3. On appeal from a judgment, this court will review errors of law occurring at the trial, whether a motion for a new trial was or was not made in the court below. Edwards & McCulloch Lumber Co., v. Baker, 289.
Appeals From Inferior Courts.
4, After an appeal upon questions of law and fact by a defend- ant from a judgment of a justice of the peace to the district court, where a demand for a new trial is embodied in the notice of appeal, the defendant cannot deny the jurisdiction of the district court over his person, although the justice of the peace rendering the judgment appealed from never acquired jurisdiction over his person whether such justice acquired such jurisdiction by litigating the cause on the merits after motion to dismiss for want of jurisdiction had been overruled, not decided. Lyons v. Miller, 1.
Appealable Judgments and Orders.
5. After an appeal from a judgment in favor of the plaintiff a transcript of the proceedings had at the trial, embracing the evidence as extended by the stenographer, was, by order of the district court, annexed to the judgment roll, and the same was sent up to this court as a part of the record. No proposed bill of exceptions or statement of a case was ever served, and no notice was given to pieineins counsel, stating the time and place when and where a bill or statement would be presented to the trial court for settlement and allowance; nor did the trial court make an order purporting to be an order settling or allowing a bill or statement. No attempt was made in the transcript to specify errors of law, or to indicate wherein the evidence is insufficient to justify the findings of fact. Held, that such Sraneoripe of the proceedings, embracing the evidence, is neither a bill of exceptions nor a statement of a case, and constitutes no part of the judgment roll; nor is the same an order “involving the merits,” within the meaning of Comp. Laws, 1887, §§ 5103, 5237. See De Lendrecie v. Peck, 1 N. D. 422. Wood v. Nissen, 26.
6. 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 ” Travelers’ Insurance Co. v. Mayer, 234.
7. 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 takeo 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 the 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 § 4528, 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. Whether the district court acts upon a given matter cannot be determined by the form of the order or the style of the Judge’s signature thereto. Travelers’ Insurance Co. v. Weber, 2 N. D. 239, followed. Id.
