Coleman v. Stalnacke

• Decision Date: 20 November 1901
• Citation: 88 N.W. 107,15 S.D. 242
• Parties: COLEMAN v. STALNACKE.
• Court: South Dakota Supreme Court

88 N.W. 107

15 S.D. 242

COLEMAN v. STALNACKE.

Supreme Court of South Dakota

November 20, 1901

Appeal from circuit court, Lawrence county; Jos. B. Moore, Judge.

Action by Timothy D. Coleman against Peter Stalnacke. From a judgment for plaintiff, defendant appeals. Affirmed.

H. E Dewey, for appellant. McLaughlin & McLaughlin, for respondent.

CORSON J.

This was an action to recover the possession of a tract of land damages for its detention, and the value of the use and occupation of the same. The action was tried by the court without a jury, and, findings and judgment being in favor of the plaintiff, the defendant appeals. The appeal being from the judgment alone, the only questions presented are whether or not the pleadings and findings support the judgment.

The appellant assigns as error (1) that the complaint does not state a cause of action, for the reason that there is no allegation that the land in controversy is in Lawrence county, or even in the state of South Dakota and that the judgment is therefore void for want of jurisdiction in the court; (2) the plaintiff alleges ownership of the land, but the court failed to find that he was such owner; (3) that the court having found the title of the property to be in the United States, and not in the plaintiff, it was error to enter judgment for the plaintiff (4) that inasmuch as the defendant had entered upon the premises under a contract, had purchased the same, and paid a part of the purchase price, and made improvements upon the property, the court had no right to declare the contract forfeited, and subject defendant to the loss of the amount he had paid under the contract, and the loss of the improvements made on the property. The action was based upon a contract made between the plaintiff, Coleman, and the defendant, by which Coleman agreed to sell to the defendant the premises described upon the payment of $600; $100 of it to be paid in September, 1895; $250, September, 1896; $250, September 1897; making in all $600. It is alleged in the complaint that the defendant had failed and neglected to pay the amount agreed upon, and had only paid $276, the last payment being made in December, 1898; that before the commencement of this action the plaintiff demanded possession of the premises; and that defendant refused to surrender the same. Plaintiff further alleged that he was the owner and entitled to immediate possession of the premises before described. The defendant, in his answer, denied plaintiff's alleged ownership of the land, as follows: "Defendant alleges that the plaintiff is not, and was not on March 30, 1895, the owner of the premises described in the complaint, or entitled to the possession of the same, but that the said premises were on said date unappropriated public lands of the United States." And the defendant alleges that after making the agreement he made improvements on the property to the value of several hundred dollars; also that he had been dispossessed of a portion of the premises. Upon the trial the court found the facts substantially as alleged in the complaint, and against the defendant as to the allegation that he had been dispossessed of a portion of the premises. The land is described in the complaint as a part of the Bulldog ranch, lying and adjoining the Burlington & Missouri River Railroad, containing about 100 acres; being the same premises occupied by John Loomer in 1894, lying about halfway between the Bulldog ranch and Dumont. The action was brought in the circuit court of Lawrence county; and there not having been, so far as the record discloses, any motion made to change the place of trial to any other county, this court will presume, in support of the judgment, that the action was instituted in...