Citizens Loan & Trust Co. v. Witte

86 N.W. 173, 110 Wis. 545, 1901 Wisc. LEXIS 237

• Court: Wisconsin Supreme Court
• Decided: May 21, 1901
• Status: Published

Opinion

Dodge, J.

The ground of demurrer argued is that the allegations of the complaint are not sufficient to justify a personal judgment for deficiency against Otto and Katherine Witte. Such consideration is, however, wholly immaterial. The complaint abundantly alleges that they have rights in the mortgaged premises which plaintiff, as the owner of the mortgage, is entitled to have barred and foreclosed by the judgment and sale thereunder. This constitutes a cause of action against these respondents, and the demurrer should' have been overruled, notwithstanding other relief is demanded, even if the plaintiff is not entitled to that additional relief,— a question which we do not consider or pass upon. Prayer for excessive relief does not render the complaint demurrable. Moritz v. Splitt, 55 Wis. 441; Scheibe v. Kennedy, 64 Wis. 564, 572; Rahn v. Milwaukee E. R. & L. Co. 103 Wis. 467, 472.

By the Court.— Order appealed from is reversed, and cause remanded with directions to overrule the demurrer.