benefits of the drawing and the benefit of the judgment, Mr. Keller appeals to this court.
Mr. Gerrard moves to dismiss the appeal, on the ground that a party may not take the benefit of a judgment and then appeal from it. There is no claim that the drawing. was in any respect fraudulent or unfair. It was conducted in this manner: The parties met in the office of the county auditor and agreed as to the method of drawing, and agreed that the name of each party should be written on a separate slip of paper, the slips placed in a hat. and with the hat held above the heads of those present Miss Gibbons should be called to draw one of the slips from the hat, and that the party named on the slip drawn should be held the duly elected county commissioner. The drawing was accordingly made, and it was in all respects fair and deliberate. Then Mr. Keller congratulated the plaintiff, saying:
“This has been a square deal, and you are the more lucky; and are our county commissioner.”
Mr. Moseley, state’s attorney of Towner county, advised the parties that they did not have to participate in the drawing. The affidavit of Mr. Keller shows that he was advised and believed that his participation in the drawing would not in any manner affect his right to appeal from the decision of the district court. According to the decision of the district court the vote was a tie, and in case of a tie vote the statute is that the county auditor shall give notice to the several persons having an equal and the highest number of votes for one and the same office to attend at his office at a time appointed by him, and then and there proceed publicly to decide-by lot which of the persons shall be declared duly elected, and that the auditor shall make and deliver to the person thus declared duly elected a certificate of election. Comp. Laws 1913, § 1010.
The judgment is in accordance with the statute. By the drawing of jots for the office appellant submitted his case to the umpire of chance, whose decision was above any suspicion or bias or unfairness. He accepted the benefits of the judgment, by taking the chance of obtaining an immediate decision in his favor, without trouble or expense, and surely the benefit was real and obvious, and there is no way to refund it. Obviously, the drawing was a solemn and public procedure, and not a mere mockery or child’s play. In such a case an adult party may not play boy or pig and puppy. It is idle for appellant to say that he did not know the law of the case. Plain common sense clearly indicates that the drawing was not an
