Canty v. Latterner
| Decision Date | 24 November 1883 |
| Citation | 17 N.W. 385,31 Minn. 239 |
| Parties | Thomas Canty v. George F. Latterner and others |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county, Young, J., presiding, sustaining the defendant Latterner's general demurrer to the complaint.
The action was brought against Latterner, the Minneapolis & St Louis Ry. Co., and the clerk of the district court, and the case made by the complaint is in substance as follows: One Babcock brought ejectment against Latterner for the S. E. 1/4 of the N. E. 1/4 of section 32, town 117, range 23, in Hennepin county, and on November 21, 1881, had judgment in his action. On November 26, 1881, plaintiff was substituted as Latterner's attorney, the costs were paid, and a second trial secured. This trial was had May 27, 1882, and Latterner had a verdict and judgment. The railway company took proceedings against Latterner, to acquire a right of way through the same land, and on June 17, 1881, judgment was rendered condemning a strip 100 feet wide, and adjudging $ 275 as compensation. On June 27, 1881, it was ordered that this sum be paid into court by the company, to be paid to Babcock or Latterner as the court should thereafter determine, and on the same day the money was paid to the clerk of the court, and the company took and has since held and used the strip condemned.
On December 28, 1881, plaintiff and Latterner made an agreement whereby plaintiff agreed to conduct the second trial of the Babcock suit, and Latterner agreed to pay him $ 100 as attorney's fee therefor, in case of success, and then and there assigned to plaintiff $ 100 out of the $ 275 adjudged against the railway company. Plaintiff and Latterner then attempted to reduce their agreement to writing, and made and signed an instrument as follows: Plaintiff and Latterner, when they made the contract, both supposed that the $ 275 was still in possession of the railway company, and were ignorant that it had been paid to the clerk of the court. Latterner is insolvent, and the real estate described is his homestead, and no part of the $ 100 has been paid.
For a second cause of action, the plaintiff alleges a further agreement that in case an appeal to the supreme court should be taken in the Babcock suit, the plaintiff would act therein as attorney for Latterner, and the latter agreed to pay him a further sum of $ 100, out of the same fund of $ 275, in case of success, and nothing in case of failure. The appeal was taken, plaintiff acted as attorney, and the judgment of the district court was affirmed, but no part of the $ 100 has been paid.
The relief demanded is (1) that the written contract be reformed to conform with the actual agreement, as alleged; (2) that Latterner be enjoined from receiving, and the clerk from paying him, any part of the $ 275 until the final determination of this action; (3) that the $ 275 be distributed, and that plaintiff receive therefrom $ 200 and his costs and disbursements; and (4) general relief.
Order reversed.
Thomas Canty, R. H. Day, and D. B. Johnson, for appellant.
Merrick & Merrick, for respondent.
The demurrer rests alone upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It is urged in support of the demurrer that this action cannot be sustained, because it is in its nature equitable while an adequate remedy of a legal kind is open to the plaintiff. This is no sufficient ground for a demurrer. The action cannot be dismissed, nor is the complaint demurrable if facts are alleged which constitute a cause of action of either a legal or equitable nature. Upon such facts, admitted, as by demurrer, or proved upon trial, the court, which exercises both legal and equitable...
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