Jerome v. Rust

Citations

• 19 S.D. 263
• 103 N.W. 26
• 1905 S.D. LEXIS 35

Syllabus

<p>1. Justice Code, § 10, provides that an action in a justice’s court is commenced by summons or by voluntary appearance ' and pleading- of the parties. A summons in an action in a justice court recited that defendant was summoned to answer plaintiff, who claimed to recover possession of oats of the value of $75 detained after demand; and there was a notice that, on default, plain'tiif would take judgment for possession of the property or the value thereof. The oral complaint of plaintiff was for oats of the value of $75 loaned defendant, which he had promised to pay. Judgment was demanded for the oats, or $75, and defendant set up a general denial and payment. Held that, on appeal and trial de novo in the county court, the latter was justified in trying the case on the theory that plaintiff’s claim was for the value of the oats.</p> <p>2. Where a judgment of a justice for the return of certain property, or its value, was irregular, in that the complaint was insufficient as one for the recovery of property, no advantage having been taken of the irregularity by motion to vacate or set it aside in the justice court, no advantage could be taken of the same on a trial de novo on appeal in the county court.</p>