Haugen v. Peterson

• Citation: 260 N.W. 826,63 S.D. 492
• Decision Date: 20 May 1935
• Docket Number: 7746.
• Parties: HAUGEN et al. v. PETERSON et al.
• Court: Supreme Court of South Dakota

260 N.W. 826

63 S.D. 492

HAUGEN et al. v. PETERSON et al.

No. 7746.

Supreme Court of South Dakota

May 20, 1935

Appeal from Circuit Court, Turner County; John T. Medin, Judge.

Action by Helena Haugen and others against Robert Peterson and another. From an order sustaining demurrer to the complaint plaintiffs appeal.

Affirmed.

Danforth & Davenport, of Sioux Falls, for appellants.

Everett A. Bogue, of Parker, for respondents.

CAMPBELL Judge.

This is a further proceeding in a matter which has been three times previously before this court. See Haugen v. Larson (1932) 60 S.D. 438, 244 N.W. 654; Mee v. Circuit Court (1933) 61 S.D. 240, 248 N.W. 198; In re Vasgaard's Estate (Peterson v. Haugen), 253 N.W. 453 (1934 S. D.). In the opinion last cited, all material facts are fully set out, and reference is thereto made for a statement of all facts essential to a complete understanding of the situation.

The personal property left by the decedent, Endre J. Vasgaard was in the physical possession of the First National Bank of Centerville in Turner County, South Dakota. By its opinion in Peterson v. Haugen last above cited, this court held that the will of Vasgaard should be admitted to probate pursuant to the application of Robert Peterson, the surviving executor named therein. The will was duly admitted to probate in the county court in Minnehaha county, but, because of the pendency of the appeal in Peterson v. Haugen, the executor was not permitted to qualify. Petition for rehearing in the appeal of Peterson v. Haugen was denied by this court on April 6, 1934, and on April 14, 1934, Peterson duly qualified in the county court as executor.

Meantime however, on April 9, 1934, the present plaintiffs (who were the defendants in the case of Peterson v. Haugen and who constitute all the legatees, devisees, and heirs at law of Endre J. Vasgaard and who are all sui juris) instituted the present action in the circuit court of Turner county, S.D Plaintiffs in their complaint plead the facts relating to the will of Endre J. Vasgaard; his death; the contract of family settlement as set out verbatim in Peterson v. Haugen, supra; the admission of the will to probate in the county court of Minnehaha county, S. D.; the physical possession of the personal property left by decedent in defendant bank; that defendant Peterson is about to qualify as executor and take over or demand said personal property; and pray for relief as follows: "Wherefore, the Plaintiffs pray Judgment against the Defendant Peterson that he be perpetually restrained and enjoined by the Court from taking possession of the property referred to in the Complaint and from making any claim thereto adverse to the Plaintiffs herein; that a temporary Injunction issue in this proceedings restraining and enjoining said Defendant Peterson from taking possession of said property or making any claim thereto during the pendency of this proceedings and that the Defendant Bank be likewise restrained and enjoined during the pendency of this proceedings from in any manner delivering any of said property to the Defendant Peterson and that upon the determination of this proceedings, it be adjudged and decreed that all of said property is the property of the Plaintiffs herein and that the Defendant Bank be directed to deliver over to the Plaintiffs herein any and all of the property that it may have in its custody or possession referred to in this proceedings and...