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# From McIntosh County Jacob Kosel, Plaintiff and Appellant vs. First National Bank of 'Ashley, North Dakota, Defendant and Respondent Syllabus: (1) The federal statute known as the "Soldiers' and Sailors' Civil Relief Act" is applicable to proceedings in state courts. (2) Where the pleadings show affirmatively that the cause of action set forth in the complaint accrued June 10, 1919, and the action was not commenced until September 18, 1925, but that from March 27, 1918, to November 26, 1919, the plaintiff was absent from the state in the military service of the United States during the late war, plaintiff is entitled to deduct such period of his military service in computing the time when the bar of the statute of limitations becomes effective as a defense. (3) Under the foregoing state of facts it was error to sustain the objection of the defendant to the introduction of any testimony on the part of the plaintiff, and to dismiss the case on the theory that the pleadings showed affirmatively the action was barred by the statute of limitations. Appeal from the district court of McIntosh county, Hon. George M. McKenna, judge. Reversed. Opinion of the court by Burr, judge. Wishek & Wishek, Ashley, N. D., and Lauder & Lauder, Wahpeton, N. D., attorneys for appellant. J. A. Mackoff, Ashley, N. D., and Curtis & Remington, Lisbon, N. D., attorneys for respondent. # From Bottineau County Charles Berggren, Plaintiff and Appellant vs. Daniel F. Callahan, et al, Defendants Mohall State Bank, a corporation, and W. H. McIntosh, receiver of the Mohall State Bank, a corporation, Defendants and Respondents Syllabus: 1. Callahan executed and delivered to defendant bank two promissory notes, one for $2,000 and one for $1,500, each secured by a mortgage on the same land. The notes and mortgages were simultaneously executed and delivered. The bank recorded both mortgages, and sold the $2,000 mortgage to plaintiff. Plaintiff's mortgage was recorded six minutes later than the other. On bringing this action to foreclose his mortgage, plaintiff alleged that the bank falsely represented his mortgage to be a first mortgage lien, and prayed for judgment decreeing his mortgage to be a prior and superior lien to the mortgage held by the bank. For reasons stated in the opinion, plaintiff failed to establish fraud. Appeal from the district court of Bottineau county, Hon. A. G. Burr, judge. Action to foreclose mortgage, and for decree adjudging mortgage to be a first lien. Plaintiff appeals. Affirmed. Opinion of the court by Englert, district judge. Burr, judge, being disqualified, did not participate; Hon. M. J. Englert, judge of the First judicial district, sitting in his stead. George I. Rodsater, Mohall, N. D., attorney for plaintiff and appellant. J. J. Weeks, Bottineau, N. D., attorney for defendants and respondents.
