Paine v. Trumbull

33 Wis. 164

• Court: Wisconsin Supreme Court
• Decided: June 15, 1873
• Status: Published

Opinion

LyoN, J.

In general, an allegation of time in a pleading is immaterial, and need not be proved strictly as alleged. But when time is made descriptive of the identity of the subject of the action, it thereby becomes material, and must be proved as stated. 1 Green! Ev., §§ 56 to 61, inclusive. In this case the plaintiffs expressly limited their cause of action to such services as they had rendered for the defendant within the six years immediately preceding the commencement of their action, and thus made that period “ descriptive of the identity of the subject of the action.” They could not, therefore, legally be permitted to recover for any services which were not rendered within the time limited by their complaint.

There is an exception to another ruling of the court, and also a question of costs. But it is not deemed necessary to consider these.

The printed case contains forty-four pages of oral testimony given in the form of questions and answers. By far the largest portion of id is entirely immaterial to the questions presented to this court for determination. All the material portions could easily have been condensed on eight or ten pages. So flagrant a violation of the rule of this court on that subject, we cannot permit to pass without notice. In the taxation of costs the clerk will deduct thirty-five pages from the case, and allow only the residue.

By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.