Page:North Dakota Reports (vol. 2).pdf/193

 naked statement of a conclusion in the case reported in 11 Neb., already referred to. It is true that the proceeding was not in equity, but the language of the court shows that the failure of the board of equalization to meet at the time prescribed by law is fatal to the tax in equity as well as in law. “The time of meeting is definitely fixed by statute, and it seems clear that it was the intention of the law-givers that this time fixed by statute, should operate as notice to all persons who might feel aggrieved. Therefore, this provision of the statute cannot be regarded as directory merely or simply as a matter of form, but as a matter of substance.”

On the question of description, I concur in the majority opin- ion; and in answer to the statement in the petition for a rehear- ing, that the description adopted is the customary one, I would reply that 2 is not 4, nor 4 1/4, and no usage should be allowed to change their significance. It would be as reasonable to give effect to a custom that the points of the compass should in such cases be represented by certain figures respectively.

Reference—Findings—Appeal.

1. An order of reference referring “the action” to a referee, “ with the usual powers,” based upon the consent of the defendant in open court that the case be referred to take the testimony and report, warrants the referee in making and reporting findings of fact and conclusions of law.

2. Defendant, having objected to referee making any rulings whatever, and having failed to take any exception to the action of the referee in receiving evidence over his objection, cannot raise the question whether such evidence should have been received, the objection not having been renewed before the court on application for judgment on the report, and no exceptions having been taken on such application.

3. A motion to dismiss, made at the close of plaintiff's case, is waived, unless renewed after all the evidence is in.