Bruheim v. Stratton

129 N.W. 1092, 145 Wis. 271, 1911 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: February 21, 1911
• Status: Published

Opinions

KeewxN, J.

Tbe complaint in this action stated that the plaintiff was the owner of certain lands in Minnesota and that between November, 1903, and March, 1904, the defendant unlawfully and wrongfully entered upon said land and without authority wilfully and wrongfully cut standing live-timber growing thereon, and wilfully and wrongfully took and carried the same away and converted the same to his own use,, to the great injury and damage of the plaintiff, and further alleged the value of said timber converted, and demanded judgment for that amount and also treble said amount as-damages under the Minnesota statutes. The complaint also-contains allegations setting up the statutes of Minnesota respecting wilful trespass and single and treble damages. The-defendant answered admitting that the Minnesota statutes set up in the complaint were in full force and effect in the-state of Minnesota as alleged in the complaint, and denied every other allegation of the complaint.

The court below sustained an objection to any evidence under the complaint for the reason that it was a complaint in trespass upon lands in Minnesota, therefore the court had no jurisdiction of the action, and denied the application of the plaintiff to amend the complaint on the ground that it had no power or jurisdiction to allow such amendment, for the-reason that, the cause of action being one in trespass, the complaint could not be amended so as to set up a cause of action-for conversion of the timber cut.

We think the court below -erred in both particulars. In-the first place there were sufficient allegations in the complaint to make a good cause of action in conversion, and what the idea of the pleader was when- he drew the complaint was immaterial. If the allegations were sufficient to constitute a cause of action in'conversion the plaintiff was entitled to-have it treated as such by the court, and the fact that the court had no jurisdiction of the action of trespass upon the land in another state rendered the allegations respecting a cause o£ action in trespass merely surplusage, and, there being sufficient allegations aside from these to malee the complaint one in conversion, it should have been so treated by the court. Swift v. James, 50 Wis. 540, 7 N. W. 656; Bieri v. Fonger, 189 Wis. 150, 120 N. W. 862; Morse v. Gilman, 16 Wis. 504; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Franey v. Warner, 96 Wis. 222, 71 N. W. 81; Emerson v. Nash, 124 Wis. 369, 102 N. W. 921. Doubtless the complaint as originally drawn would have been subject to a motion to mate more definite and certain or to strike out the surplus allegations, but no such motion was made and defendant answered on the merits. Hagenah v. Geffert, 73 Wis. 636, 41 N. W. 967; Phillips v. Carver, 99 Wis. 561, 75 N. W. 432.

Respondent relies upon Joseph Dessert L. Co. v. Wadleigh, 103 Wis. 318, 79 N. W. 237. It will be observed, however, that was an action brought for trespass upon land in Wisconsin, which action the court had jurisdiction of. Moreover the strict rule laid down there has not been followed by this court. In Bieri v. Fonger, supra, the court said (page 155) :

“In the light of the very liberal rules for testing the sufficiency of pleadings and proceedings which have been declared in recent years and the progressive tendency to broaden the judicial vision .as to the scope of sec. 2829, Stats. (1898), aforesaid, the criticism in Joseph Dessert L. Co. v. Wadleigh, supra, would hardly be made today. The general spirit of the decision as regards essentiality of technical accuracy in pleadings and necessity for a party to stand or fall, under all circumstances, by the particular cause of action he intended to plead, is not in strict harmony with the later-day expressions and decisions.” •

It was also within the power of the court to allow the amendment which plaintiff asked, setting out the conversion more definitely. The cause of action set up in the complaint was a tort action, whether for trespass or conversion, and the power of the court to change from a cause of action in trespass to one in conversion, we think is clear. It follows that the court erred in sustaining the objection to any evidence under the complaint and also in refusing the amendment.

By the Gowrt. — The judgment below is reversed, and the cause remanded for further proceedings according to law.