Barclay v. Yeomans

27 Wis. 682 | Wis. | 1871

Cole, J.

Our statute declares that the complaint in actions to recover real property shall set forth that the plaintiff has an estate or interest in the premises claimed, particularly stating the nature and extent of such estate or interest, “ and that he is entitled to the possession of such premises, and that the defendant unlawfully withholds the possession thereof from him.” Section 4, chap. 141. We do not very well see upon what ground the court can disregard so plain and positive a provision of the statute. In the complaint before us it is alleged that the plaintiffs are the owners in fee of the real estate, and that the defendant is in the possession of it, “and wrongfully and unlawfully withholds the possession of the same from said plaintiffs.” But there is no averment that the plaintiffs “ are entitled to the possession of the premises,” as the provision above referred to requires. It is said that it is quite unnecessary for the plaintiff, after he has stated in the complaint that he is the owner in fee of the premises, and that the defendant was in the possession of them, and “ wrongfully and unlawfully withholds the possession of the same” from him, to allege that he is entitled to the possession. The idea that he is entitled to the possession, is necessarily involved in the averment that the defendant unlawfully and wrongfully withholds the.possession from him. There is certainly force in this position, but it is 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. The legislature has undertaken to say what the complaint in this class of actions shall contain; and whether all the requirements are wise or not, is not for us to determine. It is sufficient to say that the language is plain and positive as to what shall be stated in the complaint; and, unless we nullify the statute, effect must be given to this language.

We have been referred to some authorities in support of the position that the complaint is sufficient; but these decisions of the courts of other states will not justify us in disregarding a statutory requirement.

By the Court. — The order of the circuit court, overruling the demurrer, is reversed, and the cause remanded for further proceedings.