Bickford v. Cooley

148 N.W. 505, 34 S.D. 296, 1914 S.D. LEXIS 124

• Court: South Dakota Supreme Court
• Decided: July 25, 1914
• Status: Published

Opinion

WHITING, J.

One Moses Bickford brought this action in ■circuit court. Against his cause of action the defendant set up several defenses-, but pleaded no -counterclaim. W. E. Bickford, having purchased from- Moses Bickford his claim against the defendants, was, by order of the circuit court, substituted a-s party plaintiff. Said court also made an order allowing 'such substituted plaintiff, to file an amended complaint. Defendants excepted to the granting of the two orders above mentioned. The defendant, Mary B. 'Cooley filed an amended answer in which she pleaded, as a counterclaim against W. E. Bickford, a cause of action which she claimed to have against the original plaintiff. Judgment upon trial was in favor of plaintiff against the defendant Mary E. Cooley, and from such judgment she has. appealed and has assigned as error the granting of each of the above orders.

[■I-2] There is no merit in appellant’s assignments. The amendment of the complaint is clearly one that the trial court should have allowed if there had been no substitution of new party plaintiff. Appellant complains that by the substitution of the new party plaintiff she was prevented from establishing her counterclaim existing against the original plaintiff. There would -be some merit in appellant’s contention, if, at the time the order for substitution was made, the answer then interposed had set up a counterclaim. Defendant had pleaded no counterclaim and in no manner presented to the trial court, in resistence of the motion for substitution, any claim that she had any counterclaim against plaintiff; in fact, the printed record does not show that the objection interposed stated any grounds whatsoever for such objection.

The judgment appealed from is affirmed.

Judges SMITH and McOOY taking no part herein.