Lewis v. St. Paul, M. &. M. Ry. Co.

Citations

• 5 S.D. 148
• 58 N.W. 580
• 1894 S.D. LEXIS 54

Syllabus

<p>1. The trustees named in a trust deed of real property are, under the provisions of Section 4872, Comp. Laws, the proper parties plaintiff in an action to recover the possession of the property conveyed by such trust deed, alleged to be unlawfully withheld by the defendant, and to recover damages for the unlawful withholding of the same.</p> <p>2. A complaint that alleges that the plaintiffs own the property, describing it, and have owned it since a specified date; that they own and hold it by virtue of a trust deed made by the former owner to the plaintiffs in trust for certain beneficiaries named; that the defendant, without right or title, entered into possession of a described portion of it, ousted and ejected the plaintiffs therefrom, and does now unlawfully withhold the same, to the plaintiffs’ damage, etc., states a good cause of action.</p> <p>3. The instrument offered in evidence to which objection is made, or so much of it, or such a statement of its contents or character, as may be necessary to present the point of objection, must be inserted in the abstract; and when not so inserted -the objection will be disregarded. Formal and unnecessary parts of the instrument may and should be omitted.</p> <p>4. When an award made in condemnation proceedings, taken by a railway company to obtain a right of way, has been introduced in evidence, it is competent for the opposing party to introduce in evidence the written order of the judge appointing- commissioners, for the purpose of showing that one of the persons who signed, the award as commissioner was not one of the commissioners appointed by the judge.</p> <p>5. Parol evidence is incompetent to contradict such written order by showing that one of the persons named in the written order had departed from the jurisdiction of the court, and that the person purporting to sign the award was appointed a commissioner by the judge in the place of the one named in the written order, in the absence of proof of the loss