Page:North Dakota Reports (vol. 48).pdf/375

 torney wherein he recited the proceedings had in the criminal action, the rendition of judgment in the justice court, the issuance of execution thereon, and the proposed sale thereunder ; and it was asked by the said States attorney:

“That said execution sale be enjoined and restrained by order of this court, and that the said judgment creditor be brought in as a party defendant in the above-entitled action, so that the right of the state in and to said automobile in said forfeiture proceedings be adjudicated as against the levy and threatened sale of said judgment creditor, and, further, that the rights of all claimants therein may be adjudicated as provided by statute.”

At the hearing the records and files in the criminal action and in this action were submitted, and it appears by recital in the order appealed from that the trial court also considered all the records and files in the case in which the execution was issued. The trial court denied the application for an injunction. In its order the court, however, provided:

“That when the sale is made under and by virtue of the execution issued out of justice court in the action wherein said Flynn, Traynor & Traynor are plaintiffs and the said Grace E. Benson is the defendant and judgment debtor, that such sale be made without prejudice to the rights of the state of North Dakota in and to said automobile and subject to all of the rights and equities of the state of North Dakota in and to said automobile, which rights and equities are to be determined in this action, and that upon such sale the purchaser at such sale shall take the said automobile subject to the rights of the state of North Dakota as may be finally determined in this action, and said automobile shall remain in the possession of the sheriff of Ramsey county, N. D., to abide the final determination of the rights of the state of North Dakota in this action.” And “that at the time of such sale and before the sale is made that the sheriff, after reading the notice of sheriff’s execution sale, shall read this order and announce that said sale is being made subject to the provisions hereof.”

The states attorney has appealed from that order.

On this appeal many questions have been raised relating to the construction of chap. 97, Laws 1921. In our opinion the case neither requires nor justifies consideration of any of these questions. It will be noted that the order of the trial court carefully preserved all the rights of the state, and left all questions involving these rights, as well as the rights of