Beyer v. Robinson

• Court: United States State Supreme Court of North Dakota
• Citation: 32 N.D. 560,156 N.W. 203
• Parties: BEYER v. ROBINSON et al.
• Decision Date: 10 January 1916

32 N.D. 560
156 N.W. 203

BEYER
v.
ROBINSON et al.

Supreme Court of North Dakota.

Jan. 10, 1916.

Syllabus by the Court.

Appeal from an order setting aside a sale of land made after appeal and supersedeas bond.

Under the facts in this case the giving of 24 hours' notice to the adverse party of intention to apply for an order fixing the amount of the supersedeas bond is not a jurisdictional requirement.

The trial court had, upon due notice, made a correction in its decree in order to show the true description of the land to be sold. It is apparent that the old decree, as corrected, remained the binding judgment of the court from which the appeal was taken and to supersede which the bond was given. It follows that the judgment was properly superseded, the sale thereafter made void, and the order of the trial court setting it aside proper.

Appeal from District Court, Stark County; Crawford, Judge.

Action by John F. Beyer against Arthur B. Robinson, administrator, and others. From an order setting aside a sale of land and supersedeas bond, plaintiff appeals. Affirmed.

[156 N.W. 203]

M. A. Hildreth, of Fargo, for appellant. Bangs, Netcher & Hamilton and W. J. Mayer, all of Grand Forks, for respondents.

BURKE, J.

This is still another chapter in the litigation begun by Investors' Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317, and continued in Beyer v. Investors' Syndicate, 31 N. D. ---, 153 N. W. 476, where a statement of facts appears. In 1912 Beyer brought an action to determine adverse claims involving the N. W. 1/4 of section 16, 139-94, and three other quarter sections in Stark county, N. D. This original complaint gave a correct description of the lands involved, but shortly thereafter an amended complaint was served in which this particular quarter was erroneously described as the S. E. 1/4 of the same section. Judgment was entered after trial, on August 26, 1913. Throughout the findings of fact and judgment this quarter is described both correctly and incorrectly; both descriptions appearing in those papers. The judgment, however, contained the erroneous description. Execution issued in August, 1913, containing the wrong description for this quarter and the correct description for the other three, and the sale was made thereunder. Shortly after the sale, and on January 13, 1914, upon due application, the trial court corrected the findings of fact and judgment, and incidentally vacated the sale in so far as it affected this particular quarter. On the 29th of January, 1914, a new execution was issued upon the corrected judgment by which levy was made upon the proper land. After the levy, but before the sale, the Investors' Syndicate, the defendant in the action, determined to appeal, and applied to the court for an order fixing a supersedeas bond. The court fixed the bond at $300, and the same was executed, and the trial court ordered all further proceedings suspended, which order was served upon Beyer's attorney. It is conceded, however, that no notice of this application was given to Beyer, and there are several serious irregularities in the form of the bond itself. This lawsuit hinges upon the effect of the bond. If the said bond and the order of the trial court given thereon stayed further proceedings, this judgment should be affirmed. However, plaintiff believed the irregularities so serious that the bond itself amounted to a nullity, and ignored the order of the trial court suspending proceedings. The sale of the...