Buckham v. Hoover

Puller, J. Omitting the usual prayer for consistent relief, the complaint in this action to quiet title to real property is as follows: “The plaintiff complains of the defendants, and for a cause of action alleges: First. That the plaintiff is the owner in fee of that certain piece or parcel of real estate situate and being in the county of Potter and state of South Dakota, described as follows, to-wit: The southwest quarter of section nineteen (19),in township one hundred and nineteen (119) north, of range seventy four (74) west of the fifth principal meridian, containing 160 acres, more or less, according to the government survey thereof. Second. That the defendants, and each of them, claim an interest or estate in and to said land adverse to this plaintiff. That the said claim of interest or title of the said defendants, and each of them, is without any right or validity whatever. ” To reverse an order overruling a demurrer challenging the legal sufficiency of the facts stated in the foregoing complaint counsel for appellant contends that the action was brought under chapter 194, p. 255, Laws 1903, and directs our attention to the summons, which substantially follows the form therein provided. Among other provisions, section 3 (page 256) of the act requires the plaintiff to state in his complaint “that the defendants are proper parties under the provisions of this act, and that the action was brought for the purpose of determining all adverse claims to such-property and [431] of quieting title thereto in plaintiff.” Without impairing chapter 29 of the Revised Code of Civil Procedure of 1903, which provides a system for quieting title and determining adverse claims to real property, the 1903 enactment purports to afford a cumulative remedy with reference to unknown persons, heirs at law, devisees, legatees, creditors, executors, and administrators of deceased persons; but node of such are made defendants here, and facts sufficient to constitute a cause of action under the earlier statute are stated in the complaint. Clark v. Darlington, 7 S. D. 148, 63 N.W. 771, 58 Am. St. Rep. 835; Frum v. Weaver, 13 S. D. 457, 83 N. W. 579; Campbell v. Equitable Loan & Trust Co. of Volga, 14 S. D. 483, 85 N. W. 1015; Hale v. Grigsby, 12 S. D. 198, 80 N. W. 199. In accordance with numerous authorities there cited, we say in Lindskog v. Schouweiler, 12 S. D. 176, 80 N. W. 190, that: “The summons does not aid in interpreting the pleadings. The complaint alone is to be considered in determining the demurrer.” It follows that the demurrer was rightfully overruled, and the order appealed from is affirmed.