Platto v. Jante

35 Wis. 629

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

Ryan, C. J.

The second clause of sec. 3 of ch. 141. R. S., authorizes the action of ejectment, in certain cases, against persons not in actual possession. Sec. 4 requires the complaint in the action to aver that the defendant unlawfully withholds the possession of the premises.

In this case, the appellant claims to have framed his complaint under sec. 3, and contends that it is well framed because it follows the words of that section. The respondents reply that sec. 3 merely gives the right of action, but that the rule of pleading the right is given by sec. 4, which the complaint confessedly does not follow.

This is not an open question in this court. Every complaint under sec. 3 must contain the averments prescribed by sec. 4. Barclay v. Yeomans, 27 Wis., 682; Lee v. Simpson, 29 id., 338; Wals v. Grosvenor, 31 id., 681.

It is true that sec. 4 requires an averment not strictly true in fact, in such a case as this, brought under the second pro-vision of sec. 3. But tbe former section is imperative. And 'tbe position of tbe appellant, not without much force in itself, is, in tbe language of tbe court in Barclay v. Yeomans, “ an argument rather to be addressed to the legislature, against the wisdom of the provision as it now stands, than one for the consideration of the courts.”

It is not claimed that the complaint is under sec. 29 of the .same chapter. It would be equally defective under that section. Wals v. Grosvenor, supra.

By the Court. — The order of the court below, sustaining a ■demurrer to the complaint, is affirmed.