McKenzie v. Peck

42 N.W. 247, 74 Wis. 208, 1889 Wisc. LEXIS 80

• Court: Wisconsin Supreme Court
• Decided: April 25, 1889
• Status: Published

Opinion

Lyon, J.

I. That portion of the judgment which makes the amount thereof a lien upon the logs skidded and hauled by the plaintiff cannot be upheld. No such relief is demanded in the complaint, and no answer has been interposed. In such case the statute is imperative that the relief cannot exceed that demanded in the complaint. It is immaterial that the complaint alleges sufficient facts to show the plaintiff entitled to a lien, had he demanded it. In the absence of such demand, and of an answer, those allegations are inoperative. R. S. sec. 2886. The case of Zwickey v. Haney, 63 Wis. 464, is identical in principle with the present case. See, also, Edleman v. Kidd, 65 Wis. 25, and Morris v. Peck, 73 Wis. 482. But it is unnecessary to cite adjudications on the subject, for the statute is too plain and imperative to admit of any question as to its meaning, or any evasion of its requirements. That it rules a case under the law giving a lien upon logs and timber for labor performed thereon, we cannot doubt. The question of the sufficiency of the attachment was argued, but it is unnecessary to determine it.

II. The judgment against defendant for the amount claimed in the complaint should not be disturbed. The summons was personally served upon him, and the complaint alleges facts which entitle the plaintiff to the personal judgment he demanded and recovered.

By the Court.— The personal judgment against the defendant for the amount demanded is affirmed. That part of the judgment which makes the amount thereof a lien on the logs described therein is reversed. The plaintiff must pay the clerk’s fees, beyond which no costs are allowed to either party.