Anderson v. Alseth

Citations

• 6 S.D. 566
• 62 N.W. 435
• 1895 S.D. LEXIS 154

Syllabus

<p>,1. An allegation in a complaint for a- threshing lien, under the provisions of. chapter 88, Laws 1889, that “the said. F. (plaintiff’s assignor) duly executed his claim for a lien upon the said grain hereinbefore described, for threshing the same, * * * and caused the said claim to be filed in the office of the register of deeds of Kingsbury county,” is sufficient, as against an objection taken at the trial that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>2. When such an objection to the complaint is taken at the trial after an issue of fact has been raised by the answer, greater latitude of presumption may be indulged in to sustain the complaint than when the objec- . tion is taken by demurrer interposed at the proper time; and if there is not an entire absence of a necessary allegation, but simply a defective statement of the facts required to be stated, the complaint will ordinarily be held sufficient, as against an objection to it taken at the trial.</p> <p>' 3. An objection to an assignment of a lien claim that it appears upon its 'face to have been executed before the same was filed, where it appears that the lien was made out and verified before the assignment, and was filed within the proper time, was properly overruled.</p> <p>4. A counterclaim in an answer in which it is alleged that the plaintiff is indebted to the defendant is not supported by evidence that plaintiff’s assignor was indebted to the defendant,* and an objection to such evidence was properly sustained by the court.</p> <p>5. * Findings of the court must be sufficient to support the judgment; and when, in an action under the provisions of chapter 88, Laws 1889, the court failed to find that the plaintiff’s assignor owned and operated the threshing machine with which the grain was threshed, either in terms or substance, and that the lien filed contained the statement of facts required by section 3 of the act, such findings are insufficient to sust