10 S.D. 30 | S.D. | 1897
The plaintiff, who was formerly the sheriff of Minnehaha county, brought this action to recover of the defendant certain money which he claims the defendant received for his use and benefit in an action wherein one Reynolds was plaintiff and one Crosby was defendant. Verdict and judgment for plaintiff, and the defendant appeals.
On the trial the defendant objected to the introduction of any evidence on the part of the plaintiff, on the ground that the complaint did not state a cause of action. This objection was overruled, and we think the court was right in its ruling. The complaint, after setting out the proceedings in the action of Reynolds against Crosby, contains the following allegation: “That thereafter, and on or about the 18th day of September, 1894, the defendant herein collected and received from the said plaintiff, William Reynolds, for the use and on behalf of this plaintiff, the said sum of $105, so as aforesaid allowed and taxed as sheriff’s costs in said action of Reynolds v. Crosby, and defendant then and there, and prior to the collection of said costs, promised and agreed to collect and pay the same over to this plaintiff as his costs and fees in the said action number 5,282; and thereafter this plaintiff demanded and requested of the defendant herein, Joe Kirby, that he surrender and pay over to the plaintiff the said moneys, amounting to the sum of $105, but the said Kirby then and there refused, and still refuses, so to do.” Assuming the facts stated to be true, as we are required to do on demurrer, or when evidence on the trial is objected to on the ground that the pleading is insufficient, we are of the opinion that the complaint stated a cause of action. If, as alleged, the defendant had in his possession money belonging to the plaintiff, it was his duty to pay it over on demand.
At the close of all the evidence the defendant moved the court to direct a verdict in his favor. This motion was denied, and the defendant excepted. We are of the opinion that the court ruled correctly in denying the motion.