Fanton v. Byrum

• Decision Date: 02 November 1910
• Citation: 128 N.W. 325,26 S.D. 366
• Parties: FANTON v. BYRUM.
• Court: South Dakota Supreme Court

128 N.W. 325

26 S.D. 366

FANTON v. BYRUM.

Supreme Court of South Dakota

November 2, 1910

Appeal from Circuit Court, Sully County.

Action by Edwin F. Fanton against Charles Byrum. Judgment for the plaintiff, and defendant appeals. Affirmed.

Matthew W. Murphy and A. C. Byrum, for appellant.

Gaffy & Stephens, for respondent.

SMITH J.

Appeal from the circuit court of Sully county. Respondent, Edwin F Fanton, brought an action in justices' court, alleging in his complaint that on the 1st day of April, 1907, he entered into a verbal contract with defendant, appellant here whereby the plaintiff hired his minor son, John Fanton, to the defendant for a period of eight months at the rate of $27 per month; that said John Fanton worked as a farm hand under said contract for the full period of eight months; and that there is due and remaining unpaid for said services the sum of $99.98. The summons in said action was personally served on the defendant December 26, 1907, and was returnable on the 28th of December, 1907. On the return day of the summons, J W. Slater appeared as attorney for plaintiff, and James Temmey, appearing specially for defendant, asked a continuance of the trial until January 2d, and by consent of both parties the cause was set down for trial on that date. At the time set, the defendant appeared specially by his attorneys, James Temmey and A. G. Brower, and "filed written objections to the jurisdiction of the justice," and asked that the case be dismissed, for the reason that the case was adjourned without issue being joined and for the further reason that the special appearance of the defendant was not sufficient to give the justice jurisdiction of the defendant. Motion overruled and exception taken. The defendant, Byrum, thereupon filed his answer to the complaint, admitting that "John Fanton worked for defendant for a period after the 1st day of April, 1907, but alleging that he performed his work, labor and services in such a negligent and careless way that his services were of no value to this defendant but were an injury. Defendant, further answering, denies each and every allegation of the complaint except as above admitted. The answer further alleges by way of counterclaim that said John Fanton is the minor son of plaintiff, and performed the services for which plaintiff seeks to recover in this action that on the 5th day of November, 1907, said minor set on fire certain prairie lands, which fire destroyed sheep, hay, and straw belonging to the defendant, to his damage in the sum of $95. For a further counterclaim defendant alleges that said John Fanton, while in the employment of defendant, being in charge of defendant's team on two occasions, negligently and carelessly handled the same, allowing them to run away, causing damage to the team in the sum of $5 which has not been paid. Plaintiff filed a demurrer to each of these counterclaims, on the ground that the answer does not state facts sufficient to constitute a cause of action against the plaintiff as to either of the counterclaims. The justice sustained the demurrer as to the first of the two counterclaims to which ruling the defendant excepted. Upon the trial the defendant offered to prove by witnesses that the minor son of the plaintiff, while performing services under the contract made between plaintiff and defendant, set on fire prairie land, which fire destroyed property described in defendant's answer to the defendant's damage in the sum of $100, "for the purpose of showing that the services were of no value to the defendant." Plaintiff objected to this evidence for the reason that it was incompetent; the court having sustained the plaintiff's demurrer to that counterclaim. The court sustained this objection, to which defendant excepted. So far as the record discloses, no evidence was offered by defendant under the second counterclaim, and the jury returned a verdict for plaintiff in the sum of $99.98, upon which the justice entered judgment, together with costs, amounting to the sum of $165.03. Defendant thereupon appealed to the circuit court of Sully county upon a statement of the case embodying substantially the foregoing facts, and upon such appeal the circuit court affirmed...