(after stating the facts as above). The petition is based upon the theory that the judgment having been entered on the 2d day of April, 1913, and the appeal taken on or about the 9th day of April, 1913, and prior to the taking effect of chapter 131 of the Laws of 1913, which was on the 1st day of July, 1913, the appeal was in all particulars governed by the statutes in force prior to the enactment of said chapter 131 of the Laws of 1913, and that under said prior statutes a motion for a new trial was a prerequisite to a review by the supreme court of the sufficiency of the evidence to sustain the verdict, decision, and judgment of the district court. This motion, it is conceded, is. not necessary under § 9, chapter 131 of the Laws of 1913. Counsel for defendant desires such review of the evidence, and relies upon § 7223 of the Rev. Codes of 1905, which provides that “the dismissal of an appeal by the appellant or by the court for want of prosecution, unless the court shall at the time otherwise expressly order, shall render the sureties upon the undertaking or bond given under this chapter liable in the same manner and to the same extent as if the judgment or order appealed from had been affirmed.” lie contends that under this section the supreme court may, on appellant’s motion, dismiss an appeal and expressly order that the same may be without prejudice to a subsequent appeal and to the right of the appellant, before taking such appeal, to make a motion for a new trial which he has formerly neglected to do, and which is necessary to a review of the evidence under the law in force prior to 1913, but is not necessary under chapter 131 of such Laws of 1913. He contends that he has sufficient grounds for such order, both in the fact that he misunderstood the effect of chapter 131 of the Laws of 1913, and that he was forced to take his appeal prior to *31tbe taking effect of said act (though not until after its passage, wbicb was March 13, 1913), on account of the action of the plaintiffs in wrongfully, and in violation of the stay of proceedings, entering into possession of the premises in dispute.
It is well established that an appellant cannot as a matter of right dismiss his own appeal. United States v. Minnesota & N. W. R. Co. 18 How. 241, 242, 15 L. ed. 347, 348; Donallen v. Tannage Patent Co. 24 C. C. A. 641, 50 U. S. App. 1, 79 Fed. 385. It is also quite well established that a court will not usually allow a dismissal without prejudice, except upon a showing of inadvertence or mistake, or some other reason which may entitle the petitioner to equitable consideration and to a special order. Donallen v. Tannage Patent Co. supra; United States v. Minnesota & N. W. R. Co. 18 How. 241-243, 15 L. ed. 347, 348. Here, however, we believe that there is ground for such permission. The appeal by counsel for the appellant was taken on the 2d day of April, 1913. It was necessary at that time, in order to secure the rights of the appellant under the stay of proceedings ordered by the district court. When it was taken, both parties intended and believed that it was and could be taken under the provisions of chapter 131 of the Laws of 1913. It was a matter of common knowledge to the members of the bar, of which this court must take judicial notice, that the act of 1913 was before the legislature and had been passed by that body. It had, in fact, been approved March 13, 1913, and before the taking of the appeal. If said act had had attached to it the emergency clause which has come to be a very common part of our legislation, it would have taken effect on the 13th day of March, 1913, and not on July 1, 1913. It is a matter now of much dispute among the legal profession, and one which has not yet been decided by this court, whether such act applies to appeals from judgments which have been rendered prior to its enactment, at any rate in so far as matters of form are concerned. The act as á whole had not at the time of the appeal in question been generally published. It would be a strange construction of the law and of the equitable powers of this court to apply the doctrine of “ignorance of the law excuses no one,” even if such doctrine universally prevails (and of that the writer of this opinion, speaking for himself alone, has some question), to a case such as this where the discretionary and equitable powers of the court may be *32called upon, where the statutes of North Dakota, unlike those of the United States, expressly provide that the court may expressly order that a dismissal may be without prejudice without in-any way limiting it as to the grounds of such order, and where the new act, though passed by the legislature, had not been published, and whether it contained an emergency clause or not was unknown to'the public at large.
The appeal from the judgment in this action is therefore dismissed without prejudice to the defendant’s right to take a second appeal therefrom or to take advantage of any rights that he may have under chapter 131 of the Laws of 1913.
Bueke, J"., and Goss, J., did not participate.