
    A. F. COLWELL, Appellant, v. UNION CENTRAL LIFE INSURANCE CO., OF CINCINNATI, OHIO, a Corporation, Respondent.
    (— A.L.R. —,
    232 N. W. 10.)
    
      Opinion filed August 4, 1930.
    
      Conmy, Young & Oonmy, for appellant.
    
      
      Holij Frame & Nilles, for respondent.
   ChRxstxaNsoN, J.

The plaintiff Colwell was formerly a manager or general agent in North Dakota for the defendant Union Central Life Insurance Company; and he brought this action for the purpose of obtaining an accounting from the defendant insurance company for commissions on renewal premiums collected by the company on business written while plaintiff was such manager or general agent. At the time the action was instituted the defendant Security National Bank of Fargo was the holder of an assignment given by the plaintiff of moneys coming to him for commissions under his contract with the defendant insurance company, — such assignment having been given as collateral security for the payment of an indebtedness of plaintiff to said bank. It appears that there was some dispute between the plaintiff and the defendant bank as to what renewals were covered by the assignment and hence the bank was joined as a party’defendant. Aft: er the commencement of the action and before the trial thereof the claim of the bank was assigned to one Grady who became tbe owner and holder of all the bank’s rights under the assignment. Grady intervened in the action, and during the first day of the trial thereof and before the matters in issue herein between appellant and respondent had been tried the plaintiff and said Grady entered into a written stipulation settling the matters in dispute between them as regards the assignment. The stipulation provides that said Grady has a first lien upon all renewal commissions coming to the plaintiff from the defendant insurance company, and that said Grady holds the same as collateral security for the payment of certain specified indebtedness owing to him by the plaintiff.

The facts necessary to an understanding of the issues involved on this appeal are substantially as follows: On May 23, 1913 the plaintiff and the defendant insurance company entered into a written contract by the terms of which the plaintiff was appointed manager of the defendant insurance company “to procure applications for life insurance, to deliver policies, to collect premiums when furnished with the policies, or receipts; and to perform such other duties as may be required in connection therewith.” The contract contained a provision to the effect that the parties had executed it in duplicate-“in lieu of all former contracts, if any, for the term of ten years.” The territory covered by the contract was approximately the eastern half of the state of North Dakota. According to the terms of the contract the plaintiff was to be paid a certain percentage of the first year’s premiums and certain commissions on specified renewal premiums (according to the schedule set forth in the contract) on policies written under the contract. This contract was fully completed; and it is undisputed that if there had been no further contractual relations between the parties the plaintiff would be entitled to receive from the defendant insurance company commissions upon the renewal premiums according to the terms specified in the contract.

On May 23, 1923 the parties entered into another contract. The same printed form was used for the second contract as had been used for the first but certain changes were made in typewriting. -Both the first and the second contract contained this provision: “The parties to this contract have executed it in duplicate, in lieu of all former eon-tracts, if any, for tbe term of ten years.” The second contract contained the following provisions:

7. “Renewal Rights — That the party of the first part will pay to the party of the second part, if living otherwise to his estate, subject to liens, if any, the balance of nine renewal commissions from the date of each particular policy, at the rate provided in Article 4, both upon the business written under this and former contract; less, in the event of termination of this contract, a collection fee of two (2%) percent, excepting that on premiums on which sub-agents receive renewals, the collection fee shall be but one (1%) percent.

16. “Extra Second Year Renewal — That the party of the first part, during the continuance of this contract, will pay to the party of the second part, an extra renewal commission of five (5%) percent,- as the second year premiums are collected and reported in cash, on poliéies issued on or after May 23, 1922.-

17. "Renewals — Eleventh to Fifteenth Year — That the party of the first part, during the continuance of this contract, will pay to the party of the second part, a renewal commission of five (5%) percent of the cash reported on the eleventh to fifteenth years’ premiums inclusive, on the business written under former contract prior to May 23rd, 1922.”

Both contracts contained a provision authorizing the insurance company to terminate the same upon certain specified grounds. It was claimed by the insurance company that the plaintiff had violated his contract in such manner as to authorize a termination thereof, and on or about June 4, 1924, the plaintiff, at the request of the defendant insurance company, resigned as manager, and on that day the following contract was entered into between the parties:

“It is hereby agreed by the Union Central Life Insurance Company with Arthur F. Colwell, in view of his resignation presented and hereby accepted this date as Manager of the Union Central Life Insurance Company, under contract dated May 23, 1923, and all amendments thereto, if any, that the following commissions will be paid to said Arthur F. Colwell, subject to sub-agents’ interests, any indebtedness due the Company now or hereafter discovered, and subject to any legal assignments:
“Full first year commissions according to contract if any are unpaid at this date, or on any outstanding first year notes when paid.
“During a nine year period from date, the balance of nine renewal commissions, or the balance of four renewal commissions on Five Year Term policies, as follows:— ,
“Five percent (5%) on Endowment policies paid by less than twenty annual premiums and on Personal Life Income Deferred Annuity policies, and seven percent (1%) on Business Protection policies three percent reserve, and seven and one half percent (YJ%) on all other policies; less a collection fee of two percent (2%). Also a renewal commission of five percent (5%), less a collection fee of two percent (2%), of the cash premiums paid on the eleventh to fifteenth years’ premiums inclusive on the business written prior to May 23, 1922, under the former contract prior to the contract of May 23, 1923. Also an extra renewal commission of five percent (5%) as the second year premiums are paid in cash on policies issued on and after May 23, 1922.
“Furthermore any and all future interest herein described shall cease if said Arthur F. Colwell in any manner interferes with the Company’s business.
“In the event of the death of said Arthur F. Colwell before all such renewals have been paid, the balance remaining unpaid shall be paid to his estate.
“It is agreed that Arthur F. Colwell shall furnish a statement of the amounts owing by him to his sub-agents on this date and approved by each agent. If said statements are not furnished and if any amounts due his sub-agents are not paid by said Arthur F. Colwell within three months from date, unless he shows a valid set off, the Union Central Life Insurance Company is authorized to pay said amounts deducting them from any amounts due Arthur F. Colwell under this agreement.”

Some time subsequent to June 4, 1924 the plaintiff accepted a position as state manager in North Dakota for the Reliance Life Insurance Company of Pittsburgh, Pennsylvania. After accepting* this position he caused letters and circulars to be sent to some of the policyholders and some of the sub-agents of the Union Central Life Insurance Company, and he also had interviews with some of such sub-agents. In the letter sent to the sub-agents reference is made to the severance of tbe relations between tbe plaintiff and tbe defendant life insurance company and plaintiff’s acceptance of tbe position of state manager for tbe Eeliance Life Insurance Company. In tbe letter it is said:

“In making tbe change, I found myself able to serve my clients in a much larger way, than I could possibly do with tbe Union Central, for not only does tbe Eeliance offer many more kinds of policies, but it also offers Accident & Health protection along with its policies. . . .
“It will be a great pleasure indeed to continue to serve you in tbe future, as it has been in tbe past, and- to now offer all you might need, or can possibly secure in Life, Accident and Health Insurance, tbe ‘Perfect Protection’ Service of tbe Eeliance Life Ins. Co., in my opinion tbe greatest Life Insurance Company in America.
“It will pay you to investigate this Service before making further investments in Life, Health or Accident Ins. I enclose some literature for your information. If not interested yourself, will appreciate having you pass it along to others, with the statement that toe are looking for real big men and women to represent us in this State, believing that xoe can offer them more in every way than can any other Company. We have a real job for real men and xvomen. What is more, we are paying them■ well for their sex-vices.
“Thanking you for your patronage and co-operation in tbe past, and with very best wishes, I remain etc.”

Inclosed with tbe letter was a typewritten statement entitled, “Reliance Life Insurance Company v. Union Central and tbe reasons (in part) why I have made tbe change.” Tbe body of tbe statement consists of a comparison in parallel columns of tbe life insurance policies issued by tbe two companies. Tbe comparison is distinctly favorable to tbe Eeliance Life Insurance Company and if correct would doubtless have a tendency to show that that company issues policies much more advantageous to tbe policy holders and offers a better field to soliciting agents than does tbe Union Central Life Insurance Company. It was claimed by tbe defendant life insurance company that this conduct on tbe part of 'the plaintiff constituted a violation of tbe provision in tbe agreement of June 4, 1924 to tbe effect that “any and all future interests herein described shall cease if said Arthur F. Colwell in any manner interferes with tbe company’s business,” and on November 9, 1924 tbe president of tbe defendant life insurance company wrote tbe plaintiff Colwell a letter from wbicb we quote:

“I regret tbe occasion to advise that on account of your flagrant violation of both tbe spirit and tbe letter of our agreement of June 4, 1924, tbe same is hereby annulled, and that sucb future renewals as may be allowed, or credited to your account or assigns, will be solely at tbe pleasure and option of tbe company.
“That you may be advised of our present attitude we will without waiving any of our rights under tbe annulment, credit your account hereafter, unless otherwise advised.” (Here follows a statement of tbe credits to be allowed and tbe disposition which will be made of them.)

Tbe plaintiff Colwell protested against this action on tbe part of tbe defendant insurance company. Tbe protest was of no avail and be thereupon instituted this action for an accounting. Tbe case was tried to tbe court without a jury and resulted in findings of fact, conclusions of law and order for judgment sustaining tbe position of tbe defendant insurance company in every particular. While there is no specific finding to that effect tbe findings of fact all seem to be predicated upon tbe theory that tbe first contract, that is, tbe contract of 1913, was merged in tbe contract of 1923 and that both contracts were in turn merged in, and are controlled by, tbe contract of June 4, 1924. Tbe trial court found that tbe plaintiff bad violated tbe contract of 1923 so as to authorize a termination thereof by tbe defendant insurance company at and prior to June 4, 1924; that “there is no consideration for tbe agreement of June 4, 1924 to allow plaintiff certain renewal commissions, except in consideration of plaintiff not inter-meddling nor in any way interfering with defendant’s business in North Dakota.” - Tbe court further found that plaintiff bad violated tbe spirit and letter of tbe contract of June 4, 1924; that tbe defendant insurance company bad an absolute right to annul sucb agreement upon discovery of tbe circulars and letter sent out by the plaintiff to tbe sub-agents; that all the rights under both tbe contract of May 23, 1913 and tbe contract of May 23, 1923, ceased and became null, void and unenforcible by reason of plaintiff’s violation of tbe terms and conditions of tbe contract of May 23, 1923, and that all rights of tbe plaintiff, and all persons claiming under him, under tbe contract of June 4, 1924, ceased and became null and void by reason of plaintiff’s interference with the company’s business. The court concluded as a matter of law that all said three contracts “have ceased, determined, and are invalid, void and unenforcible as against said defendant;” and “that the sole and only rights which the plaintiff or any of the parties to this suit or any of the persons claiming under, by or through them, have as against the defendant, the Union Central Life Insurance Company, are contained and set forth in the letter of the Union Central Life Insurance Company to Arthur F. Colwell, dated November 29, 1924.” The court further found that according to the terms of such letter, and the showing made by the defendant company, it had in its possession a ■certain sum of money, which sum the company was directed to pay to the intervenor Grady. A certain other sum the company was directed to retain, as such moneys were claimed by one Tucker, who had not been made a party to the action..

The plaintiff has appealed from the judgment and demands a trial anew in this court.

At the threshhold of the case we are met with a motion on the part of the defendant life insurance company for a dismissal of the appeal on the ground that the intervenor Grady has not been made a party to the appeal. The motion to dismiss is grounded upon § 7821, Comp. Laws 1913, which provides that a notice of appeal must be served upon “the adverse party.” It is contended by the respondent life insurance company that Grady was an adverse party within the purview of said section 7821 and that the failure of the plaintiff to serve notice of appeal upon him is a fatal jurisdictional defect, requiring a dismissal of the appeal.

It is elementary that a party who makes a motion has-the burden of sustaining the grounds thereof. A party who moves for a dismissal of an appeal on the ground that an adverse party has not been served with notice of appeal has the burden of showing from the record, (1) that the party not served was an adverse party within the purview of the statute (Potrero Neuvo Land Co. v. All Persons Claiming, 155 Cal. 371, 101 Pac. 12; Niles v. Gonzalez, 152 Cal. 90, 92 Pac. 74); and (2) that such party has not been served with notice of appeal. In this-case there is no showing that notice of appeal was not served upon Grady. It is true the notice of appeal is not addressed to him and the record does not contain any proof of service; but for aught that appears upon the motion, the notice of appeal may have been served upon Grady so that he was duly informed of the fact that an appeal was taken. Leaving wholly on one side, however, all questions as to service of notice of appeal, and assuming that no notice of appeal was served upon Grady, we are all agreed that such service was not necessary in order to bring up for review the questions in controversy between the plaintiff and the defendant life insurance company.^ In short, we are agreed that upon the record presented to us on this appeal Grady is not an adverse party within the purview of § 7821, supra.

The question whether a party to an action is an adverse party upon an appeal taken by one of the parties to the action from the judgment therein is one which must be determined by the relative interests of the parties as such interests appear upon the face of the record, and not by the position which the parties occupy in the title of the action. In short, it is not a question whether a party is named as plaintiff, defendant or intervenor but whether the interests of the party is such that they will be adversely affected if the appellant should prevail on the appeal. The meaning of the term “adverse party” under a statute somewhat similar to § 7821, supra, was considered by the court of Chancery of the state of New York in Thompson v. Ellsworth, 1 Barb. Ch. 627, and the court there held that “the adverse party . means the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or decree appealed from or to the modification sought for by the appeal.” This construction or definition of the term “adverse party” in statutes relating to appeals has been approved by the courts of last resort of California, Idaho, Oregon, Wyoming and Montana in construing provisions of the Code of Civil Procedure of those states, quite similar to § 7821, supra. See Senter v. De Bernal, 38 Cal. 637; Williams v. Santa Clara Min. Asso. 66 Cal. 193, 5 Pac. 85; Mannix v. Tryon, 152 Cal. 31, 91 Pac. 983; Alliance Trust Co. v. O’Brien, 32 Or. 333, 50 Pac. 801, 51 Pac. 640; First Nat. Bank v. Halliday, 98 Or. 649, 193 Pac. 1029; Templeton v. Morrison, 66 Or. 493, 131 Pac. 319, 135 Pac. 95; Wright v. Spencer, 38 Idaho, 447, 221 Pac. 846; Nelson Bennett Co. v. Twin Falls Land & Water Co. 13 Idaho, 767, 92 Pac. 980, 13 Ann. Cas. 172; Lind v. Lambert, 40 Idaho, 569, 236 Pac. 121; Wyoming Hereford Ranch v. Hammond Packing Co. 31 Wyo. 31, 222 Pac. 1027; T. C. Power & Bro. v. Murphy, 26 Mont. 387, 68 Pac. 411; Re McGovern, 77 Mont. 182, 250 Pac. 812.

In Mannix v. Tryon, 152 Cal. 31, 91 Pac. 983, supra, the court said:

“Persons whose interest in the subject-matter is determined by the judgment appealed from, and which interest will be injuriously affected by its reversal, are adverse parties within the meaning of § 940 of the Code of Civil Procedure upon whom notice of appeal must be served. It is said 'an adverse party to an appeal means the' party whose interest in relation to the subject of the appeal is in conflict with a reversal of the order or the decree appealed from, or the modification sought by the appeal.’ ”

In Wyoming Hereford Ranch v. Hammond Packing Co. 31 Wyo. 31, 222 Pac. 1027, supra, the Supreme Court of Wyoming held that an adverse party is one whose interest in a judgment appealed from is in conflict with the modification or reversal sought or who is interested in sustaining the judgment.

In Nelson Bennett Co. v. Twin Falls Land & Water Co. 13 Idaho, 767, 92 Pac. 980, 13 Ann. Cas. 172, supra, and Lind v. Lambert, 40 Idaho, 569, 236 Pac. 121, supra, the Idaho court held that an adverse party within the purview of a statute similar to § 7821, supra, is “any party who would be prejudicially affected by a modification or reversal of the judgment appealed from;” and in these decisions the Idaho court pointed out that when in former decisions the court had said that an adverse party was one who would be “affected” by a reversal of the judgment it meant “adversely affected.” This is also the view taken by the Supreme Court of Montana in Re McGovern, 77 Mont. 182, 250 Pac. 812, supra. The decisions of the California, Oregon, Idaho, Montana and Wyoming courts are directly in harmony with, and authority for, the views expressed by this court in Powell v. International Harvester Co. 41 N. D. 220, 170 N. W. 559, wherein this court said:

“Of course, a court cannot determine the rights of a party not before it; and, hence, an appellate court has no jurisdiction to reverse or modify the judgment in such manner as shall affect the rights of the parties on whom notice of appeal has not been served, as such rights have been ascertained and finally determined by the judgment. But the lack of jurisdiction does not exist where such reversal or modification cannot affect tbe legal rights of the parties not served with notice. Williams v. Santa Clara Min. Asso. 66 Cal. 193, 194, 5 Pac. 86. It by no means follows that every person named in the title of an action as a party plaintiff is an- adverse party on an appeal taken by the defendant from a judgment rendered in such action; or that every person named as a party defendant is an adverse party on an appeal taken by the plaintiff. An 'adverse party/ within the meaning of the statute relating to service of notice of appeal is one whose interest in the judgment or order appealed from is in conflict with the modification or reversal sought by the appellant.”

There is no claim by the respondent insurance company that the interests of the intervenor Grady is in conflict with the modification or reversal sought by the appellant here. It is clear that Grady cannot possibly be adversely affected by the appeal. The plaintiff and Grady are not adverse parties, but their interests are the same and run along parallel lines. We are agreed that upon the record 'presented to us on this appeal Grady is not an adverse party under § 7821, supra. The motion to dismiss the appeal is therefore denied.

The first question which presents itself in determining the appeal on its merits is whether the contract of May 23, 1913 was merged in the contract of May 23, 1923, and the latter contract in turn merged in the contract of June 4, 1924, so that from and after the execution of that contract it alone fixes the rights and obligations of the parties. A careful consideration of this question leads us to the conclusion that the contract of May 23, 1913, was not merged in either of the two later contracts. It is undisputed that at the time the contract of May 23, 1923, was executed the contract of May 23, 1913, had been completed. All obligations of the plaintiff under that contract had. been performed and certain definite rights had become vested in his favor and against the defendant insurance company. The second contract, as well as the first, was made upon a blank prepared and furnished by the defendant insurance company, and, hence, under well settled principles the resulting contracts must be construed most strongly against the company. The only provisions in the contract of May 23, 1923 which make any reference to a former contract or contracts or rights and obligations existing thereunder are the provisions which have already been set forth. These provisions relate merely to a small number of policies upon wbicb tbe plaintiff was entitled to renewal commissions nnder tbe first contract. Tbe great bulk of policies written under that contract remained wholly unaffected by tbe second contract. But even tbe provisions in tbe second contract wbicb provide for the payment of a renewal commission different from that stipulated in tbe first contract, do not purport to abrogate tbe former contract. They merely provide that during continuation of tbe relations between tbe parties as fixed by tbe new contract tbe plaintiff shall be paid a different and somewhat larger renewal commission upon some of tbe business wbicb was written under tbe former contract: There is not one word in that contract however, from wbicb it can be reasonably inferred that tbe plaintiff agreed to stake and pledge as it were under tbe second contract all renewal commissions coming to him nnder tbe first contract. Tbe provisions in tbe second contract relating to renewal rights, instead of evidencing an intention that tbe second contract shall supersede tbe former one in all particulars, is rather to tbe contrary. It specifies merely that in tbe future the plaintiff shall be paid certain renewal commissions upon certain specified policies written under tbe former contract. To that extent, and to that extent alone, it changes tbe rights and obligations of tbe parties as fixed by tbe first contract, that is, it entitles plaintiff as long as tbe second contract is in force, to tbe added commissions provided for. It is undisputed that tbe plaintiff had earned and was entitled to commissions upon renewal premiums in á large amount under tbe first contract at tbe time tbe second was made. It would indeed require plain and specific language to justify an interpretation of tbe contracts to tbe effect that tbe plaintiff agreed that in tbe event of a termination of tbe second contract by tbe insurance company that bis right to renewal commissions, under tbe first contract should become forfeited.

We are wholly agreed that tbe first contract was not merged in tbe second contract and that tbe rights and obligations of tbe parties as fixed by tbe first contract remain wholly unaffected by whether tbe second contract was or was not terminated and tbe rights of the plaintiff thereunder forfeited.

Tbe third contract, that is, tbe contract of June 4, 1924, does not purport to affect tbe rights and obligations arising out of tbe contract of May 23, 1913. It will be noted that in tbe beginning of that contract specific reference is made to tbe contract of May 23, 1928. No reference whatsoever is made to tbe former contract except insofar as reference is made to tbe commissions to be paid on tbe policies written under sucb contract wbicb are mentioned in tbe contract of May 23, 1923. In short, tbe agreement of June 4, 1924, merely purports to provide for an adjustment of tbe rights of tbe parties as those rights were fixed by tbe contract of May 23, 1923.

Tbe second contract, however, was clearly merged in tbe third contract, that is, tbe contract of May 23, 1923, was merged in tbe contract of June 4, 1924, and tbe rights and obligations of tbe parties under tbe second contract are controlled by tbe provisions of tbe third contract. We are not concerned with whether tbe defendant insurance company was or was not justified in terminating tbe second contract or whether tbe plaintiff bad committed sucb acts as would forfeit bis right to renewal commissions for business written under tbe second contract. It is undisputed that there was some disagreement between tbe parties and that their differences were adjusted by tbe contract of June 4, 1924. That contract, therefore, governs. Tbe question therefore presents itself whether tbe plaintiff was guilty of sucb conduct as to forfeit bis right to commissions upon renewal premiums as stipulated in tbe contract of June 4, 1924. In short, tbe question presents itself whether tbe plaintiff “in any manner interfered with tbe defendant insurance company’s business,” in violation of tbe provisions of tbe contract of June 4, 1924, and as a result forfeited all right to commissions on renewal premiums under that contract. On this question tbe members of tbe court are not agreed. Tbe writer is of tbe opinion that tbe conduct of tbe plaintiff was not sucb as to constitute a violation of bis contract-. It is undisputed that tbe contract was prepared by tbe insurance company; it is also undisputed that there was no intention on tbe part of tbe parties that tbe plaintiff should be precluded from engaging in tbe life insurance business in North Dakota. On tbe contrary it was expected that plaintiff would engage in sucb business and as a result enter into competition with tbe defendant insurance comp airy for business. It is true tbe evidence shows that tbe plaintiff at least 'indirectly sought to induce agents of tbe defendant insurance company to become identified with tbe Reliance Life Insurance Company and that be presented to them statements tending to show that both agents and policyholders would be benefited by having contracts with the Reliance Life Insurance Company rather than with the Union Central Life Insurance Company. But, as said, it was expected that he would compete with the defendant insurance company for business and it would only be natural to assume that in seeking-business he would endeavor to show that it would be to the advantage of the persons whom he solicited to contract with the company he was then representing. Furthermore, there is no showing that a single sub-agent of the defendant insurance company severed relations with it and became an agent for the Reliance Life Insurance Company or that a single policyholder either cancelled existing insurance in the defendant insurance company or refrained from taking new insurance in that company because of anything that was said or done by the plaintiff. It seems to the writer that the provision in the contract of June 4, 1924 that if Colwell “in any manner interferes with the company’s business” any and “all future interest herein described shall cease,” should be construed as having reference to the particular business concerning which the parties were contracting. Under the arrangement made between them on June 4, 1924, Colwell ceased to have any control over the business covered by that contract although he still had an interest therein. If the provision is construed as applicable to all situations, it would be practically tantamount to saying that Colwell should not engage in the life insurance business at all; and yet it is undisputed that there was no such intention, but that on the contrary it was contemplated by the parties that Colwell would again engage in the life insurance business as a representative of some other company. A majority of the court, however, are of the opinion that the clause in the contract covers the transactions and the conduct •of Colwell heretofore alluded to and that his conduct in writing letters and sending circulars to the agents and policyholders of the defendant company constituted an interference with its business; that consequently the plaintiff forfeited $11 right to recover under the contract of June 4, 1924, and that the only rights he has under that contract are, as found by the trial court, those afforded him under the letter of the company of November 29, 1924. In short, a majority of the court are of the opinion that the plaintiff has forfeited all right to recover commissions upon renewal premiums under the contracts of -May 23, 1923, and June 4, 1924, and suob will be and is tbe judgment of tbis court. But, as said, we are all agreed that tbe plaintiff is entitled to recover from tbe defendant insurance company commissions upon renewal premiums wbicb may be collected by it upon policies written under tbe first contract, that is, under tbe contract of May 23, 1913, and that as regards sucb commissions tbe rights of tbe plaintiff and tbe obligations Of tbe defendant insurance company are controlled solely by tbe provisions of tbe contract of May 23, 1913.

It follows therefore that tbe judgment appealed from must be and it is reversed and tbe cause is remanded for further proceedings not inconsistent with tbis proceeding.

Bueke, Ob. J., and Biedzell, Nuessle, and Buee, JJ., concur.  