Rehearing denied March 21, 1908.
Appeal
from District Court, Sargent county; Allen, J.
Action
by Ole Hanson against Carl Gronlie. Judgment for plaintiff
and defendant appeals.
Affirmed.
Judgment affirmed, and respondent recovered his costs.
O. S
Sem, for appellant.
The
overruling of a demurrer reopens the case for trial on the
merits. Grovernor v. Signor, 88 N.W. 278.
A
justice's jurisdiction must always affirmatively appear.
Spears v. Carter, 48 Am. Dec. 687; Root v. McGerrin,
75 Am. Dec. 49.
Time
and place of meeting must be stated in the order continuing.
Sluga v. Walker, 81 N.W. 282.
H. B.
Thompson and Rourke, Kvello & Adams, for respondent.
A
pleading sufficient in justice court is sufficient in
district court. Kelsey v. Chicago & N.W. Ry. Co., 45
N.W. 204.
Going
on with trial waives right to object to jurisdiction.
Lyons v. Miller, 2 N.D. 1, 48 N.W. 514; Miner v.
Grances, 3 N.D. 549, 58 N.W. 343; Benoit v. Revoir, 8
N.D. 226, 77 N.W. 605.
Statutes
affecting appeals from justice courts are strictly construed.
Tschetter v. Heiser, 68 N.W. 744.
OPINION
FISK, J.
Plaintiff recovered judgment in justice's court for the
sum of $ 8 and costs. On appeal to the district court this
judgment was affirmed, and the case is here on appeal from
the judgment of that court.
Appellant
assigns error as follows: (1) In overruling defendant's
demurrer to the complaint; (2) in overruling defendant's
motion to make the complaint more definite and certain; (3)
in affirming the judgment of the justice court, and ordering
it entered as the judgment of the district court; and (4) in
overruling appellant's motion to dismiss the action on
the ground that the justice lost jurisdiction by adjourning
the case from December 1st to December 3d, without stating on
the docket the time when, and the place where, the court
would again convene.
A
proper understanding of the rulings upon which are predicated
the first two assignments of error necessitates an
examination of the complaint and demurrer. The complaint is
as follows: "For a cause of action against the defendant
the plaintiff alleges and shows to the court that on or about
the 5th day of August, 1906, the defendant sold to the
plaintiff a number of cattle, to wit, 4 heifers and 18
steers, for the agreed price of $ 22 per head; that when the
plaintiff bought the said cattle from the defendant they were in a large pasture mingled with other cattle
that plaintiff and defendant went out to the said pasture to
look at the said cattle; that when plaintiff and defendant
came to the said pasture a portion of the said cattle were
near by and the rest of them were far away with other cattle;
that plaintiff examined the cattle near by and found they
were in good condition, and worth the amount of $ 22 per
head; that by said contract of sale the defendant warranted
and represented to this plaintiff that said cattle that were
far away in said pasture were in as good a condition as those
that plaintiff saw and examined; that they were sound and
free from defects and disease; that the defendant warranted
and represented to plaintiff that said cattle would be
brought to Milnor, sound, healthy and free from defects and
disease, and in as good condition as those plaintiff saw and
examined; that shortly after said sale the defendant went out
to said pasture and brought said cattle to the town of
Milnor, the place of delivery; that when the said cattle were
taken out of the pasture one of the heifers above mentioned
was lame, her leg swollen; that when the said cattle were
brought into Milnor the plaintiff was informed of the
condition of the said heifer, and he immediately went to
examine her in the yard at Milnor, and found her lame, her
leg swollen and infected with a disease which the plaintiff
believes is a disease commonly called 'hoof rodth';
that by reason of the diseased lameness and condition
plaintiff could not ship the same, the said heifer, but that
the said heifer was wholly unfit for shipment; that by the
warranty and representation of the defendant this plaintiff
was induced to purchase the said cattle of the defendant and
to pay him therefor the price of $ 22 per head; that, relying
on the warranty and representation of the defendant, this
plaintiff did not go to look and examine the cattle that were
further away, but bought the same wholly on the strength and
representation of the defendant that they were in as good
condition as those plaintiff saw and examined; that they were
sound and free from disease, and, relying on said warranty
and representation, he bought the same, and paid him therefor
the price of $ 22 per head; that by reason of said warranty
and representation of the defendant, plaintiff was misled and
injured thereby, and that the said heifer above mentioned is
of no greater value than $ 12; that plaintiff has sustained
damages by reason of...
