3 Wis. 270 | Wis. | 1854
By the Coiort,
We have not thought it necessary to examine the bill of exceptions in this case, to ascertain whether any errors were committed at the trial, as we are satisfied that the declaration of the plaintiff below, is wholly insufficient to warrant a judgment in his favor, whatever may have been the testimony.
The declaration appears to have been a written one, and is as follows :
“Plaintiff complains of defendants as follows, to wit: First, that they exercised the authority of district clerk and treasurer in school district No. 1, town of Cadiz, where they were not legally elected. Secondly, that Isaac Phillips made out an illegal tax list. Thirdly, that he gave it with the tax warrant to said Spencer, without requiring such a bond as the*272 directs. Fourthly, that he altered said bond in different places after it was put into his hands for safe keeping. Fifthly, that said Spencer in exercising the office of district treasurer, entered on the duties of his office before his bond was approved or filed as the law directs. Sixthly, that he never returned the tax list or warrant at the expiration of 40 days, and under color of his office, illegally levied on plaintiff’s property to the great damage of fifty dollars to him, the said plaintiff, for which he brings his suit with costs.”
The plea of the defendants is as defective as the declaration, but it is not necessary to notice it. It will be seen that the declaration does not attempt to charge any illegal acts upon- the defendants or either of them whereby damage resulted to the plaintiff, except under the sixth specification, and that charged the illegal act to have been committed by Spencer alone, without specifying what kind of property belonging to the plaintiff, Spencer had levied upon and taken.
In actions before justices of the peace, parties are not held to strictness in their pleadings ; almost every thing which is mere form may be disregarded, where, as in this case, the defective pleading is not demurred to, but the parties go to trial upon the merits.
But it is essential that the substance of an issue should be formed. When the action is in form ex delicto, the plaintiff should allege in substance that he has sustained some damage by the act or omission of the defendant, and should set out in an intelligible manner, the nature of the act of which he complains. In the case before us this is not done,
The declaration does not set forth any act done by
It is possible that this might have been sufficient, if the action had been against^Spencer alone, but as it is against two, and as the action has resulted in a joint judgment against both the defendants, it cannot be sustained.
Judgment reversed and a new trial ordered.
