Company A, First Regiment, North Dakota National Guard Training School v. State

Per Cueiam. This is a sequel to Company A, First Regiment v. State, ante, 66, 224 N. W. 661. After the entry of judgment upon the remittitur certain of the defendants filed an amended supplemental answer, counterclaim and cross-bill, to which the plaintiff filed a reply. The defendants demurred to the reply on the ground that the plaintiff had not legal capacity to sue, reply or counterclaim in this suit and on the further ground that the counterclaim and reply attempted to be *739 filed do not state facts sufficient to constitute any counterclaim 'or defense or reply herein. Tbe district court sustained tbe demurrer and from its order tbe plaintiff appeals. Tbe plaintiff also made an application to tbe district court for leave to file an amended complaint. It is unnecessary to state at length tbe allegations in such amended complaint. It alleges many of tbe facts developed in tbe previous litigation and which are stated in Company A v. State et al., supra, and sets forth tbe claim that tbe plaintiff has an equitable interest in tbe property and in tbe outstanding uncollected rents and profits accrued since October, 1911, and asks to be restored to tbe possession, use, benefit, rents and profits of tbe premises and to recover damages. From tbe order denying tbe application to file tbe amended complaint, tbe plaintiff appeals. Addressing ourselves to tbe order sustaining tbe demurrer of tbe defendants to tbe reply of tbe plaintiff, it is only necessary to refer briefly to tbe former decision of this court. After reviewing the facts developed upon tbe trial and considering at length tbe statutory provisions upon which tbe rights of tbe parties to the litigation largely depended, particularly those springing from tbe execution of a mort-' gage to secure tbe state for moneys appropriated for tbe building of armories, this court said (page 665 of tbe Northwestern Reporter) : “Hence, after this transaction and so long as tbe mortgage should remain a live mortgage to tbe state, tbe training school corporation and its members are estopped as against tbe state to assert any proprietary interest in tbe property. It or they no longer bad power to control or supervise such property, as tbe control and supervision under tbe law is expressly placed in the military organization. It follows from this that all transactions subsequently bad with tbe training school corporation, its officers or members, during tbe life of tbe mortgage to tbe state, bad no effect upon tbe rights of tbe military organization, for which during this whole period tbe state has virtually held tbe legal title to tbe property in trust. This company is not a party to this proceeding. It follows further that tbe training school corporation has no interest in tbe property in question nor in this controversy, and tbe action is therefore .dismissed as to it.” . This was a determination by this court on tbe merits after a full hearing. The court went on to- point out, however, that the action it *740 self was not dismissed but remained pending for the purpose of adjusting tlie equities as between the defendants and giving recognition to tlie rights of the militia company as distinguished from those of the civil training school corporation. This action being dismissed as D the training school corporation, it obviously has-no standing in the proceedings to reply to any additional pleading. Hence, the demurrer was properly sustained. While the order denying the application to file an amended complaint is not appealable, it would necessarily follow from what has been said that the order of the trial court in this respect was correct. The orders appealed from are affirmed. Bibdzell, CiiejstiaNsoN, and Bube, JJ., and ENGleet and Kctee-si-iaw, Dist. JJ., concur. Bubke, Ch. J., and Nuessle, J., being disqualified, did not participate; Honorable W. J. KNeeshaw, Judge of the Second Judicial District, and Honorable M. J. Emleet, Judge of the First Judicial District, sitting in their stead.