C. Aultman & Co. v. Siglinger

Citations

• 2 S.D. 442
• 50 N.W. 911
• 1892 S.D. LEXIS 6

Syllabus

<p>1. In determining the sufficiency of the complaint the averments therein can alone be 'considered. A complaint which does not state a cause of action by its averments, without reference to exhibits, is bad upon demurrer. KellaM, P. J., dissenting.</p> <p>2. The facts constituting the cause of action must be stated in the complaint with sufficient clearness and fullness to enable the court to see that, upon the facts stated, the plaintiff is entitled to the relief demanded, or, at least, some relief. The facts themselves must be stated, — not by way of recital or probative facts, but by direct allegations of the ultimate facts relied on to sustain the action.</p> <p>3. A complaint under Section 5424, Comp. Laws, by the mortgagee of a subsequent mortgage, to recover the surplus in the hands of the sheriff making a sale under a prior mortgage, must show (1) that a prior mortgage was executed, and that it contained a power of sale; (2) that under and by virtue of such power of sale the defendant sold the property for a specified sum, which was paid to him; (3) the amount remaining' in his hands as surplus; (4) the mortgage of plaintiff; and (5) a demand and refusal. ILellam, P. J., dissenting.</p> <p>4. The complaint in this action alleged that the defendant, acting as sheriff, and pursuant to a notice of foreclosure, sold the lands specifically described in the complaint for the sum of $700, and delivered to the purchaser a certificate of sale. Held, insufficient; as no facts are stated from which a court would be authorized to conclude that any mortgage had been given under which such a sale Could have been made, and there being no direct allegation that the $700 was paid. Kellam, P. J., dissenting.</p> <p>5. It was alleged in the complaint that defendant made “an affidavit purporting to show the amount received from the purchase, * * * and that, according to said affidavit, there remained in his hands the sum of $160.29.” Held, not a sufficient averment that the d