14 S.D. 621 | S.D. | 1901
Lead Opinion
This is an-appeal by the defendant, from an order overruling a demurrer to the complaint. The demurrer was interposed upon the grounds. (i)' that it appears upon, the face, .of the complaint that the plaintiff has not legal capacity to sue; (2) that the complaint does not state.facts sufficient to constitute a- cause-of action.. As it is clear from an examination of the complaint that, if the plaintiff has legal capacity to sue, it states facts sufficient to constitutes cause of action, the only question to be considered is-.whether or not respondent, as receiver of a foreign corporation, has legal capacity to maintain an .action to recover possession of real .property from a resident of this state in the actual possession of the same. The complaint sets out very fully the proceedings of the supreme court of the state of Maine resulting in the appointment of the plain
In the. case at bar it .will be noticed that, the action is-to recover the possession of a, tract of land in .this state .claimed to be owned by the, banking company, for. which the plaintiff was appointed receiver. No question of the right of creditors in .this-state, so fas as the record discloses, is involved. Certainly, if. the defendant is holding possession of. the property wrongfully as against .the receiver, it is not the .policy of this state to protect him in such holding. If he is the owner -or entitled to the possession of the property, we may reasonably assume that our courts will protect him in such right. It seems to, us, therefore, that comity, as it exists between the states of this union, requires that it hoi be extended by this court to a case like the one at bar. We are of the opinion, therefore, that the demurrer to the complaint, interposed upon the ground that it was not competent for. the receiver to sue in the courts of this state, was properly overruled, and the order of the circuit court overruling the same is affirmed.
Dissenting Opinion
(dissenting). At page 817, 17 Enc. Pl. & Prac., the prevailing doctrine is concisely stated thus: “A receiver may