lation of counsel. It is now contended by appellant that this affirmed the order appealed from, and forecloses the right of respondents to the order from which this appeal is taken, and that therefore the trial court was in error in granting the application to vacate the judgment. It is apparent from what we have said that the application for the order from which this appeal is taken is for different relief from that applied for on the former occasion, and which involved the appeal dismissed, and it is clear that whatever the effect of that dismissal may be upon the rights of the parties as to the order then appealed from, it has no effect upon the order from which this appeal is taken, made upon an application asking substantially different relief.

2. A short time prior to the making of the application which resulted in the order from which this appeal is prosecuted, and after the determination of the application for the writ of certiorari, these respondents made an application to vacate the judgment referred to on grounds substantially the same as those set forth in their later application for the order from which this appeal is taken. That application was heard and denied, the appellant appearing and objecting to the granting of it, on the ground that the court had no jurisdiction, the records and papers in the case being then in this court in the certiorari proceeding. It is clear that the district court had not acquired jurisdiction for the reasons stated. It is equally clear that having no jurisdiction to grant the application to vacate the judgment by reason of the case being in this court, the determination of that application did not stand in the way of a new application on the same grounds, made after that court had resumed jurisdiction of the case. Even if it had obtained jurisdiction on the former application, it was largely in the discretion of the trial court whether to consider a subsequent application or not, as has been held by this court, and under the circumstances we see no abuse of discretion. Clopton v. Clopton, 10 N. D. 569, 88 Am. St. Rep. 749, 88 N. W. 562; Plano Mfg. Co. v. Doyle, 17 N. D. 386, 17 L.R.A. (N.S.) 606, 116 N. W. 529.

3. Appellant insists that the application for the order appealed from could not be entertained, because made more than one year after the entry of the judgment in question. He rests his contention upon the provisions of § 6884, Rev. Codes 1905, providing inter alia that the court may at any time within one year after notice thereof, relieve a party.

from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding; and authorities construing that provision. This section of the statute has no application to the case at bar. The application to vacate the judgment was not made nor granted upon any of the grounds stated in that section. We held in Schouweiler v. Allen, 17 N. D. 510, 117 N. W. 866, that although the stipulation for the entry of judgment made in such case by the school board might have been made with the best of intentions, it was a legal fraud on the voters and taxpayers, the patrons of the school and the court, and that the stipulation was collusive, illegal, and void. It follows that the judgment entered upon such stipulation was fraudulent in law. Courts possess the inherent power to vacate and set aside collusive and fraudulent judgments, notwithstanding more than one year has elapsed after their entry. 23 Cyc. Law & Proc. p. 907; Whittaker v. Warren, 14 S. D. 611, 86 N. W. 638; Freeman v. Wood, 11 N. D. 1, 88 N. W. 721; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Balch v. Beach, 119 Wis. 77, 95 N. W. 132, is an interesting case involving several questions analogous to some in the case at bar.

4. Appellant's next point is that the moving parties were guilty of laches, and therefore could not be heard on the application to vacate the judgment. This contention has no merit. The certiorari proceeding was decided October 8th, 1908, and the record had not reached the district court on the 5th day of February, 1909, the date of the application, and probably not on the 12th day of March, 1909, when the order denying the application to vacate the judgment for want of jurisdiction was entered. It appears that the respondent proceeded immediately upon the record being returned to the trial court, as the order now under consideration was noticed on the 12th day of April, 1909, and entered May 17th, 909.

5. It is finally contended that the order appealed from should not have been granted, for the reason that the application upon which it was entered was not accompanied by an affidavit of merits. An application to vacate a judgment because obtained by collusion or fraud need not be accompanied by an affidavit of merits. 23 Cyc. Law & Proc. p. 956; Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 Pac. 797. And in some jurisdictions it is held that applications to vacate judgments for

material irregularities, where the ground of objection is clearly well founded, need not be accompanied by an affidavit of merits. 15 Enc. Pl. & Pr. p. 278. It has been so held by this court. Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937.

We reach this conclusion without considering or passing upon the contention of the respondent that in any event he was relieved from serving such affidavit, because the record before the court contained all, and more than sufficient to constitute a proper affidavit of merits.

We find no error in the record, and the order appealed from is affirmed.

All concur, except MORGAN, Ch. J., not participating.

1. Defendant's receipts for freight shipments are competent evidence as admissions against him.

2. Court's caution to the jury during the trial held sufficient, in the absence of a request by defendant for more definite instructions.

Criminal Law

Caution to Jury Striking Out Evidence.

3. Where, at the time testimony was stricken out, the court fully cautioned the jury to disregard the same, an omission to again instruct the jury to disregard such testimony is not error, especially when no request is made for such an instruction.

Criminal Law Intoxicating Liquors

Evidence.

4. Testimony examined, and held sufficient to warrant conviction for the crime charged.

Opinion filed January 16, 1911.

Appeal from the District Court of McLean county; Winchester, J. Charles Tracy was convicted of keeping and maintaining a common nuisance, and appeals.

Affirmed.

George P. Gibson and Jas. T. McCulloch, for appellant.
J. E. Nelson, for respondent.

Goss, J. The defendant appeals to this court from a judgment of conviction for keeping and maintaining a common nuisance between the 1st day of April, 1909, and the 10th day of June, 1909, inclusive, on lot 2, block 5 of the village of Wilton, in McLean county.

The errors assigned are upon certain rulings of the court in the admission of testimony, and the court's instructions.

The state offered the testimony of the railroad freight agent that he used original waybills from which to make duplicate expense bills, entered them upon the company's office records, and, on the delivery of freight, took the receipt of the defendant on such expense bill for the freight delivered thereunder, such expense bill amounting to consignee's receipt for the shipment. The shipments so receipted for by the defendant were thirteen in number, nearly all for goods designated "beer." The witness identifies the signature to the receipts as that of the defendant, and testifies to the delivery of such freight to the defendant between the dates charged in the information; the date of the last two deliveries being June 12th, one cask of beer, and June 17th, one barrel of beer, respectively. The objection offered was that this testimony was incompetent, irrelevant, immaterial, and not the best evidence. The testimony offered is a written admission by the defendant, and is admissible under the holding of this court in the case of State v. Dahlquist, 17 N. D. 40, 115 N. W. 81, and authorities cited therein. The signature of the defendant receipting for the different items constituted competent evidence against him as to such merchandise receipted for by him.

Another assignment of error is based upon the admission of testimony of the officer acting under search warrant, as to finding beer on the premises in question on such search, made June 19th, one day after the last date specified in the information as the time of the commission of the offense. The court during the course of the trial sustained defendant's objection to further testimony relating to this date, June 19th, and at that time cautioned the jury against considering all testimony received as to this date, using the following language:

"Gentlemen of the jury, let me say to you that you need not regard

any exhibits which have been introduced here, or any testimony which has been introduced here with reference to any violation, or with reference to anything taken from the defendant's premises after the 18th of June, 1909."

Defendant's counsel made no motion or request during the trial that the jury be more definitely cautioned, nor any request for instructions on this matter when the court instructed the jury at the close of the Defendant predicates error on the admission of this testimony and the failure of the court to properly instruct the jury therein in its charge. The jury should not have misunderstood the court's caution. It is an explicit and positive instruction to them. If it did not satisfy counsel at the time, the court's attention should have been called to the matter by a request or motion. The court had the right to assume that defendant was satisfied therewith, and the defendant cannot be heard to complain of the court's action; and as defendant failed to request such instruction in the charge to the jury, no error can be based on the court's failure to instruct upon it.

Defendant further contends that the testimony offered did not show that he kept and maintained a common nuisance, as alleged in the information. The evidence is ample and uncontradicted to the effect that a common nuisance existed at the place described in the information; the delivery of beer in quantities to the defendant; the residence of the defendant at the place designated as constituting a nuisance; the congregating of people often at this place, and that the building in question was defendant's building; and the sale by him of beer at the cellar door of this house. This testimony was sufficient upon which to base the instruction to the jury, given by the court, as to keeping and maintaining of the place as a common nuisance. The court, under proper instructions, left this matter of fact for the jury to determine.

This disposes of all the assignments of error urged for the court's consideration.

The judgment of the trial court is affirmed. All concur.