Ferguson v. Yunt
| Decision Date | 03 April 1900 |
| Citation | 13 S.D. 120,82 N.W. 509 |
| Parties | FERGUSON v. YUNT. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.
Action by W. I. Ferguson against S. S. Yunt to recover upon a bond. From a judgment for plaintiff, defendant appeals. Reversed.Robertson & Dougherty, for appellant. J. Q. Adams, for respondent.
This is an action upon a bond, a copy of which was annexed to the complaint as an exhibit, and made a part thereof, and which contains the following condition: “The condition of the above bond is that whereas, the said F. H. Bortle acted as stakeholder on a bet made on a horse race by said Stephen S. Yunt and Wm. Hull, and the said Wm. Hull has demanded of the said Bortle the payment to him of fifty (50) dollars, the amount of his bet; now, if the said Bortle shall pay to said Stephen S. Yunt the full amount of said stake, to wit, one hundred dollars, we, the above bounden, agree to fully indemnify said Bortle for said amount, and for all costs to which he may be put by reason thereof.” This bond was executed by the defendant, Yunt, as principal, and the plaintiff and one Magness as sureties. It is alleged in the complaint that Ferguson, the plaintiff, was compelled to pay the sum of $73.39 on account of said principal, and this action is brought to recover said sum. The defendant interposed a demurrer to the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court, to which ruling the defendant excepted. An answer was filed, and, upon the case being called for trial, the defendant objected to the introduction of any evidence under the complaint, upon the ground stated in the demurrer. This objection was overruled, and the defendant excepted. Findings and judgment being in favor of the plaintiff, the defendant has appealed.
It is contended on the part of the appellant that it appears upon the face of the complaint, the bond constituting a part thereof, that the transaction for which the bond was given was illegal, being in violation of section 6602, Comp. Laws, which reads as folliws: “All racing or trial of speed between horses or animals for any bet, stake or reward, except such as is allowed by special laws, is a common nuisance, and every person acting or aiding therein, or making or being interested in any such bet, stake or reward, is guilty of a misdemeanor; and in addition to the penalty prescribed therefor, he forfeits all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.”
It is insisted on the part of the respondent that Bortle, as stakeholder, did not violate the statute, and that he had a right to require security upon paying over the money bet upon the race to the defendant, Yunt, and that Yunt was legally liable thereon, as was also Ferguson as surety. We cannot agree with counsel for respondent in this contention. It will be noticed that by the section of the statute referred to every person acting or aiding therein, as well as the parties making or being interested in any bet, stake, or reward, is declared to be guilty of a misdemeanor. In our view, the party who acts as stakeholder must be regarded as acting or aiding in the acts forbidden by the statute. It will be further noticed that by this section it is provided that any sum of money or other property betted or staked upon the result of the race is forfeited. Bortle, therefore, in paying over the money to Yunt which had been bet upon the race, clearly acted in violation of the statute. Yunt had no legal right to the money, and Bortle had no legal right to require any indemnity for doing the illegal act of paying over the money. The whole transaction, therefore, was clearly in violation of the statute, and no right accrued thereunder to Bortle or to the plaintiff which he could enforce in the courts.
It is further insisted on the part of the respondent that that section was, in effect, repealed by chapter 155, Sess. Laws 1893; but in this we think the respondent is in error. That act is entitled “An act to protect the breeders of trotting and pacing horses and fair associations in the state of South Dakota.” The act seems to assume that it is lawful for any agricultural or other society, association, or persons to conduct races for the purpose of competition in speed, and to give a purse, prize, premium, stake, or sweepstake therefor; but it does not, in terms or in effect, repeal section 6602, so far as the same prohibits betting on races. The evident object and purpose of section 6602 are to...
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