Kirby v. Crisp

86 N.W. 1103, 15 S.D. 33, 1901 S.D. LEXIS 77

• Court: South Dakota Supreme Court
• Decided: June 12, 1901
• Status: Published

Opinion

Fuller, P. J.

In this action to recover the possession of certain securities deposited by the intervenor, the Sioux Falls Savings Bank with the defendant, W. J. Crisp, as clerk of the circuit court, a demurrer to the complaint in intervention was overruled, and plaintiff appeals. The note and mortgage and the certificates of bank stock which plaintiff seeks to recover, constitute the identical property deposited, under a mistake of law, by the intervening bank with the defendant, Crisp, as clerk of the circuit court, and the facts contained in this complaint in intervention are so fully stated in Lien v. Bank, 12 S. D. 317, 81 N. W. 628, and Bank v. Lien (decided at this term) 14 S. D. 410, 85 N. W. 924, that it is deemed unnecessary to recite here the allegations of such complaint. The foregoing decisions fully justify intervention on the part of the bank for the purpose of adjudicating its right to reclaim the securities so delivered without authority to the defendant, Crisp, and the facts stated in the complaint of intervention are sufficient to constitute a cause of action. The order overruling the demurrer is therefore affirmed.