Jarvis v. McBride

18 Wis. 316

• Court: Wisconsin Supreme Court
• Decided: June 15, 1864
• Status: Published

Opinion

By the Court,

DixON, O. J.

The order of the circuit court in this case must be affirmed. The misdescription of the land in the answer is so obviously a clerical mistake as to require no explanation. It appears that it was not discovered or urged in the court below. Besides, it is described in the answer as “ the land mentioned in said complaint,” which puts the intention of the pleader beyond all possibility of doubt; and, if need be, we may reject the particular and wrong description as redundant and unnecessary. In the construction of pleadings for the purpose of determining their effect, they are to be liberally construed with a view to substantial justice between the parties. R. S., ch. 125, sec. 21.

The motion was properly denied on other grounds. It goes to the whole answer, and asks that “ every allegation and part thereof” be stricken out “ as sham and irrelevant.” Now if it be conceded that the act (Laws of 1859, ch. 22,) is applicable to the case that the plaintiff is an “ assign” of the grantee named in the tax deed, within the meaning of the thirty-fifth section-still the answer is not wholly bad. The defendant may plead the payment of the tax, before the sale, without the deposit required by section thirty-eight. That was done in this case. The payment of the tax, before the sale, is regularly and sufficiently averred in the answer, and it is no objection that the defendant made no deposit. So far, therefore, the answer is good, and the motion was properly denied. 2 Whit. Pr., 170 et seq.

Order affirmed.