Willard v. Mohn

• Decision Date: 22 January 1913
• Citation: 139 N.W. 981,24 N.D. 386
• Parties: WILLARD et al. v. MOHN.
• Court: North Dakota Supreme Court

24 N.D. 386

139 N.W. 981

WILLARD et al.

v.MOHN.

Supreme Court of North Dakota.

Jan. 22, 1913.

Syllabus by the Court.

The litigant who moves to dismiss an appeal from the justice to the district court, upon the ground that the copy of the undertaking served upon him was incomplete, must make formal proof of such fact by affidavit or other proof, and present such proofs to the trial court. In the case at bar, no such proof was made at the time the trial court denied the motion to dismiss, but some four months later affidavits were filed in the district court, tending to prove such facts. Held, that this court will not consider such affidavits, but will review the action of the district court upon the proofs that were already before it.

The respondent at the time of the hearing, upon the motion to dismiss, also served notice “that defendants should take notice that the merits of the law applicable to the specifications of error, as enumerated in the notice of appeal, may be considered.” Held, that this was a notice that the merits of the demurrer interposed in the justice court would be considered, if the motion to dismiss the appeal were overruled, and the trial court rightfully tried the issue of law arising upon said demurrer.

At common law, the action for tort died with the tort-feasor, and this rule has not been changed by statute in this state. Demurrer interposed in justice court squarely raised this issue, and the trial court correctly sustained the same without leave to amend.

Appeal from District Court, Williams County; Goss, Judge.

Action by David Willard and another against B. L. Mohn, administrator of the estate of Alfred Thorson. From a judgment for defendant, plaintiffs appeal. Affirmed.William Maloney, of Wheelock, for appellants. Van R. Brown, of Ray, for respondent.

BURKE, J.

This action is closely related to the case of Willard v. Mohn, 139 N. W. 979, just decided in this court; the only difference being that the other action was for the killing of Erma Willard, and was brought by her infant son. The case at bar is brought in justice court by David and Luella Willard, father and mother of Erma Willard, and is for damages to building and furniture, and loss of time, upon the occasion of the said killing. The complaint reads as follows: “That on or about, to wit, May 13, 1907, Alfred Thorson, now deceased, of whose estate B. L. Mohn is administrator, went to the house of David Willard, the plaintiff herein, and did unlawfully, and against the will of these plaintiffs, and without their permission, break and destroy and injure the building situated thereon * * * and the furniture therein contained, and thereby caused loss to the plaintiff herein, by such breakage, and loss of time, and expense and repair in the amount of $200.” To this complaint the defendant demurred on the ground that the said complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled; and after trial in justice court, judgment was rendered in favor of the plaintiffs. The appeal was taken from such judgment to the district court of Williams county. While such appeal was pending, the plaintiffs appeared before the said district court and made the following motion: “Plaintiffs, appearing especially by their record attorney, except to the jurisdiction of the court, and move the court to dismiss the appeal attempted herein,for the reason that the notice of appeal and undertaking on appeal, or either of them, was not filed in the office of the clerk of the district court within the statutory time for filing.” This motion was denied. Thereafter another motion was made by plaintiffs to dismiss said appeal upon the ground “that said action is irregular upon the calendar, and that the law permitting said action to be tried in the district court has not been complied with, and, on account of such irregularities, said case should be stricken from the calendar; that the notice of appeal is insufficient to confer jurisdiction upon the district court; that the district court has no jurisdiction of the subject-matters of the appeal, for the reason that no sufficient pleading of defendant has ever been served upon plaintiffs herein. And you are hereby further notified that the merits of the law applicable to the specifications of error, as enumerated in the notice of appeal, may be considered.” This motion was argued April 16, 1909, and was denied by the trial court. At said time the attorney for the plaintiffs urged as a ground for a dismissal of the attempted appeal,...