the rule requiring a specific allegation of damages in order to constitute a good complaint. It is true that some of the cases go upon the theory that, when the wrongful act of the defendant is once established as the proximate cause of the death, the statute then bases a cause of action upon such wrong, and will presume nominal damages. But the more general holding is to the effect that, the wrongful act being once established as the cause of death, the decedent being free from fault, the plaintiff may, under a general allegation of damages, recover all such damages, within the amount claimed, as are ordinarily and usually sustained, from the loss of such life, by those standing in the relation to the decedent sustained by those in whose interest the suit is brought. This holding, we think, violates no rule of code pleading. The defendant is always sufficiently advised as to what he must meet on the question of damages. Any facts or circumstances tending to reduce the pecuniary value of the life destroyed may always be shown. The case of Atrops v. Costello, supra, well illustrates this principle.

There is a distinction noticed in some of the cases that we think is founded upon reason. When the party in whose interest the suit is brought sustained such relations to the deceased that he had the legal right to demand the services of the deceased, or to demand support and maintenance at the hands of the deceased, then substantial pecuniary damages will be presumed; while if recovery is sought by a collateral relative, or one having no such legal claim, and who was not in fact dependent upon the deceased, the presumption of substantial damages may not be indulged. This is illustrated in City of Chicago v. Scholten, 75 Ill. 468; Coal Co. v. Hood, 77 Ill. 68; Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907.

In this case we make our holding no broader than the facts require. The complaint discloses that the deceased left a widow and minor children of tender years. There is a general allegation of damages, but no facts pleaded showing in what such damages consist. The wife and minor children were entitled by law to demand support and maintenance at the hands of the husband and father. When, by the wrongful act of the defendant, they are deprived of that husband and father, the law presumes pecuniary damages, and particular facts showing damages need not be pleaded. Our judgment of reversal must stand. All concur.

HOLLISTER v. BUCHANAN. (Supreme Court of South Dakota. Nov. 18, 1898.)

MORTGAGE NOTE-ACTION FOR DEFICIENCY-DE

FENSE.

It is no defense to an action to recover a deficiency due on a note after foreclosure of

a mortgage securing the same that the property was purchased at the sale at a price so inadequate as to work injustice, since the sale was not void, but voidable only, on direct motion of an interested party to set it aside. Corson, P. J., dissenting.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by W. C. Hollister against Agnes C. Buchanan. From a judgment for defendant, plaintiff appeals. Reversed.

Kate Rochford, J. E. McMahon, and F. L. Rowland, for appellant. A. B. Kittredge, for respondent.

FULLER, J. In this action, to recover on a $351 promissory note a deficiency remaining after the foreclosure of a mortgage given to secure the same, judgment was entered upon a verdict in favor of the defendant. A motion for a new trial was thereafter made and overruled, and plaintiff, with all rights preserved, appeals to this court. From the uncontroverted record and averments of the complaint we learn that on the 21st day of March, 1894, respondent and her husband, since deceased, executed and delivered to appellant's assignor the note in suit, securing the same by a first mortgage on certain real property in the city of Sioux Falls, which is shown to be worth, for all the purposes of this suit, from $1,200 to $1,600. Respondent on the 1st day of March sold, and by warranty deed conveyed, the premises, in consideration for which her grantee expressly assumed the payment of this mortgage, and gave back a second mortgage on the property for $1,000, which respondent immediately sold and assigned to appellant's brother and associate in business, who foreclosed said mortgage by advertisement under a power of sale on the 8th day of June, 1896, and, as the highest and best bidder, purchased the property for $950. On the 3d day of August following, appellant, as the assignee of the first mortgage, foreclosed the same by advertisement, and at the sale purchased the property for $100, the proceeds of which after paying the legitimate expenses of such sale under a power were applied on the note in suit.

While a default and all other statutory conditions authorizing these foreclosures must be conceded, as well as the regularity of the proceedings, counsel for respondent maintains that a disclosure of the foregoing facts was sufficient to justify the court in sending to the jury the question of fraud and collusion between the holders of these mortgages, as alleged in the complaint, and relied upon as the only defense to this action. Had respond · ent, for the purpose of avoiding the burden of a deficiency, and as the real party in interest, moved to set aside the proceedings which she now attacks collaterally, the mere fact that appellant, exercising the right of a mortgagee, purchased the property, at a fair and open sale, for a price so inadequate as to

work injustice, might have been sufficient to entitle her, under our former decisions, to the relief granted in the court below. State v. Campbell, 5 S. D. 636, 60 N. W. 32. Such proceedings are "not void, but voidable only, upon the motion of some interested party." Trust Co. v. Bradley, 9 S. D. 495, 70 N. W. 648; State v. Smith, 9 S. D. 137, 68 N. W. 198.

As no specific facts or circumstances constituting fraud were set up in the answer, nor evidence introduced at the trial tending to support such an inference, were we to accept the view most favorable to respondent, appellant's motion for the direction of a verdict in his favor ought to have been sustained. The judgment appealed from is reversed, and the case remanded.

CORSON, P. J., dissenting.

STATE ex rel. TOMPKINS et al. v. CHICAGO, M. & ST. P. RY. CO. (Supreme Court of South Dakota. Nov. 18, 1898.)

RAILROADS-DUTY TO OPERATE PASSENGER TRAIN -ACTION TO COMPEL-PLEADING-JUDGMENT.

1. Plaintiff filed a petition to compel defendant to comply with an order of the railroad commissioners directing defendant to establish a daily passenger train between certain points on its line. The petition set up a petition by citizens along defendant's line to the railroad commissioners, the order made by the board, and also a report filed on the hearing by defendant showing the receipts from that portion of the road, and the expense of running a separate passenger and a mixed train over the line. Defendant's answer admitted the filing of the petition, the hearing thereof, the estimate of the expense of additional train service, and the order made by the board; but expressly denied the truth of the matters set out in the petition, resolution, findings, and order, and alleged that the business of its road did not warrant the running of a daily passenger train on that line. Held, that the denials in the answer put in issue all the material allegations of the petition, and judgment on the pleadings could not be entered for plaintiff.

2. Under Laws 1897, c. 110, § 19, providing that, whenever any common carrier shall neglect to obey a lawful order of the board of railroad commissioners, it shall be the duty of the board to apply, in a summary way, to the circuit court to compel obedience to the same, and the court shall hear and determine the matter as a court of equity, without formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice, and may make all inquiries needful, a judgment for petitioner on the pleadings is properly denied, since it is doubtful whether the court could in any case enter judgment without first ascertaining the facts upon which the order of the board was made.

Appeal from circuit court, Davison county; Frank B. Smith, Judge.

Petition by the state, on the relation of W. H. Tompkins and others, constituting the board of railroad commissioners, against the Chicago, Milwaukee & St. Paul Railway Company, to compel defendant to comply

with an order of said board requiring it to run a daily passenger train between points on its road. From a judgment denying plaintiffs' motion for judgment on the pleadings, they appeal. Affirmed.

T. H. Null and W. O. Temple, for appellants. A. B. Kittredge, for respondent.

CORSON, P. J. In September, 1897, the citizens of Chamberlain and towns along the defendant's railway, between that city and the city of Mitchell, presented a petition to the board of railway commissioners, in which they represented that the defendant company had neglected to furnish to the people along that line between Mitchell and Chamberlain, aforesaid, proper railway facilities, in that they neglected to run a passenger train between the two points mentioned, but in lieu thereof did run a mixed train, consisting of freight and passenger cars, and requested the said board to order the said defendant to institute regular passenger service on said line by running separate passenger trains thereon daily each way. The board of railway commissioners thereupon proceeded to hear the allegations contained in said petition, and the railway company appeared by its attorney, and presented reasons why it should not be required to run a separate passenger train on that portion of its line. Upon such hearing the board found that said railway company neglected its duty by its failure to run a daily separate passenger train between the points mentioned, and made an order requiring said road to immediately proceed to establish a daily passenger train each way between the points named. This order the railway company refused to comply with, and thereupon the plaintiffs, in the name of the state of South Dakota, instituted proceedings under the provisions of chapter 110, Laws 1897, in the circuit court of the Fourth judicial circuit. In its petition the board set up the presentation of the petition, the hearing had by the board, and the order by it made, and prayed the court to enforce the said order. In said petition the said board set out what it claimed to be a report filed on the hearing before it by the railway company showing the receipts of that company from the portion of the line of road before referred to, the expense of running a separate passenger train over the above line, the expense of running a mixed train, and in which it was claimed by such company that the business on that portion of the road would not justify the running of a daily separate passenger train. To the petition the defendant interposed an answer, in which it denies "each and every allegation therein contained, except as hereinafter expressly admitted. (2) The defendant admits the allegations contained in paragraphs one, two, and three of said petition. (3) The defendant admits that on or about the 4th day of September, 1897, a petition was filed with the said board of

railway commissioners in form set forth in paragraph four of the petition herein; and further admits that on or about the 4th day of October, 1897, the resolution in such paragraph was made and served on this defendant, and that a hearing thereon was had on or about the 14th day of October, 1897; and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train revenue as alleged in plaintiffs' complaint; and further admits that on or about the 4th day of November, 1897, the said board of railway commissioners made the findings and order as alleged in said paragraph four of plaintiffs' petition, but expressly denies the truth of the matters set out in such petition, resolution, findings, and order of said railway commissioners." The defendant further alleged that the business of its road would not warrant the running of a daily separate passenger train over the said line, and that the receipts from the passenger traffic on that portion of the line were insufficient to pay the expense of running a separate passenger train. The defendant set out various other matters in its answer, not necessary now to be noticed, in the view we take of the case. Upon the answer being filed, the plaintiffs moved for judgment upon the pleadings, the motion was overruled, and from the order overruling the motion the appeal is taken to this court.

The important question involved in the present appeal is as to whether or not, under the pleadings and proceedings before the court, it was justified in refusing plaintiffs' judgment upon the pleadings. Respondent contends, in support of the court's order, that its denials in its answer put in issue the material allegations of the petition, and therefore the court would not have been justified in entering judgment for the plaintiffs upon the pleadings. In this contention we think the respondent is correct. While, as will be noticed, respondent's answer admits the fact that the petition was filed with said board of railway commissioners as set forth in its petition presented to the circuit court, and that the resolution of the board set forth in the petition was adopted, and that at said hearing defendant submitted, among other things, the estimates of expense of additional train service and passenger train service, and admits that the said board of railway commissioners made the findings and order as alleged in its petition, yet it expressly denies the truth of the matter set forth in said petition, resolutions, findings, and order of said railway commissioners. Therefore, until proof had been offered establishing the facts so alleged in the said petition, the plaintiffs were not entitled to judgment, under the ordinary rules of pleading. The admissions, as will be noticed, only go to the fact that such instruments were filed, and orders made, and no further.

But if there should be any question as to the correctness of this view, under the general rules of pleading, we think there can be none under the rules of pleading in the law itself prescribing the powers and duties of the railway commissioners. Section 19 of the law reads as follows: "Whenever any common carrier as defined in and subject to the provisions of this act shall violate or refuse or neglect to obey any lawful order or requirement of the said board of railroad commissioners, it shall be the duty of said commissioners and lawful for any company or person interested in such order or requirement, to apply in a summary way, by petition, to the circuit court in any county of this state in which the common carrier complained of has its principal office, or in any county through which its line of road passes or is operated, or in which the violation or disobedience of such order or requirement may happen, alleging such violation or disobedience as the case may be;

and

said court shall proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises; and to this end such court shall have power if it think fit to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition." It will be noticed by the reading of that section that the circuit court is required to hear and determine the matters speedily, and without formal pleadings and proceedings. This section is not found in the Iowa law, from which our railway act was substantially taken, but seems to be a new section, adopted by our legislature. And its evident object and purpose was to enable a court to revise and review the proceedings of the board of railway commissioners in such manner as the court may deem promotive of justice in the premises. In this review and revision such court is not required to proceed in the ordinary method, but may ascertain the facts upon which it may base a judgment in such manner as the court may direct. Under this section, therefore, it is doubtful if it is proper for the court in any case to enter judgment upon the pleadings without first ascertaining, in such manner as it may deem proper, the facts and circumstances upon which the order of said board was made. We are of the opinion, therefore, that, in either view of the case, whether treated as a proceeding at law or equity, and governed by the ordinary rules belonging to such proceedings, or treated as a summary proceeding under the statute, where the ordinary rules of pleading do not apply, the court below was clearly correct in overruling the motion for judgment, as the case was presented to it. The order of the circuit court is aflirmed.

the substance, but to the form, merely; and the truth of the allegation stands uncontroverted, and need not be proven.

Appeal from circuit court, Day county; A. W. Campbell, Judge.

Action by the board of education of Webster independent school district, No. 101 (a corporation), against Charles H. Prior. From a judgment assessing defendant's damages, he appeals. Affirmed.

Josephus Alley, J. H. Prior, and H. H. Potter, for appellant. R. W. Parliman (Burke & Goodner, of counsel), for respondent.

FULLER, J. This statutory proceeding by a school corporation to determine the amount of compensation to be paid the owner for a narrow strip of land described in the petition, and appropriated for the purposes of the district, resulted in a verdict assessing defendant's damages at $15, and he appeals from a judgment accordingly entered.

There being no adverse claimants, the amount of compensation to be paid for the property is the only issue that was or could be tried, and the amount awarded appears from the evidence to be entirely reasonable. Laws 1891, c. 94, § 12.

Under section 2908 of the Compiled Laws, a denial of respondent's corporate existence upon information and belief was not sufficient to require any proof of the affirmative allegation to that effect contained in the petition. Cordage Co. v. Galbraith, 9 S. D. 634, 70 N. W. 1048.

It is alleged in the petition "that plaintiff and defendant are unable to agree upon a just and equitable compensation to the defendant for taking, damaging, appropriating, and condemning said parcel or strip of land,” etc.; and in his answer the defendant "denies that plaintiff and defendant are unable to agree upon a just and equitable compensation to the defendant for taking said strip of land, as alleged in said petition." Assuming, but not conceding, the materiality of the allegation, its denial-being in the language of the petition-extends, not to the substance, but to the form, merely, and the truth of the statement stands uncontroverted. Under no system of pleading is proof required, unless a denial goes to the substance and spirit of an allegation, rather than to its form and diction "as alleged in the petition." Blankman v. Vallejo, 15 Cal. 639; Maxw. Code Pl. 389; Harden v. Railway Co., 4 Neb. 521; Scovill v. Barney, 4 Or. 288; Woodworth v. Knowlton, 22 Cal. 164; Schaetzel v. Insurance Co., 22 Wis. 412; Larney v. Mooney, 50 Cal. 610; Young v. Catlett, 6 Duer, 437.

The petition and all proceedings thereunder appear to be in substantial compliance with chapter 94, Laws 1891, providing a method by which a jury is required to assess just compensation for private property taken for public use; and the record discloses nothing of which appellant, who appeared and de

PERSONAL TAXES-METHOD OF COLLECTION-VALIDITY OF CONTRACT.

1. Where the only method of collecting per sonal taxes authorized by the statute is by distress and sale, they are not recoverable by action, since they are not debts.

2. Where the collection of personal taxes is about to be enforced by distress and sale, and an agreement is entered into with the debtor whereby the property seized is released, and his liability and the liability of the property seized are to be determined by a court, an action brought under the agreement is an action to recover the taxes, notwithstanding the agreement is set forth in the complaint.

3. Where the collection of personal taxes is about to be enforced by distress and sale, which is the only method authorized by statute, an agreement entered into whereby the property seized is discharged, and the debtor agrees to submit the question of his liability and the liability of the property seized for the payment of the taxes to the determination of a court, is void and cannot be enforced, since no method can be substituted for the statutory method. Haney, J., dissenting.

Appeal from circuit court, Brule county; Frank B. Smith, Judge.

Action by Brule county against Martin K. King to recover personal taxes. From a judg ment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

S. H. Wright, for appellant. Edwin Greene and George H. King, for respondent.

CORSON, P. J. This is an appeal from an order sustaining a demurrer to the complaint, and from a judgment entered thereon. The demurrer was interposed upon the following grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges in its complaint "(2) that for the following named years the following amounts of personal taxes had been duly and legally levied, had accrued, and remained unpaid upon the tax books of plaintiff county, for state, county, city, and school purposes, against said defendant, on the 23d day of January, 1896, to wit." The taxes for the years from 1886 to 1894, inclusive, are specified, aggregating over $200. It is further alleged that these respective sums, with inter