Woodford v. Kelley

Citations

• 18 S.D. 615
• 101 N.W. 1069
• 1904 S.D. LEXIS 103

Syllabus

<p>1. Where defendant did not move to strike out specified portions of the complaint as irrelevant and redundant until after answer and the case had been called for the trial, the objection was waived.</p> <p>2. A complaint alleged that defendant, the owner of certain hay land, contracted that complainants should cut, press and haul the hay for a certain price; that under defendant’s directions and pursuant to such contract, plaintiffs cut and stacked a part of the hay and baled another portion thereof, but were prevented by defendant from baling and hauling all the hay required by the contract. Plaintiffs also alleged that they had expended a certain sum of money in the work, for which they claimed a lien on the hay not hauled, and alleged that defendant had wrongfully taken possession of the hay not paid for. and threatened to continue taking the same without paying plaintiffs’ claim. Held, that the complaint disclosed a joint enterprise or interest in the hay, warranting an accounting.</p> <p>3. The complaint also stated a cause of action warranting the appointment of a receiver pendente lite.</p> <p>4. Where a complaint is indefinite and uncertain, defendant’s remedy is by motion to make tne same more definite and certain, interposed before answer served, and not by an obj'ection at the trial that the complaint does not set out the contract specifically under which plaintiffs claimed their rights alleged.</p> <p>5. Under Rev, Code Proc. #311, providing that, where answer has been served, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue, the sufficiency of the complaint, when attacked at the trial by an objection to the introduction of any evidence thereunder, does not depend on the prayer for relief.</p> <p>6. Though plaintiffs’ complaint was inartistic, indefinite and uncertain, reversible error could not be predicated on the overruling of defendant’s objection thereto, first raised after