Scott v. Esterbrooks

• Decision Date: 22 November 1894
• Citation: 6 S.D. 253,60 N.W. 850
• Parties: SCOTT v. ESTERBROOKS.
• Court: South Dakota Supreme Court

6 S.D. 253

60 N.W. 850

SCOTT

v.ESTERBROOKS.

Supreme Court of South Dakota.

Nov. 22, 1894.

Syllabus by the Court.

Under section 4927, Comp. Laws, a complaint in an action upon a promissory note by payee against maker is sufficient if it set out a copy of the note, and state that there is due plaintiff thereon from the adverse party a specified sum, which plaintiff claims.

Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.

Action by Joseph Scott, as administrator of the estate of Thomas H. Breen, deceased, against Minnie Esterbrooks, on an instrument for the payment of money only. From judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.H. E. Dewey, for appellant. Frawley & Laffey, for respondent.

KELLAM, J.

Appellant's complaint in the court below was, after a formal introduction, as follows: “(1) That this action is founded on an instrument for the payment of money only, made and delivered to said Thos. H. Breen, of which the following is a copy, viz.: ‘$100.00. Lead, March 31st, 1893. Due Thos. H. Breen, on demand, one hundred dollars, on purchase price of house. Mrs. Minnie Esterbrooks.’ (2) That, before the commencement of this action, payment of the same was duly demanded of said defendant on, to wit, the 21st day of April, 1893, and at sundry times since said day. (3) That there is due to the plaintiff thereon from the defendant the sum of one hundred dollars, with interest from the said 21st day of April, 1893, which he claims. (4) That thereafter, and before the commencement of this action, the said Thos. H. Breen died, intestate; and that on the 28th day of July, 1893, letters of administration upon the estate of said Thos. H. Breen, deceased, were duly issued by the county court of said county and state, appointing this plaintiff administrator of all the goods, chattels, and credits which were of said deceased; and that this plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of said office. Wherefore the plaintiff demands judgment for one hundred dollars, and interest, besides costs.” Respondent demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. Appellant applied to the court for judgment, on the ground that the demurrer was frivolous. On hearing, the court denied the application for judgment, and sustained the demurrer. The plaintiff appeals.

The last clause of section 4927, Comp. Laws, provides that “in an action *** founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party, a specified sum which he claims.” The right of the legislature to prescribe a form of pleading in any class of cases cannot be doubted. They have done so here, and we are unable by close analysis and comparison to discover any condition or fact required by the statute which is not shown by the complaint. This section was taken from New York, and was section 162 of the original Code of that state. It had been construed and its legal effect declared by the highest court of that state, prior to its adoption here. The present corresponding section of that Code is somewhat different in phraseology; whether different in consequences is not material now and here. Under the old section, a complaint like this would have been held good in New York. In Marshall v. Rockwood, 12 How. Pr. 454, the court says: “In such a case [promissory note, payee against maker] the giving of a copy of the instrument, with an allegation that a specified sum is due thereon, is made equivalent to an allegation of the execution and delivery of such instrument by the defendant to the plaintiff.” Bank v. Jacobson, 15 Abb. Pr. 218, was an action on a promissory note. The complaint alleged no other facts than are stated in this complaint. It was held good as against demurrer, the court saying in its opinion: “The pleader is protected by an authority higher than the court.” In Prindle v. Caruthers, 15 N. Y. 425, the court of appeals construed the section quoted as creating an...