Anderson v. Chilson

• Citation: 8 S.D. 64,65 N.W. 435
• Parties: ANDERSON v. CHILSON et al.
• Decision Date: 12 December 1895
• Court: South Dakota Supreme Court

8 S.D. 64

65 N.W. 435

ANDERSON

v.CHILSON et al.

Supreme Court of South Dakota.

Dec. 12, 1895.

Syllabus by the Court.

1. Although the common-law forms have been abolished, an equitable action under the Code system is clearly distinguishable from one at law.

2. Where a complaint states a cause of action clearly equitable in its character, and contains a prayer for an accounting with numerous persons charged in a fiduciary capacity, a judgment at law entirely inconsistent therewith, established by the evidence against one of the defendants only, for damages upon a breach of contract to pay a stipulated sum of money, cannot be entered, and the complaint will be dismissed.

Appeal from circuit court, Day county; A. W. Campbell, Judge.

Action by C. R. Anderson against Ole A. Chilson and others for an accounting. From a judgment of dismissal, plaintiff appeals. Affirmed.F. B. Wright and F. E. Campbell, for appellant. John H. Lund, Josephus Alley, and Huntington & Orland, for respondents.

FULLER, J.

As disclosed by the complaint, the substantive facts upon which plaintiff prays for an accounting with all the defendants are as follows: Plaintiff was the administrator of an estate, and defendants were sureties upon his bond. Defendants, being called upon to make good an apparent shortage of $1,200, as shown at that time by plaintiff's accounts with the estate, demanded and received from said plaintiff, to hold only as security for any money which they might be required to advance on account of such deficiency, a certain stock of general merchandise, of the alleged value of $1,338, owned by a copartnership of which plaintiff was a member, and which was turned over by plaintiff with the consent of his copartner, together with plaintiff's undivided one-half interest in various other items of personal property described in the complaint, and aggregating in value the sum of $4,000. That, upon the delivery of said property to defendants, nothing whatever was paid, and the only purpose thereof and consideration therefor were to secure and protect the defendants against liability upon said bond. That plaintiff was never $1,200 short in his accounts as administrator; and that, *** at a final settlement of all matters and proceedings relating to said estate, the probate court found that $458.88 was the exact sum required to balance said accounts, and relieve plaintiff and the defendants from all further liability upon said administrator's bond. That said sum of $458.88 was the only amount ever paid by the defendants in the capacity of sureties, or otherwise in plaintiff's behalf; and that their liability upon said bond has ceased, and plaintiff, as administrator, has been discharged. The complaint concludes as follows: “Plaintiff further alleges that said defendants have taken all of the goods, wares, and merchandise, book accounts, notes, live stock, and coal, hereinbefore named, into their own possession, and have sold and disposed of the same for their own use and benefit. Plaintiff further alleges that the defendants have collected, as plaintiff is informed and believes, nearly the entire amount of the book accounts and notes heretofore named. Wherefore plaintiff prays judgment that the defendants be compelled to account with him touching the premises, and ordered to pay over to plaintiff any balance found in their hands coming to him, and for such other and further relief as to the court may seem proper, together with costs and disbursements of this suit.”

For a determination of the issues of law and fact presented by the pleadings, the case was referred to H. H. Potter, Esq., and the evidence offered and received under the separate answer of the defendant Chilson amply sustains and justifies the following findings of fact and conclusions of law, upon which was entered the judgment of dismissal, and for costs against plaintiff, and in favor of defendants, from...