38 Wis. 202 | Wis. | 1875
The complaint is fatally defective, and the demurrer thereto should have been sustained. True, the complaint alleges that the plaintiff, as sheriff, seized the logs in controversy by virtue of. a writ of attachment to him directed and delivered, and that the defendant wrongfully took and un-j ustl}'- detains such logs; but it fails to aver facts showing that the logs were liable to seizure by virtue of the attachment. It is not stated whether the attachment was issued under the general attachment law of the state (R. S., ch. 130), or under the act providing for a lien for labor and services upon logs and lumber (Laws of 1862; ch. 154; Tay. Stats., 1768)but the bill of exceptions shows that it was issued under the latter act. Had it been issued under the general law, the complaint should have stated, in some form, that the logs were the property of the defendant in the attachment; but, having been issued under the act of 1862, there should be an averment that the plaintiff in the attachment performed labor on the logs in controversy. The complaint is barren of these or equivalent averments. No fact is therein stated which shows or tends to show that the defendant is liable to the plaintiff in this action. Every averment of fact in the complaint may be true, and yet the defendant may be the owner and entitled to the possession of the logs. The averments that the taking was wrongful and the detention unjust, are mere propositions of law, and no facts are pleaded to support them. It seems apparent that the complaint fails to state a cause of action.
On this appeal it is our duty to review the order overruling
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.