Opinion
No. 7612.
June 3, 1957.
Appeal from a judgment of the District Court of McKenzie County, Eugene A. Burdick, Judge. Affirmed.
W. J. Austin, Bismarck, and John O. Garaas, Watford City, for plaintiffs and respondents.
Rausch Chapman, Bismarck, for defendant and appellant.
This is an action to declare void and cancel of record an oil and gas lease dated April 13, 1950, between the plaintiffs as lessors and Martin T. Naddy as lessee covering about 720 acres of land owned by the plaintiffs and situated in McKenzie County, North Dakota.
The case was originally tried before District Judge George A. McGee in March 1953. The death of the trial judge intervened before his decision was rendered. The case was then submitted to Honorable Eugene A. Burdick upon a transcript of the evidence taken before Judge McGee. This case was considered by Judge Burdick in connection with Lanz v. Naddy, N.D., 82 N.W.2d 809, and by agreement of counsel the evidence in this case was considered by the court in Lanz v. Naddy and the evidence in the Lanz case was considered by the trial court in this case subject to objections made at the time the evidence in the respective cases was received. The trial court ordered judgment for the plaintiffs in both cases upon memorandums of opinion which were applicable to both cases. Appeals were argued together in this court. The facts are similar, the issues and questions of law involved are identical. This case is governed by Lanz v. Naddy, supra, wherein we affirmed the judgment appealed from. The judgment in this case is therefore affirmed.
GRIMSON, C. J., and BURKE and SATHRE, JJ., concur.
JOHNSON, J., did not participate.
I dissent for the reasons stated in my dissenting opinion in Lanz v. Naddy, N.D., 82 N.W.2d 809.