Minard v. Burtis

53 N.W. 509, 83 Wis. 267, 1892 Wisc. LEXIS 228

• Court: Wisconsin Supreme Court
• Decided: October 25, 1892
• Status: Published

Opinion

Pinney, J.

1. The only question in this case is whether the complaint stated facts sufficient to show a cause of action within the jurisdiction of the justice. The objections' to the complaint -were not taken until after answer on the merits, and by objection at the trial to any evidence under the complaint. It is a settled rule that when objections are thus taken a greater latitude of presumption will be indulged in than upon a formal demurrer. Doud v. W., P. & S. R. Co. 65 Wis. 108. Objections that would form the ground only for special demurrer under the former practice will be disregarded. The question is whether the complaint does not, in substance, state a case which, upon demurrer, would warrant a judgment in the plaintiff’s favor; if so, it is an undoubted case of jurisdiction. Grignon's Lessee v. Astor, 2 How. 338.

Tested by the rule laid down in Conley v. Conley, 78 Wis. 665, 666, the complaint shows that the holding of possession complained of was after the tenancy of defendant by sufferance had been terminated. If so, the complaint was sufficient. The facts are sufficient to authorize the defendant’s removal. Jarvis v. Hamilton, 16 Wis. 574. The plaintiff was not required to set out the evidence by which these facts could be established. The complaint is framed in a very imperfect manner. It is evident that the omission of the words “ entitled to ” possession of the premises was the result of a clerical mistake. The entire, form and substance of the other allegations show this to be the case; besides, the allegation that the defendant was a tenant by sufferance of the plaintiff, and the allegations showing that such tenancy had been terminated, were sufficient to show a right to recover. We do not think any intelligent person could mistake the scope and meaning of the complaint, or be misled by the omission of these words, afterwards inserted by amendment.

2. It is objected, also, that the notice to terminate the tenancy by sufferance, as set out in the complaint, was not given in the proper manner; that the allegation that it “ was served upon the defendant personally ” is not a compliance with sec. 2183, R. S. 1878. which provides that a tenancy by sufferance “may be terminated by the landlord’s giving one month’s notice in writing to the tenant, requiring him to remove from the demised premises,” which notice is required by sec. 2184 to “ be served by delivering the same to such tenant or to some person of proper age residing on the premises, or, if the tenant cannot be found, . . . by affixing the same in a conspicuous part of the premises, where it may be conveniently read.” It is said that personal service may be made by merely reading the notice to the tenant without delivering it. Personal service is defined to be the “ delivery of an original writ, notice, or other paper, or a copy thereof, with oral information as to the contents, to the person who is to be affected by the service.” Anderson, Law Diet., PeksoNal Servios. Black, Law Diet., is to the same effect. Besides, what constitutes personal service for the purpose of the sufficiency of the averment may well be held to be what the law specifies as personal notice in relation to the particular matter in hand under sec. 218L

It is also said that the notice was not given one calendar month before the action was commenced; that, having been given April 4th, it would not be complete until June 1st. We cannot adopt this view. If given the proper number of days before action brought, as contained in the calendar month in which it was given, as in this case, it was sufficient.

The objections urged upop the face of the pleadings and verdict only are too technical, and cannot be allowed. The remedy sought in this case is a civil remedy only, and no fine could be imposed. R. S. sec. 3366. The complaint was not required to be verified. Under the process issued on filing it the defendant could not be arrested, or his property seized, or his property rights in any way directly affected. There is no reason for requiring a technical accuracy and precision of proceeding, not now required in criminal cases. The point upon which the case of Conley v. Conley, 78 Wis. 666, went was that the complaint did not allege, either in words or in substance, that the defendant held over without permission of the landlord, and that the notice set out in the complaint did not contain, in substance, what the statute required it should eontain. This case, while holding a sufficiently strict rule, at least, comes far short of sustaining the defendant’s contentions.

We do not find any material error in the proceedings.

By the Court.— The judgment of the circuit court is affirmed.