Dean v. Wheeler

2 Wis. 224

Opinion

By the Court,

"Whiton, C. J.

For the reasons given in the preceding case of Dewey vs. Fifield, ante, p. 73, the judgment in this case must be reversed. The declaration contains two counts, in each of which it is alleged that the plaintiffs in error, (who were the defendants below,) were indebted to the plaintiff for work and labor upon, and materials for a building, to be used as an oil mill, situated “ on lot number one, on block number two hundred and sixty-one,” of the village of Madison. There is nothing in the declaration to show that a “ claim or petition” was filed as provided in the statute, and of course nothing to show that the plaintiff was entitled to a lien upon the building.

This is a material fact, to be established by proof, and therefore necessary to be averred in the declaration. The judgment is also erroneous, for the reason that it makes the lot upon which the oil mill is .situated, liable for the debt, instead of the interest of Dean and Ruggles in it..

J udgment reversed.