Crilly v. Morris

• Decision Date: 12 September 1944
• Docket Number: 8727.
• Citation: 15 N.W.2d 742,70 S.D. 153
• Parties: CRILLY et al. (REID, Intervener) v. MORRIS et al.
• Court: South Dakota Supreme Court

15 N.W.2d 742

70 S.D. 153

CRILLY et al. (REID, Intervener) v. MORRIS et al.

No. 8727.

Supreme Court of South Dakota

September 12, 1944

Thos. G. Wall, of Sturgis, for appellant.

Whiting & Wilson and H. F. Fellows, all or Rapid City, for respondent.

ROBERTS Judge.

M. A. Crilly administrator of the estate of Joanna Held, deceased commenced an action in the circuit court of Pennington County against S. Fred Morris and Isaac A. Morris to set aside three deeds and a bill of sale purporting to have been executed by decedent during her lifetime. Clara Held Reid claiming the property by reason of the status which she acquired under an alleged agreement of adoption and inheritance was permitted to intervene and join with plaintiff administrator. Thereafter, the attorneys for plaintiff, defendants and intervener Clara Held Reid stipulated: 'That those persons who claim to be heirs of the estate of Joanna Held deceased, * * * are very numerous and it may be impractical to bring them all before the Court, * * * and that the Court may therefore appoint Margaret Reithmann, who is one of said persons, to represent the interests of all, and that the said Margaret Reithmann may be joined as a plaintiff in this action and that she may answer to the complaint of the intervener for all of said persons of like interest and may represent them for all purposes throughout the trial of said action.' Margaret Riethmann answering the complaint of Clara Held Reid in intervention admitted that defendants conspired to defraud the rightful heirs of Joanna Held deceased, and to deprive them of their interest in the property involved in the action, but denied that intervener was an heir of decedent or had any interest in the property. After trial of the cause and filing of memorandum decision determining the issues in favor of intervener, Margaret Riethmann obtained permission of the court and filed a supplemental answer alleging 'that since the date of the service of this plaintiff's original answer herein this plaintiff and the intervening plaintiff, Clara Held Reid, have entered into a contract in writing by which they have agreed that the net proceeds of any recovery made on the part of the plaintiff, Margaret Riethmann, for herself and others of like interest whom she represents in this action, or by the plaintiff in intervention, Clara Held Reid, after first deducting all necessary items of costs and expenses incurred by either of said parties by way of clerk fees, officers fees, or the taking of testimony, should be divided equally between said plaintiff, Margaret Riethmann, and those whom she represents in this action, and the plaintiff in intervention, Clara Held Reid, and that each of said parties should pay her own attorney's fees from her share of said recovery.' In State v. Circuit Court of Seventh Judicial Circuit, 9 N.W.2d 699, an original proceeding in certiorari, this court held that the court below did not exceed its jurisdiction in permitting filing of the supplemental answer.

The intervening plaintiff, Clara Held Reid, thereafter, filed a reply to the supplemental answer alleging that such pleading presented issues which did not relate to those involved in this action; that there was a failure of consideration for the contract for division of net proceeds in the event of recovery; and that said intervener was induced to sign the contract by a promise, which was not fulfilled, of counsel for plaintiff administrator that he would procure the deposition of a material witness. The contract was then admitted and testimony was taken as to the circumstances under which the contract was entered into....