| S.D. | Apr 19, 1893
Lead Opinion
This is an appeal from an order overruling a demurrer to the complaint. The action was brought to foreclose a mortgage on certain lots in the city of Pierre. A demurrer was interposed to the complaint, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The particular grounds relied on to sustain the demurrer are stated by the learned counsel for appellant in his brief as follows: “The complaint is demurrable because it nowhere alleges that the defendant executed and delivered the promissory note and mortgage declared upon to the plaintiff. The case is entitled in the caption as ‘Edward H. Andrews, plaintiff, vs. Charles H. Wynn, Defendant.’ The complaint does not allege that the defendant executed and delivered to Edward H. Andrews the note and mortgage declared upon. The complaint does not allege that the plaintiff is the owner
The counsel for respondent contend that the action might have been maintained in the name of E. H. Andrews. Probably such a pleading might be sustained in some of the states. Zwickley v. Haney, 63 Wis. 464" court="Wis." date_filed="1885-06-01" href="https://app.midpage.ai/document/zwickey-v-haney-6604788?utm_source=webapp" opinion_id="6604788">63 Wis. 464, 23 N. W. Rep. 577; Maxw. Code Pl. 75. But that question is not involved in this case.
Again, the counsel for respondent contended that under the last clause of Section 4927, Comp. Laws, which provides that ‘ ‘in an action or defense founded upon an instrument in writing for the payment of money only it shall be sufficient for the party to give the copy of the instrument, and state there is due to him thereon from the adverse party a specified sum which he claims, ” an allegation that the defendant made and delivered the note and mortgage to the plaintiff is implied, as was held in Marshall v. Rockwood, 12 How. Pr. 452" court="N.Y. Sup. Ct." date_filed="1855-06-15" href="https://app.midpage.ai/document/marshall-v-rockwood-5468645?utm_source=webapp" opinion_id="5468645">12 How. Pr. 452. But in the well considered case of Payser v. McCormack, 51 How. Pr. 205" court="N.Y. Sup. Ct." date_filed="1876-05-15" href="https://app.midpage.ai/document/peyser-v-mccormack-5470628?utm_source=webapp" opinion_id="5470628">51 How. Pr. 205, it was held that a similar provision in the New York code did not apply to an action to foreclose a mortgage, and that such an action is not an action for the recovery of money only, but to subject property to the payment of a debt. The doctrine laid down in the case last cited is substantially the same as that laid down in the case of Prindle v. Caruthers, 15 N.Y. 425" court="NY" date_filed="1857-06-05" href="https://app.midpage.ai/document/prindle-v--caruthers-3611521?utm_source=webapp" opinion_id="3611521">15 N. Y. 425. In that case the court of appeals of New York says: “The cases included in section one hundred and sixty-two (last clause) will not embrace the case of mutual promises where any stipulation is contained, other than for the payment of money on either side, nor to unilateral contracts of the same character. Thus limited, it will be confined almost exclusively to bills of exchange, promissory notes, and other written promises for the payment of money without any other stipulation.” Had this action been brought on the note alone, the contention of counsel for respondent would have had much force, but, being brought to fore
It is further contended by the counsel for the respondent that the objection is a mere technical one, and should be dis regarded, under the provisions of Section 4941, Comp. Caws which provides that “the court shall in every stage of the ac tion disregard any error or defect in the pleadings or proceedings which shall not effect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. ” But we are not not inclined to take this view of the defects in this complaint. Had the allegations of the complaint been that the note and mortgage were made and delivered to Elmer H. Andrews, and no assignment alleged, and no allegation that the plaintiff was the owner of the note and mortgage, could it be contended that the plaintiff could recover? We think not. If, then, as we have seen, E. H., in the absence of an affirmative showing, may be regarded as the Christian name of a person, the same rule would apply. Of course, any allegation that the plaintiff, Edward H., and E. H., to whom the note and mortgage were made, executed, and delivered, were one and the same person, would cure the defect. But until there is such an allegation, is this court authorized to say that such is the fact? We are of the opinion that it is not, and that we could no more hold that E. H. meant Edward H. than we could say Elmer H. meant Edward H. The complaint must on its face show that the plaintiff is entitled to the judgment prayed for.
Again, it is claimed by counsel for respondent, that a demurrer is not the proper remedy; that the defect is only a misnomer of the plaintiff that- cannot be reached by demurrer. But we cannot’ agree with the learned counsel in this contention. There is no misnomer of the plaintiff. He is properly
Concurrence Opinion
(concurring specially.) I think the decision of this case is right, but I have serious doubt about the propriety of this court directing in advance how the discretion of the trial court shall be exercised as to allowance of amendments after the case is remitted. The direction is not important if confined to this case, but I understand it is made deliberately, and is intended to declare generally the authority of this court and the propriety of its exercise in any case where, on appeal, it holds a pleading defective, to direct the court below to allow it to be amended. I think this is an unauthorized interference with the discretion of the trial court. The allowance or disallowance of amendments to pleadings is by statute committed to the discretion of the trial court, and its rulings in respect thereto will only be reviewed in ease of palpable abuse. The test of abuse is not whether the trial court exercised its discretion in a manner to please this court. Cases are not infrequent where a reviewing court, while not approving the discretionary acts of a lower court, refuses to disturb or modify them. In making the order referred to, I think this court usurps a power that belongs to the trial court, — that of exercising its discretion as to when and how and upon what terms pleadings may be amended in cases before it. There are often facts and circumstances present with or judicially known to the trial court, and not exhibited by the record which comes here, that would and ought' to influence such court in determining whether, in furtherance of justice, any amendment at all ought to be allowed, and, if so, what, and upon what terms. A question of discretion is not a question of law, and cannot become so until the discretion is shown to have been abused. Not'until then does it become a law question which this court