Bowman v. Retelieuk
North Dakota Supreme Court
Appeal from the District Court of Ward County, Honorable K. E. Leighton, Judge. Defendants appeal. The pendency of the first action between these same parties and involving the same subject-matter is a complete bar to this present action, so far as appellants are concerned. The issues made by our answer there were the same as here. Comp. Laws 1913, § 7446, cases cited.
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Appeal from the District Court of Ward County, Honorable K. E. Leighton, Judge. Defendants appeal. The pendency of the first action between these same parties and involving the same subject-matter is a complete bar to this present action, so far as appellants are concerned. The issues made by our answer there were the same as here. Comp. Laws 1913, § 7446, cases cited. Foreclosure is not a proceeding in rem, but is an action in personam, and the Statute of Limitations may be waived. Colonial & U. S. Mtg. Co. v. N. W. Thresher Co. 14 N. D. 147, 70 L.R.A. 814, 116 Am. St. Rep. 642, 8 Ann. Cas.…
1ConcurrenceChristianson, J.
I concur in the opinion prepared by Mr. Justice Robinson, for the *139Teason that the principle upon which the opinion is based has become so firmly established by the decisions of this court that it would' constitute judicial legislation of the most radical kind to interfere with the rule as established. In Tracy v. Wheeler, 15 N. D. 248, 6 L.R.A.(N.S.) 516, 107 N. W. 68 (decided April, 1906), this court first held that a real estate mortgage securing a just debt which has not been paid will not be canceled at the suit of the mortgagor or one standing in his shoes, on the ground that the Statute…
2Cases cited4 opinions
- Tracy v. WheelerNorth Dakota Supreme Court · 1906
- D. S. B. Johnston Land Co. v. MitchellNorth Dakota Supreme Court · 1915
- Boschker v. Van BeekNorth Dakota Supreme Court · 1909
- Keller v. SoutherNorth Dakota Supreme Court · 1913