Methodist Episcopal Church of Ashland v. N. Pac. R. Co.
| Decision Date | 25 November 1890 |
| Citation | 47 N.W. 190,78 Wis. 131 |
| Parties | METHODIST EPISCOPAL CHURCH OF ASHLAND v. NORTHERN PAC. R. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Ashland county; J. K. PARISH, Judge.
This action is to recover possession of a certain lot in the city of Ashland, and damages for withholding possession thereof from plaintiff. It is alleged in the complaint that on May 20, 1874, the plaintiff was seised in fee, and possessed, and entitled to possession, of the lot; that “while the plaintiff was so seised the defendant afterwards, on the 25th day of December, 1884, and without right or title, entered into possession of the demanded premises, and ousted and ejected plaintiff therefrom, and now unlawfully withholds the possession thereof from the plaintiff, to its damage in the sum of three hundred dollars;” and that the value of the rents and profits of the lot since such disseisin is $300. Judgment is demanded (1) for the recovery of the lot, and $300 damages for withholding the possession thereof; and (2) for $300 rents, issues, and profits thereof. The defendant demurred specially for alleged want of legal capacity in plaintiff to sue, and for defect of parties; and generally for the alleged reason that the complaint does not state a cause of action. The circuit court overruled the demurrer, and the defendant appeals from the order in that behalf.Catlin & Butler, for appellant.
John F. Dufur, for respondent.
LYON, J., ( after stating the facts as above.)
The special causes of demurrer assigned are abandoned. The only question to be determined is, does the complaint state a cause of action? It is alleged therein that in 1874, the plaintiff was seised in fee, and possessed and entitled to the possession of the lot in controversy, but, in the portion which charges defendant with having disseised the plaintiff in 1884, the plaintiff's seisin at the time is alleged; but there is no express allegation that it was then entitled to the possession,--much less that it was so entitled when the action was commenced. The statute provides that the complaint in ejectment shall specify, among other things, that the plaintiff is entitled to the possession of the premises demanded. Rev. St. § 3077. This means, of course, that he is so entitled at the commencement of the action. Such averment is essential to the right of action, and the want of it is not supplied by the statement that the defendant now unlawfully withholds possession of the lot...
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