Barclay v. Yeomans
Wisconsin Supreme Court
APPEAL from the Circuit Court for Bierce County. The complaint in the court below averred title in the plaintiffs, and wrongful possession in the defendant, but did not aver that the plaintiffs were entitled to the possession of the premises, as required by section 4, chapter 141 of the Revised Statutes. The defendant demurred to the complaint as not containing this averment.
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APPEAL from the Circuit Court for Bierce County. The complaint in the court below averred title in the plaintiffs, and wrongful possession in the defendant, but did not aver that the plaintiffs were entitled to the possession of the premises, as required by section 4, chapter 141 of the Revised Statutes. The defendant demurred to the complaint as not containing this averment. The demurrer was overruled, and defendant appealed. argued that the complaint must strictly conform to the statute, as being in derogation of the common law. contended, that where a statute requires two statements,…
1Opinion of the CourtCole, J.
Our statute declares that the complaint in actions to recover real property shall set forth that the plaintiff has an estate or interest in the premises claimed, particularly stating the nature and extent of such estate or interest, “ and that he is entitled to the possession of such premises, and that the defendant unlawfully withholds the possession thereof from him.” Section 4, chap. 141. We do not very well see upon what ground the court can disregard so plain and positive a provision of the statute. In the complaint before us it is alleged that the plaintiffs are the owners in fee of the…
2Cited by8 opinions
- Wilson v. HenryWisconsin Supreme Court · 1876
- Stephenson v. WilsonWisconsin Supreme Court · 1880
- Mash v. BloomWisconsin Supreme Court · 1907
- Methodist Episcopal Church of Ashland v. Northern Pacific RailroadWisconsin Supreme Court · 1890
- Platto v. JanteWisconsin Supreme Court · 1874
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