Hunt v. Miller

77 N.W. 874, 101 Wis. 583

• Court: Wisconsin Supreme Court
• Decided: January 10, 1899
• Status: Published

Opinion

Dodge, J.

1. The argument in this court proceeded upon the assumption that the copy of the complaint served on the defendant Miller did not state a cause of action, because of absence of the county board seal on the deed therein set forth; and the contention of the respondent was to the proposition that, nevertheless, the demurrer was properly sustained, for the reason that the original complaint on file' was not defective in that respect. We dp not agree with this contention, but hold that, for the purposes of the demurrer, the copy of the complaint served on the defendant Miller is the document under consideration; that a party has a right to rely upon the copy of the pleading served upon him as a true copy; and that the party serving it is estopped from contending that the original paper differs therefrom,— predicating this view upon Knowles v. Fritz, 58 Wis. 216. We therefore consider the copy of the complaint served upon the defendant Miller as the document demurred to.

The question raised by the general demurrer is whether the copy of the complaint delivered to this defendant fairly notifies him of facts claimed to exist suificient to constitute a cause of action; and as no failure in that respect is pointed out, except the absence of any attempted fac simile of the seal of the county board from the copy of the deed as set forth in said, copy of the complaint, the exact question is whether the complaint as served upon him notifies him that plaintiff claims title under a deed claimed to have been duly executed and sealed by the county clerk. The complaint alleges that the deed was “ made, executed, and delivered to the plaintiff, by the county clerk of Douglas county, pursuant to law.” The deed recites: “ I, Christian Eimon, county clerk, have executed this deed, . . . and affixed the seal of the board of supervisors.” His signature is then indicated thus: “Chris. Eimon. [Seal.]” It was held by this court in Dolan v. Trelevan, 31 Wis. 147, that such allegations would suffice, even though n o intimation, such as the letters “ [L. S.],” or the word “ [Seal],” or any attempted fac simile of the county board’s seal, appeared on the copy of the deed set forth; for the reason that the recitation in the attestation clause sufficed to notify the defendant that the original deed was duly sealed. It is not necessary in this case to go so far as in that, for here, upon the face of the paper, defendant is notified that the deed bears some kind of a seal, and, by application of the liberal intendments accorded pleadings under our statute, it is fairly inferable that the seal so affixed is the seal required by law and referred to in the attestation clause.

2. The failure of the complaint to state specifically what parts of the $92.72 of subsequent taxes were paid upon the respective parcels of land, if material, at most served only to render the complaint obnoxious to a motion to make more specific. It is no ground for general demurrer.

3. The provisions of the order limiting the time for answer to ten days, and directing that the case be on the trial calendar for the then current term, were within the sound •discretion of the circuit courj;, in the exercise of which we discover no abuse.

By the Court.— Order overruling demurrer affirmed.

Bandeen, J., took no part.