156 N.W. 203 | N.D. | 1916
This is still another chapter in the litigation begun by Investors’ Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317, and continued in Beyer v. Investors’ Syndicate Co. 31 N. D. 247, 153 N. W. 476, where a statement of facts appears. In 1912 Beyer brought an action to determine adverse claims involving the N.W.jj- of section 16, 139 — 94, and three other quarter sections in Stark county, North Dakota. This original complaint gave a correct description of the, lands involved, but shortly thereafter an amended complaint was served in which this particular quarter was erroneously described as the S.E4 of the same section. Judgment was entered after trial, on August 26, 1913. Throughout the findings of fact and judgment this quarter is described both correctly and incorrectly, — both descriptions appearing in those papers.- The judgment, however, contained the erroneous description. Execution issued in August, 1913, containing the wrong description for this quarter and the correct description for the other
Appellant insists that the supersedeas bond and the order of the trial court based thereon are nullities because the application to the trial court to fix the amount of the bond was made without notice to the adverse party, and, as he says, the supersedeas bond merely stayed the old, erroneous judgment, and did not apply to the amended and corrected judgment. [Respondent, upon his part, contends that those were mere irregularities which could only have been attacked in the distinct court, and that the order of the trial court superseding all proceedings was made in the exercise of the discretion of the trial court, and cannot be successfully assailed in those proceedings.
Upon the whole record we believe and hold that the original decree stood as the decree of the court, with eex*tain amendments thereinafter ordered, and that the appeal was taken from such order, and the supei’sedeas bond was given in aid of such appeal. It follows, therefore, that all further proceedings in the judgment were legally stayed, and the trial coux-t was justified in setting aside a sale made in violation of such order. The judgment is affirmed.