Rogers v. City of Milwaukee

13 Wis. 610 | Wis. | 1861

By the Court,

Paine, J.

Tbis action was brought to restrain tbe execution of certain tax deeds upon certificates of sales of tbe plaintiff’s lands for taxes. Tbe defendant demurred to tbe complaint as not stating facts sufficient to constitute a cause of action, and tbe demurrer was sustained, ■ from which order tbis appeal was taken.

It is undoubtedly true that a large part of tbe complaint is not good pleading. Tbe plaintiff relied on an absence of preliminary proceedings, essential to tbe validity of tbe sales. Bat instead of averring either of bis own knowledge or upon information and belief that such proceedings were not bad, be only averred that be bad searched in tbe proper offices for the evidence that they were bad, and failed to find it. Tbe only issue that could be made upon such allegations would be, whether be bad searched and found tbe evidence or not, which would be entirely immaterial.

But while such was tbe character of a large part of tbe complaint, we think that there was one defect averred with sufficient directness to save tbe complaint from being de-murrable. It avers that tbe street commissioners were bound by law to give reasonable and timely notice, in order that tbe owners and occupants of lots on said street might do said work, and tbe plaintiff, on information and belief, denies that any such notice was given, &c. The ■ giving of such notice was undoubtedly essential to tbe validity of tbe contracts on which tbe certificates were issued, and therefore to tbe validity of tbe sales. And tbe want of such notice is positively alleged on information and belief. This seems to us sufficient to make out a cause of action, and tbe order sustaining tbe demurrer must be reversed, with costs, and tbe cause remanded for further proceedings.