Page:North Dakota Reports (vol. 3).pdf/215

 1/4 and east 1/2 of northwest 1/4 of section 15, township 160, range 74, in Bottineau County, North Dakota, now due on said contract and mortgage,—$86.43,— therefore, said land will be sold at the front door of the post-office in Willow City, in said county and state, on October 15th, A. D. 1891, at 2 o'clock P. M., under said mortgage. September 1st, 1891, A. S. Drake, Attorney, Fargo, N. D.”

Whereupon, on the 30th day of September, A. D. 1891, the Judge of said District Court made an order as follows: “Ordered, that said Mortgage, Bank & Investment Company, and their attorney A. S. Drake, and all their agents, servants, attorneys, and employes, be, and they hereby are, enjoined and restrained from foreclosing said mortgage by advertisement, and they, each and all of them, are further ordered and directed that all further proceedings for the foreclosure of said mortgage be had in the District Court of Bottineau County, N. D., that being the county wherein said premises are situated, and the court properly having jurisdiction thereof,”—which affidavit and order were served upon the Mortgage, Bank & Investment Company prior to the hour of sale, as stated in the published notice of sale. At a term of the District Court for Bottineau County, held in May, 1892, upon due notice, the Mortgage, Bank & Investment Company moved in open court for an order vacating and setting aside the before mentioned order made by the judge of said court. After hearing counsel on both sides, the application to vacate was denied, to which ruling the moving party saved an exception; and the order and exception, together with all of the papers in the proceeding, were brought upon the record, and made a part thereof, by the direction of the District Court. The Mortgage, Bank & Investment Company have appealed to this court from the order of the trial court refusing to vacate the original order made by the judge of said court. The motion to vacate was not supported by affidavits offered by the mortgagee, but was based wholly upon the affidavit of McCann, as presented to the judge on the application for the order, and upon the order made by the judge.