Tubbs v. Sather

149 N.W. 567, 29 N.D. 84, 1914 N.D. LEXIS 10

Opinion

Fisk, J.

Motion by respondent to strike appellant’s record from the files, and for a dismissal of the appeal. Such motion is based upon the affidavit of one of respondent’s attorneys, the certificate of the clerk of the district court, and the records and files in the action. In opposition to the motion, appellant has produced an affidavit of his counsel.

The only ground of the motion which we need specially notice is in substance that appellant is in no manner aggrieved by the order appealed from.

Such order was made on November 22, 1910, and is as follows, omitting the title:

In the above-entitled action, the property mentioned in the judgment having been returned to plaintiff by defendant, and defendant having paid the costs in the action and demanded a release of said judgment, and the' plaintiff having insisted on the collection of the money judgment, and refused to receive the property therein mentioned tendered him by the defendant, . ...

Now, therefore, it is hereby ordered that upon the delivery of the horse in question by defendant to plaintiff, or a tender thereof made, and proof of such tender or delivery being filed with the clerk, satisfying him that the same has been done, the clerk of this court is directed, to, on defendant’s demand, thereafter to satisfy said judgment of record