Page:North Dakota Reports (vol. 48).pdf/715

 (8) Q. Did Luigi Nardella keep his own lookout for trains? A. Yes; from the west.

{9) Q. What pecuniary loss did the deceased’s wife and children suffer because of his death? <A. $4,000.

(10) Q. If you find the deceased was negligent himself, what sum of money should be deducted from the above amount because of that negligence? A.

(11) Q. Was the bell on the engine ringing as the cinder cars, which killed Luigi Nardella, were kicked down and over the crossing? aA. No.

(12) Q. Was Switchman Stabler at the crossing in question at the time the accident occurred? A. Yes. Before considering the assignments of error a disposition of two motions made by plaintiff for dismissal of the appeal may be had. One of the motions asked for the dismissal of the appeal on the ground that no assignments of error had been served with notice of appeal from the order denying a new trial or judgment non obstante. There appears in the record, assignments of error in the appeal from the order, as well as in the appeal from the judgment; hence that motion should be and is denied. The other motion is to dismiss the appeal from the judgment on the ground that no proper undertaking was filed therein. In appealing from the order defendant gave an undertaking in the sum of $250.00 to cover costs in the appeal from the order as well as the appeal from the judgment. If the undertaking had been in the sum of $500 to cover costs in the two appeals, perhaps no question could arise. It would then have been in compliance with § 7836, C. L. 1913, and by that section the several undertakings referred to in chap. 15 of the Code of Civil Procedure, of which the above section is a part, may be included in one instrument at the option of the appellant. The appeal is in good faith, and if it were necessary under § 7840 this court could permit the defendant to file an additional undertaking. We think necessity does not require this to be done, as the one given will perhaps be sufficient ‘o cover all taxable costs in the case. Hence the motion to dismiss the appeal from the judgment is denied.

The defendant has made 31 assignments of error, some of which relate to the refusal of the court to suppress the deposition of witness Delafave, defendant claiming in that respect that the notice to take deposition was served before the summons in the action; that no complaint