the same identical questions of public policy involved always in the exercise of legislative duties or powers. When exercised as to the organization of cities, it determines whether the charter shall be amended in the matter of boundaries; it determines whether the boundaries of the city shall be changed,-something that can be done in no other way, under present laws, than by the passage of an ordinance. This seems to us to involve the exercise of what is clearly legislative discretion. It is more than the finding of facts. It necessarily compels the finding of conclusions,-not conclusions as to the law applicable, but conclusions as to the wisdom or policy of the relief sought. Whether such action is expedient is necessarily involved. Such duty requires to be done more than is included in the ordinary and accepted meaning of a judicial act,-a determination of what the existing law is in relation to some existing thing already done or happened. It falls within the definition of legislative action, viz., a predetermination of what the law shall be, for the regulation of all future cases falling under its provisions. Cooley, Const. Lim. (5th Ed.) pp. 109, 110. As was said by the supreme court of Illinois in City of Galesburg v. Hawkinson, 75 Ill. 152: "If the boundaries of municipal corporations can be altered and changed by the legislature in its discretion, and the authorities are all that way, then it is impossible that the courts can be invested with such power. Courts may determine what are the corporate limits already established, they may determine whether what is claimed by the municipal authority to be corporate limits is so or not, and they may inquire whether the legislative authority has exceeded the powers with which it is invested; but all this implies an existing law, applicable to the particular subject, and the inquiry is, what is the law, and has it been violated or complied with? Here, however, the inquiry is, what shall the law be, as respects the boundaries of the city? Shall it be as designated by the charter, or shall it be as prayed by the petitioners? And the decree of the court is the answer. That decree assumes to be, not a declaration of rights under the law, but the law itself, amending and changing a previous statute as to the extent of territory over which a particular municipal government shall obtain." The supreme court of Wisconsin said, in deciding whether the creation or organization of a municipal corporation is a judicial act: "Furthermore, the provision authorizing the court to enlarge or diminish the boundaries of the village as justice may require seems to be as equally an exercise of legislative power. It is vigorously claimed by the respondents that these last-named questions are in truth questions of fact only but it seems to us that this claim is utterly untenable. There is no proper sense in which they can be said to be questions of fact. They are, rather, conclusions from all the facts. Given all the facts which the legislature require, the area, the population, the census, the map, the notices,—and does the order calling for an election follow?

By no means. The circuit court, in addition to determining these facts, must then say whether, in its judgment, it is best that there should be a village. *** The question as to whether incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft,—not in any sense a judicial question." In re Village of North Milwaukee, (Wis.) 67 N. W. Rep. 1033, 33 L. R. A. 638. The supreme court of Minnesota, speaking through Judge Mitchell, said in reference to the organization of villages through orders of court: "It will be observed that the duty of the court is not simply to inquire and ascertain whether certain specified facts exist or whether certain specified conditions have been complied with, but to proceed and determine whether the interests of the inhabitants will be promoted by the incorporation of the village, and, if so, what land ought, in justice, to be included within its limits. In short, it is left to the court to decide whether public interests will be subserved by creating a municipal corporation, and the determination of this question is left wholly to his views of expediency and public policy. * * * But the present act assumes to delegate these legislative powers to the district court,-a tribunal not authorized to exercise them; its jurisdiction, under the constitution, being purely judicial." State v. Simons, 32 Minn. 540, 21 N. W. Rep. 750. The following cases also sustain the view that such powers cannot be delegated to the courts: Territory v. Stewart, (Wash.) 23 Pac. Rep. 405, 8 L. R. A. 106; People v. Carpenter, 24 N. Y. 86; Powers v. Commissioners, 8 Ohio, St. 285; Bristol v. Town of New Chester, 3 N. H. 524; City of Philadelphia v. Fox, 64 Pa. 169; Morton v. Dicks, (Miss.) 24 Am. Rep. 661; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107.

It is true that there is great conflict in the decisions of courts of last resort upon this question. The supreme courts of Kansas, Iowa, Nebraska, and South Dakota, notably, are able exponents of conclusions reached opposite to that of ours. Some of these courts hold that the questions passed upon are those of fact or conditions, and not of policy, and therefore judicial. As seen, we do not concur in that view. Others deem the duty of the court to be a review of the action of the council, and, as such, strictly judicial. action. Strictly, the court proceeding is not a review of the action of the council, although bringing the matter before the council is a condition precedent to an application to the court. Conceding, however, that the proceedings in court involved a review, only, and an approval or disapproval, of the action of the council, still the objection is not removed. The same discretion or judgment must be exercised as to the political wisdom or policy of granting or refusing the petition as though the proceedings were originally instituted in the district court. Administrative or legislative bodies are not permitted to interfere with the judgments of courts. Courts

are likewise enjoined from interfering with or reviewing the matters properly before or determined by legislative bodies, including city councils, in matters involving political discretion or judgment. It would not be contended, under any circumstances, that the wisdom of a law enacted by the legislature could be successfully attacked in the courts. Equally is such review enjoined as to the policy or wisdom of the enactments of city councils or county boards as to matters properly before them. It is claimed that courts are not prohibited from exercising their powers in cases pertaining to municipal corporations that involve only matters that are prohibited as special legislation. No authority is cited in support of this contention. On principle, we do not think the contention sustainable. Matters pertaining to or classed as special legislation involve the exercise of judgment and discretion. The exercise of the power is not judicial in either case.

It is insisted with much force that petitioners are left without a remedy if this proceeding cannot be sustained. The matter is a proper matter for determination, by the council. It does not follow-anyhow, it should not follow-that a city council will refuse to grant meritorious petitions because of bias or interest in the city's favor. However, it is a matter for legislation, if present enactments are not adequate to insure relief in a tribunal clothed with rightful power to determine the matters.

The judgment is reversed, and the district court directed to dismiss the petition. All concur.

(88 N. W. Rep. 1023.)

ALLAN WILSON VS. JOHN KArtes.

Appeal-Assignment of Errors.

Appellant having wholly failed to assign errors in his brief as provided by rule 12 (6 N. D. xviii) of the rules of this court, and the record showing no reason for relaxing the rule, the order appealed from is affiirmed.

Appeal from District Court, Cavalier County; Kneeshaw, J. Action by Allan Wilson against John Kartes. Judgment for plaintiff. From an order denying a new trial defendant appeals. Affirmed.

Monnet & Lamb and Gordon & Lamb, for appellant.

Dickson & Dickson, for respondent.

MORGAN, J. This is an action in claim and delivery, brought to recover possession of a bull claimed to be unjustly detained by the defendant. The issues raised by the pleadings were submitted to

a jury, and a verdict in favor of the plaintiff was rendered. A motion for a new trial was duly made, based on a statement of the case duly settled, and the motion denied. Judgment was entered on the verdict. The defendant appeals to this court from such order denying a new trial.

The appellant has wholly failed to comply with the rules of this court in relation to making and subjoining to his brief assignments of error, as prescribed by rule 12 (6 N. D. xviii) of the rules of this court. The requirements of this rule are wholly disregarded, and there is a total failure to assign any errors under such rule, or in any other manner. That it is necessary, in cases tried before a jury to assign errors in the brief as prescribed by such rule, has been so often held by this court that further statement of the reasons on which the rule is based is unnecessary. O'Brien v. Miller, 4 N. D. 108, 60 N. W. Rep. 841; Hostetter v. Elevator Co., 4 N. D. 357, 61 N. W. Rep. 49; Brynjolfson v. Thingvalla Tp., 8 N. D. 106, 77 N. W. Rep. 284; Investment Co. v. Boyum, 3 N. D. 538, 58 N. W. Rep. 339. It is true that this court may, under the terms of the rule, if in furtherance of justice, relax the rule, and review the record, and determine whether prejudicial errors occurred at the trial. On examination of the record we are convinced that no grounds exist, justifying a relaxation of the rule.

The order is affirmed. All concur.

(88 N. W. Rep. 1023.)

SILAS W. PRESCOTT vs. GEORGE BROOKS.

Appeal-Time of Taking-Retrial-Jurisdiction.

Section 5605, Rev. Codes, which limits the time in which an appeal may be taken to the supreme court from judgments rendered in actions wherein the parties against whom the judgments are entered have appeared to one year “after written notice of the entry thereof," construed. Held, that the written notice of the entry of judgment required by said section to set the time for appeal running in order to be available against an appellant must be served upon such appellant by his adversary, and that service by an appellant upon the respondent does not operate to limit appellant's time for appeal. Section 5630, Rev. Codes, and the statutes amended thereby, introduced a new method of trial and appeal in actions tried in the district courts without a jury, and as to appeals taken thereunder imposes duties upon this court entirely unlike those created by the general appeal law. Upon appeals taken for the purpose of securing a retrial under said section, this court is required to make a final disposition of the case, except when, for the accomplishment of justice, a new trial shall be ordered. It follows necessarily that the only retrial authorized by said section is upon an appeal from the entire judgment and a complete transference of jurisdiction of the case to this court. It is accordingly held, that defendants' appeal, which is from a portion of a judgment,

and is accompanied by a request for a retrial of only a portion of the case, does not confer jurisdiction upon this court to enter upon a retrial under said section, and the same is therefore dismissed. Wallin, C. J., dissenting as to grounds of dismissal.

Appeal from District Court, Pembina County; Fisk, J. Action by Silas W. Prescott against George Brooks. Judgment for plaintiff, and defendant appeals. Dismissed.

Cochrane & Corliss, for appellant.

When a mortgage is executed as security for money due or to become due on a promissory note, bond or other instrument designated in the mortgage,the record of the assignment of the mortgage is not, of itself, notice to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them or either of them to the person holding such note, bond or other instrument. § 4717 Rev. Codes. The implication from the statute is that the recording of the mortgage shall be notice, if the original payee no longer holds the note, bond or other instrument. Rogers v. Peckham, 52 Pac. Rep. 483. This appeal is from a divisible judgment consisting of two parts; one part adjudging the validity of the $880 mortgage and decrees the foreclosure thereof; the other adjudges the payment of the $500 mortgage and decrees the satisfaction thereof. There is nothing in our statute or system of procedure which does away with or calls for any modification of the settled rule, applicable alike to appeals in equitable as well as in legal actions, that, upon an appeal by one party from a distinct portion of the judgment, the respondent cannot ask for a review of either portion of the judgment adverse to him from which he, himself, does not appeal. Mackall v. Mackall, 135 U. S. 167-170; Winslow v. Wilcox, 105 U. S. 447; Chittenden v. Brewster, 2 Wall. 191; Clark v. Killian, 103 U. S. 766; U. S. v. Blackfeather, 155 U. S. 180; Building and Loan Assn. v. Logan, 66 Fed. Rep. 827; Mapes v. Coffin, 5 Paige, 296; Kelsey v. Western, 2 N. Y. 501-505; Schlawig v. De Peyster, 49 N. W. Rep. 843; In re Stumpenhouse Estate, 79 N. W. Rep. 376; Matthews v. Imperial Acct. Assn., 81 N. W. Rep. 484; Sabin v. Burke, 37 Pac. Rep. 352; Poe Mut. Life Ins. Co. v. Fisher, 39 Pac. Rep. 758; Goldsmith v. Elwert, 50 Pac. Rep. 867; Hoslam v. Hoslam, 56 Pac. Rep. 243; Cox v. Stokes, 51 N. E. Rep. 316; Sanitary Dist. v. Adams, 53 N. E. Rep. 743; The Stebben Morgan v. Good, 94 U. S. 599; May v. Gates, 137 Mass. 389; Morse v. Smith, 83 Ill. 396; Talcott v. Noel, 78 N. W. Rep. 39-41; Buck v. Fitzgerald, 54 Pac. 942; Phillips v. Reynolds, 55 Pac. 316; 2 Beach Mod. Eq. Pr. § 935 and cases; Phoenix Ins. Co. v. Ward, 26 S. W. Rep. 762; Bank v. Babbitt, 13 S. E. Rep. 177-179-180.

W. H. Standish, for respondent.

Where the appellant, himself, draws up and enters an order he has notice in fact of the order at the time he so enters the same. It