Tanderup v. Hansen

Citations

• 5 S.D. 164
• 58 N.W. 578
• 1894 S.D. LEXIS 53

Syllabus

<p>1. Ail forms of actions are abolished, and the subtile and refined distinctions in relation to trespass which perplex the pleader at common law are wholly abrogated. Fictitious averments are contrary to the letter, and especially the spirit, of the new procedure.</p> <p>2. Under a statute which provides, in effect, that owners, or persons charged with the keeeping, of trespassing animals, shall be liable to pay compensatory damag'es to the party injured thereby, and that such damages may be recovered in a civil action, before a court having jurisdiction thereof,'and that the proceedings shall be in all respects the same as any other civil action, a complaint which states, in ordinary and concise language, the facts constituting'a cause of action, is not invalidated because the pleader further states that “plaintiff elects to waive the tort,” and then proceeds to state a cause of action — in the same complaint for the same injury — upon a fictitious contract for the sale and delivery of the property destroyed, and alleges a promise on the part of the defendant to pay such damages; but such unnecessary allegations may be reg'arded as mere surplussage, and an objection to the introduction of any evidence under such complaint, for the reason that it fails to state a cause of action, should be overruled.</p> <p>KellaM, J., concurs in decision for reasons stated in supplemental opinion.</p> <p>(Syllabus by the Court.</p>