Schwahn v. District Court

161 N.W. 556, 36 N.D. 6, 1917 N.D. LEXIS 157

• Court: North Dakota Supreme Court
• Decided: February 15, 1917
• Status: Published

Opinion

Bruce, Ob. J.

(after stating tbe facts as above). This case seems to be settled by tbe decision in State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 26 L.R.A. 593, 58 N. W. 514.

Although on tbe writ of certiorari we are confined to a consideration of tbe record that is before us, and from that record we are unable to determine tbe right to tbe money as between tbe husband and wife, it is nevertheless clear that tbe action of tbe district judge was irregular and in excess of bis jurisdiction. Tbe money, therefore, should be returned to tbe petitioner, and tbe right of the husband .and wife thereto left to be settled between them. Tbe relief prayed for by tbe petition, therefore, will be granted, in so far as tbe return of the money is concerned. Whether it should be accepted in payment of tbe fine, however, is left for future determination and will depend upon a proper and legal determination of tbe title thereto.

Bobinson, J., dissents.