Jerome v. Rust
| Decision Date | 26 June 1909 |
| Citation | 122 N.W. 344,23 S.D. 409 |
| Parties | JEROME ET AL. v. RUST ET AL. |
| Court | South Dakota Supreme Court |
On rehearing. Rehearing granted. Former opinion overruled, and judgment affirmed.
For former opinion, see 21 S.D. 191, 110 N.W. 780.
This cause is one before the court upon a rehearing; the former opinion of this court being found in 21 S.D. 191, 110 N.W 780. The complaint herein alleges the following facts: The plaintiff Jerome obtained a judgment against one H. W. Rust in the county court of Minnehaha county. After such judgment was obtained, Jerome assigned the same to the plaintiffs Muller and Conway as security for an indebtedness. After such assignment the said defendant Rust appealed said cause to this court, and upon such appeal gave the usual bond upon appeal, conditioned both for the payment of the judgment, and also for the payment of the costs on the appeal, limiting the last undertaking to the sum of $250. This undertaking on appeal was given by said Rust as principal, with the defendant Western Surety Company as surety. Thereafter this court affirmed the appeal from said county court, and judgment for costs was entered in such county court. Execution was issued upon the original county court judgment and also for the cost judgment, and returned unsatisfied. Then the plaintiffs, Jerome, Muller, and Conway, bring this action upon such undertaking on appeal, and in their prayer for relief they ask judgment for full amount of the two judgments above mentioned. The appellant Western Surety Company demurred to said complaint, which demurrer was overruled, and it is from such order overruling demurrer that appellant appeals. In the former opinion of this court Justice Corson reversed the order overruling such demurrer.
The demurrer stated three grounds, but appellant is relying, upon this appeal, upon one of these grounds only, to wit, that several causes of action have been improperly united. We are inclined to the view that the trial court was correct in overruling such demurrer, and that the former judgment of this court cannot be sustained. It is the theory of the respondents that there is only one cause of action alleged, and furthermore that, even if it could be held that, owing to the fact that the undertaking is security for both judgments, there are two causes of action alleged, one upon each judgment, yet under the assignment to Muller and Conway they take the same interest in the cost judgment that they do in the original county court judgment, and that therefore the two causes of action would be properly united. This not being a demurrer on ground of misjoinder of parties, we do not find it necessary to pass on this last contention, and do not wish to intimate any view thereon, but we are of the opinion that the respondent is right in the first contention, namely, that but one cause of action is set forth in the complaint.
Justice Corson in the former opinion of this court takes the view that the respondents Muller and Conway have no interest in the cost judgment, and, further, as we understand his views that there are two separate causes of action. He cites, as sustaining his view, Nagel et al. v. Lutz et al., 41 A.D. 193, 58 N.Y.S. 816. By referring to his opinion, or to such case itself, as reported, it will be found that this was an action brought by Nagel and one Callahan against Lutz and others upon an instrument in words and figures as follows: ...
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