35 Wis. 629 | Wis. | 1874
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
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.