24 S.D. 231 | S.D. | 1909
This is an appeal by the defendant from a judgment entered in the circuit court in favor of the plaintiff. The action was commenced in a justice’s court, and the summons issued by the justice is as follows: “You and each of you are
The defendants in their answer set up various defenses, but which, in the view we take of the case, will not be necessary to ■set' out in this opinion. By the justice’s record it is disclosed that, when the case was called for trial, the defendants appeared specially by their attorney, and moved the court to dismiss the action for the.following reasons: “(1) That the summons in said action
It is contended by the appellant that the court, in sustaining plaintiff’s objection to the so-called plea in bar of the defendant, committed error, for the reason that, the statute having provided a special remedy for the plaintiff, viz., a lien upon the grain threshed for the amount of his threshing bill, and the plaintiff having filed such lien and availed himself of that remedy, he is precluded from bringiiig the present action to. recover the amount of such threshing bill, and is limited to. the remedy prescribed by law, namely, the foreclosure of his lien in the manner provided for by section 741 of the Code of Civil Procedure, which reads as follows: “Said lien may be foreclosed by a sale of the property embraced in said lien upon a notice, and in the manner provided by law for foreclosure of chattel mortgages.” We are of the opinion that the court was right in denying defendant’s motion to dismiss the action on the 'ground that the summons was insufficient and that there was a variance between the summons and th,e complaint. The summons, as will be noticed, contains all that is necessary to be stated in. an ordinary summons in a justice’s court, and states specially all the facts required to be stated by ■section 13 of the Justice’s Code, which provides, among other things, that the summons shall contain “a sufficient statement of the cause of action in general terms to apprise the defendant of the nature of the claim against hifn,” and the proper prayer for relief. The summons in this case fully complied with the provisions of the Code. It is stated in general terms that the defendant was indebted to the plaintiff in the sum of $74.86 for threshing grain for the defendant, and the amount of certain moneys expended by the plaintiff for the defendant, the amount of the balance due, and that, in default of an answer by the defendant, plaintiff would take judgment for the amount specified. It is. not contemplated
The further contention of the appellant that there was a variance between the summons and complaint is, in our opinion, without merit. The only material difference between the summons and complaint is the allegation in the complaint that the plaintiff had filed a bond in compliance with the provisions of Pol. Code, § 3145, thereby showing that he was authorized to maintain the action. Johnson et al. v. Berry et al., 20 S. D. 133, 104 N. W. 1114, 1 L. R. A. (N. S.) 1159. But plaintiff makes no demand for a foreclosure of his lien, and only asks for a general judgment for the amount of his claim.
The further contention of the appellant that, the plaintiff having filed his lien for his claim, his only remedy was by an action to foreclose such lien, presents' an important question. It is insisted by the plaintiff and respondent -that, notwithstanding this provision of the Code, he was at liberty to abandon his lien and bring an ordinary action at law against the defendant to recover the amount of his threshing bill, and that in legal effect he had abandoned said lien, and therefore had a right to recover in this form of action. It seems to be the general rule, however, as applied to mechanics’ liens, mortgage liens, etc., that the part}' may abandon his lien and bring an action at law to- recover the amount claimed to be due him, without first resorting to the property. 13 Enc. P. & P. 124; Jones v. Clarkson, 16 S. C. 628; Morgan v. Murtha, 17 Misc. Rep. 292, 40 N. Y. Supp. 376. The filing of a lien is not the institution of an action, and hence we see no legal reason why a party, though having filed a claim for a lien, may not abandon the same and bring a common-law action to recover the amount claimed, and thereby, in effect, waive his claim for a lien. The court was clearly right therefore in holding that the action was maintainable, and in directing that, before
' ’ ' It is further contended by the appellant that the court erred in' allowing the plaintiff-, when a witness in'his' own'behalf, to refresh his recollection as to the amount paid him for coal' by the defendant, by referring to the complaint in the action. The plaintiff had testified from his own recollection as to the number of bushels' of the various classes of grain threshed by him, and he was then ' asked the following question: “Q. Referring to the complaint, - to refresh your memory from the complaint, state how much has been paid for coal by the defendant.” This was objected to as an incompetent and improper manner of refreshing witness’ recollection on -the stand. The objection was overruled and an exception duly taken. His answer was. “Coal, $11.60. The' total amount that has been paid is $16.60. . At the time of threshing I furnished help of Frank Green, three days’ work, amounting to $7. I paid this for Smith.- Smith requested me to do this for him. He hasn’t paid this $7.00 to me. This makes the -total due $73.99.” It will be observed that the question referred simply to the amount paid by the defendant, and, though the court overruled the objection, it does not affirmatively appear from the record that the witness referred to the complaint or examined it or testified therefrom, and on the cross-examination of the witness no further reference seems to have been made to this testimony or to the complaint. A -memorandum made by am other person may be used to- refresh the recollection of a witness, provided that, after inspecting it, the witness can testify from his own recollection, or remembers having seen it when his memory as 'to the facts was still fresh, and recollects that he then knew the statements therein to.be correct; and, so far as the record discloses, such may have been the case at bar, as there is nothing indicating that the witness testified from the statements made in the complaint; but, as will be noticed, 'he states positively as to ■the facts apparently without regard to anything appearing in the complaint. The matter of refreshing the witness’ recollection is within the court’s judicial discretion, and, unless there is an abuse of such discretion, the ruling of the court will not be
It is further contended by the appellant that the judgment should be reversed in this case for the reason that the contract made between the plaintiff and the defendant was made on Sunday; but this contention is untenable. The plaintiff testified that the contract was entered into on the 3d of the month, which, by the calendar, appears to have been Saturday, and this evidence does not appear to ,be controverted, so far as the record discloses, on the part of the defendant, and it seems to have been assumed by the court in its charge to the jury that the contract was a legal one, and, although the defendant requested a number of instructions, no request was made by him for any instructions to the jury as to the legality of the contract entered into between the parties. The case seems to have' been fairly submitted to the jury, and the amount for which -the verdict was rendered for the plaintiff is fully supported by the evidence.
We have not overlooked the other exceptions presented bj' the counsel for the defendant, but do not deem them of sufficient merit to require a special discussion.
Finding no error in the record, the judgment of the court below is affirmed.