Oldham v. Reiley

184 N.W. 250, 44 S.D. 428, 1921 S.D. LEXIS 142

• Court: South Dakota Supreme Court
• Decided: August 31, 1921
• Docket: File No. 4905
• Status: Published

Opinion

SMITH, J.

Appeal from an order denying appellant’s motion for a change of venue from Tripp county to Minnehaha county. It is appellant’s contention that the complaint states a cause of action for damages for breach of contract only, and that, as defendants were served with summons in Minnehaha county, they were entitled to a change of place of trial to that county under section 2327, Rev. 'Code 1919, while respondents contend that the action is for specific performance of a contract to convey real property situated in Tripp county, where the venue of the action is laid, and that the action is triable in that county under subdivision 1, § 2325, Rev. Code 19x9.

In the same action a demurrer was filed to the complaint, which -was overruled by the trial court, from which ruling an appeal was taken, in which this court holds that the complaint is so indefinite and uncertain that it fails to state a cause of action on any theory. In such a situation appellant has failed to show prejudicial error, and the order of the trial court must be affirmed. For a statement of the pleading's see Harold A. Oldham et al. v. Geo. W. Egan et al., 184 N. W. 249.

WHITING-, J., not sitting.