no question of this kind was raised in this case until after trial and verdict, and the representative of Leighton voluntarily assumed the defense. Said the court in Sherman v. Kreul, 42 Wis. 33-39, in which this precise question was involved: “Here the administrators saw fit to waive the equitable forum, and asked and obtained leave to litigate the liability of the estate in a court of law. Should they now be permitted, after having thus asked leave to defend, to turn around and say that the action can only be prosecuted against the surviving partners? It seems to us that they must abide by the forum which they have chosen, and that it is too late to make the objection that the remedy against the estate was in equity.” We refrain from deciding these questions, because they were not fully argued. It would certainly seem more consonant with our system of procedure that the survivors and the representatives should be proceeded against in the same action. There has been a change of front. Form no longer dominates as in the past. It is made subservient to the speedy, direct, and simple attainment of the right in litigation. In this light should statutes regulating procedure be interpreted, not forgetting, however, that violence must not be done to the language employed, and ever mindful that reasonable regulation of procedure is essential to the due administration of justice.
The jurisdiction of the district court of the sixth judicial district of this state to render the judgment appealed from is next challenged. The action had been tried and the verdict rendered in the district court of the territory of. Dakota prior to division and admission; but before judgment was obtained the territorial district court had ceased to exist. Benner v. Porter, 9 How. 235. North Dakota had become a state, with a complete judicial system of her own. The court which rendered the judgment is the court of original jurisdiction under the state constitution, and was made the successor of the territorial district court by the enabling act, § 23. The command of that act was that cases such as was the one at bar should, when pending in the district court of the territory at the time of admission, be proceeded with in the state forum of original jurisdiction in due course of law. The territorial courts having been
