Jordan v. Schaefer , 40 S.D. 140 ( 1918 )

WHITING, P. J.

Appea-l- from an order overruling a demurrer to a -complaint.

The complaint alleges plaintiff to> he the owner of certain real estate; that the same is plaintiff’s homestead and of less than $5,000 in value; that defendant holds a judgment against plaintiff, which judgment is -docketed in- the county where said land is situate; that hy virtue of -suclh judgment defendant claims some interest in or lien upon said land', -but in fact lias none; that -defendant is a -proper party to this a-cti-on under chapter Sx, Haws 1905; that the action is brought for the purposes of quieting -title to such real es-tat-e in plaintiff, and toi determine the liens or -interest, if any, of -defendant; -and that plaintiff has served a demand for a satisfaction of the judgment in- full so far as the same affects the homestead, has tendered $1.25 with such demand, and- defendant has refused to execute the satisfaction. Then followed a prayer for relief.

Appellant -sets forth the written- demand that was served on him, and contends that the relief demanded therein, as well as the relief prayed for in the complaint, was- greater than plaintiff was entitled to.

[1] The written demand -could n-ot be -considered by the lower -court on the demurrer, -and cannot he -considered by us on this appeal. It may at some time become material -as' evidence. S-uch dem-an-d, as well as the allegations in relation thereto- in the complaint, do not affect plaintiff’s right 'to a judgment decreeing the land to be his homestead, and a-s s-u-ch n-ot -subject to the lien of appellant’s judgment. The giving and proving of a demand merely affect the matter of taxable costs. Chapter 170, Laws 1913.

[2] Appellant -contends that plaintiff seeks greater- relief than he is entitled to; that the relief demanded would- prevent such judgment ever becoming a lien against such land even though, while remaining the property of respondent, it should-cease to be a homestead. This is a matter that cannot be raised on demurrer. The sufficiency iof the complaint is to be determined by the allegations thereof, and not by the prayer for relief. If plaintiff is entitled to any relief under the facts pleaded, the demurrer wias properly overruled.

[3] Appellant says.:

“Section 2431 of the Political [Civil] Code 'States, ‘The law neither does nor ¡requires idle acts/ that is, the .court will not decree tills Schaefer judgment not to be a lien upon the said land so long as it remains Jordan’s homestead for the reason that the Schaefer judgment is already not a lien upon said: land so long as it remains the homestead of the plaintiff in this action. This would merely 'be asking the court to decree what already is true under the law, and would be an idle act on the part (of the court.”

Undoubtedly appellant has not thought to what result his line of reasoning leads. If the law will not permit courts to. adjudge that something exists because it exists without such judgment, then why courts? Under appellant’s logic every complaint is demurrable; those which fail to state facts sufficient to constitute a cause of action, because the statute makes them demurrable; those which do state facts sufficient to constitute a cause ■of action, because, under such facts, the law gives him what he ■seeks, and it is an idle aot to- have the courts so decree. Respondent seeks a finding that the land is a homestead and a conclusion that, being a homestead, it is not subject to the lien of appellant’s judgment.

The demurrer was properly overruled. Klemmens v. First Nat. Bk., 22 N. D. 304, 133 N. W. 1044. In the case cited the courts points out the judgment to which this respondent is entitled under the facts pleaded, ,

The order appealed from is affirmed.