Robson v. Comstock

8 Wis. 372 | Wis. | 1859

By the Court,

Cole, J.

We consider the complaint in this case good after verdict. It may be technically defective in not stating that in and by said indictment, &c,, the plaintiff was charged, &c. It is not a fair and reasonable construction of the language of the complaint to say that therein the plaintiff below admits that he did on, &c., at &c., upon the land of the defendant wilfully and without authority cut down sixteen oak trees, &c. Taken in connection with the former part of the complaint and there can be but little doubt as to what is really the gravamen of the complaint. It is that the plaintiff in error "falsely and maliciously and without any reasonable or probable cause whatever indicted and caused and procured to be indicted the” defendant in error, in and by which indictment it was charged that the defendant in error, on, &c. The defective manner in stating of what the plaintiff below had been indicted is cured after verdict. Certainly the defendant in error could not have sustained his action without, among other things, showing that the plaintiff in error had caused him to be indicted for some offence. He was necessarily required to prove that Robson had procured and prosecuted against him an indictment. A fair construction of the language of the complaint shows we think what that indictment was for, and it appears by fair intendment that it was false and groundless. This must be held sufficient after verdict and judgment. 1 Saunders R. 226; Stennel vs. Hogg, and notes to that case; Graham vs. Noble, 6 S. and R. 233; Weinberger vs. Shelly, C. W. and S. 336. Besides section 65 of the code requires that in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed Avith a view to substantial justice between the parties. We feel that we should not be authorized in reversing the case, and sending it back for a new trial on account of a mere technical defect in stating the cause of action where no objection is taken to the complaint on this ground until after verdict and judgment.

The judgment of the circuit conrt is affirmed with costs.