Bem v. Shoemaker

Citations

• 7 S.D. 510
• 64 N.W. 544
• 1895 S.D. LEXIS 109

Syllabus

<p>1. A complaint is not detnu-rable, on the ground that “plaintiffs have no legal capacity to sue,” unless it shows on its face that such plaintiffs are under some legal disability that would prevent them from bringing an action in their own names.</p> <p>2. In such case the test is, not whether they can maintain the action they have brought, but whether they are such persons as have a- right to sue in their own names.</p> <p>3. Under our statute the undertaking on appeal to stay execution of the judgment appealed from does not run to any named promisee, but, prima facie, the promisee is the party the execution of whose judgment is so stayed.</p> <p>4. In an action by heirs, the administrator refusing to bring the action, against the' widow of the deceased to have adjudged and turned into the estate, as assets thereof, certain real .estate and certain personal property standing in her name, and claimed by her, the trial court found and rendered judgment in favor of plaintiffs, adjudging that all such property, both real and personal, belonged to and should be turned into the estate. The defendants appealed, and gave the statutory undertaking to stay execution. Upon such appeal this court held that the judgment was right as to the personal property, but wrong as to the real estate, and, reversing the judgment as entered, remanded the case to the circuit court with directions to enter judgment in accordance with such opinion and holding. Held, that this was not such an absolute reversal as discharged the undertaking, but was in legal effect an affirmance in part and a reversal in part, and that in an action on such undertaking, a complaint alleging these facts was not on account demurrable, as not stating a cause of action.</p> <p>(Syllabus by the Court.</p>