Evens v. Evens

240 N.W. 335, 59 S.D. 390, 1932 S.D. LEXIS 141

• Court: South Dakota Supreme Court
• Decided: January 25, 1932
• Docket: File No. 7158.
• Status: Published

Opinion

PER OURIAM.

Plaintiff sued defendants in municipal court to recover certain installment payments of money. On appeal to this court from an order sustaining a demurrer below, the sufficiency of the complaint was established. Evens v. Evens, 55 S. D. 482, 226 N. W. 725. After the remand (accruing unpaid installments having meanwhile mounted to sum in excess of the limited jurisdiction of a municipal court), plaintiff dismissed that action without prejudice, and brought the present suit in circuit court upon an identical complaint, except for claiming- a greater number of installments past due. Trial was to the court on stipu lated facts. From judgment for the plaintiff and denial of new trial, defendants have appealed.

It is conceded that the stipulated facts support the allegations of the complaint. The present appeal presents the identical legal questions adjudicated between the same parties on the former appeal, and no others, and appellants so state. All points now urged received the careful consideration of this court at that time, 'were fully dealt with in the opinion, and' a petition for rehearing was filed, considered, and denied. On the authority of the former decision, the judgment and order now appealed from are affirmed, and we deem it our duty to award respondent damages for the delay caused by this appeal in a sum equal to io per cent on the amount of the judgment, and the clerk of this court is directed to tax the same as a part of the costs pursuant to statute.

All the Judges concur.