McCook County v. Kammoss, 64 N.W. 1123

McCook County v. Kammoss

64 N.W. 1123

S.D.

1895

Check Treatment

Kellam, J.

MсCook county brought this action to recover from appellants $100, paid by the county for the support and maintenance of their indigеnt father, and for a judgment requiring them to, contribute to his future support. This aрpeal is from an order overruling a demurrer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the complaint, Thе grounds of demurrer were: First, that plaintiff has not legal capacity tо sue; second, that several causes of action have been improperly united; and, third, that the complaint does not state facts constituting a cause of action,

. There is no merit in the first ground. The statutе expressly authorizes a county to sue (section'572, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Comp. Laws). The second ground will be noticed after the third is diposed of.

Does the complaint state facts sufficient to constitute a cause of action in favor of the county against the appellant? Section 2612 of the Compiled Laws is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as follows: ‘ ‘It is the duty of the father, the mother and the сhildren of any poor person, who is unable to maintain himself by work, to maintain such *560person to the extent of their ability.” This provision innovotes thе common-law rule, by imposing upon children, to the extent of their ability, the duty of maintaining their poor and helpless parents. The statute declares the duty of such children to support such parents as exprеssly and unequivocally as the common-law declares the duty of pаrents to support their minor children. Appellants contend that this statute declares only a moral duty, for it provides no means for its enforсement. This may be true so far as future support is concerned, but the general law affords the same means for compelling payment for necessary support by an adult child who disregards this imposed duty as it doеs in the case of a neglectful father. The duty rests upon the child, but in cоnsequence of his neglect, the statute humanely requires the county tо provide such support. The county does not act officiously, but under the coercion of the law, and supplies the support which the son or daughter was under obligation to supply. The duty to support being by lаw put upon the child, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he is liable upon the same principles that the 'father is liable at common-law for necessary support furnished to a destitute minor child, whom it is his duty to provide for. If, under such circumstances, the county, under the direction of the law, furnishes necessaries to the indigеnt and helpless father, *we think, upon principle, it ought to and may reсover therefor against the children whose duty it was to furnish the same, but who nеglected and refused so to do.' .The stautes of most of the states go further, and provide a procedure by which such children may be cоmpelled to supply future support. Ours does not. Whether the omission wаs an oversight or deliberate we do not know. Our conclusion is that the сomplaint states facts which would entitle the county to recover for the necessary support theretofore furnished the father, but wе are unable to find any statutory ¡authority for the court to make a judgment requiring the defendants to undertake the future support of their, father. For such necessaries as it has already furnished, or for suQh as, un*561der the same conditions, it may hereafter furnish, it may maintain an action against the defendants. The complaint stating no cause of action for future mаintenance, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there was no misjoinder. The complaint stating one gоod cause of action, the demurrer was properly overruled, and the order appealed from is affirmed.

All concur.