McCook County v. Kammoss

• Decision Date: 28 October 1895
• Parties: McCOOK COUNTY, Plaintiff and respondent, v. KAMMOSS et al., Defendant and appellant.
• Court: South Dakota Supreme Court

7 S.D. 558

64 N.W. 1123

McCOOK COUNTY, Plaintiff and respondent, v. KAMMOSS et al.,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge

Affirmed

A. C. Biernatzki.

Attorney for appellants.

P. W. Scanlan

Attorney for respondent.

Opinion filed Oct. 28, 1895

KELLAM, J.

McCook county brought this action to recover from appellants $100, paid by the county for the support and maintenance of their indigent father, and for a judgment requiring them to contribute to his future support. This appeal is from an order overruling a demurrer to the complaint. The grounds of demurrer were: First, that plaintiff has not legal capacity to sue; second, that several causes of action have been improperly united; and, third, that the complaint does not state facts constituting a cause of action.

There is no merit in the first ground. The statute expressly authorizes a county to sue (section 572, Comp. Laws). The second ground will be noticed after the third is diposed of.

Does the complaint state facts sufficient to constitute a cause of action in favor of the county against the appellant? Section 2612 of the Compiled Laws is as follows:

“It is the duty of the father, the mother and the children of any poor person, who is unable to maintain himself by work, to maintain such person to the extent of their ability.”

This provision innovates the common-law rule, by imposing upon children, to the extent of their ability, the duty of maintaining their poor and helpless parents. The statute declares the duty of such children to support such parents as expressly and unequivocally as the common-law declares the duty of parents to support their minor children. Appellants contend that this statute declares only a moral duty, for it provides no means for its enforcement. This may be true so far as future support is concerned, but the general law affords the same means for compelling payment for necessary support by an adult child who disregards this imposed duty as it does in the case of a neglectful father. The duty rests upon the child, but in consequence of his neglect, the statute humanely requires the county to provide such support. The county does not act officiously, but under the coercion of the law, and supplies the support which the son or daughter was under obligation to supply. The duty to support being by law put upon the child, he is liable upon the same principles that the...