Page:North Dakota Reports (vol. 1).pdf/378

, Respondent, v. Northern Pacific Railroad Company}}, Appellant.

1. Bills of Exceptions—Order Extending Time to Settle.

Where the district court by ex parte orders, which were duly served on respondent’s counsel, enlarged the time for settling a bill of exceptions, no reason being brought upon the record for granting such orders, and counsel for respondent appearing, and objecting to the settlement, held, such orders were such as the court had authority to make ex parte, and were therefore prima facie valid. Nothing to the contrary being shown, this court will assume that such orders were based upon a proper showing of cause.

2. Same; Settlement After Statutory Time Had Elapsed.

Where, after time granted for settling a bill had expired, the district court, without making an order extending time, and, against objection, settled and allowed the bill, held not error. Such order of settlement operated to extend the time until the date of the actual settlement. It is within the power of the district court, under the Code, either to enlarge time, or to allow an act to be done after the time limited by the Code. Comp. Laws, §§ 4939, 5093. Under existing statutes, settling bills of exception and statements, and giving notice of intention to move for a new trial, are matters not of a jurisdictional nature. Until the time for appeal has expired, all of the various steps leading up to and including a motion for a new trial may, with respect to time, after statutory time has elapsed, be taken at any time allowed by the sound judicial discretion of the trial court. This court will presume that such discretion is properly exercised in all cases until the contrary appears.

3. Railroad Companies—Presumption of Negligence.

In an action for damages caused by a prairie fire alleged to have been started by defendant’s negligence, and where the complaint charges negligence both as to the machinery and appliances in use upon the train which threw out the fire, and as to the management of such machinery and appliances, held, the primary fact that defendant’s train threw out the fire in question being shown, such fact of itself will operate to make out a prima facie case of negligence. Such fact creates a disputable presumption of defendant’s negligence.

4. Same; Same; How Rebutted.

Held, further, that the prima facie case of negligence cannot be rebutted by the defendant by showing merely that the machinery and appliances were of a proper character, and were at the time in good condition, without showing the further fact that the same were handled with due care at the time the fire was thrown out.