Orton v. Noonan

18 Wis. 447

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

Opinion

By the Court,

Dixozsr, O. J.

We think the nonsuit in this case must stand, on account of the defective and uncertain description of the premises contained in the complaint. The judgment must follow the complaint, and the writ of possession the j udgment. If the plaintiff should succeed, how could the sheriff put him in possession ? Of what would he put him in possession ? In attempting to do so the sheriff would at once meet with all the difficulties suggested by counsel for the defendants, and which perplexed the mind of the court below and of counsel here, and which this court is not yet prepared to resolve. Would he, as observed by counsel, divide the lot and put the plaintiff in possession by a line on the north running due east and west ? Or by a line running north-east and south-west, parallel to the south-east line of the lot ? Or by a line running parallel with the south-west line of the lot ? No one can tell what the sheriff would do until he is put to the test of actual experiment. This shows what seems to us the utter fallacy of the suggestion of the plaintiff’s counsel, that the court should give him a judgment and then send the sheriff out to find the premises. If the court, with the light of all competent evidence which can be brought to bear, cannot ascertain the premises from the description given, how is the sheriff to do so ? Evidently he cannot. It is true that the sheriff is seldom or never provided with process so explicit on its face that he can, without the aid of extrinsic information, execute it with unerring certainty. He must avail himself of the information of others as to location, boundaries &c. But then' he must always have process so certain on its face, that, with the help of such extrinsic information, he can look upon it and say that sucb or such are tbe premises described. This he could not do in the present case, and therefore no recovery can be, had upon the complaint as it now is.

No question of the duty of the court to allow an amend’ ment of the complaint is presented. The plaintiff did not ask it, but stood upon the complaint as originally drawn. Nor is the uncertainty such an one as could have been corrected by adverse motion before trial. It does not appear upon the face of the complaint, but is only brought to view by the facts disclosed on the trial, and when we attempt to apply the description to the premises as they are actually shown to be.

Judgment affirmed.