Page:North Dakota Reports (vol. 48).pdf/746

 The judgment should be reversed, with directions to strike out the forfeiture clause of the contract and permit the plaintiff to take a regular judgment of foreclosure and sale.

INGA ANDERSON, Appellant, v. CITY OF FARGO, a municipal corporation, Respondent.

Statement of facts.

1. Plaintiff brought this action against defendant to recover damages for its alleged negligence in maintaining upon a certain school play ground certain apparatus such as troughs, chutes and heavy swings, which were used by the children while attending the school there conducted.

Plaintiff's son, a boy aged thirteen years and three months, while attending the school, and while playing upon said play grounds, was struck and killed by one of the heavy swings.

Statutory provisions.

2. The title of all school property of the City of Fargo was vested in the City, for the use of the schools therein, by a special act of the legislature of March 4th, 1885, which act was amended February 2nd, 1915. The same act provided for a Board of Education for the schools of the City, and gave it exclusive control of them, and the further right to purchase, sell, exchange and lease houses or rooms for school purposes and lots or sites for school houses, and to borrow money for school purposes, as provided by the act as amended.

Municipal corporations complaint for death of pupil on playground held not to state cause of action against city.

3. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, which for reasons stated in the opinion, we think, was not error.

Appeal from an order of the District court of Cass county, Englert, J.