Adams Co. v. Western Surety Co.
South Dakota Supreme Court
Appeal- from Circuit Co-urt, Pennington County. Hon. Levi McGee, Judge. Action by the Adams Company against the Western Surety Company and others, to- recover on a fidelity bond. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) Under point one of the opinion, Appellant cited: Schwenk v. Naylor, 49 N. Y. Sup.
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Appeal- from Circuit Co-urt, Pennington County. Hon. Levi McGee, Judge. Action by the Adams Company against the Western Surety Company and others, to- recover on a fidelity bond. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. (i) Under point one of the opinion, Appellant cited: Schwenk v. Naylor, 49 N. Y. Sup. Ct. 99; Rumsey v. Robinson, (la.) 12 N. W. 243. Respondent cited: Supreme Council v. Fidelity and Casualty Co., of New York, 63 Fed. Rep. 48.
1ConcurrenceSmith, J.
The question upon the demurrer ir this case is, not whether plaintiff might be able to prove that *198the defalcation occurred between January 18, 1912, and February 24, 1913, but whether the plaintiff has pleaded facts which, if proved exactly as alleged, would entitle it to a judgment. A demurrer admits facts alleged in a pleading with the same effect as though the same facts had -been conclusively proved. In this case the demurrer admits that a defalcation occurred, not between January 18, 1913, and February 24, 1913, but between January 18, X912, and February 24, 1913.
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2Cases cited5 opinions
- City of Connersville v. Connersville Hydraulic Co.Indiana Supreme Court · 1882
- Reid v. LyttleCourt of Appeals of Kentucky · 1912
- McCormick Harvesting Machine Co. v. RaeNorth Dakota Supreme Court · 1900
- Phillips v. Sonora Copper Co.Appellate Division of the Supreme Court of the State of New York · 1904
- Bon Homme County v. McLouthSouth Dakota Supreme Court · 1905