Code of Grim. Proc. The certificate was filed, and exe- cution of the judgment was stayed, and the defendant is detained to abide the judgment of the supreme court according to sec. 480, Id." It was held in that case, that where the only error complained of is the illegality of the sentence, the supreme court has the power to affirm the conviction, modify the judgment, and remit the case to the court below that the proper judg- ment may be there imposed. PLAINTIFF IN ERROR, WHO IS TITLE OF ACTION. 7501 Comp. Laws. The party suing out the writ is known as the plaintiff in error, and the adverse party as the defendant in er- ror, but the title of the action is not changed in consequence of the writ. (Sec. 474, C. Cr. Proc.) 28 TP 434 CODE OF CRIMINAL PROCEDURE. Levisee, p. 1345. Consult two preceding sections. SAME,' ON APPEAL. 8327 Rev. Codes N. D. The party appealing is known as the appellant and the adverse party as the respondent; but the title of the action is not changed in consequence of the appeal. (Sec. 474, C. Cr. Proc., am'd Rev. Com'rs. ) Levisee, p. 1345. Consult State v. Knight et al, 3 S. D. 509, 54 N. W. 412; State v. Markuson, N. D , 64 N. W. 934; State v. Sweetland, 3 S. D. 503, 54 N. W. 415, cited under sec. 7499, Comp. Laws, sec. 8325, Rev. Codes supra. DEFENDANT MAY SUE OUT WRIT, IN WHAT CASES. 7502 Comp. Laws. The writ may be sued out by the defendant: 1. From a final judgment of conviction. 2. From an order refusing a motion in arrest of judg- ment. 3. From an order refusing a motion for a new trial. 4. Upon bills of exception for any of the causes mentioned in section 7439 of this code. (Sec. 475, C. Cr. Proc. ) Levisee. p. 1345. Consult sec. 7500, Comp. Laws, sec. 8326, Rev. Codes, supra. SAME, ON APPEAL 8328 Rev. Codes N. D. An appeal may be taken by the defendant: 1. From a final judgment of conviction. 2. From an order refusing a motion in arrest of judg- ment. 3. From an order denying a motion for a new trial. 4. From an order made after judgment affecting any sub- stantial right of the party. (Sec. 475, C. Cr, Proc., am'd Rev. Com'rs. ) Levisee, p. 1345. STATE MAY SUE OUT WRIT IN WHAT CASES. 7503 Comp. Laws. The writ may be sued out by the state: 1. From a judgment for the defendant on a demurrer to the indictment. 2. From an order arresting the judgment. 3. From an order granting a new trial. (Sec. 476, C. Cr. Proc. ) WRIT OF ERROR APPEALS. 435 Levisee, p. 1346. Consult preceding section, sec. 7500, Comp. Laws, sec. 8326, Rev. Codes, supra. SAME, ON APPEAL 8329 Rev. Cddes N. D. An appeal may be taken by the state: 1. Prom a judgment for the defendant on a demurrer to the information or indictment. 2. From an order granting a new trial. 3. From an order arresting judgment. 4. From an order made after judgment, affecting any sub- stantial right of the state. 5. From an order of the court directing the jury to find for the defendant. (Sec. 476, C. Or. Proc., am'd Rev. Com'rs.) Levisee, p. 1346. TIME WITHIN WHICH WRIT SUED OUT. 7504 Comp. Laws. The writ must be sued out within one year after the rendition of the judgment, and within sixty days after an order is made. (Sec. 477. C. Or. Proc. ) Levisee, p. 1346. SAME, AS TO APPEAL. 8330 Rev. Codes N. D. An ap- peal from a judgment may be taken within one year after its rendition, and from an order within sixty days after it is made. (Sec. 477, C. Cr. Proc., am'd Rev. Com'rs.) APPEAL, HOW TAKEN SERVICE AND FILING OF NOTICE OF. 8331 Rev. Codes N. D. An appeal is taken by the party tak- ing it or the attorney of such party, serving upon the adverse party, or the attorney of the adverse party who acted as an at- torney of record in the district court at the trial, or at the time the order was made or judgment rendered, a copy of the notice of appeal, and by filing the original thereof, with the clerk of the district court of the county in which the order or judgment appealed from is made, entered or filed. (Adopted through Rev. Com'rs.) See, as to service of notice of appeal in civil cases, sec. 5212, Comp. Laws. sec. 5606, Rev. Codes, N. D., p. 204, ante. Consult next section. 436 CODE OF CRIMINAL PROCEDURE. SERVICE OF NOTICE BY PUBLICATION, WHEN EFFECT OF. 8332 Rev. Codes N. D. If personal service cannot be made, the judge of the district court in which the action is pending or was tried, upon proof thereof, may make an order for pub- lication of the notice in some newspaper, for a period not ex- ceeding thirty days. Such publication is equivalent to person- al service. (Adopted through Rev. Com'rs.) Consult preceding section. WHEN APPEAL DEEMED TAKEN. 8333 Rev. Codes N. D. The appeal is deemed to be taken when notice thereof as as required by sections 8331 or 8332 is filed in the office of the clerk of the district court of the county in which the order or judgment appealed from is made, entered or filed, with evi- dence of the service or publication thereof endorsed thereon or attached thereto. (Adopted through Rev. Com'rs.) Consult two preceding sections. EXECUTION, NOT AFFECTED BY WRIT, WHEN. 7505 Comp. Laws. A writ sued out by the state, in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed. (Sec. 478, C. Cr. Proc. ) Levisee, p. 1346. Consult next two sections. SAME, AS TO APPEAL 8334 Rev. Codes N. D. An ap- peal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant until the judgment is reversed. (Adopted through Rev. Com'rs.) Consult next two sections. WRIT STAYS EXECUTION IN CAPITAL CASES, CERTIFICATE OF PROBABLE CAUSE. 7506 Comp. Laws. A writ of error from the supreme court to remove and re-examine or review a judg- ment of conviction, stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judges of such court, or of a justice of the supreme court, that in his opinion there is probable cause for the writ, but not otherwise. (Sec. 479, C. Cr. Proc.) Levisee, p. 1346. WRIT OF ERROR APPEALS. 437 Consult two preceding sections. See, Territory v. Conrad, 1 Dak. 348, 46 N. W. 605, cited under sec. 7500, Com p. Laws, supra. SAME, AS TO APPEAL 8335 Rev. Codes N. D. An appeal to the supreme court from a judgment of conviction, stays the execution of the judgment in all capital cases, and in all other cases upon filing with the clerk of the district court of the county in which the conviction was had, a certificate of the judge who presided at the trial, or of a judge of the supreme court, that in his opinion there is probable cause for the appeal, but not otherwise, except as hereinafter provided. (Sec. 479, C. Or. Proc., am'd Rev. Com'rs. ) Consult sec. 8334, Rev. Codes, supra. CUSTODY OF DEFENDANT BY SHERIFF, ON SERVICE OF CER- TIFICATE. 7507 Comp. Laws. If the certificate provided for in the preceding section is filed, the sheriff must, if the defend- ant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judg- ment, and detain him to abide the judgment of the supreme court. (Sec. 480, C. Or. Proc.) Levisee, p. 1346. Consult two preceding sections, and next section. [Sec. 8336. Rev. Codes, N. D. is the same, except that the word "last" is substituted for the word "preceding" and the concluding words "of the supreme court" are substituted by the words "on the appeal." (As am'd Rev. Com'rs. )} FURTHER EXECUTION OF JUDGMENT SUSPENDED WHEN, WHERE JUDGMENT COMMENCED. 7508 Comp. Laws; 8337 Rev. Codes N. D. If, before the granting of the cer- tificate, the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such cer- tificate the defendant must be restored, by the officer in whose custody he is, to his original custody. (Sec. 481, C. Cr. Proc.) Levisee, p. 1346. Consult sees. 7505 to 7507, Comp. Laws, supra. [Sec. 8337, Rev. Codes, N. D., is the same, except that before the word "judgment" the words "execution of the" are inserted, and the additional 438 CODE OF CRIMINAL PROCEDURE. words, il upon the sheriff of the county in which such judgment was en- tered," immediately follow the word ''certificate." (As am'd Rev. Com'rs.)] CLERK TO SEND UP TRANSCRIPT, IN WHAT TIME- RECORD ANNEXED ASSIGNMENT OF ERRORS. 7509 Comp. Laws. Upon the writ of error being sued out, the clerk of the court upon whom it is served, must, within ten days thereafter or within such reasonable time as may be allowed to him, transmit to the clerk of the supreme court the writ with his return thereon, to which shall be annexed and returned an authenticated copy of the record of this action as mentioned in section 7473, and of all bills of exception, together with an assignment of errors and prayer for reversal. (Sec. 482, C. Cr. Proc. ) SAME, ON APPEAL NO CHARGE BV CLERKS SUPREME CLERK FILES. 8338 Rev. Codes N. D. Upon the appeal being taken, it shall be the duty of the clerk of the district court with whom the notice of appeal is filed, without charge and without unnecessary delay, to make out a full and perfect transcript of all the papers in the case on file in his office, ex- cept the papers returned by the committing magistrate on the preliminary examination when there has been one, and of all the entries made in his minutes, and certify the same under his hand and the seal of the court, and transmit the same to the clerk of the supreme court, and upon receipt thereof, the clerk of the supreme court must file the same and perform the same services as in civil cases without charge. (Sec. 482, C. Cr. Proc., am'd Rev. Com'rs. ) Levisee, p. 1346. Consult next three sections. As to clerk's transcript, see Supreme Court Rule 7, S. D., Rule 8, N. D., chap. 38, Post. As to assignments of error, see Court Rules 11, 12, S. D., Rules 8, 15, N. D., same chapter. A* to further return by clerk, see Rule 37, N. D., chap. 38, Post. Transcript on Writ This Section Foundation of Court Rule. In St. Croix Lum. Co. v. Pennington, 2 Dak. 467 (481-2), 11 N. W. 497 (504), Shannon, J., in commenting upon the proper mode of bringing a transcript into the supreme court, and the then rule of court governing the same, observes: "The idea of the rule was, no doubt, formed from sec. 483 of the Code of Crim. Proc., which requires a certificate similar in character, WRIT OF ERROR APPEALS. 439 in addition to the return of the record proper and the bill of exceptions. (Code of Grim. Proc., sections 446 and 482)." CERTIFICATE OF JUDGE OR JUSTICE, CONTENTS OF. 7510 Comp. Laws. The return must also embrace a certificate of the judge or of a justice of the supreme court that the record contains in itself all the bills of exception and a true copy of all the evidence bearing upon or necessarily relating to any bill of exception. (Sec. 484, C. Or. Proc.) Levisee, p. 1347. Consult two preceding sections. As to judge's certificate, see Supreme Court Rule, 7 S. D., Rule 12, N. D. chap. 38, Post. See St. Croix Lum. Co. v. Pennington, 2 Dak. 467, 11 N. W. 497, cited under last section. Certificate to Record. Substance of Evidence. A certificate of the judge that the record contains, in substance, all the evidence given on the trial, is sufficient to authorize the court to review the evidence. Territory v. Stone, 2 Dak. 155, 4 N. W. 697; People v. York, 9 Gal. 421; People v. Get- ty, 49 Gal. 581; People v. Fisher, 51 Cal. 321. BILLS OF EXCEPTION GENERAL EXCEPTIONS DISALLOWED PARTICULAR MATTERS STATED. 7511 Comp. Laws. The judges of the circuit courts shall not allow any bills of excep- tion which shall contain the charge of the court at large to the jury, upon any general exception to the whole of such charge, but the party excepting shall be required to state dis- tinctly the several and particular matters of law in such charge to which he excepts, and such matters of law, and those only, shall be inserted in the bills of exception, and allowed by the court. (Sec. 484, C. Or. Prcc.) Levisee, p. 1347. CITATION, CLERK ISSUES -SERVICE OF ON ADVERSE PARTY. 7512 Comp. Laws. Immediately after the issuing of the writ, a citation to the adverse party to be and appear at the supreme court, to be issued by the clerk thereof, shall be served on him or his attorney, giving at least ten days' notice thereof. (Sec. 585, C. Cr. Proc. ) Levisee, p. 1347. As to citation in error, see Supreme Court Rules, 5, 6 and 16, chap. 38, Post. 440 CODE OF CRIMINAL PROCEDURE. CERTIORARI, MOTION MUST BE MADE FOR, ON AFFIDAVIT WHEN AT FIRST TERM DELAY. 7513 Comp. Laws. No certiorari for diminution, of the order sliall be hereafter awarded in any action, unless a motion therefor shall be made in writing, and the facts on which the same is founded, shall, if not admitted by the other party, be verified by affidavit, and all motions for such certiorari shall be made at the first term of the entry of the action; otherwise, the same shall not be granted, un- less upon special cause shown to the court accounting satisfac- orily for the delay. (Sec. 486, C. Cr. Proc.) Levisee, p. 1347. ONE OF SEVERAL DEFENDANTS MAY APPEAL BENEFIT OF. 8339 Rev. Codes N. D. When several defendants are prose- cuted and tried jointly, any one or more of them may join in taking an appeal, but those who do not join shall take no ben- efit therefrom, yet they may appeal afterwards. (Adopted through Rev. Com'rs. ) BAIL NECESSARY FOR STAY, WHEN INABILITY TO GIVE. 8340 Rev. Codes N. D. An appeal taken by the defendant does not stay the execution of the judgment in any case not cap- ital, unless bail is put in, except when the judgment is impris- onment in the penitentiary, and an appeal is taken during the term at which the judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, it may, in its discretion, order the sheriff or other offi- cer having the defendant in custody, to detain him in custody without taking him to the penitentiary, to abide the judgment on appeal, if the defendant desires it. (Adopted through Rev. Com'rs. ) Consult sees. 8334 to83o7, Rev. Codes, supra, and next section. CERTIFICATE THAT BAIL GIVEN, PROCEDURE ON DELIVERY OF DISCHARGE FROM CUSTODY RETURN OF EXECUTION, WHEN. 8341 Rev. Codes N. D. When an appeal is taken by the de- fendant, and bail is put in, it is the duty of che clerk to give forthwith to the defendant, his agent or attorney, a certificate un- der his hand and the seal of the court, stating that an appeal has DISMISSING WRIT, APPEAL, FOR IRREGULARITY. 441 been taken and bail put in, and. the sheriff or other officer hav- ing the defendant in custody, must, upon the delivering of such certificate to him, discharge the defendant from custody when imprisonment forms a part of the judgment and cease all further proceedings in execution of the judgment, and return forthwith to the clerk of the court who issued it, the execution or certified copy of the entry of judgment under which he act- ed, with his return thereon, if such execution or certified copy has been issued; and if such executioft or certified copy has not been issued, it shall not be issued, but shall abide the judg- ment on the appeal. (Adopted through Rev. Com'rs.) Consult preceding section. CHAPTER XXXV. CHAP. 2, TITLE 10, CODE CRIMINAL PROCEDURE, S. D. ART. 2, CHAP. 13, CODE CRIMINAL PROCEDURE, N. D. DISMISSING THE WHIT OB APPEAL FOB IBBEGULABITY. IRREGULAR WRIT, WHEN MAY BE DISMISSED NOTICE, MO- TION PAPERS. 7514 Comp. Laws. If the writ is irregular in any substantial particular, but not otherwise, the court may, on any day in term, on motion of the defendant in error, upon two days' notice, with copies of the papers on which the mo- tion was founded, order it to be dismissed. (Sec. 487, C. Cr. Proc.) Levisee, p. 1347. Consult sec. 7515, Comp. Laws, infra. See, as to dismissal of writ, Supreme Court Rule 27, S. D. chap. 38, Post. SAME, AS TO APPEAL EFFECT OF DISMISSING APPEAL 8342 Rev. Codes. If the appeal is irregular in any substantial particular, but not otherwise, the supreme court may on any day, on motion of the respondent, upon five days' notice ac- 284 T P 442 CODE OF CRIMINAL PROCEDURE. companied with the copies of the papers upon which the mo- tion is founded, order it to be dismissed. The dismissal of an appeal affirms the judgment. But if the irregularities com- plained of are corrected in a reasonable time, the appeal shall not be dismissed and the supreme court must fix the time and direct the manner of correcting the irregularity. (Sec. 487, C. Or. Proc. , am'd Rev. Com'rs.) \ Levisee, p. 1347. Consult sec 8343, Rev. Gbdes, infra. See, as to dismissal of appeal, Supreme Court Rule 32, N. D. chap. 38, Post. DISMISSAL OF WRIT FOR WANT OF RETURN ENLARGEMENT OF TIME. 7515 Comp. Laws. The court may also, upon like motion, dismiss the writ, if the return is not made as provided in sections 7509 and 7510, unless for good cause they enlarge the time for that purpose. (Sec. 488, C. Or. Proc.) DISMISSAL OF APPEAL, NOT FOR INFORMALITYANOTHER AP- PEAL NEW UNDERTAKING. 8343 Rev. Codes N.'D. An ap- peal must not be dismissed for any informality or defect in the taking thereof. If the same is corrected within a reasonable time after an appeal has been dismissed, another appeal may be taken. If an undertaking has been given which is defective in any respect, a new one may be filed on appeal in the su- preme court. Consult sec. 8342, Rev. Codes, supra. CHAPTER XXXVI. CHAP. 3, TITLE 10. CODE CRIMINAL PROCEDURE, S. D. ART. 3, CHAP. 13, CODE CRIMINAL PROCEDURE, N. D. ARGUMENT OF THE WRIT AND APPEAL. ARGUMENT, HOW BROUGHT ON NOTICE DAY AND TERM- WHEN DETERMINED. 7516 Comp. Laws. The writ of error may be brought to argument by either party on ten days' no ARGUMENT OF WRIT AND APPEAL. 443 tice, on any day, at a general or adjourned term of the supreme court, but it must be heard and determined at the first term after the record is filed, unless for good cause shown. (Sec. 489, C. Or. Proc. ) Levisee, p. 1348. Consult sec. 7517, Comp. Laws, infra. As to appellate procedure in supreme court, in civil cases, see chap. 10, pp. 254 to 260, ante. Consult Supreme Court Rules 8, 17, 21, S. D., chap. 38, Post. APPEAL STANDS FOR ARGUMENT WHEN POSTPONEMENT OF HEARING STIPULATION FOR HEARING. Sec. 8344 Rev. Codes N. D. An appeal in a criminal action shall stand for argument at the first term after the record is filed, unless for good cause shown the hearing is postponed to a subsequent term, but the parties or their attorneys may by stipulation fix an earlier day for 'the hearing w*iththe approval of the supreme court. (Sec. 489, C. Or. Proc., am'd Rev. Com'rs.) Levisee, p. 1348. As to position of criminal cases on calendar, see Supreme Court Rules 21, 25, S. D., chap. 38, Post. COPY OF RECORD, WHO FURNISHES, ON ARGUMENT DE- FAULT, DISMISSAL OF WRIT. 7517 Comp. Laws. When the writ is called for argument, the plaintiff in error must furnish each member of the court with a copy of the record of the ac- tion, bills of exception, and of the assignment of errors. If he fails to do so, the writ must be dismissed, unless, for cause shown, the court otherwise direct. (Sec. 490, C. Cr. Proc.) Levisee, p. 1348. Consult sec. 7516, Comp. Laws, supra. AFFIRMANCE ON DEFAULT REVERSAL ONLY AFTER ARGUMENT. 7518 Comp. Laws. The judgment may be affirmed if the plaintiff in error fails to appear, but can be reversed only after argument, though the defendant in error fails to appear. (Sec. 491, C. Cr. Proc.) Levisee, p. 1348. Consult Supreme Court Rule 27, S. D., chap. 38, Post, and decisions thereunder. 444 CODE OF CRIMINAL PROCEDURE. SAME, ON APPEAL 8345 Rev. Codes N. D. The judg- ment may be affirmed if the appellant fails to appear, but may be reversed only after argument, though the respondent fails to appear. (Sec. 491, C. Cr. Proc., am'd Rev. Com'rs.) Levisee, p. 1348. Consult Supreme Court Rule 32, N. D., chap. 38, Post. NUMBER OF COUNSEL HEARD. 7519 Comp. Laws; 8346 Rev. Codes N. D. Upon the argument of the writ, if the offense is punishable with death, three counsel on each side must be heard, if they require it. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side. (Sec. 492, C. Cr. Proc. ) [Sec. 8346, Rev. Codes, N. D., is the same, except that the word "ap- peal" is used in the place of the word "writ." (As am'd Rev. Com'rs.)] Levisee, p. 1348. Consult Supreme Court Rule 19, S. D., rule 23, N.D., chap. 38, P&t. PERSONAL APPEARANCE OF DEFENDANT UNNECESSARY. 8347 Rev. Codes N. D. The personal appearance of the de- fendant in the supreme court on the hearing of an appeal, is in no case necessary. (Adopted through Rev. Com'rs.) CHAPTER XXXVII. CHAP. 4, TITLE 10, CODE CRIMINAL PROCEDURE, S. D. ART. 4, CHAP. 13, CODE CRIMINAL PROCEDURE, N. D. JUDGMENT IN SUPREME COURT. JUDGMENT TECHNICAL ERRORS AND EXCEPTIONS DISRE- GARDED. 7520 Comp. Laws; 8348 Rev. Codes N. D. Afterhearingthew.it, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Sec. 493, C. Cr. Proc.) [Sec. 8348, Rev. Codes, N. D., is the same, except that the. word "appeal" is used in place of the word*"writ." (As am'd Rev. Com'rs.)] Levisee, p. 1348. JUDGMENT IN SUPREME COU14T. 445 Consult next section. Error not Prejudicial "Technical Errors" Statute Construed. Instate v. Reddington S. D , 64 N. W. 170, the court, in passing upon the question whether, in that case, injurious or reversible er- ror had been committed by the trial court, define "injury" as "effect upon the result," declaring that such is the doctrine of our statutes, and (among others) that of this section, which requires the supreme court, on writ of er- ror, "to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." POWER TO REVERSE, AFFIRM OR MODIFY JUDGMENT BELOW. 7521 Comp. Laws. The supreme court may reverse, affirm or modify the judgment or order of the circuit court, and may, if proper, order a new trial. (Sec. 494, C. Cr. Proc.) Levisee, p. 1348. Consult preceding section. REVIEW OF INTERMEDIATE ORDER, ON APPEAL 8349 Rev. Codes N. D. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or rul- ing involving the merits, or which may have affected the judg- ment adversely to the defendant. (Adopted through Rev. Com'rs. Consult preceding, and next section. Consult also, as to power of supreme court on appeal, sec. 5238, Comp. Laws, sec. 5628, Rev. Codes, pp. 250-1, ante. REVERSAL, AFFIRMANCE, OR MODIFICATION ON APPEAL- NEW TRIAL REMAND. 8350 Rev. Codes N. D. The supreme court may reverse, affirm or modify the judgment or order ap- pealed from, and may set aside, affirm or modify any or all the proceedings subsequent to, or dependent upon such judgment or order, and may if proper, order a new trial. In either case the action must be remanded to the district court with proper instructions, together with the opinion of the court. (Adopted through Rev. Com'rs.) Levisee, p. 1348. Term of Imprisonment Too Long: Modification of Sentence. Where the judgment of a circuit court is erroneous only in that it imposes a longer term of imprisonment than is authorized by law, this court may, upon writ of error, under section 7521, Comp. Laws, modify such judgment by striking therefrom the words employed in designating the duration of imprison- 446 CODE OF CRIMINAL PROCEDURE. ment, and by inserting in lieu thereof the maximum penalty allowed by law. State v. Taylor, .... S. D , 64 N. W. 548. Reversal of Conviction For Errors in Judge's Charge Plea of Former Jeopardy. When a defendant in a criminal action is convicted of the crime charged, and subsequently, on writ of error sued out by himself, procures in this court a reversal of the judgment of conviction, for errors in the charge of the trial court to the jury, he is not entitled to be dis- charged on the ground that he has once been put in jeopardy. State v. Reddington, .... S. D ....,66 N. W. 464; Whar. Cr. PI. & Pr. (9th Ed.) 510; Morrisette v. State, 77 Ala. 71; Kendall v. State, 65 Ala. 442; Cooley, Cont. Lim., p. 400; McGinn v. State (Neb.), 65 N. W. 46; Bohanan v. State, 18 Neb. 57, 24 N. W. 390; Sutcliffe v. State, 18 Ohio, 469; State v. Sommers (Minn.), 61 N. W. 907. ' REVERSAL WITHOUT GRANTING NEW TRIAL, DISCHARGE OF DEFENDANT ONBAIL EXONERATED. 7522 Comp. Laws; 8352 Rev. Codes N. D. If a judgment against the defendant is re- versed without ordering a new trial, the supreme court must direct, if he is in custody, that he be discharged therefrom, or if on bail, that his bail be exonerated, or if money was depos- ited instead of bail, that it be refunded to the defendant. (Sec. 495, C. Cr. Proc.) Levisee, p. 1348. Consult sec. 7521, Comp. Laws, supra. NEW TRIAL IN DISTRICT COURT, WHEN ORDERED WHAT COUNTY. 8351 Rev. Codes N. D. When a new trial is ordered it must be had in the district court of the county from which the appeal was taken, or in some other county, or as di- rected by the supreme court. (Adopted through Rev. Com'rs. ) AN AFFIRMANCE, ORIGINAL JUDGMENT ENFORCED. 7523 Comp. Laws; 8353 Rev. Codes N. D. On a judgment of affirmance against the defendant, the original judgment must be enforced. (Sec. 496, C. Cr. Proc.) [Sec. 8353, Rev. Codes, N. D., is the same, except that the first clause reads: "If a judgment against the defendant is affirmed." (As am'd Rev. Com'rs.)] Levisee, p. 1349. Consult next section. JUDGMENT IN SUPREME COURT, 447 JUDGMENT ABOVE ENTERED IN MINUTES COPY REMITTED. 7524 Comp. Laws; 8354 Rev. Codes N. D. When the judg- ment of the supreme court is given, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the circuit court. (Sec. 497, Or. Cr. Proc.) [Sec. 8354, Rev. Codes. N. D., is the same, except that the words "from which the appeal was taken" are added at the end of the section. (As am'd Rev. Com'rs.)] , Levisee, p. 1349. Consult preceding section. As to remittitur, see Supreme Court Rule 24, S. D., Rule 29, N. D., chap. 38, Posi; also, sec. 5238. Comp. Laws, sec. 5628, Rev. Codes, pp. 250-1, ante. JURISDICTION OF SUPREME COURT CASES, AFTER REMITTITUR -ENFORCEMENT BELOW. 7525 Comp. Laws. After the cer- tificate of the judgment has been remitted to the court below, the supreme court has no further jurisdiction of the writ, or of the proceedings thereon, and all orders which may be neces- sary to carry the judgment into effect, must be made by the court to which the certificate is remitted. (Sec. 498, C. Cr. Proc. ) SAME. 8355 Rev. Codes N. D. After the certificate of the judgment has been remitted to the court below, the appel- late court has no further jurisdiction of the appeal or of the proceedings therein, and all orders necessary to carry the judg- ment into effect must be made by the district court to which the certificate is remitted. (Sec. 498, C. Cr. Proc., am'd Rev. Com'rs.) Levisee, p. 1349. PUNISHMENT NOT INCREASED, ON APPEAL BY STATE AF- FIRMANCE POINT OUT ERROR. 8356 Rev. Codes N. D. If the appeal is taken by the state, the supreme court cannot re- verse the judgment or modify it so as to increase the punish- ment, but may affirm it, and shall point out any errprs in the proceedings or in the measure of punishment and its opinion shall be obligatory on the district court as the correct exposi- tion of the law. (Adopted throught Rev. Com'rs.) 448 RUX.ES OF SUPREME COURT. Consult next section. FORMER IMPRISONMENT, PERIOD OF DEDUCTED ON RE-CON- VICTION. 8357 Rev. Codes N. D. If a defendant has during the pendency of an appeal, been imprisoned in the execution of the judgment appealed from, and upon a new trial ordered by the supreme court shall again be convicted, the period of his former imprisonment shall be deducted by the district court from the period of imprisonment to be fixed on the last verdict of conviction. (Adopted through Rev. Com'rs.) Consult preceding section. CHAPTER XXXVIII. RULES OF THE SUPREME COURT. SOUTH DAKOTA AND NORTH DAKOTA. [AUTHOR'S NOTE. See Special Index, at the end of this chapter, showing the pages on which the respective rules are found.] RULE I, S. D. CLERK TO RESIDE AT CAPITAL NOT TO PRACTICE LAW. The clerk of this court shall reside and keep his office at the seat of government, and he shall not practice as an attorney or coun- selor in this or any other court while he shall continue to be clerk of this court. RULE I, N. D. SAME DEPUTY IN HIS ABSENCE, Until otherwise directed by a rule of court, the clerk of the supreme court shall keep his office at the capital of the state. When absent from the capital, the office shall be kept open, and the duties of the clerk shall be performed by a deputy. The clerk shall not practice as an attorney or counselor. Consult next two rules. Constitutional Provisions, and Statutes, S. D. Sec. 12, art. 5, of the constitution (Laws 1890, p. XIII), provides: "There shall be a clerk * * * of the supreme court, who shall be ap- pointed by the judges thereof and who shall hold office during the pleasure RULE 2, S. D. AND N. D. 449 of such judges, and whose duties and emoluments shall be prescribed by law, and by the rules of the supreme court not inconsistent with law." Chapter 74, Sess. Laws of 1890 (pp. 169-70), prescribes the qualifica- tions and duties of the clerk of the supreme court. Sec. 1 provides that he shall take an official oath and shall execute a bond with one or more sure- ties, and may appoint a deputy, who must also take an oath, which oaths shall be filed, etc. Sec. 6 requires him to keep his office at the seat of gov- ernment. For N. D. That part of sec. 93, Constitution of N. D. referring to clerk of supreme court, is as follows: "There shall be a clerk and also a reporter of the su- preme court, who shall be appointed by the judges thereof, and who shall hold their respective offices during the pleasure of said judges, and whose duties and emoluments shall be prescribed by law and by rules of the su- preme court not inconsistent with law." The following provisions of the N. D. statutes relate to the appoint- ment and duties of the clerk, etc. Sec. 380, Rev. Codes, N. D. There shall be a clerk of the supreme court, who shall be appointed by the judges thereof, and who shall hold his office during the pleasure of such judges. (Sec. 1, chap. 170, laws 1890, N. D.) Sec. 381, Rev. Codes, N. D., requires the clerk to qualify by taking the constitutional oath, and by giving bond with surety, conditioned for the faithful performance of his duties. That he may appoint a deputy, who shall also take and subscribe the oath and file same in the court. That the clerk shall be responsible for his deputy's acts. Sec. 383, Rev. Codes, N. D., provides, that the clerk shall personally perform all duties assigned him by law and the rules of court. When he is unavoidably absent or unable for any cause to perform his duties, the deputy performs them. RULE 2, S. D. and N. D. DUTIES OF CLERK RECORDS NOT TAKEN FROM HIS OFFICE UNLESS ORDERED ANNOUNCES DECISIONS. He shall keep a complete record of all proceedings of the court, and shall perform all the duties pertaining to his office. He must not allow any written opinion of the court, or any original record or pa- per pertaining to his office, to be taken therefrom without an order from the court, or one of the judges thereof. He shall promptly announce, by letter, any decision rendered, to one of the attorneys of each side, when such attorneys are not in at- tendance upon the court. 29 TP 450 RULES OP SUPREME COURT. [Rule 2, N. D., is the s*ame, except that the word "the" is substituted for the word "all" in the first clause, and the following additional words are inserted after the word "rendered": "or order entered in any cause or matter."] Consult preceding rule, and rule 3. As to duties of clerk in sending down remittitur, see sec. 5238, Com p. Laws, sec. 5628, Rev. Codes, N. D., pp. 250-1, ante; Rule 24, S. D., Rule 29, N. D, Post; as to taxation of and his insertion of costs in judgment, see Rule 26, S. D., Rule 31, N. D., Post. The following provisions, relative to the clerk's duties, etc., are taken from chap 74, Laws 1890, S. D.: "Sec. 3. He shall personally perform all the duties assigned him by law and the rules of said court. Whenever he is unavoidably absent and unable to perform his duties, his deputies may perform all the duties of said office." "Sec. 5. He must not allow any written opinion of the supreme court to be removed from his office except by the reporter, but shall permit any one to examine or copy the same, and shall when req uired make a copy and certify to the same, or any syllabus thereof, without charge." Sec. 6 requires him to keep a complete record of all proceedings of the supreme court. Sec. 7 provides: "He shall promptly announce by letter any decisions rendered to one of the attorneys on each side, when such attorneys are not in attendance at the place of court." The clerk of the supreme court and .his deputy are authorized by stat- ute to administer oaths. Sec. 487, Comp. Laws, sec. 460 Rev. Codes N. D. The following is from the N. D. statute: "Sec. 384, Rev. Codes, N. D. Whenever a syllabus is filed by the judges of the supreme court as required by law, the clerk shall immediately there- after make and furnish a copy thereof together with the title of the action in which the same is rendered to the publishers of such daily newspapers in the state of North Dakota as consent to publish the same without charge." (Sec. 5, chap. 170, laws 1390, N. D.) RULE 3, S. D. CLERK'S FEES DEPOSIT FOR ADDITIONAL DEPOSIT BAL- ANCE OF RETURNED. The appellant or plaintiff in error on bring- ing a cause to this court shall at or before the filing of the record, deposit with the clerk of said court the sum of ten dollars, to apply on costs therein; and in all cases (except habeas corpus) originally brought in this court, the plaintiff or petitioner, at RULE 3, N. D. 451 or before the filing of the first papers in the case, shall deposit with the clerk the same amount for the same purpose. Whenever the sum so deposited is exhaused, but not before, the clerk shall require from such party, as a condition of fur- ther service in said cause, an additional deposit of not to ex- ceed ten dollars, for the purpose and application aforesaid. Any balance remaining after the determination of the cause, shall be returned to the party depositing the same. RULE 3, N. D. SAME. The appellant, on bringing a cause to this court, shall, at or before the filing of the record, deposit with the clerk of said court the sum of eight dollars, to apply on his fees; and in all cases (except habeas corpus) originally brought in this court, the plaintiff or petitioner, at or before the filing of the first papers in the case, shall deposit with the clerk the same amount for the same purpose. Statutory Provisions, S. D. Sec. 1436 Comp. Laws provides that the clerk "may in all cases required the party for whom any service is to be rendered to pay the fees in advance of the rendition of such service, or give security for the same, to be ap- proved by the officer." This is also sec. 2104, Rev. Codes, N. D. Sec. 4, chap. 74, Laws 1890, S. D. provides: "He shall receive such fees as were formerly allowed to the clerk of the supreme court of the Territory of Dakota, or as may hereafter be fixed by the supreme court of this state, but shall receive no per diem." Sec. 4, of the act of 1890, S. D. bears upon sec. 1406, Comp. Laws, (sec. 4, chap. 39, Pol. Code,) which provides that clerks of the (then. Territorial) courts "shall be entitled to charge and receive for their fees and services the emoluments prescribed by section 828 of the revised statutes of the United States, so far as the same is applicable to the business in the dis- trict courts of counties and subdivisions, and for any item not embraced within said section of the United States law, such compensation as may be allowed by the rules of the court." Said sec. 828 of revised statutes of U. 5. fixes the fees to be charged, and governs as to fees of clerk of the su- preme court of S. D., subject to any change which the court may make by rule; and the schedule of fees is found subjoined to said sec. 1406, Comp. Laws. The fees of the clerk have never been fixed by law of the Territory of Dakota, or of South Dakota, other than as above provided. 452 RULES OF SUPREME COURT. See sec. 5238, Comp. Laws, sec. 5628. Rev. Codes, N. D. pp. 150-1 ante, as to clerk's fees for copy of opinion of supreme court. But see, chap. 74, Sess. Laws 1890, S. D. sec. 5, providing that he "shall when requested make a copy (of any written opinion of the supreme court) and certify to the same, or any syllabus thereof, without charge." Statutory Provisions, N. D. Sec. 385, Rev. Codes, N. D., provides that the clerk shall receive an annual salary of fifteen hundred dollars. Sec. 386, Rev. Codes, N. D., provides for the scale of fees to be charged and collected by the clerk; and sec. 387 provides that he shall keep an ac- count thereof, and on the first days of January, April, July and October of each year shall file with the state auditor a statement of fees, verified by his affidavit; and shall also file with such statement a receipt from the state treasurer, showing that all such fees so received by him have been covered into the state treasury. Sec. 388 provides that, in addition to his salary, he shall receive for expenses in attending sessions of the supreme court at points other than at the seat of government, five cents per mile for each mile necessarily traveled, and two dollars per day for actual attendance thereat, which mileage and per diem shall be in lieu of all other traveling expenses allowed him. That the state auditor shall draw a warrant upon the state treasurer in favor of the clerk for the amount due, upon the clerk's filing a verified itemized statement showing his mileage and per diem. RULE 4, S. D. SERVING NOTICE OF APPEAL, HOW AND WHEN, FOR TRIAL WHEN NOTICE OF INSISTENCE-HEARING. The notice of appeal shall be served in the manner provided by law; and if not served thirty days before the first day of the next succeeding term of the supreme court, the cause shall not then be tried, unless, when there is a shorter service the respondent shall within five days after service of the notice of appeal give the appellant notice that he will insist on a hearing at such term, in which event the same shall be heard at such term, unless continued upon a sufficient showing or otherwise disposed of. RULE 4, N. D. SAME. The notice of appeal shall be served in the man- ner indicated by section 4 of an act regulating appeals, ap- proved February 11, 1891, and chapter 23 of the Compiled Laws of 1887, and the acts amendatory thereto; and if not served RULE 4, N. D. 453 ninety days before the first day of the next succeeding term of the supreme court, the cause shall not then be tried. See, for statutory provisions governing service of notice of appeal and notices generally, sec, 5215, Comp. Laws. sec. 5606, Rev. Codes, N. D., p. 204, ante, and decisions thereunder; sees. 5327, 5328, 5336, Comp. Laws, sees. 5723-5732, Rev. Codes, N. D. The reference in Rule 4, N. D., to "chapter 23 of the Compiled Laws of 1887," evidently means that chapter of the Code of Civil Procedure as em- braced in the Compiled Laws. In connection with Rule 4, consult Rule 27, S. D., Rule 32, N. D., Posi, relative to dismissal of appeal; and the decisions thereunder. (a.) The Statute Appellate Jurisdiction. Statute Construed Jurisdiction Depends on Compliance With. Service on Clerk. The statute (sec. 5215, Comp. Laws,) prescribes the way by which a case may be transferred for review from the trial court to this court, and the jurisdiction of this court depends upon compliance with its provisions. Valley City Land & Irrigation Co. v. Schone et al, 2 S. D., 344, 50 N. W. 356. It is just as essential that the notice of appeal be served upon the clerk as upon the adverse party, and filing of suph notice in the clerk's office does not constitute such service upon the clerk. Id; Peckv. Phillips, 4 Dak. 430, 34 N. W. 65. Appellate Jurisdiction Must Affirma- tively Appear. The appellate jurisdiction of this court will not be pre- sumed, but must affirmatively appear of record. Valley City Land & Irri- gation Co. v. Schone etal, 2 S. D. 344, 50 N. W. 356; Moore v. Vanderburg, 90 N. C. 10; Plummer v. Bank, (Iowa) 33 N. W. 150; Redhead v. Baker, 80 Iowa, 162, 45 N. W. 733; State v. Brooks, (Iowa) 50 N. W. 43. Service of Notice of Appeal Jurisdictional. The service of a notice of appeal, and the transmission of a certified copy thereof, are essential to give the su- preme court jurisdiction. Such service cannot be waived, by stipulation. In the matter of the opening of Gold Street, Dead wood, D. T., George N. New- ton, appellant, 2 Dak. 39, 3 N. W. 311; 8 Id. 139. Must Serve on Clerk- Record. Service of the notice of appeal upon the clerk of the court from which the appeal is taken is jurisaictional, and where the record fails to show such service this court cannot hear the case. Hoffman v. Bank of Minot (three cases), 4 N. D. 473, 61 N. W. 1031; In re opening Gold St. v. Newton, appellant, 2 Dak. 39, 3 N. W. 311. [AUTHOR'S NOTE.] The following are some Iowa and Minnesota decisions bearing upon this phase of the rule: To the effect that notice of appeal must affirmatively appear of record, and is Jurisdictional, see Weed v. Parsons, (la.) 3 N. W. Rep. 635; Hanks et al v. North etal (la.) 7 N. W. Rep 156; Galloway v. Litchfield, 8 Minn. 454 RULES OF SUPREME COURT. (Gil.) 160; Buberick v. Magner, 9 Minn. (Gil.) 217; County Comr's. v. Sut- ton 23 Minn. 299; Gregg- v. Unless, 25 Minn. 272. Simply Filing With Clerk, Insufficient What Practice Approved. Under Code of Civil Procedure, sec. 407, providing that "an appeal must be made by the service of a notice in writing on the adverse party or his at- torney, and on the clerk with whom the judgment or order appealed from is entered," etc., a notice of appeal which was simply filed with the clerk, was held insufficient, and the appeal dismissed. Peck v. Phillips, 4 Dak. 430, 34 N. W. 65. The court iu that case approved the practice, followed by appellant, of serving notice of appeal on the attorney of respondent, saying: "Sections 514-516, of the Code of Civil Procedure prescribe the mode for service of notice in civil actions, and the method there prescribed was adopted by the appellant in this case in his service upon the attorney, viz., service of a copy, with proof of service by affidavit of the person serving. 1 " Service on Attorney of Party Below, is Service on Party. Service of notice of appeal on an attorney for defendants in whose favor judgment for costs was rendered below, is service on an adverse party, under the statute. Marshall v. Harney P. T. M., M. v. Mfg. Co. et al, 1 S. D. 350, 47 N. W. 290. (b.) Waiuer of Notice Appearance. Waiver of Appeal Notice. To the point that service of appeal may be waived, see Wilgus v. Gettings, 19 Iowa, 82; Hohmann v. Eiterman, 83 111., 92; R. R. Co. v. Mara, 26 Ohio St., 185; Marshall v. Harney Peak Tin Mining, Milling & Mfg. Co., et al, 1 S. D. 350, 47 N. W. 290; on rehearing, 3 S. D. 473, 54 N. W., 272. Voluntary Appearance by Respondent, Waiver of Irregularity in Notice. Where the appellate court has jurisdiction of the subject matter, a voluntary appearance by respondent, and taking steps in the cause in the appellate court, is a waiver of a mere irregularity in the service of the notice of appeal. Holden v. Haserodt et al, 3 S. D. 4. 49 N. W. 97. The court in that case did not decide the question whether the notice of appeal there in question was properly served; but respondent ontered an unqualified appearance and served notice of insistence under Rule 4. (c.) Irregularities. Title of Case, Irregularity in, Does Not Vitiate Notice. A mere irregularity in the title of the case, and in reference to plaintiffs in the body of the notice of appeal, will not vitiate the notice, if it sufficiently appears in the body of the notice from what, and for what the appeal is taken. Mar- shall v. Harney P. T. M., M. & Mfg. Co. et al, 1 S. D. 350, 47 N. W. 290. Date Omission of Year in Proof of Service, Immaterial. The omission of the year in the proof of service of the notice of appeal is not material, where, from other dates upon the notice, it is plainly evident when it was RULE 5, S. D. 455 served in fact, and that such omission was an oversight. Ellis v. Wait, 4 S. D. 31, 54 N. W. Rep. 925. (d. ) The Hearing Notice of Insistence. When Respondent Cannot Have Hearing at Next Term Rule Construed Notice of Insistence. In Meuer v. Chicago, M. & St. P. Ry. Co., 3 S. D. 322, 53 N. W. 187, it was held, that under this rule a respondent could not obtain a hearing at the next succeeding term of court, where the notice of appeal was served on the first day of such term. The court, per Bennett, P. J., in the opinion say: "Under the rule, all causes in which the "notices of appeal have been served thirty days before the commencement "of the next succeeding term, as a matter of right, shall be heard at that "term; but if the notice of appeal has been served less than 30 days before "the commencement of the next term, then the case shall not be heard, "un- less respondent complies with the latter part of the rule as to insisting upon a hearing, etc. "In the one case, both appellant and respondent may de- "mand a hearing; in the other, the respondent may demand a hearing, sub- ject, of course, toother disposition for cause, as stated in the rule; but in "both cases the rule applies to causes where the appeal has been perfected "before the commencement of the term of court." Court May Fix Time to Hear Order to Show Cause. The supreme court may fix any time, within its discretion, when an order to show cause why the appeal should not be dismissed, may be heard; the rules of court and the statute law allowing such practice. State v. Sioux Falls Brewing Co., 2 S. D. 363, 50 N. W. 629. (ej. The Record, Etc. Record Recitals as to Service of Notice of. See, as to the record on appeal in its recitals as to service of notice of appeal, Billinghurst v. Spink county et al, 5 S. D. 84, 58 N. W. Rev. 272. Contradictory Abstracts. Where appellant's abstract states that notice of appeal was properly served, and respondent's abstract denies it, this court will go to the original rec- ords to settle the dispute. Kehoe v. Hanson et al, . . .S. D 60 N. W. 31. RULE 5, S. D. WRITS OF ERRtfR AND CITATIONS IN CRIMINAL CASES SU- PREME CLERK ISSUES TO WHOM DELIVERED-SERVICE OF. In criminal cases, immediately after the issuing of the writ of er- ror, a citation to.the adverse party to be and appear at the su- preme court, on a day and hour to be therein designated, shall be issued by the clerk of this court, and by him delivered or sent by mail to the plaintiff in error, or his attorney, who shall cause the same to be served on such adverse party or his at- torney, at least ten days before such designated day. 456 RULES OF SUPREME COURT. As to writs of error, consult sees. 7499 to 7510, Comp. Laws (the same ground is covered, as to appeals, in sees. 8325 to 8338, Rev. Codes, N. D.) pp. 431-439, ante, and decisions thereunder; and as to citation in error, see sec. 7512, Comp. Laws, p. 439, ante; and as to service of citation in state cases, see Rule 16, S. D., Post. As to clerk's certificate, consult Rule 7, S. D., and the form set forth in that rule, Post. Origin of This Rule. In St. Croix Lumber Co. v. Pennington, 2 Dak. 467 (481), 11 N. W. 497 (504), Justice Shannon, referring to the old Rule 13 of supreme court, requiring the record as certified by the clerk, to contain a copy of the certificate of the judge to the original iudgment roll, etc., says: "The idea of the rule was, no doubt, formed from section 483 of the Code of Criminal Procedure, which requires a certificate similar in character, in addition to the return of the record proper and of the bill of exceptions. Code of Crim. Proc., sections 446, 482." RULE 5, N. D. WRITS OF ERROR, ALLOWED FROM FINAL DECISIONS, BY SU- PREME JUDGE RECITALS IN CITATION, DELIVERY OF. Writs of error in criminal causes shall be allowed in all cases from the final decisions of the district courts to the supreme court. The party seeking the writ must apply to the chief justice or to one of the judges of the supreme court, by petition, verified by affidavit, setting forth clearly and succintly the chief mat- ters of error complained of. All superfluities and unnecessary recitals must be excluded from the petition. Immediately after the issuing of the writ of error, a citation to the adverse party to be and appear at the supreme court, on a day and hour to be therein designated, shall be issued by the clerk of this court, and by him delivered or sent by mail to the plaintiff in error or his attorneys, who shall cause the same to be served on such adverse party or his attorney at least ten days before such designated day. Sees. 473, 485, C. Cr. Proc., sees. 7500, 7512, Comp. Laws, chap. 34, ante, pp. 433-439; Levisee, pp. 1345, 1347. Consult Rule 5, S. D., supra, and references there given. [AUTHOR'S NOTE. It would seem that, as to the North Dakota rules, all references to writs of and citations in error are superfluous, as the new law of appeals, governing appellate procedure in criminal cases (sees. 8325 to 8341, Rev. Codes, in chap. 34, ante), has done away with the common law method of procedure.] RULE 7, S. D. 457 RULE 6, S. D. and N. D. CRIMINAL CASES CITATION, WHEN RETURNABLE WRITS OF ERROR AND CITATIONS RETURNABLE WHEN. When a sufficient time intervenes, the citation provided for in the preceding rule shall be made returnable on the first day of the next succeed- ing term; otherwise it shall be made returnable on some day during such term; and writs of error in criminal causes may is- sue and citations be made returnable on any day during term time. Consult Rule 5, supra. As to citations in error, see sec. 7512, Comp. Laws, p. 439 ante; and as to issuance of writs of error, see sec. 7499, to 7510, Comp. Laws, pp. 431-439 ante. As to service of citation in cases in which the state is a party, and in criminal cases consult rule 16, S. D. Rule 20, N. D. Post. RULE 7, N. D. PETITION IN ERROR, CLERK FILES, AND WHEN CONSEQUENCE OF FAILURE. When a writ of error is allowed and issued, it shall be the duty of the plaintiff in error forthwith to file with the clerk of this court the petition in error, and a failure to do so shall be cause for the dismissal of the writ; and such peti- tions shall be filed by the clerk as of the day when the writ was allowed. Consult Rules 5 and 6, N. D., supra. RULE 7, S. D, TRANSMISSION OF PAPERS BY CLERK CONTENTS OF TRAN- SCRIPTSAME ON WRIT OF ERROR FORM OF CERTIFICATE. Up- on an appeal being perfected, the clerk of the court from which the appeal is taken shall transmit to this court, the judgment roll, or papers in the case, or copies thereof, with notice of ap- peal and undertaking, as provided by law. See sec. 5217, Compiled Laws. Where writ of error is sued out in criminal cases he shall transmit a complete copy of the record and of all bills of exceptions, together with an assignment of errors and prayer for reversal, and embracing the certificate of the 458 RULES OF SUPREME COURT. judge provided in section 7510 Compiled Laws; and to certify the same under his hand and seal of the court, and transmit the same to the clerk of this court. Which certificate shall be sub- stantially in the following form: Form of clerk's certificate in criminal cases. 1, A. B., clerk of the circuit (or county) court within and for said county of in the Judicial Circuit of the State of South Dakota, do hereby certify and return in obe- dience to the annexed writ of error, that the above and foregoing- is a full, true, correct and complete copy and transcript of the record of this action, to-wit: Of the indictment (or information), of the minutes of the plea (or demurrer) and of the minutes of the trial; of the charges given and refused, and the endorsements thereon; and of the judgment, and also of all bills of exceptions, the assignment of errors and prayer for reversal, and of the cer- tificate of the judge in the foregoing entitled cause wherein the State of South Dakota is plaintiff and is defendant, as the same now remains of record in said court. In witness whereof I have hereunto set my hand and affixed the seal of said court this day of ., A. D. 189 [L. S.] Clerk. Consult Rules 5 and 6, S. D., supra; and Rule 10, S. D., Post, as to or- der of papers in judgment roll. Also, decisions under Rule 8, N. D., infra. Judgment Boll Is For Review Case Must Be Made Part of What Is Judgment Boll. An appeal from a judgment of a lower court brings be- fore the supreme court the judgment roll proper for review, and a case which has not been settled by the trial judge so as to be made part of the judgment roll cannot be reviewed on appeal. Fargo et al v. Palmer et al, 4 Dak. 232, 29 N. W. 463. The technical judgment roll consists of the sum- mons, pleadings, verdict or decision, and judgment; and where a bill of ex- ceptions or case, has been settled, signed and filed with the clerk before en- try of judgment, it becomes also part of such judgment roll; and exceptions taken, settled, signed and filed after entry of judgment, though not part of the technical judgment roll, become part of the record, on appeal from the judgment, by operation of law. St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W. 497. Original Papers Sent Up, Unless Otherwise Ordered. In absence of a special order directing a clerk to send up a tran- script, the original papers should have been transmitted to this court. Under sec. 5217, Comp. Laws, the statute, except in cases where a special order is made, abrogates the rule of court requiring the clerk of the district court to send up transcripts in all cases. Jasper v. Hazen, 1 N. D. 210, 46 N. W. 173. Informal and Improper Transcript No Bill of Exceptions.' In the case of Matter of Opening Gold St., Deadwood, v. Newton, 2 Dak. 149, RULE 7, S. D. 459 3 N. W. 329, reference is made to the informal and improper record trans- mitted on the appeal in that case; which record was not authenticated by a court certificate; nor was the pretended bill of exceptions a proper one. See opinion of Moody, J., in that case. Stipulation as to Stenographers's Notes, Not Substitute For Bill. Stenographer's or referee's notes of the evidence, when so stipulated by the parties, cannot take the place of a bill of exceptions or statement of the case settled by the judge, which must be returned to this court by the clerk of the court below as part of the judg- ment roll. Merchants' Nat. Bank v. McKinney, S. D , 60 N. W. 162. Papers Informally Attached, No Part of Record. Neither the clerk nor the judge can attach any papers to the judgment roll, so as to make them part of the record, except in the mode prescribed by the statute. Judge's Certificate Unavailing, When. Nor will the judge's certificate to the transcript render papers part of the record, beyond those recognized by statute. St. Croix Lum. Co. v. Pennington, 2, Dak. 467, 11 N. W. 497. If the bill of exceptions is not presented for settlement within the statutory time, or such other time as the court or judge may order, no power exists in the court or judge to allow the bill or case. Id. What Objections to Verdicts Raised Only by "Statement of Case." There are two objections relating to verdicts, which cannot be raised upon a bill of exceptions, but only by "a statement of a case," viz., that the damages found are excessive, and that the verdict is not justified by the evidence. Id. Insufficient Reference to Papers in Certificate. Under rule 13 (now rule 7, S. D.) of the rules of supreme court of Dakota Territory, the use of the words, "the foregoing papers," in the certificate, without naming them, is not sufficient. St. Croix Lumber Co. v. Pennington, 2 Dak. 467, 11 N. W.. 497. Waiver of Findings on Court Trial, not Part of Roll When Such Waiver Presumed. Upon trial to the court, the decision of the court should be tiled, before entry of judgment, where non-waiver of findings ap- pears affirmatively upon the record; and it is irregular, and reversible error to enter judgment without first filing the decision, and such judgment would be invalid on its face. But in order to show such error a bill of ex- ceptions or statement is necessary, in the absence of which the supreme court will presume, in support of the judgment that a waiver of findings was made. Such waiver would not be part of the judgment roll. Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53 Cal. 34; Carr v. Cronin, 54 Cal. 600; Hayne, New Tr. & A pp., pp., 721-2. Decision on Court Trial, "Involves the Merits." The decision on such trial is a paper "which involves the merits and necessarily affects the judgment," and forms part of the judgment roll, under subd. 2, sec. 5103, Com p. Laws, unless findings are waived in writing filed with the clerk. Gaar, Scott & Co. v. Spaulding, supra; Thomas v. Tanner, 14 How Pr. 426; Reich v. Mining Co., 3 Utah, 254. 2 Pac. 703. 460 RULES OF SUPREME COURT. Presumption, Where no Decision of Record. Where no decision is found in the record transmitted to this court, it will be presumed that no decision was made or filed below. Gaar, Scott & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867. Notice of Application for Judgment, When Waived. Where judgment was entered below, upon a final report of the referee, de- fendant's counsel waiving notice of application for judgment, and did not raise that point in that court, held, that such point was waived and cannot be raised for the first time in the supreme court. Little v. Little, 2 N. D. 175, 49 N. W. 736. Order Confirming Raferee's Raport. Whether an order confirming report of referee must be made before entry of judgment can be directed, not decided. Id. Inadvertance, Neglect, When no Available Remedy For. Inad- verbance or neglect of parties or counsel to properly prepare a case for review is not a matter for which the appellate court can provide a remedy. Gress v. Evans, 1 Dak. 371 (379) 46 N. W. 1132. Consult also Wait's Code, sec. 327; Harst, Pr. sec. 940; Deering's Codes, Vol. 3, sec. 940. [AUTHOR'S NOTE. Following are some decisions of other states bear- ing upon this rule.J Estoppel to Object to Want of Transcript. Where one of respond- ent's counsel stated to appellant's counsel that no transcript on appeal would be required, and none was filed, field, that no negligence appeared and ap- peal will not be dismissed. Fairburn v. Goldsmith et al (la.), 9 N. W. 300. Perfecting Appeal Clerk's Fees Jurisdiction. Appeal is not per- fected under statute until fees of clerk for transcript are paid, and until per- fected court below retains jurisdiction. Loomis v. McKinzie etal (la.), 8N. W. 779. Transcript must be filed within statutory time in order to bring a case into supreme court. County Com'rs v. Saxon (Neb.), 4 N. W. 309. When Too Late to Remit Record Below for Correction. It is too late, after decision of the case in the supreme court, to remit the recoi-d to court below for correction of bill of exceptions, and such is not a case of excusable neglect. Sabotta v. St. P. F. & M. Ins. Co. (Wis.), 12 N. W. 381. RULE 8, N. D. SAME APPEAL TRANSMITTED BY CLERK WHAT PAPERS, UNDER LAW 1891 JUDGE'S CERTIFICATE TRANSCRIPT CERTI- FIED, CONTENTS AND FORMS OF. When an appeal is taken, either from a judgment or an order, (except in cases where by special order of the district court copies are sent to the su- preme court in lieu of the originals), the clerk shall transmit the original judgment roll or order and papers used upon the motion as required by section 5 of an act of 1891 regulating ap- RULE 8, N. D. 461 peals. Whether the original or copies are transmitted, the judge's certificate or a copy thereof as prescribed by Rule 12 must be appended to the record in all cases. The original no- tice of appeal and undertaking must be transmitted to the su- preme court. Where original papers are sent up, the certifi- cate of the clerk of the district court must conform substan- tially to the requirements of said section 5. Where copies of the record on appeal are transmitted to this court, it shall be the duty of the clerk of the district court, without unnecessary delay, and within the periods limited by law, to make out a full and perfect transcript and copy of the judgment roll; or if the appeal is from an order, or any part thereof, a complete copy of such order, and of the papers upon which said order was granted, and the certificate of the judge, as prescribed by Rule 12 of these rules; or where a writ of error is sued out in crim- inal causes, a complete copy of the record and of all bills of exception, together with an assignment of errors, and prayer for reversal, and embracing the certificate of the judge of the district court provided in the Code of Criminal Procedure, Compiled Laws, section 7510, and to certify the same under his hand and seal of the court, and transmit the same to the clerk of this court, which certificate shall be substantially in the following form: [Form of clerk's certificate when theappealis from a judgment in civil cases.] STATE OF NORTH DAKOTA, ) County of J Judicial District. I, A. B., Clerk of the district court within and for the said county of , in the judicial district of the State of North Dakota, do hereby certify that the above and foregoing papers are the original no- tice of appeal, with proof of service thereof, and the undertaking given thereon, and also the original judgment roll and certificate of the judge thereto appended (or full, true and complete copies of said judgment roll and certificate, as the case may be) in the above entitled action, wherein is plaintiff and is defendant, as the same now remain of record in said court, and the same are transmitted to the su- preme court pursuant to such appeal. In witness whereof, I have hereunto set my hand and affixed the seal of 3aid court this day of , A. D. 189 .... , Clerk, 462 RULES OF SUPREME COURT. [Form of clerk's certificate when the appeal is from an order.] STATE OF NORTH DAKOTA, ) ae County of j Judicial District. I, A. - B., clerk of the district court within and for said county of , in the judicial district of the State of North Dakot;i, do hereby certify that the above and foregoing is the original notice of ap- peal, with proof of service thereof, and the original undertaking given thereon, also the original order from which an appeal is taken, with all the papers used by each party on the application for such order, with the cer- tificate of the judge attached thereto (or full, true and complete copies of such order, papers and certificate, as the case may be) in the above entitled action, wherein is plaintiff and is defend- ant, as the same now remain of record in said court, and the same are trans- mitted to the supreme court pursuant to said appeal. In witness whereof, I have hereunto set my hand and affixed the seal of said court this day of , A. D Clerk. [Form of Clerk's Certificate in criminal case.] STATE OF NORTH DAKOTA, ) ae County of ) Judicial District. I, A. B., clerk of the district court in and for the county of , in the judicial district of the State of North Dakota, in obedience to the annexed writ of error, do hereby certify and return that the above and foregoing is a true, full and complete copy and transcript of the record in this case, to-wit: the indictment, the minutes of the plea (or demurrer), the minutes of the trial, the charges given and the charges refused, with all the endorsements thereon, and the judgment, all bills of exception, to- gether with an assignment of errors and prayer for reversal, and also of the original certificate of the judge in the above entitled case, wherein the State of North Dakota is plaintiff and is defendant, at> the same now remains of record iu the said court, and the same are transmitted to the supreme court pursuant to said writ of error. In witness whereof, I have hereunto set my hand and affixed the seal of said court this day of , A. D. 189. . . . Clerk. Consult as to sec. 5, act of 1891, sec. 5607, Rev. Codes, N. D. p. 210, ante; as to judge's certificate, Rule 12, N. D. Post; as to judgment roll, Rules 13, 14, N. D. Post; as to writs of error, Rules 5 to 7, N. D. ante. As to assignment of error, see Rule 15 N. D. Post; and decisions under above cited rules; and see sec. 7510, Comp. Laws, p. 439, ante. Consult also, Rule 7, S, D. supra, and decisions thereunder. RULE 9, N. D. 463 Original Papers Must go up, Unless Otherwise Ordered. In ab- sence of a special order directing- the clerk to send up a transcript, the or- iginal papers should have been transmitted to this court. Under sec. 5217, Comp. Laws, the statute, except in cases where a special order is made, ab- rogates the rule of court requiring the clerk to send up transcripts in all cases. Jasper v. Hazen, 1 N. D. 210, 46 N. W. 173. No Bill or Statement Settled, no Specifications in Transcript No Part of Judgment Roll. After an appeal from a judgment in favor of plaintiff a transcript of pro- ceedings at the trial, embracing the evidence taken by the stenographer, was by order of court annexed to the judgment roll, and same was sent up to this court as part of the record. No propesed bill of exceptions or state- ment of case was ever served, nor notice given of time or place where a bill or statement would be presented for settlement and allowance, and no order was made purporting to allow a bill or statement. No attempt was made in the transcript to specify errors of law, or to indicate wherein the evidence is insufficient to justify the findings of fact. Held, such transcript of proceed- ings, embracing the evidence, is neither a bill of exceptions nor a statement of case, and constitutes no part of the judgment roll. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103; Harper v. Minor, 27 Cal. 107; Button v. Reed, 25 Cal. 479. Stenographer's Transcript, no Record. The stenographer's trans- cript of proceedings had at the trial, and used on a motion for a new trial for the purpose of showing errors of law occurring at the trial, does not con- stitute an authenticated record, and before this court can review errors oc- curring at the trial the proceeding must be brought upon the record by bill of exceptions or statement of the case. Goose River Bank v. Gilmore et al, 3 N. D. 188, 54 N. W. 1032; Wood v. Nisen, 2 N. D. 26, 49 N. W. 103. RULE 9, N. D. RETURN OF APPEAL RESPONDENT MAY REQUIRE, WHEN ABANDONMENT OF DISMISSAL OF APPEAL PROVISO. The ap- pellant shall cause the proper return to be made and filed with the clerk of this court within sixty days after the appeal is per- fected. If he fails to do so, the respondent may, by notice in writing, require such return to be filed within twenty days af- ter the service of such notice, and if the return is not filed in pursuance of such notice, the appellant shall be deemed to have abandoned the appeal, and on an affidavit proving when the appeal was perfected and the service of such notice, and a certificate of the clerk of this court that no return has been filed, the respondent may apply to any judge of this court for an order dismissing the appeal for want of prosecution, 464 RULES OF SUPREME COURT. with costs, and the court below may thereupon proceed as though there had been no appeal; Provided, nevertheless, That this Rule shall have no application to cases where the respond ent has elected to cause the record to be transmitted to the supreme court as regulated by the proviso contained in section 5 of the act of February 11, 1891, regulating appeals. For sec. 5. act ox 1891, see sec. 5607, Rev. Codes, N. D. p. 210, ante. Consult Rule 4, N. D. ante; Rule 32, N. D. Post. Motion to Reinstate Appeals Default not Excused This Rule not Void Diligence. The appeals in these four cases having been dis- missed for failure to file the transcripts within the time prescribed by rule 9, the court holds, on motion to reinstate such appeals, that applicants have not excused their default. One of the grounds urged in support of the mo- tion is, that this rule is void because it denies appellant the right to be heard on the application to dismiss the appeal, and also because, as is claimed, it seeks to confer judicial power on a single judge in vacation. These grounds are not tenable. Walter A. Wood Harvester Co. v. Heidel etal, (Black, In- tervenor.) Duluth Dry-Goods Co. v. Same (Two Cases.) Merchants' State Bank of Fargo v. Same, 4 N. D. 427, 61 N. W. 155; Bowers v. Tallmadge, 23 .N. Y. 167; Schenck v. Ringler (N. Y. App.) 11 N. E. 382; Sweygert v. Swey- gert (S. C.) 9 S. E. 657. On motion to reinstate appeal appellant may be fully heard, and on such motion the decision of the clerk, or of a judge of the court, that the rule has been violated, is fully open to review. Id. Neither is the further ground urged, viz., that the judge below did not de- termine in time what papers were used on the motions to dissolve the at- tachments, from the orders vacating which these appeals were taken, good. We are not satisfied that appellants used due diligence in present- ing this matter to the judge. The courts have repeatedly refused to rein- state appeals dismissed for failure to send up the record in time, when the facts were fully as favorable to the appellants as in these cases, and in some of the decisions a much stronger case for reinstatement was made. Walter A. Wood Harvester Co. v. Heidel et al supra; Grigsby v. Puree) 1, 99 U. S. 505; Richardson v. Green, 130 U. S. 104, 9 Sup. Ct. 443; Fayolle v. R. R. Co., 124 U. S. 519, 8 Sup. Ct. 588; Spoore v. Fannon, 16 N. Y. 620; Smith v. Solomon (Cal.) 24 Pac. 286; Tile Works v. Hall, (Neb.) 44 N. W. 45. RULE 8, S. D., RULE 10, N. D. CAUSES, ORDER OF ON CALENDAR PRECEDENCE OF OTHER BUSINESS WHEN TRIED DEFENDANT'S PRESENCE UNNECES-- SARY. All criminal causes shall be placed first on the calen- RULE 9, S. D. 465 dar in the order of the date of the filing of the petition, and shall have precedence of all other business, and shall be tried at the term at which the transcript is filed, unless continued or otherwise disposed of; and shall, if practicable, be decided at the same term, and the presence of the defendant in the su- preme court shall in no case be necessary, unless especially ordered by the court. Civil cases in which the state is a party shall immediately follow in the order in which the original papers were filed by this court. [Rule 10, N. D., is the same, except that the last paragraph relative to civil cases, is omitted.] As to notice of argument, and argument of writ of error, on appeal, in criminal cases, see sees. 7516 to 7519, Comp. Laws, sees. 8344 to 8347, Rev. Codes, N. D., chap. 36, ante. As to argument of civil cases in which the state or state official or board is a party, and the position of same on the calendar, see sec. 4821 , Comp. Laws, sec. 5172, Rev. Codes, N. D., pp. 255-6, ante. As to briefs and abstracts in criminal and state cases, consult Rules 15, 16, S. D., Rules 19, 20, N.D., Post. Consult also, Rule 21, S. D., Rule 25, N. D., Posf, as to call of cal- endar. As to transcript, see Rule 7, S. D , Rule 8, N. D., supra. RULE 9, S. D. ORDER OF CIVIL CAUSES ON CALENDARJUDICIAL CIRCUITS PAPERS MUST BE FILED DISTRIBUTION OF CALENDAR. Fif- teen days before the commencement of any term of this court all civil causes, except as provided in Rule 8, shall be placed on the calendar by the clerk, in the order of the several judi- cial circuits, commencing with the First. Causes coming from that circuit shall be placed at the head of the civil calendar in the order of filing the original papers or copies. The clerk shall then proceed to place the causes from the Second judicial circuit, in the same manner, and so on, until the causes from all the judicial "circuits, consecutively, have been placed upon the calendar. No case shall be placed upon the calendar unless the orig- inal papers (or copies) are filed fifteen days before commence- ment of the term, except as provided in Rule 4. 30 TP 466 RULES OF SUPREME COURT. The calendar shall be printed and distributed among the attorneys having causes thereon. Consult Rule 8, S. D., supra, and references there found. RULE II, N. D. SAME, IN ORDER OF FILING TRANSCRIPTS ORDER OF NUM- BERINGCIVIL CAUSES BEFORE TERM. All civil causes shall be placed on the calendar by the clerk in the order of the filing of the transcript, and shall (with the criminal causes) be num- bered consecutively from term to term in one continued series; and no civil cause shall be placed on the calendar after the day preceding the opening of the court, unless ordered by the court. Consult Rule 10, N. D., supra, and references there found. RULE 10, S. D. RULE 14, N. D. JUDGMENT ROLL, PAPERS IN CHRONOLOGICALLY ARRANGED PAGING, ETC., COPY. In making up the judgment rolls or records in all cases to be brought to this court, the parties and the clerks of the courts must arrange and attach together the process, pleadings, orders and proceedings in the chronologi- cal order provided in Rule 12 for the preparation of an abstract; and when copies are prepared for this court they must be plain- ly written, carefully paged, and the lines on each page careful- ly numbered. [Rule 14, N. D. is the same, except that the word "district" precedes the word "courts," and the words "and attach" are omitted; and the refer- ence is to "Rule 16" instead of to "Rule 12."] Consult Rule 7, S. D. Rule 8, N. D. supra, and Rule 12, S. D. and Rule 16, N. D. infra, and decisions thereunder. Consult also, Merchants' Natl. Bank v. McKinney, S. D. ....,60 N. W. 162, cited under said Rule 7, and Wood. v. Nissen, 2 N. D. 26, 49 N. W. 103, cited under Rule 8, N. D. supra. RULE II, S. D., RULE 15, N. D. ASSIGNMENT OF ERRORS, FORM OF-DESIGNATE POINTS EXCEPT- EDTO WHAT ERRORS REGARDED NEW ASSIGNMENT, WHEN. In civil actions and proceedings the appellant shall append to and print with his abstract an assignment of errors, which RULE 11, S. D., RULE 15, N. D. 467 ment need follow no stated form, but must, in a way as specific as the case will allow, point out the errors objected to, and only such as he expects to rely on and ask this court to exam- ine. Among several points in a demurrer, in a motion, in. the instructions, or in other rulings excepted to, it must designate which is relied on as error, and the court will, in its discre- tion, only regard errors which are assigned with the requisite exactness. And in criminal causes the counsel for the plaintiff in error may also file a new assignment of errors in this court, specifically setting forth the errors he desires to have re- viewed, as in this rule provided. [Rule 15, N. D., is the same, except that in lieu of the words "append to and print with his abstract," the words "subjoin to his brief" are used; and the following language is added at the end: "The assignments of error must not quote or duplicate the specifications of error as appended or pre- fixed to bills and statements, but shall refer to the page of the abstract where the particular specification of e.rror is found and also to the page or pages of the abstract in which the matter is found upon which the error is assigned."] Consult, as to transcript, and judgment roll, Rules 10, 7, S. D., Rules 14, 8, N. D., supra, and as to abstract, Rule 12, S. D., Rule 16, N. D., infra', and decisions thereunder. Consult also, as to exceptions, chap. 7, pp. 63-77, ante, and particu- larly sec. 5081, Com p. Laws, sec. 5464, Rev. Codes, N. D., p. 66, ante, and decisions thereunder; and the following special heads, ante, viz.: "Specifi- cation of Particulars," p. 112; "Exceptions," p. 137; "Assignment of Er- ror," p. 138; "Error Reversal," p. 140; "New Trial," p. 151. (a). Assignment of Error Specif cations. Particular Error to be Pointed Out. The particular error upon which the motion for new trial or a reversal of the judgment is relied on, should be pointed out in the assignment of error, and if not properly pre- sented to the court below on motion for a new trial, they will riot be con- sidered in the supreme court. Bush et al v. N. P. R. Co., 3 Dak. 444, 22 N. W. 508.' In Criminal Case, not Specifying Particulars as to Evidence, Were Considered. Assignments of error in a motion for a new trial in a criminal case, that "the verdict is contrary to the evidence," and "the ver- dict is not sustained by the evidence," without specifying in what particulars the evidence is insufficient, were entertained and considered by the supreme court, under sec. 414, Code of Grim. Proc., Dak., (1879) providing that "the point of the exception must be particularly stated in writing*," etc. Terri- tory v. Stone 2 Dak. 155, 4 N. W. 697. But the point was not there decided. 468 RULES OF SUPREME COURT. Indefinite Assignment Disregarded. Where assignments of error are of so general and indefinite a nature as to necessitate an examination of the whole case to ascertain the point presented in argument, they will be dis- regarded. Bill v. Klaus, 4 Dak. 328, 30 N. W. 171; Territory v. Stone, 2 DakT 155, 4 N. W. 697. Paper not Allowed or Settled, not an Assign- ment. A paper attached to the judgment roll and denominated an tk ;ts- signment of error," but which does not appear to have been allowed or set- tled, or to have ever been brought to the attention of the court below, is not an assignment of error. Fargo et al v. Palmer et al, 4 Dak. 232, 29 N. W. 463. Indefinite and Unavailing Exception Two Distinct Proposi- tions. An exception "to that portion of the court's charge commencing with the words (specifying the words), and from there to the end,'' is not an available exception, where the portion of the charge so denned contains two or more distinct and independent propositions. Calkins v. Seabury-Calkins Consol. Mining Co., 5 S. D. 299, 58 N. W. 797. Appellant having failed to assign errors, judgment is affirmed, under court rule 15. Globe Invest. Co. v. Boyum et al, 3 N. D. 538, 58 N. W. 339. Not Based on Exception, Un- availing. An assignment of error not based upon an exception, is not available on appeal. Under rule 16, supreme courtof Dakota Territory (being same as rule 11 of present rules), error in instructions, to be available on appeal, must be specifically pointed out. Different errors cannot be joined in ore assign- ment. Nor will assignments of error not alluded to in appellant's brief, be considered. McCormack v. Phillips, 4 Dak. 506, 34 N. W. 39; Franz Falk Brewing Co. v. Mielenz, 3 5 Dak. 136, 37 N. W. 728. See, also, Caulfield v. Bogle, 2, Dak. 464, UN. W. 511; Bush v. R. R. Co., 3 Dak. 445, 22 N. W. 508. One Ground Specified, Others Waived. The ground of the objection having been particularly stated, all other grounds were waived. Id. Only such assignments of error will be considered as can be examined on the rec- ord remaining after striking out purported evidence from the abstract pur- suant to an amended abstract. Hodges et al v. Bierlien, 4 S. D. 219, 56 N. W. 748. Stating Statutory Grounds, When not Good Assignment. Where no further specification of particulars in which tne evidence is in- sufficient, than the statutory grounds for a new trial, are stated in the as- signments of error, the argument in this court, or in the statement upon which the motion for a new trial is made, such objection will not be con- sidered. National Cash Register Co. v. Ffister et al, 5 S. D. 143, 58 N. W. 270; Pierce v. Manning, 1 S. D. 306, 51 N. W. 332. Must Refer _to Abstract, or Assignment Ignored When Rule Re- laxed. Where assignments of error in this court do not refer to the ab- stract, they are insufficient assignments, under Rule 15, and will not be con- sidered unless, for reasons satisfactory to the court, said rule is relaxed, in furtherance ofjustice, and on such terms as mayjbe deemed just. Hostet- ter v. Brooks Elevator Co., 4 N. D. 357, 61 N.'W. 49; O'Brien v. Miller, 4 RULE 11, S. D., RULE 15, N. D. 469 N. D. 308, 60 N. W. 841; Globe Investment Co. v. Boyum, 3 N. D. 538. 58 N. W. 339. No Errors Assigned in Brief Record Not Examined. In the bill of exceptions no errors are assigned in tbe brief of appellants' counsel filed in this court. Held, under the statutes and rules of court, and upon the authority of Hostecter v. Elevator Co., 4 N. D. 357, 61 N. W. 49, that this court will not examine the record for the purpose of reviewing errors in the procedure below. First Nat. Bk. of Devil's Lake v. Merchant's Nat. Bk. of Devil's Lake et al N. D , 64 N. W. 941 . Errors Discussed in Brief, but Not in Bill, Not Reviewed. Defendant moved in district court, upon a bill of exceptions, to vacate verdict and for new trial, from an order denying which motion he appeals to this court. The bill of excep- tions embodied no specifications of error. Held, that alleged errors of law occurring at the trial, and discussed in appellant's brief, will not be re- viewed by this court. Schmitz v. Heger, N. D , 64 N. W. 943; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. 49; Illstad v. Anderson, 2 N. D. 167, 49 N. W. 659; First Nat. Bk. of Devil's Lake v. Merchants' Nat. Bk. of Devil's Lake et al, .... N. D 64 N. W. 941. In their brief ap- pellant's counsel have attempted to assign certain errors of law occurring at the trial, which errors are discussed at length in such brief. No Refer- ence in Brief to Page of Abstract. There were and could be no specifi- cations of errors in the abstract, as none were contained in the bill; and thei e was no attempt in the assignments of error appended to appellant's brief to refer to any page in the abstract where any specification of error could be found. Held, that such attempted assignments of error were in- insufficient, under Rule 15. Schmitz v. Heger, N. D , 64 N. W. 943; 3 Estee PI. & Pr., sec. 4896, and cases cited. Error Properly Speci- fied in Bill, Rule Relaxed as to Assignments of Error. Where an er- ror of law is properly specified in a bill or statement, this court (pursuant to Rule 15) will, in its discretion, relax the requirement concerning the as- signments of errors in this court when, as in this case, to do so will, in the opinion of this court, be in furtherance of justice. First Nat. Bk of De- corah v. Laughlin et al, 4 N. D. 391, 61 N. W. 473; O'Brien v. Miller, 4 N. D. 308, 60 N. W. 841. Immaterial Errors Not Reviewed. Errors assigned upon immaterial matters will not be reviewed . Daeley et al v. Mpls. & N. Elevator Co.. 4 N. D. 269, 60 N. W. 59. (b). Evidence. 'Evidence Insufficient to Justify Decision" Not Good. An ap- peal alleging generally for error "that the evidence was insufficient to jus- tify the decision," without specifying in what the error consists, in compliance with the statute and the rules of court, will not be considered. Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511; citing sec. 279, Code Civ. Proc. (Comp. Laws, sec. 5081); French v. Lancaster, 2 Dak. 276, 9 N. W. 716; Brown v. Tolls, 7 Cal. 398. Must Specify Excluded or Ad- 470 RULES OF SUPREME COURT. mitted Evidence. Where an assignment of error sets forth that the court erred in admitting or excluding evidence, or otherwise, such assign- ment must specifically designate what evidence is claimed to have been er- roneously admitted or excluded, or what particular act of the court is claim- ed as error. Franz Falk Brewing Co. v. Mielenz, et al, 5 Dak. 136, 37 N. W. 728. An assignment of error means the marking or pointing out of the er- ror. Id. Insufficiency of Evidence Must Specify, or Motion Denied. Where the notice of intention to move for a new trial states as grounds thereof insufficiency of the evidence, and errors in law occurring at the trial, but the record upon which such motion is heard contains no further speci- fication, either of the alleged errors in law or the particulars in which it is claimed the evidence is insufficient, the trial court may properly deny the motion. Billingsly et^al v. Hiles etal, S. D , 61 N. W. 687; Nat. Cash Reg'r Co. v. Pfister, 5 S. D. 143, 58 N. W. 270; Holcomb v. Keliher, 3 S. D. 497, 54 N. W. 535; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; II- stad v. 'Anderson, 2 N. D. 167, 49 N. W. 659; Hayne New Tr. & App., sec. 149, et seq. Insufficiency of Evidence When Question of Considered, Without Specifications Presumption. In Esshom v. Watertown Hotel Co., S. D. ...-., 63 N. W. 229, where the question before the court was insufficiency of evidence to sustain the verdict, it was objected by appellant (who sought to have an order granting a new trial set aside) that there was no specification in the bill of exceptions of the particulars in which the evi- dence was insufficient, etc., and that therefore the trial court could not have properly reviewed the evidence on the motion for a new trial, and that for the same reason the supreme court was precluded from reviewing the evi- dence, and could only review questions involving errors of law. To which contention the court reply: "This contention would have great force, had a new trial been denied, as this court would have presumed in such case that the trial court denied the motion for the reason that the particulars in which the evidence was insufficient were not stated in the bill of exceptions. But our understanding of the practice is that when the new trial is granted no presumption will be indulged, but that the defect in the bill of excep- tions will be deemed waived, and the evidence held as considered by the trial court on the motion, as all presumptions are in favor of the correctness of the rulings of the trial court." When Finding-s Presumed to Accord With Evidence. When the evidence upon which a referee bases his findings of fact is not preserved in the bill of exceptions, and the insufficiency of the evidence to sustain such findings is not assigned as error, it will be presumed on appeal that the find- ings accord with and are sustained by the evidence. Adams & Westlake Co. v. Deyette et al, 5 S. D. 418, 59 N. W. 214; Mfg. Co. v. Galloway, 5 S. D. 205, 58 N. W. 56S; Pierce v. Manning, 1 S. D. 306, 51 N. W. 332; Haw- kins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Burnap v. Bank, 96 N. Y. 125; RULE 11, S. D., RULE 15, N. D. 471 Thomson v. Bank, 82 N. Y. 1; Conklin v. Hinds, 16 Minn. 457 (Gil. 411); Foster v. Voigtlander (Kan.), 13Pac. 777. Motion For New Trial, Record Must Show Presumption Review. Where it does not appear by the transcript that a motion for new trial was made either upon a bill of excep- tions or statement of the case, the supreme court will presume there was neither; and assignments of error as to the verdict will not be considered when the evidence is not before the court. St. Croix Lumber Co. v. Pen- nington, 2 Dak. 467, 11 N. W. 497. Information Presumption. When the bill of exceptions does not contain the testimony taken before the state's attorney before filing an information, this court will not act upon the ques- tion of its sufficiency or insufficiency, but will presume that the state's at- torney had sufficient evidence to sustain the action. State v. Brennan, 2 S. D. 384, 50 N. W. 625. (c. ) The Record Scope of Reuiew. Record Must Show Fact of Ruling-, or Facts on Which Made. An assignment alleging error in the ruling of the trial court is unavailable here, where the record does not show that such ruling was made, or the facts upon which it is assumed in argument to have been made. Johnson v. Gilmore, S. D , 60 N. W. 1070. Review Limited to Good Assign- ments. Where the record in this court is not sufficiently full for examina- tion of the main questions of error assigned, while the appeal will not be dismissed, yet the appellant will be confined to such assignments of error as may properly be considered upon the record presented. Ellis v. Wait, 4. S. D. 31, 54 N. W. 925. Stenographer's Transcript Not a Record. The stenographer's tran- script of proceedings at the trial, used on motion for a new trial for the purpose of showing errors of law occurring at the trial, does not constitute an authenticated record, and before this court can review errors occurring at the trial the proceeding must be brought upon the record by bill of ex- ceptions or statement of case. Goose River Bank v. Gilmore et al, 3 N. D. 188, 54 N. W. 1032. An informal transcript, embracing evidence extended by stenographer, annexed by order of the court to the judgment roll, and containing no specification of errors, is neither .a bill of exceptions nor a statement of case, and no part of the judgment roll. Wood v. Nissen, 2 N. D. 26, 49 N. W. 103. Confusion Between Abstract and Assignment. There being confusion between the abstract and the assignment of error, and evidence being objected to as not responsive, and the abstract not con- taining the question to which such evidence was the answer, the record furnishes no ground for holding the ruling of the court below to be errone- ous. Bailey vs. Chicago, M. & St. P. Ry. Co., 3 S. D. 531, 54 N. W. 596. Construction of Contract, When Instruction Presumed Correct No Ex- ception. Where the trial court construed a contract in instructing the jury, and no exceptions are taken to such instructions by either party, such 472 RULES OF SUPREME COURT. construction will be assumed to be correct in the determination of such ap- peal. Brown v. McCall et al, S. D ,60 N. W. 151; Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128; Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728. "Verdict Against Law" When Nothing to Examine Tinder Such Assignment. When the correctness of the instructions to the jury is not questioned, and it is not claimed that the verdict is inconsistent with such instructions, there is nothing for this court to examine under an as- signment that "the verdict is against the law." Bauder v. Schamber et al, S. D , 63 N. W. 227; Hayne New Tr. & App., sec. 99 and cases cited. RULE 12, N. D. CERTIFICATE OF JUDGE TO JUDGMENT ROLL CONTENTS OF- MUST BE IN RECORD. In all civil and criminal actions and in all special proceedings which are brought into this court the judge of the district court shall append to the original judg- ment roll or record filed in the court below, a certificate, signed by him, as follows: In civil actions and special pro- ceedings the certificate shall state in substance that the above and foregoing papers naming each separately are contained in and constitute the judgment roll (or other record as the case may be) and the whole thereof. The original certificate (or copy thereof in cases where a copy is transmitted) must be em- braced in the record sent to this court. The certificate re- quired in criminal cases is indicated by Rule 8 of these rules. Consult Rule 8, N. D. ante. As to judgment roll, see Rule 13, N. D. infra. Judge's Certificate Insufficient. The judge's certificate appended to the record sent to this court certified only that such record contained all testimony "taken" at the trial. Held, this does not bring the case within the terms of chap. 82, laws 1893, requiring that all evidence "offered" in such cases "shall be taken down in writing," and that "all evidence taken as provided by this section shall be certified by the judge." First Nat. Bank of Devil's Lake v. Merchants' Nat. Bank of Devil's Lake et al, N. D , 64 N. W. 941. RULE 13, N. D. JUDGMENT ROLL, CONTAINS WHAT BILLS OF EXCEPTION AND STATEMENTS TO CONFORM TO STATUTEWHEN DISREGARDED, OR STRICKEN SPECIFICATION OF ERROR. The judgment roll men- tioned in Rule 8 must only contain the pleadings, the judg- &ULE 13, N. D. 473 merit, the verdict of the jury, or decision of the judge, the re- port of the referee, if any, the offer of the defendant, if any, the bill of exceptions or statement of the case, as settled and certified by the court or judge, and such orders and papers as have been, by direction of the court or judge, incorporated into and made a part of the judgment roll; also all orders and pa- pers which necessarily involve the merits and affect the judg- ment. Bills of exception and statements of the case, whether to be used on a motion for new trial or on appeal without such motion, must, when brought into this court, be framed in sub- stantial conformity to the requirements of section 5090, Com- piled Laws of 1887, and if such bill or statement fails to con- tain the specifications of errors of law complained of, or, where the finding of fact is attacked, fails to specify the par- ticulars in which the evidence is claimed to be insufficient, such bill or statement will be disregarded. When a bill or state- ment contains superfluous matter, or fails to contain the cer- tificate of the trial judge, as specified in Rule 12 hereof, it will be liable to be stricken out on motion. The specifications re- quired by statute to be embraced in bills of exception and state- ments are vital parts thereof; and such specifications shall be either prefixed or appended to all bills of exception and state- ments, and shall be settled and allowed by the district courts as essential parts thereof. Attention is directed to section 5090 of the Compiled Laws of 1887. Consult Rule 8, N. D., ante, as to judgment roll; and as to judge's cer- tificate, see Rule 12, N. D., supra. Sec. 5090, Comp. Laws, is found on pages 175-178, ante. Bill Containing' No Specifications of Error, Error Disregarded Rule Applies to Court Trials. Where the bill of exceptions contained no specifications of errors of law, held, such errors, if they exist, will not be considered in this court in reviewing the case. This established and statu- tory rule applies to cases of trials to the court, where no motion for new trial is made below, the same as in other cases. Laws 1891, chap. 121; Sup. Ct. Rule 13. Hostetter v. Brooks Elevator Co., 4 N. D. 357, 61 N. W. 49. Exceptions to Findings, When Insufficient. Where exceptions to find- ings of fact do not specify wherein such findings are not justified by the evi- dence, this court will not explore the record to ascertain whether or not the finding is supported by the evidence. Hostetter v. Brooks Elevator Co., 4 N. D. 357, 61 N. W. 49. 474 RULES OF SUPREME COURT. RULE 12, S. D. RULE 16, N. D. ABSTRACT, WHEN SERVED, NUMBER OF CONTENTS AND FORM OF INDEX. In all civil cases the appellant shall deliver or mail to the clerk of this court, twenty (20) days before the first day of the term of the court at which the cause may be heard, at least ten (10) printed copies of an abridgement or ab- stract of the record in the cause, setting forth so much thereof only as is necessary to a full understanding of all the ques- tions presented to this court for decision. He shall at the same time also deliver a copy of the same to the counsel for the re- spondent,, and if there be more than one respondent, to the counsel of each. The abstract shall be prepared and printed in substantially the following form: IN THE SUPREME COURT, State of South Dakota, Term, 18.... f Appellant or JOHN DOE, Plaintiff and \ Respond't, as (case may be. vs. f Appellant or] and \ Respond 't, as RICHARD ROE, Deft, and < Respond't, as j- [ case may be. J COMPLAINT. The plaintiff in his complaint statos his cause of action as follows: (Set out all the com plaint necessary to an understanding of the ques- tions to be presented to this court, and no more. In setting out exhibits omit all merely formal or irrelevant parts, as for example, if the exhibit be a deed or mortgage and no question is raised as to the acknowledgment, omit the acknowledgment. When the defendant has appeared it is useless to incumber the record with the summons or the return of the officer.) DEMURRER. To which complaint the defendant demurred, setting up the following grounds: (State only the grounds of the demurrer, omitting all formal parts. If the pleading was attacked by motion below and the ruling thereon is one of the questions to be considered, set out the motion in the same way and con- tinue.) And on the day of , 18 , the same was submitted to the court, and the court made the following ruling thereon: (Here set out the ruling . In every instance let the abstract be made in the chronological order of the events in the case letting each ruling ap- RULE 12, S. D., RULE 16, N. D. 475 pear in the proper connection. If the defendant pleaded over, and thereby waived his right to appeal from these rulings, no mention of them should be made in the abstract; but it should continue.) ANSWER. Which complaint the defendant answered, setting up the following defenses: (Here set out the defenses, omitting all formal parts. If motions or demurrer were interposed to the pleading, proceed as directed with refer- ence to the complaint. Frame the record so that it will properly present all questions to be re- viewed and raised before issue is joined. When the record shows issue joined proceed.) On the day of 18. . . ., said cause was tried by a jury (or the court, as the case may be) and on the trial the following proceedings were had: (Set out so much of the bill of exceptions, or statement, as is necessary to show the rulings of the court to which exceptions were taken during the progress of the trial; and if the evidence, or any part thereof, be embraced in the bill of exceptions, or statement, epitomize the same carefully so as to only present the matter in regard to which error is alleged.) INSTRUCTIONS. At the proper time the plaintiff (or the defendant, as the case maj be) asked the court to give each of the following instructions to the jury: (Set out the instructions referred to and continue:) Which the court refused as to each instruction, to which several rul- ings the plaintiff (or defendant) at the proper time excepted, and thereupon the court gave the following instructions to the jury: (Set out the instructions.) To the giving of those numbered (give the numbers, if numbered) or, (if not numbered) to the giving of the following portions thereof (setting out the portions), and to the giving of each thereof, plaintiff (or defendant) at the proper time specifically excepted. VERDICT. On the day of 18 the jury returned the following ver- dict into court: (Set out the verdict.) (If the case be tried by the court, instead of the instructions and ver- dict of the jury, set out so much of the findings of fact and conclusions of law, and requests for findings, if any. together with the exceptions relating thereto, as may be necessary to present the errors complained of.) MOTION FOR NEW TRIAL. On the day of 18 the plaintiff (or defendant) moved for a new trial upon the following grounds: 476 RULES OF SUPREME COURT. (Set out the grounds for new trial.) On the day of 18 the court made the following rulings upon said motion: (Set out the record of the rulings) to which the plaintiff (or defendant) at the proper lime excepted. JUDGMENT. On the day of 18 the following judgment was entered: (Set out the judgment entry (or order) appealed from.) On the day of 18 the plaintiff (or defendant) perfected an appeal to the supreme court of the State of South Dakota by serving upon the defendant (or plaintiff, as the case may be) and the clerk of the court of county, , notice of appeal, specifying what was appealed from and what orders, if any, are sought to be reviewed, and by serving and filing an undertaking [when required by law.] (If supersedeas bond was filed state the fact. ) ASSIGNMENT OP ERROR. And the appellant herein says there is manifest error on the face of the record, in this: (Set out the errors assigned.) (This outline is presented for the purpose of indicating the character of the abstracts contemplated by the rule, which, like all the rules, is to be substantially complied with. Of course no formula can be laid down appli- cable to all cases. The rule to be observed in abstracting a case is: Pre- serve everything material to the question to be decided, and omit everything else. ) The abstract must be accompanied by a complete index of its contents. [Rule 16, N. D., is the same, except: 1. That that part thereof under the head of "Answer," within the last parenthesis, is as follows: "(Set out so much of the bill of exceptions, or statement containing ex- ceptions, as is necessary to show the rulings of the court to which excep- tions were taken during progress of the trial; and if the evidence or any part thereof be embraced in the bill of exceptions, or statement containing ex- ceptions, epitomize the same by excluding all superfluous matter and un- necessary verbiage. Where a review of the verdict or findings of fact is sought upon the ground that the evidence is insufficient to justify the same, the evidence shall be reduced to a narrative form, except in those particu- lars where a rescript of the stenographer's report becomes necessary to preserve the sense or present the particular points of error. In statements, not less than in bills of exception, all superfluous matter, including all evi- dence not bearing upon specifications, is required to be rigorously excluded. A stenographic report of the trial, if settled and allowed, does not constitute a bill of exceptions or a statement of a case within the meaning of the law, and will not be so regarded by this court. Questions propounded upon RULE 12, S. D., RULE 16, N.. D. 477 which no rulings are made, and objections followed by rulings against the successful party, should be eliminated from the record, unless their preser- vation is necessary to the sense.)" 2. Under the heading ''Motion for New Trial," the introductory parts are as follows: "On the day of , 189 . . . . , the plaintiff (or de- fendant) served notice of intention to move for a new trial, as follows: "(Here insert notice of intention, omitting all form%l parts.) "On the day of , 189 . . . . , the plaintiff (or defendant) moved fora new trial upon the grounds therein specified." 8. The heading "Assignment of Error," and the following matter set forth thereunder, is omitted, viz: "And the appellant herein says there is manifest error on the face of the record, in this: (Set out the errors as- signed.)" 4. The following appears in the N. D. Rule, after the matter con- tained within the final parenthesis under the heading "Assignment of Er- ror" as found in the S. D. Rule, but under the heading "Judgment" in the N. D. Rule, viz: "This rule, with some additions, has been borrowed from the rules of the late Supreme Court of the Territory, and we have continued it in force as a rule governing the preparation of abstracts of the record proper. But in this court we adopt it chiefly for still another purpose for which it is well adapted, viz: as a guide andiiik to be observed in framing statements and bills of exception tobe settled in ilie district courts. Bills of exception and statements must be framed substantially in accordance with the requirements of the statute and this rule of court. When so framed the work of abstracting the record for use in this court will be reduced to the minimum, and will generally relate only to matters of form) "The abstract, when it consists of more than five printed pages, must be followed by an index of its contents. In exceptional cases where a refer- ence to the record proper is desired the appellant must, by apt words, refer the court to such parts of the record as he desires to have examined. All material parts of the record should be embodied in the abstract or amended abstract, and this court will, as a rule, decline to explore the record coming up from the district court."] Consult, as to respondent's abstract, Rule 13, S. D., Rule 17, N. D., in- fra; as to transcript, Rule 7, S. D., Rule 8, N. D., ante; as to judgment roll, Rule 10, S. D., Rule 14, N. D., ante; as to assignment of errors, Rule 11, S. D., Rule 15, N. D., supra. As to printing of abstracts and briefs, see sec. 5631, 5632, Rev. Codes, N. D., p. 254, ante. As to complaint, see sees. 4905 to 4907, Comp. Laws, sees. 5265, 5266, Rev. Codes, N. D. As to demurrer, see sees. 4908 to 4913, Comp. Laws, sees. 5267 to 5272, Rev. Codes, N. D. 478 RULES OF SUPREME COURT. As to answer, see sees. 4914 to 4919, Comp. Laws, sees. 5273 to 5276, Rev. Codes, N. D.; as to reply, see sees. 4918 to 4920, Comp. Laws, sees. 5277 to 5279, Rev. Codes, N. D.; as to motions, see sees. 5323 to 5326, Comp. Laws, sees. 5714 to 5722, Rev. Codes, N. D. As to trial, in circuit or district court, in civil cases, see chap. 3, pp. 12 to 32. ante; and in criminal cases, chap. 29, pp. 371 to 401, ante. As to instructions, in civil cases, see sec. 5048, Comp. Laws, sec. 5432, Rev. Codes, N. D., pp. 14, 15, ante; in criminal cases, various sections In chap. 29, p. 371, et seq, ante. As to verdict, in civil cases, see chap. 4, pp. 32 to 45, ante; in criminal cases, chap. 31, pp. 404 to 414, ante. As to exceptions, in civil cases, see chap. 7, pp. 63 to 77, ante; in crim- inal cases, chap. 32, pp. 414 to 424, ante. As to new trial, in civil cases, see chap. 8, pp. 77 to 189, ante; in crim- inal cases, chap. 33, pp. 424 to 431, ante. As to judgment, in civil cases, see sees. 5095 to 5109, Comp. Laws, sees. 5479 to 5499, Rev. Codes, N. D.; in criminal cases, sees. 7455 to 7473, Comp. Laws, sees. 8278 to 8297, Rev. Codes, N. D. As to appeal, in civil cases, see chap. 9, pp. 189 to 254, ante; as to writ of error, and appeal, in criminal cases, chap. 34, pp. 431 to 441, ante. (a.) Contents of Abstract Record Practice. Abstract Is Record Here, and Must Show Jurisdiction. The print- ed abstract prepared and served by appellants, and consented to by respond- ent, is the record upon which a case is heard in this court, and such ab- stract mut affirmatively show the jurisdiction of this court, or the appeal will be dismissed. Valley City Land & Irrigation Co. v. Schone et al, 2 S. D. 344, 50 N. W. 356; First National Bank v. Northwestern Elevator Co., 2 S. D. 356, 50 N. W. 356; Moore v. Vanderburg, 90 N. C. 10; Plummer v. Bank (Iowa), 33 N. W. 150; Redhead v. Baker, 80 Iowa 162, 45 N. W. 733; State v. Brooks (Iowa), 50 N. W. 43. Abstract Showing Notice of Appeal Favorable Presumption Same as to Pleadings and Evidence. A statement in appellant's abstract that due service of "the notice of appeal and undertaking was made and admitted will be accepted as true, in ab- sence of anj thing to the contrary, and it will be presumed that the ap- peal was taken and perfected as required by statute. Bell v. Thomas, .... S. D ,63 N. W. 907; Day v. Ins. Co., 72 la. 597, 34 N. W. 435. It will further be presumed, in absence of an amended or additional abstract, that appellant's abstract contains all the pleadings, files, and evidence that the parties and the trial court deemed essential to a proper determination of the questions presented on appeal. Bell v. Thomas, supra; Randall v. Bui-k Tp., 4. S. D. 337, 57 N. W. 4. Abstract to Correspond With Facts in Transcript. The printed abstract should correspond with the fact of the transcript, Under the rule (former Rule 17, Dak. Ter., the same in sub- RULE 12, S. D., RULE 16, N. D. 479 stance as present Rule 12) the printed abstracts must be made reliable by conforming to the facts of the record. St. Croix Lumber Cov. Penning- ton, 2 Dak. 467 (480), 11 N. W. 497 (503). Evidence Must Be in BillRe- view of Order Stenographer's Notes Not Sufficient Stipulation. The evidence will not be considered on an appeal from a judgment unless em- bodied in a bill of exceptions or statement, and this applies to the review of an order designated in the notice of appeal for review. Stenographer's or referee's notes of the evidence, when so stipulated by the parties, cannot take the place of a bill of exceptions or statement settled by the judge, which must be returned to this court as part of the judgment roll. Mer- chants' Nat'l Bank v. McKinney S. D , 60 N. W. 162. Evidence Not in Bill, Insufficiency of Not Assigned Presumption. When the evidence upon which a referee bases his findings of fact is not preserved in a bill of exceptions, and the insufficiency of the evidence to sustain such findings is not assigned as error, it will be presumed on appeal that the findings accord with and are fully sustained by the evidence. Adams & Westlake Co. v. Deyette et al, 5 S. D. 418, 59 N. W. 214; Barnard & Leas Mfg. Co. v. Galloway et al, 5 S. D. 205, 58 N. W. 565; Pierce v. Manning, 2 S. D. 517, 51 N. W. 332; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774. No Reversal on Emasculated Abstract Presumption in Absence of Pleading. The abstract of appellant discloses the complaint, the affidavit, and the order appointing the receiver in question, and we are asked to set aside the order because the complaint and affidavit do not show sufficient grounds for making it; but reference to the record that has been sent up discloses the fact that in the certificate of the judge who made such order, and which is appended to such record, it appears that the order was made upon the complaint, affidavit, and the answer of the defendant. This answer does not appear in the abstract. Under well established principles, we cannot presume error, nor can we reverse upon an emasculated abstract. We must presume that, if the showing made by the complaint and affidavit be insuffi- cient, it was supplemented either by a statement of sufficient facts, or by consent contained in the answer. Hoffman v. Bank of Minot, 4 N. D. 473, 61 N. W. 1031. Instrument in Evidence, Formal Parts Omitted. The in- strument offered in evidence to which objection is made, or so much thereof or such statement of its contents and character as may be necessary to pre- sent the point of the objection, must be inserted in the abstract; and when not so inserted the objection will be disregarded. Formal and unnecessary parts of the instrument should be omitted. Lewis et al v. St. P., M. & M. Ry. Co., 5 S. D. 148, 58 N. W. 580. Errors Based on Questions and An- swers, Abstract Giving Narrative Form Not Considered. Errors as- signed, based upon objections to interrogations and answers referred to in the assignment by number only cannot be considered on an abstract in which the questions and answers, with their numbers, are not preserved, 480 RULES OF SUPREME COURT. but are condensed and presented in narrative form. Whatever matters it is necessary for this court to know and consider must be presented by the abstract. Bern, et al v. Bern, et al, 4 S. D. 138, 55 N. W. 1102. Indefinite and Unavailing Exception. An exception "to that por- tion of the court's charge commencing with the words (specifying the words), and from there to the end," is not an available exception, where the portion of the charge so defined contains two or more distinct and indepen- dent propositions. Calkins v. Seabury -Calkins Consol. Min. Co., S. D 58 N. W. 797; Banbury v. Sherin, 4 S. D. 88,55N. W. 723; Bouck v. Enos, 61 Wis. 660, 21 N. W. 825. Exception to Instructions, When Too Indefi- nite. An exception as follows: "We except to each of the instructions given by the court to the jury, respectively," is not such an exception as entitles appellant to a review of the general instructions given by the court to the jury. Banbury v. Sherin, 4 S. D. 88, 55 N. W. 723; Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667; Galloway v. McLean, 2 Dak. 372, 9 N. W. 98. Appeal Brings Judgment Boll for Review Court can Examine Nothing Else. An appeal from a judgment of the lower court brings be- fore the supreme court the judgment roll proper for review, and court can look at nothing not contained in and made part of judgment roll. The ap- pellate court is strictly prohibited from examining into or listening to any matters or things dehors the record. Fargo v. Palmer etal 4 Dak. 232, 29 N. W. 463; Gress v. Evans, 1 Dak. 387, 46 N. W. 1132; In Re Opening Gold Street, Deadwood v. Newton, 2 Dak. 151, 3 N. W. 329; French v. Lancaster, 2 Dak. 276, 9 N. W. 716; Golden Terra Min. Co. v. Smith, 2 Dak'. 377, 11 N. W. 98; St. Croix Lnmber Co. v. Pennington, 2 Dak. 467, UN. W.497; Tol- man v. New Mexico & Dak. Mica Co., 4 Dak. 4, 22 N. W. 505. Appeal From Judgment on Pleadings No Bill Review. Where no bill of exceptions is settled and filed on appeal from a judgment entered on the pleadings, ev- idence, report of a referee, and proceedings thereon, the appeal will not be dismissed; but only errors affirmatively appearing on the judgment roll will be reviewed. Merchants' Nat. Bank v. McKinney et al, 1 S. D. 78, 45 N. W. 203. Necessary Papers in Respondent's Attorney's Hands Estoppel to Object to Abstract. Where after diligent search many papers necessary to appear in the abstract could not be found until too late, and were then found in the office of respondent's attorney, and copies were not procurable, respondent cannot object to an appeal on the grounds that such brief and abstract were not served or certified and docketed in time. Merchants' Nat. Bank v. McKinney et al, 1 S. D. 78, 45 N. W. 203. Delay in Serving Abstract and Filing Transcript Dismissal of Appeal. If no abstract or brief was served for nearly a year after appeal taken, and the original papers or copies were not filed in the supreme court for more than a year after ap- RULE 12, S. D., RULE 16, N. D. 481 peal, amd no sufficient explanation is offered for the delay, appeal will be dis- missed. Smith v. Chicago, M. & St. P. R'y Co.,' 4 S. D. 30, 54 N. W. 931; Bank v. Crouch, 3 S. D. 410, 53 N. W. 862; Himebaug-h v. Same, Id. When Abstract Deemed to Claim. Bill Settled and New Trial Moved For Striking 1 Abstract. Where appellant's abstract contains matter, and upon it questions for review, which matter could only be presented by a bill of exceptions or statement and after a motion for new trial in the court be- low, and respondent files no additional abstract denying that a bill of excep- tions or statement was settled or motion for new trial made, the abstract will be considered by the supreme court as claiming that a bill or statement was settled, and motion for new trial made; and in such case a motion to strike out such portions of the abstract as purport to show proceedings of the trial, on the ground that the abstract does not specifically state that a statement or bill was settled and motion for new trial made, will be denied. Jones Lumber & Mercantile Co. v. Paris, 5 S. D. 348, 58 N. W. 813; Thompson v. Silvers, 59 Iowa 670, 13 N. W. 854. Authenticated Record, When Abstract Deemed to Claim. Where an abstract sets out such mat- ter, not jurisdictional, as could only be gathered from a duly authenticated record, it will be construed as claiming that the record was properly authenticated, and in the absence of any denial such facts will be consid- ered by this court as admitted. Searles v. Christensen, S. D ,60 N. W. 29; Mercantile Co. v. Faris, 5 S. D. 348, 58 N. W. 813. Record Not Showing- Alleged Ruling Made, "Unavailing. An assignment alleging error in the ruling of the trial court is unavailable here, where the record does not show that such ruling was made, or the facts upon which it is as- sumed in argument to have been made. Johnson v. Gilmore, S. D. ,60 N. W. 1070. Errors Not Specified in Bill, Disregarded. Errors not specified in bill of exceptions, where motion for a new trial is made on a bill, must be disregarded by the trial court and on appeal. Illstad v. An- derson, 2 N. D. 167, 49 N. W. 659. Presumption of Regularity of Pro- ceedings, When Cannot Prevail Affirmative Showing. The presump- tion in favor of the regularity and validity of the proceedings and judgment of the trial court, and that the questions decided were duly presented, can- not prevail as to any question which the abstract affirmatively shows was not presented. Harkins v. Cooley etal, 5 S. D. 227, 58 N. W. 560. Trial De Novo on Appeal, all Evidence Preserved Treatment of Admitted or Omitted Evidence Exhibits. In cases of actions tried below under chap. 82, laws 1893, and which can only be tried in this court de novo, all evidence offered in the trial court should be preserved in the record, to- gether with the objections thereto, if any; and when the case reaches this court such objections will be passed upon as original questions, and evi- dence improperly excluded below under objections will be considered here, 31 TP 482 RULES OF SUPREME COURT. and evidence improperly admittod below over objections will be excluded here. Respondent cannot complain that all the evidence is not hero when the omitted evidence was excluded on his objection, nor can appellant coin- plain of such omission when it is clear from the record, beyond controversy, that such evidence was properly excluded. Taylor v. Taylor .... S. 1) . . . . , 63 N. W. 893. Lumber Co. v. Mitchell, 61 la. 132, 16 N. W. 52; Taylor v. Kier, 54 la. 645, 7 N. W. 120; Blough v. Van Hoorebeke, 48 la. 40. All ex- hibits offered in the court below, whether received or not, should be identi- fied in this court by the certificate of the trial judge, as admitted exhibits are identified in other cases. Taylor v. Taylor, supra. Certificate Show- ing Substance of Evidence, When Sufficient. A certificate of the judge that the record contains, in substance, all evidence given upon the trial, is sufficient to authorize the court to review the evidence. Territory v. Stone, 2 Dak. 155, 4 N. W. 697; People v. Yorke, 9 Cal. 421; People v. Getty, 49 Cal. 581; People v. Fisher, 51 Cal. 321. Assignments Without Specifica- tions as to Evidence When Good. It seems that assignments in a mo- tion for a new trial in a criminal case, that "the verdict is contrary to the evidence," and, "the verdict is not sustained by the evidence," without spec- ifying in what particulars the evidence is insufficient, are sufficiently defin- ite to be considered. Territory v. Stone, 2 Dak. 155, 4 N. W. 697; People v. Magallones, 15 Cal. 428; People v. Jones, 31 Cal. 566. (b). Conflicting Abstracts Evidence of the Record. Evidence of Service of Appeal Notice Conflicting Abstracts Record Examined. Where appellant's abstract states that notice of appeal is prop- erly served and respondent's abstract denies it, this court will go to the or- iginal records to settle the dispute, upon that question as well as upon the question whether a bill of exceptions or statement was settled. Kehoe v. Hanson et al, S. D , 60 N. W. 31. Abstract Denied When State- ment in Amended Abstract Taken as True Striking From Abstract. Where appellant's abstract sets out what purports to be the evidence used on the trial below, and respondent serves and files an amended abstract de- nj'ing the correctness of appellant's abstract, and alleging that no bill of exceptions or statement was ever settled, and that the purported evidence is no part of the record, which amended abstract is not denied, its statement will be taken as true; and the purported evidence will, upon motion, be stricken from the abstract; and, this being done, only such assignments of error as can be examined on the remaining record will be considered. Hodges et al v. Bierlien, 4 S. D. 219, 56 N. W. 748; Lucas v. Jones, 44 Iowa, 298; Hart v. Jackson, 57 Iowa, 75, 10 N. W. 295; Kent v. Coquillard, 67 la., 500, 25 N. W. 749; Zimmerman v. Insurance Co., 77 Iowa, 350. 42 N. W. 318; Brooke v. Railway Company, 81 Iowa, 504, 47 N. W. 74. Abstract Relied on Original Papers Not Examined, Except on Disa- greement. The rules of the supreme court contemplate a carefully pre- ftULE 12, S. D., RULE 16, N. D. 483 pared abstract, which shall take the place of the original record, for the purpose of the hearing and decision of the case; and the case will be heard and decided upon the abstract, and the original papers will not be exam- ined, except to settle a disagreement between abstracts. Noyes et al v. Lane, 2 S. D. 25, 48 N. W. 322; overruling same case in 1 S. D. 125, 45 N. W. 327. See White v. Savery, 49 Iowa, 197; Farmer v. Sasseen, 63 Iowa, 110, 18 N.W. 714; Eldredge v. Bell, 64 Iowa, 129, 19 N. W. 879; Mielenz v. Quasdorf, 68 Iowa, 627, 28 N. W. 41; Bailey v. Association, 71 Iowa, 690, 27 N. W. 770. Dispute as to Evidence When Additional Abstract Proper. Where appellant includes in his abstract evidence which respondent claims was not before the court below, and does not constitute a part of the bill of ex- ceptions, it is the proper practice to bring the same to the attention of this court by an additional abstract. Tollerton & Stetson Co. v. Casperson, .... S. D , 63 N. W. 908. Entry of Judgment, Conflicting Abstracts as to. Appellant's abstract did not expressly state that the judgment appeal- ed from had been entered or perfected by filing judgment roll prior to tak- ing appeal . Respondents additional abstract stated that no judgment had then been entered or judgment roll filed. The clerk's endorsement on the judg- ment itself showed its entry in judgment book on a date nearly four months after appeal taken. The clerk's certificate showed that at its date, five months subsequent to appeal, no judgment roll had been filed in his office. Held, the appeal should be dismissed. Greenly v. Hopkins, S. D , 64 N. W. 1128. When Amended Abstract Taken as True Affidavit- Striking- Out Evidence Iowa Practice. Where respondent files an amended abstract denying the correctness of appellant's abstract as to cer- tain evidence, and alleging that no bill of exceptions or statement was ever settled, which amended abstract is not in any manner denied, its statement will be taken as true, and upon such abstracts and an affirmative uncontro- verted affidavit that no bill of exceptions or statement has been settled, the purported evidence will upon motion be stricken from the abstract. Hodges et al v. Bierlein, 4 S. D. 219, 56 N. W. 748. Such practice is well settled by the Iowa courts, whence our rules as to the office and effect of abstracts are taken. Id. Lucas v. Jones, 44 la. 298; Hart v. Jackson, 57 la. 75, 10 N. W. 295; Kent v. Coquillard, 67 la. 500, 25 N. W. 749; Zimmerman v. Ins. Co., 77 la. 350, 42 N. W. 318; Brooke v. Ry. Co., 81 la. 504, 47 N. W. 74. Ab- stract Uncontradicted, True Evidence of Court Order. Appellant's ab- stract, if uncontradicted will be treated as true, and where it does not set out the judgment in form, but recites that the case was "submitted to the court," and that, "the court rendered the following judgment and order," and there is nothing in the abstract inconsistent with such recitals, the or- der and judgment referred to will be deemed to have been made by the court and not by the judge. Cleveland v. Evans et al, 5 S. D. 53, 58 N. W. 8; Noyes v. Lane, 2 S. D. 55, 48 N. W. 322; Irrigation Co. v. Schone 2 S. D. 344, 50 N. W. 356. 484 RULES Off 1 SUPREME COURT. (c. ) Motion for New Trial, What Reviewed Without Evidence Not Reviewed Unless Error Assigned Motion for New Trial Statute, Rules, Construed. Where an action is tried to the court, and a motion for new trial on the ground of insufficiency of the evidence to sustain the findings is overruled, an appeal from the judgment does not pre- sent the evidence for review in the supreme court unless error is assigned in overruling the motion for new trial. Pierce et al v. Manning, Sheriff, 1 Dak. 306, 51 N. W. 332. In this case the court say: "Our statute does not specifically provide for an assignment of errors on appeal to the supreme court in civil cases, but the rules of court do, and there would be little dis- agreement as to its necessity or function"; citing Brewing Co. v. Mielenz, 5 Dak. 136, 37 N. W. 728; Wood v. Whitton, 66 Iowa 295, 19 N. W. 907, and -23 . N. W. 675; Steele v. Railway Co., (111. Sup.) 7 N. E. 483; Miller v. Wade, 87 Cal. 410, 25 Pac. 487, Wallace v. Robeson (N. C.), 6 S. E. 650; Oil Co. v. Perry (Ala.), 4 So. 635; Clark v. Schnur, 40 Kas. 72, 19 Pac. 327; Reagan v. Copeland (Tex. Sup.), 14 S. W. 1031; Woodal v. Graeter, 51 Ind. 539. The court in that case further say: "But it may be said that by section 5237, Comp. Laws, 'upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judg- . ment appearing upon the record transmitted,' etc.; but 'may review' is not to be held to mean 'must review,' without regard to compliance with other repuirements of law and practice." See. there citefl, Clark v. Schnur, 40 Kas. 72, 19 Pac. 327; Struthers v. Fuller, 45 Kas. 735, 26 Pac. 471; Carson v. Funk, 27 Kas. 524; Lingerman v. Nave, 31 Ind. 222; Kirch v. Davies, 55 Wis. 287, 11 N. W. 698; Ingraham v. Gildermester, 2 Cal. 483; Nesbit v. Hines, 17 Kas. 316; Railroad Co. v. McCartney, 1 Neb. 398; Kent v. Law- son, 12 Ind. 678; Ford v. Wilson (Ga.), 11 S. E. 559; Westfall v. Dungan, 14 Ohio St. 276; Smith v. Gillett, 50 111. 299; Polk v. State, 4 Mo. 544; Smith v. Hollis, 46 Ark. 21; Whitmore v. Shiverick, 3 Nev. 288; Byrne v. Railroad Co., 29 Minn. 200, 12 N. W. 698. Sufficiency of Evidence Motion for New Trial Necessary for Review of Abstract Must Show. The sufficiency of the evidence to justify a verdict or findings, cannot be inquired into on ap- peal, unless a motion for new trial was made below, and that question was raised on such motion. Evenson v. Webster, 3 S. D. 382, 53 N. W. 747. When it does not affirmatively appear from the abstract that a motion for new trial was made below, the supreme court will assume that no such mo- tion was made. Id. Motion for New Trial Not Jurisdictional Evidence Not Reviewed, Errors of Law Will Be. A motion for new trial is not a prerequisite to an appeal nor Jurisdictional; but where there is no such mo- tion the supreme court will not review the question of sufficiency of the evi- dence to support the verdict. Jones Lumber & Mercantile Co. v. Faris, 5 S. D. 348,58 N. W. 813; Pierce v. Manning, 1 Dak. 306, 51 N. W. 332; Even- RULE 13, S. D., RULE 17, N. D. sen v. Webster, 3 S. D. 382, 53 N. W. 747; but errors of law occurring at the trial and duly excepted to, may be reviewed, on appeal from a judg- ment, though no motion for new trial was made in the trial court. Jones Lumber & Mercantile Co. v. Faris, supra; and see, to same point, Brown v. Tolles, 7 Cal. 398: Carpentier v. Williamson, 25 Cal. 167; Caldweil v. Parks, 47 Cal. 640; Hayne's New Tr. & Appeal, sec. 100, and cases there cited; Earp. v. Railroad Co., 12 Ohio St. 621. The Indiana and Nebraska decis- ions are contrary (see Jones Lumber & Mercantile Co. v. Faris, siipra.) RULE 13, S. D., RULE 17, N. D. RESPONDENT'S ADDITIONAL ABSTRACT, SERVICE OF, HOW AND WHEN MADE ORDER FOR SUPPLEMENTALTERMS. If the respondent shall deem the abstract of the appellant imperfect or unfair, he may within fifteen (15) days after receiving the same, deliver to the counsel of the adverse party, one printed copy, and deliver or mail to the clerk of this court at least ten (10) printed copies of such further or additional abstract as he shall deem necessary to a full understanding of the questions presented to this court for decision. Either party, however, upon notice, or order to show cause, and upon satisfactory showing that through mistake or excusable neglect, he has made or consented to an abstract which is incorrect or imperfect, in any material respect, desig- nated in the notice, may have an order of court allowing him to file a supplemental abstract upon such terms as to the court shall seem just. [Rule 17. N. D., is the same, except that in lieu of the words "at least ten," the word "nine" is used; and in lieu of the words "additional ab- stract," the words "additional abstracts" are used; and the second para- graph, commencing with "Either," is omitted.] Consult, as to appellant's abstract, Rule 12, S. D., Rule 16, N. D., su- pra, and decisions thereunder. (a). Additional Abstract, When Proper Other Remedies. Only Justified When Appellant's Abstract Unfair Additional Matter Costs. Only when respondent is justified in deeming appellant's abstract imperfect or unfair, may he serve an additional abstract. It is only allowable for the purpose of setting out other or additional matter not found in appellant's abstract, and necessary to a full understanding, of the ques- tions to be decided. Except in such cases, no costs for printing an additional abstract will be allowed. Dalbkermeyer v. Scholtes et al, 3 S. D. 183, 486 RULES OF SUPREME COURT. 52 N. W. 871. Evidence in Abstract not in Record, Additional Ab- stract Proper. Where appellant includes in his abstract evidence which respondent claims was not before the court below and does not constitute a part of the bill of exceptions, it is proper practice to bring the same to the attention of this court by an additional abstract. Tollerton & Stetson Co. v. Casperson, S. D , 63 N. W. 908. Informal Undertaking, Addi- tional Abstract Proper. When respondent claims that the affidavit to the undertaking on appeal is insufficient in form, it is proper practice to bring the same before this court by an additional abstract. Tollerton & Stetson Co. v. Casperson, supra. Object of Additional Abstract. The ob- ject of an additional abstract on the part of respondent is to bring before this court some matter of record not contained in appellant's abstract, or to show that some matter that should appear in the record, necessary to per- fect an appeal, has been omitted, or to show that the matter contained in appellant's abstract has not been correctly abstracted from the record. Fol- ey-Wadsworth Imp. Co. v. Porteous, S. D , 63 N. W. 155. Mis- take or Neglect, Mast be Very Exceptional. The excusing circumstan- ces which, under rule 13, justify respondent in asking for permission to file an additional abstract, becauss of mistake or excusable neglect, after a case has been argued, submitted, and decided, should be very exceptional, or the case of unusual importance; and this is not such a case. Ay res, Weather- wax & Reid Co. v. Sundback, sheriff, 5 S. D. 362, 58 N. W. 929. Supple- mental Abstract to Show Publication Notice, Not Allowed, When. Leave to file supplemental abstract for sole purpose of presenting a cor- rected printer's affidavit of publication, not before the trial court, but filed therein, nunc proc tune, long after an appeal had been taken, will not be al- lowed. Iowa State Savings Bank v. Jacobson, . . . . S. D. . ., 66 N. W. 453; Ladd v. Couzins, 35 Mo. 514; Clelland v. People, 4 Colo. 244; Kirby v. Super- ior Court, 68 Cal. 604, 10 Pac. 119. Reargument on New Abstract, When Not Permitted. Where a case is submitted by both sides, and decided, upon an abstract to which no objection is made, an application to reargue upon a new abstract to be presented will be denied, unless the circumstan- ces are very exceptional. Harrison v. Chi. Mil. & St. P. R. Co., . . . .S. D. , 62 N. W. 376. Petition for Rehearing, on Additional Abstract Evidence not in Bill. In Merchants' Nat. Bank. v. McKinney et al, S. D , 60 N. W. 162, plaintiff petitioned for a rehearing in this court, basing the application upon what it denominated "an additional abstract," containing what purports to be an abstract of the evidence given before the referee upon issues as to which it claims the referee made no findings. Such evidence was not contained in any bill of exceptions or statement of case, either upon the original, or upon this second appeal. The applica- tion was denied and the court refused to consider the alleged evidence. Conflict in Abstracts Bill Treated as Statement, and Disregarded Not Cured by Assigning Error. In Billingsley et al v. Hiles etal, S. D. RULE 13, S. D., RULE 17, N. D. 487 ,61 N. W. 687, in considering the state of the record relative to grounds of motion for a new trial, and specification of errors, appellant's abstract not showing any specifications, and respondent's additional abstract stating affirmatively that there was none, the court treated appellant's bill of ex- ceptions as a statement, and, its condition being as above stated, field, that it was a proper case for application of the language of sec. 5090, Comp. Laws, to-wit: "The statement shall be disregarded on the hearing of the motion." Held, further, that these defects are not cured by assignments of error in this court. Consult also, upon the question of conflicting ab- stracts, Greenly v. Hopkins, . . . . S. D , 64 N. W. 1128, cited under preceding rule. Consult also, Bell v. Thomas, S. D ,63 N. W. 907, as to when appellant's abstract is taken to be true as showing appeal taken; cited under preceding -rule. Conflict as to Judgment Entry Amendment Allowed. In McKittrick v. Pardee, S. D , 65 N. W. 23, motion to dismiss appeal was made on the ground that it did not appear from the abstract that any judgment had been entered below. The ab- stract did not in terms state that judgment was entered, nor did respond- ent's abstract assert the contrary, but he relied upon the omission in appel- lant's abstract. Appellant asked leave to amend in that particular, which was granted; and the court assumed, on the merits, that the amendment had been made accordingly. Evidence Not in Record, Motion Proper, Not Additional Abstract. When an appeal is taken from an order, and re- spondent claims that evidence was received on the hearing in the court be low, not contained in the record, the proper practice is to bring the fact of such omission to this court by motion, supported by affidavits, or the cer- tificate of the judge of the court making the order, or both, and not by fil- ing an additional abstract. Foley-Wadsworth Imp. Co. v. Porteous, S. D ,63 N. W. 155. Insufficient Record, Review Restricted. Where the record in this court is not sufficiently full for the examination of the main questions of error assigned, appellant will be confined to such assign- ments of error as may properly be considered upon the record presented. Ellis v. Wait, 4 S. D. 31, 54 N. W. 925. Costs Unnecessary Additional Abstract. Respondent's abstract being entirely unnecessary, no costs are allowed for its printing. Johnson v. Gilmore, S. D , 60 N. W. 1070. Duplicating Matter in Furth- er Abstract Costs Not Allowed. When a further abstract, filed under Rule 13, largely duplicates matter contained in appellant's abstract, re- spondent will only be allowed to tax costs for printing such new or addi- tional matter as was necessary to be inserted therein. Aldrich et al v. Wil- marth, 4 S. D. 38, 54 N. W 1051. Additional Abstract, When Justified Costs For, When Disallowed. It is only when respondent is justified in deeming appellant's abstract imperfect or unfair that he may serve addi- tional abstract; and if such additional abstract is clearly unnecessary and 488 RULES OF SUPREME COURT. uncalled for, no costs for printing same will be allowed. Dulbkermeyer v. Scholtes et al, 3 S. D. 183, 52 N. W. 871. (b). Presumptions as to Abstract and Record. All Necessary Evidence Presumed in Bill and Abstract, When. This court will presume, in the absence of a "further or additional ab- struct,'' that all the evidence jnaterial to the questions presented to the court, contained in the bill of exceptions or statement, is incorporated into the abstract, and that the bill of exceptions or statement contains all the ev- idence the parties of the trial court deemed material or essential to a proper determination of the questions presented by the specifications of error. Randall et al v. Burk Tp. etc., et al, 4 S. D. 337, 57 N. W. 4; Hidden v. Jordan, 28 Cal. 312. Presumption That all Essential Evidence in Ab- stractNo Additional. In absence of an additional or amended abstract, it is presumed that all evidence regarded as essential to a determination of the questions is contained in the bill of exceptions or statement of the case in appellant's abstract. Davenport v. Buchanan et al, S. D ,61 N. W. 47; Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4. Abstract is Rec- ord Here. The printed abstract served by appellants, and consented to by respondent, is the record upon which a case is heard in this court. Valley City Land & Irrigation Co. v. Schone et al, 2 S. D. 344, 50 N. W. 356. Ap- pellant's TJncontradicted Abstract, True. An appellant's abstract, if un- contradlcted, will be treated in this court as true. Cleveland v. Evans et al, 5 S. D. 53, 58 N. W. 8. When Abstract Deemed to Claim Certain Steps Taken. Where appellant's abstract presents for review matter which could only be presented by a bill of exceptions or statement and after motion for new trial, and respondent files no additional abstract denying that a bill or statement was settled or motion for new trial made, appellant's abstract will be deemed as claiming that all these steps were taken below; and a motion to strike out such portions of it purporting to show proceedings on the trial, and motion for new trial made, will be denied. Jones Lumber & Mercan- tile Co. v. Paris, 5 S. D. 348, 58 N. W. 813. When Amended Abstract Presumed True. An amended abstract, denying the correctness of appel- lant's abstract, which amended abstract was not in any manner denied, will be taken- as true, and matter contained in the abstract which is the sub- ject of such denial will be stricken therefrom. Hodges et al v. Bierlein 4 S. D. 219, 56 N. W. 748; Lucas v. Jones, 44 la. 298; Hart v. Jackson, 57 la. 75, 10 N. W. 295; Kent v. Coquillard, 67 la. 500, 25 N. W. 749; Zimmerman v. Ins. Co., 77 la. 350, 42 N. W. 318; Brooke v. Ry Co., 81 la. 504, 47 N. W. 74. When Abstract Deemed to Claim Authenticated Record. In the absence of any denial of facts set out in appellant's abstract, the matter con- tained therein being such as could only be gathered from a duly authenti- cated record, it will be construed as claiming that the record was properly authenticated, and such claim will be admitted as true. Searles v. Chris- RULE 13, S. D., RULE 17, N. D. 489 tensen S. D , 60 N. W. 29; Mercantile Co. v. Faris, 5 S. D, 348, 58 N. W. 813. When Presumed That Agreement for Reference Filed. Where it is not stated in the abstract that there was no "agreement of the parties filed with the clerk or entered in the minutes," in connection with giving notice of reference, this court will presume such agreement was so made and filed or entered. Jerauld Co. v. Williams, S. D , 63 N. W. 905; Kent v. Insurance Co., 2 S. D. 300, 50 N. W. 85. Recital of Evi- dence in Additional Abstract Findings. Where the additional abstract recites that all the evidence was before the court below when the referee's report was confirmed and judgment entered, held, that there was a substan- tial compliance wiih the statute requiring referees to report their findings "together with all the evidence taken by them, and all exceptions taken on the hearing." Kent v. Dak. F. & M. Ins. Co., 2 S. D. 300, 50 N. W. 85. (c. ) Record, When Resorted to. Where They Conflict, Record Examined. Appellant's abstract con- tained a certain statement of fact, which was denied in respondent's amend- ed abstract; which conflicting statements made it necessary for the court to examine the original bill of exceptions. Way v. Johnson et al, 5 S. D. 237, 58 N. W. 552. As to Appeal, and Whether Bill Settled. Where ap- pellant's abstract states that notice of appeal was properly served, and re- spondent's abstract denies it, the original records will be examined to settle the dispute, both as to notice of appeal and whether a bill of exceptions or statement was settled. Kehoe v. Hanson et al, S. D , 60 N. W. 31. Only to Settle Dispute. The rules of this court contemplate a carefully prepared abstract, which shall take the place of the original record, for the purpose of the hearing and decision of the case. And the original papers will not be examined, except to settle a disagreement between abstracts. Noyes et al v. Lane, 2 S. D. 55, 48 N. W. 322. Abstract Only Exam- ined, When Respondent to Bring in Omitted Evidence. This court, in determining questions before it, looks only to appellant's abstract, and the further or additional abstract of respondent (if one is filed), unless there is conflict between them which requires examination of the records to set- tle. A respondent claiming there is evidence or other matters of record or in the bill of exceptions sustaining the verdict, findings, or other decision of the court, not contained in appellant's abstract, should bring such evi- dence or other matter before this court by further or additional abstract. Harrison v. Chicago, M. & St. P. Ry. Co., . . . . S. D. . . . , 60 N. W. 405. Affidavit Not Considered Resort to Record. Unless the method pro- vided in Rule 13 of this court is pursued, and a further or additional ab- stract is provided, denying the correctness of appellant's abstract, the lat- ter will be taken as true; and an affidavit denying service of the notice of appeal, submitted with a motion to dismiss, cannot be considered, but the 31i T P 490 RULES OF SUPREME COURT. question must be decided upon the the record properly before us. Billing- hurst v. Spink county et al, 5 S. D. 84, 58 N. W. 272; Irrigation Co. v. Schone, 2 S. D. 344, 50 N. W. 356; Noyes v. Lane, 2 S. D. 55, 48 N. W. 322; Gates v. Brooks, 59 la. 510, 6 N. W. 595, and 13 N. W. 640; Hardy v. Moore, 62 la. 65, 17 N. W. 200; Farmer v. Sassen, 63 la. 110, 18 N. W. 714. Con- flict as to Appeal Notice Record Examined. In McKittrick v. Pardee, S. D , 65 N. W. 23, the court examined the original transcript, on account of the conflicts in abstracts, upon the question whether the proper service of appeal notice and undertaking had been made. Contro- versy as to Contents. Upon a controversy arising as to contents of the record, upon the respective abstracts, record examined. Ellis v. Wait, 4 S. D. 31, 54 N. W. 925. RULE 14, S. D. RULE 18, N. D. BRIEFS, WHEN AND HOW SERVED TO BE PRINTED-CON- TENTS OF. Not less than twenty (20) days before the first day of the term at which any civil cause may be heard, the counsel for the appellant shall serve upon the counsel of the adverse party one copy, and shall deliver or mail to the clerk of this court at least ten (10) copies of his brief; and not less than five (5) days before the first day of such term the respondent shall serve upon the counsel of the adverse party one copy, and de- liver or mail to the clerk of this court at' least ten (10) copies of his brief; which briefs shall be printed and shall contain a statement of the points relied on, and the authorities to be cited in support of the same. [Rule 18, N. D. is the same, except that in lieu of the words "at least ten," the word "nine" is used.] Consult as to briefs in criminal cases, Rule 15^ S. D. Rule 19, N. D. infra; and as to service of briefs in cases in which the state is a party, Rule 16, S. D. Rule 20, N. D. infra. As to form and size of briefs, see Rule 18, S. D. Rule 22, N. D Post.; as to distribution of briefs, see Rule 22, S. D. Rule 26, N. D. Post. When Appeal Dismissed for Want of Briefs, Etc. Respondent Brings up Record. When the record shows that an appeal was taken more than six months previous to the opening of a term of this court, and appellant has prepared no abstract or brief, nor taken any steps towards prosecuting the appeal, nor shown any good reason why he has not done so, the appeal will be dismissed, upon respondent's bringing up the record and moving for that purpose. Himebaugh et al v. Crouch, 3 S. D. 409, 53 N, W. 862; Citizens' Bank of Pierre v, Crouch et al, Id, RULE 15, S. D., RULE 19, N. D. 491 Reproducing From Abstract Quotations From Books and Re- ports, Costs for Disallowed. Although great latitude is conceded to counsel in preparation of printed matter for consideration of this court, a recovery for unnecessarily printing and reproducing in a brief portions of the printed abstract, and lengthy quotations from text-books and reported cases conveniently within our reach, will not ordinarily be allowed. Kirby v. Western Union Tel. Co.,....S. D...., 65 N. W. 482. RULE 15, S. D. RULE 19, N. D. ABSTRACTS AND BRIEFS, CRIMINAL CASES, PRINTED EXCEP- TION, POOR DEFENDANT SERVICE OF ABSTRACTS AND BRIEFS. Rules 12, 13 and 14 are hereby made applicable as well to criminal causes, with the following exceptions and modifica- tions: When because of the poverty of the defendant counsel has been assigned to his defense, and such defendant makes and files with the clerk of this court an affidavit stating in sub- stance that he is financially unable to pay the expense thereof, the printing of such abstracts and briefs may be dispensed with, and only six (6) copies of each of the united abstracts and briefs need be filed with the clerk. And in all criminal causes the abstracts must be served by the plaintiff in error not less than ten (10) days before the return day of the cita- tion; and the amended abstract not less than three (3) days be- fore such return day, and the brief of the plaintiff in error must be served not less than six (6) days before such return day, and the brief of the defendant in error not less than one (1) day before such return day. [Rule 19, N. D. is the same, except that the references at the begin- ning are to "Rules 16, 17 and 18", instead of to "Rules 12, 13 and 14"; and in lieu of the words "only six (6) copies", the words "only eight copies" are used. ] As to abstracts generally, see Rules 12, 13, S. D., Rules 16, 17, N. D., ante; as to briefs, see preceding rule, and decisions under said rules; as to form and size of abstracts and briefs, see Rule 18, S. D., Rule 22, N. D., Post. As to writs of and citations in error, see Rules 5, 6, S. D. and N. D., ante; as to service of briefs in state cases, see Rule 16, S. D., Rule 80, N. D., Post; as to notice of argument in criminal cases, see Rule 17, S. D., Rule 21, N. D., Post. 492 RULES OF SUPREME COURT. RULE 16, S. D., RULE 20, N. D. SERVICE OF CITATION, ABSTRACTS, BRIEFS, ETC., UPON AT- TORNEY GENERAL, IN STATE CASES CRIMINAL CASES. In all cases in which by law the attorney general is required to ap- pear for the state in this court, and in which the state is a par- ty, respondent or defendant in error, the notice of appeal or citation in error, as the case may be, and the abstracts and briefs prescribed by law or the rules of this court, shall be served upon the attorney general; and in criminal causes the citation shall also be served upon the state's attorney of the proper county. [Rule 20, N. D., is the same, except that in lieu of the words "cita- tion shall," the words "citation, abstracts and briefs shall" are used.] As to writs of error and return of citations, see Rules 5 and 6, ante; as, to abstracts and briefs in criminal cases, see Rule 15, S. D., Rule 19, N. D., supra; as to notice of argument in criminal cases, see next rule. The attorney general is required, by sec. 95, Comp. Laws, to "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in the supreme court in which the state shall be interested as a party." By sec. 96, Comp. Laws, it is made his duty, at the request of the governor, auditor or treasurer "to prosecute any official bond or any contract in which the state is interested upon a breach thereof, and to prosecute or defend for the state all actions civil or criminal, relating to any matter connected with either of their departments." RULE 17, S. D., RULE 21, N. D. NOTICE OF ARGUMENT IN CRIMINAL CASES HEARING. The manner of bringing on the argument in criminal causes, and the hearing thereof, are prescribed in section 7516, 7517, 7518, and 7519, Compiled Laws. [Rule 21, N. D. is the same, except that the references therein are: "Sections 489, 490, 491 and 492 of the Code of Criminal Procedure, (Comp. Laws, 1887, sees. 7516, 7517, 7518.)"] As to sections 7516 to 7519. Comp. Laws, (embraced in sees. 8344 to 8347, Rev. Codes, N. D.), see chap. 36, pp. 442 to 444, ante. As to return of and hearing upon citation in error, see Rule 6, ante; as to position of criminal causes on calendar, see Rule 8, S. D. Rule 10, N. D. ante, Rule 21, S. D. Rule 25 N. D. Post. RULE 18, S. D. RULE 22, N. D. FORM AND >SIZE OF ABSTRACTS, BRIEFS, ETC. WHITE PAPER MARGIN FOLIOS TYPE NON-COMPLIANCE, COSTS DI&AL- RULE 20, S. D., RULE 24, N. D. 493 LOWED. All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white pa- per with a margin on top, bottom and outer edge of the leaf, two inches wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long and three and a half inches wide. The folios, numbering from the commence- ment to the end of the case, shall be printed on the outer mar- gin of the page. Small pica, solid, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of this rule shall appear to have been complied with in all pa- pers printed. [Rule 22, N. D., is the same, except that the words "top, bottom and" are omitted.] As to number and service of abstracts, see Rule 12, S. D., Rule 16, N. D., ante; as to respondent's abstract and service thereof, see Rule 13, S. D., Rule 17, N. D., ante; as to number and service of briefs, see Rule 14, S. D., Rule 18, N. D, ante; and as to abstracts and briefs in criminal cases, see Rule 15, S. D., Rule 19, N. D., ante; and as to abstracts and briefs and serv- ice of same in state causes, see Rule 16, S. D., Rule 20, N. D., ante. Rule 2, S. D., Rule 26, N. D., Post, provides for distribution of abstracts and briefs. RULE 19, S. D. RULE 23, N. D. COUNSEL, NUMBER OF TO ARGUE CAUSE SUBMISSION OF ON BRIEFS. Only two counsel shall be permitted to argue for each party in a cause, except in capital cases, and the court may limit the time to be occupied by counsel for each side, be- fore the argument shall commence; and any cause may be sub- mitted on printed arguments or briefs. As to number of counsel who may be heard, in criminal cases, see sec. 7519, Comp. Laws, sec. 8346, Rev. Codes, N. D. p. 444, ante. Consult, as to time occupied by counsel in argument, next Rule; as to call of calendar, Rule 21, S. D. Rule 25, N. D. infra. RULE 20, S. D. RULE 24, N. D. ARGUMENT, TIME ALLOWED FOR PERMISSION FOR MORE. In the argument of a cause not more than one hour shall be oc- cupied by counsel upon each side, exclusive of the time neces- 194 RULES OP SUPREME COURT. sarily occupied in reading the record, unless by the express permission of the court, obtained before commencement of the argument. As to number of counsel to argue cause, see preceding Rule; as to call of calendar, see next rule. RULE 21, S. D. CALENDAR, CALL OF, TWO EACH DAY MOTION DAY CALEN- DAR INDICATES DAY HEARING OF CAUSES CRIMINAL CASES AD- VANCED. The court, on the first day of each term, will com- mence 'calling the causes in the order in which they stand upon the calendar, and will proceed to call not more than two upon each day, until disposition has been made of all causes thereon. The first day, however, upon which each circuit shall be reached, shall be the motion day of that circuit, and no cause shall be heard on that day, except for disposition of motions. The calendar, as printed, shall indicate upon what day each circuit is liable to be reached. No cause shall be heard in advance of the day when it will be reached, in its order, at the rate of two cases per day, un- less by leave of court and consent of counsel for both appellant and respondent. When a case is called, in its order and on its proper day, if the parties, or either of them, are ready, it shall be heard, but if neither of the parties is ready to proceed with the argu- ment or to submit the cause, it shall go to the foot of the calen- dar or be disposed of as the court may direct. Criminal causes may be advanced by leave of the court, on motion of either party. See references below the N. D. rule, infra. RULE 25, N. D. SAME DAY TO DAY DURING TERM TEN CASES LIABLE TO CALL CRIMINAL CASES ADVANCED. The court on the first day in each term shall commence calling the cases for argument in the order in which they stand on the calendar, and proceed from day to day during the term in the same order, (except as hereinafter provided), and if the parties or either of them RULE 22, S. D. 495 shall be ready when the case is called, the same shall be heard. And if neither party shall be ready to proceed in the argu- ment, the case shall go to the foot of the calendar, and be con- tinued or dismissed, as the court may direct. Ten cases only shall be considered as liable to be called on each day during the term, including the one under argument.. Criminal causes may be advanced by leave of the court on motion of either party. As to order of civil causes on the calendar, see Rule 9, S. D. Rule 11, N. D. ante; as to state cases, Rule 8, S. D. Rule 10, N. D. awte;and as to writs of error and citations in criminal cases, see Rules 5 and 6 ante. As to length of time for argument, see Rule 20, S. D. Rule 24, N. D. supra; as to number of counsel who may argue case, Rule 19, S. D. Rule 23, N. D. supra. [AUTHOR'S NOTE. Under the S. D. Rules, the date on which each case on the printed calendar is likely to be reached, is stated immediately above the title thereof, from page to page; and the motion day for each ju- dicial circuit is set forth in a special table at the beginning of the calendar. In practice the particular causes as set down upon the calendar are almost invariably heard on the specified day, unless otherwise disposed of by con- sent of counsel, or on account of noncompliance with the Rules. Criminal causes are placed at the beginning of the calendar, under the heading "State Cases," and those in which the State is a party follow next in order (and immediately preceding the general calendar) under the heading "Pre- ferred Appeals."] As to the power and duty of the supreme court to regulate the prac- tice, and the position of causes on the calendar, etc., see sec. 4821, Com p. Laws, sees. 5172, 5168, Rev. Codes, N. D. pp. 255, 256, 257-8, ante. As to terms of court, see sec. 4821, Comp. Laws, sees. 377, 378, Rev. Codes, N. D. pp. 255, 256, ante. As to continuance of causes over the term, etc., see sec. 5171, Rev. Codes, N. D. p. 257, ante. As to concurrence of judges, in pronouncing judgment, see sec. 4822, Comp. Laws, sec. 5173, Rev. Codes, N. D. p. 258, ante. As to decisions in writing, filing same, see sec. 5169, Rev. Codes, N. D. p. 259, ante. RULE 22, S. D. DISTRIBUTION OF ABSTRACTS AND BRIEFS. The clerk shall distribute the printed abstracts and briefs required by these rules to be furnished him, as follows: One copy of each to each of the judges when the case is called for hearing; one 496 RULES OF SUPREME COURT. copy of each to the reporter of the supreme court, and two copies of each to the state library, and the remaining copies to be by him kept with the papers in the case. RULE 26, N. D. SAME. The clerk shall distribute the printed abstracts and briefs required by these rules to be furnished him, as follows: One copy of each to each of the judges when the case is called for hearing; one copy of each to the reporter of the supreme court, and the remaining copies to he by him kept with the pa- pers in the case. In criminal causes, when under Rule 20, the printing of briefs and abstracts is dispensed with, the clerk shall deliver one copy of each to each of the judges, (two of which, upon the determination of the case, will be returned to the clerk, one for the use of the reporter, and the remaining copy he shall retain with the papers in the case. ) Consult, as to abstracts, Rules 12, 13, 15, 16, S. D., Rules 16, 17, 19, 20, N. D., ante; as to briefs, Rule 14, S. D., Rule 18, N. D., ante. RULE 23, S. D. MOTIONS, IN WRITING-EIGHT DAYS' NOTICE GROUNDS- COPIES SERVED. All motions, except as hereinafter provided, shall be heard upon the motion day for the circuit (see Rule 21) from which the case comes, in which such motion is made. And all motions made or submitted to the court shall be in writing, and upon notice to the adverse party of at least eight (8) days, stating the grounds thereof, but the court may, by order to show cause, fix a shorter time. Copies of the papers upon which the motion will be based shall be served with such notice or order, except that the records of the case on file may be particularly referred to without serving the same. See references and decisions below the N. D. Rule, infra. RULE 27, N. D. SAME AT LEAST ONE DAY'S NOTICE WHEN PAPERS TO ACCOMPANY OPENING AND CLOSE. Motions, except for orders of course, shall be brought upon notice; and when not made upon the records or files of the court, the notice of motion RULE 27, N. D. 497 shall be accompanied by the papers on which the motion is founded, copies of which shall be served with the notice of mo- tion. Motions shall not be taken up until the day following the service thereof, unless the case is sooner reached for hear- ing. Upon the hearing of a motion, or order to show cause, the moving party shall be entitled to open and close; Provided, That the papers on both sides shall be read in the opening. Motion to Dismiss Appeal, Made Only on Motion Day, in What Cases. Under Rule 23 of this court, a motion to dismiss an appeal can only be made on the motion day of the circuit from which the appeal comes, when the grounds of the motion are that the original papers were not transmitted to this court before the commencement of the term, or that the abstract and brief were not served within the time prescribed by the rules of this court. Shickle-Harrison & Howard Iron Co. v. City of Rapid City et al, S. D , 66 N. W. 499. Court May Order Cause Shown on Other Day, When. But the court, by that rule, has reserved to itself the right in special cases to grant an order to show cause, when, in the opinion of the court, the facts stated will authorize such an order; and in such case the same may be heard at a day in the term other thfln that specified in the rule. Id. Order to Show Cause, Returnable Any Time. The rules of this court and the statute allow the hearing of an order to show cause why an appeal should not be dismissed, at any time which may be fixed, in the discretion of the court. State v. Sioux Falls Brewing Co. et al, 2 S. D. 363, 50 N. W. 629. [AUTHOR'S NOTE. The statutory provision involved in the above decisions, is sec. 5325, Comp. Laws, as amended by chap 70, Sess. Laws, 1893, which amended section, as to time for serving notice of motion, reads as follows: "When notice of motion is necessary it must be served six days before the time appointed for the hearing, but the court or judge by order to show cause, may prescribe a shorter time," etc. That section before such amendment required eight days notice; and Rule 23 of the su- preme court was evidently based upon that provision, as to time of service of notice. It has been held, in several unreported cases, that six days' no- tice is now (since said sec. 5325 was so amended) sufficient. Vtt has also been held, under that rule, in various unreported cases where motions were made, that the motion papers must set forth the grounds of the motion, and a failure to do so has been held good ground for denial of a motion to dis- miss an appeal. An unwritten rule of the S. D. court, pertaining to motion papers, re- quires that upon all motions the moving party shall furnish, for use of the judges, three typeivritten copies of tfie original papers (making, together with 32 T P * (This last sentence misstates the view of the supreme court. The eight-day rule is still in full force, the court regarding the amendment of 1893 as inapplicable to practice in the supreme court.) 498 RULES OF SUPREME COURT. the original, four sets of papers); and the same with reference to papers outside of the record, presented by respondent upon the motion. Thin re- quirement slwuld be constantly kept in view by practitioners.] RULE 24, S. D. REHEARING, GRANTED ON PETITION FILED AND SERVED, AT SAME TERM COPIES GROUNDS REMITTITUR HELD ANSWER- HEARING. A petition for rehearing after judgment, can be pre- sented only at the term at which judgment is entered, unless by special leave granted during the term, and must be printed or typewritten, and briefly and distinctly state its grounds; and will not be granted or permitted to be argued unless a judge who concurred in the judgment desires it, and a majority of the court so determines. In each case decided the remittitur, unless otherwi^ spec- ially directed, will be held in this court thirty days from the date of filing the decision. Either party desiring to apply for a rehearing must wrlhin said thirty days file in the office of the clerk of this court five printed or typewritten copies of his pe- tition for such rehearing, supported by such argument and authorities as he may choose serving a copy thereof within the same time upon the opposite attorney, who may, within ten days after receipt thereof, file with the clerk of this court five printed or typewritten copies of his answer thereto, with ar- gument and authorities, and serve a copy thereof on the op- posite attorney. The application for rehearing will then be determined by the court on such petition and answer. If no petition be filed within the time stated, or if such ap- plication be 'denied, the clerk shall forthwith remit the case to the court'below. In order to save the right of either party to move for a rehearing no decision will be filed within thirty days of the final adjournment of any term. See references and decisions below the N. D. Rule, infra. RULE 29, N.D. REHEARING PETITION FILED, WHEN NOT SERVED GROUNDS OF COPIES REMIT1ITUR. STAYED, WHEN ARGUED WHEN-PRE- CEDENCE. Whether a decision is handed down in term time or RULE 29, N. D. 499 in vacation, a petition for a rehearing will be entertained if five copies of the same be filed with the clerk within twenty days after the decision is filed, and the remittitur will be stayed during the twenty days, except in cases where, by special or- der, the court shall direct that the remittitur be sent forthwith to the court below. The petition for a rehearing shall be ex parte, and shall not be orally argued. The petition must be printed or type written, and shall briefly and distinctly state the grounds upon which the rehearing is requested. It need not be served upon opposite counsel. Where a rehearing is granted in term time, the case will not (unless by special or- der of the court) be reargued at the same term except by con- sent. When the rehearing is granted in vacation, and less than six days prior to the first day of the next regular term, the case shall not, except by consent or by special order of the court, be argued at such term. Rearguments of cases shall or- dinarily take precedence on the calendar of all other matters before the court except motions and criminal business. [AUTHOR'S NOTE. All that part of Rule 24, S. D. following the first paragraph, was adopted as an addition thereto, and promulgated, March 18, 1893, to take effect April 4, 1893.] Consult, as to remittitur, Rule 26, S. D. Rule 31, N. D. infra. As to costs, consult same Rules* See, for statutory provisions as to rehearing, sec. 5238, Oomp. Laws, sec. 5628, Rev. Codes, N. D. pp. 250-1, ante, and decisions thereunder; sec. 4822, Comp. Laws, sec. 5173, Rev. Codes, N. D. p. 258, ante. As to remittitur, see same sections, and sec. 5239, Comp. Laws, sec. 5629, Rev. Codes, N. D. p. 253, ante; also sees. 7524, 7525, Comp. Laws, p. 447, ante, and sees. 8350, 8354, 8355, Rev. Codes, N. D. pp. 445, 447, ante. (a.) The Petition The Practice. Petition Must Be at Same Term, or Leave Granted Purpose of Rule. An application for rehearing will not be entertained unless a peti- tion is filed, or at least leave granted therefor, during the term at which the judgment is entered, as provided by Rule 24 of this court. Wright v. Sherman, 3 S. D. 367, 53 N. W. 425. See Brooks v. Railroad Co., 102 U. S. 107. The court in Wright v. Sherman, supra, say: "On account of this rule, and to give counsel in any case time to inform themselves concerning the opinion of this court, and to move for a rehearing, if they so desire, this court has established the practice of filing no decision during the last 500 RULES OF SUPREME COURT. twenty days of the terra." Cannot Be Reheard After Term When De- cided. A case cannot be rearguod and reheard after expiration of the term at which it was decided. Roberts v. Haggert, 4 Dak. 210, 29 N. W. 656. Hudson v. Guestier, 7 Cranch 1; Cameron v. McRoberts, 3 Wheat. 591; Bank of U. S. v. Moss, 6 How. 31; Hunter's lessee v. Wharton, 5 Cranch 316; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch 267; The Hiram, 1 Wheat. 442; The Santa Maria, 10 Wheat. 442; Davis v. Packard, 8 Pet. 323; Boyce's Ex'rs v. Grundy, 9 Pet. 290; Ex Parte Story, 12 Pet. 843; Mitchel v. U. S., 15 Pet. 84. Brown v. Aspden, 14 How. 25; Public Schools v. Walker, 9 Wall. 603; U. S. v. Knight's Adm'rs, 1 Black 488; Preem. on Judgm., sec. 96, and cases there cited. These cases proceed upon the theory that the court loses jurisdiction of the case at the end of the term at which it is heard and decided, for all purposes except the correction of clerical errors in the record. See, Roberts v. Haggert, supra. New Matter Stated Affecting Merits, Considered on Rehearing. When a petition for rehearing states new matter, which may materially af- fect the merits of the main controversy, and which was not considered by the appellate court at the time of rendition of the opinion, a rehearing will be granted for the purpose of considering such new matter. Kirby v. Wes- tern Union Tel. Co., 4 S. D. 439, 57 N. W. 199. Technical Ground Not Granted on, First Raised on Rehearing. Where a re-examination of the record strengthens the confidence of the court in the correctness of the former decision, the decision will not be reversed on a technical ground pre- sented for the first time in petition for rehearing. Mat toon v. Freemont, E. & M. V. R. Co., . . . . S. D , 60 N. W. 740. Not Granted on Ques- tions Not Discussed in Briefs, Nor Assigned as Error. A rehearing will not ordinarily be granted upon questions not discussed by counsel in their briefs, or which are not presented by the assignments of error. John A. Tolman Co. v. Bowerman et al, S. D ,60 N. W. 751. Control- ling Question Must Have Been Overlooked, or Probable Error Commit- ted. A rehearing will only be allowed when it is made to appear that some question which might have been controlling in the case has been overlooked by the court, or where it is made to appear that this court has probably committed an error in the decision of a question raised and argued. Grigs- by et al v. Minnehaha county, S. D , 64 N. W. 179. Restating Former Position, Reiterating Claims, Futile. But where the petition for rehearing only restates the position taken, and reiterates the claims made on the original argument, whether oral or printed, a rehearing will not be allowed upon a suggestion that upon a reargument petitioner could satisfy the court that its former decision was wrong. Id. Death of Judge No Reargument of Submitted Case. The death of a member of this court and the qualification of his successor, does not ren- der necessary a reargument of a case argued and submitted prior to the RULE 29, N. D. 501 death of such deceased member, where the surviving judges, constituting then and now a majority of the court, are agreed as to its disposition. State v. Sioux Falls Brewing Co. et al, 5 S. D. 360, 58 N. W. 928. Costs on Rehearing Reversal on Other Ground. In Brown et al v. Edmonds, .... N. D , 66 N. W. 310, in adhering to the views formerly announced in sustaining the, order appealed from, on one ground, but re- versing it on another ground, on rehearing, costs were allowed appellant on rehearing. Costs on Rehearing, Same Amount as on Original Argu- ment. For argument on rehearing in this court, the prevailing party is en- titled to receive, as a part of his costs and disbursements, a sum equal to the amount allowed for the original argument. Kirby v. Western Union Tel. Co., .... S. D , 65 N. W. 482. (b). On New Abstracts. After Case Submitted Additional Abstract Only in Exceptional Case. After a case on appeal or writ of error has been submitted and de- cided, this court will not permit an additional or amended abstract to be filed, unless the case is a very exceptional one; following Ayres, Weather- wax & Reid Co. v. Sundback, 5 S. D. 362, 58 N. W. 929; Merchants' Nat. Bank v. McKinney, S. D , 60 N. W. 162. Reargument at Next Term on Additional Abstract, Denied. An application for reargument, in a case decided at a former term, and to be allowed to file an additional ab- stract, denied. Ayres, Weatherwax & Reid Co. v. Sundback, 5 S. D. 362, 58 N. W. 929. Unobjectionable Abstract, Case Decided on Reargument on New, Denied, When. Where a case is submitted by both sides, and . decided, upon an abstract to which no objection is made, an application to reargue upon a new abtsract to be presented will be* denied, unless the cir- cumstances are very exceptional. Harrison v. Chicago, M. & St. Paul Ry. Co. S. D , 62 N. W. 376; Ayres, Weatherway & Reid Co., 5 S. D. 362, 58 N. W. 929; Merchants' Nat. Bank v. McKinney, S. D...., 60 N. W. 162. (c). Remand Jurisdiction. No Rehearing After Remittitur Goes Down Jurisdiction Lost. Where, after decision of a case in this court, the remittitur goes down, un- der the rules of court, and without fraud, accident, or inadvertence, this court loses jurisdiction of the case, and will not entertain an application for rehearing. Dempsey v. Billinghurst, S. D , 65 N. W. 427; Haynes, New Tr. & A pp. sec. 292,etseq. and cases cited. Reargument After Remand Denied Effect of Remand. In Bentley et al v. Fraley 1 Dak. 36; 46 N.W. 505 a motion for reargument in the supreme court, after the cause had been there heard, and remanded for a new trial, and a new trial was had, from the de- cision on which another appeal was taken, and the cause was entered on the calendar of the supreme court, and at a subsequent term appellant caused an entry to be made on the calendar, viz, "mis-entered," was denied; the 502 RULES OF SUPREME COURT. decisions below having 1 been upon a motion to confirm a sale, and the ap- pellant contending that the supreme court should have sent down a special mandate to the court below to award execution on the judgment below, upon deciding the case in the first instance, the supreme court having re- manded "the motion and case" to the court below, the effect of which, as held by the court, being to merely open the case for a new trial; it being further contended that the supreme court had not lost jurisdiction by vir- tue of its remanding order. RULE 25, S. D. OPINIONS, IN WRITING, AND FILED. The opinion of the court on all questions reviewed on writ of error or appeal, as well as opinions on all important motions, collateral questions, and points of practice, shall be reduced to writing and filed with the clerk in open court. RULE 30, N. D. SAME ON MOTIONS, ETC., WHEN. The opinion of the court in all cases decided by it, whether originating in the supreme court, or reaching it by appeal or writ of error, will be re- duced to writing and filed with the clerk either in open court or in vacation. The court will also file written opinions upon all motions, collateral questions or points of practice when the same are deemed exceptionally important. Consult, as to remittitur, Rule 24, S. D. Rule 29, N. D. supra. As to announcing and filing opinions, see sec. 4823, Comp. Laws, sec. 5174, Rev. Codes, N. D. p. 258, ante; as to decisions in writing, see sec. 5169, Rev. Codes, N. D. p. 259, ante. As to entry of judgment, and remitting copy, etc., in criminal cases, see sec. 7524, Comp. Laws, sec. 8354, Rev. Codes, N. D. p. 447, ante. RULE 26, S. D. TAXING COSTS INSERTION OF IN JUDGMENT ITEMS AN- NEXED REMITTITUR, CLERK FIRST PAID. It shall be the duty of the clerk to insert the amount of the costs in the body of the order or judgment remitted to the court below, and annex to the same the bill of items taxed in detail; but such order or judgment shall not be remitted in civil causes until thirty days after the filing of the same, unless by special order of the court, or a judge thereof; and not until the clerk's fees in this court shall have been paid. RULE 31, N. D. 503 RULE 31, N. D. SAME ORIGINAL CAUSES, COSTS TAXED HERE, OTHERS BE- LOWREVIEW OF TAXATION OF. In all cases originating in this court the costs and disbursements will be taxed by the clerk of this court. In other cases the costs and disbursements of both courts except the fees of the clerk of this court, which shall be taxed by him without notice shall be taxed in the district court after the remittitur is sent down, and the amount thereof shall be inserted in the judgment of the court below. In civil cases the remittitur will not be transmitted until the fees of the clerk of this court shall first have been paid. In all cases where parties are dissatisfied with any bill of costs as taxed by the clerk of this court the matter complained of will be re- viewed informally and readjusted by this court at any regular session thereof. Consult, as to costs for abstracts, briefs, etc., Rule 18, S. D., Rule 22, N. D., ante; also, decisions under Rule 24, S. D., Rule 29, N. D., supra; also, under Rules 12, 13, 14, S. D., Rules 16, 17, 18, N. D., ante. As to clerk's fees, consult Rule 3, ante, and statutory provisions cited and referred to thereunder. Appeal from Taxation of Costs. Sec. 5190, Com p. Laws, provides: "Any person aggrieved by the tax- ation of costs may appeal therefrom to the court or a judge thereof." (Sec. 380, C. C. P.) [AUTHOR'S NOTE.] No rule has been adopted by the supreme court of South Dakota upon the subject of appeal from taxation of costs. While the above cited section seems not to have been construed by the court, it is re- garded as applying to costs taxed in the, supreme court, as well as to those taxed in the circuit court; and appeals are regularly allowed in the supreme court. The practice is somewhat informal, and is substantially as follows: The attorney of the objecting party, at the time of taxing costs, files with the clerk any written objections which he may desire to make to the taxation of any items of costs contained in the notice of taxation; and if the objections are overruled by the clerk and such items are taxed, it is usual for the attorney to request that the clerk note exceptions, on the notice of taxation, to the rulings of the clerk in allowing the items controverted, though usually the written objections alone are filed. The notice of taxa- tion of costs, together with the objections (and exceptions, if any,) are then handed to the presiding judge by the clerk, pursuant to the appeal. The 504 RULES OF SUPREME COURT. court thereafter considers the case as to costs, upon such appeal, by exam- ination of the papers thus submitted. No formal notice of appeal is usually given or filed, though such practice is proper. The decision upon the appeal is duly announced in open court; of which decision the clerk informs the attorneys of both parties by mail; and the bill of costs is made to con- form to the decision, if any change is made therein upon appeal. No oral argument is heard upon such appeal. Brief reference to statutes and authorities may be made in writing, in connection with the objections above outlined. Upon appeal from taxation of costs, it is usual for the clerk to hold the remittitur until the determination of the appeal. In case application for rehearing is made, such action, in practice, operates to stay further proceedings relative to taxation of costs, until the determination of the application for rehearing; and (in the absence of con- troversy over costs) the clerk usually adds to the sum of the items as origi- nally taxed, the additional costs incidental to the proceedings on rehearing; thus obviating the service of a new notice of taxation, and re-taxation of costs. Reporter's Transcript, Costs for Allowed as Necessary Expense, When Statutes Construed. Sec. 483, Comp. Laws, provides: "The judge may, on application of either party in a criminal case, direct such re- porter to make out and file with the clerk of the court a transcript of his shorthand notes in long hand, when the same is needed in such cause, and he shall receive as a compensation therefor such sum as may be fixed by the judge, not exceeding fifteen cents for each one hundred words, to be audited and paid as provided in section 482." Sec. 482 provides that his compensa- tion shall be "audited and paid by the county or subdivision wherein such service shall be rendered, upon the order of the judge." Sec. 484, Comp. Laws, provides: "Such reporter shall, on the request of either party in a civil or criminal case, make out such transcript and deliver the same to the party desiring it, OP payment of his fees therefor by such party at the rate per folio as provided in section 483,~and the amount allowed such reporter for transcripts required in the case shall be taxable costs." Under these provisions, it was held, that a respondent in the supreme court is entitled to have allowed him, as taxable costs, the amount properly paid for stenog- rapher's transcript, when such expense is shown to have been necessary. Ellis v. Wait, 4 S. D. 504, 57 N. W." 232. It was also held, in that case, that chap. 66, laws 1893, entitled "An act relating to costs in civil actions," does not apply to costs in the supreme court. Costs for Making "Case"- Bill of Exceptions New Trial ''on Minutes" Stenographer's Tran- scriptStatute. Under sec. 1, sub. 3, chap. 11, Sess. Laws of 1883, (Comp. Laws, sec. 5187,) allowing the prevailing party costs "for making and serv- ing a case * * * containing exceptions," such party is entitled to the al- RULE 31, N. D. 505 lowance provided in said section, in the supreme court, where he had made a motion for a new trial in the court below, "on the minutes," and the bill of exceptions was prepared for such motion. First Nat. Bank of Canton v. North, 6 Dak. 136, 50 N. W. 621. In such case the fees paid the stenog- rapher for transcript from which to prepare a bill of exceptions is taxable in the supi-eme court, under sec. 4, chap. 52, Sess. Laws, 1879, (Comp. Laws, sec. 484,) providing that stenographer's fees for transcript "shall be taxable costs." Id. See aldo, Schwalbach v. Chicago, M. & St. P. Ry. Co. 40 N.' W. 579; Bradford v. Vinton, 27 Id, 2; French v. Fitcn, 35, Id, 707; Flood v. Moore, 2 Abb. N. C. 91. Dismissal of Appeal After Argument on Merits Respondent's Costs for Brief. Where an appeal is dismissed on motion at the same term at which the case stands for argument upon its merits, and is so argued, the court reserving its decision on the motion to dismiss, respondent is en- titled to have taxed his proper costs for printing brief on the merits. Dalb- kermeyer v. Scholtes et al, 3 S. D. 183, 52 N. W. 871. Appeal for Delay, Ten Per Cent Damages, When. Sec. 5187, Comp. Laws, subd. 5, provides for costs as follows: "To either party, on appeal to the supreme court, be- fore argument, five dollars; for argument, fifteen dollars; and when a judg- ment is affirmed, the court may, in its discretion, also award damages for the delay, not exceeding ten per cent on the amount of the judgment." Un- der this subdivision, it was held, that whenever the record of a cause clearly shows upon its face, or from facts clearly deducible from it, that the appeal was taken for delay and to hinder and delay the collection of the judgment, the ten per cent damages authorized by said subdivision will be assessed, when the motion to dismiss appeal states that such damages will be insisted upon. Himebaugh et al v. Crouch, 3 S. D. 409, 53 N. W. 862. Unnecessary and Irrelevant Abstract No Costs. Where respondent's abstract is entirely unnecessary (it being in this case taken from stenographer's minutes, not from bill of exceptions, and much of it not the subject of exception,) no costs are allowed for its printing. Johnson v. Gilmore, S. D , 60 N. W. 1070. Costs on Rehearing-, Same as on Original Argument. For argu- ment on rehearing in this court, the prevailing party is entitled to receive, as a part of his costs and disbursements, a sum equal to the amount allowed for the original argument. Kirby v. Western Union Tel. Co., S. D. , 65 N. W. 482. Affirmance in Part, Reversal in Part Costs on Re- hearing. In Brown et al v. Edmonds et al, 5 S. D. 508, 59 N. W. 731, where the order appealed from was vacated in part and affirmed in part, no costs were allowed in supreme court in favor of either party, outside of clerk's costs, taxed against respondents. In the same case, on rehearing, the case having been reversed on grounds not urged upon appeal in the first in- 324 T P RULES OF SUPREME COURT. stance, the court say: "The former order as to costs in this court will not be modified, appellant being allowed costs on rehearing." Appeal From Taxation of, Not Considered, When. An appeal from taxation of costs by the clerk of supreme court will not be considered, as the rule of the court prescribes that costs of such court, in cases originating in a lower court, shall be taxed below after remittitur sent down. Jasper v. Hazen, 1 N. D. 210, 46 N. W. 173. The court in that case say: "In the opinion of this court existing statutes contemplate that in cases originating in courts below all costs and disbursements shall be taxed in the lower court." Jasper v. Hazen, 1 N. D. 210, 46 N. W. 173. RULE 27, S. D., RULE 32, N. D. DISMISSAL OF APPEAL, ON FAILURE TO COMPLY WITH RULES- DISCRETION. A failure to comply with any of the requirements contained in these rules within the times therein provided, will, in the discretion of the court, be cause for dismissal of the appeal, or writ of error, or affirmance of the judgment, as the case may demand. As to service of notice of appeal see Rule 4, ante; as to transcript on appeal, see Rule 7, S. D., Rule 8, N. D., ante; as to writs of error and cita- tions in error, see Rules 5, 6, ante; as to assignment of errors, Rule 11 S. D., Rule 15 N. D., ante', as to service of abstracts and briefs, Rules 12, 13, 14, S. D., Rules 16, 17, 18, N. D. ante; as to form and size of same, Rule 18 S. D., Rule 22, N. D. ante; as to service of various papers in state causes, Rule 16 S. D., Rule 20 N. D. ante; and references and decisions thereunder. As to what jadgments may be appealed from, sec sees. 5213, 5214, Comp. Laws, sees. 5603, 5604, Rev. Codes, pp. 189, 194, ante; as to appealable orders, see sec. 5236 Comp. Laws, sec. 5626 Rev. Codes N. D., pp. 232 et seq., ante. (a. ) Motion to Dismiss Appeal, When Returnable. Motion Returnable Order on Motion Day, When Only to Show Cause any Day, When. Under Rule 23, a motion to dismiss an appeal can only be made on the motion day of the circuit from which the appeal comes, when the grounds of the motion are that the original papers were not transmitted before commencement of the term, or that the abstract and brief were not served within the prescribed time. Shickle-Harrison & Howard Iron Co. v. City of Rapid City et al, ---- S. D . . . . , 66 N. W. 499. But the court, by that Rule, has reserved to itself the right in special cases to grant an order to show cause, when, in the opinion of the court the facts stated will authorize such an order; and in such case the same may be heard at a day in term other than that specified in the rule. Id. Order to Show Cause on Dismissal, set any Time. An order to show cause why an ap- RULE 27, S. D., RULE 32, N. D. 507 peal to the supreme court shall not be dismissed, may be set for hearingoat any time which may be fixed, in the discretion of the court. State v. Sioux Falls Brewing Co. et al, 2 S. D. 363, 50 N. W. 629. (b. ) Notice of Appeal Seruice of, Etc. Service of Appeal Notice Jurisdictional no Waiver by Stipula- tion Appearance. Service of notice of appeal is essential to jurisdiction of the supreme court to review the cause, and cannot be waived by stipula- tion. Want of such notice may be taken advantage of at any time before there is a postive act of submission to the appellate court. In matter of Opening Gold Street, Deadwood, v. Newton, 2 Dak. 39, 8 N. W. 139, 3 N. W. 311. Mere Filing Appeal Notice With Clerk, Insufficient. Under Code Civ. Proc., Dakota Territory, providing that "an appeal must be made by the service of a notice in writing on the adverse party or his attorney, and on the clerk with whom the judgment or order appealed from is en- tered, * * * , ' the mere filing of the notice in the clerk's office fs in- sufficient, and appeal will bo dismissed. Peck v. Phillips, 4 Dak. 430, 34 N. W. 65. (See sec. 5215, Comp. Laws, which section is a substantial substi- tute for sec. 407, C. C. P. upon this point. See, also, the cases cited under said sec. 5215); Valley City Land & Irrigation Co. v. Schone et al, 2 S. D. 344, 50 N. W. 356. Caption of Appeal Notice, Irregularity in, When Not Fatal. Where in the body of the notice of appeal a sufficient refer- ence is made to the judgment appealed from, so that respondents are intel- ligently informed from what, and for what, the appeal is taken, the appeal will not be dismissed for irregularity in the notice of appeal in omitting from the caption the name of one of the parties defendant. Marshall v. Harney Peak Tin Mining, Mill. & Manuf'g Co, 1 S. D. 350, 47 N. W. 290; (on rehearing) 3 S. D. 473, 54 N. W. 272. Voluntary General Appearance, Waiver of Irregular Service of Appeal Notice. A voluntary appearance by respondent, and taking steps in the cause in the appellate court, is a waiver of a mere irregularity in ser- vice of notice of appeal. Holden v. Haserodt, et al, 2 S. D. 220, 49 N. W. 97. Affidavit Denying Service of Appeal Notice, Not Considered Record. Upon motion to dismiss an appeal, an affidavit denying service of notice of appeal cannot be considered; the question will be decided on the record properly before us. Billinghurst v. Spink County et al, 5 S. D. 84, 58 N. W. 272. (c.) Undertaking. Insufficient Appeal Undertaking, New One Permitted. An affi- davit to an undertaking on appeal that does not substantially comply with sec. 5232 Comp. Laws, renders the undertaking ineffectual; but this court, upon a proper showing, and upon such terms as may be just, is authorized to permit a new and sufficient undertaking to be filed in this court; and a 508 RULES OF SUPREME COURT. motion to dismiss appeal will be denied. Tollerton & Stetson Co. v. Casper- son, S. D , 63 N. W. 908. Undertaking, Served on Respond- ent's Attorney, and Respondent, and Filed Good. A motion to dis- miss an appeal on the ground that the appeal was not perfected by service of an undertaking, will be denied, where it appears that the notice was served upon respondent's attorneys of record, and an undertaking was filed with the clerk with the notice of appeal and was served upon the respond- ent personal ly. McKittrick v. Pardee S. D ,65 N. W. 23. (In this case respondent had appeared generally in the supreme court and filed an additional abstract, etc.) Appeal Undertaking, Service on Party, Fil- ing With Clerk, Sufficient. On an appeal to this court, it is sufficient to serve the undertaking on appeal on the opposite party, and file it with the clerk of the trial court. Tollerton & Stetson Co. v. Casperson, S. D. ,63 N. W. 908. Insolvent Surety, No Justification Required Mo- tion Denied. A motion to dismiss the appeal, upon the ground that one of the sureties in the appeal undertaking is insolvent, will be denied where re- spondent neglects to avail himself of his opportunity to test the sufficiency of the sureties under sec 5232 Comp. Laws; sec. 5230 Comp. Laws, is only designed to meet cases where a surety once accepted has subsequently be- come insufficient; nor can respondent obtain an order in this court for a new undertaking upon showing a surety's irresponsibility, known to re- spondent when the undertaking was served. Winton v. Kirby et al, S. D ,60 N. W. 409. (d. ) Delay. Delay, Absence of Diligence, Good Cause for. When it appears that full and ample time has elapsed before the opening of a term of this court, since perfecting appeal, to have complied with all requirements of the statute and rules of court, the appeal will be dismissed, in the absence of diligence or good cause shown why these steps were not taken. Citizens' Bank of Pierre v. Crouch et al, 3 S. D. 410, 53 N. W. 62; Himebaugh et al. v. Crouch, Id. Delay 10 Per Cent Damages for, When. When it ap- pears that the appeal was taken for delay, and to hinder and delay the col- lection of the judgment, the 10 per cent damages authorized by subd. 5, sec. 5187, Comp. Laws, will be assessed, when the motion to dismiss states that such damages will be insisted upon. Himebaugh et al. v. Crouch, 3 S. D. 410, 53 N. W. 862. Delay in Filing Papers, Serving Abstract, Appeal Dismissed. Where more than a year has elapsed since appeal taken, and no papers on appeal are filed, and no abstract or brief served for nearly a year after appeal taken, this court will dismiss an appeal, if no sufficient explanation or excuse is offered for the delay. Sirith v. Chicago, M. & St. P. Ry. Co. 4 S. D. 30, 54 N. W. 931; Bank v. Crouch, 3 S. D. 410, 53 N. W. 862. Failure to Serve Brief and Abstract Papers in Respondent's At- torney's Hands Estoppel. Respondent cannot object to an appeal, and RUEE 27, S. D., RULE 32, N. D. 509 successfully move for dismissal of appeal, where the failure of appellant to serve brief and abstract, or have same certified and docketed, in time, arises from the fact that papers necessary to appear in the abstract were in the office of respondent's attorney and had been diligently searched for, and copies could not be obtained. Merchants' Nat. Bank v. McKinney et al, 1 S. D. 98, 45 N. W. 203. Appeal Over Two Years After Judgment Dis- missed Revoking Attorney's License. An appeal from a district or cir- cuit court, taken more than two years after the rendition and filing of the judgment, gives this court no jurisdiction, and must be dismissed. This rule applies to an appeal under sec. 477, Comp. Laws, from a judgment re- voking the license of an attorney and counselor at law. In re Houghton, 5 S. D. 537, 59 N. W. 733. Bill Settled Too Late, Not Good Ground. A motion to dismiss appeal and affirm the judgment below, on the ground that the bill of exceptions attached to the judgment roll was not settled in time, and never legally settled or certified, will be denied; as, if it was never legally settled nor. certified it would constitute no part of the judgment roll, in which case a motion to purge the record by striking out the bill is the proper remedy, and in the absence of such motion the entire record in the judgment roll remains intact, and must be considered in disposing of the case upon the merits. Gram v. No. Pac. R. R. Co., 1 N. D. 252, 46 N: W. 972. Bill Settled Too Late Engrossing Same Appeal Dismissed Statute. After a trial judge has decided and announced what shall be em- bodied in a bill of exceptions, it is not his duty to engross the bill and he cannot be said to have neglected to settle puch bill unless he neglects to sign it after presentation to him for signature, engrossed as settled. Held, there is in this case failure to make out that the case falls within the excep- tion to the general rule under the statute, as to time within which the ap- peal should be taken, and appeal is dismissed. Edwards & McCulloch Lum. Co. v. Baker, 3 N. D. 170, 54 N. W. 1026. Notice of Intention Not Served in Time, Not Good Ground. The fact that notice of intention to move for a new trial was not served in time, is not good ground for dismissing the appeal. McKittrick v. Pardee, S. D , 65 N. W. 23. Appellant's Brief Not Served, Abstract Not Indexed, Not Good Ground. A motion to dismiss the appeal because appellant has served no brief as required by the rules of court and by a certain order of court, and that appellant's ab- stract is not indexed, does not present such grounds as, under the circum- stances in this case, require this court to exercise its power of dismissal; this case being an exceptional one. McKittrick v. Pardee, S. D , 65 N. W. 23. (e. ) When Appeal Lies. Order Without Jurisdiction, Refusing Vacation of Appealable Order, Appealable. The rule that an order refusing to set aside an appealable order is riot appealable, is not imperative where the first order was plainly 510 RULES OP SUPREME COURT. made without jurisdiction; and a motion to dismiss such appeal will be de- nied. Thompson & Sons Mf'g Co. v. Guenthner et al, 5 S. D. 504, 59 N. W. 727; Vert v. Vert, 3 S. D. 619, 54 N. W. 655. Judge's Decision, Not Court Abstract Showed Court Judgment Motion Denied. Respondent moved to dismiss the appeal for the reason that the judgment upon a demurrer to the answer made in the court below was not made or rendered by the court 4 but by the judge, and was not the subject of an appeal; but as the abstract purports to show that the court rendered the judgment, and respondent having filed no abstract contradicting these facts, the motion to dismiss will be denied. Cleveland v. Evans et al, 5 S. D. 53, 58 N. W. 8. Order of District Court Dismissing Appeal From County Court, Not Appealable Must Be Judgment. An order of the district court, entered in its min- utes by the clerk, directing dismissal of an appeal taken to that court from a judgment of the county court, does not itself accomplish dismissal of the appeal. Until a judgment is entered in the district court upon such order, the action will be pending in the district court; and, while the action is pending in that court an appeal will not lie to this court from the county court, in which the judgment was originally entered. Field et al v. Great Western Elevator Co., .... N. D , 67 N. W. 147; in re Weber, 4 N. D. 119/59 N. W. 523. This rule is the same whether the order of dismissal made by the district court is made upon appellant's motion or upon that of his adversary. Id. Removal of Sheriff New Statute Construed No Ap- peal From Intermediate Order. Sec. 7838, Rev. Codes, considered and con- strued. Said section creates a remedy, and authorizes a proceeding sum- mary in its nature, and peculiar to itself. The statute creating the remedy also establishes the practice governing the proceeding to obtain the rem- edy. The- statute does not contemplate that the proceeding shall be de- layed by appeals from intermediate* orders or rulings, and does not auth- orize any appeal before entry of judgment. Accordingly, held, that an at- tempted appeal to this court by the accused from an order of the district court overruling a demurrer to the written accusation will not lie. Appeal dismissed. In re McCabe, .... N. D , 67 N. W. 143. Judge's Valid Order Not Applicable. An order made by the judge of the court below, under a statute investing the judge, as distinguished from the court, with power to make the order, is not appealable to this court. Brown et al vs. Edmonds et al, 5 S. D. 508, 59 N. W. 731. Motion to Confirm or Vacate and Re-enter Judgment Order Not Appealable. Defendant moved in district court to vacate certain judgments entered in plaintiff's favor, and pending defendant's motion plaintiff made a counter motion, asking either that the judgments be confirmed, or, if vacated on defendant's motion, that a new judgment be entered on the verdict. Both motions were denied in same order. Held, that the practice of mingling distinct and independent matters in one hearing, and disposing of the batch in one order, is con- RULE 27, S. D., RULE 32, N. D. 511 demned. Held, further, that no appeal lies in plaintiff's favor from such order, and the appeal is dismissed. Gould v. Duluth & D. El. Co., 3 N. D. 96, 54 N. W. 316. Action For Municipal Penalty, Appealable. An action to recover a penalty prescribed by a municipal ordinance, not made a criminal act by the general law of the state, is a civil action, and may be brought to this court by appeal. City of Sioux Palls v. Kirby, .... S. D , 60 N. W. 156; City of Huron v. Carter, 5 S. D. 4, 57 N. W. 947. Execution land Sale No Confirmation, No Appeal. No appeal lies from as order denying a motion to set aside a. sale of land on execution, no order confirming' the sale having been made in the court below; such order not being a final order under sec. 10, Code Civil Proc. Dak.; Bond v. Charleen et al, 1 Dak. 215, 46 N. W. 585. See, also, Kingsland v. Bartlett, 28 Barb. 480 (N. Y.), 8 Abb. Pr. 42; Bank v. Newton, 23 N. Y. 160. Appeal Without Authority, Against Appellant's Wish., Dismissed. An appeal will be dismissed when it appears satisfactorily by evidence that it was taken or is being prosecuted without authority, and against the de- sire or wish of the appellant. Dalbkermeyer v. Scholtes et al, 3 S. D. 124, 52 N. W. 26 1 . Appeal by Administrator After Discharge of, Dismissed Power of Substitution. An appeal by and in the name of an administrator, taken after he has been fully discharged and a new administrator appointed and qualified, gives this court no jurisdiction over the estate, or of a cause of action against the estate, and will be dismissed. McCormick H. M. Co. v. Snedigar et al, 3 S. D. 302, 53 N. W. 83. Where this court has acquired no jurisdiction of the administrator of an estate or of the subject-matter of the litigation, it has no power to substitute another party to the action, and a motion made for that purpose will be overruled. McCormick H. M. Co. v. Snedigar et al., 3 S. D. 302, 54 N. W. 814. (f). Double Appeals, etc. Double Appeal From Order Refusing- New Trial for Insufficiency of Evidence, and Later Order, Newly Discovered Evidence. An ap- peal before judgment from an order refusing to set aside a verdict, and to grant a new trial, on the ground of the insufficiency of the evidence, and from a subsequent order refusing the same relief on the ground of newly discovered evidence, is a double appeal, and will be dismissed on motion. An appeal from the judgment might bring up both of said orders for re- view as intermediate orders involving the merits, and necessarily affecting the judgment, (sec. 5237, Comp. Laws,) but the orders, each being the sub- ject of an independent appeal, cannot be thus united before judgment in a single appeal. Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 546; Sewing Machine Co. v. Gurnee, 38 Wis. 533; Ballou v. Railroad Co,, 53 Wis. 150, 10 N. W. 87. Appeal From Judgment, And Order Denying New Trial After Judgment, not Double. An appeal from a judgment and from an 512 RULES OF SUPREME COURT. order overruling a motion for new trial, made after judgment, on the ground of insufficiency of the evidence to sustain the verdict, will not be dis- missed as a double appeal. Hackett v. Gunderson, 1 S. D. 479, 47 N. W. 540, distinguished. Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Mor- ris v. Niles, 67 Wis. 341, 30 N. W. 353. Appeal From Judgment and Order Denying New Trial Before Judgment Latter Surplusage Mo- tion Denied. If an appeal be taken from the judgment and also from an order denj ing a new trial made before judgment, the latter will be consid- ered as surplusage, and disregarded; and where, upon such appeal, a mo- tion to dismiss the appeal from the order denying a new trial, upon the ground that the same was not taken within 60 days after the notice of the order denying the motion was served upon counsel for appellant, the mo- tion will be denied, as the order denying a new trial would, after such dis- missal, still be before the court for review as an intermediate order. Granger v. Roll et al, S. D , 62 N. W. 970. Court Order Refusing Vaca- tion of Judge's Non-appealable Order Appeal From Both, Not Du- plicity. An appeal from a subsequent order of the court refusing to set aside a judge's non-appealable order, and also from such first or judge's order in one notice, will not be dismissed for duplicity. Brown et al v. Ed- monds et al, 5 S. D. 508, 59 N. W. 731. The order made by the court be- ing appealable, including in the notice the order of the judge, which was not appealable, will not defeat the appeal from the order that was appeal- able. Id. Appeal Perfected Transfers Subject-Matter Subsequent Ap- peal, When Nugatory. An appeal to this court, duly perfected, transfers to this court the subject-matter of the appeal, as to the party appealing; and a subsequent appeal by the same party, while such former appeal is pending, is nugatory. State ex rel Gunderson, v. King et al S. D. . . . , 60 N. W. 75; Hill v. Finnigan, 54 Gal. 311. Appeal by One Defendant, When Others May Appeal After. Where co-defendants answer separately, basing their defense upon inde- pendent grounds, and judgment goes against all, an appeal by one defend- ant who answered separately does not affect the right of other defendants to subsequently appeal from the judgment as to them. State ex rel Gunder- son v. King et al, S. D , 60 N. W. 75. (g). The Merits Generally. Transcript Not Containing Necessary Papers Appeal From Or- der Dismissed. Where the transcript on appeal does not contain all the papers upon which the order below, appealed from, was granted, and the statute relating to sending up of transcripts is wholly disregarded, the ap- peal will be dismissed. Cole et al v. Cady et al, 2 Dak. 29, 3 N. W. 322. Evidence Not of Record, Motion to Bring it in, Not Dismissal. Where a motion is made to dismsss the appeal, on the ground that there was evi- dence not made a matter of record, the appeal will not be dismissed, but RULE 28, N. D. 513 the proper practice is to bring the fact of such omission to this court by motion, supported by affidavits, or the certificate of the trial judge, or both, and then for this court to permit appellant to perfect his record by procur- ing a bill of exceptions to be settled by the trial judge, containing the oral evidence in question; the appeal being taken from an order made upon affi- davits. Foley-Wadsworth Implement Co. v. Porteous, S. D ,63 N. W. 155. Record Insufficient for Examination of Main Questions Review Limited, no Dismissal. An appeal will not be dismissed because the rec- ord brought to this court is not sufficiently full for the examination of the main questions of error assigned; but appellant will be confintd to such as- signments of error as properly appear upon the record. Ellis v. Wait, 4 S. D. 31, 54 N. W. 925; Bank v. McKinney, 1 S. D. 78, 45 N. W. 203. Ab- stract not Showing Entry of Judgment Leave to Amend Amend- ment While Record Here. A motion to dismiss an appeal on the ground that appellant's abstract fails to show that any judgment was ever entered, while he denied, respondent's additional abstract not asserting the contrary, and where appellant, on the hearing, moved for leave to amend the ab- stract by supplying the omission; which amendment, however, must be formally made in the abstract before the record leaves this court. McKit- trick v. Pardee S. D. . . ., 65 N. D. 23. Judgment Entry Conflicting Abstracts Appeal Dismissed. Appel- lant's abstract did not show the judgment appealed from entered or perfect- ed by filing judgment roll prior to appeal; respondent's additional abstract stated that no judgment had then been entered or judgment roll filed; clerk's endorsement on judgment itself showed it was entered nearly four months after appeal was taken; clerk's certificate showed that at this date, five months subsequent to the appeal, no judgment roll had been filed; held, that the appeal should be dismissed. Greenly v. Hopkins,,. .. .S. D , 64 N. W. 1128. Errors on Judgment Roll No Bill Settled, Immaterial. The fact that no bill of exceptions or statement was settled by the trial judge is no gronnd for dismissing an appeal, where some of the errors as- signed are predicated on the judgment roll proper. Kehoe v. Hanson et al, S. D ,60 N. W. 31. No Motion for New Trial Below Not Good Ground. In Waldron v. Evans, 1 Dak. 10, 46 N. W. 607, the court refused to dismiss the appeal, the motion to dismiss having been made upon the ground that no motion fora new trial was made below. No Assignment of Error Judgment Affirmed. Where appellant fails to assign error on ap- peal, as required by court rule number 15 N. D., (Rule 11 S. D.) the judgment will be affirmed. Globe Inv. Co. v. Boyum et al, 3 N. D. 538, 58 N. W. 339. RULE 28, N.D. MOTIONS FOR CONTINUANCE AND DISMISSAL, FOR WHAT DAY NOTICED OTHER MOTIONS. All motions for continuance and 33-T P 514 RULES OF SUPREME COURT. dismissal, and all motions affecting the place of causes upon the calendar shall be noticed for the first day of the term, and will be for hearing previous to the calling of causes for argu- ment. [AUTHOR'S NOTE. By inadvertence in arranging these rules, this rule was omitted from the place in which it was intended to insert it, i. e., immediately below Rule 23, S. D. Rule 27, N. D., ante.] Consult as to motions generally, Rule 27, N. D. ante; as to call of cal- endar, Rule 25, N. D. ante; as to place of causes on calendar, Rule 11, N. D. ante. RULE 28, S. D. ADMISSION OF ATTORNEYS EXAMINATIONS, AND APPLICA- TIONS FOR. Rules of the Supreme Court, South Dakota, regu- lating the examination of candidates for admission to practice as attorneys and counselors at law; being a substitute for Rule 28. 7. When Examination Held. Examinations for admission to practice law in this state under chapter 21 Laws of 1893, shall be held on the first day of each term of the Supreme Court. 2. In Open Court. Such examinations shall be conducted in open court by the judges of said court, or by such attorneys of said court as the presiding judge may appoint for that pur- pose, or by both, in the discretion of the court. 8. Preliminary Qualifications. Prior to such examination each candidate for admission shall present to the court satis- factory evidence that he is a resident of the state; that he is twenty-one years of age; and a certificate of good moral char- acter from a court of record of the state. 4. License, on Satisfactory Examination, Oath Fee. If any candidate shall thus pass a satisfactory examination he shall receive a license as an attorney and counselor at law, upon his taking the oath required by law, and paying the clerk of the court a fee of five dollars. 5. Rejection of Candidate. If the examination of any can- didate shall not be satisfactory to the court, such candidate may be rejected, or the further examination continued until the next or some subsequent term, at the discretion of the court. RULE 38, N. D. 515 6. Applicants From Other States. Applications for admis- sion upon the license or certificate of the Supreme Court of the United States, or of any other state, may be upon motion in open court upon production of such certificate or license and a certificate of good moral character from a court of record of this state. If these are satisfactory to the court the candidate may be admitted by filing with the clerk of this court his oath as required by law and the payment to the clerk of a license fee of five dollars. RULE 38, N. D. ATTORNEYS, HOW ADMITTED APPLICATION ON FOREIGN CER- TIFICATE, MOTION OTHER APPLICATIONS, AT TERM, EXAMINA- TIONS IN COURT RECOMMENDATION EXCEPTIONS. Appli- cations for admission to practice at the bar of this state, when made upon a certificate issued by the courts of any other state, may be made at any regular or special term of this court. Such application shall be upon written motion made by a member of the bar of this court and filed with the clerk, and with such motion shall be filed an affidavit, or the certificate of an attor^ ney of this court, showing that the said applicant is at least twenty -one years of age, of good moral character and an in- habitant of this state, and that such applicant practiced law regularly in the state where he was admitted for at least one year after such admission. All other applications shall be made on the first day of a regular term of this court, and shall be upon like motion, and with such motion shall be filed affi- davits, or the certificate of an attorney of this court, showing that the applicant possesses the qualifications, and has devoted to the study of law the time specified in section 2 of an act ap- proved March 7, 1891. If satisfied with such affidavits, the court shall appoint a committee of not less than three mem- bers of the bar of this court to examine such applicant touch- ing his qualifications to practice as an attorney in the courts of this state. All examinations shall be had in open court unless otherwise directed, and when the examination is not had in open court the applicant shall not be admitted to practice ex- 516 RULES OF SUPREME COURT. cept upon the unanimous written recommendation of the com- mittee making such examination, which recommendation shall be filed with the clerk and attached to and preserved with the motion and affidavits. But any party who has been or may be prior to July 1, 1891, admitted to practice in the district courts of this state, in accordance with the law in force at the time of such admission, may thereafter be admitted to practice in this court under the rules heretofore existing. This rule shall not take effect until July 1, 1891. [AUTHOR'S NOTE.] The substance of the chief provisions of the South Dakota law of 1893, referred to in paragraph 1 of the above Rule, is as follows: Sec. 1 requires that a license to practice law shall be first procured, which authorizes the person obtaining it to practice in all courts of the state; no person being refused license on account of sex. Sec. 2 requires the candidate to first obtain certificate of good moral character from a court of record of this state, and to pass a satisfactory examination before the su- preme court. Sec. 3, that he or she must be twenty-one years of age and a resident of the state; and persons having license or other satisfactory certi- ficate from the supreme court of any other State, or the United States, that he has been regularly admitted, etc., and a certificate of good moral char- acter, may be licensed by the supreme court to practice in this state without examination. Sec. 5, that when attorneys residing in other States or Ter- ritories, and regularly admitted therein, desire to practice in this State, they may be allowed to do so on the same terms and in the same manner as resident attorneys. Sec. 6 prescribes the oath to be taken, being substan- tially the former statutory oath. (See sec. 463, Com p. Laws.) Other pro- visions empower the supreme court to strike the name of an attorney from the roll, and to revoke his license, and the circuit court to suspend him from practice, subject to right of appeal to supreme court. The former Rule 28, S. D. simply referred to the subject to the statu- tory provisions, as follows: "The rules governing the admission of persons to practice as attorneys and counselors at law of this court are prescribed by law. See sections 462, 463 and 464, Compiled Laws." The principal features of the N. D. statute mentioned in the N. D. rule, relative to admission, etc., of attorneys to practice, are as follows: Sec. 1 empowers the supreme court to admit to practice. Sec. 2 re- quires the applicant to be twenty-one years of age, of good moral character, an inhabitant of the State, and to have actually in good faith have pursued a regular course of study of the law for at least two full years, either in the office of a regular practitioner of the State, or in some reputable law school in the United States, or partly in such office and partly in such school; a RULE 30, S. D. 517 school year of not less than thirty-six weeks to be considered equivalent to one year. Sec. 3 provides for examination by supreme court, or a commit- tee of attorneys appointed by it, of applicants. Sec. 4 prescribes the oath. Sec. 5 permits any person becoming a resident, having been admitted in any" other state, to be admitted in the court's discretion, without examination or proof of period of study, on proof that he has regularly practiced one year in the state from which he came after admission there. Sec. 6 em- powers the supreme court to prescribe rules upon the subject. Sec. 7 per- mits attorneys from other states, actually engaged in a cause or matter pending in this state, to appear in and conduct the same, without being sub- ject to the foregoing provisions. Attorney Licensed, by Circuit Court, Admitted in Supreme, With- out Examination Statute Construed Com p. Laws, sec. 462, provided that all qualified persons might be licensed to practice by any court of rec- ord, but no person should be admitted to practice before the supreme court who was not licensed in some circuit court. Laws 1893, chap. 21, amended said section by providing that no one should be licensed except on examina- tion before the supreme court, but that all persons then permitted to prac- tice might continue. Held, that one theretofore licensed in a circuit court could thereafter be admitted without examination in the supreme court. In re Helwig, 5 S. D. 272, 58 N. W. 674. RULE 29, S. D. RULE 33, N. D. PREPARATION OF BRIEFS STATEMENT OF FACTS REFER- ENCE TO ABSTRACT, ONLY STATEMENT READ. In the preparation of briefs in causes to be argued in this court, counsel for ap- pellant or plaintiff in error shall prefix to their brief or argu- ment a concise and true statement of the facts in the case which are material to the points of law to be argued, with proper reference to the folios of the abstract which sustain them, which statement may be read, or its substance stated orally to the court. No further reading of the abstract will be allowed without permission of the court. [Rule 33, N. D. is the same, except that the following additional words appear at the end: "See Rule 15, as to assignment of error."] As to form and size of briefs, see Rule 18, S. D. Rule 22 N. D. ante. RULE 30, S. D. ABSTRACTS AND BRIEFS IN ORIGINAL ACTIONSARGUMENT MUST BE ON. All actions or proceedings originally commenced in this court, except habeas corpus, shall be presented for argu- 518 RULES OF SUPREME COURT. ment on the printed abstracts and briefs, which shall conform to the requirements of Rule 18. As to original jurisdiction of the S. D. supreme court, see sections 3, 4, art. 5, Constitution, (see sec. 3, p. 190, ante) sec. 4820, Comp. Laws, p. 255, ante. As to original actions against the state, in the supreme court, see chap. 1, Laws 1890, S. D. pp. 1, 2. As to original jurisdiction of supreme court of N. D. see sec. 87, (being sec. 3, art. 4,) of N. D. Constitution, pp. 189-90, ante; sec. 5165, Rev. Codes, N. D. p. 255, ante; sec. 5166, Rev. Codes, et seq. RULE 34, N. D. DISMISSAL OF APPEAL, EFFECT OF DISMISSAL WITHOUT PREJUDICE. The dismissal of an appeal is in effect an affirm- ance of the judgment or order appealed from, unless the dis- missal be expressly made without prejudice to another appeal. Consult, as to dismissal of appeal, Rule 32, N. D., ante. RULE 35, N. D. EXECUTIONS OUT OF SUPREME COURT, SIGNING AND SEAL- INGTO WHOM DIRECTED WHERE ENFORCED. Executions signed by the clerk, sealed with the seal of this court, attested of the day when the same issued, may issue out of this court to enforce any judgment for costs made and entered in cases which originate in this court. Such executions may is- sue and be directed to any marshal of the supreme court of North Dakota, and may be enforced in any county in the state in which a transcript of such judgment for costs is filed and docketed. As to enforcement of judgment of supreme court, see sec. 5168, Rev. Codes, N. D. p. 257-8, ante. RULE 36, N. D. WRITS AND PROCESS FROM SUPREME COURT, SIGNING SEAL- ING ATTESTATION WHEN RETURNABLE SAME IN VACATION. All writs and process issued from and out of this court shall be signed by the clerk, sealed with the seal of the court, attested of the day when the same issued, and made returnable at any day in the next term, or in the same term when issued in term time; and a judge may, by endorsement thereon, order RULE 37, N. D. 519 process to be made returnable on any day in vacation, when, in his opinion, the exigency of the case requires it. When pro- cess is made returnable in vacation, the court or judge direct- ing the same to issue shall state in the order allowing the same the time and place when and where the writ shall be re- turnable. As to issuance of writs and process, see sees. 5165 to 5168, Rev. Codes, N. D. (sees. 5165, 5168, are found on pages 255, 277, ante.) RULE 37, N. D. FURTHER RETURN OF CLERK BELOW, WHEN ORDER FOR MADE AFFIDAVIT FOR. If the return made by the clerk of the court below is defective, either party may, on an affidavit specifying the defect or omission, apply to the chief justice or one of the judges of this court for an order that such clerk make a fur- ther return and supply the omission or defect without delay. Consult, as to return of clerk, Rule 9, N. D., ante; as to transcript, Rule 8, N. D., ante. When Too Late for Court Below to Amend Record Must Apply to Supreme Court. When, upon appeal from district court, the original papers are sent to this court, and when the case has been fully argued and submitted upon such record, the trial court has thereafter no authority or power to amend or correct such record, unless upon application to this court, the record is remanded for such purposes. Moore v. Booker et al (on rehearing), N. D , 62 N. W. 607; Levi v. Carrick, 15 Iowa 444; Carmichael v. Vanderburr, 51 Iowa 225, 1 N. W. 477; Perry v. Breed, 117 Mass. 155; Pen rice v. Wallis, 37 Miss. 172; Keyser v. Farr, 105 U. S. 265; State v. Jackson (N. C.), 16 S. E. 906; Elliott, App. Proc., sec. 205. Order Adopting S. D. Rules. Ordered: That the foregoing rules be, and the same are hereby adopt- ed, and shall govern the practice in all actions and proceedings hereafter to be brought into this court, as supplemental to the various provisions of the statute of South Dakota relating thereto. Dated at Pierre, December 19, 1891. Clerk's General Certificate to Rules S. D. SUPREME COURT, ) State of South Dakota, j I, Ivan W. Goodner, Clerk of this Court, do hereby certify that the within and foregoing is a full, true, correct and complete copy of the Rules 520 RULES OF SUPREME COURT. of this Court, as adopted by said Court on the nineteenth day of December, A. D. 1891. Witness my hand and the seal of this court this nineteenth day of De- cember, A. D. 1891. [L. S.] IVAN W. GOODNER, Clerk. Order Adopting N. D. Rules. Ordered: That the above and foregoing rules (38 in number) be, and the same are, hereby adopted as the Rules of Practice of the Supreme Court of North Dakota. Until abrogated or modified, said rules shall govern the practice in this court, and shall be considered supplemental to other provis- ions of law regulating the practice. Except Rule XXXVIII, which does not take effect until July 1, 1891, all of said rules shall take effect upon and after June 5, 1891. Adopted at Bismarck, May 5th, 1891. Clerk's Certificate to Rules, N. D. SUPREME COURT, ] [ss. State of South Dakota. J I, R. D. Hoskins, Clerk of the Supreme Court of North Dakota, do hereby certify that the above and foregoing Rules of Practice of the Su- preme Court of North Dakota are true and correct copies of such rules as adopted by the court at a regular term thereof. Witness my hand and the seal of this court this 5th day of May, A. D. 1891. [L. S.] R. D. HOSKINS, Clerk. [AUTHOR'S NOTE. Following are some general authorities upon the subject of rules of court.] Rules of Court Power to Make Their Relation to Constitutions and Statutes. Meaning of "Rule." The signification of the verb "rule," in the connection in which it is here used, is: To command or require by a rule of court; as to rule the sheriff to return the writ; to rule the defendant to plead. 21 Am. & Eng. Encyc. of Law, 437; Black's Law Diet. Courts Have Inherent Power to Make. Every court of record has an inherent power, irrespective of statute, to make rules for the transaction and regulation of its business. 4 Am. & Eng. Encyc. of Law, 459, and cases cited. Must Not Conflict With. Constitution or Statute. Such rules, however, must not conflict with the constitution or the law of the land. 4 Am. & Eng. Encyc. of Law, 450-1; People v. McClellan, 31 Gal. 101; Suck- RULE 37, N. D. 521 ley v. Rotchford, 12 Grat. (Va.) 60; State v. Fifth Circuit Judges, 37 La. Ann. 696; Campbell v. Shivers, 1 Ariz. 161; Gormerly v. McGlynn, 84 N. Y. 284. May Rescind RulesApplication of. Courts may rescind their rules, or may, in establishing them, reserve the exercise of discretion for particular cases; but a rule made without such qualification must be applied to all cases falling within it, until it is rescinded. 4 Am. & Eng. Encyc. of Law, 451, and cases cited. Court's Own Construction of, Conclusive Ex- ception. In general, the construction of its own rules by a court of general jurisdiction is conclusive: and it is only where wrong is manifest, that this discretion will be interfered with or invaded by an appellate court. 4 Am. & Eng. Encyc. of Law, 451; Gannon v. Fritz, 79 Pa. St. 303; Dailey v. Green, 3 Harris (Pa.) 118. Court May Give Time to Plead, on Condition. A circuit court may give time to plead, upon condition that the party file an affidavit of merits. Scammon v. McKey, 21 111. 556. Requiring Affidavit of Merits. A rule requiring an affidavit of merits may be adopted in the exercise of an un- doubted power possessed by the court. Id. Rule Too Broad, Not Good as to Excess. When a rule has been entered in the exercise of the legiti- mate power possessed by the court, the terms of which are broad enough to embrace cases as to which the court has no right to impose such conditions, the rule is a nullity as to such excess, while it may have full force in cases where the court has a right to impose conditions. Moir et al v. Hopkins etal, 21 111 558. Consult also, upon the general subject of Rules of court, Stanton v. Embry, (U. S.) 3 Otto, 548; Hunnicut v. Peyton, 12 Otto, 333; Thompson v. Hatch, 3 Pick. (Mass.) 512; Life Ins. Co. v. Francisco, 17 Wall. (U. S.) 679; Harris v. Comm. 35 Pa. St. 416. 331 T P Special Index to Rules of Court. SOUTH DAKOTA RULES. Page Rule 1 448 Rule 2 449 Rule 3 450 Rule 4 452 Rule 5 455 Rule 6 457 Rule 7 457 Rule 8 464 Rule 9 465 Rule 10 466 Rule 11 466 Rule 12 474 Rule 13 485 Rule 14 490 Rule 15.. ..491 Page Rule 16 492 Rule 17 492 Rule 18 492 Rule 19 493 Rule 20 493 Rule 21 494 Rule 22 495 Rule 23 496 Rule 24 498 Rule 25 502 Rule 26 502 Rule 27 506 Rule 28 514 Rule 29 517 Rule 30 517 NORTH DAKOTA RULES. Page Rule 1 448 Rule 2 449 Rule 3 451 Rule 4 452 Rule 5 456 Rule 6 457 Rule 7 457 Rule 8 460 Rule 9 463 Rule 10 464 Rule 11 466 Rule 12 472 Rule 13 472 Rule 14 466 Rule 15 466 Rule 16 : 474 Rule 17 485 Rule 18 490 Rule 19. . 491 Page Rule 20 492 Rule 21 492 Rule 22 492 Rule 23 493 Rule 24 493 Rule 25 494 Rule 26 496 Rule 27 496 Rule 28 513 Rule 29 498 Rule 30 502 Rule 31 503 Rule 32 506 Rule 33 517 Rule 34 518 Rule 35....' 518 Rule 36 / 518 Rule 37 519 Rule 38.. 515 INDEX. Abstract. See Record. Bill of Exceptions. Must show appeal, notice presumption . . .205, 211, 478 Stricken out, remaining record 248 Printed, when not required copies 254 Under supreme court rules 474-485 Service, number, contents, form, index 474-81, 517 In criminal cases 491 Record, practice, presumptions, exceptions 478-82 Conflicting, evidence of record 482-4, 489 Motion for new trial, what reviewed without 484 Emasculated, no reversal on 479 Delay in service of dismissal of appeal 480, 508 When deemed to claim bill settled 481, 488 When deemed to claim authenticated record 481, 488 Amended, when taken as true 483, 488 Additional service, order for, terms 485-90 When proper other remedies object of 485-7 Neglect rehearing conflict duplication 486-7 Motion, when proper costs for 487, 505 Presumptions recitals in findings 488-9 When record examined omissions 489-90 Form, size, paper, margin, folios, type, costs 492-3 Distribution of, and briefs 495-6 Indexing, failure, appeal not dismissed for 509 In original actions in supreme court (N. D.) 517-18 Abuse of Discretion. See, New Trial 78, 81-3 In order discharging receiver < 239 Accomplice. Testimony of, conviction, corroboration 387-9 Corroboration necessary cross-examination 388-9 Account Exhibition of, or instrument, to party 310 Accused. See, Defendant. Acquittal. In justices' court 326, 347 Advising, on insufficient evidence 382, 394 Of defendant, to be witness for co-defendant 384 When a bar to another prosecution 400 Action. See, Special Proceeding, Proceedings. What is 283 Remand of criminal, from supreme court 445 526 INDEX. Additional Abstract. See Abstract. To show affidavit of publication leave denied 1 89 When proper on appeal 214, 483, 485-8 Adjournment. See, Term, Calendar, Continuance. Of term, supreme court 257 Of county court. . 276 Of circuit, district court, during jury's deliberation 404 Term of county court called after, of circuit 273 Administration. Letters of, not stayed by appeal 284, 296 Administrator. Appeal by after discharge of, dismissed 511 Admiralty. Libel in statute bond on appeal 218 Affidavit of Merits. By attorney, must know facts 146 Furnished with delayed answer 146, 200 Affirmance. Of judgment, appeal from justice 350 On criminal appeal, original judgment enforced 446 In part, when costs allowed on 505 Dismissal of appeal is, unless without prejudice 518 Dismissal of criminal appeal is, of judgment below 287, 442 Agency. See Contract. In setting of fire, directing verdict 18 Authority to make declarations 90 Authority to execute bank draft, cashier, custom 107. 160 Guaranty agency contract, parol statements 128 Guaranty agency contract, exhausting collateral 160 Statement of agent, receipt of grain 129 States attorney, authority of sue 142 Boundary line, authority to survey 158 Scope of authority, cashier, collecting note 159 Bailee's declaration, as to ownership 159 Loan agent, retaining lawyer through subagent 160 Taking mortgage in settlement of note, agent 160 Ambiguous instructions, estoppel of principal 160 Contract in agent's name agent bound, when 160 Agency sales, guaranty, offsetting commissions 165 For contracting sale of land, evidence of 169-70 Agent. See, Agency. Alimony. Consent order for, discretion 237 Order for temporary, counsel fees, appeal 242, 244 Amendment See, Pleading, Record. Of pleading irregularity, new trial 81-2 Of record, on remand 252 Of appeal bond, jurisdiction changing 313, 318 Of record on appeal, when too late for remand ; 519 Answer. Admitting negligence agency 119 In claim and delivery, general denial 119 INDEX. 527 Plea of property judgment for return 120 Sotting up statute of frauds 120 Informal waiver of summons 121 Not frivolous, general denial 196 And counterclaim, same facts 197 A'fter time, affidavit . 200 In county court : 280 Appeal. See, Undertaking, Bond, Money, Stay of Proceedings; and the various Courts. Bond on, amendment of, discretion 82 Special verdict Judgment what considered on 139 From county com'rs de novo trial V- 139 From order, surpl usage, when 153 Prom judgment alone, new trial, review 155 From judgment, trial by court, what reviewed 155 Review, exception to findings de novo 155 Trial en, on different theory 155 From probate court, retrial when 156 From inferior court, regarded with favor 156 Notice of, on appeal from justice 156 To county court, new trial, new judgment 156 Bill of exceptions, or statement, used on, when 187-8 By one defendant, others appeal afterwards 512 From justices', magistrates', to county court, S. D 264 Jurisdiction of county court, S. D., on 264-5 From justices' court to circuit, district. 311-21, 340-4 In criminal cases 326-9, 348-51 From county court, S. D., to circuit 265 From county court, N. D., to district, supreme 274-5 From probate court to circuit, district 280-8, 291-301 From probate court to supreme 274 From circuit and district, to supreme court 189-254 When no other court of appeal judgment order 189-90 Constitutional provisions governing 189-90 What reviewed parties to 194, 480 Notice of, service of, perfected by party's name 204-6, 211, 452-3, 507 Jurisdictional, must appear loose practice 204-5, 453-4, 478, 507 Undertaking money in lieu of conditions 215-16, 206, 232, 508 New one, default in, one or more, service 225, 227, 507 Sureties, justification, notice of 227-8, 231, 508 Breach of, damages, reference 230-1 Pending former appeal, nugatory 206, 215 Time allowed for, when ripe for 206-7, 209, 508 Transcript on, certificate, expense of 210-11 What is record on amendment of 212-14, 480 Reinstatement of appeal 214 Stay of proceedings on statute sureties 216-223, 228 Not on appeal from intermediate order 222-3 By state, stays execution 224-5 Amendment to perfect, mistake, accident 231-2 Appealable orders non-appealable 232, 243, 207-9, 509-11 What reviewed on, without exceptions 243-8, 480 Intermediate order involving merits 243-5, 510 Motion for new trial, whether necessary to 244-6, 249 Surplusage on double appeal 240-2, 245, 511-12 Evidence on, when not reviewed, new trial 249 Power of supreme court on remittitur rehearing 250-1 Waiver of right to, accepting benefit under. . 251 528 INDEX. Further proceedings below, on dismissal 253 Reinstatement of supreme court rule 463-4 All evidence received below, review on ... 253 New trial on, in supreme court 2.53, 481 Civil cases on, at what term heard 254 Second, to supreme court, calendar 255-512 From circuit court, appel-late decision 2(55 In criminal cases, to supreme court 431-41 What errors reviewed on 4iM Who may, what judgments, appellant, respondent 432, 434, 440 By defendant, by state what cases 434-5 Time for appeal notice, publication filing 435-6 When deemed taken stay, capital cases 4M -7 Certmcate of probable cause on 437 Suspension of execution on, certificate custody 437 Transcript on, filing, clerk, no fees 438 Several defendants, one or more take 440 Bail on, stay inability, certificate 440 Return of execution, discharge of defendant . .440-1 Dismissal of, for irregularity 441-2 Motion, notice another appeal undertaking 441-2 Argument of, when, postponement hearing 443 Affirmance on reversal personal appearance 444 Dismissal of, under rules of supreme court 506-13 For want of brief respondent brings record 490 Costs on, after argument on merits 505 From taxation of costs, generally 503-6 In supreme court, under rules 503 6 Practice in S. D., papers, objections, exceptions 503-4 Appearance. In probate court on appeal from 289, 293 In justice's court, N. D., how made 329 Personal, of defendant, not in supreme court 444 By respondent, waiver of notice of appeal by 454, 507 Appellant See, Parties. Who is, on appeal to supreme court 194 In criminal cases 434 To deposit money with supreme clerk 450-1 Appellate Jurisdiction. See, Jurisdiction. Depends on compliance with statute 453 Must affirmatively appear 453 When motion for new trial unnecessary to 484 Argument. To jury, in civil cases, order of 13 To ]ury, criminal cases restriction 371, 383 Of special verdict, criminal case 407 Of writ of error, appeal, notice, restriction 442-4 Notice of, under supreme court rules 492 Time allowed for, supreme court permission 493-4 Based on abstract and brief 517-18 Arrest. Order of, civil action, affidavit 200 Re-arrest, of defendant, trial in another county 394 Assault. With deadly weapon intent, presumption 376, 410 With intent to kill degrees 376, 409 INDEX. 529 Verdict on charge of misdemeanor 409 And battery with deadly weapon, intent 409 Assault and Battery. See, Assault 409 Assignment of Error. Reference to specifications in 138 Unspecified errors disregarded '. 138 Record must show ruling 138 Shown in abstract attempted, in brief 138-9 In denying motion for new trial 139 In criminal procedure vague assignment 418 Annexed to transcript, supreme court 338 Under supreme court rules 466-72 Joints, specifications, exceptions, abstract 467-9 Brief specification in bill, rule relaxed 469 Evidence, insufficiency, findings, presumption 469 70 Motion for new trial record, review 471 Confusion, abstract ''verdict against law" 471-2 When specifications unnecessary evidence 482 Affirmance of judgment for want of 513 Attachment Affidavit for, denial of vacating 89, 200 Proceedings, no part of pleadings 119 Claim and delivery, officer, release of attachment 143 Affidavits, further time for 144, 200 Affidavits before referee 144, 200 Action on contract, conveyance claim not due 199 Appeal from order in stay 208, 223-4, 238 Of absent jurors 354 Attorney. See, Counsel. Withdrawal of from case new trial 80 Presumption of retainer of 90 Compensation of, skill cross-examination as to 124 Authority of to appear, setting aside judgment 151 Revoking license, appeal 207, 509 Cannot be surety on appeal 228 Fees of, order for, appeal 242 Who may act as, justice's court. 329 Negligence of, collection of collateral 101 Disbarment of statutory grounds only 173 Appointment, substitute for state's attorney 401 Examination, admission of court rules 514-17 Examination, when, in court, preliminary qualifications 514-15 License rejection '. 514-15 Appointment of committee for (N. D.) on motion 515-16 From other states, certificate, on motion 515-16 Statutory provisions licensed by circuit court 516-17 Attorney General. Citation, briefs, etc., served on, supreme court 492 Auterfois Acquit See, Former Acquittal. Bail. See, Undertaking, Money, Deposit. In county courts 269, 277 In justices' courts, procedure 327-8, 348-50 Of witness, on further prosecution of defendant 390 By defendant held for trial, another county 392 530 INDEX. Exoneration of 398-4 Necessary for stay, criminal ap|>cal 4-10 Certificate of giving of. by clerk 440 Bailiff. Interested in case, county court 271-2 Ballots. See, Election Ballots. Of jury, civil action ! In criminal action ',*~>\ -f> Bar. See, Acquittal, Formal Acquittal, Conviction, Former Conviction, Res Judicata. Conviction or acquittal is, to further prosecution, when 400 Former verdict not pleadable in 424-5 Bastardy. Instruction as to preponderance of evidence 23. 2(>4 Proceedings, jurisdiction, county court, S. D 2f>:! 4 Plaintiff in case of 264 Battery. See, Assault ' 409 Bawdy House. Evidence of keeping 379 Beer. Judicial notice of "lager beer" j 107 Bias. See, Challenge. Of juror, in civil action 9-11 Of county judge, S. D 270 Of juror in criminal action 3G6-8 Newspaper statement as basis of 368-9 Bigamy. Proof of marriage cohabitation 397 Bill of Exceptions. See, Exceptions, Statement of Case. Report of referee incorporated in 62 Stenographer's minutes not part of, nor referee's 66 To ruling, when presented , 69 Conformable to truth filing, signing. 69-70 Settlement of, taken at trial. , 70-1 Contents of, amendments to , 70-1, 73 Extension of time for settlement of 72-3, 185-7 Two methods of settling filing 74 Settlement of, taken after judgment 74-5 Application to supreme court to settle 75 Ex-judge may settle object of section 76 When necessary motion for new trial Ill Must specify particular errors, when 176, 213, 247 Motion for new trial on 176, 180-1 Settlement of, whether jurisdictional 180 What is neither a, nor statement 184 Used on appeal, contents of 187 Whether necessary on appeal orders 212, 245-6 Whether necessary on appeal judgment 245-6, 513 Or case in county court, S. D., jurisdiction 265 In criminal procedure 414-24 Settled when, signed, by whom filing 416-19 Extending time, how striking out matter 421, 439 INDEX. 531 General exceptions not allowed in 439 To conform to statute court rule 472-3 When disregarded striking out 472-3 Costs for preparing, when allowed ... 504 5 Settled too late, appeal dismissed, when 509 Bill of Sale. A s mortgage, parol evidence 127 Bona Fide Purchaser. See, Promissory Note, Negotiable Instrument. Bond. See, Undertaking, Appeal. Common law, good as, admiralty 218-19 Brief. Printed, when not required copies 254 Under supreme court rules 490-1, 517-18 When and how served printed contents 490-1, 517-18 In criminal cases 491 When appeal dismissed for want of 490, 508 Costs for, when disallowed quotations 490-2 Form, size, paper, margin, folios, type 492-3 Distribution o/, and abstracts 495-6 Statement of facts in, reference to abstrcct 517 In original actions in supreme court 517-18 Burden of Proof. See, Evidence, Negligence. When on defendant, in murder 397 Under defense of self-defense 386 Burglary. Allegations in information, degree ownership 268 Calendar. See, Causes. Cause entered on, by circuit, dist. clerk 6 Place of cause on, supreme court, preference 256-7, 464-66 Of county court, of probate 274, 297 Case appealed from justice goes on 320, 344 Of supreme court, call of 494-5 How many causes motion day hearing 494-5 Criminal causes advanced on . . 494-5 Call of Calendar. See, Calendar .494-5 Caption. See, Appeal, Party. Of appeal notice, irregularity in 507 Capital. Clerk of supreme court to reside at 448 Capital Cases. State's challenges in 365 Writ of error stays execution in 436 Capital Offense. Defendant's challenges 364 Causes. Entered on calendar, circuit, dist. court 6 Order of on calendar, supreme court precedence 464-66 Of county, probate court 274, 297 Submission of on printed briefs 493 532 INDEX. Certificate. See, Bill of Exceptions, Statement of Case, Transcript, Judgment Roll. Of probable cause, on writ of error , 436-7 Of circuit clerk to transcript form 210, 438, 457, 4(51 Of judge to transcript,, when unavailing 459. 472 Of district judge to transcript 439, 47ii Of evidence, snowing substance of 4sii Of clerk to rules of supreme court 519-20 Certification of Case. By county court to circuit jurisdiction 270 By county court, and vice versa, N. D 275 Certiorari. When lies, adequate legal remedy, appeal 155, 234, '.<]' Against county comYs, from supreme court 192 Restitution order not in a proceeding party 193, 252 Judgment on appeal, where entered '2~r2 For diminution of record, motion for 440 Challenges. See, Jurors, Jury. In civil cases, circuit and dist. court 9-12 Who may exercise right of , !) Peremptory, or for cause 9 For cause 9-10 Immaterial error in ruling on 14o Court tries 11 In county courts * 272, 276 In justice's courts 310, 323, 33(5, 340 In criminal cases, generally 358-371 Who join in to panel, grounds 359-362 To individual juror, nature, when taken 362 Order of making exhausting 262-3 Peremptory, defendant's, state's 363-6 For cause, classed, grounds, bias- .'Hi-VS Implied bias, grounds specified ; J >(i(i-S Actual bias, grounds specified 366 Exception to, court tries, witnesses on 369-70 Order of taking, for cause, peremptory 370-1 Chambers. See, Judge, Order, Appeal. Power of judge at. to issue mandamus 6 Order in, no appeal from 243 What order of district judge is not, "judge" --- Order reciting "done in chambers," judge's order 237 Change of Venue. See Venue. Charge to Jury. See Instructions. Circuit Court. See, Court, Trial, New Trial, Appeal. Citation. See Probate Court. In Error service, time of 439 Under supreme court rules 492 City. Exempted from giving appeal bond 215 Claim and Delivery. Directing verdict in 20 INDEX. 533 When jury find value, and damages, in 39, 40, 114, 172 When jury find value, of party's interest 40 Nature of action in .-. 41 What possession necessary, in 41, 88, 89, 134 General verdict in, determines what 42, 110 Ownership, in 42-44, 89, 101-2 General denial, in defendants' possession 43, 119 Verdict neither general nor special 114 Plea of property in, judgment 120, 134 Attachment, sale of property under, defense 143-4 Verdict in, justices' court 338 Stay of execution in, in justices' court 317, 341 Clerk. Of circuit, district court, duties as to jury ballots 9, 354-7 Calls names of jurors on return of verdict 29 Reads verdict, in civil action 30 Courts findings filed with 51 Bill of exceptions, statement, filed with 69, 70 Notice of appeal served on 204 Certifies and sends up appeal transcript 210 Sends transcript, indictment, to other county 393 May require fees paid before sending- 211 Fees of, in county court, S. D., same as circuit 266 Authority of to grant citations, etc. certified case 270 Transcript from probate, county court, to, appeal 285 Dist., notifies justice of appeal 343 Inquires of jury as to verdict, criminal action 405 Records verdict, criminal action 413 Enters orders deemed excepted to 417 Notice of appeal filed with, criminal action 435 Sends transcript, or writ of error, up on appeal, etc 438 Certifies that bail given, on criminal appeal 440 Of supreme court, sends remittitur down 251, 498-9 Of circuit court, power of, certified case 270 Further return by order for . .519 Adjourns term of supreme court, N. D 257 Issues citation in error 439 Of supreme court, under rules 448-452 Residence of deputy duties records 448-50 Constitutional provisions relating to statutes 449-50 Duties of, decisions, remittitur 449-502 Administers oaths copy of syllabus '. 450 Fees of, deposit additional, refund 450-2 Salary, per diem, mileage of (N. D.) statement 452 Issues citation to respondent 455-6 Certificate of, to rules 519 20 Code of Civil Procedure. Governs practice in county courts 266, 273-4 How far applicable in justice's court 306, 319 Code of Criminal Procedure. Governs proceedings in county court, N. D 273-4 Cohabitation. See, Bigamy 397 Color of Office. Acts done under, valid as to whom 116 Commitment. Appeal bond directing, county court 283 For higher offense, justice court 321 534 INDEX. Of defendant, on appearance for trial 400 On verdict of guilty 414 Complaint As related to error of law new trial 116-119 For negligence 116-17 For taking water from spring 117, !!>(> On insurance policy two causes of action 117 Allegation of value, in 117 Election contest necessary allegations 118 Against unincorporated association 118 Against partners parties in 118 Defective, waiver of objection to 118 Amendment of on trial after judgment 119, 241 Attachment proceedings no part of 119 General objection to evidence under waiver 121-2 Dismissal of indefinite election under 7, 241, 267 For order of arrest 196 Concurrence. Of supreme judges in judgment 258 Conflicting Abstracts. See Abstracts 482, 486, 489 Consideration. For extension of note 127 For settlement of dispute 105 Conspiracy. Proof of overt act 387 Constitutional Prouisions. Jury, right to trial by, civil action 4 Jury, right to trial by, criminal action 357-8 Supreme court, jurisdiction and power of 189-90 County court, S. D., character and jurisdiction of 263 Information, prosecution by, S. D. preliminary examination 268 Defendant, speedy trial, etc. 374 Twice in jeopardy 385 Clerks of supreme court 448-9 As to appeal, right of 189-90 Treason, witnesses to overt act, confession, N. D 387 Contempt. Order in, special proceeding, appeal 237 Writ of error to review judgment in 432 Continuance. Refusing application for new trial 84 In county court 276-7, 2SO In probate court % . . .289 In justice's court, grounds, procedure 302-4, 323, 330-2 Motions for, under supreme court rules 513-14, 496 Contract. See, Evidence, Agency, Sales. Illegal, findings as to, sustained '. 90 Equity contract, plaintiff's theory, proof 104 For services, evidence of value, theory 117, 197 Illegality of, must be pleaded 1-1 Parol evidence to vary written 127 Receipt as, admissible to show 127-9, 158 Unauthorized, as to boundary survey '. 158 Rescission of, restoring status quo 159 Offer of, too late, statute of limitations.. 159 INDEX. 535 Of agency authority sub-agent instructions 159-160 Of sales warranty price delivery 161-2, 165 Tn school bonds, consideration for. . .'. iRd Corporation. See, Public Corporation, Municipal Corporation, Contract. Service on, managing agent 198 Stock of, control, public policy 202 Illegal contract of, findings sustained 90 Pledge of notes by, re-pledge by officer, indorsement, damages 162 Discharge of mortgage by, securities in exchange, bank officers 163 Corporate assets, speculation by director 165 Corporate interests, action protecting, plaintiff's 142 -iy pewrnieii uiiwrineii ruie, o. u s And defense, same fats 197 County. Exempted from giving appeal bond 1 1 ."> County Commissioners. Fees of, per diem, mileage instruction .'577 Must provide jury with furniture, etc KM Writ of certiorari against, when lies 192 County Court See Probate Court 280-8 In South Dakota < 260-7;; Of record, seal, style 2(10 Jurisdiction, common law, original, concurrent 261-3, 2<;<> Constitutional provisions bastardy 263-4 Criminal cases, writs, concurrent appellate 2(>4 Power of on appeal, on law 2(54-5 New trial in, on bill or case 265 Appeal to circuit court from proviso 265 Judgment in, on appeal from justice 265 Appeal to supreme court from, writ of error 265-6 Process, procedure, judgments in fees 266 Prosecution by information in, procedure 267 Stationary provisions, burglary 268 Plea of guilty in, court trial, judgment 269 judge interested, certifying to circuit 270 Jurisdiction of circuit, certified case clerk 270 Bias of judge adjoining judge showing 270-1 Jury, venire, fees, bailiff 271-2 Terms of, special always open for what 272 Stenographer in 273 In North Dakota 273-280 Procedure in terms calendar trial 273-4 Appeal to district or supreme procedure 274-5 Jurisdiction of on appeal from justice, magistrates 275 Change of venue, certifying to district, trial 275 Jury challenges new trial statement 276 Summons, process witnesses adjournment 276 Jurisdiction, criminal cases bail information 277 Certification of case, to, from district 277-8 Jnry trial plea of guilty, trial , 278 Preliminary examination unnecessary waiver 278 9 Counsel stands for trial, when stenographer 278-80 County Seat. Question of Fact Election for 90 Court. See Judge, Order, Bill of Exceptions, Trial, New Trial, Instructions, Supreme Court. Tries what issues 3 Jurisdiction of, at terms 6 Tries challenges 11 In criminal cases 369 Open for what purposes, jury out '. 29 What order presumably made by 234 Decides law in criminal cases 381 -2 Advises acquittal, when 382, 394-5 Appeal from what order of, etc., not duplicity 512 Court Reporter. See Stenographer. INDEX. 537 Court Stenographer. See, Stenographer. Covenant. See, Warranty. Crime. See, Offense, Verdict, Former Conviction, Former Acquittal, Plea. Degree of, when jury must find 408-9 Intoxication, how far an excuse for 379 Cross-examination. See, Witness. Of defendant, scope of rule of 378, 386-7 Of accomplice latitude of .389 Cumulative Evidence. See, Evidence. New trial 84 Custom. Cashier's authority 160 Damages. Measures of instructions as to 22 When jury must find amount of 39 Excessive, ground for new trial 78, 85 Consequential new trial 85 Aggravation of, new trial 85 Negligence damages arising from new trial 95-103 Reference to assess remand to jury 230, 259-60 Ten per cent, as costs, on appeal , 505 Contract as measure of 169 On appeal bond, probate court, distribution of 284 Day. See Calendar, Causes, Time, Term 494 Death. Sentence of new trial, application for 431 Of supreme judge, no reargument consequent upon 500 On indictment for, three counsel argue case 383 Conscientious scruples of juror, offense, punishable with 367 Juror having served on jury, inquiring into, of deceased 367 Deceit. .See Fraud, Warranty, Representations, Worth, Discovery of Truth 148, 170-1 Decision. What final, is appealable 5 On trial by court, when given 46 7 Filing of, mandatory 47 Waiver of 47 Judgment on, entered 49 Notice of entry, whether necessary 51 Of supreme court, concurrence in, filing 258-9 Review of, on fact or law, on appeal 244,*250 In probate court N. D 290 On appeal, county to circuit court 265 On appeal, probate to circuit, dist. court 285, 301 Of supreme court, to be in writing 259, 502 Federal precedent for 378 What excepted to, criminal cases 415, 42c What reviewable on writ of error 433 On court trial "involves the merits" 459 34i T P 538 INDEX. Presumption sis to, where none of record -UK) Remittitur held on filing of, how long 498-9 Declarations. See, Evidence. Of deceased, when admissible 3S6 Of wife of defendant U. S. rule 380 Decree. See Judgment Stay, as to, probate court, appeal to district 28t-5, 296 Defendant. See, Discharge of Defendant, Verdict, Acquittal, Conviction, Plea Party. Gives bail, in county court 2(19, 277 Plea of, in county court 2(59, 278 In justice's court 321, 345 Refusal of to plead, procedure 345 Present at trial 323, 346 Several justice's court 325 Informed of right of appeal 348 Present, on trial for felony 3-32 On receipt of verdict for felony 405 Not on motion to quash 405 Punishment of not increased, appeal by state 447 Former imprisonment of, term of deducted when 448 Right of to jury trial waiver, county court 278 In justice's court 323, 345 In circuit and district courts 351-2 Constitutional provisions relative to ' 357 When entitled to acquittal discharge 383-4 Witness in his own behalf 384 Cross-examination of, scope rule of 378, 386 Detained for requisition jurisdiction 392 For new indictment 394, 41 3 When held for offense, another county 392-4 When discharged on such proceeding 393-4 Re-arrest of, trial in another county 394 Burden of proof on, in murder, when 397 Committal of, on appearance for trial 400 Insane, form of verdict finding v 406 Discharge of, on verdict of not guilty ".413 Remand of, on verdict of guilty .414 Appearance of in supreme court, unnecessary 444, 464 Poverty of, printed papers on appesil unnecessary 491 Defense. See, Defendant, Answer, Plea, Trial, Counterclaim. Opening of, criminal cases ."71 Of justification, homicide 376 Of self-defense, burden of proof 386 Of .former acquittal, once in jeopardy 391 Of former conviction or acquittal, when a bar 400 Of former conviction, when a nullity 380 Not good, on reversal for error ,446 Degree. Of crime, when jury must find 408 9 Doubt as to, conviction on lowest 383 Any included in charge, found 409 Delay. See, Appeal, Time. INDEX. 539 Dismissal of appeal for 508-9 When mere, not good ground for 509 Ten per cent, damages for, on appeal 508 Demand. See, Jury, New Trial, Complaint. Before suit, conversion mortgagee 18, 141 Before suit, mechanic's lien claim 142 Before suit, against administrator, mortgage 198 For new trial, appeal from justice's court 312, 315 Demurrer. Frivolous action on bail bond 120 Order sustaining, to answer, no judgment, no appeal 239 Order sustaining, to answer, mandamus, nonappealable 243 Deposit. See, Money, Undertaking, Appeal. In lien of bail when refunded to defendant 393 On appeal, to supreme court, generally 215 On appeal, justice's court 316, 342, 349-50 On appeal from contempt order, probate court 292 By appellant, with supreme court clerk 450-1 Depositions. See, Evidence 125-7 Notice of taking suppression of 127 In probate court 290 In justice's court, on postponement 303, 331 Deputy. Of clerk of supreme court, duties of ... .448-9 Detinue. Distinction between and replevin, abolished 41 Diligence. See, Delay 508 Directing Verdict. See, Verdict, Negligence 17, 99, 135 Directed, is court's ruling on law 101 Discharge of Defendant. See, Defendant, Verdict. Acquittal. To testify for state 384 Is acquittal for what offenses 384 On acquittal, justice's court 326 In circuit, district court 413 On failure to prosecute in other county 393 Not on reversal once in jeopardy 425 From custody, on appeal to supreme court 440-1, 446 Discontinuance. See, Dismissal. In absence of defendantvacation of judgment new trial 83 Of action, justice's court 329 Discretion. Abuse of, see, New Trial 78, 81-3 What application for new trial addressed to, of court 86 Of judge in ruling upon juror's qualifications 11 Error of law does not involve 152 Question of delay is addressed to, of court 185 Motion for new trial, newly discovered evidence addressed to 48 Order discharging receiver is in, of court 239 Dismissal. See, Discontinuance, Nonsuit, Appeal 243 540 INDEX. Of complaint, when taken appeal 7, 104, 241, 243 Of case, not on appeal 7 Effect of dismissal 7, 8 Motion for, at close of plaintiff's case, waiver 1 17 Of appeal, supreme court 506- 1:> No, of appeal, criminal cases 328-9, :'>">( > Of appeal after argument costs on 505 Dismissal of Appeal. See, Appeal, Dismissal, Affirmance. What order for, from justice's court, is appealable 207 Is affirmance of judgment below 287, 298, 518 Order refusing vacation of, from justice, not appealable 2os From justice's court 319, :44 None in criminal cases 328. :>"> Motion, notice of, returnable when 506 7, 513 Grounds for notice undertaking delay 507 s When appeal lies double appeal 509-12 The merits, generally, transcript, record 512-13 Effect of same without prejudice 518 Distribution. Of estate, none, pending appeal 285, 296 Distribution of Abstracts. See, Abstracts 495 Distribution of Briefs. See, Briefs 495 Distribution of Calendar. See, Calendar 465 District Judge. See, Judge, Exceptions, Statement of Case. To file certificate as to decisions salary 46-7 Dog Tax. Organized civil township, credit to for amount of 195 Double Appeal. See, Appeal 245 Prom what order refusing new trial, is . 511 From judgment and what order, is 511-12 From what court order is not 512 Election. Of courts under indictment .- 380, 428 Of respondent to cause transcript sent 463-4 Election Ballot. See, Elections. Marking same in circle cross : 115 Entry of Judgment. See, Judgment. In what county notice of 5 After stay order, error 229 Irregular, remedy is motion to vacate 237 Made at close of trial, criminal, justice's court 326, 347 Evidence of, abstract on appeal 483, 487, 513 Whether order confirming report, necessary to 460 Error in Law. See, New Trial 114, 174 INDEX. 641 Reviewed above without motion for new trial 484 Erroneously directing verdict upon evidence, is 135 Erroneously directing verdict at close of testimony, i& 135 What, is not matter of discretion 152 Estoppel. See, Waiver, Evidence 132 By recitals in school bonds 87 As to competency of writing in evidenc* 132 By former judgment notes 148 Municipal bonds, conditions precedent 164 To object to want of transcript 460 To object to papers in abstract 480 Evidence. See, Witnesses 122-25 In bastardy case preponderance 23 Stenographer's transcript of, before referee who pays 63 Newly discovered new trial 78-84 Comulative impeaching new trial 84 Insufficiency of new trial 78, 86-114 Conflicting new trial 93-95 Of negligence, damages new trial 95-103 To refute an inference, when admissable 122 Relevancy of, to issue 121-2 Records, copies of public writings 125-6 Docket entries book memorandum 1 26-7 Best only receivable, rule a& to 125-6 Ruling before former judge proof of reference 126 Extension of note instrument in evidence, purpose 127 Depositions notice of taking certificate to 127, 290 Parol, to vary contract witness' signature 127-8 Notes executed on condition guaranty 128 Right of way mutual mistake 128 Res geste agent exclamations of pain 129 Transaction with administrator payment. . . 129 Communications agent husband confidential 130 Expert opinion "family talk" foreign attorney 130-1 Objections to waiver of estoppel order of 131-2 Offer of proof excluding 131-2 Presumptive, of ability to pay debts 196 That judge charged orally 380 As to abstract and record on appeal 478-83, 488 All received, court trial, review, appeal 253 In criminal cases 371 Rules of, criminal cases 370, 386 Rebuttal, by parties in 371 Basis of charge to jury grade of offense 376 Handwriting, expert reputation 378-9 Exclusion of, injury must appear 382 Reasonable doubt, "when acquittal follows 383 Declarations wife burden of proof 386 Justice's transcript, perjury ^ 386 Of conspiracy treason- -accomplice 387-9 Of false pretense personating -seduction 389-90 Of seduction abortion higher offense 390 Murder, burden of proof bigamy forgery 397 Of instrument, in abstract 479 Juror's testimony inadmissible to impeach verdict 83. 427 Exceptions. See, Bill of Exceptions, Statement of case 66, 71-2 542 INDEX. Exception defined 63 When taken 63-4 What deemed excepted to 64-5 How exception stated form 66 9, 71 State of record 66-7 Specifications 67-9, 480 Bill of, defined : 68 To findings 6!) When settled 69, 72-4 Verity of bill of judge's duty 70 On trial, mode of settlement of 70-72 Bill of, when presented for settlement 69 Taken at trial, when and how settled 70 71 Service of draft of bill of 70-71 Amendments to bill 70-71 Duty of judge in settlement of 71 Extending time for settlement of 72-73 Two methods of settlement of bill of 74 Exceptions after judgment 74 Application to supreme court, to prove 75 First resort to trial judge 75 Ex-judge, settlement by 76 Object of this section 76 When trial court loses jurisdiction to settle 76-77 ^Specifications when no review 137-8 Assignment of error in specifications record 138, 418, 480 Review on, to findings, on appeal de novo 155 Appeal, what reviewed on without 243-8 To challenge of juror, criminal cases 369 To charge to jury, criminal cases, filing 373 To giving or refusing instructions, when taken 23-6 Statute commented on 24-6 To findings of referee 59, 60, 62, 473 Omitted findings, error 60 In criminal cases 414-24 To what decisions rights prejudice 415-6, 423 What deemed excepted to entry of ruling 417 When deemed abandoned, or agreed to 421 What instructions deemed excepted to 423-4 Excessiue Damages. See New Trial, Damages 78, 85-6 Excuse. For committing crime, evidence reducing grade, not 376 Execution. See, Stay of Proceedings. Levy under, actual possession ... ... 1 1 53 Money on, divestiture of subject-matter 153 Void mortgage, tender on levy 153 Judgment sale, re-sale after redemption 153 Civil excution, coercive order 153 Against person "judgment debtor" .^ 154, 157, 201-2 Unauthorized sale under, trespass 154 From county court, on appeal to it 156-7 Against person causes of action, conversion 201 Stay of, on appeal to supreme court .216-221 Stay of, on appeal by state, board, officer 224-5 On appeal from order 222-4 Second sale under liens 234 Land sale-under, confirmation before appeal. 511 INDEX. 543 Perfecting appeal stays 228 Stay of, on appeal, justice to circuit 319 On writ of error, appeal, to supreme court 436-7, 440-1 Out of supreme court, form, enforcement 518 Exemptions. Debtor to indicate wife of debtor , ,. 154 Cannot be fradulently alienated 154 Homestead, locus of officeholder 155 Disposition of, no imputation of fraud 155 Exhibits. See, Evidence, Bill of Exceptions. Identified by trial judge, new trial above 481-2 Eye-witness. See, Witness ; 429 False Imprisonment See, Malicious Prosecution 22 False Pretenses. Evidence of, witnesses 389 Falsus in Uno, Etc. Instruction as to 23 Fees. See, Costs. O/ referees 54, 63 Of stenographer, before referees 63 For transcript, criminal cases 373 Of clerk for transcript to supreme court 210-1 Payment of, necessary to perfecting appeal 460 Of county commissioner, per diem, mileage 377 None, to district, supreme clerk, criminal appeal 438 Of clerk of supreme court 450- 2 To supreme court clerk by admitted attorney 514 Felony. See, Capital Offenses, Capital Cases, Challenges 364-5 Defendant present at trial for 352 Defendant present on return of verdict for 405 On trial for, who reads indictment and plea 371 Fellow Servant. See Negligence , 168-9 Filemark. Clerk's, after time appeal good 321 Findings. What, support judgment 5 Court directs, special, by jury, when : 34 On trial by court 49 And conclusions, separately stated 49 And conclusion, unnecessary, when 48 Immaterial foreign to issue, etc 49, 50, 137 Waiver of. 51 Duty of court to make 51-2 Preparation of 52 Ultimate facts found 52 By referee 59, 60 Setting aside of exceptions to 59, 60, 69 Omitted, when error 60 Mandatory, when 60, 137 They stand, when disputed question 87, 89, 2.50 Under pleadings, issues 109 544 INDEX. Insufficiency of evidence to justify Ill Special, of negligence, by jury 134 Power of referee to make consent waiver 136-7 Neglected issues inconsistent findings 13(5 Ambiguous additional improper evidence 137 Failure to make, no reversal, when 137 On appeal from county court, N. D. 1 300 Recital as to, in abstract of record 489 Fine. Against probate judge, refusal to send up transcript 287 Against justice, neglecting to send up transcript 316, 343, 328 Of defendant, justice's court % 326, 347-8 Forcible Entry and Detainer. Appearance, pleadings, continuance, in .304-5 Form of judgment in 311 County court, S. D , no jurisdiction in 262 Possession in, undertaking for stay 318-9, 312 Stay on appeal in, justice's court 312, 341 Foreclosure. By advertisement, certificate, affidavit order 157, 238 Cloud on title through, void record 157 Divestiture of title by, insured property 157 And revivor of former mortgage insolvent guardian 203-4 Forgery. Of corporation paper, to pass, proof of 397-8 Form. See, Oath, Verdict, Findings, Exceptions. Of order of district judge, not optional 242 Of verdict, claim and delivery, justice court 338 Of plea, if defendant refuses to plead 345 Of verdict on plea not guilty, justice court 347 Of general verdict, upon various pleas, 406 Of special verdict, generally, criminal cases 407 Of clerk's transcript to supreme court 458, 461-2 Of abstract of record on appeal , . . .474-8 Of assignment of error, no particular, required 466-7 And size of abstracts and briefs on appeal 492-3 Former Acquittal. Plea of, when not good 391 Judgment on plea of 407-8 Former Action. See, lies Judicata. Former Gonuiction. See, Former Acquittal, Once in Jeopardy. Plea of, when a nullity 380 Form of judgment on plea of 407-8 On plea of, fact must be found verdict t 410 Plea of not good, on reversal for error 446 Former Jeopardy. See, Former Conviction. Former Verdict. See, Verdict. No bar when 424 Fraud. See, Deceit. Legal, erection of house, directing verdict 19 In withholding mortgage from record 106 INDEX. 545 Fraudulent transfer, attachment 133 Of taxing- officers, injunction for 144 Representations, error dismissing- action for damages for 148 In alienating exemptions, cannot be 154 False representations by partner, liability for 158 In statement to stranger, sale, evidence of K>1 2 Freedom of Speech. In addressing jury 79 Friuolous Answer. Instances of, See Answer 196-7 Fuel. For use of jury, county pays for 401 Furniture. For jury, county commissioners must provide 401 General Reputation. Evidence of, bawdy house 379 Genuineness of Signature. When deemed admitted by defendant 310-11, 339 Grand Jury. When criminal ease submitted to another 394 Juror having served on, etc., challenge 367 Grounds. See, Motion, New Trial. . Of motion in supreme court, to be stated 496 Guaranty. In agency contract, evidence of parol statements 178 Agency contract of, exhausting collateral security 160 Of accommodation paper by partner, firm not bound 163 Of collection of note, solvency of maker 163 Agency sales, notice of, parol ^offsetting commissions 165 Guilt. Opinion of on part of witness, cross-examination as to 377 Guilty. See, Plea, Verdict, Conviction. Habeas Corpus. Supreme court grants writ of : 190-1 Fine by justice, imprisonment, jurisdiction 191 Appeal from proceedings on stay 208, 223 Writ of, when returnable, supreme court 258-9 No discharge on by perfecting appeal 223 Argument in, need not be on printed papers 517 Handwriting. Expert testimony concerning 378 Comparison of, when improper federal precedents 378 Hearing. See, Argument, Call of Calendar, Rehearing, Reargument. Of motion for new trial 183 On appeal from probate to circuit court 285, 297 New, on, what evidence certified up 286 Of causes on supreme court calendar 294 At next term, supreme court rule, insistence 455 Notice of, criminal cases, supreme court 492 Delay in bringing case to, on appeal from justice court 320 Distribution of abstracts and briefs when case called for 495-6 Homestead. Mortgaged premises, foreclosure, residence of husband 87 546 INDEX. Locus of office-holder fraud 155 Fraud on creditors not impu table to dispoeftipD of 1-V> Homicide. See, Murder. Defense of justification weapon presumption ,">7i; Justifiable or excusable, doubt, burden of proof :;si; Impeaching Evidence. Newly discovered, new trial, must 1x5 exceptional case si Of juror, not admissible to impeach verdict s:!, 1L!7 Imprisonment Of defendant, justices' court 325-6. 347-S Discharge on writ of error when, forms part of judgment 440-1 Term of too long, modifying sentence 445 Former term of deducted, when 4 IS Inadvertence. When no remedy for, in preparing case 4(i(l Indictment. See, Information. When for felony, defendant present 352 Read to jury, by whom 871 For selling liquors, sufficiency of 874 Refusal to quash omitted witness 377 Proof of substantial offense involved in 879 Transcript of, to other county when 3!rj-,'! New, when found against defendant 394, 413 Election as between counts of, selling whiskey 380, 428 Verdict, on acquittal f~>r variance between, and proof 406 Facts proving guilt under, form of judgment .407 8 Jury find guilty of offense included in 409 Against several, verdict, judgment against some 411 Information. Prosecution by, county courts 267-269, 277-9 When for felony, defendant present 352 Order for new, when granted 352 Read to jury, by whom 371 Statute relating to prosecution by S. D 372 Transcript of, to other county, when 392-3 Filing of new, on discharge of defendant under insufficient 394 Verdict, on acquittal for variance between and proof 406 Facts proving guilt under, form of judgment 407-8 Jury find guilty of offense included in 409 Against several, verdict, judgment, as to some 411 Injunction. Against sale of intoxicating liquors 115 To restrain tax collection, invalidity, fraud 144 Against incumbrance, void mortgage 1-15 Against municipal corporation, nuisance li)i) Appeal from order in property in statu quo 223, 239 Undertaking on appeal from order in 223 Innocence. Presurr ption of reasonable doubt 383 Insane Defendant. Form of verdict finding him insane 406 Insistence. See, Notice of Insistence 452, 455 Instructions. How given and refused, civil action 14, 15 INDEX. 547 Waiver of oral 15, 80 In civil actions, generally 15 23 Submitting facts 16 Assuming- facts 16, 133 Directing verdict, civil action 17 Negligence, question for jury 21 Other cases 22 Order of reading 23 Exceptions to. when taken 24-26 Presumed disregard of new trial 94 Assuming facts arbitrary disregard of 110-11, 133 Good as a whole harmless error oral charge. 132 Omitted point in redundant construing contract 133 On sale order withdrawing testimony conversion 133 On fraudulent transfer attachment 133 Changing language of submitted, error 201 In criminal cases 371-382 In writing, unless oral separate paper 372-3, 375 Not as to fact disclosure as to 372-3 Piling when deemed excepted to 373 Submission to counsel, objections 374 When irrelevant advising agreement statute 375 Additional on Sunday 375, 403 Construing evidence advising verdict 375-7 Comparing witnesses facts as basis 375-6 That no evidence excusing offense, grade 376, 379 Motion to advise jury that evidence insufficient 376 That no evidence excusing crime, when good 376 As to witnesses not named, etc. evidence 377-380 Requisites of, request, signing, refusal 398 Advising what evidence to consider r . 398 Further, additional, after jury retire 402-3 And statement part of record exceptions 4'J3-4 "Reasonable doubt," defining, .approved 429 Refusal of good , covered by general 429 Setting them out in abstract on appeal 475 Instrument. Genuineness of, when admitted" 310-1 Exhibition of, to party 310 Insufficiency of Euidence. See, New Trial, Evidence, Specifications of Error 78, 86-113 Generally, on motion for new trial 86-93 Conflicting evidence new trial 93-5, 100 Negligence, damages new trial 95-103 Directing verdict new trial 100-7 Question for jury new trial 107-9 Pleadings, issues new trial 109 10 Instructions as to new trial 110-1 The record new trial 111-2 Specification of particulars 112-3 When verdict not assailable for specifications 179 Must specify particulars of in statement 181 When nothing but, for review no specifications 182 Review on appeal, motion for new trial necessary 246, 484 On appeal from judgment, no review of, without motion for new trial 249 Assignment of error, abstract, supreme court 479 On appeal from order, review of evidence .'.250 Assignment of error not specifying, entertained, criminal 467 "Insufficient to justify decision," not good specification 469 548 INDEX. Must specify, or motion for new trial denied 470 When question of, considered without specifications. . 470 Setting forth in abstract of record on appeal 475-6 No assignment of, evidence not in bill presumption 479 Insurance. Fire risk, representations H) Agency in procuring policy Hi,", Increase of fire risk, use of property 104 Complaint on policy, two causes of action 117 Waiver of notice of loss, proof of 131 -'2 Divestiture of title, as defense void foreclosure 1 57 Interest. Of juror in event of action, challenge 10 Of bailiff, impartial one appointed 272 Of county judge in proceeding certification 270 Intervention. Withdrawal of complaint in, appeal 241 Intoxicating Liquors. See, Intoxication 379 En joininer sale of common nuisance 115 "Beer," "lager beer" judicial notice of 107, 382 Information for selling, allegations 269 Intoxication. How far an excuse or justification for crime 379 Irregularity. See, New Trial 78-81 In criminal case jury, papers instructions 402-3 Delivery of verdict to judge is a fatal 29 In entry of judgment, motion to vacate 237 In service of appeal notice, supreme court. 454 If any, entering judgment without con firm ing" report waiver 62 Separation of jury, when a harmless 399 Waiver of, in appeal notice, by voluntary appearance 454 In title of case, does not vitiate appeal notice 454 Nor omission of year in appeal notice 454 In caption of appeal notice, when not fatal 507 Issue. Origin of, circuit, district court 1 In probate court, N. D 291 In justices' court 307-8, 339 Order of trial of 2, 290 By whom triable 3 Evidence under new trial stipulation 109-10, 119 Pleadings, evidence, relevancy, as related to ... .121-2 Immaterial evidence under, raised by answer 122 Neglected, in making referee's findings 136 Res judicata, as related to 148 Of fact, sent to jury from supreme court 259 Of fact joined in probate court, tried by court 266, 290 New trial is re-examination of ' 424 Issue of Fact. Arises on what 2 Tried before single judge 5 Tried at what term 5 New trial is re-examination of 77 Sent* to district court, from supreme 259-60 In probate court, origin of 291 In justices' court, arise upon what 308, 339 INDEX. 549 In criminal cases, arises upon what 351 Issue of Law. A rises on what 2 Tried at what term 5 Tried before whom 5 Tried in what county 5 Judgment on, procedure 53 In justices' court 308, 3$9 Jeopardy. See, Once in Jeopardy, Former Jeopardy, etc. Judge. See, Order. Issue of law tried by 3 Trial of issue of fact before single 5 Verdict delivered to irregular 29 Instructions of to jury 14-5, 372 Circuit, dist., signs bill of exceptions 69, 71-2 Bill or statement delivered to 70, 71-2, 176-7 Exceptions presented to 74 Ex-judge may settle bill, statement 76 Ruling before former 126 Of other circuit, at adjourned term 145 May extend time for settlement of bill or statement 185 Settlement of bill by after appeal omitted evidence 187 Certificate of to record, as to evidence , 213 Power of supreme, stay, writs 218, 258-9 At chambers, injunction, appeal, stay 224, 242-3 Order of for annexing evidence to judgment roll ''merits" 245 Of district, to execute writ from supreme 258-9 Of county court, S. D., interested or related 270 Fixes bail of defendant 269 Bias or prejudice, of county 270 Absence of county, adjournment because of 276 County, certifies transcript on appeal compelling 297 Settles and signs bill or statement, criminal cases 419-20 District, certificate of to transcript, N. D. court rule 460-1 To judgment roll to be in record 439, 472 Decision of, not that of court abstract 510 Certificate of, to bill of exceptions, on writ of error 439 Certificate of, of supreme court, to judgment roll 439 Death of supreme, no reargument on 500 Decision of, when not court judgment 510 What valid order of, not appealable 510 Judge at Chambers. See, Chambers, Judge, Order 224, 242 3 Judgment. See, Judgment Roll, Order. In what county entered 5 Notice of entry of , 5 When taken in absence of adverse party 7, 321 On trial of i ssuc of la w 53 Setting aside irregularity, appeal 82, 234, 321 For legal taxes, injunction suit Default money, application for 149, 201, 234 Confessed, corporation, trust fund, creditors 150, 237, 326, 347 Entry of, stay order for entry 150, 2253 Need not direct attachment sale 150 Self-executing, election contest 150 550 INDEX. ( 'orrectness of presumed omissions 150-1 Setting aside stipulation for 151, 201 For neglect of counsel 151 Mcxlifying in part, alimony 1 51 New, on appeal to county court l~<>-7 Entry of, evidence of, abstract on appeal 483, 487, 513 Woether order confirming- report necessary to 460 Wnal, what order is, appeal 207, 234, 241 A ppealable, though costs not taxed 209 Payment of, on affirmance 230 Order, review of on appeal from 240 Refusing application for, appeal 242 Void, reversed on appeal jurisdiction 248, 252 Remand for entry below 252- Final, on new trial, supreme court ; 254 Non-concurrence in, rehearing 258 What may be appealed from to supreme court 18!) -5)0 "Any judgment," appeal from taxation of costs 194 Vacation of process, a ffidavits default 201 Appeal before entry of abstracts 209 Appeal from on judgment roll, what reviewed 480 Appeal from, alone, scope of review 209 Same, without exceptions 243, 245, 250, 480 Modification of, payment under, extending time 229 Irregular entry of, remedy, motion to vacate 237 What appeals from, and orders, are or not double 245, 511-2 Motion for new trial after, appeal from 245 Entered before motion for new trial review 246 Findings, when presumed justified on appeal from 250 Accepting benefit under, waiver of appeal by 251 Void, reversed by court without point being raised 252 Remand for below, under law of 1891 N. D 252 Supreme court executes its 257 8 Concurrence of judges in pronouncing 258 County court sets aside its own, S. D 265 What is a, of county court, on appeal 265, 266-7 From what, of probate court, appeals lie 281 On appeal from probate court, enforced below 288 Review of, modification, suspension, appeal from justice to county court 319, 344 On, plea or conviction, justice court entry 325 6, 347 Enforcement of below, after appeal 328-9, 350 Of acquittal, or conviction, discharge of defendant, on 347 On special verdict, criminal, various pleas 407-8 On verdict of guilty not conforming to law 411-12 Of acquittal on informal verdict 412-13 Discharge of defendant on, of acquittal 413 From what, in criminal cases, appeals lie 432-3 Further execution of suspended, when, criminal cases l::; Stay of execution on, various forms of 216-223 In circuit, dist. court, appeal from justice 320, 350 Motion in arrest of, not in justice court 3:; ( .> In contempt, reviewable on writ of error 432 Execution of stayed, on giving bail 440-1 Notice of application for, when waived 460 In supreme court, criminal procedure 444 8 What errors disregarded power of reversal, etc 444-5 Reversal, affirmance, modification 445-6 Affirmance, original enforced, remittitur 446-7 INDEX. 551 Entry of, conflicting abstracts as to 483, 487, 513 Costs, insertion of in, in supreme court 502 Appeal from, when too late 509 Must be one, on order dismissing appeal from county court appeal. . ..510 Judgment Roll. Summons as part of appearance 139 Appeal from, review 248, 480, 513 Copy of foreign, allegations as to, in complaint 121 What transcript annexed to, not part of 188 Only the, is a certified record 212 Charge to jury, when not part of presumption 380 What for review on what is informal papers 458-60, 463, 480 Waiver of court findings, not part of 459 Papers in, arrangement, supreme court 466 Certificate of judge to, on appeal 439, 472 Only that a certified record. . . .>. .' 212 To contain what supreme court rule 472-3 Errors on no bill settled, immaterial .513 Judicial Notice. See Jurisdiction. Of lager beer as intoxicant, of "beer" 107, 382 Of jurisdiction of inferior court 379 Presumption of, as to superior court >. 141 By supreme court, of organization, jurisdiction, judges of inferior 261 Jurisdiction. See, Appellate Jurisdiction. _ Of court at terms f 6 Of superior courts, presumption 14 On habeas corpus removal of cause 14 Of county courts and on appeal 261-7, 273-7, 141 Of supreme court primarily appellate 189-90 Review of by habeas corpus justice's proceeding 191 Of justice's court 306-7 In mandamus, constitution enlarges, of supreme court 191 Over parties, service in other county 266 To amend appeal bond, when lost dismissal . .313-4 Of justice of peace, limited by statute 302, 306 After change of venue 307 Jurisdictional steps, on appeal from 312 Dismissal t>f appeal for want of, no appeal from order 32 To amend appeal bond, when circuit court loses 313 No, over offense when jury discharged 392 Of person, when respondent cannot aeny 315 What appearances not waiver of objection to 31( Of supreme court, on writ of error, appeal, ceases when 447 Appellate, depends on compliance with statute must appear 453, 204-5 1 )oes not attach until clerk's fees paid 460 Of supreme court, lost on remand 500-1 Motion for new trial not jurisdictional appeal 48 Of supreme court lost on remittitur going down 501 Service of notice of appeal is jurisdictional -;>07 Order without, refusing vacation of order, appealable 509 Juror. See, Jury. In civil cases, ballots of y ( 'Irrk draws ballots of, when 9 Who may challenge Oath of, civil action ^ w 552 INDEX. Sick juror, civil action 28 Testimony of, setting aside verdict 83 Sick, in criminal case, discharge of jury 364, 396, 403 Attachment for absent, criminal cases 354 In criminal cases, drawing, challenging 353-71 Irregularity of, what not reversible, buying goods, etc 399 May testify to fact within knowledge ;;'.)"> Testimony of, not to impeach verdict 83, 427 Jury. See, Jurors. In civil cases, what issues triable by 3 Trial by, constitutional provisions 4, 357 Consent to less than twelve 4, 309 Waiver of 4, 308 Clerk draws ballots of, when 9 View by, civil actions '. 26 Admonishing of 27 Take what papers, civil action 27 Retirement of, conduct of 27 8 Disagreement of 28 In justices' court 325, 339 Polling of, civil action 29-30, 31 Three-fourths of rendev verdict, when 30 Find amount of recovery, when r. .39 Find value of property, and damages, when 39 How waived 45, 308 Mingling with irregularity = 80 Separation of 28, 81 Irregularities of new trial 78-81 Misconduct of new trial 78, 83-4 Question for, waiver 146 In county court 271-2, 276 In justices' court 309, 323-4, 345 6 In criminal cases, generally 353-71 Formation of ballots summons oath 353-8 Challenging, grounds, trial of, exception 358-71 Right to trial by constitutions 357 8 Determine law and fact 381 -2 Discharge of jurisdiction offense 392 Not bound by advice to acquit 394 May view place juror a witness 395 Custody, conduct, officer's oath, admonition 395-6 Sick juror, discharge of 396 After charge to separation communications 399-400, .428 Conduct of after cause submitted 401 -4 Room, food, take papers, disagreement 401-3 Sick juror discharge, re-trial, adjournments 403-4 Taking justice's transcript -further instructions 402 3 Agreement tf, procedure on, polling of 405-13 Receiving evidence put of court, new trial 425 Separation of without leave of court, new trial 425, 428 Verdict of decided by lot, new trial 425 Misdirection of by court, new trial 426 Remarks of counsel in argument to discretion 428 Justice of Supreme Court. See, Judge, Court, Order. Adjourns term when quorum not present 257-8 Majority of, appoint special term 256 Certificate of, to bill of exceptions, in error 439 INDEX. 553 Announces and files opinions 258 Issues writ, process, makes returnable, etc 259, 456 Makes certificate of probable cause 437 Furnished with copy of criminal record 443 Chief, application to for writ of error 456 Death of, necessitates no reargument 500 Justice of the Peace. See, Justices' Court. Sickness of, procedure 305 6, 330 Transmits record on appeal, contents of 315-6, 343 In criminal cases 328, 350 Justices' Court.- See Justice of the Peace, Appeal. Jurisdiction of S. D. code civil procedure 306-7 Trial in, commencement of ' 302, 329, 333-7 Postponement of, undertaking depositions 302-4, 330-2 Of forcible entry and detainer in 304-5, 338 Sickness of justice, procedure ' 305-6, 330 Place of change, proceedings on 306-7. 332-3 Jury, waiver of, venire, fees 308-9, 334-7 Challenges oath account evidence 310-11. 336 Genuineness of signature, admission 310, 339-40 Issues in, origin, law, fact 308, 333-4 Appeal to circuit, dist. court, from 311-321, 340-4 Who may how notice 311-13 On law alone, statement, review for new trial 314-15 Transcript neglect benefit of objections 316-17, 313 Undertaking, stay sureties, justification 316-19 Review on new trial dismissal notice of trial 319-21 Dismissal of 315, 328-9, 344, 350 Criminal proceedings in 321-326, 345-351 Plea, committal, court trial venue, change of 321-2, 345 Postponement jury trial, challenges, oath 322-4, 346 Court decides charge verdict retrial, disagreement 324 5, 346-7 Judgment, entry, fine acquittal, discharge 324-5, 347-8 Appeal to circuit court 326 9, 348 Right notice new trial bail, stay 326-8, 348-50 Witnesses transcript, neglect no dismissal 328-9, 349-50 Appearance in, how made, N. D. discontinuance in 329 What order dismissing appeal from, is appealable 207 Order refusing vacation of order, order dismissing appeal from, not appealable 208, 242 Court order dismissing appeal from, is appealable 242 Sec. 5232, Comp. Laws, inapplicable to appeal f ;om 227 Justification. See, Undertaking, Surety, Appeal, Of crime, evidence reducing grade, not 376 Intoxication, to what extent a, or excuse for crime 379 Lager Been. See, Beer 107, 115, 382 Law Term. See, Term, County Court 271 Libel. Indictment for, jury determine law and fact. 381 Verdict for, general , or special 405 Lien. See, Pledge, Mortgage. 35* T P 554 INDEX. Of mechanics, priority of, sale under 114, 2:;l Th'reshers, location of grain striking out evidence 114-5 Prior mortgage, restoring record of 114 Foivlosure of seed complaint for 1 IS Of stable-keeper, use of horse lit-") On crop, realty sale 20.'? Statutory, not waived by taking other security 114 Plea of, in claim and delivery, lease, pledge 147 Lights. For jury, county pays for 401 Limitations. Plea of statute burden of proof promissory note 14 Void tax deed, statute of, not operative on 14(> Rescission of contract, discovery of facts 159 Liquor. See, Intoxicating Liquors "Beer" 107, 115 Lot Verdict decided by, new trial, criminal cases 425 Malicious Prosecution. Advice of counsel, probable cause 22 Mandamus. Jurisdiction of supreme court in, constitution , 191, 2. r >."> Pending proceeding below stay by withholding 192 Discretion in granting or withholding 192 Order refusing to vacate, non-appealable 208, 243 Record on appeal from judgment in 212 Order sustaining demurrer to answer, appeal 243 Marriage. Proof of, on trial for bigamy 397 Falsely personating, and marrying in assumed character evidence, statute 389 Marshal. Of supreme court, N. D., executes writs 518 Mechanics' Lien. See, Lien. Mill Dam. Measurement of, special question for jury 36 Minutes of Court. See, New Trial . Exception to ruling entered on, when 69 After judgment, noted on 74 Application for new trial, on 174, 430 Not part of record 174 Notice of intention, based on 175-6 Specifications, when motion made on 178 Motion for new trial on, when heard 183, 430 Motion for new trial on, other papers used 183 Waiver of right to jury trial entered in 278 Where new trial asked for on, costs for reporter's transcript 504 Misdemeanor. County court has jurisdiction of 277 Indictment for, defendant absent on return of verdict 405 Mistake. See, Neglect, Delay. Of appellant in serving appeal notice, procedure on 293 Mutual, in contract, parol testimony concerning 128 INDEX. 555 Money. See, Judgment. In lieu of undertaking on appeal 215, 342 Judgment for, what bond on appeal 216 Payment of under judgment modifying judgment 229 In lieu of bail, justices' court 850 In lieu of bail, when refunded 393 Mortgage. See, Lien, Foreclosure. Restoring record of prior 114 On "threshing rig" 116 Bill of sale as 127 Loan by mistake, revivor of . . 203 Foreclosure of by advertisement, refusing vacation of order for court proceedings appeal 238 Action by mortgagee against purchaser demand 141 Void, enjoining incumbrance, notice 145 On decedent's realty, parties defendant 196 Execution of, witness, question for jury 108 Fraudulent, of chattels, withholding from record 106 Motion. See, Papers, Notice, Motion for New Trial, Dismissal of Appeal. Renewal of change of judges 139 Renewal of res judicata 197 Must bring in all evidence on, diligence 198 To reinstate appeal, supreme court , 464 For new trial, unnecessary when 151-2, 193, 484 In supreme court, notice, grounds, service 496-7, 506 Statute governing notice of 497 Papers on, supreme court, copies 496-8 Opinion of supreme court filed on 502 To dismiss appeal, supreme court 506-7 To bring in evidence, on appeal no dismissal 512 Attorneys admitted to practice on. 515 Motion Day. In supreme court 494 Motion to dismiss, only made on, when 497 Motion for New Trial. See, New Trial. When unnecessary to review above. 151-2, 193, 484 When not jurisdictional, on appeal 484 Errors of law reviewed above without 484 Want of, not ground for dismissal of appeal 513 Motion in Arrest. None, in justices' court 339 Motion Papers. See, Motion, Papers, Notice, Petition for Rehearing. In supreme court, copies typewritten 496-8 Municipal Corporation. See, Corporation, Public Corporation. Negligence. Appeal by, cause has precedence on calendar stay 224-5 Liability of for defective sidewalk, proximate cause, notice 96 Bonds of, estoppel, conditions precedent 164 Negligence of, contributory by traveler street obstruction, proximate cause 167 Ordinance of, for penalty, when action under is a civil 190, 357-8 Is appealable 511 556 INDEX. Appeal by, operates as a slay I'.ili Injunction against, for nuisance 199 "Municipal," construction of statute 173 apeci Mura lurder. See, Homicide .'176 Burden of proof on defendant, when 397 Plea of former conviction of, when a nullity 3so Plea of once in jeopardy for, because ol reversal, bad 425, 446 Narrative Form. (Questions and answers, form in abstract 47!) Natural Spring. See, Water 116 Neglect. See, Inadvertence, Diligence. When no remedy for, or inadvertence in preparing case 460 When judgment set aside for excusable lf>l Of defendant's counsel, judgment opened for 151 Justice of peace may vacate judgment for excusable 151 Or mistake, must be very exceptional to justify additional abstract, when 486 Of justice to send up transcript, fine for 287, 315-6, 328, 343 Of appellant, serving appeal notice, procedure on 293 Negligence. Instructions as to 21, 22, 166 Evidence as to new trial 95-103 Proximate cause fire firebreak sidewalk drawbar 95 u, l<;7 Frightened horse section foreman engine 107 8 Defendant's orders to servant 168 Remote cause killing stock 96 Contributory drawhead shipping contract caboose 96-7 Presumptive fire 97 Primary case of overcome 97 Killing stock locomotive setting fire 97-8, 166 Presumption of overthrown court determines 98, 135 Gist of action rebuttal killing, value rebuttal 98 Affirmative proof express proof, of 99 Directing verdict concerning hazard servant 99 Is question for jury jury determines 21, 100 Conflicting evidence concerning differing minds 100 Special finding of 1 34 "Ordinary care" special question 37, 107 Rebuttal, as to, submitting case to jury 18 Evidence of, question of law 21 Contributory, freedom of plaintiff from, instruction 21 Proximate cause, question for jury 21-2, 168 Contributory, burden of proof 22, 167 Instruction, specific exception to, as to 138 Cattle at large trespass abstract proposition 165 6 Passenger traveler, care 166-7 Degree of care, fire 166 Right of way, title 1 66 Contributory, question for jury 166-7 Plaintiff's freedom from care Kiii-7 Fellow-servant, foreman, character of work 168-9 Negotiable Instruments. See, Promissory Note. Note, bona fide holder, motion for verdict 18 INDEX. 557 School bonds, estoppel by recitals 87 Indorsee for value 87 Bill of exchange, conditional delivery exchange 91 Bank draft, agency of cashier 107 Ultra vires, bank purchasing note 147 Guarantee by partner, for accommodation 163 Bank chock, against deposit, ownership 163 Newly Discovered Evidence. See, New Trial 78, 84-5 New Matter. A s basis for rehearing 500 New Trial. See, Motion For New Trial, Instructions, Verdict. New trials, civil action, generally 77-189 Defined 77 Causes for, enumerated , 77-8 Irregularity abuse of discretion 78-83 Irregularities instances of 78-81 Abuse of discretion instances of 81-83 Misconduct of jury, ground for 78, 83-4 ,1 uror'a testimony inadmissible to impeach verdict 83 Accident or surprise, ground for 78, 84 Great caution, in granting, on such grounds 84 Destruction of record, as ground for 84 Newly discovered evidence, ground for 78, 84 What affidavits must show 84 Discretion of court, motion addressed to 84 Probable different result, must show 85 Excessive damages, ground for 78, 85 Aggravation consequential 85 On court's on motion, when 85-6 Insufficiency of evidence against law, grounds for 78, 86-114 - Insufficiency generally what sufficient 86-93 Conflicting evidence 93-5 Verdict conclusive, when 93 Substantial conflict rule of reversal 94 Negligence damages 95-103 Directing verdict for 100-7 Question for jury, when 107-9 Pleadings, issues, evidence under 109-10 Instructions, assuming facts 110-1 The record, in treatment of 111-2 Specification of particulars 112-3, 177 Verdict or decision against law, grounds for 78, 1 13-4 Error in law, grounds for 78, 114-73 Generally 114-16 Pleadings, as related to 116-22 Examination of witnesses, as related to 122-5 Evidence, as related to 125-32 Instructions, as related to 132-4, 15-16 Verdict, as related to 134-5, 17 Findings, as related to 136-7 Exceptions, as related to 137-8 Assignment of error, as related to 138-9 The record, as related to 139-40 Error, reversal, etc., as related to 140 Practice, procedure, as related to 140-57 Motion for, when unnecessary 151-2, 188-9, 193, 484 Foreclosures, as related to 157 558 INDEX. Contracts, as related to 157-159 Negligence, as related to 18, 20, 165-169 Damages, as related to 22, 169 172 Statutes, as related to 172-4 Application for, papers, affidavits, statement, record 174-5, 183 When and where heard 183-5 Notice of intention, on what papers 175-182 On affidavits 178-180 On bill or statement 180-2 On minutes 182 On court's own motion grounds instanter 182-3 Notice. of motion for, when served contents 183, 174, 176 Diligence in moving for dismissal 185 Extension of time to move for exparte 185-6 Presumptive extension cause shown 187 Bill, statement used on motion, used on appeal 187 8 Review of errors without motion for 151-2, 188-9, 193, 240, 246 Denying, before judgment, order reviewable on appeal 240 When notice of appeal from order denying is surplusage 240-1, 512 Necessity for motion for, review of sufficiency of evidence 246, 484 Judgment entered before motion for, appeal presents error on bill 246 Review on petition in error without motion for 246, 249 Review of order denying, on appeal from judgment, order not men- tioned, quaere 247 Appeal from judgment, court trial, must assign error, to review evi- dence 249 No motion for, sufficiency of evidence not examined on appeal. . ..249-50, 484 In supreme court, final judgment 253-4, 481 Motion for, after judgment, appeal from judgment, review of error 245 In county courts, jurisdiction 265-6, 276 On appeal from county to circuit court 265 On appeal from justice's court, when 319-20, 350 In criminal cases, generally 424-431 When ordered, on return of special verdict 408 What errors taken advantage of on 424 Defined effect of testimony anew on bar 424-5 Power to grant, what cases, procedure 425 6 Newly discovered evidence, affidavits 425-7 Improper exclusion of evidence on 427 Application for, when grounds stay 429-31 Notice of motion for, on what papers 430 Specification of errors, on minutes papers 430-1 On reversal in supreme court 446 Reversal without granting, discharge of defendant 446 Record, must show motion for, presumption, review 471 When abstract deemed to show motion for 481 What reviewed without motion for . 484 When motion for made on minutes, reporter's fees for transcript allowed 504 Double appeal, appeals from what orders relating to, are or not 511 Nonsuit. Whether can be ordered practice on 13, 46 Submission of question to jury statute 148 Not Guilty. See, Plea, Verdict. Note of Issue. Furnished to clerk 6 To contain what 6 When need not be filed 5 INDEX. 559 But one need be furnished 6 Unnecessary on appeal from justice to dist. court 344 Notice. See, Appeal, New Trial, Dismissal. Of motion same in supreme court, service 496-7 Notice of Appeal. See, Appeal, Dismissal of Appeal. Is jurisdictional waiver of 453, 507 County to circuit, dist. court 282, 292 Justices', to circuit, dist. court 311, 340 In criminal cases 327, 348 Prom district to supreme court, criminal cases 435 Circuit, dist. court, to supreme, generally 204-6, 211 Under rules of court 452-3 Waiver of, appearance 454 * Irregularities in record as to 454-5 Abstract must show presumption 478, 489 Dismissal of a,ppeal for improper, etc 506-7 Notice of Argument. See, Hearing, Argument 492 Notice of Insistence. For hearing in supreme court 452, 455 No hearing at next term, when rule construed 455 Notice of Intention. See, New Trial. "When served 175-6 Must specify particulars of evidence, when 112, 177 Must specify statutory grounds 176, 179 Statute construed whether jurisdictional 178-9 Record, what a sufficient, of 179 And of motion, united 184 Effect of delayed service of 186 Served too late, appeal not dismissed , 509 Notice of Trial. See, Notice of Argument, Call of Calendar. When party may give 6 But one need be given 6 Date of error in, immaterial when 7, 145 Before referees 58 Unnecessary on appeal, probate to circuit, district court 282, 297 New cases noticed for additional term, N. D 7 Unnecessary on appeal from justice 319, 344 Nuisance. Common sale of liquors, injunction 115 Municipal corporation may enjoin 199 Judgment abating, bond on appeal 221 Oath. Of referees 57 Of jurors, civil cases generally 12 Of jurors, criminal cases generally 357 Of officer with jury, justices' court 324, 337 In circuit, dist. court, criminal cases 399 Of jury, justices' court 310, 336 In criminal cases ' 323-4, 346 Of clerk of supreme court.. 449 Of attorney, on admission to practice 516-7 560 INDEX. Offense. See, Crime, Defendant, Defense. Grade of, evidence only reducing, not excuse or justification 376 Proof of substantial, under indictment 379 Proof of higher, defendant discharged 390 No jurisdiction over, defendant discharged 392 Consisting of degrees, effect of conviction, acquittal 400 Degree of, when jury must find 40S-9 Degree of, evidence of intoxication as bearing upon 379 Offer of Defendant When furni&hed by defendant, on trial 8 Officer. See, Sheriff, Marshal, Corporation. Jury in civil cases given in charge of * 28 In criminal cases , 399 Oath of to keep jury, justices' court 337 Detains defendant in custody, on appeal, when 440 Discharges defendant from custody on bail, writ of error 440-1 Of bank, discharge of mortgage by 163 Liability of, for loss, worthless securities 163-4 Official. Of state, taking appeal by stays execution 225-6 A party, cause given preference on appeal 255-6 Bond of, in lieu of appeal bond, probate appeal, effect 288, 292 Once in Jeopardy. See, Former Acquittal, Former Conviction. Constitutional provisions as to 385 When plea of not good 391, 397. 425 Opening and Closing. See, Practice, Defense, Counsel, Argument. Of case, civil action, generally 13, 14 In criminal action, generally 371 Of argument 13, 14 In supreme court, under rules 496-8, 494 Opening by cross-examination 125 Opinion. See, Decision, Bias. Juror possessing, in civil action 10 Juror possessing, in criminal action 367-8 Of guilt, by witness credibility 378 Of supreme court, in writing, filing 502 Upon what matters written and filed 502 Juror having, based on newspaper reports .. . 368-9 Supreme court clerk not to permit, to be taken 449-50 Of supreme court may be examined or copied 450 Oral Evidence. See, Parol Procedure. Order. See, Court, Judge, Trial, Appeal, Argument. Appealable to supreme court 207-8 Appealable under sec. 5236, Comp. Laws, sec. 5626, Rev. Codes, gener- ally 233 Under subd. 1, appealable non-appealable 234-6 Under subd. 2, appealable non-appealable 237 Under subd. 3, appealable non-appealable. 238-40 Under subd. 4, appealable non-appealable 240-2 Under subd. 5, appealable non -appeal able 242-3 INDEX. 561 Involving merits 244-5 Without jurisdiction, when appealable 509 Of court, dismissing appeal, not appealable judge's valid 510 lu criminal procedure 445 J udge's, what is 234-5, 242 Chambers, what is, injunction dismissing appeal 237. 242-3 Intermediate, review of notice of appeal surplusage. ..240-2, 245, 286, 299 To show cause, supreme court, what day 497, 506 Of supreme court adopting rules 519-20 Oral evidence, basis of an, to be in bill on appeal 67, 214 Of reference, powers conferred by 136 Confirming referee's report, waiver 136 For publication of summons, may be before attachment 143 Written sale, oral arrangement to vary 161 Settling bill of exceptions extends time for 181, 186 Dismissing motion for new trial, appealable 185 Of arrest, affidavit information and belief 200 Execution against person may issue without 202 Transcript on appeal from 210^ Bill or statement necessary to review of 212, 250* On appeal from judgment 245, 250 Appealed from, setting aside after appeal, nullity 223 Undertaking on appeal from, attachment, injunction, stay .223-4 As related to double appeal ,245, 511-12 What probate, not stayed by appeal 284-5 Of proceeding on trial, civil actions same, criminal 12-13. 371-2, 381 Ordinance. Municipal, prescribing penalty, what action to recover is a civil 190 Violation of, appeal from judgment of acquittal is proper remedy. .207, 511 Ordinary Care. See, Negligence 37, 103 Organic Act Act of 1887, on appeals, not in conflict with 238 Papers. See, Notice, Motion, Service, Typewritten Papers. When plaintiff to furnish, on trial 8 When defendant to furnish on trial 8 Filing of, in supreme court calendar 465-6 In respondent's hands abstract on appeal, estoppel 480 When to accompany notice of motion 496-7 Original proceedings, supreme court, on printed 517 Printed abstracts and briefs, when not required 254 Original sent up on appeal, unless otherwise ordered 458, 463 Informally attached, no part of record on appeal 459, 66 Insufficient reference to in certificate 459 What, or evidence, not part of record 174, 181, 184 Parol Euidence. See, Evidence 127-8, 157-8 Partnership. Complaint against, title of 19, 118 Dissolution of, firm debts, partners 90 Unincorporated association, partners 118 Action involving, conclusions of law sustaining 157-8 Agreement for land sale, parol evidence 158 False representations of partner, liability for 158 Party. See, Plaintiff, Defendant, Appeal. In complaint partners party by consent 1 18-9 562 INDEX. Plaintiff, grantee state's attorney 142 Hquitable owner corporate interests 1 12 Director's suit trust property motion 143 Former party defendant, res judicata 1 19 Beneficially interested, in attachment 19.". On appeal to supreme court, civil criminal 194, !.">.". 1 Defendant, in foreclosure decedent I'.H; To tax injunction suit, shareholders of bank stock I'.*!) Appearance of, in person, justice's court .'JU'.i Omitting name of from appeal notice 2nd Service of appeal undertaking- on, and filing with clerk 206 How brought in, appeal probate to district court 293 Service of appeal notice on attorney, is service on, when I ."> 1 Who must be made, to appeal probate to district court 291-2 Payment. Advances on agency sale 147 Application of, account, note * 2!"> Of not guilty, justices' courts 322, 345 Withdrawal of plea not guilty 351,353-4 Read to defendant, when 371 Failure to enter, when harmless error 380 Of former conviction, when a nullity 380 Of former acquittal, when not good 391 Stating, by counsel to jury 380 Pleading. See, Complaint, Answer. When copy of furnished, on trial 8 Evidence under, new trial , 109-10 INDEX. 563 As related to error of law, new trial 116-122 Illegality of contract, must be plead 121 Relevency of evidence under 121 Foreign law - judgment roll 121 Presumption in absence of from abstract 479 Time for, on condition, given by rule 521 In county court, same as in circuit. . . , 266 Setting them out in abstract on appeal 474-5 Points. To be printed, in calendar causes 292-3 Police Justice. County courts, jurisdiction of appeals from 264, 275 Policy of Law. See Public Policy. Is. to stay proceedings . 217 Polling the Jury. See, Jury. In civil cases in criminal cases 29-30, 413 Postponement. See, Continuance. Practice. See, Procedure 140-156, 197-202 Opening case by cross-examination 125 Omitting proof of fact, reopening case 146 Offer of proof excluding evidence 146 Affidavit of merits showing delayed answer 146 Motion to dismiss, renewal at close of case 147 Entry of judgment stay 150 Appearance by attorney, authority 151 And procedure motion, renewal of, diligence , 197-8 Before referee, affidavits on motion, in attachment : 200 As to undertakings on appeal 226 In county courts, as in circuit, district 266, 273-4 In criminal cases procedure 3HO As to abstract in supreme court 478-85 On rehearing, supreme court, petition 499 500 On appeal from taxation of costs, supreme court .503-4 Opinion of supreme court on, filed. 502 Practice of Law. See, Attorney. Clerk of supreme court not to engage in 448 Rules for admission of attorneys to 514-17 Prayer. For reversal, on writ of error 438 Prejudice. See, Bias, Error in Law, New Trial, Presumption. No reversal, where no, could result 123 Or bias, cross-examination extended to show 123 Re-direct examination to rebut inference of 429 Error presumed, if evidence may 14 Must appear, to require reversal or new trial 140 Presumed, on showing error, refusal to strike evidence 140 Rule as to, in admitting improper evidence. . . 14' Favorable testimony, no presumption of, from admission of 1 If irresponsive answer is, reversal should follow 140 Dismissal of appeal without, is affirmance 518 To substantial rights, record not showing plea 415 564 INDEX. Preliminary Examination. ISefore information, in county courts 268-9, 27S-9 ( 'liangf of venue in proceedings on, justices' court M} On refusal to accept plea of guilty, justices' court 345 Presumption. See, Evidence, Waiver, Estoppel. That property taken by officer from defendant, replevin, process 43 That findings on disputed facts are right 48, '88 -so That findings by court were waived 52, 137, 459 Of disregard of instructions by jury 01 As to negligence statutory, overcome 07-8, 135 Of correctness of bill of exceptions 75 Of prejudice, from admitting incompetent evidence 110 As to amount due, from jury's answer to specific question Ill That findings accond with, evidence, no bill of exceptions Ill, 479 That order of reference made with party's consent 136, 489 That court considered evidence for other purposes, not indulged 140 That action brought by state's attorney by consent of county com'rs 142 Supplies omission, as to judgment, on appeal 151 Of local agent's authority to make lease, when 159 Of validity of ex-parte order extending time 181 That bill was settled regularly within statutory time 187 That men able and willing to pay debts when due 196 That clerk did not annex decision to judgment roll ., 211 From abstract, that judgment was entered ' 233 Of validity of proceedings, when attaches to inferior courts 261 That information not filed till preliminary examination, or waiver 2(19 As to contents of abstract, supreme court 478-83 Of regularity, when c;vnnot prevail abstract 481 As to abstract and record, on appeal 488-9 That information filed after preliminary examination 269 When, is, that judge charged jury orally 380 That no decision filed below record 460 As to specifications of error, evidence, that court below considered 470 That there was no bill of exceptions or statement below 471 That state's attorney had evidence to sustain action 471 That order for receiver based on affidavits and answer 479 That all necessary evidence in bill and abstract 488 That abstract claims certain steps taken authenticated record 488 Principal and Agent. See, Agency. Printed Papers. See, Papers. Probable Cause. See, Malicious Prosecution. Instructions as to, advice of counsel 22 Certificate of. on wi it of error, appeal 436 7 Probate Court. See, County Court. Proceedings, conform to county court law 262 Appeal from to circuit, dist. court ; 280-288, 291-301 From what judgments, etc. who may 280-1, 291-2 Time for taking how bond notice of irial 282, 292-3 Stay bond on, prosecution on, commitment 283, 288, 294-6 Undertaking sureties transcript 282-5, 287. 294-7 Hearing on plaintiff above de novo trial 285-6, 299, 300 Dismissal of costs judgment, remittitur acts below 287-8, 298, 300-1 On questions of law alone, new hearing, evidence 286, 203, 297 9 INDEX. 565 Powers of appellate court on 286, 299 Procedure. See, Practice, Code of Civil Procedure, Code of Criminal Procedure. Jurisdiction demand before suit 141 Parties attachment 142-3 Injunctions-trial 144-5 Defenses res judieata, former action 146, 148-9, 197 Judgment decree 149-51 As related to new trial 151-2 Execution exemptions appeals certiorari 153-156 In county courts, as in circuit, district 266, 273-4 On appeal from taxation of costs, supreme court 503-4 Proceeding. See, Action, Special Proceeding 1 . What order not made in a, is void 193 Original, supreme court, heard on printed papers 517 Statutes relating to, in district court, apply to county 266, 273-4 Process. See, Summons, Writ, Attachment. Service, native corporation, foreign insurance 143 Publication of summons, order, attachment 143 Service "managing agent" mining claimant 198 In ciunty court 266, 276 From supreme court, form, return of 218, 259 Promissory Note. See, Negotiable Instrument. Witness to parol evidence 128 Conditional, directing verdict as to 19 Bonda lide holder 18 For price of realty, bond for deed, quit-claim 104 Notes in payment, delay in accepting : 108 Usury, running account note 113 Defense, breach of warranty, bona fide holder 147 Attorney fee, negotiability statute 162 Corporation pledge of, indorsement 162 For price of binder, warranty, rescession 162 Want of consideration, note in settlement. 163 Guaranty of collection, solvency 163 Proof. See, Evidence, Burden of Proof, Presumption, Witness. Offer of, to be made, overruled question on collateral point 131 Of waiver of notice of loss, inference 131 Affirmative, of negligence express, of 99 I 'resumptive, of making order of reference 126 Of overt acts, on trial for conspiracy 387 Of higher offense than charged, jury discharged 390 County court hears, on trial of issues 290 Of marriage, cohabitation 397 Rebuttal of, of practices affecting witness' credibility 428 Of service of notice of appeal, omission of year 454 Of substantial crime involved in indictment 379 And al legations, heard by justice's jury 324 Proximate Cause. See, Negligence 21-2, 95-6 Public Corporation. See, Corporation, Municipal Corporation. School district bonds, want of consideration corporate existence 164-5 Township bonds, proceeds, sureties of treasurer 165 566 INDEX. Void warrants, ratification, directing verdict 102 Public Policy. Control of corporate stock, contract, specific performance 202 A ttorney disqualified to be surety, on grounds of 228 Publication. Service of notice of appeal by 436 Order for, of summons, made before attachment 143 Notice, "six successive weeks" 143 Punishment. See, Verdict, Judgment, Conviction. Imposed by jury, when wrong, procedure 411 Court empowered to reduce extent, when 412 Not increased on appeal by state 447 Question for Jury. See, Jury, Evidence, Instructions. When negligence is 21, 100 Different conclusions on evidence 107 Bank draft, agency 107 "Beer," "lager beer" 107 Security, acceptance of execution of mortgage 108 Invoice price notes in payment rescission , 108 Waiver of submission of case to 102, 45 On court and referee trials 24!) Assumed fact, waiver of as a, by moving for verdict.. 45 Question of Fact County seat, intention of voters, is 90 Assuming there is none for jury, directing verdict 105 Review of on appeal, court trial, exceptions 247 Court and referee trials, review, motion for new trial 249 Question of Law. See, Jury, Evidence, Instructions. Ownership, when is a 38 Questions and Answers. In evidence abstract in narrative form 479 ' 'Quotient Verdict. " See, Verdict 83 Reasonable Doubt. See, Evidence, Instructions. As to guilt as to degree 383 Instruction defining, approved 429 Reargument. See, Rehearing. On new abstract, when not permitted 486 Not after remand, supreme court 501-2 Rebuttal. See, Trial, Evidence. Reinforcing plaintiff's case, in, further evidence 13, 14 Same, in criminal cases. . . .371 Receiver. Order discharging, abuse of discretion appeal 239 Recognizance. All, stand over to next term supreme court, when 257 Record. See, Judgtrent Roll, Bill of Exceptions, Statement of Case, Evidence. The, as related to evidence, new trial 111-2 The, as related to error in law, new trial 139-40 INDEX. 567 Decision before, is made denial of new trial without 175 Amendment of, below, after appeal, remand 229 Certification of, county court to circuit 270 What sufficient, on motion for new trial 175, 179 What sufficient for review on appeal 1212-3 Amendment of, practice, power 214, 513 What is part of, what not part of 459-463 Instructions and statement part of, criminal cases 423-4 On motion to dismiss appeal brought by respondent 490 Insufficient for review, examination limited I 513 Copy of transmitted on writ of error 438 Furnished by plaintiff in error 443 Scope of review on, on appeal 471-2 Abstract as related to additional abstract 478-83, 485-88 Presumptions as to when, resorted to 488-90 Records. See, Evidence 125-6 Referee. See. Trial by Referees 53-63 Rehearing. See, Reargument, Petition for Rehearing. Discussion of immaterial constitutional question on 155 Remittitur held for 250-1, 498-9, 501 On non-concurrence, supreme court 258 On new abstract, when permitted 486, 501 1 11 supreme court, under rules 498 502 Petition, service, filing, grounds, hearing 498-500 When filed, new matter, abstract 499-501 Effect of proceedings on taxation of costs 503-4 Costs on, when allowed, amount 505 When renewal of motion is, in effect 197 Reinstatement of Appeal. Motion for rule not void 464 Relevancy. Of evidence to issue pleadings 121-2 Remand. See, Remittitur. Amending record below on judgment on 252, 519 When too late to neglect . 460 Of action on criminal appeal, supreme court 445 No reargument after, of cause 501- Effect of jurisdiction lost by, when 501-2 Remarks of Counsel. See, Counsel 79, 428 Remittitur. Clerk sends down held for rehearing 251, 498-9, 501 Error in transmitting, waiver -252 From circuit to county court "88, 301 From supreme court, writ of error, appeal 447 When too late to send, for correction below 4b(J Holding of, under supreme court rules 4J8- 5 0] Remand of cause, jurisdiction lost ^94 On taxation of costs, appeal, review Replevin. See, Claim and Delivery. Distinction between, and detinue, abolished 568 INDEX. Reporter. Sec, Stenographer. Requisition. When defendant detained for procedure 392 Rescission. See, Contract 159 Res Geste. See, Elvidence 129 Residence. See, Homestead 87, 155 Res Judicata. Former judgment, purchase note, rescission 148 Same question, uncertainty as to 148 Estoppel by former judgment notes 148 Former party defendant wrong party 149 Former action pending foreign garnishment 14!) Foreclosure, inferior interest, former judgment 149-194 Motion, renewal of, before another judge 197 Respondent. See, Parties, Appellant. Who is, on appeal to supreme court 194 In criminal cases 434 May require return of appeal, when 463 Brings up record, motion dismiss appeal 490 Re-Trial. See, Trial De Novo, New Trial, Rehearing. On what appeal from probate guardian 156 On original charge, when , . . 391 On discharge of jury sick juror 396, 403-4 Return. See, Execution, Writ of Error. Of appeal to supreme court 463 Further, when ordered affidavit for 519 Reversal. Errors resulting in harmless prejudice 140 No, in part faulty record 251 Does not affect what probate acts 288, 300 In circuit, dist. court, appeal from county 286, 300 Same, on appeal from justices' court 319 In criminal cases, only after argument 443 Power of, supreme court 445 Rule of, in contempt proceeding 432 Prayer for, on writ of error 438 No, on emasculated abstract 479 In part, costs on, when allowed liability of sureties 505, 217 Review. See, Appeal, Exceptions, Assignment of Error, Record, Judgment Roll. Matters for, where court trial had 51 No, without specifications of error 137-8, 213, 247 No, without motion for new trial, when 152 When there may be 188, U'S, 246, 484 On appeal from judgment alone new trial 240, 193, 239, 155 On exceptions to findings 155 When scope of restricted on appeal record 487, 471, 481 Of errors of iaw only, when 179-80 Of order, on appeal 1 94 Of order not mentioned in appeal notice quaere 247 INDEX. 569 What for, without exceptions 243-4 On appeal from judgment roll 248 When appeal does not present evidence for 249 Of facts and law statute 250 On law alone, appeal from j ustice. 314 Of intermediate order, on criminal appeal 445 Scope of, on record on appeal 471-2 Rules of Court. See, Rules of Supreme Court. Circuit and dist. judges prescribe by, when jury trial 5 Rules of Supreme Court. See, Special Index to Rules, ante, p. 523 448-521 Order adopting, S. D. and N. D 519-20 Clerk's certificate to 519-20 Power of court to make 257, 520 "Rule," meaning of 521 Conflict with constitution or statute , 520 May be rescinded application 521 Court's own construction of conclusive 521 Too broad, not good as to excess 521 Salary. District judge filing certificate, condition to receipt of 46-7 Of supreme court clerk, N. D. 452 Sale. See, Contract, Specific Performance, Warranty. Of realty testimony of agent commissions ' 125 Sale note waiver of warranty 135 Instruction as to, of merchandise, reasonable value 20 ^Tinder execution, re-sale under second, after redemption 153 Not a contract of, but a partnership 158 Of land, parol to identify property . 158 Rescission of contract of limitations 159 Warranty in connection with representations sale under 161 Property statement in connection with, to stranger, incompetent 161-2 Agency guaranty contract of, offsetting commissions 165 Percentage on, monthly sales, not salary 169 Measure of damages on, of land, stipulation , 169 Statute of frauds, agency, letters, telegrams 169-70 Deceit in connection with 170 Of realty, landlord and tenant, crop lien 203 Of realty, power of ceases on appeal from probate 284-5, 296 Second Appeal. See, Appeal 255-6, 512 Seed Lien. Foreclosure of, see, Foreclosure 118 Self-Defense. Burden of proof, doubt 386 Sentence. See, Imprisonment, Judgment, Conviction, Verdict. Of death, application for new trial 43 Illegal, directing judgment below 433 Modification of, when too long 445 Separate Trial. See, Trial. In civil case, discretionary -V Injury shown in refusal of 14& 361 T P 570 INDEX. In criminal case, discretion 383 Service. See, Notice of Appeal, Motion, Appeal, Papers. Of draft of bill of exceptions, or statement 70-1 Of process on native corporation in other state 143 Of notice of intention to move for new trial 175-6 On corporation, "managing agent" 198 Of notice of appeal from county court 265-6, 274 5 Of notice of appeal from probate court 282, 292 Of notice of appeal from justices' court 311, 340 In criminal cases 327, 348 Of notice of appeal to supreme court, civil action 204, 211 Is jurisdictional waiver filing on clerk, party 204-6 Under supreme court rules 452-5, 507 Of undertaking on appeal to supreme court 204, 507-8 Of notice of motion for continuance or dismissal, etc., supreme court. . . 496-7, 513-4 Of bill of exceptions, or statement, criminal action 418-9 Of notice of criminal appeal to supreme court publication 435-6 Of citation in error, on whom 439 Under supreme court rules 455 6, 492 Of abstract, appeal to supreme court of additional 474, 485 Of. appellant's brief 490-2 Of notice of motion, supreme court generally 496-7 Of petition for rehearing 498 Sheriff. See, Officer, Bias. Or coroner, interested in case, county court 272 Venire issued to, or constable, by justice of peace 309, 335 Bias of, summoning jury, criminal action 361* Custody of defendant by, on writ of error 437 Ordered to retain custody of defendant, on writ of error 440 Discharges defendant on certificate of bail 440-1 Show Cause. See, Order 497 Order to, injunction, chambers order 237 Sickness. See, Continuance, Re-Trial. Of juror, civil action, generally 28 Of probate judge, N. D 289 Of witness, county court, testimony of taken 290 Of justice, procedure on 305, 330 Of juror, criminal case, jury discharged 396, 403 Signature. Genuineness of, to instrument, admission 310-11, 339-40 Special Question. See, Finding, Question of Fact, Question of Law, Question for Jury, Verdict. When not error to refuse to submit, to jury. 33 When submission of, presents whole subject, "ordinary care" 37 Special Proceeding. See, Action, Proceeding, Order. What is a final order made in a 238 Order for release of property, receiver, when not a 236 County Court always open to hear 273 Special Term. See, Term 256, 272 INDEX. 571 Specification of Errors. See, Assignment of Errors. Exceptions, New Trial. As related to exceptions, generally . .67-9 When none, scope of review on appeal 131-8, 180, 481, 213, 247 Reference to, in assignment of error 138 On appeal from probate to district court 294, 299 When none in transcript review '.463 When none in bill of exceptions, disregarded 473 When unnecessary in assignment evidence 482 In motion for new trial 180-2 Assignment of error without, criminal action 418, 482 Where none in transcript record 463 In assignment of error, court rule , 466-71 Specification of Particulars. See, Insufficiency of Evidence, New Trial. As to evidence, in notice of intention, or bill 112, 469 In statement of the case 181-2 Specific Performance. See, Contract '. . .92, 158, 169-70, 203 Speech. See, Freedom of Speech 79 Spring Natural. See, Water ..116 State. Exempted from giving appeal bond 215 Appeal by, stays execution below surety 224-5 Appeal by, cause has precedence on calendar stay 224-5 A party, position of case on calendar 465 Challenges of jury by, in criminal case 365 State Board. Appeal by, stays execution below surety 224-5 Appeal by, cause has precedence on calendar stay 224-5 Statement of Case. See, Bill of Exceptions. Defined ' 66 Containing exceptions to ruling, settled when 69 Settlement of, generally contents of 71-2, 253 Amendments, service of 71-2 Duty of judge in settlement of 72 Extending time for settlement of 72-3, 185-7 Exceptions after judgment, settlement of 74 Application to supreme court, to prove. ....... '. 75 Ex- judge may settle 76 When trial court loses jurisdiction to settle 76-7 Exceptions before referee, incorporated in 59 ' Motion for new trial on 176-7, 180-2 Settlement of not jurisdictional 189 What is neither a, nor bill 184 Used on appeal all evidence received 187-8, , 253 Must bring up, or bill, on appeal 205, 212 On appeal from justices' court, S. D 314-5 Costs for, when allowed, statute 504-5 Two objections raised only on 459 In county courts 265, 276 On appeal from justice's court 314-5 On appeal from justice's court, review 314-15, 319 In criminal procedure 414-24 572 INDEX. Defined by whom settled, when 416-19, 431 Ex-judge may settle supreme court 419-20 Wluit statutes govern extending time ti'o-1 What must contain certificate record 4'2'2-4 Basis of motion for new trial 430 \Vhon drafted, etc. motion based on minutes 431 State Officer. See, Official. Appeal by, stays execution below 224 5 Appeal by, cause has precedence on calendar stay 224-5 State's Attorney. Offenses prosecuted by information by, county court 267 Notice to, of trial, county court, S. D 269 Jury demanded by, in criminal case 27 1 -2 What complaint before justice, authorizes, to file information 279 May require witnesses to give undertaking 349 How many jurors, may challenge peremptorily, capital case 365 Reads plea, opens case 371 Substitute for, in criminal case, appointment 401 Citation in error served on, when 492 Control of remarks, to jury, discretion 428 Stationery. For jury, county pays for 401 Statute. Special law, livestock, constitutionality 172 Mechanic's lien 172 Right of appeal, eminent dorr ain 172 3 Chattel mortgage, not filed, creditor 173 Exempt property, assignment, attachment 173 "Municipal corporations," under 173 Disbarment of Attorney, statutory grounds ' 173 Repeal by implication, two affirmative 174 Construction of, for service of appeal notice 227 Act of 1887, relative to appeals organic act 238 As to jurisdiction of county court, S. D. construction of 263 Change of venue, act as to, inapplicable to county court 267 Forcible detainer, design of statute, possession 305 Cannot be read to jury, criminal case 381, 382 No error to refuse 380 Writ of error under the, purpose of 432 Statute of Frauds. See, Contract, Evidence. Conveyance subject to mortgage 94 Ownership of land, memorandum 92 . Partnership, not land sale, parol identity 158 Power of agent to execute land sale contract 169-70 Sale of land, agency, authority, contract 203 Statute of Limitations. See, Limitations. Stay of Proceedings. See, Appeal, Undertaking, Judgment, Execution. On appeal to supreme court 216-223 In criminal cases writ of error 436-7 Issuance of writ of error operates as, what cases 436-7 Bail necessary for, when 440 On appeal from county to circuit, dist. court 283-4 On appeal from probate court to district 294-6 On appeal from justice's court 316, 318-19 INDEX. 73 On application for new trial, criminal case 430 No, on appeal in contest proceedings 216 Stenographer. See, Fees. Objection to taking down instructions, waiver. 15 Oral instructions taken by 24 Before referee, who pays 68 Minutes of, transcript, not a record 66, 212, 459, 463, 471, 479 In county courts 373, 280 Takes charge to jury, criminal cases, when 372-3 Proceedings in settlement of exceptions without 418 Costs allowed to, for transcript statute 504 Submitting Cause. See, Causes 493 Subpoena. Power of county court, N. D., to issue 276 Summons. See, Procees. When copy of furnished by party, on trial 8 Jurors, names of drawn by clerk 9 For jurors, county court 271-2, 276 Power of county court, N. D., to issue 276 As part of judgment roll 139 For jurors, justices' court 309, 834-5 Challenge of officer who served, on jurors 361 Publication of, order for before attachment 143 Publication "six successive weeks" 143 Variance between, and complaint, county court, S. D 267 Second, postponement of trial on issuance of 330 Sufficiency of to confer jurisdiction, waiver by appearance 316 Of talesmen, justice's court, when 310 Waiver of, justice's court, consent to judgment 121 Supplemental Abstract See, Additional Abstract, Abstract , 139, 214, 483, 484-5 Supreme Court, See, Appeal, Jurisdiction, Rules of Supreme Court. Appeals to, from circuit, dist. court 189, 432 Writ of error sued out of 431 -3 Jurisdiction of, original, appellate writs 254-5, 190 Ceases, on remittitur going down . .447 Terms of, calendar, rules, parties 255-7 Adjournment of continuance of 257 Concurrence of judges of in judgment 258 Executes judgments, publication of rules 257-8 Judgments in, concurrence, rehearing 258, 444-5 Held in other buildings adjournments 258 Always open for what, writs, process. 258-9 Decisions of, filing, syllabus 259 Issue of fact, sent from to district 259-60 Power of to stay proceedings below 217 To make rules of court 257, 520 New trial in, on appeal 253-4 Argument of writ, or appeal in 442-3 Rules of 448, 521, 255, 257 Order of, adopting same 519-20 Surety. See, Appeal, Undertaking, Bail, Guaranty.' Amount of judgment against, on general verdict 44 574 INDEX. Of township treasurer, liability proceeds of bond sales 165 On undertaking, appeal to supreme court, justification 225, 227-8 On appeal from probate court 2S4, 2!)4-5 On appeal from justices' court 310-!). 340-v; In criminal cases * 327, 349 Insolvent, on appeal, when appeal not dismissed 508 Surprise. And accident, as ground for new trial 84 Suruey. Government boundary line 112 Syllabus. Of decisions, contents, filing 259 Clerk of supreme court makes copy '. . .450, 452 Talesmen. Summoned in justices' court, S. D 310 Taxation. Unorganized county, situs dog tax 195 Shares bank stock, parties, payment, recovery back 199 Enjoining tax collection, fraud, invalidity 144 Declaring tax void judgment for legal portion 144-5 Void tax deed, statute does not run on 146-7 Taxation of Costs. See, Costs, Appeal. Unnecessary to appeal 209 In supreme court, under rules 502 Insertion in judgment, items, remittitur 502-3 Original causes, where costs taxed review 503 Appeal from, review S. D. practice 503-4 Term. See, Adjournment, Imprisonment, Punishment. Issue of fact tried at what of law -. 5 Additional, business at, trial at adjourned 145 Of supreme court adjournment 256 7 Civil cases appealed to, heard at what 254 Of county courts 269, 271-2, 274 Writ of error, criminal appeal, heard at what 442-3 Of imprisonment, too long deduction of part 445, 448 Notice of appeal served when, for next 452-3 Criminal appealed causes decided at what 464-5 Briefs, abstracts, served how long before 490-1 Call of calendar, causes, on first day of 494-5 What motions noticed for first day of 513-4 Petition for rehearing, heard at what 498-9 Decision, filed how long before end of 498 Terms. See, Costs. When imposed, service of additional abstract 485 Testimony. See, Evidence, Witness. Expert, object on street, fright handwriting 130, 378 Of defendant's wife, U. S. rule, statute inapplicable 386 Of all eye-witnesses, unnecessary to produce 429 Time. See, Calendar, Term, Adjournment, Motion. Allowed for argument, supreme court 493-4 To plead, given by rule, affidavit of merits 521 Statement of case after, dismissal motion for new trial 185 575 Failure to file transcript in, dismissal of appeal ............. 464 Title. See, Claim and Delivery. Plaintiff must show ejectment ....................................... 146 Insurance, divestiture of, void foreclosure .............................. 157 Question of, in ejectment, eviction necessary ............................. 19 Negligence, right of way, possession or, immaterial ..................... 166 Conveyance of, to land, pending suit, damages in ejectment ............ . .171 In forcible entry and detainer, certifying case .......................... 305 To realty, doubtful question, injunction .................................. 93 Town. See, Municipal Corporation, Taxation. Exempted from giving appeal bond ...................... . ...... ........ 215 Township Justices. County courts, jurisdiction of appeals from ....... ................... 264, 275 Transcript. See, Judgment Roll, Record, Certificate, Bill of Exceptions, Statement of Case. On appeal, from county to circuit, dist., court ..................... 265, 274-5 On appeal, probate court to circuit, dist ........................ 285, 287, 297 On appeal, from justice's to circuit, dist., court ............ 315, 313, 321, 343 In criminal cases ................................ ................. 328, 350 On change of venue, justice's court .............................. 306-7, 332-3 In criminal cases ..................................................... 322 Of indictment, information, to other county, when .................... 392-3 On writ of error, appeal, supreme court .......................... 438, 457-63 On appeal to supreme court .................. . ..................... 210, 438 Under supreme court rules ...................................... 457, 463 What is, and is not, proper transcript .................... 458-60, 463, 512 Original papers, when sent up ................................... 458, 463 Further return to order for ......................................... 519 Of stenographer, costs for, on appeal .................................... 504 Of stenographer, no part of record ................. 66, 212, 459, 463, 471, 479 Treason. Proof, witnesses, confession ............................................ 387 Trial. See, Challenges, and the various Courts, New Trial. Defined ................................................................ 3 Of issue of law, in what county ........................................ 5 Appeal from judgment or decision, court trial .......................... 5 Either party proceeds to, when ........................................ 7 Separate, when allowed ............................................. 7, 8 Order of, civil action .................................................. 13 By the court ......................................................... 45, 53 Decision upon, when given ............................................ 46 Filing of mandatory ................................................... 47 Waiver of . . . ................................. . ..................... 47 Judgment upon ........... .......................................... 46-7 Facts found, and conclusions, separate statement ....................... 49 Conclusions and judgment distinct .................................... 49 Appeal, review of decision on of facts or law ....................... 244, 250 All evidence received on, review, appeal .............................. 253-4 In probate courts .................................................. 266, 290 In county courts ............................................ 267-272, 278-280 In justice's court .............................................. 302-311, 333-7 In criminal cases ................................................... 322-5 Of criminal cases, generally ........................................ 351-401 Defendant present, preparation . . .................................... 352-3 576 INDEX. Formation of trial jury 353-358 Challenging the jury 359 371 The trial proper 371-401 Order of -instructions 371-81, 398 9 Separate discharge to testify, acquittal 383 Discharge, want of evidence defendant witness 374-5 For conspiracy, treason, accomplice 387-9 For false pretenses personating seduction 389 90 For ahortion jeopardy retrial jurisdiction 390-2 Acquittal advised view juror witness 394-5 Custody of jury officer sick juror 395-7 Murder, burden of proof bigamy forgery 397 Charge to jury jury, refreshments, separation , 398-9 In absence of defendant, new trial 425 Of original actions in supreme court 517-18 Trial by Jury. See, Trial, Jury, Waiver. Right of, in what cases, circuit, dist. court 3 Constitutional provisions 4 How waived 45 In county court 271-2, 278 In justices' court 308-9 In criminal cases, generally 351-401 Waiver of 352 Trial by Referees. Reference by consent, in what cases 54 Reference without consent 55 Order for 54-5 Fees of referees 54, 63 To whom referred 56 Objections to referee 56-7 How heard 57 Trials, before referees, 58-9 Notice of 58 Powers of referees, on trial 58 Several referees, powers of, majority act 59 Findings and conclusions separately stated 58, 60 Omitted findings added conclusions 60 Exceptions to findings 59, 60, 62 Exceptions incorporated with statement (N. D.) 59 Report incorporated in bill of exceptions (S. D.) 62 Report on trial, contents of, when made 58, 59, 61 Review on report 58, 59, 60 Notice of filing report 59, 61 Judgment on report 59, 61 Without confirmation, when 62 New trial 62 Appeal from judgment review facts 59, 62, 244 Re-reference 59, 62 Costs on 62 Stenographer, appointment of duties fees 63 Neglect to pay damages assessed on reference bond. 230 When presumed that agreement for filed 489 Trial De Nouo. See, Trial, New Trial, Re-Trial, Appeal. On appeal, probate to circuit, dist. court, when 286, 299 On appeal, justices' court to circuit, dist 315, 344 In criminal cases, N. D : 350 In S. D., remand to justice for 328-9 INDEX. 577 On appeal, to supreme court evidence 253-4, 481 None, on appeal to Territorial court 247 Under new N. D. statute, defective certificate of evidence 213 No, on appeal, but facts reviewed, when 155 On appeal from justice to county court, judgment on 266-7 Trust. Property in, suit at law, when. .143 Trustee. Taking deed as security 35 Action against, by beneficiary open trust 143 Typewritten Papers. See, Papers. Required on motions, affidavits, in supreme court 497 Petition for rehearing to be on service of 498-9 Furnished on appeal, civil actions, N. D., when 254 Ultra Vires. National bank, purchase of note by 22 Bank purchasing note 147 Municipal bonds, conditions, consideration, estoppel 164 School corporation, existence of, coupons 165 Undertaking. See, Appeal. Witness, Service, Money. On appeal to supreme court, generally 204 Transmission of, by clerk 210-1 By state, none required conditions of, for stay 215-24 New one, consequence of default as to 225-6 In one or several instruments justification 226-7 Damages on breach of, reference 230-1 On appeal from county court 274, 294-5 On adjournment, justice's court 304 On appeal from justices' court 312, 316-8, 340-2 In criminal cases 327, 349 Of witness, on 328, 332 On appeal in criminal case& new one 440, 442 By defendant, held for trial in other county 392-3 Informal, additional abstract to correct, proper 486 New one permitted by supreme court, when . , . . -507 What service of, good dismissal of appeal 508 Usage. See, Custom 160 Usury. See, Promissory Note , 113 Vacation. See, Order, Judgment. Rehearing, when granted in, N. D., argument on 498-S Opinions filed in, supreme court, N. D 502 Supreme court issues process returnable in 518^9 Decisions of filed in 259 What orders for, of orders or judgments, appealable 237, 238, 242 What orders refusing, of orders or judgments, appealable 234, 237, 509 Same, not appealable 235, 238, 242-1 Should move for, of non-appealable orders 237 Of verdict on court's motion, what should appear 135 Of judgment process, affidavits 201, 151 Value. See, Claim and Delivery, Verdict. When jury to find, of property 39, * 578 INDEX, Of use of property, claim and delivery, bond 42, 172 Of use of land, evidence justifying verdict , 95 Of notes in settlement, verdict for face, erroneous 113 Allegation of, evidence of contract, theory of recovery 117 Of cattle, opinion evidence of . . . 1 30 Of wheat, conversion, instruction concerning 133 Finding of, and special verdict, claim and delivery 114 Variance. Between summons and complaint, dismissal 267 Venire. For jury, county courts 271 -2, 276 For jury, justices' courts .309, 335 Venue. County court, S. D., which county, service of summons 2(>6 Civil practice act not applicable to 267 Order denying change of, appealable 241 Change of, county court 267, 275 Change of, justices' court 306-7, 332-3 In criminal cases, only one : 322, 332 Indictment in one county, crime in another, procedure 392-3 Verdict. See, Assignment of Error, New Trial. The verdict, generally, civil action 32-45, 134-5 When taken in absence of adverse party 7 Prevented, new trial because of 28 Sealed, when directed to be brought in 29 Delivery of, civil action irregularity 29, 81 Rendition of, civil action 29 By three-fourths of jury, when 30 Corrected in form 31 Findings by 31, 32 General and special defined 32, 33 Decisions as to what is 35-38 In relation to issues 32, 33 And findings 33 When jury may render general or special 34 Direction of special 34 Substitution of court's findings for 38 When to find amount of recovery 39 When to find value and damages 39, 40 When to find value of party's interest in property, 40 Entry of. civil action 44 What judgment entered on 44-5 "Quotient verdict" 83 Directing new trial 99, 100 Directed, is court's ruling 101 Against law 78, 113-4, 134 Which cannot stand 113 Neither general nor special 114, 135 Error in law, in relation to 134-5 Generally nothing to review ownership.' 134 General verdict against instructions 134-5 Special finding 134 Directing motion for is error of law, when 135 As to negligence, presumption sale, warranty 135 Vacation of, on court's motion 135 In justices' court 324-5, 337-8, 346-7 In criminal cases, generally 404-14 INDEX. 579 Prevented, re-trial, time of 403-4 Return of, procedure general, special, libel 405 Oral, unless general denned insane defendant 40(5 Special, conclusions of fact, form of 406-8 Argument of, judgment on, pleas 407-8 New trial ordered on, when 408 Degree of crime, when finds ambiguous . . . . . 409-10 Form of, on plea of former conviction 410 Several defendants informal, of guilty 411 Reconsideration of, neither general nor special 412 Informal, persisting in polling of, procedure 412-3 Recording of disagreement, discharge of 413 Judgment of acquittal, discharge, detention 413 Not impeached by juror's testimony 83. 427 Setting forth of, in abstract on appeal 475 ''Against law," assignment of error, nothing to reviewl 472 Voluntary Appearance. See, Appearance 454, 507 Waiuer. See, Jury Trial. Of damages, counterclaim, warranty 18 Of oral instructions taking of by jury 27, 80 Of question for jury 45 Of filing of decision, court trial 47 Of findings of fact, how 51-2, 459 As to incompetent evidence entry of judgment (52 Of objection, presenting bill for settlement 72 Of want of preparation for trial continuance 84 Of submission of case to jury, directing verdict 102, 146 Of statutory lien, other security 114 Of objection to defective complaint amendment 118-19, 121 Of tort assumpsit, conversion 122 Of other grounds, by special objection 131 , 468 Of notice of loss, proof of ^ 131-2 Of objection to court's construction of contract 133 Of warranty, sale note 135 Of confirmation of referee's report 136 Of findings by court, presumption 137, 459 Not part of judgment roll 459 Of notice of appeal, voluntary appearance 454 Of application for judgment , 460 Of question for jury 146 Of claim for rents, "profits, on trial, mortgagor 157 Notice of intention, indispensable, unless waived 179 Of justice of appeal, ineffectual, jurisdiction 204 Of objection to attorney as surety, neglect to except 228 Of right to appeal, accepting benefit under judgment 251 Of irregularity in remittitur, appearance on trial 252 Of objection to jurisdiction, county court 261 Of jury trial, county court, N. D 278 Of preliminary examination before information, complaint, authority. . .279 Of jury, justice's court 308, 334 No, of appeal, by appearance, jurisdiction 316 Of irregularity in calling jurors' names box 355, 362 Warrant. Void, ratification of, public corporation 10 County court, N. D., power of to issue 276 580 INDEX. Warranty. See, Sale, Contract. ( ieneral, covenant of, in deed, prospective 19 Sale of boiler, directing verdict., waiver 18 Sale of separator, note, waiver of IS, 105 1 11 sale note, waiver of 1,'!5 Purchase note, bona fide holder 147 Of title, eviction l(i;{ Useless machine, evidence of value, error 161 Breach of, verbal notice of by agent, writing required Mil Vendee's credit to rebut evidence of '. 161 Water. Percolating, ownership, presumption 116, 195 Will. Stay on appeal, as to probate of or revoking 284-5, 296 Witness. See Evidence, Declarations. Examination of, new trial 122-125 Direct i incompetent question preliminary proofs 122 Not responsive striking out 123 Blind preliminary question^ offer 123 Prejudice leading questions 123 Cross-examination scope of conversation 123-4, 378 Of own witness surprise impeachment 124 Of defendant, rule of accomplice 378, 386-7 To show relation of witness and accused 428 Interest of witness attorney's compensation .... 124 Opening case by introducing defense on ..." 125 Redirect scope of agency 125 Of witness in criminal case inferences 428 In county courts 272, 276 In probate court of sick 290 In justice's court 303, 321, 328, 345 Undertaking by, justice's court 328, 349 In circuit and district court, criminal case 390 On trial of challenge, criminal cases 369-70 Argumentative comparison of, by court 375 Oral notice of, before trial 377 Not named on indictment not before grand jury 377 Discharge of defendant to be a, for state 384 Defendant a, on his own behalf refusal 385 To avert act, treason 387 Juror may be, to fact within knowledge 395 Credibility, rebuttal as to prejudicial practices 428 Volunteering testimony withdrawal 428 All eye-witnesses, unnecessary to produce 429 Writ. See, Writ of Error, Mandamus, Certiorari, Execution, Attachment, Habeas Corpus. Subreme court issues what : 190, 254-5 Stands over term when 257 Always open for issuance of , . . .268-9 Marshal of, executes 518 19 Signing, seal, returnable when (N. D.) 518-19 County court, S. D., power to issue 264 Writ of Error. Unnecessary to appeal 194 Unnecessary, city ordinance, violation of, appeal 207 INDEX. 581 To county court, S. D., from supreme 265-6 May be allowed from county court 263 From supreme to circuit court 431-41 Who sues out, from what decisions 431-4 Under supreme court rules 454-5 Petition for, plaintiff in error, title 433 Under supreme coart rules recitals 455 When filed consequence of failure 457 Defendant sues, from what by state 434 Time for suing out execution, effect on ... 435-6 Stays execution, capital cases '. . .436 Certificate probable cause defendant's custody 436-7 Suspension of judgment on, when 437 Transcript sent up on, clerk, filing 438 Court rule, this section foundation of 438, 457 Return to, certificate of judge, bill of exceptions 439 Under supreme court rules 457 Bills.of exception on, specifications, disallowance 439 Citation, issuance, service certiorari 439-40 Under supreme court rules 455-7 Return of citation, when returnable 457 Dismissal of, for irregularity 441-2 In what cases, return motion, notice time 441-2 Argument of, term, notice 442-3 Record, who furnishes default, dismissal 443 Affirmance on default reversal after argument 443 Counsel, number of heard on .444" Writings. See, Evidence 125 UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 684 635 6