EXECUTORS AND ADMINISTRATORS continued.
2. It appearing that the surviving children of a deceased person who have the
right to control the appointment of an administrator did not agree upon
the appointment; that there was evident friction existing as to the manage-
ment and disposition of the estate; and that the court had exercised the
discretion vested in it by the appointment of a suitable third person,—it is
held, for these and other reasons indicated in the opinion, that the discre-
tion was not abused. Ellis v. Ellis, 535.
FOREIGN JUDGMENTS. See EVIDENCE, 2.
1. Claude Rossen, having been arrested for violation of the so-called "Blue Sky
Law" (Laws 1915, Chap. 91), applies for a writ of habeas corpus. He
claims that the criminal complaint fails to set forth facts showing that he
sold "speculative securities," within the purview of said act. For reasons
stated in the opinion, it is held that the contract or certificate which he sold
was a "speculative security," within the meaning of that term as defined by
the "Blue Sky Law" of this State. State of North Dakota ex rel. Rossen v.
Welch, 44.
FRAUDULENT CONVEYANCES.
1. Where it appears that a vendor of personal property has the same in his
possession or under his control, the sale thereof, unless accompanied by an
actual and continued change of possession of the property sold, is pre-
sumed to be fraudulent and void as against creditors of the vendor, unless
those claiming under such sale make it appear that the same was made in
good faith and without any intention to hinder, delay, or defraud such
creditors. Compiled Laws 1912, § 7221. MacDonald v. Fitzgerald, 133.
GOOD WILL. See CONTRACTS, 2.
1. Where qualified physicians disagree upon the diagnosis of a diseased condi-
tion of particular persons, the health authorities and a school board, whose
duty it is to execute the orders of the board of health, are justified in ac-
tion upon the opinion of their own competent experts. Martin v. Craig, 213.
2. The discretion to issue or deny a writ of mandamus will not be exercised
under the circumstances manifested in the instant case in such a way as
might result in needlessly exposing healthful children to a serious disease.
Martin v. Craig, 213.
1. Section 5610, Compiled Laws of 1913, bars a right of action founded upon the
homestead right where no declaration of homestead is filed and where the
property is not occupied as a homestead. Sexton v. Sutherland, 509.
2. It is held, under the facts stated in the opinion, that the action of the plain-
tiff is barred under Section 5610, Compiled Laws of 1913. Sexton v. Suther-
land, 509.
INDICTMENT AND INFORMATION.
1. Where one is prosecuted for a crime and a criminal information is filed in
which the acts constituting a crime are alleged, it is incumbent upon the
state to prove, beyond a reasonable doubt, each and every material allega.
tion of the information. State v. Lessleyoung, 96.
2. An information was filed against the defendant charging him with obtaining
money and property unaer false pretenses. Evidence examined and held to
show a failure of proof of material allegations contained in the information.
State v. Lessleyoung, 96.
3. Sections 9519 and 9549 of the Compiled Laws of 1913 are construed as pre-
viously construed in the case of State v. Cruikshank, 13 N. D. 337, and it is
held that the felony of shooting or attempting to shoot another with intent
to injure the person is not committed unless an attempt to carry out the in-
tent is shown. State v. Gunderson, 498.
4. Where the information charged the defendant with shooting another with in-
tent to injure, and the jury, by its verdict, finds the defendant guilty of the
crime of assault with a dangerous weapon as charged in the information,
the verdict does not find the defendant guilty of an attempt to shoot, within
§ 9519, Compiled Laws of 1913. State v. Gunderson, 498.
1. As a general rule the granting or refusal, the continuing or dissolving, of a
temporary injunction lies within the sound judicial discretion of the trial
court and its ruling will not be disturbed unless an abuse of such discretion
is shown. Hurley v. Village of Fairmount, 198.
2. In an action to restrain the officers of a village from installing a waterworks
system and a sewerage system, a temporary restraining order was isued ex
parte at the commencement of the action. Upon the hearing as to the con-
tinuing or dissolving of such order it was conceded that no permission
had either been sought or obtained from the War Industries Board to con-
struct such systems, as required by the directions of said Board. The trial
court thereupon terminated the hearing and continued the restraining order
in force until the further order of the court. Held, that the trial court did
not abuse its discretion in so doing. Hurley v. Village of Fairmount, 198.
1. Certain assignments of error predicated upon instructions given and refused
considered, and held to be without merit for reasons stated in the opinion.
MacDonald v. Fitzgerald, 133.
1. In an action on a note for a hail insurance premium, findings of the trial
court that the policy was never delivered are found to be sustained by the
evidence. Alliance Hail Association v. Lynch, 178.
1. This action was brought in Cass County. The defendant Pioneer Stock Com.
pany was domiciled at Stutsman County and defendant Tucker was a
resident of Stutsman county at the time of the bringing of the action.
The defendants were entitled to have the case tried in Stutsman county if
demand therefor was duly made in time; held under the evidence in this
case that such demand was made in time. This being true, the right of the
defendants to have the case tried in Stutsman county became absolute, and
further held, that the district court of Cass county, from the time of making
of proper and legal demand for a change of venue, was without jurisdiction
to enter judgment in the case or to do any other act excepting to make an or-
der granting the change of venue and transferring the case and all matters
connected therewith to the jurisdiction of the district court of Stutsman
county. Fargo Silo Co. v. Pioneer Stock Company, 48.
2. A corporation which was not a party to prior litigation is not bound by a
judgment of dismissal, where the litigation was not conducted on its be
half. Scandia State Bank v. Dinnie, 71.
3. Where, through mistake of a managing agent common to two corporations,
a suit was begun in the name of one corporation which should have been be-
gun in the name of the other, and such suit resulted in a final judgment
against the plaintiff corporation, in the absence of circumstances sufficient to
create an estoppel, the corporation in whose name the original suit should
have been begun is not precluded from maintaining a subsequent action on
the same subject-matter. Scandia State Bank v. Dinnie, 71.
4. In the absence of fraud and where no other rights intervene, there is no reason
which will prevent a second levy upon personal property, under the outstand-
ing writ, where such property has once been taken but afterward surren-
dered by mistake or otherwise. MacDonald v. Fitzgerald, 133.
5. In trials de novo, under the Newman Act, § 7846, Compiled Laws 1913, in
the supreme court, the use of the term "judgment reversed," in the opin
ion of the court determining the case, means a final disposition of the
case, unless it appears from the opinion of the court or the language used,
that a new trial is ordered or may be granted. Orth v. Procise, 149.
6. Where an appeal has been had to this court in an action which is triable, and
has been tried and submitted under the Newman Act, and this court in its
opinion indicated a final disposition of the case and ordered the judgment to
be reversed, it is held that the trial court had no authority to grant a new
trial in such action, upon the motion made therefor, and that it was proper
to enter a judgment of dismissal, and for costs in the trial court against the
appellants herein. Orth v. Procise, 149.
7. Where judgment is rendered upon an action brought upon a note and mort-
gage, and for the foreclosure thereof, against two defendants, and one only
of the defendants appeals therefrom, the reversal of such judgment by this
court, on such appeal, does not operate to reverse the judgment rendered
against the other defendant who has not appealed. Orth v. Procise, 149.
8. In an action in the superior court of Los Angeles county, state of California,
by the plaintiff against defendant et al., a judgment was entered in plain-
tiff's favor for $7,399.99 upon which there was paid $358.40, leaving a bal-
ance due thereon of $7,041.40. Steffanson with other of the defendants ap-
pealed from such judgment to the supreme court of the state of California,
and such appeal is still therein pending. The plaintiff, while the action
was still pending in the supreme court of California brought suit in the dis-
trict court of Burleigh county, North Dakota, upon the judgment, and re-
covered judgment thereon in said court in the sum of $7,709.61. Ebner
v. Steffanson, 229.
9. It is the general rule in California as announced by their decisions that in an
appeal from a judgment in that state, where their laws do not require that
a stay bond shall be furnished in order to stay execution or other proceed-
ings on the judgment, during the pendency of such appeal such judgment is
to all intents and purposes suspended during the appeal, and is not compe-
tent as evidence until a determination of the appeal. This rule does not
apply to an appeal from a judgment where a stay bond under the law of
California is required to stay execution or other proceedings on the judg
ment. Ebner v. Steffanson, 229.
10. There must be some pleadings to sustain a judgment. Traill County v. State,
253.
11. Defendant made application and served motion to open a default judgment.
She made an affidavit of merits sufficient in form and substance, which was
supported by other affidavits and exhibits. The trial court denied the mo-
tion. Held under the circumstances existing in this case such denial by the
trial court was an abuse of its discretion. Foster & Connolly v. Dwire, 319.
12. The clerk of the district court acts in a ministerial capacity in entering judg-
ments. He must enter such judgment as the court has ordered, and none
other. And where the clerk enters a judgment different from that ordered,
the court may order the judgment to be amended so as to conform to the or-
der for judgment. Beyer v. North American Coal Company, 495.
13. Upon a motion made to vacate such judgment so rendered, upon the ground
that at the time of the rendition thereof the appellant was in the active
military service of the Federal Government, and it so appearing upon the
hearing of such motion, it was the express duty of the trial court pursuant
to chap. 10 of the Special Session Laws of N. D. 1918 (The Moratorium
Act), to vacate such judgment, and not to take any further proceedings in
such action during the time our government is engaged in the present war
and for an additional period of one year, except pursuant to the provisions
of said Moratorium Act. Thress v. Zemple, 599.
LEGISLATIVE ACT. See STATUTES.
1. A seed-lien statement under Comp. Laws 1913, § 6852, which is signed by the
vice president of a bank and which directly claims a seed lien in favor of
such bank, and which further states the kind and quantity of seed furnished,
its value, and the name of the person to whom furnished, and a proper
description of the land upon which the same was sown, substantially com-
plies with the statute, as against the objection raised that the lien state-
ment does not show affirmatively that the bank furnished the seed, or pos-
sessed any interest in the grain. Bovey-Shute Lumber Company v. Thomas,
2. In an action brought by the holder of a sheriff's certificate of sale to recover
the owner's share of certain wheat under its right to receive the rents, or
the value of the use of land during the period of redemption, where a defend-
ant bank has interposed a counterclaim alleging a seed lien to exist upon
such wheat for the seed furnished therefor, and from which the same was
grown, and where the evidence discloses that the bank furnished such seed
wheat to the party, either as a chattel mortgagee in possession of such
wheat, or as a party to whom the owner thereof had turned over such seed
wheat, it is held that the bank is entitled to enforce a seed lien upon such
grain, as the party who furnished the same, within the meaning of §§ 6851
and 6852, Compiled Laws 1913: Bovey-Shute Lumber Company v. Thomas,
LIMITATIONS OF ACTIONS.
1. Where a clerk of court made an entry upon his record showing that a judg-
ment against two certain persons was satisfied when in fact the satisfaction
was partial and satisfied the judgment only as to one of the parties, and
one of said parties thereafter executed a mortgage upon certain land which
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