Page:North Dakota Reports (vol. 3).pdf/219

 still running; seventh, that no proceeding to collect the mortgage debt appeared of record; eighth, that the estate of the mortgagee has not been merged into an estate by deed of record.” These objections, quoted from the brief of counsel, may all be met and disposed of adversely to the appellant by the statement that the statute under which the affidavit is made does not require that cither or any of the features indicated in the foregoing enumeration of points shall be embodied or. referred to in such affidavit. Hence their statement, in whole or in part, would have been superfluous, if made in-the mortgagee’s affidavit. But it may not be amiss to state here that, as viewed by this court, the procced- ing under the proviso of the statute in question cannot be assimi- lated to, or classed with, the remedy by injunction, as that remedy is administered in a civil action in an equity case. It would follow from this that the rules of pleading, practice, and procedure which Obtain in civil actions of an equitable nature do not necessarily apply to this proceeding, nor would an appeal, in our judgment, lie in this case from the order of court refusing to set aside the judge’s order under subdivision 3, § 24, Ch. 120, Laws 1891. The question of the appealability of the order appealed from is not discussed by counsel, nor shall we decisively pass upon it here, further that to say that the appeal can be sustained, if at all, only as an appeal from “a final order affecting a substantial right, made in a special proceeding.” Subdivision 2 § 24, Id.

The proceeding in question is certainly anomalous, and, so far as we have been able to ascertain, is entirely new and novel, in the annals of statutory law. Our attention has been called toa case which arose under the same statute in South Dakota, (Bank v. Smith, 44 N. W. Rep. 1024,) in which the learned Supreme Court of that state has held adversely to our views upon certain incidental matters of practice; but we fully indorse the views of the court, as expressed in the opinion in that case, as follows: “We think the statute contemplated an ex parte application to the judge, and hot a trial before him. Issues raised by counter affi- davits on the part of the holder of the mortgage might often, as