Davis v. Cramer

• Citation: 38 S.D. 64,159 N.W. 886
• Decision Date: 13 November 1916
• Docket Number: 4065
• Parties: J. A. DAVIS et al., Plaintiff and Appellants, v. GEO. CRAMER et al., Defendant and respondents.
• Court: South Dakota Supreme Court

38 S.D. 64, 159 N.W. 886 (1916)

J. A. DAVIS et al.,

Plaintiff and Appellants,

v. GEO. CRAMER et al.,

Defendant and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, SD

Hon. Robert B. Tripp, Judge

#4065—Reversed

Bogue & Bogue

Attorneys for Appellants.

Kirby, Kirby & Kirby

Attorneys for Respondent.

Opinion filed November 13, 1916. Rehearing denied December 5, 1916

WHITING, J.

This action was brought to contest the validity of an election held to determine whether intoxicating liquors should be sold at retail in the town of Davis. Trial was had to the court without a jury. The court rendered findings and conclusions upon which it entered judgment in favor of the defendants.

Respondents move to dismiss, the appeal because there was no evidence nor finding that appellants had capacity to initiate this contest. Without determining whether a motion to dismiss an appeal is a proper method of taking advantage of such an alleged failure of proof, we pass to a consideration of whether any proof was necessary. The complaint pleaded facts which, if true, establish plaintiffs' capacity to sue. The complaint was, therefore not subject to demurrer (section 121, C. C. P.), and defendants were, by sections 124 and 125, C. C. P., required, to take objection to the alleged incapacity of plaintiffs by answer. Their answer contained no express allegations of plaintiffs' incapacity but did contain a general denial of the allegations contained in the complaint. The authorities seem, to agree that, under section 124, supra, a general denial is not sufficient to raise any issue, and that, under section 125, supra, in absence of express allegations of incapacity, the objection of incapacity is waived. Cal. Steam. Nay. Co. v. Wright, 8 Cal. 585; Steamship Co. v. Rodgers, 21 SC 27; Dillaye v. Parks, 31 Barb. (N. Y.) 132; Waits Anno. Code, 248. In the. California decision the court says:

"The answer was a simple denial of the allegations of the complaint in general terms, except as to one point. Under the provisions of the fortieth, forty-fourth, and forty-fifth, sections of the Practice Act [our sections 121, 124 and 125, supra] the want of capacity in the plaintiff to sue should have been specially set up in the answer. The general issue is not sufficient. 1 Mass. I., 159; 6 NY 527, 197; 78 B. Mon. 481. The want of legal capacity to sue is a personal disability, and if the defendant intends to set up such a defense, he should state so distinctly. The general denial relates to the other facts alleged concerning the contract. The defense that the plaintiff has not legal capacity to sue goes to the entire action, constituting a full separate defense, and should be separately stated."

There is nothing in the record to show that the alleged defect in proof was brought to the attention of the trial court. We agree with the court in. Choctaw v. Jackson (C. C.) 182 Fed. 342, wherein, after referring to a waiver by failure to answer or demur, the court said:

"If such defect in the pleadings may be waived, certainly it might be waived in the proof, where it appears that, notwithstanding the absence of proof, the case is apparently tried on the theory that capacity to sue exists and the failure of proof is not brought to the attention of the court." The only other question presented, upon this appeal is the sufficiency of the petition upon which the election was held. The...