12 S.D. 168 | S.D. | 1899
The complaint, to which an order sustaining a general demurrer was entered, and from which plaintiff appeals, alleges, in substance, that for the purpose of acquiring title to a government homestead, by making final proof under the land laws of the United States, with which appellant had
Though conceding that the action in justice court was to recover money justly due respondent, and that the garnishee summons was legally issued, appellant contends that its service upon the agent of the loan company constituted an abuse of legal process, for which he is entitled to recover damages upon the proof of the facts stated in the complaint. As the garnishee’s liability must be measured by the amount of money in his hands belonging to appellant at the time the garnishee summons was served, it must affirmatively appear, in order to entitle appellant to recover in this action, that money of his, then due or to become due, absolutely, and not subject to execution, was in the actual possession of the loan agent. Chapter 96, Laws 1893; 2 Shinn, Attachm. pars. 474 — 486, inclusive. Had appellant completed the loan and acquired title to the proceeds thereof, the money would not be exempt, under the averments of his complaint, or any state or federal homestead enactment to which our attention has been called. It is alleged that he has fully completed the residence required by law, and otherwise complied with the statutes of the United States applicable to homesteads; and, if such be the case, he is entitled to make final proof and obtain a patent without expending $200, or anything in excess of the usual land-office fees; and in no event need the action of respondent effect a forefeiture of the land. Rev. St. U. S. § 2291. Our conclusion is that the demurrer was properly sustained, and the order appealed from is affirmed.