18 S.D. 530 | S.D. | 1904
This is an appeal from an order overruling defendants’ separate demurrers to the complaint. The demurrers were interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The only question, therefore, presented on this appeal, is as to whether or not the demurrers should have been sustained by the court below.
It is alleged, in substance,' in the complaint: That R. J. Huston was the duly elected and qualified sheriff of Minnehaha county. That on January 24, 1891, in justice court before R. C. Hawkins, a police justice, a judgment was rendered by default in favor of John Norton and John J. Murry against the ^plaintiff in this action, Charles L. Phillips, for the sum of f53 damages and $7.50 costs, which judgment was “rendered and entered for laborer’s wages” in the case before said justice, wherein John Norton and John J. Murry were plaintiffs, and ■the plaintiff was a defendant. That Joe Kirby was the attorney who procured the said judgment. That a transcript of said judgment was on October 28, 1901,. filed m the office of the clerk of the circuit court in and for Minnehaha county. That on or about November 4, 1901, an execution was issued upon said judgment out of the office of the clerk of said circuit court, and placed in the hands of the sheriff of .said county, and which execution did not and does not recite that it is issued upon a judgment for laborer’s wages. That said sheriff, by virtue of said execution, levied upon certain personal property of the plaintiff. That on November 11, 1901, the plaintiff caused
Sioux Palls, South Dakota, Deebr. 10th, 1890.
Mr. Chas. Phillips,
In Account with Norton & Murry.
1890.
Sept. 11. To Balance......................................... $52 45
The oral complaint entered, in the docket of the police justice in said case is as follows: “Plaintiffs appeared by Joe-Kirby, their attorney, and made oral complaint for fifty-three dollars ($53) due on account for services heretofore rendered to the defendant by the plaintiffs at the defendant’s special request; that no allegation was made in said justice's summons nor in said complaint that the cause of action was based upon, a claim for laborer’s wages and that in neither said justice’s summons nor in said complaint was there a prayer for a judgment for laborer’s wages; that this plaintiff did not answer said summons and complaint in said justice court, nor either of them, and that he never appeared in said action in any manner; that this plaintiff not having any knowledge of said judgment, nor of any judgment against him in favor of said Norton & Murry, and supposing that he was making such payments on the account due them from him, paid to John J. Murry, one of the plaintiffs in said action, upon the indebtedness due by him to the said Norton & Murry, the aggregate sum of thirty-five dollars ($35) from time to time during the years 1891, 1892, 1893, and 1894. ”
It is further alleged: “That plaintiff is informed and believes that the defendant Joe Kirby now claims to own said judgment. ” Wherefore the plaintiff demands judgment that the said justice judgment and transcript thereof, and the
It is contended by the appellant Kirby that the complaint' fails to show that he is a proper party to the action; that the allegation in the complaint “that plaintiff is informed and believes that the defendant Joe Kirby now claims to own said judgment” is insufficient as an allegation that he was such owner. It is insisted by the respondent, in support of the ruling of the court below, that the attorney was a necessary party for the reason that the object of the action was to restrain him, as well as the plaintiffs in the action in the justice’s court, from proceeding to collect the judgment, and that the allegations in the complaint that the plaintiff was informed and believed that the defendant claimed to own the said judgment were sufficient to show that he was a proper party as against a general demurrer. The latter allegation was undoubtedly subject to a motion to make more certain and definite, but, in the absence of such a motion, we are of the opinion that it was prima facie sufficient as an allegation of ownership on the part of Kirby.
It is further insisted by the respondent that the complaint contains facts sufficient to constitute a cause of action for the reasons that “(1) the statement contained in the summons is
It will be observed that the statement in the summons in' the justice’s court of plaintiff’s cause of action was that the plaintiff claimed to recover ‘ ‘on account for services heretofore rendered you by plaintiff at your special instance and request,” and, if he failed to appear and answer the complaint, judgment would be taken against him for $53, together with costs and disbursements of this action. It will be observed from this statement in the summons that the defendant was not notified that judgment for laborer’s wages would be entered against him.” The judgment, being therefore for laborer’s wages, gave the plaintiff greater relief than he was en-titled to under the statement in the summons. Section 13,' Justice Code, provides that the summons must contain “a sufficient statement of the cause of action in general terms to apprise the defendant of the nature of the claim against him.” It will thus be seen that the statement must be sufficient to fully apprise the defendant of the nature of the claim made against him, and of the judgment that will be taken against him, in order that he may determine intelligently whether or not it will be necessary for him to appear and defend the action; and where the defendant does not appear, and allows the judgment to be taken by default, the plaintiff is not authorized to enter a judgment for any relief not specified in or clearly
The plaintiff in this action, as a defendant in the action m the justice’s court, had the right to assume that the ordinary judgment for the amount claimed to be due would be rendered and entered, and he was not required to examine the said judgment or take an appeal therefrom within the 30 days in which appeals are allowed by the Justice Code, and, not having appealed, he is entitled to show that the judgment was not authorized by the summons or complaint in an action brought on the equity side of the court, for the purpose of restraining the enforcement of the same by the defendants.
It will also be noticed by the complaint that the judgment in the justice’s court was entered on the 24th day of January, 1891, and that the transcript of the justice court judgment was not filed in the circuit court until October 28, 1901, more than 10 years after the judgment was entered, and that no execution had been issued upon the
It will be noticed by this section that there is no-limitation-of time as to when said transcript may be made- by the justice court and filed in the circuit court;- but, considering these three-
As the plaintiff was not precluded by the recitals in the judgment from claiming the property to be exempt, and as the execution was issued without any authority of law, it is clear that the facts alleged in the complaint are sufficient to ■ entitle the plaintiff to substantial relief, and that the demurrer was properly overruled. The order appealed from is affirmed.