12 S.D. 63 | S.D. | 1899
Defendants appeal from an order overruling a a demurrer to the complaint, the grounds of which are (1) that there is a defect of parties defendant; and (2) that the complaint dues not state facts sufficient to constitute a cause of action. It is alleged in the complaint that the plaintiffs are the surviving partners of the firm of Finch, Van Slyck, Young & Co.; that defendants are partners doing business under the firm name of Park & Grant; that John Armstrong was indebted to plaintiffs, who commenced actions against him to recover upon such indebtedness, and at the same time caused certain warrants of attachment to be issued, under which personal property belonging to Armstrong was attached and taken into the possession of the sheriff; that these attachments were discharged, but plaintiffs preserved their liens and appealed to this court, where the orders of the circuit court were reversed and the attachments sustained; that plaintiffs recovered judgments for costs in this' court and judgments in the court below against the principal, debtor; and that executions were issued upon such judgments, which were returned unsatisfied. It is further alleged “that on or about the 7th day of January, 1896, the defendant, as the firm of Park & Grant, caused and directed a large part of the goods and merchandise then held by the sheriff of Brookings county under the warrants of attachment hereinbefore mentioned to be sold, and also caused and directed a large sum of money to be collected upon the accounts levied upon under the above-mentioned warrants of attachment, all of which said goods and accounts were then held by the sheriff of Brookings county under and by virtue of said warrants of attachment hereinbefore mentioned, and the said firm of Park & Grant, defendants herein, did on or
In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties. Comp. Laws, § 4924. Thus construed, these material facts are confessed by the demurrer: Property held by the sheriff as security for plaintiffs’ judgments was caused to be sold by the defendants, who received the of the sale with knowl