Strunk v. Smith

36 Wis. 631

• Court: Wisconsin Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Lyon, J.

This complaint will shock the professional sensibilities of any lawyer who is reasonably familiar with common law rules of pleading; and, knowing, as we do the ability and accuracy of the attorneys whose names are signed to it, it is a matter of some surprise to us that they could have brought themselves to put in a pleading so barren of averment, that, were those rules to govern, it could not stand a moment before a demurrer.

But we may not indulge in much criticism of this complaint, for we find ourselves compelled to hold it sufficient under our code of procedure, which provides as follows : “ In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims.” R. S., ch. 125, sec. 24 (Tay. Stats., 1443, § 26). This action is founded upon an instrument for the payment of money only; in his complaint the plaintiff has given a copy of such instrument, and states that there is due to him thereon, from the defendants, a specified sum, which he claims and for which he demands judgment. The law says that this is sufficient. We are not at liberty to hold that it is not. See Veeder v. The Town of Lima, 11 Wis., 419; Reeve v. Fraker, 32 id., 243. As to the second ground of demurrer, see Giffert v. West, 33 Wis., 617, and cases cited.

Whether averments of “ demand of payment, protest and notice thereof,” would have been necessary had not the defendants expressly waived the same, we are not called upon to determine. It is scarcely necessary to add that we do not understand from the complaint that the defendants indorsed the note “without recourse,” but that those words on the note relate solely to the indorsement of Daniel Clow.

By the Court. — Order affirmed.