Jerome v. Rust

• Decision Date: 04 April 1905
• Citation: 103 N.W. 26,19 S.D. 263
• Parties: JEROME v. RUST.
• Court: South Dakota Supreme Court

103 N.W. 26

19 S.D. 263

JEROME v. RUST.

Supreme Court of South Dakota

April 4, 1905

Appeal from County Court.

Action by Franklin Jerome against H. W. Rust. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Joe Kirby, for appellant. Muller & Conway, for respondent.

CORSON P. J.

This is an appeal by the defendant from a judgment of the county court of Minnehaha county rendered in favor of the plaintiff. The action was commenced in a justice's court, and, the judgment being in favor of the plaintiff in that court, the defendant appealed the case to the county court, where it was tried de novo.

It is contended by the appellant that the action in the justice court was one, as appears by the summons, to recover the possession of certain personal property, namely, 175 bushels of oats, and that the judgment in the justice's court was, in effect, that the plaintiff recover the said 175 bushels of oats, or, in case delivery could not be had, the sum of $75, the value thereof, but that the case, without any amendment of the pleadings, was tried in the county court over the defendant's objections, as an action for the recovery of the value of 175 bushels of oats loaned by the plaintiff to the defendant, and which he had refused to return upon demand.

It is insisted by the respondent in support of the judgment of the county court that the action, as shown by the oral complaint made in the justice's court, was not one for the recovery of specific personal property, but for the value of the same and hence the evidence of the value of said property was properly admitted, and the verdict and judgment of the county court were properly rendered. The summons in the action in the justice court was as follows: "You are hereby summoned," etc., "to answer the complaint of the above-named plaintiff, Franklin Jerome, who claims to recover of you the possession of 175 bushels of oats, of the value of $75, now the property of plaintiff, and being detained by you in Minnehaha county, S. D., after demand made, and which you promised to deliver. And you are hereby notified that, if you fail to appear and answer as above required, said plaintiff will take judgment against you for the possession of said property, or the value thereof, if a delivery cannot be made, and for costs of action." The oral complaint in the justice's court was as follows "Plaintiff, by his attorney, complained orally for the value of 175 bushels of oats, of the value of $75, loaned defendant by plaintiff, and which he (defendant) promised to pay on or before October 1, 1901, no part having been paid. Plaintiff asks and demands judgment for 175 bushels of oats, or the sum of $75, together with the costs of this action." To this complaint the defendant pleaded by a general denial and payment of amount due. The judgment in the justice's court was as follows: "And judgment is hereby given in favor of plaintiff and against the defendant, H. W. Rust, in the sum of 175 bushels of oats, or, if the oats cannot be delivered, the sum of $75, together with the costs of this action, taxed at $16.60, making together the sum of $91.60."

On the trial in the county court the defendant objected to any evidence being given as to the value of the property for the reasons (1) that neither the summons nor the complaint states facts sufficient to constitute a cause of action; (2) that there is a variance between the summons and complaint; (3) that the summons, being one in replevin, and one in which the defendant is required to answer for the return of specific property, does not sufficiently describe or identify the property sought to be recovered; (4) this being an action commenced and tried in justice court for replevin, the plaintiff cannot now maintain the same as upon a money demand. At the close of the evidence the defendant moved the court to direct a verdict in favor of the defendant on the ground, in substance, that the cause of action as set out in the summons and complaint had not been proven, and that no motion to amend the pleadings had been made to or granted by the court. It would seem, therefore, that the cause of action set out in the summons was apparently to recover the...