Stahl v. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 94 Wis. 315

Stahl v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

94 Wis. 315 | Wis. | 1896

Newman, J.

The complaint, clearly, does not state a cause of action against the appellant. It neither alleges that the appellant at some time had possession of the plaintiff’s property, nor that, being in possession of it, it refused to surrender on a proper demand. . These were material and necessary allegations, for replevin does not lie against a party who has never been in possession of the plaintiff’s goods (Grace v. Mitchell, 31 Wis. 533); nor against one who came lawfully into possession, until after a refusal to deliver them on a proper demand (Nay v. Crook, 1 Pin. 546). These necessary allegations cannot be found in, nor inferred from, the general allegation or conclusion that “ the defendants unlawfully detained the same.” It is elementary that the facts which constitute the plaintiff’s cause of action must be *318pleaded. Such, facts are to be alleged directly and positively, and not by way of recital or inference, nor as conclusions of law. The complaint alleges no fact which in any way implicates the appellant with the wrong of which the plaintiff complains. So the complaint is no support to the judgment against the appellant. The special verdict finds no fact which implicates the appellant. It is limited strictly to the determination of the issues which were litigated between the plaintiff and the defendant Lynn. So the verdict gives no support to the judgment. Nor is the judgment supported by the mandate of this court on a former appeal. Stahl v. Lynn, 86 Wis. 75. The mandate was “ to render the proper judgment for the plaintiff.” This could only mean the judgment which was the proper one to be rendered on the special verdict. No further trial was contemplated. The stipulation contains no consent to the entry of a judgment against the appellant. No such consent is expressed. The stipulation is signed only by the attorneys of the defendant Lynn. It is evident that they intended to bind only their own client, and did not contemplate the entry of a judgment against the appellant. If they had attempted to stipulate for a judgment against the appellant, that would present a different question. So it appears that the judgment is supported neither by the complaint, the verdict, the mandate of this court, nor the stipulation. It is entirely without support in the record. It should have been set aside.

By the Oourt.— So much of the judgment of the circuit court as is against the appellant is reversed, and the cause remanded for further proceedings according to law.

Marshall, J., took no part.