2 S.D. 442 | S.D. | 1892
Lead Opinion
This is an appeal from an order overruling the demurrer to the complaint. The complaint is, in substance, as follows: (1) That the plaintiff is a corporation, organized under the laws of the State of Ohio, and authorized to transact business, sue and be sued, in the State of South Dakota, having complied with all the requirements of the statutes of said state in regard to foreign corporations; (2) that thte defendant
Annexed to the complaint, and made a part thereof, are a number of exhibits set out in full, being the notice of sale, certificate of sale, affidavit of the defendant, and the mortgage of plaintiff. In determining the sufficiency of the complaint the averment therein can alone be considered. A complaint which does not state a cause of action by its averments, without reference to its exhibits, is bad upon demurrer. Bowling v. McFarland, 38 Mo. 465; Baker v. Berry, 37 Mo. 306; Curry v. Lackey, 35 Mo. 392; Taylor v. Blake, 11 Minn. 255, (Gil. 170,) Mayor v. Signoret, 50 Cal. 298; Larimore v. Wells, 29 Ohio St. 13. The exhibits, therefore, will not be considered in determining the sufficiency of the complaint in this case.
Section 4907, Comp. Laws, provides that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action;’’ and Section 4924 provides that, “in-the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” While, therefore, under our system of pleading, no particular form for the statement of a cause of action is prescribed, and nothing further is required than that the facts constituting the cause of action shall be concisely stated, which pleading shall be liberally construed with a view to substantial justice between the parties, yet the facts corstituting the cause of action must be stated in the complaint with sufficient clearness and fullness to enable the court to see that, upon the facts stated, the plaintiff is entitled to the relief demanded, or at least some relief. A court cannot be called upon to supply facts by inference or conjecture. The facts themselves must be stated, — not by way of recital, or by a statement of probative facts, but by direct allegations of the ultimate facts relied on to sustain the action. The complaint in this action is based upon Section 5424, Comp. Laws. This section is found in Chapter 28, Code of Civil Proc. providing for the foreclosure of mortgages by advertisement The first section of the chapter (Section 5411, Comp. Laws) provides that ‘ ‘every mortgage of real property containing therein
We are of the opinion, also, that there is no sufficient allegation in the complaint that defendant received $700 on the sale, or any other sum. It is alleged that he sold the property for $700, but it is nowhere alleged that it was paid. Again, there is no allegation that there was a surplus of $160.29, or any other sum, in the hands of the sheriff, arising from such sale. The averment is that defendant made “an affidavit purporting to show the amount received from the purchase; * * * that, according to said affidavit, there remained in the hands of said sheriff the sum of $160.29.’’ There is no direct averment that defendant had that sum as a surplus, and hence no issue could be raised upon the allegation, except an immaterial one as to whether or not defendant made such an affidavit, or whether or not, according to such affidavit, there remained in his hands the sum of $160.29.
It is possible that, in support of a judgment after verdict, the last two objections to the complaint might, by a very liberal construction, be held good, but upon this demurrer we cannot so hold. It is safer for the pleader to state the ultimate facts directly, so that they can be admitted or denied by the defendant, and, if denied, a material issue presented by the pleadings.
Dissenting Opinion
(dissenting.) I do not concur in the decision of this case. I do not disagree with what is said as to the effect of an exhibit attached to and made a part of a pleading, if by what is said is only meant that such exhibit cannot take the place of, or dispense with, the allegations in connection with the exhibit necessary to show a cause of action. In presenting a written instrument, either as an exhibit, or in the body of the complaint (its location is immaterial), as the basis of a cause of action, it must still be alleged that the party sought to be charged executed and then violated it. But a complaint which states that A. B. made and delivered to C. D. an instrument, a copy of which is hereto attached and made a part hereof, as “Exhibit A,’’ (such exhibit being a promissory note, and duly attached,) states a cause of action as fully as though all the details of date, amount, time, place of payment, and rate of interest were specifically set out in the body of the complaint and alleged as distinct facts; and yet, tested by the rule of the opinion that “a complaint which does not state a cause of action by its averments, without reference to exhibits, is bad upon demurrer, ’ ’ such a complaint would be worthless, and yet I think the court would hesitate to so hold. I do not think the cases referred to in the opinion, aside from the Missouri cases, support the broad rule therein stated. In Fairbanks v. Bloomfield, 2 Duer. 353, the court said: “The safest course under the code, where the action is founded on an instrument in writing, is to annex a copy, and refer to it as a part of the complaint. ” In the recent case of Taylor v. Mac-Lea (City Ct. N. Y.) 11 N. Y. Supp. 640, which was a demurrer to a complaint, upon the ground that it did not state facts constituting a cause of action, — the augument being that the contents of a lease, which was the basis of the action, should have been set out in the complaint according to their legal ef
Another proposition in the opinion to which I cannot assent is as follows: “There is no allegation of the existence of any mortgage containing a power of sale, or otherwise. No facts are stated from which a court would be authorized to conclude that any mortgage had been given under which a sale could have been made by the defendant;” and the conclusion is ‘that “the absence from the complaint of any facts pertaining to the mortgage under which the sale was made renders the complaint fatally defective. ” It must be borne in mind that this was an action by the holder of a second mortgage against the sheriff himself, as such sheriff, for a surplus in his hands, as such sheriff, after paying off the first mortgage. The court knows that it is among the official duties of a sheriff to make sale of mortgaged premises under proceedings to foreclose by advertisement. Section 5415, Comp. Laws. It is distinctly alleged in the complaint that defendant is and was sheriff of Day county, and that he made the sale as such sheriff, in pursuance of a notice, a copy of which is set out as a part of the complaint. This fact is admitted by the demurrer. Was it necessary, then, as against the sheriff, to expressly and affirmatively allege that he was authorized to make such sale? In other words, is it incumbent upon a third person who seeks to recognize the official acts of this sheriff, and predicate a right thereon
The opinion of the court further says: “We are of the opinion, also, that there is no sufficient allegation in the complaint that defendant received $700 on the sale, or any other sum. ”