Swift v. James

7 N.W. 656, 50 Wis. 540, 1880 Wisc. LEXIS 281

• Court: Wisconsin Supreme Court
• Decided: December 17, 1880
• Status: Published

Opinion

OktoN, J.

The complaint substantially charges that the lumber converted by the defendant came from logs wrongfully cut on the lands of the plaintiff, situated in the state of Michigan. The form and phraseology of the complaint might be strictly applicable to an action of trespass quare clausum, and if this suit had been brought in the state of Michigan the complaint might have been sustained in such a form of action.

But the suit having been brought in this state, where an action for the original trespass cannot be maintained, for want of jurisdiction, the question is presented, whether, notwithstanding such allegation of trespass on the plaintiff’s lands in the state of Michigan, the complaint may not be sustained here as in an action of trover for the conversion of the lumber, when all of the necessary allegations of a complaint in such an action are substantially made.

To prove the plaintiff’s ownership of the lumber, evidence that the logs from which it came were wrongfully cut on his lands in the state of Michigan may be given, and would be sufficient. Tyson v. McGuineas, 25 Wis., 656. Instead of averring ownership of the lumber directly, the plaintiff "avers that it came from logs cut on his lands in the state of Michigan, which is an indirect yet a substantial averment of such ■ ownership; or, in other words, the plaintiff pleads his evidence of title to the lumber, instead of the legal conclusion of title from such evidence. Such a .pleading is informal and inartistic, but, when liberally construed, which is now the rule, it must be held substantially sufficient; and it is certainly more advantageous to the defendant, by apprising him of the facts on which the plaintiff will rely to sustain his action, and he has no good ground of complaint on that score at least. Perhaps, in this view, this allegation of the original trespass cannot be treated as surplusage, as in Halleck v. Mixer, 16 Cal., 574; but it may be tolerated, as before suggested, as an informal and indirect allegation of the plaintiff’s ownership of the lumber; and proof of the trespass, as we have seen in Tyson v. McGuineas, supra, would be proper and sufficient' proof of the ownership of the lumber to sustain the action of trover. The demurrer to the complaint' should have been overruled.

It is suggested in the brief of the learned counsel of the appellant, that one reason, at least, for this form of pleading was to bring this case within the statutory rule of damages in similar cases where the lands are situated in this state; but it may be seriously questioned whether this statute can have such an extra-territorial effect, and our present impression is that it has not.

By the Court.— The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings according to law.