Mader v. Plano Mfg. Co.

Citations

• 17 S.D. 553
• 97 N.W. 843
• 1903 S.D. LEXIS 94

Syllabus

<p>1. Under Rev. Code Civ. Proc. § 121, giving defendant the right to demur to a complaint when it shall appear on the face thereof that there is a “defect of parties,” nonjoinder, of parties is meant.</p> <p>2. When the causes for which parties may demur are fixed hy statute, the causes specified therein are exclusive, and no other ground is tenable.</p> <p>3. A demurrer to a complaint on the ground “that there is a misjoinder of parties plaintiff” raises no question, under Rev. Code Civ. Proc. § 121, providing for a demurrer on the ground that there is a defect of parties, but containing no provision for demurrer on the ground of misjoinder of parties.</p> <p>4. Under Rev. Civ. Code, § 2061, giving right of action to mortgagors against mortgagees for damages and penalty for failure to release a mortgage after it is paid, but requiring the mortgagor to pay the expense of acknowledgment of the release on demand therefor by the mortgagor, a complaint by a mortgagor against a mortgagee to require the latter to execute, acknowledge and deliver a certificate of discharge that is entitled to record in the office of the register of deeds, and pay the damages and penalty, is demurrable, in the absence of an allegation that the expense has been paid or tendered.</p> <p>5. A contention that a complaint by a mortgagor against a mortgagee to require the latter to execute, acknowledge and deliver a certificate of discharge and pay the damages and penalty provided under Rev. Civ. Code, § 2061, for failure to release a mortgage, though failing to allege that the expense has been paid or tendered, is good, because sufficient to require the execution and delivery of a certificate of discharge that has never been acknowledged, is without merit.</p>