Greeley v. Winsor

• Decision Date: 03 June 1892
• Citation: 52 N.W. 674,3 S.D. 138
• Parties: Greeley v. Winsor et al.
• Court: South Dakota Supreme Court

3 S.D. 138

52 N.W. 674

Greeley

v.Winsor et al.

Supreme Court of South Dakota.

June 3, 1892.

Syllabus by the Court.

When in an action a demurrer to the complaint has been sustained, and judgment entered dismissing the complaint, it is error to allow plaintiff to serve and file an amended complaint, without first setting aside or vacating the judgment of dismissal.

Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.

Action by Charles A. Greeley against C. H. Winsor, L. S. Sweezey, William Baum, and M. Gerin. Judgment for defendants on demurrer to the complaint. From an order allowing plaintiff to serve and file an amended complaint, defendants appeal. Reversed.Winsor & Kittredge and W. C. Fawcett, for appellants. Wynn & Nock, for respondent.

BENNETT, J.

The above-entitled action was tried by the court below upon a demurrer interposed to the complaint by the defendants, which demurrer was overruled, and defendants appealed. The decision of the lower court was reversed, and a judgment was rendered directing the circuit court to sustain the demurrer, and in addition adjudged that the defendants recover the sum of $150.60, the costs of the appeal. A remittitur was sent down to the circuit court, ordering “that the case be, and is hereby, remanded to the circuit court for further proceedings according to law and the judgment of this court.” On the day of its reception the remittitur was filed in the office of the clerk of the court, and the defendants caused a judgment to be entered in the court below, as follows: “It is ordered and adjudged that the said judgment of said supreme court be, and the same is hereby, made the judgment of this court, and that the said demurrer be, and the same is hereby, sustained, and that the plaintiff's complaint herein be, and the same is hereby, dismissed.” An execution was issued for the collection of the costs upon the appeal, which execution was returned fully satisfied. Subsequent to the return of the execution the plaintiff served a notice upon the defendants of a motion for leave to serve an amended complaint. On the day of the hearing of the motion the court made an order granting the plaintiff leave to serve his proposed amended complaint. From this order the defendants appeal.

The only question in the case is whether an amended complaint in an action can be filed when the original complaint has been dismissed, without an order setting aside or vacating the judgment of dismissal. The judgment entered in the case at bar was “that the plaintiff's complaint herein be, and the same is hereby, dismissed.” Then follows a judgment for costs. The complaint being dismissed, there...