Pierson v. Minnehaha Cnty.
| Decision Date | 26 November 1910 |
| Citation | 26 S.D. 462,128 N.W. 616 |
| Parties | PIERSON et al. v. MINNEHAHA COUNTY. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Minnehaha County.
Action by E. E. Pierson and another against Minnehaha County, S. D. On motion to dismiss defendant's appeal from an order overruling a demurrer to the complaint. Appeal dismissed.George J. Danforth, State's Atty., Park Davis, and Bailey & Voorhees, for appellant.
Sam H. Wright, for respondents.
This case is before us on a motion to dismiss the appeal of the defendant from an order overruling the defendant's demurrer to the complaint. An order to show cause was issued why the appellant should not have further time in which to serve its brief on its appeal taken from the order overruling the demurrer. The plaintiffs made a counter motion, fixing the same time and place for hearing the motion to dismiss the appeal upon two grounds: (1) That the brief of counsel for appellant was not served within the time prescribed by rules 7 and 10 of this court; and (2) upon the ground that subsequently to the taking of the appeal from the order overruling the demurrer the appellant filed an answer in the circuit court of Minnehaha county in the action, and thereby waived its appeal.
It is disclosed by the abstract and motion papers upon which the respondent relies that a demurrer was interposed to the complaint by the defendant on the ground that the complaint did not state facts sufficient to constitute a cause of action; that on the 30th day of March, A. D. 1910, the issue of law raised by said demurrer came on regularly for hearing before the circuit court of Minnehaha county, the plaintiffs and defendant appearing by their respective attorneys, and that on the 15th day of April, 1910, the court made an order overruling defendant's demurrer, which said order was duly filed and recorded on the 18th day of the same month, which order, after the title, is as follows: It further appears that on the 5th day of May the defendant appealed from said order of the Supreme Court by serving notice of appeal upon the attorney for plaintiff and upon the clerk of the circuit court. It further appears that thereafter, on the 12th day of May, the defendant served and filed an answer to the complaint in the circuit court of Minnehaha county denying the allegations of the plaintiffs' complaint.
It is contended by the plaintiffs that, as the defendant served and filed an answer after an appeal was taken by it to the Supreme Court, the defendant thereby waived its right of appeal, and the same should be dismissed. In this contention we are of the opinion that the plaintiffs are in the right. The appeal should be dismissed on the grounds that appellant has waived the point sought to have reviewed by such appeal. It is an elementary proposition that a party cannot both demur and answer to the same parts of the complaint at one and the same time, and that pleading over by answer, after having demurred, waives the demurrer, unless there is an express statute as there is in some states, expressly permitting a demurrer and answer to be interposed at the same time. 39 Cent. Dig. tit. “Pleadings,” §§ 522-524; 31 Cyc. 343; R. Waits, Prac. 635; Brady v. Donnelly, 1 N. Y. 126; Sutherland on Pl. & Prac. § 665; 6 Am. & Eng. Ency. Pl. & Pr. 381. There is nothing in our statute...
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