Fruth v. Bolt

158 N.W. 733 | S.D. | 1916

GATES, J.

Action to foreclose a real estate mortgage. The defendants interposed a general -demurrer to- the complaint. From the -order overruling same, defendants -appeal.

[1] It is first urged that there is nothing in the -corn-plaint .to show that -defendant FDul-ett Land & Cattle Company, sued as an artificial being, had- any corporate existence. In one- -paragraph ■of the .complaint the said1 -defendant is alleged to- be a' subsequent grantee of the property and is referred to as “a corporation of Hu-lett, Wyo.” As against a demurrer this is a sufficient allegation of the.corporate capacity of said defendant. . •

[2] Appellants next urge that because the complaint alleges the giving of the note and mortgage on June 9, 1910, to William H. Hall, 'deceased, it clearly appears that the mortgage was a nullity because given to a dead1 man. C. C. §§ 2042, 915. In construing- the language of' a complaint reference must be had to all its parts. In another paragraph, it is alleged' that William H. Hall died on July 21, 1914, four years after the giving of the note and mortgage to him. Although the language of the complaint is inartistic, it was clearly the intention of the pleader to allege that the note and mortgage were given to William- H. Hall, “now deceased” or “since deceased.” The objections raised by the demurrer are ultra-technical and frivolous. In the language of Territorial Justice Francis ini Polk v. Minnehaha Co., 5 Dak. 129, 37 N. W. 93, they are “not even the well-defined ghost of a respectable technicality.”

The order appealed from is affirmed.