Brady v. Kreuger

• Decision Date: 18 April 1896
• Citation: 66 N.W. 1083,8 S.D. 464
• Parties: BRADY, Plaintiff and respondent, v. KREUGER, and Minnie Nidrow (formerly Minnie Kipp) Defendants and appellants.
• Court: South Dakota Supreme Court

8 S.D. 464

66 N.W. 1083

59 AmStRep 771 (1896)

BRADY, Plaintiff and respondent, v. KREUGER, and Minnie Nidrow (formerly Minnie Kipp)

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Campbell County, SD

Hon. Loring E. Gaffy, Judge

Affirmed

H. J. Kreuger, C. H. Barron, Albert Gunderson

Attorneys for appellants.

John H. Perry, Horner & Stewart

Attorneys for respondent.

Opinion filed April 18, 1896

CORSON, P. J.

This was an action to recover the possession of real property, and damages for its detention. The action was originally commenced against Kreuger alone, but subsequently Minnie Nidrow (formerly Minnie Kipp) was made a party defendant by an amendment to the answer. Kreuger in his answer, denies the ownership of the plaintiff, and alleges, in substance, that Minnie Kipp was at all times mentioned in the complaint in the lawful and peaceable possession of the second story of the building on said premises, by virtue of a homestead right thereto as the wife of John Kipp, and that defendant was in the possession of the same as her agent. The facts, as disclosed by the evidence, briefly stated, are as follows: John H. Kipp and Samuel O. Overby, prior to April 11, 1893, were partners in a general retail mercantile business, under the firm name of Kipp & Overby. The second story of the building in which this mercantile business was carried on was occupied by Kipp and family and said Overby as a residence. On the last-mentioned day, Overby conveyed his interest in the real and personal property of the partnership to plaintiff, Brady, and the business was continued under the firm name of Kipp & Brady until November, 1893, when Brady purchased Kipp’s interest in the partnership. The lots and building thereon used as the store and dwelling house were partnership property. At the time Kipp sold his interest to Brady, Kipp and his family still occupied the said second story of the store building, but the deed to the real property was not signed by Mrs. Kipp. In December, 1893, a decree of divorce was granted dissolving the marriage between Mr. and Mrs. Kipp; but she continued to occupy the second story of the store until March, 1894, when she, desiring to visit friends in the east, requested Kreuger to occupy the rooms for her in her absence, and he was so occupying them when this action was commenced. At the close of all the evidence the court, on motion of plaintiff, directed a verdict in his favor, and from the judgment entered therein the defendants appeal.

At the commencement of the trial, counsel for the defendants objected to any evidence being given under the complaint upon the grounds (1) that the court had no jurisdiction; (2) because the complaint did not state facts sufficient to constitute cause of action. This objection was overruled, and the defendants duly excepted. This ruling was clearly correct, as the action is one to recover the possession of real property, and damages for withholding the same, and contains all the averments essential to a good complaint in such an action. The plaintiff alleges that on November 9, 1893, he was the owner, and was seised in fee, of the premises, describing them fully; that on March 1, 1894, and while the plaintiff was such owner and seised and possessed of the said premises, the defendants unlawfully entered upon the second story of said premises, and ousted and ejected the plaintiff therefrom, and ever since have withheld the possession of the same from the plaintiff, to his damage in the sum of $200. It alleges that the value of the rents and profits of said premises so unlawfully withheld from March 1, 1894, is $200, and plaintiff demands judgment for the possession, and $200 damages. The appellants contend that the action was one in forcible entry and detainer, of which the circuit court has not original jurisdiction, but only appellate jurisdiction. But in this contention the counsel are clearly in error. The complaint is sufficient as a complaint for the recovery of the possession of real property, but fails to allege several essential facts necessary to constitute an action for forcible entry and detainer. Payne v. Treadwell, 16 Cal. 246; § 6073, Comp. Laws.

At the close of the evidence on the part of the plaintiff, the defendants moved the court to direct a verdict for the defendants. This was denied, and exception taken; but as the defendants proceeded to introduce evidence on the part of the defense, and subsequently moved for a direction of a verdict at. the close of all the evidence, this exception will not be further considered.

At the close of all the evidence the plaintiff and defendants moved for a direction of the verdict. The motion of the plaintiff will be considered first in order, as its disposition will determine the motion of the defendants. The counsel for the respondent raises a preliminary and that is that this court cannot review the evidence, for the reason that the bill of exceptions does not contain any specification of the particulars in which the evidence is alleged to be insufficient to support the verdict. The respondent has filed an additional abstract, in which he asserts that the bill of exceptions contains no statement of the particulars in which the evidence is alleged to be insufficient, and as this is not denied by the appellants, it will be taken to be true. But the counsel is clearly in error in his contention. The statement or bill of exceptions is only required to specify the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decisioh when one of the grounds of a motion for a new trial is the insufficiency of the evidence to justify the verdict or decision. Sec. 5090, Comp. Laws. A motion to direct a verdict presents a question of law, which requires...