Clark v. Ellingson
North Dakota Supreme Court
Appeal from District Court, Pierce County, A. G. Burr, J. Action to recover damages for the breach of a redelivery undertaking in claim and delivery. Defendants had judgment as prayed for in the answer, and plaintiff appeals. Where an amendment to a pleading has been allowed, but the pleading not actually amended, a failure to object to evidence offered as though the pleading has so been amended'is a waiver of such objection.
Read the full summary
Appeal from District Court, Pierce County, A. G. Burr, J. Action to recover damages for the breach of a redelivery undertaking in claim and delivery. Defendants had judgment as prayed for in the answer, and plaintiff appeals. Where an amendment to a pleading has been allowed, but the pleading not actually amended, a failure to object to evidence offered as though the pleading has so been amended'is a waiver of such objection. McLain v. Nürnberg, 16 N. D. 144, 112 N. W. 243; Connor v. National Bank, 7 S. D. 439, 64 N. W. 519. And the question cannot be taken advantage of for the first time on…
1Opinion of the Court
Fisk, Ch. J.
Plaintiff seeks to recover against the defendants and respondents as sureties on a redelivery undertaking given in a certain claim and delivery action wherein this plaintiff was plaintiff and one Pat Buoye was defendant, involving the right to the possession of a certain stallion of the alleged value of $1,000. The complaint in such prior action merely alleged plaintiff’s ownership and right to the immediate possession of such animal, and that defendant Buoye wrongfully detained the same from plaintiff, after a demand for possession thereof, and that such stallion was of the value…
2Cases cited4 opinions
- Satterlund v. BealNorth Dakota Supreme Court · 1903
- New England Furniture & Carpet Co. v. BryantSupreme Court of Minnesota · 1896
- Larson v. HansonNorth Dakota Supreme Court · 1911
- Farmers National Bank v. FergusonNorth Dakota Supreme Court · 1914
3Cited by6 opinions
- Jaskoviak v. GruverNorth Dakota Supreme Court · 2002
- Jaskoviak v. GruverNorth Dakota Supreme Court · 2002
- Hausken v. ComanNorth Dakota Supreme Court · 1936
- County of Pembina v. NordNorth Dakota Supreme Court · 1951
- General Talking Pictures Corp. v. JensenSupreme Court of Minnesota · 1933
1 more not listed; retrieve them via the Exa API.