Page:North Dakota Reports (vol. 2).pdf/242

 ceiver by making him receiver of the land as well as the crops, were based only on equities set out in a complaint verified by attorney on information and belief, and such orders were made also after a verified answer had been served, putting the material facts and equities pleaded in the complaint in issue. High, Rec. § 24. Under the circumstances, the several orders were improperly made, and made in violation of well-settled and salutary rules of practice. The orders must be reversed, and it will be so ordered. All concur.

Charles H. Gould, Plaintiff and Appellant, v. Duluth & Dakota Elevator Company, Defendant and Appellant.

New Trial on Motion of Court.

1. A general verdict was returned in plaintiff's favor December 10, 1890. On April 6, 1891, a bill of exceptions was allowed on defendant’s application. No notice of intention to mpve for a new trial was ever served, nor was such service waived. Prior to the allowance of the bill plaintiff had served notice of a motion for judgment on the verdict, which motion, after postponement, came on to be heard on the day the bill was allowed. After hearing counsel on such motion, the court denied the motion for judgment, and its order denying such motion also directed that the verdict be set aside, and granted a new trial. The order is predicated upon error, as shown in the record by the bill of exceptions. No application was ever made for a new trial by either party. Held, that the order vacating the verdict and granting a new trial was without authority of law and is reversible error.

2. It is not claimed that such order was made or could be made in the case under authority of § 5091, Comp. Laws, allowing such orders to be made by the court upon its own motion. Nor should a new trial be granted without the application of either party, where, as in this case, a long period of time had elapsed after the verdict, and where both parties had initiated proceedings based upon the verdict.

(Opinion Filed Nov. 2, 1891.)

CROSS-APPEALS from district court, Cass county; Hon. William B. McConnell, Judge.

J. E. Robinson, for plaintiff. A. C. Davis, for defendant.

Action by Charles H. Gould against the Duluth & Dakota Elevator Company for conversion. Verdict for plaintiff. From