Tobin v. Bruce

South Dakota Supreme Court

Tobin v. Bruce

171 N.W. 603, 41 S.D. 513, 1919 S.D. LEXIS 40

CourtSouth Dakota Supreme Court

DecidedMarch 29, 1919

DocketFile No. 4464

StatusPublished

This text of 171 N.W. 603 (Tobin v. Bruce) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tobin v. Bruce, 171 N.W. 603, 41 S.D. 513, 1919 S.D. LEXIS 40 (S.D. 1919).

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Opinion

WHITING, J.

This cause was before us upon a former appeal. Our decision will be found reported in Tobin v. Bruce, 39 S. D. 64, 162 N. W. 933. Reference is made to such decision for a statement of the nature of the action and the facts as revealed upon the first trial. In accordance with the direction of this court the cause was retried in the circuit court, and, upon such retrial, findings of fact and conclusions were entered, and judgment rendered, dividing the money in the hands of the defendant Bruce between plaintiff and the defendant 'Catherine Bruce. From such judgment defendants appeal.

[1,2] The only question before us is the sufficiency of the findings to support the judgment. No claim is made that the division as adjudged was improper, provided plaintiff was entitled to anything. Appellants contend that, inasmuch as there was no allegation, proof, or finding that the father was “dependent” on his son at the time of the son’s death, he was not entitled to share in the money received from1 the railway company. Thus appellants ask us to reverse our former holding. We are satisfied that such holding was correct, and fully sustained by the [515]*515authorities then cited. Appellants also contend that, inasmuch as the son was, at the time of his death, a resident of Iowa, it is the law of Iowa, and not of this state, that determines what was and would have been his legal liability to furnish support to his father. Even if we were to concede the point raised, yet it can avail appellants nothing, as, in the absence of proof to the contrary, it will foe presumed that the law of Iowa is the same as that of this state.

The judgment appealed from is affirmed, with costs as against appellant Catherine Tobin.

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WHITING, J.

This cause was before us upon a former appeal. Our decision will be found reported in Tobin v. Bruce, 39 S. D. 64, 162 N. W. 933. Reference is made to such decision for a statement of the nature of the action and the facts as revealed upon the first trial. In accordance with the direction of this court the cause was retried in the circuit court, and, upon such retrial, findings of fact and conclusions were entered, and judgment rendered, dividing the money in the hands of the defendant Bruce between plaintiff and the defendant 'Catherine Bruce. From such judgment defendants appeal.

[1,2] The only question before us is the sufficiency of the findings to support the judgment. No claim is made that the division as adjudged was improper, provided plaintiff was entitled to anything. Appellants contend that, inasmuch as there was no allegation, proof, or finding that the father was “dependent” on his son at the time of the son’s death, he was not entitled to share in the money received from1 the railway company. Thus appellants ask us to reverse our former holding. We are satisfied that such holding was correct, and fully sustained by the [515]*515authorities then cited. Appellants also contend that, inasmuch as the son was, at the time of his death, a resident of Iowa, it is the law of Iowa, and not of this state, that determines what was and would have been his legal liability to furnish support to his father. Even if we were to concede the point raised, yet it can avail appellants nothing, as, in the absence of proof to the contrary, it will foe presumed that the law of Iowa is the same as that of this state.

The judgment appealed from is affirmed, with costs as against appellant Catherine Tobin.

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171 N.W. 603, 41 S.D. 513, 1919 S.D. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobin-v-bruce-sd-1919.

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