Berry v. Bingaman
South Dakota Supreme Court
Appeal from circuit court, Hutchinson county. Hon. D. Haney, Judge. The facts and the nature of the proceedings are fully set forth in the opinion. The variance between the summons and the complaint was fatal, and the court erred in overruling appellant’s motion to strike the complaint from the files. Tuttle v. Smith, 14 How.
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Appeal from circuit court, Hutchinson county. Hon. D. Haney, Judge. The facts and the nature of the proceedings are fully set forth in the opinion. The variance between the summons and the complaint was fatal, and the court erred in overruling appellant’s motion to strike the complaint from the files. Tuttle v. Smith, 14 How. Pr. 395; Cobb v. Dunkin, 19 Id. 166; Johnson v. Paul, 14 Id. 454; Shafer v. Humphrey, 15 Id. 564; Campbell v. Wright, 21 Id. 9; Dyas v. Keaton, 3 Mon. 501; Smith v. Aldrich, 6 Col. 388; Odell v. Campbell, 9 Or. 305. Only when the defendant is misled by a variance between…
1Opinion of the CourtKellam, J.
The summons by which this action was origiginally commenced in justice court required defendant to answer the complaint of the plaintiff, "who claims to recover of you the sum of twenty-five dollars for damage done by setting a prairie fire, and burning hay owned by plaintiff in said county; and you are hereby notified that, if you fail to appear and answer as above required, said plaintiff will take judgment against you for the sum of twenty-five dollars, besides costs.” In due time, plaintiff filed his complaint setting out a cause of action as indicated in the summons; upon which…
2Cases cited10 opinions
- Atchison, Topeka & Santa Fe R. R. v. NichollsSupreme Court of Colorado · 1884
- Porter v. VandercookWisconsin Supreme Court · 1860
- Smith v. AurichSupreme Court of Colorado · 1882
- Brown v. EatonNew York Supreme Court · 1869
- Hemson v. DeckerNew York Supreme Court · 1865
5 more not listed; retrieve them via the Exa API.
3Cited by5 opinions
- Schuttler v. KingMontana Supreme Court · 1892
- St. Paul Harvester Co. v. ForbregSouth Dakota Supreme Court · 1891
- Bradey v. MuellerSouth Dakota Supreme Court · 1908
- Chamberlain-Wallace Co. v. AkersNorth Dakota Supreme Court · 1913
- Schuttler v. KingMontana Supreme Court · 1892