Page:North Dakota Reports (vol. 3).pdf/57

 Wallin, J., concurs.

Corliss, C. J., having been of counsel, did not sit in the case or take part in the decision.

(53 N. W. Rep. 77.)

Fred. H. Smith vs. Northern Pacific Railroad Company.

Opinion filed Aug. 26th, 1892.

Removal of Causes Amount in Controversy—Allegations of Complaint.

The amount demanded in the complaint, in an action for damages caused by negligence, controls in determining whether the matter in dispute exceeds the sum or value of $2,000, exclusive of costs and interest, on application to remove the cause to the Federal Court on the ground of diverse citizenship, although the value of the property destroyed by the negligence is alleged in the complaint to be greater than $2,000.

Notice of Trial—Sufficiency.

When the notice of trial contains an error in the date of the commencement of the term, the month and year being stated correctly, the notice is sufficient, as a litigant is bound to know when terms of court are held, and is therefore apprised of the mistake in the notice and of the true date intended to be specified therein.

Additional Terms of Court.

Under chapter 79, § 10, Laws 1891, the same business can be transacted at an additional term of court called by the judge as at the terms fixed by the statute, New cases can be noticed for such term and placed on the calendar thereof, and tried thereat.

Sparks from Locomotive—Presumption of Negligence.

‘The presumption of negligence from the setting out of a single fire by an engine is one of law, and whether such presumption has been fully met and overthrown is in the first instance a question for the court. Evidence examined, and Ae/d sufficient to overthrow the presumption in this case.

Question of Negligence for the Jury.

The mere fact that the fire was started 118 feet from the track is not suffieient in itself to warrant submission of the question of negligence to the jury.

Appeal from District Court, La Moure County; Rose, J.

Action by Fred. H. Smith against the Northern Pacific Railroad

N. D. R.— 2.