159 N.W. 886 | S.D. | 1916
This action was 'brought to- contest the validity of an election 'held to determine whether intoxicating liquors -should be sold at retail- in' the town- of D-avis. Trial was h-adl tc the oouirt without a jury. The court rendered findings and -conclusions 'upon which it entered judgment 'in favor of the defendants.
“The answer was a simple denial of the allegations of the complaint in general terms, except as to one point. Under the ¡provisions of the 'fortieth., forty-fourth, and forty-fifth, sections of the Practice Act [our sections 121, 124 and1 125, supra] the want of capacity in the plaintiff to sue 'should have been specially set up in the answer. The general issue is. not sufficient. 1 Mass. 1, 159; 6 N. Y. 527, 197; 7 B. Mon. 481. The want of legal capacity feo sue is a personal disability; and if the defendant intends to set up such a defense, he should state so. distinctly. The general denial relates to. the other facts alleged concerning the contract. The defense that the plaintiff has not legal capacity to. sue goes to the entire action, constituting a full separate defense, and should be separately’stated.”
There is nothing in the record to. show that the 'alleged defect in proof was brought to- the attention of the trial court. We agree with the court in Choctaw, etc., v. Jackson (C. C.) 182 Fed. 342, wherein, after referring to a waiver 'by failure to answer oir demur, the court said:
“If such defect in the pleadings may ibe waived, certainly it might be waived in the proof, where it appears that, notwithstanding the absence of proof, the case is apparently tried on the theory that capacity to sue exists and the failure of proof is not brought to the attention of the court.”
The judgment appealed from- is. reversed, and the trial court is directed to enter conclusions of law and judgment in conformity with this decision.