edge that Arthur P. Marx, an attorney at law who claimed to represent the rightful owner of the money covered by said garnishment proceeding, was then in Fargo, North Dakota, and had seen and talked with Mr. Miller, the attorney for the plaintiff, and that it was represented to the affiant by Attorney Miller and said Marx that they would probably reach an amicable adjustment as to the money in controversy. That Miller and Marx called up the affiant over the same telephone, both being present when the talk was had, directing him to send the money to the First National Bank of Fargo, North Dakota, and was told by both Miller and Marx that they were representing the two claimants to the money held by the garnishee; and, further, that the affiant believed that the information given by either or both would be reliable and proper for him to follow.

On the 27th day of March, 1915, Attorney Miller called the affiant over the telephone, stating that he had obtained judgment against the defendant and garnishee in said action, and requested the affiant to immediately telephone the First National Bank of Fargo, who had come into possession of the money in controversy following the conversation of March 16th, when the demand certificate for $1,277.05 was sent to the First National Bank of Fargo. The affiant Arnegard, knowing that said Marx and plaintiff's attorney had been trying to reach an amicable adjustment, and that, if they had not been able to do so, the ownership of the money controlled by the garnishee would be decided by the judgment of the court in which the action was pending, and relying upon the representations made by plaintiff's attorney, and believing that the matter had been settled in a legal manner, telephoned the First National Bank of Fargo, as requested by plaintiff's attorney, and instructed the bank to pay the judgment of the county court obtained by the plaintiff against the garnishee, which was done, and the plaintiff's attorney filed a satisfaction of such judgment in such court.

The main question presented in this appeal is, Did the court abuse its discretion in setting aside the judgment against the garnishee and in permitting it to make a further disclosure? It must be conceded that the trial court has a wide discretion in such matters, and, unless there is plain abuse of the exercise of such discretion, the order of the trial court in such matters should be sustained. The appellant contends that the garnishee, at the time of the disclosure having had knowledge

of the claim of Marx & Conger to such money, and thereafter having made his disclosure admitting liability, and judgment having been entered against it, and such judgment paid and satisfied from the money which the garnishee disclosed, by the affidavit, it owed Safford, the defendant in the case, the garnishee cannot now be afforded any relief. However, we must not lose sight of the fact that the garnishee in this case had no direct interest in the matter except to pay the money to some person entitled to receive the same. To the garnishee it made no difference who received the money. No benefit of any kind or character accrued to the garnishee. It merely had a duty under the law to make a proper disclosure of the amount of property or money it had in its possession owing Safford. It must also be conceded that the garnishee has acted in the highest of good faith; and it also appears that it relies largely upon the advice or statements of Miller, the attorney for the plaintiff, and also upon the statements of Miller and Marx made during the long-distance telephone conversation which the garnishee had with each of them. The garnishee knew that Miller was an attorney, and also that Marx was an attorney, and each had knowledge of the right and proper thing to do in such cases. The garnishee, in view of all the correspondence and conversations had, and under all the circumstances, was justified in believing that Miller and Marx were adjusting the matter amicably; and if they did not do so, they would arrange the matter in some way so that when the garnishee paid the money over to whomsoever it did pay it, it would not have any more trouble in regard thereto, and no further liability. If, therefore, the garnishee, through a misapprehension of the real state of facts by reason of the letter written to it by Miller at the time Miller sent it, the affidavit of disclosure for admission of liability, and by reason of the conversation with Miller and Marx over the telephone, and all the other circumstances of the case, in good faith made an improper disclosure, and the money was paid to the wrong party when it should have been held to abide the final result of all the claims to such money, surely such a case is one in which the court would be justified in using its discretion and exercising its inherent power to set aside and vacate the judgment against the garnishee, and permit an amended disclosure. If the garnishee believed at the time it made such disclosure and paid such money

over, that it was doing the right, proper, and legal act, and yet it should subsequently appear that it was mistaken, and it had at all times acted in good faith, and in this case the good faith of the garnishee must be conceded, there could be no more proper case for the exercise of the discretion of the court. First State Bank v. Krenelka, 23 N. D. 568, 137 N. W. 824 (Meyer, garnishee). It was held in the case of Racine-Sattley Mfg. Co. v. Pavlicek, 21 N. D. 222, 130 N. W. 228, that the ruling of the trial court on a motion to vacate a default judgment will not be reversed except in cases of manifest abuse of the wide judicial discretion vested in the trial court. The test of the court's discretion in such matters is that the exercise of the court's discretion, on an application to vacate a judgment, should tend in a reasonable degree to bring about a trial on the merits. Such is the expression in the syllabus of such case. We believe this is a sound rule. The only thing desired in the case at bar is a disclosure upon the merits. That is, the garnishee should be allowed to show and disclose its liability to Safford, and then it is for the court to say which of the several claimants to such money is entitled to receive the same. Acme Harvester Co. v. Magill, 15 N. D. 116, 106 N. W. 563, recognizes the inherent power of the court to set aside a satisfaction of a judgment entered through mistake of facts. The principle laid down in such case is applicable to the case at bar, even though the circumstances and facts of the cases are different. The court has the inherent power to set aside a satisfaction of a judgment entered through mistake of fact, or for any other reason that appeals to the sound discretion of the court, when the granting of the order vacating the judgment would tend to do justice between all the parties, and to have the matters involved disposed of entirely upon their merits. As before stated, the garnishee in this case had no interest except to pay the money to the party entitled to receive the same. It is evident that it would not have paid the money where it did, if it had not actually and in good faith believed the party entitled to receive it who did receive it. If it was mistaken in this, it was the duty of all the parties, the claimants of the fund and the attorneys connected with the case, to act in the utmost good faith with the garnishee, so that it would become involved in no difficulty, as the garnishee claimed none of the money itself, and claimed no offsets against the money, and had but one desire, that being to pay

the money to the party entitled to receive the same. We think the court below gave the matter a thorough consideration, and acted wisely and clearly within its sound discretion.

The order of the court is therefore in all things affirmed, with costs.

ROBINSON, J. (concurring). This is an appeal from an order vacating a judgment against the garnishee and permitting it to serve an answer. On March 17th judgment was given against the defendant for $1,048.75. On March 27, 1915, judgment was given against the garnishee for $1,044.25, reciting that it appeared that the garnishee was indebted to the defendant in that sum. The judgment was obtained by the mistake and inadvertence of the cashier of the garnishee, and by his trusting the counsel for plaintiff. The garnishee summons was served February 24, 1915. On March 3d Lyman Miller, attorney for plaintiff, wrote the bank that as he understood the bank had money of defendant and intended to admit the same. He inclosed the draft of an affidavit of disclosure, which he invited the bank cashier to sign, saying it would relieve the bank from further proceedings and place the matter with the plaintiff and the defendant. So, it appears that, relying on the kind advice of counsel for the plaintiff, the bank cashier made the disclosure as requested. Yet at the time of making the same the bank had been notified that a third party claimed the money. The garnishee innocently supposed that the parties would take no advantage of him through the snaps of the law, and that counsel for plaintiff and defendant and the court would probably dispose of the money; and so on a phone from the attorney for plaintiff the money was paid into court on March 27, 1915. The third party demands that the bank pay the same money to him, and so the bank was between the Devil and the deep sea, and the court very properly vacated the judgment against the garnishee, and permitted the plaintiff and the third party to fight out their claims for the money.

If perchance the third party owns the money, would it be proper to make the bank pay it a second time, because it was misled by the smoothness of the plaintiff's counsel? Would that not be the same as simple robbery? It is certain that, at the time of taking the judgment against the garnishee, the attorney for the plaintiff had positive notice of the third-party claim, which was represented by Engerud, Holt, &

Frame. He knew that the garnishee could not safely pay the money on his judgment, and that the garnishee had been misled by him. Under the facts disclosed, there was no legal or moral justification for taking a judgment against the garnishee, or for taking the money of the garnishee in satisfaction of the judgment against the defendant. The order of the county court is well approved, and it should be affirmed, except that neither the plaintiff nor his attorney should have $25, or any sum, as costs on the motion.

CHARLES ASSID v. GREAT NORTHERN RAILWAY COMPANY, a Corporation.

transportation of initial carrier session of connecting carrier rier

action for damages against initial carfailure to furnish.

demand for proof When a person seeks, under § 6260, Compiled Laws of 1913, to recover against

NOTE.-A comprehensive discussion, discussing the liability of a connecting carrier for loss beyond its own line, both in the absence of statute and under Federal and local state statutes, will be found in note in 31 L.R.A.(N.S.) 1.

The English rule as expressed in that note is to the effect that in the absence of an express stipulation to the contrary, an undertaking to carry the shipment to its ultimate destination is implied from the mere act of acceptance, and the carrier is responsible for loss or injury occurring on the line of any succeeding carrier to which the shipment is intrusted to continue or complete the transportation; while the American rule is that the duty of a carrier receiving a shipment marked for a destination beyond its own line is discharged in the absence of a special agreement or course of business to the contrary, by safely carrying the goods over its own line and delivering them to the next succeeding carrier, to continue or complete the transportation. These two doctrines differ solely in the weight which they attach to the mere acceptance of the goods, and courts in jurisdictions where the English rule obtains frequently say that, in the absence of a special contract, the first carrier is only bound to deliver the shipment to the next connecting carrier in good order. The North Dakota statute, as stated in the opinion, modifies the strict rule of liability.

On burden of proof as between connecting carriers to show who is at fault for loss or injury of goods, see note in 101 Am. St. Rep. 392.