Rolette County v. Pierce County
| Decision Date | 28 October 1899 |
| Citation | 80 N.W. 804,8 N.D. 613 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Benson County; Fisk, J.
Action by Rolette County against Pierce County. Judgment sustaining demurrer to complaint, and plaintiff appeals.
Affirmed.
Burke Corbet and John Burke, for appellant.
L. N Torson and Steenerson & Rowe, for respondent.
In 1887 the legislature of the Territory of Dakota created the County of Pierce. See Chapter 180, Laws 1887. In its formation certain townships were segregated from the County of Rolette and incorporated in the County of Pierce. At that time Rolette county was indebted in a certain sum. In June, 1889 Rolette county, the plaintiff and appellant herein, brought an action against Pierce county, defendant and respondent herein, to recover what was alleged to be the proper proportional share of the indebtedness of Rolette county. On July 13, 1889, the defendant served a general demurrer to the complaint. The action had been brought in Rolette county. Pursuant to a proper application, the Court, on July 31 1889, made an order changing the place of trial to Benson county, and awarding to the defendant motion costs therefor. On August 9, 1889, after full argument, an order was made sustaining the demurrer and dismissing the complaint. On the same day an order for judgment was signed, which reads: All these orders were filed in Rolette county. Certified copies of all the papers in the case were sent to, and received by, the clerk of the court of Benson county, but they were never marked filed in that county. On January 18, 1890, Rolette county drew its warrant in favor of the attorney for the defendant for the full amount of the costs in the case. On September 16, 1898, more than nine years after the demurrer had been sustained and the order for judgment signed, an application was made by plaintiff to the proper court for an order on defendant to show cause why said order for judgment should not be set aside, and plaintiff given leave to amend. An order to show cause issued, and upon its return it was exhaustively presented upon voluminous affidavits and record entries. As a result of such hearing, the motion to set aside the order for judgment and for leave to amend was denied, and the clerk of the court for Benson county was directed to enter a formal judgment on the order for judgment signed August 9, 1889, and on February 14, 1899, such judgment was entered, from which judgment plaintiff appeals.
At the threshold of this case, respondent presents the proposition that appellant long since abandoned the case and lost its right to appeal. We think this position must be maintained. Ordinarily claims of this character would become barred in six years. In this case for more than ten years appellant took no steps looking to the enforcement of the claim, and gave no indication that it supposed that it had any claim. Of course, under the circumstances, the...
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