Page:North Dakota Reports (vol. 2).pdf/267

 “Now, therefore, on motion of McCumber & Bogart, attorneys for plaintiff, it is hereby ordered that the defendant in the above entitled action show cause before this court at chambers, at the office of Hon. W. S. Lander, judge of the district court in and for said county and state, on the 10th day of January, 1891, at 1 o’clock p. m., of said day, why the said appeal allowed by the said justice should not be dismissed. Dated January 5th, 1891. W. 8. Lauper, Judge.” After a hearing, the following order was made: “This cause coming on to be heard on the order to show cause why the appeal allowed therein by the said justice to the district court in and for said county should not be dismissed, after hearing the arguments of counsel for the respective parties in support of and in opposition to such dismissal, and it appearing therefrom and from the affidavit of P. J. McCumber, made in support of such dismissal, and fron: all the papers and records in said action, that judgment for restitution and possession of the premises described in the complaint in said action was entered therein in favor of said plaintiff and against said defendant on the 15th day of December, 1890, and that no statement of the case has been made in said action, and no appeal taken on questions of law alone, and that no answer was made by the defendant in said action, but that the same was tried on the complaint and evidence of plaintiff, and that no issue was joined in the trial of said action, and that notice of appeal on both questions of law and fact was made in said action, and an appeal allowed by said justice therein; and it further appearing that said appeal was without authority of law; now, therefore, it is ordered that the said appeal be, and the same is hereby dismissed, and the clerk of said district court is hereby ordered to return to said justice all papers and records sent him in said action by said justice. Dated January 10th, 1891. W. S. Lauper, Judge District Court, Richland Co., N. D.” No appeal has been taken to this court from said order of dismissal, but after time to appeal from the order had expired, and on March 13, 1891, defendant moved the district court to vacate said order. After hearing both sides, the motion was denied. The material part of the order denying the motion is as follows: “Now, on motion of P. J. McCum-