Jacquish v. Deming

• Decision Date: 26 March 1918
• Docket Number: No. 4231.,4231.
• Citation: 167 N.W. 157,40 S.D. 265
• Parties: JACQUISH v. DEMING et al.
• Court: South Dakota Supreme Court

40 S.D. 265

167 N.W. 157

JACQUISH

v.DEMING et al.

No. 4231.

Supreme Court of South Dakota.

March 26, 1918.

Appeal from Circuit Court, Sanborn County; Frank B. Smith, Judge.

Action by Arstein Jacquish against William M. Deming and others. From an order sustaining a demurrer to the complaint, the plaintiff appeals. Reversed.Null & Royhl, of Huron, for appellant.

Baldwin & Lyons, of Howard, for respondents.

SMITH, J.

Appeal from an order sustaining defendants' demurrer to plaintiff's complaint. Briefly stated, the complaint alleges that the plaintiff and the defendants are the sole heirs at law of one Rachael J. Deming, who died about January 12, 1909, the owner of certain real estate in Sanborn county, and of certain money, cattle, horses, and personal property, of the value of about $1,500; that upon the death of Rachael J. Deming the defendant William M. Deming took possession of all of said personal property and converted the same to his own use, except that he applied a portion thereof to payment of the expenses of the last sickness and funeral expenses of Rachael J. Deming; that he has continuously lived upon, farmed, and cropped said lands, and appropriated the entire proceeds arising therefrom to his own use; that the reasonable value of the use of said lands, from January 12, 1909, to the beginning of this suit, is the sum of $2,000; that at the time of her death Rachael J. Deming did not owe any debts, and that no proceedings were ever had for the probate of her said estate; that the defendant William M. Deming has never accounted for or paid over to plaintiff any part of the aforesaid money or personal property, and has never accounted for or paid over to her any rents and profits arising from said lands, or for the use thereof; that the defendants Paulson, Rasely, and Johnson have or claim some right, title, or interest in and to said lands, but that said right, title, or interest is inferior to the title of this plaintiff, who is the owner, by inheritance, of an undivided one-fifth of said lands and personal property. Plaintiff prays that she be awarded a decree establishing her rights as the owner of an undivided one-fifth of said lands; that the right, title, or interest of all defendants in said lands be determined, and that the right, title, or interest of the defendants Paulson, Rasely, and Johnson be adjudged inferior to the title of this plaintiff; that said William M. Deming be required to account for the personal property above mentioned and for the use of said lands, and that the lands be sold and the proceeds thereof brought into court, and that the defendant William M. Deming be required to account for the personal property hereinbefore mentioned and for the use of said lands; that the money and property referred to be distributed among the several parties to this suit according to their rights and proportion to their interests therein. Defendant demurs, on the ground that the facts stated in the complaint do not constitute a cause of action, that the court had no jurisdiction of the subject of the action, and the plaintiff has no legal capacity to sue.

[1] Appellant's contention is that the circuit court is vested with equity powers equivalent to those possessed by the federal courts in the matter of the estates of deceased persons, conceding,...