6 S.D. 253 | S.D. | 1894
Appellant’s complaint in the court below was, after a formal introduction, as follows: “(1) That this action is founded on an instrument for the payment of money only, made and delivered to said Thos. H. Breen, of which the following is a copy, viz: ‘$100.00. Lead, March 31st, 1893. Due Thos. H. Breen, on demand, one hundred dollars, on purchase price of house. Mrs. Minnie Esterbrooks.’ (2) That, before the commencement of this action, payment of the same was duly demanded of said defendant on, towit, the 21st day of April, 1893, and at sundry times since said day. (3) That there is due to the plaintiff thereon from the defendant the sum of One hundred dollars, with interest from the said 21st day of April, 1893, which he claims. (4) That thereafter and before the commencement of this action, the said Thos. H. Breen died, intestate; and that on the 28th day of July, 1893, letters of administration upon the estate of said Thos. H. tíreen, deceased, were duly issued by the county court of said county and state, appointing this plaintiff administrator of all the goods, chattels and credits which were of said deceased; and that this plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of said office. Wherefore the plaintiff demands judgment for one hundred dollars, and interest, besides costs.” Respondent demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Appellant applied to the court for judgment, on the ground that' the demurrer was frivolous. On hearing, the court denied the-application for judgment; and sustained the demurrer. The plaintiff appeals.
The last clause of section 4927, Comp. Laws, provides that ‘ ‘in a action * * * founded upon an instrument for the pay