Page:North Dakota Reports (vol. 48).pdf/372

 the record before us, it could in no event be said that the defendant was denied a fair trial.

, J., concurs.

THE STATE OF NORTH DAKOTA, Appellant, v. ONE BUICK AUTOMOBILE TOURING CAR K-49, Factory No. 676857, Motor No. 664158, and all persons interested therein, or having claim thereon, Respondents.

'''Appeal and error—denial to state of order to restrain execution sale. of automobile held not prejudicial error where providing for sale subject to state’s rights.'''

1. The plaintiff, the State of North Dakota, made application for an order to restrain the sheriff from selling a certain automobile at an execution sale on the ground that an action had been brought and was then pending for the forfeiture of said automobile, under the State Prohibition Laws, (chap. 97 Laws 1921), and that all claims relating to said automobile were properly triable in such forfeiture action. The trial court denied the application for a restraining order, but in its order provided that the execution sale should be subject to all the rights and equities of the State; that such rights and equities were to be determined in the forfeiture action; that any purchaser at the execution sale should take such automobile subject to the rights of the State as they might finally be determined in such forfeiture action; that said automobile should remain in the possession of the said sheriff to abide the final determination of the rights of the State in said action; and that at the time of, and before making, such execution sale, the sheriff should read such order of the court and announce that said sale was being made subject to the provisions thereof. Held, that the plaintiff was in no event prejudiced by such order.

Appeal and error—an appeal from an order refusing to restrain an execution sale, which has been made, will be dismissed.

2. When on appeal from an order denying an injunction to restrain an execution sale, it appears that the proceedings were not stayed pending appeal, and that before the appeal was submitted the execution sale has been held in accordance with the directions of the execution and the