Page:North Dakota Reports (vol. 48).pdf/1367

 2. Section 7952, C. L. 1918, which authorizes service by mail when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail, does not authorize service of a notice of appeal by mail where the party serving it and the party upon whom it is to be served reside in the same city. Garske v. Hann, 42.

3. Where, in connection with the above error in submitting the case for a special verdict, no instructions are given as to the measure of damages, and where the plaintiff’s attorney is shown to have made improper appeals to the jury, and the jury, upon conflicting evidence as to the character and permanency of plaintiff injury, assessed damages at $4,500, the record does not give the assurance that the defendant has had a fair trial, and a new trial is awarded. Daniels v. Payne, 61.

4. For reasons stated in the opinion, the plaintiff’s motion in this court, to dismiss the appeal, is denied. Bank v. Tudor, 200.

5. An order dissolving an order enjoining statutory proceedings for the foreclosure of a land contract is appealable. Rourke v. Hoover Grain Co., 247.

6. Where an action is tried on the theory that an instrument in suit has been introduced in evidence, it will be so considered on appeal, although, in fact, it was not formally introduced. Hiam v. Andrews Grain Co., 251.

7. An application to the Supreme Court for an order allowing and fixing a supersedeas bond on appeal from an order denying an application for a change of venue will be denied where it appears that a similar application is pending before the District Court, which has neither refused nor neglected to act. Langer v. Courier News, 280.

8. Certain rulings on the admission of evidence examined and, for reasons stated in the opinion, held to be non-prejudicial. Worlitz v. v. Miller, 335.

9. While the giving of an erroneous instruction ordinarily raises a presumption of prejudice, yet a case will not be reversed by reason thereof, where it is clear from the record that the complaining party could not have been prejudiced thereby. Worlitz v. Miller, 335.

10. Certain instructions given in this case examined and for reasons stated in the opinion held to be non-prejudicial. Worlitz v. Miller, 836.

11. This is an action for a grave assault and battery. Defendant appeals from a judgment for $1,500 with interest and costs. While he alleges error in the conduct of a juror and in the charge of the trial court, he does not bring any evidence before the court. The verdict and the judgment is presumed to be in all respects just and right-