Brynjolfson v. Northwestern Elevator Co.
North Dakota Supreme Court
Appeal from District Court, Pembina County; Sauter, J. Action by Bjorn S. Brynjolfson against the Northwestern Elevator Company. Judgment for plaintiff. Defendant appeals. The complaint neither alleged that the mortgage had been properly filed or that defendant had actual notice of its existence. The attachment of the copy of the mortgage to the complaint did not constitute it a part of the pleading.
Read the full summary
Appeal from District Court, Pembina County; Sauter, J. Action by Bjorn S. Brynjolfson against the Northwestern Elevator Company. Judgment for plaintiff. Defendant appeals. The complaint neither alleged that the mortgage had been properly filed or that defendant had actual notice of its existence. The attachment of the copy of the mortgage to the complaint did not constitute it a part of the pleading. Mayor v. Signoret, 50 Cal. 298; Miller v. Miller, 19 N. W. Rep. 251; Sprague v. Wells, 50 N. W. Rep. 535; Aultman v. Siglinger, 2 S. D. 442; Johnson v. Ins. Co., 6 Pac. Rep. 729; Penrose v. Ins.…
1Opinion of the CourtCorliss, C. J.
We are compelled to reverse the judgment in this case for error of the court in receiving in evidence an instrument purporting to be a chattel mortgage, without calling the subscribing witnesses thereto, or either of them, or in any manner accounting for the failure to produce them, or either of them, on the trial. They were not shown to be dead or out of the jurisdiction of the court; nor was an effort to secure their presence on the trial shown. At the time the instrument referred to was offered in evidence, there was nothing in the case to show that. these witnesses were not within reach.…
2Cases cited7 opinions
- McVicker v. ConkleSupreme Court of Georgia · 1895
- Barber v. TerrellSupreme Court of Georgia · 1875
- S. Lapowski & Bro. v. TaylorCourt of Appeals of Texas · 1896
- Glasgow v. Ridgeley & AllenSupreme Court of Missouri · 1847
- Fox v. ReilNew York Supreme Court · 1808
2 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Bidgood v. Monarch Elevator Co.North Dakota Supreme Court · 1900
- McManus v. CommowNorth Dakota Supreme Court · 1901