File No. 5038 | S.D. | Aug 30, 1922
Action against the surety upon two warehouseman’s bonds. The appeal is from an order overruling defendant’s demurrer to the complaint.
The action is brought by the state, the obligee in the bonds, on the relation of three holders of storage tickets and for the benefit of others similarly situated. The complaint alleges that the Richmond Equity Exchange was a' duly licensed public warehouseman operating two grain elevators at Richmond, S. D.; that defendant, as surety, executed and, delivered a warehouseman’s bond in the sum of $6,000 for each elevator; that the warehouseman received grain from relators and others in said warehouses during the period covered by said bonds in excess of the value of $20,000, and issued storage tickets therefor; that it converted all of such grain, except to the value of about $5,000, and had on hand at the time of bankruptcy proceedings grain of the value of less than $5,000; alleges the bankruptcy proceedings and the appointment of -a. trustee, and the sale of the grain by the trustee; that the proceeds were less than 17 per cent of the amount of the outstanding- storage tickets; the application thereof pro tanto on ■the storage tickets; and demand on the bankrupt and on the surety. The action is brought,to cause the amount of the surety bonds to be applied upon the other 83 per cent of the amount of the storage tickets.
Appellant first urges that there was a defect of parties plaintiff, in that the trustee in -bankruptcy was not joined. By section 9758, Rev. Code 1919, stored grain is primarily a trust fund to be applied in payment, of outstanding warehouse receipts. The warehouseman’s bond is an undertaking that the warehouse
It is next contended that there was a misjoinder of causes of action. Appellant’s argument raises points that might be worthy of consideration, if the complaint were under attack by a motion to make it more definite and certain, or by a motion to require the cause of action on each bond to be separately stated. Demurrer is not the proper remedy. Austin T. & W. Mfg. Co. v. Heiser, 6 S. D. 429, 61 N.W. 445" court="S.D." date_filed="1894-12-29" href="https://app.midpage.ai/document/austin-tomlinson--webster-manufg-co-v-heiser-6684053?utm_source=webapp" opinion_id="6684053">61 N. W. 445; Just v. Martin Bros. Co., 37 S. D. 470, 159 N.W. 44" court="S.D." date_filed="1916-08-29" href="https://app.midpage.ai/document/just-v-martin-bros-co-6689108?utm_source=webapp" opinion_id="6689108">159 N. W. 44; McAlpin v. Baird, 40 S. D. 180, 166 N.W. 639" court="S.D." date_filed="1918-03-08" href="https://app.midpage.ai/document/mcalpin-v-baird-6689517?utm_source=webapp" opinion_id="6689517">166 N. W. 639.
Finally, appellant contends that the complaint does not state facts sufficient to constitute a catise of action. The principal argument under this head is that the' storage ticket holders have waived their right tó the security furnished by the surety bonds, because they have filed and proved their claims as creditors in the bankruptcy court. There might be ground for this position, if the security were such as would become assets of the bankrupt’s estate in case of its waiver by the storage ticket holders. But the liability of the .surety,'under the facts alleged', is only for the" benefit of the storage ticket holders, and would not upon such waiver become general assets of the bankrupt’s estate. It is therefore not alleged to be “property of the bankrupt,” .within the meaning of the Bankruptcy Law. Gorman v. Wright, 136 Fed. 164, 69 C. C. A. 76.
The order appealed from is affirmed.