City of Woonsocket v. Arlen

208 N.W. 592, 50 S.D. 121

• Court: South Dakota Supreme Court
• Decided: April 22, 1926
• Docket: File No. 6096
• Status: Published

Opinion

GATES, P. J.

This is an appeal by defendants from an order overruling a demurrer to the complaint.

The complaint alleges among other things that defendant Allen was appointed city treasurer of plaintiff in April, 1920, and' that he qualified by giving a $20,000 bond with defendants Williams and Smith as sureties; that in June, 1923, he furnished an additional bond in the sum of $40,000 with the same sureties for the purpose of further securing the funds coming into- his hands as such treasurer; that between April, 1920, and April, 1924, he received as such treasurer sums to the amount of $48,429.52 which he has failed to account for and to turn over to his successor, who was appointed in April, 1924. Recovery of that sum is sought from him and his sureties.

It is urged by appellants that the complaint does not state a cause of action for a number of reasons, all relating to the failure to charge a distinct liability under either bond. If the complaint is defective in those respects the remedy was by motion to make more definite and certain, or, if there are two distinct causes of action, then by motion to require each cause of action to be separately stated. 'Demurrer is not the proper remedy. Sogn v. Koetzle, 160 N. W. 520, 38 S. D. 99; State ex rel. Sommer v. Interstate Surety Co., 189 N. W. 679, 45 S D. 592.

The greater part of appellants’ argument is devoted to the question as to the nonliability of appellants because of the provisions of chapter 335, Laws 1921. There are no allegations in the complaint which raise that point; therefore we do not consider it.

The order appealed from is affirmed.

MISER, Circuit Judge, sitting in lieu of SHERWOOD, J.