termination of whether the action of the jus- | justice, jurisdiction of the subject-matter still tice court, in failing and refusing to file the affidavit for change of venue and make its order transferring the cause, divested that court of jurisdiction over the subject-matter of this action. If so, then it follows, on the authority of Vidger v. Nolan, 10 N. D. 353, 87 N. W. 593, that the appeal on law and fact and demand for trial de novo, conferring appellate jurisdiction only of the person of the appellant by his voluntary act and appearance, could not vest the appellate court with jurisdiction of subject-matter where the lower tribunal did not have jurisdiction of subject-matter.

jurisdiction of the subject-matter of the ac- became the duty of the justice to forthwith tion, the district court could acquire none, certify the cause to the district court, but and that such district court could not deter- instead of so doing he dismissed it. Upon mine the case on the merits by amendment appeal it was urged, the same as here, that of the pleadings after appeal. In such cases the district court was without jurisdiction the jurisdiction of the appellate court de- because of the rule "that the district court pends upon the jurisdiction of the justice, by the virtue of an appeal succeeds only to so far as the subject-matter of the litigation is concerned." And the court there cites and distinguishes its holding from Deering Co. v. Venne, 7 N. D. 576, 75 N. W. 926, a holding that jurisdiction of the person may be conferred by a voluntary appearance in justice court or by an appeal under a statute then requiring trial anew in the district court, under section 6779, R. C. 1895, and before the enactment of all of section 8501, R. C. 1905, granting an appeal upon questions of law only. Vidger v. Nolan follows Arnegaard v. Arnegaard, 7 N. D. 475, 75 N. W. 797, 41 L. R. A. 258. And for the same reasons these cases are distinguished from Miner v. Francis, 3 N. D. 549, 58 N. W. 343; Benoit v. Revoir, 8 N. D. 226, 77 N. W. 605; and this case at bar. See, also, extensive note in 34 L. R. A. (N. S.) 666, and the case under which the same is collected of Gulf Pipe Line Co. v. Vanderberg, 28 Okl. 637, 115 Pac. 782, 34 L. R. A. (N. S.) 661, Ann. Cas. 1912D, 407, and McCubrey v. Lankis, 74 Minn. 302, 77 N. W. 144, on analogous principles.

*

the jurisdiction of the justice court, and
where the justice court had no jurisdiction
the appellate court acquired none." The
court there says: "In this case the justice
not only had authority to transfer the case
to the district court, but it was his express
duty to do so. The distinction between this
case, and those where there is no jurisdiction
or no authority to transmit, is apparent. In
such cases there is neither right nor duty to
certify the case, and of course an appeal
would not give jurisdiction.
** The
proceedings are irregular, but were made so
by the error of the justice in rendering a
judgment of dismissal instead of certifying
the case, and for this error the plaintiff is
in no wise responsible.
We are of
the opinion that, when a justice has by disre-
garding the statute made it necessary to
appeal, the district court acquires jurisdic-
tion, and that it is error for the district
court to refuse to entertain the action and to
dismiss the appeal; and this view is in har-
mony with the opinion of other courts under
similar statutes." There the justice pro-
nounced an unauthorized judgment when in-
stead he should have certified the case to
the district court for further proceedings;
yet the appeal from such unauthorized judg-
ment was held to vest jurisdiction of the
subject-matter in the appellate court, which

* * *

Our statute (section 8358, R. C. 1905), as construed in Heard v. Holbrook, 21 N. D. 348, on page 354, 131 N. W. 251 (distinguishing the earlier holding of Miner v. Francis, 3 N. D. 549, 58 N. W. 343, decided before amendment of 1895 to present section 8358, R. C. 1905), is to the effect that, where the lower court had jurisdiction of the subject-ordinarily would have been transferred matter, an appeal with demand for trial de novo on both law and fact vests jurisdiction of the person as well and transfers the cause for trial anew in the appellate court, and such was the legal effect of this appeal. We may grant respondent's contention that the justice court had no jurisdiction except to order a transfer, and hence no jurisdiction to enter a judgment upon the merits, which is sound in law, but still the general appeal and demand for trial de novo, under Johnson v. Erickson, 14 N. D. 414, 105 N. W. 1104, and Heard v. Holbrook, 21 N. D. 348, 131 N. W. 251, must apply and decide this case contrary to respondent's contention. A distinction seems to be drawn in principle between the proceedings occurring in excess of jurisdiction, after the filing of an affidavit of prejudice against the magistrate or judge, as here was done, from such acts done after the filing of a mere demand for change of place of trial. The former is void; the latter held not to be. 111 Am. St. Rep. 947, 948, note.

But we can see no distinction in principle between this case and that of Johnson v. Erickson, supra. There, in a justice court proceeding, title to real property was brought in issue, whereupon, under the statute, it

there without appeal by the order of the justice. Here the justice court, having conceded jurisdiction of person and subjectmatter, proceeds unauthorizedly, after it had become its mandatory duty to transfer the cause for trial to another justice court, and accordingly enters judgment, void because of want of power to enter any judgment at all, but from which defendant has seen fit to appeal generally upon both law and fact and demand a trial de novo in the appellate court. The statutes concerned in Johnson v. Erickson, and in the case at bar, are in effect analogous; both superseding jurisdiction to determine the merits. If an appeal from a void judgment of dismissal, as in Johnson v. Erickson, confers appellate jurisdiction of subject-matter, most certainly under these circumstances the appeal so taken generally must be held to confer jurisdiction of subject-matter as well as person upon the appellate court.

[4] Accordingly the order dated September 8, 1911, vacating the judgment entered October 3, 1910, was not made upon legal grounds and should be and hereby is ordered to be vacated and set aside, and the judgment of the district court of Benson county,

PHILLIPS v. SEMINGSON et al. (Supreme Court of North Dakota.

1913.)

(Syllabus by the Court.)

1. WAREHOUSEMEN (§ 18*)-ACTION ON BOND -PARTIES.

Plaintiff brings action against the bondsmen of a warehouseman for the value of certain wheat storage tickets. Held:

vacated by such order, is directed to be re- and November, 1910, the plaintiff delivered instated. Appellant will recover judgment to said Ryder at the public warehouse confor costs and disbursements upon this appeal. ducted by him 736 bushels and 40 pounds of No. 1 hard wheat and received therefor storage tickets in due form. That said wheat belonged to the plaintiff and was of the value of 95 cents per bushel. That on May 24, or about the 31st of December, 1910, the said Ryder closed the said warehouse, leaving no one in charge thereof, and that on or about the 13th of January, 1911, the said Ryder appointed the Security State Bank of Crosby as agent with authority to redeem all outstanding warehouse receipts, but that on the 21st day of January, 1913, said bank ceased to redeem such receipts for the reason that they had exhausted the funds furnished them by Ryder. That about the 11th day of February, 1911, the said Ryder died, and an administrator was appointed for his estate. That plaintiff had demanded that the said administrator deliver to him said wheat or its equivalent in money, both of which have been refused, by reason of which facts plaintiff asked judgment against the bondsmen for the value of said wheat.

That when suit is brought upon the bond required by section 2247, Rev. Codes 1905, the complaint must show that such action is brought on behalf of all the holders of storage tickets upon which default has been made, and the better procedure is to bring the action in the name of the state for the benefit of said ticket holders. Action by one of many such ticket holders, in his own individual name, will not lie.

[Ed. Note. For other cases, see Warehousemen, Cent. Dig. § 18; Dec. Dig. § 18.*] 2. WAREHOUSEMEN (§ 18*)-ACTION ON BOND -DEFENSES.

Answer examined, and held, that the matters set up therein by way of counterclaim do not constitute a bar, and a demurrer thereto was properly overruled.

[Ed. Note. For other cases, see Warehousemen, Cent. Dig. § 18; Dec. Dig. § 18.*]

Appeal from District Court, Divide County; Leighton, Judge.

Action by F. Phillips against T. S. Semingson and others. From judgment for defendants, plaintiff appeals. Affirmed.

Points & Brace, of Crosby, for appellant. Geo. Cudhie, of Crosby, and Noble, Blood & Adamson, of Minot, for respondents.

[2] The defendants' answer practically admitted all of the allegations of the complaint, but alleged as an affirmative defense new matters as follows: First, that said Ryder had removed his elevator from its original site to another lot in the village of Crosby without the consent of his said bondsmen. Second, that the license issued by the state to said Ryder was contrary to the provisions of the bond, in that it authorized Ryder to continue business for a period beyond that designated in the bond; and, third, that said Ryder was never at any time adjudged to be liable to plaintiff for any sum arising out of the performance or nonperformance of any of his duties as warehouseman by any of the creditors of this state, and that no action was against Ryder or his administrator.

ever commenced

To this answer the plaintiff interposed a demurrer upon the grounds that it did not state facts sufficient to constitute a defense. Upon a hearing, the trial court took the position that all of the facts alleged in the complaint and answer were admitted, and that therefore nothing remained but to decide the law. In other words, he treated the hearing as a trial upon issues of law alone, or, as stated by the respondents, it was considered that the demurrer to the answer searched the record. Upon the said hearing the trial court held that the complaint of the plaintiff herein did not state a cause of action in favor of the plaintiff, and this appeal is from that holding.

BURKE, J. The complaint in this action is too lengthy to be given verbatim, but is substantially as follows: That on the 21st day of September, 1909, one James J. Ryder commenced business as a public warehouse and elevator man in the village of Crosby, N. D., and that for the purpose of obtaining the license required by section 2247, R. C. 1905, he furnished a bond signed by the defendants in this action, running to the state of North Dakota in the sum of $5,000. That the bond so given contained the following provision: "Now, therefore, if the said James J. Ryder shall faithfully and lawfully perform all duties as public warehouseman and comply with all the laws of the state of North Dakota relative thereto, and the rules and regulations adopted by the board of commissioners of said state in connection therewith and shall pay all sums for which he shall be adjudged to be liable in any way by any of the creditors of the state of North Dakota by reason of the laws of said state, or the rules and regulations of said board, then this obligation is to become null and void, otherwise to remain in full force and effect." That during the months of October

[1] 1. The appellant in his brief recognizes this proposition as follows: "In sustaining the demurrer of the defendant, the court necessarily held that the action could not be maintained by this plaintiff, since he is not

the obligee named in the bond." We have no matter what the amount of his claim, examined authorities cited by appellant with should be compelled to maintain an action care, but they do not seem to be in point. at law, but, on the contrary, any one creditor The gist of said decisions is that the action might maintain an action on behalf of himmust be maintained by the real party in in- self and all others similarly situated. An terest, which is undoubtedly correct as a action at law by one creditor solely on belegal proposition, but it does not necessarily half of himself is entirely inconsistent with follow that the plaintiff is the real party in the purpose for which the bond was required interest in this action. Section 2247, R. C. or given." See, also, Terry v. Little, 101 U. 1905, provides that the bond shall be given S. 216, 25 L. Ed. 864, wherein it is said: to the state and "shall be in a sufficient "The remedy must always be such as is apamount to protect the holders of outstanding propriate to the liability to be enforced. tickets." This bond is given for the benefit* of all ticket holders, and not for the benefit of any particular one. Plaintiff is therefore only a small part of the real party in interest. Section 6809, R. C. 1905, provides that a trustee of an express trust or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. Under these provisions South Dakota has held that the suit may be in the name of the state without deciding whether it may also be brought by the beneficiaries. State v. Newson, 8 S. D. 327, 66 N. W. 468. Other cases cited by appellant are based upon dissimilar facts to those at bar; for example, when the bond given is for the protection of one particular person interested and not for a class of persons.

The nearest authority that we have been able to find was contained in the following cited New York cases: In 1907 the New York state Legislature passed an act requiring all persons engaged in the selling of steamship tickets, and who in connection therewith received deposits of money to be transmitted to foreign countries, to execute and deliver a bond to the state for the faithful transmission of such money; said act being very similar in its nature to our warehousemen's act. In case of Guffanti v. National Surety Company, 133 App. Div. 610, 118 N. Y. Supp. 207, it was held that the action must be brought in equity on behalf of all of the beneficiaries and that an action would not lie in favor of any one individual beneficiary. The reasoning in that case is very strong, and we will quote extracts therefrom: "The remaining question is whether the plaintiff can maintain the action in its present form. The undoubted purpose of the statute is to provide a fund to indemnify crediBy requiring a bond to be given, a fund is provided for the payment of such creditors. Such fund, I think, is not for one creditor but for all, and should be equitably distributed among all according to their respective claims. It cannot be that the Legslature intended that the benefits to be derived from the bond were solely for the most diligent creditor if his claim happened to be in excess of the penalty of the bond; nor do I think it can be said, when the purpose of the statute is taken into consideration, that it was intended that each creditor,

tors.

If the object is to provide a fund out of which all creditors are to be paid share and share alike, it needs no argument to show that one creditor should not be permitted to appropriate to himself, without regard to the rights of others, that which is to make up the fund." See, also, Hirshfeld V. Fitzgerald, 157 N. Y. 166, 51 N. E. 997, 46 L. R. A. 839, wherein it is said: "The object of this statute was undoubtedly to furnish additional security to creditors, and is for the benefit of them all, and should be enforced by or on behalf of all." This holding of the New York Supreme Court was followed in Cappadonna v. Illinois Surety Company, 68 Misc. Rep. 470, 125 N. Y. Supp. 162, which was an action under the same New In that case the bond was York statute. limited to the sum of $15,000, and suits by individuals had been brought and the Surety Company had paid the entire sum in judgNotwithstanding ments upon these suits. these facts, when suit was brought in equity by one of the remaining creditors for and upon behalf of all of the creditors, his suit was maintained and the payment to the individuals was held to be no bar. This holding was upheld again in Lordi v. People's Surety Company, 69 Misc. Rep. 598, 126 N. Y. Supp. 180.

The reasoning of the New York court appeals to us and will be followed in this case. In addition to the reasons therein given, we might state that, as the bond is given for the benefit of the creditors of the warehouse, the entire amount of the penalty should be conserved for their benefit. If each individual ticket holder brought an individual suit, the same might be so numerous and the costs so large that the $5,000 required in this case might be exhausted in the payment of said $3,000 defalcation. And again if individual suits were allowed, there would be many chances for collusion between the first litigants and the bondsmen. We think it best to adopt a rule in this state that the actions upon the warehousemen's bond may be instituted by any creditor, but must be brought on behalf of themselves and all others similarly situated. As section 6809, R. C. 1905, authorizes this action to be brought in the name of the state for the benefit of the beneficiaries, we think it better to entitle the action in that manner. It thus appears that the complaint was fatally

defective and that the order of the trial said complaint do not constitute a cause of court was correct.

2. Though the holding in paragraph 1 disposes of this case, we might say that we do not believe the matters pleaded as a defense in the answer of the defendant constitute a bar to this action. A perusal of the bond does not bear out the contention of the defendants that the license was improperly issued by the railroad commissioners, nor do we think it material that the elevator was moved a short distance within the same village, nor that any judgment was ever recovered against Ryder. The bond has many conditions besides that which provides that the sureties will pay any judgments obtained against Ryder.

action. The demurrer confesses the following facts: In July, 1901, one Walling gave to respondent his promissory note, together with a chattel mortgage securing said note and covering a stock of goods, wares, and merchandise. While this mortgage was still in existence and the mortgage debt unpaid, the said Walling transferred the stock of merchandise then remaining in his possession to a corporation known as the W. H. Walling Mercantile Company; it being one of the defendants herein and hereinafter spoken of as the mercantile company. In December, 1902, in an action brought by a creditor of the mercantile company, Smith was appointed receiver of said merThe order of the trial court is in all things cantile company and, as such, took possession affirmed. This decision, however, is to be of the stock of goods transferred by Walling without prejudice to the bringing of the to the same mercantile company. Thereafter proper action in equity as outlined above. | respondent, for the purpose of foreclosing her

one

mortgage, demanded possession of said property, and, the same being refused, she commenced an action in replevin against such

HUNDLEY DRY GOODS CO. v. ALBIEN receiver for the possession of such goods, and

et al.

(Supreme Court of South Dakota.
1913.)

1. EXECUTION (§ 55*)-LEVY ON PROPERTY.
No title would pass by a levy on money
belonging to and in the hands of a receiver.
[Ed. Note.-For other cases, see Execution,
Cent. Dig. §§ 137-140; Dec. Dig. § 55.*]
2. RECEIVERS (§ 78*)-JUDGMENT AGAINST.

A judgment against a receiver for possession of mortgaged chattels, being held by the receiver as such, vested in the judgment creditor the same rights he would have acquired if no receiver had been appointed and a judgment had been rendered against the mortgagor

himself.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. §§ 145-147; Dec. Dig. § 78.*] 3. CHATTEL MORTGAGES (§ 200*)-INVALIDITY -REMEDY OF CREDITORS.

in March, 1906, recovered judgment against June 6, the receiver for the possession of the said stock of merchandise, or, in lieu thereof, the amount adjudged unpaid on the mortgage in. debtedness. Thereafter the receiver appealed said judgment to this court, filing on said appeal an undertaking and stay bond executed by the United States Fidelity & Guaranty Company, one of the defendants herein. During the years 1901 and 1902 the appellant sold to the mercantile company goods, wares, and merchandise, which, remaining unpaid for, it commenced an action against said mercantile company, and in December, 1910, obtained a judgment against said company, no part of which has been paid. Thereafter it issued an execution upon said judgment and caused the same to be levied upon respondent's judgment against the receiver, upon the undertaking given by the defendant Fidelity & Guaranty Company, on the appeal above referred to, and upon certain moneys upon deposit with the defendant Custer County Bank, being money the proceeds of the mortgaged merchandise and deposited in the name of or to the credit of the receiver. The appellant was, at the time of commencing action, proceeding to sell the property levied upon to satisfy the judgment it held against the mercantile company. For reasons stated in the complaint, the mortgage given respondent was fraudulent and void as to appellant. Respondent threatens to, and will, unless restrained by the court, proceed to enforce the collection of her judgment, which has been levied upon by appellant as aforesaid, and will issue an execution thereon and collect such judgment out of the moneys on deposit to the credit of the said receiver and by a suit upon the appeal bond hereinbefore mentioned. The respondent is not a resident of this state and has no prop

A judgment creditor of a chattel mortgagor, as to whom the mortgage was fraudulent and void, could not claim any rights in a judgment of replevin rendered in favor of the mortgagee against the receiver of the mortgagor for the chattels or the unpaid mortgage debt, nor in an appeal bond executed by such receiver. [Ed. Note. For other cases, see Chattel Mortgages, Dec. Dig. § 200.*]

Appeal from Circuit Court, Custer County; Levi McGee, Judge.

Action by the Hundley Dry Goods Company against Anna A. Albien and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Eben W. Martin and Norman T. Mason, both of Deadwood, for appellant. Buell, Gardner & Denu, of Rapid City, for respond ent.

WHITING, P. J. This cause is before us upon appeal from an order of the trial court sustaining respondent's demurrer to appellant's complaint herein; the demurrer being upon the ground that the facts alleged in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes