money, which would have constituted a perfect defense; and they may have based their verdict solely on the finding as a fact that notice had been given by McLain to the defendant's agent before the money was paid. There are circumstances in this case which incline us to the view that it was merely on this issue of notice that the jury based their verdict, and that they have never determined the issue of authority against the defendant. For this error the judgment of the district court is reversed, and a new trial ordered, All concur.
The Travelers’ Insurance Company, a corporation, Plaintiff
and Respondent, v. C. L. Mayer, Justice of the Peace in
and for the City of Wahpeton, County of Richland, North
Dakota, Defendant and Appellant.
Mandamus—Procedure—Issuance of Peremptory Writ—Appeal.
1. Where on the return of an alternative writ of mandamus, defendant showed cause by answer, and issue was joined by a demurrer to the answer, after hearing counsel for the respective parties, an order was made sustaining the demurrer and dismissing the answer. Such order did not recite in terms that it was made “ by the court,” and it was signed “W.S. Lauder, Judge.” Held, that the order was an order of the district court, and was not an order made “at chambers.”
2. Without further proceedings, and without obtaining an order adjudging that the peremptory writ of mandamus should issue, such writ did issue, and was served on defendant. The issuing of the writ was excepted to, and in the exception thereto the writ was styled an “order.” No appeal was taken from the order sustaining the demurrer or from the peremptory writ denominated an “order,” but, after the time for appeal had expired, a motion was made to vacate such writ, and an order of the district court was made refusing to vacate tho same; and defendant has attempted to appeal from the last mentioned order to this court, under subdivision 5, § 24, c. 120, Laws 1891. Held, that the appeal will not lie. Under § 4828, Comp. Laws, the district court is “ always open,” except for the trial of issues of fact in actions; and hence an appeal will lie from an appealable order of the court whether the same is made out of term or in term.
