Citizens State Bank v. Smeland
North Dakota Supreme Court
Action to vacate a judgment in Morton County, Berry, J. Plaintiff has appealed from an order sustaining a demurrer. The right to proceed by garnishment is purely a statutory right and the statute must be substantially complied with to confer and preserve the jurisdiction of the Court in such proceedings.
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Action to vacate a judgment in Morton County, Berry, J. Plaintiff has appealed from an order sustaining a demurrer. The right to proceed by garnishment is purely a statutory right and the statute must be substantially complied with to confer and preserve the jurisdiction of the Court in such proceedings. McPhee v. Nidda, m Pac. 1149 (Wash.). “A summons is issued when it is duly drawn and signed with the intention that it be served.” § 7383 Compiled Laws 1913; Smith v. Nicholson, 5 N. D. 426; § 7438 Compiled Laws 1913; Atwood v. Tucker, 26 N. Dak. 637. “The statutory remedy by motion, is,…
1Concurring in part, dissenting in partChristianson, J.
This is an equitable action to vacate and annul a certain judgment. There was a general demurrer to the complaint. The trial court sustained the demurrer, and the plaintiff has appealed. The question presented to the trial court, and also presented to this court, is whether the complaint did or did not state a cause of action. I am inclined to the view that the complaint did not state a cause of action, and that the trial court was correct in so ruling. There is no question but.that the relief which plaintiff seeks to obtain in this action might have been obtained by a motion to vacate the…
2Cases cited3 opinions
- Yorke v. YorkeNorth Dakota Supreme Court · 1893
- Williams v. Fairmount School DistrictNorth Dakota Supreme Court · 1911
- Freeman v. WoodNorth Dakota Supreme Court · 1905