Legal Opinion · Concurrence

Andrews v. Wynn

South Dakota Supreme Court

Decided April 19, 1893Published

Appeal from circuit court, Hughes county. Hon. H. G. Fuller, Judge. Action by Edward H. Andrews against Charles H. Wynn to foreclose a mortgage. A demurrer to the complaint was overruled, and defendant appeals. Kell am, J., concurring specially. The facts are stated in the opinion.

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Appeal from circuit court, Hughes county. Hon. H. G. Fuller, Judge. Action by Edward H. Andrews against Charles H. Wynn to foreclose a mortgage. A demurrer to the complaint was overruled, and defendant appeals. Kell am, J., concurring specially. The facts are stated in the opinion. A motion to make the complaint more definite and certain is the proper remedy where there is a difference between the parties named in the caption and in the body of the complaint. §§ 4925, 4609, Comp. Laws; Barnes v. Perine, 9 Barb. 202; Richards v. Bdick, 17 Barb. 260; Cheeseborough v. Railroad, 13 How. Pr. 557.…

1Concurrence

Kellam, J.,

(concurring specially.) I think the decision of this case is right, but I have serious doubt about the propriety of this court directing in advance how the discretion of the trial court shall be exercised as to allowance of amendments after the case is remitted. The direction is not important if confined to this case, but I understand it is made deliberately, and is intended to declare generally the authority of this court and the propriety of its exercise in any case where, on appeal, it holds a pleading defective, to direct the court below to allow it to be amended. I think this…

2Cases cited1 opinion

  1. North American Loan & Trust Co. v. Colonial & U. S. Mortg. Co.South Dakota Supreme Court · 1893

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