Ballard v. Western Surety Co.

MORIARTY, C.

This is an appeal from an order overruling a demurrer to the complaint. The action was brought to recover upon an undertaking on appeal which appellant signed as surety.

The undertaking was issued to perfect the appeal in the case of Howlin v. Fish, wherein the decision of this court is reported in 45 S. D. 567, 189 N. W. 522. The demurrer is upon two grounds: First, that the complaint fails to state facts sufficient tO' constitute a cause of action; second, that there is a defect of parties, in that G. L. Fish should be a defendant.

The undertaking sued upon is set forth in the…