Fairbanks v. Isham
Wisconsin Supreme Court
APPEAL from the County Court for Milwaukee County. The action was brought to foreclose a mortgage executed by tbe defendant Platto, who conveyed the mortgaged premises to the defendant Isham, and he was for that reason made a party defendant to the action. The defendant Isham demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause for action. The county court overruled the demurrer and the defendant Isham appealed.
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APPEAL from the County Court for Milwaukee County. The action was brought to foreclose a mortgage executed by tbe defendant Platto, who conveyed the mortgaged premises to the defendant Isham, and he was for that reason made a party defendant to the action. The defendant Isham demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause for action. The county court overruled the demurrer and the defendant Isham appealed. The points arising on the demurrer are stated in the opinion of the court.
1Opinion of the Court
By the Court,
Dixon, C. J.
There is no error in the case. As to the first one assigned, that it is irregular for the pleader *119to set out what he conceives to be the substance of the condition oí the bond, the counsel is condemned by his own authorities. To state the substance of a written instrument is to state it according'to its, legal effect; and this Has. always been allowable. In doing so, the pleader has this danger to guard against, that he may mistake the legal effect, which if he does, there will be a variance, and the instrument will be excluded at the trial. If, however, he mistake…
2Cases cited1 opinion
- Morley v. GuildWisconsin Supreme Court · 1861
3Cited by3 opinions
- Greeley v. ScottUnited States Circuit Court for the Northern District of Florida · 1875
- Baldwin v. TilleryMississippi Supreme Court · 1884
- State ex rel. Harvey v. Plankinton Arcade Co.Wisconsin Supreme Court · 1923