Legal Opinion · Concurrence

State ex rel. McClory v. McGruer

North Dakota Supreme Court

Decided November 7, 1900PublishedCited by 1 opinion

Appeal from District Court, Cavalier County; Fisk, J. Action by the state, on the relation of P. J. McClory, assistant attorney general, against N. McGruer, to abate a liquor nuisance. From the judgment both parties appeal.

1ConcurrenceBartholomew, C. J.

I concur in the result, but, as to the last point, not upon the ground stated in the majority opinion. I do not believe it was ever intended by the legislature that a court should inquire into the truth of the averments contained in the affidavit upon which the warrant for search and seizure of property and premises is based until the final hearing. It is clear that the fact thus involved must be the controlling fact in the main case every time; and if this fact can be determined upon motion to discharge the property or premises seized, then, in effect, the case can always be tried upon…

2Cited by1 opinion

  1. State ex rel. McClory v. McGruerNorth Dakota Supreme Court · 1900

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