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FIRST NAT. BANK & TRUST CO. v. SCHERR

Civ. Nos. 880175, 880233.

435 N.W.2d 704 (1989)

FIRST NATIONAL BANK & TRUST COMPANY OF WILLISTON, Plaintiff and Appellee, v. Pius SCHERR, individually and d.b.a. Scherr & Scherr, a general partnership, Defendants, and Albinus Scherr, individually, Defendant and Appellant. FIRST NATIONAL BANK AND TRUST COMPANY OF WILLISTON, Plaintiff and Appellee, v. Pius SCHERR, individually and d.b.a. Scherr & Scherr, a general partnership, Defendants and Appellants, and Albinus Scherr, Defendant.

Supreme Court of North Dakota.

February 10, 1989.

Attorney(s) appearing for the Case

Rolfstad, Winkjer, McKennett and Stenehjem, Williston, for plaintiff and appellee; argued by Kent A. Reierson, Williston.

John T. Gassmann (argued), Valley City, for defendant and appellant Pius Scherr, individually, and Scherr & Scherr.

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for defendant and appellant Albinus Scherr; argued by Albert A. Wolf.

LEVINE, Justice.

Albinus Scherr (Albinus), individually, and Pius Scherr (Pius), individually and doing business as a general partnership by the name of Scherr & Scherr, appeal from summary judgment in favor of First National Bank & Trust Company of Williston (Bank).1 We affirm as to Pius and reverse as to Albinus.

On April 29, 1983 the Bank obtained a short-term mortgage, executed in the name of

"Scherr and Scherr...

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