Heegaard v. Dakota Loan & Trust Co.

Citations

• 3 S.D. 569
• 54 N.W. 656
• 1893 S.D. LEXIS 23

Syllabus

<p>1. When a controversy between two parties is ended, so far as the court before which it is pending can end it, the judgment is then final, regardless of mere matter of form. An appeal will lie from such a judgment.</p> <p>2. A judgment of the circuit court “that the action be and is hereby dismissed” is final, and an appeal may be taken therefrom.</p> <p>3. The allowance of amendments to pleadings is a matter largely within the discretion of the court, yet such discretion should not be so liberally used as to result in injustice or hardship to litigants. Amendments to pleadings are only allowable in furtherance of justice; never for the purpose of defeating it.</p> <p>4. In an action by parties doing business under a fictitious name, it is not incumbent upon the plaintiffs to allege in their complaint that a certificate of partnership has been filed, as provided by sections 4066, 4068, Comp. Laws. Objection that no such certificate has been filed must therefore be taken by the answer; otherwise, under .section 4913, Comp. Laws, it is waived.</p> <p>5. If a defendant fails to plead that the plaintiff has not filed the certificate as required by sections 4066, 4068, Comp. Laws, at the time or before he pleads to the merits, he will not be permitted to amend his answer, so as to introduce this plea after the trial of the issues.</p> <p>(Syllabus by the Court.</p>