2. A mandamus proceeding is not an action under sections 6741-6742,
and 6743, Rev. Codes 1905, being a special proceeding. Under
section 7229, Rev. Codes 1905, only actions are triable de novo in
the Supreme Court, and this does not contemplate the trial de
novo of special proceedings. State v. Fabrick, 94.
3. The cause of action for equitable relief from a forfeited mechanic's
lien may be joined with a cause of action to recover the penalty
imposed by the statutes for failing to release the lien on demand.
Sheets v. Prosser, 180.
4. The plaintiff having paid the fee required by such law and demanded
by the county auditor, before he was allowed to file his petition
as a candidate, under protest, on the facts disclosed and admitted
by the pleadings, an action at law to recover such fee is a proper
remedy. Johnson v. Grand Forks County, 363.
1. Affidavit of notice of sale in real estate mortgage foreclosure recit-
ing that notice was published "seven consecutive times, commenc-
ing on July 17, 1885, and ending August 28, 1885, both inclusive,
in the Lisbon Star, a weekly newspaper," is sufficient. Cook v.
Lockerby, 19.
2. An affidavit upon information and belief is insufficient upon which
to base constructive contempt proceedings, and the court acquires
no jurisdiction thereunder to issue an attachment for contempt
State v. Newton, 151.
3. The prima facie presumption that an affidavit is sworn to in the
county named in its caption or venue is overcome by the pre-
sumption that an officer's acts are performed at the county where
he is legally authorized to act. Selzer Lbr. Co. v. Chaflin, 601.
ALIMONY. SEE SUPREME COURT, 17; DIVORCE, 269.
AMENDMENT. SEE PLEADING, 144.
1. Plaintiff at the trial asked leave to amend his complaint by setting
up a cause of action according to M., and alleging an assignment
thereof to him prior to the commencement of the action. This
amendment would entirely change the cause of action, and hence,
was properly refused. Such proposed amendment was also in-
consistent with the proof already introduced by plaintiff, which
showed that such assignment was not made until after the action
was commenced, and should, for that reason, have been denied.
Woodward v. N. P. Ry. Co., 38.
1. When essential arguments are omitted from the complaint and sup-
plied by the answer, which defects in the complaint are cured.
Omlie v. O'Toole, 126.
APPEALABLE ORDERS. SEE APPEAL AND ERROR, 231.
APPEAL AND ERROR. SEE SUPREME COURT, 234; VERDICT,
248; JUSTICE OF THE PEACE, 335, 355; EVIDENCE, 420;
CRIMINAL LAW, 426; INSTRUCTIONS, 426.
1. The respondent is not allowed costs for unnecessary reprinting of
portions of abstract in the brief. State v. Richardson, 1.
2. Upon cross-examination of plaintiff, it was disclosed that one Cham-
berlain is to receive 25 per cent of any sum plaintiff may recover
in this action, and defendant contends that this should defeat
plaintiff's recovery. The answer to this contention is the fact that
no such defense was pleaded in the answer, and, furthermore, no
ruling was made; nor was the trial court asked to make any ruling
upon which such assignment of error should be predicted. Kepner
v. Ford, 50.
3. Decision of the trial court upon the challenge to a juror for actual
bias is entitled to great respect by this court, and will be disturbed
only upon a clear abuse of discretion. State v. Werner, 83.
4. The competency of a child 8 years old as a witness is for the trial
judge to determine within a sound judicial discretion, and such
determination will be reversed upon appeal only upon manifest
abuse of such discretion. State v. Werner, 83.
5. A mandamus proceeding is not an action under sections 6741, 6742 and
6743, Rev. Codes 1905, being a special proceeding. Under section
7129, Rev. Codes, 1905, only actions are triable de novo in the
Supreme Court, and this does not contemplate the trial de novo
of special proceedings. State v. Fabrick, 94.
6. A statement of the case on appeal in a mandamus proceeding which
does not contain specifications of error does not admit of a review
of anything except the judgment roll. State v. Fabrick, 94.
7. Questions certified to the Supreme Court by the District Court for
review, pursuant to section 10 of said chapter 161, p. 218, Laws
1903, should be based upon a statement of the facts established on
the trial, and the evidence should not be returned to this court.
Grand Forks County v. Frederick, 118.
8. Upon a review of a judgment of the District Court under section
10, chapter 161, p. 218, Laws 1903, questions of law and not ques
tions of fact are reviewable. Grand Forks County v. Frederick,
9. Action of trial court in amending complaint after all evidence is
introduced, to make it conform to the proof, when such amend-
ment makes no substantial change in the claim, will not be re-
viewed on appeal, unless an abuse of discretion is apparent. Held,
under the circumstances surrounding making of such amendment
in this case, no abuse of discretion appears. Omlie v. O'Toole, 126.
Irregularities in the certificate of the trial judge of the judgment
roll are of no avail to the respondent in this court, when not
raised by motion before the appeal is submitted on its merits. Mc-
Clain v. Nurnberg, 138.
Indefiniteness in a stipulation under which evidence is received on
the trial in the District Court cannot be taken advantage of on
appeal, unless based on some objection or motion made in the trial
court. McClain v. Nurnberg, 138.
APPEAL AND ERROR-Continued.
12. Where the trial court grants leave to amend a complaint and to file
the former amended complaint at a later time, and the trial pro-
ceeds on the theory that the complaint has been regularly amend-
ed and no objection is made to the irregularity until the case reaches
the Supreme Court on appeal, the irregularity is waived. McClain
v. Nurnberg, 144.
13. The fact that a verdict is given for a sum larger than demanded
in the original complaint cannot be first raised on appeal. McClain
v. Nurnberg, 144.
14. The insufficiency of the evidence to sustain the verdict cannot be
raised for the first time on appeal, and not then until the particu-
lars are pointed ont on new trial proceedings. McClain v. Nurn-
berg, 144.
15. Objections to the competency of evidence cannot be raised for the
first time on appeal. McClain v. Nurnberg, 144
16. An order refusing to set aside a judgment rendered after a trial
and verdict is not appealable, when such order is based on a motion
to set aside the judgment on the ground that the special verdict
on which the judgment was entered did not warrant the entry
of judgment thereon. Olson v. Mattison, 231.
17. Irregularities in the rendition of judgment may be corrected by
motion; but the corrections of errors of law occuring at the trial,
or in framing or receiving special verdicts, or in entering judg
ment thereon, can only be made by appeal or motion for a new trial.
Olson v. Mattison, 321.
18. Errors assigned to the brief, but not argued, will be deemed aban-
doned. Kelly v. Pierce, 234.
19. Where both parties move for a directed verdict, the action of the
trial court will be sustained unless there is an absence of any facts
in the evidence on which to base it. Larson v. Calder, 248.
20. The Supreme Court has the power, under section 7229, Rev. Codes
1905, to determine all the issues between the parties involved in an
action appealed under said section. Mosher v. Mosher, 269.
21. Error cannot be predicted upon the ruling of the trial court in deny
ing defendant's motion for a directed verdict made at the close of
plaintiff's case in chief, where defendant subsequently introduces
evidence, and does not renew his motion at the close of all the
evidence. Such ruling, if error was thereby waived by the defen-
dant. Madson v. Rutten, 281.
22. The Supreme Court is not bound by stipulation of the parties of
record to an action wherein it is agreed that the trial court com-
mitted error in appellant's brief, and requesting this court to
reverse the judgment of the lower court and enter judgment in
favor of the appellants, and will not, under the circumstances dis-
closed by the record and stipulation in this case comply with the
terms of such a stipulation especially when the record discloses no
reversible error on the part of the trial court, and interested third
parties, with the knowledge of both plaintiff and defendant, have
participated in and contributed towards the conduct of the litiga-
tion from its inception. Gordon v. Goldamer, 323.
APPEAL AND ERROR-Continued.
23. An appeal to the District Court from a justice of the peace having
been duly taken and perfected by the service of a notice of ap-
peal and undertaking, pursuant to Rev. Codes 1905, sections 8500,
8507, it was error to dismiss the same upon the ground that the
justice had failed to transmit to the clerk his transcript as requir-
ed by the latter section. Haessly v. Thate, 403.
Under the facts stated in the opinion, it was an abuse of discretion
to deny appellant's motion for an order requiring the justice to
transmit to the clerk a certified transcript as required by law.
Haessly v. Thate, 403.
The trial court instructed the jury that they might find the defen-
dant guilty whether a gun was shot off by defendant or not, pro-
vided they found that he aimed the same at the prosecuting wit-
ness with intent so to do. Held, reversible error. State v. Huns-
kor, 420.
The trial court, in addition to sentencing defendant to imprisonment
in the county jail, imposed a fine. This was error, as the statute
under which defendant was convicted prescribes imprisonment
merely, either in the penitentiary or county jail. State v. Huns-
kor, 420.
A defendant in a criminal action is entitled to have submitted to the
jury, with proper instructions, all defenses of which there is any
support in the evidence, whether such defenses are consistent or in-
consistent. It is accordingly held that the trial court properly in-
structed the jury upon the theory of accidental killing as well as
that of justifiable homicide. State v. Hazlet, 426.
28. It is error to permit the state to prove other offenses than the one
charged, if they in no way tend to prove defendant's guilt of the
latter. The rule announced in State v. Kent, 5 N, D. 516, 67,
N. W. 1052, 35 L. R. 518, is held not applicable to the case at bar.
State v. Hazlet, 426.
29. The findings of a trial court in an action at law where a jury trial
has been waived are presumptively correct and will not be disturbed
unless shown to be clearly against the preponderance of the evi-
dence. Ruettel v. Insurance Co., 546.
ASSESSMENT. SEE TAXATION, 118, 193.
1. The complaint charged defendant with negligence in causing a fire
to be started, which spread, causing injury to certain premises
claimed to be owned by plaintiff. At the trial plaintiff sought to
show an assignment by one M. to him of a cause of action against
defendant of a similar nature. Held, that such proof was properly
rejected, as it in no way tended to support the allegations of the
complaint. Woodward v. N. P. Ry. Co., 38.
1. Levy of a writ of attachment upon property covered by chattel mort-
gage does not waive the lien of such mortgage. Madson v. Rut-
ten, 281.
1. An attorney employed to collect rent and to serve certain notices
has no power by virtue of such employment alone to make new
contracts for his principal. McClain v. Nurnberg, 144.
2. The estate of a decedent is not primarily liable for legal services ren-
dered for the benefit of such estate at the request of the personal
representative. Such services are performed for and on behalf of
the executor or administrator, who is personally liable for the pay-
ment thereof, and for all such reasonable expenditures he is en-
titled to reimbursement from the estate. Besancon v. Wegner, 240.
3. This suit was brought in the name of one Van Gordon as plain-
tiff, expenses being paid by holders of the liens upon the property
in controversy, which liens, if the plaintiff prevailed, would be
prior and superior to the liens of the defendants. Van Gordon
appeared through an attorney, and was examined as a witness in
his own behalf at great length on the trial, and testified that he
was the plaintiff, and such testimony was not denied or questioned
by either party until the records and briefs had been printed, and
the case set for argument in the Supreme Court, when the plain-
tiff filed an affidavit alleging that he had never employed the at-
torney of record for plaintiff to bring this action. Held, that even
though the attorney claiming to represent the plaintiff and acted
without direct authority in bringing suit, plaintiff had ratified his
acts and made him his attorney, and that it is too late for plaintiff
to deny such employment, or for the defendants to question the
attorney's authority for the first time by stipulation and motion to
reverse the judgment of the trial court, when set for argument in
the Supreme Court. Gordon v. Goldamer, 323.
ATTORNEY AT LAW. SEE ATTORNEY AND Client, 323.
1. Where a governor of the state appoints a judge of the District Court
under a law providing that the office shall be filled by a general
election, and a private relator applies for leave to file an application
for a writ in the nature of a writ of quo warranto, on the ground
that he has suits pending of strictly personal nature, and that the
public are interested and that the sovereignty of the state is affect-
ed, this court will assume original jurisdiction under section 87,
art 4, of the constitution, although the attorney general refuses to
consent that said private relator may apply for leave to file the
application for such writ in the name of the state. State v. Burr,
1. The contract set forth in the opinion construed, and held to be an
agreement for sale of the property therein mentioned, and not a
bailment as contended for by appellant. Held, further, that even
if such contract, by reason of ambiguity, could not be held sub-
ject to explanation by parol, or by the subsequent conduct of the
parties, such proof is insufficient to sustain appellant's contention
that the same was intended merely as a storage and transfer con-
tract. Morrison Mfg. C. v. Fargo Storage Co., 256.
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