Emerick v. Sweeney Cattle Co.

96 N.W. 93, 17 S.D. 270, 1903 S.D. LEXIS 41

• Court: South Dakota Supreme Court
• Decided: July 22, 1903
• Status: Published

Opinion

Fuller, J.

A trial of the issues formed by the complaint answer, counterclaim, and reply, in this action based upon a conspiracy, terminated in a judgment for respondent, concerning which appellants have assigned no error. Before answering, they severally demurred to the complaint on the following statutory grounds: “That there is a defect of parties defendant. That several causes' of action have been improperly united. That the complaint does not state.facts sufficient to constitute a cause of action.” These demurrers were overruled, and appellants’ brief is mainly directed to the point that several causes of action are improperly united.

While the complaint contains matter that might rightfully be considered surplusage, there is- a specific charge of every fact and circumstance essential to a conspiracy and an action for damage predicated thereon. It is shown.by the most ample averments that appellants, with the intent to cheat and defraud respondent, effected a combination which enabled them to swindle her out of an undivided one-half interest in a large number of cattle. The means to which they resorted in the accomplishment of such common purpose are clearly shown by the use of plain and concise language. While the acts done in furtherance of the conspiracy, and by which respondent was injured, embrace different transactions, but one cause of action and one conspiracy is alleged, and no damages, other than such as resulted therefrom, were recovered.

The complaint is not demurrable, and the judgment appealed from is affirmed.