Page:North Dakota Reports (vol. 1).pdf/383

 classed with questions which go to the jurisdiction of that court. In this case the bill was allowed and settled after the time granted for that purpose had run, and the trial court did not do what it would have been better practice to have done, viz., enter an order of record stating that, for good cause shown, time was extended to the date of settlement. The power to enter such an order on good cause being shown is expressly granted by § 5093, Comp. Laws. We hold that the actual settlement operates ipso facto to extend the time to the date of such settlement. This view is sustained by authority. Volmer v. Stagerman, 25 Minn. 244. This ruling was made under statutes much less liberal than the rules established by the act of 1887, supra. The supreme court of Minnesota placed its decision upon a section of its statute which corresponds to § 4939 of the Compiled Laws.

But the action of the trial court is further criticised by counsel because the several orders of the court extending time were made ex parte, and no reason for making them appears of record. From what has been said, it appears that, if the orders extending time had never been made, the settlement of the bill would be upheld as valid, upon the ground that the fact of settlement operated to extend the time to the date of the actual settlement. However such orders may properly be made ex parte. See 4 Wait, Pr. 595. We certainly think it would be much better practice, in this class of cases, to require cause to be shown in the usual way by affidavit, and the affidavit should be served upon counsel with the order. The moving party should excuse his default, and bring his excuse upon the record. Such practice would promote the due and regular administration of the law, even in cases where the grounds or cause of the order are within the knowledge of the judge who makes the order. But the question for us to decide is whether the bill in this case was legally allowed and settled finally. For the reasons and upon the authority above shown, we hold that it was. Section 5093 Comp. Laws, is a departure, and goes further in the direction of liberality in facilitating the settlement of bills and statements, and moving for new trials, than any other legislation which has come to our attention. If experience shall demonstrate that the policy of the state is too liberal, the remedy is with the legis-