Mather v. Dunn

Citations

• 11 S.D. 196
• 76 N.W. 922
• 1898 S.D. LEXIS 98

Syllabus

<p>1. A tenant in common is entitled to recover possession of the cutiré premises, as against a stranger not claiming as a co-tenant, though the other co-tenants are not parties to the action.</p> <p>2. Tenants in common are not “united in interest,” within Comp. Law, $ 4879, requiring all such persons to join in an action.</p> <p>3. Comp Laws, §4909, makes a defect of parties a ground of domurr t. Section 4912 provides that, if the grounds of demurrer do not appear on the face of the complaint, the objection may be taken by answer. Section 4913 provides that, “if no such objection be taken by demurrer or answer, defendant shall be, deemed to have waived the same, excepting only the jurisdiction of the court and the, objection thaé the complaint does not state facts sufficient to constitute a cause of action.” Held, that the question of a defect of parties plaintilf cannot be first raised on ;t motion for a new trial.</p>