Kline v. Gingery

• Decision Date: 09 February 1910
• Citation: 25 S.D. 16,124 N.W. 958
• Parties: KLINE et al. v. GINGERY.
• Court: South Dakota Supreme Court

25 S.D. 16

124 N.W. 958

KLINE et al.

v.GINGERY.

Supreme Court of South Dakota.

Feb. 9, 1910.

Appeal from Circuit Court, Jerauld County.

Action by William Kline and others against C. E. Gingery. Pending the action defendant died, and Henrietta Mae Gingery, executrix of his will, was substituted. Judgment for plaintiffs, and defendant appeals. Affirmed.J. G. Bradford, for appellant.

Preston & Hannett, for respondents.

CORSON, J.

This is an appeal by the defendant from a judgment entered in favor of the plaintiffs. The action was instituted by the plaintiffs against C. E. Gingery, since deceased, for the purpose of obtaining a decree rescinding a contract of sale of a certain stallion sold by said Gingery to the plaintiffs for breach of a written guaranty, and on the ground of fraudulent representations made by the defendant, C. E. Gingery, to the plaintiffs in regard to said stallion. Issue was joined in said action, and before the trial thereof the defendant died testate, and the present defendant was appointed by the county court as the executrix of the will of said C. E. Gingery, deceased. Upon the death of said defendant, C. E. Gingery, the plaintiffs amended their complaint, setting forth the death of the original defendant, and appointment of the present defendant as executrix who was substituted as defendant in said action. In their amended complaint the plaintiffs demanded judgment against said defendant for the rescission of the contract for the purchase price of said horse, for the return of the promissory notes given by the plaintiffs to the defendant for the purchase price of the same, that said defendant be, by the decree of the court, required to accept the return of said horse from these plaintiffs, and that they have judgment against the defendant for the sum of $600, the value of the keep and care of said horse during the time it had been in the possession of the plaintiffs. The court found the facts in favor of the plaintiffs, and states as its conclusion of law that the plaintiffs are entitled to a decree of the court rescinding said contract; that the notes and purchase price of said stallion be returned to the plaintiffs properly canceled, and if any part of said notes shall have been paid, the amount thereof be returned to the party having paid the same, upon the return of said horse to the defendant; that the plaintiffs are entitled to recover from the defendant the sum of $310 to reimburse them for the reasonable costs of keep and feeding the same, and that said sum of $310 be made a lien upon the said horse until the same is paid; that if the defendant fails to return said notes and cash received for the purchase price of said horse within 30 days after the entry of said decree and service of a copy thereof upon attorneys for defendant, then said plaintiffs shall recover of said defendant the sum of $1,000, the purchase price of said horse, and the further sum of $310 for the keep and feeding of the same, and that said decree shall, by its terms, provide for the return of said horse to said defendant, and for the return of the purchase price of said horse to the plaintiffs. Judgment was thereupon entered in accordance with conclusions of the court.

It was not alleged in the amended complaint that the claim of plaintiffs was presented to the executrix, and the fact that the claim was not presented is not alleged in the answer, or found by the court. Counsel for the appellant in his brief states: “The only question in the case is whether the court could render judgment against this defendant without an allegation and proof that the claim of the plaintiffs was first presented to the executrix for approval, and rejected by her.” It is contended by the appellant that under the provisions of section 178 of the Probate Code, which provides, “No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executrix or administratrix,” the judgment cannot be sustained. It is contended, however, by the counsel for the plaintiffs that their demand in this action for a rescission of the contract and a...