Minard v. Burtis

Decision Date25 October 1892
Citation53 N.W. 509,83 Wis. 267
PartiesMINARD v. BURTIS.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

Action by Dwight Minard against Lawrence Burtis for unlawful detainer of land. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was commenced in justice's court under the statute giving a remedy in case of unlawful detainer, and the complaint charges that on or about the 13th day of March, 1891, the above-named plaintiff was, and ever since has been, in the possession of the following described premises, to wit, (describing the premises in particular;) that on the 4th day of April, 1891, the defendant was a tenant by sufferance of the plaintiff, and was then, and still is, occupying the premises above described without the consent of the plaintiff; that on said 4th day of April the plaintiff served on defendant personally a notice in writing in the words and figures following, to wit, (setting out a written demand, signed by said respondent, and addressed to the said appellant,) demanding that he deliver up and surrender to him the said farm, (describing it,) “which you now hold of me unlawfully, for the reason that all your rights in and to said premises, with the conditions and agreements of the lease under which you went into possession therein, have fully terminated,” and that, unless possession was delivered as demanded, he would proceed to obtain possession as by statute in such case made and provided. The complaint sets forth that more than 30 days had elapsed since the service of the notice, and the defendant “still unlawfully and wrongfully occupied said premises, and refused to deliver them to the plaintiff;” wherefore he prayed for a summons and proceedings as by statute provided. On the return of the summons, the defendant denied the allegations of the complaint, and claimed that he was in possession of said premises as the lessee of one Charles A. Paddock, who, at the time of making the lease to him, was lawfully seised in fee simple, and alleging that the plaintiff claimed title to the premises by virtue of a warranty deed of said premises from Paddock to himself, made for the fraudulent purpose of terminating his lease. The defendant having objected to any evidence under the complaint at the trial before the justice, the plaintiff moved to amend the complaint by alleging that he “was on the 13th day of March, 1891, and ever since has been, entitled to the possession of the following described premises, instead of alleging that he “was, and ever since that time has been, in the possession,” etc. The amendment was granted, and the defendant excepted. The plaintiff had judgment before the justice, and defendant appealed to the circuit court, and in that court moved to dismiss the action for want of jurisdiction of the court to try and determine the same. This motion was denied, and upon trial the plaintiff had a verdict and judgment, from which the defendant appealed, on the grounds that the complaint was not sufficient to give the justice jurisdiction of the action; that the allegation of service of the notice contained in the complaint was insufficient; and that a notice for 30 days, served on the 4th of April, was not notice for a calendar month sufficient to terminate tenancy by sufferance.Cornelius Buckley, and Smith & Pierce for appellant.

J. G. Wickham, ( Doe & Sutherland, of counsel,) for respondent.

PINNEY, J., ( after stating the facts.)

The only question in this case is whether the complaint stated facts sufficient to show a cause of action within the jurisdiction of the justice. The objections to the complaint were not taken until after answer on the merits, and by objection at the trial to any evidence under the complaint. It is a settled rule that when objections are...

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5 cases
  • Peffer v. Cutler
    • United States
    • Wisconsin Supreme Court
    • October 25, 1892
  • McGinn v. State
    • United States
    • Nebraska Supreme Court
    • November 19, 1895
    ...end of the month; but they are nevertheless instructive as tending to sustain the assertion of counsel that in no case, except in Minard v. Burtis, supra, was the rule applied by the district court contended for. natural and necessary deduction from the authorities above cited is that the t......
  • McGinn v. State
    • United States
    • Nebraska Supreme Court
    • November 19, 1895
    ...and that the respondent, who was chosen at the election held on the day last mentioned, was not entitled to the office. In Minard v. Burtis, 83 Wis. 267, 53 N. W. 509, we observe this language: “It is also said that the notice was not given one calendar month before the action was commenced......
  • Rupp v. Bd. of Dirs. of Assembly No. 58 of Equitable Reserve Ass'n
    • United States
    • Wisconsin Supreme Court
    • December 7, 1943
    ...complaint must specifically allege in the words of the statute that the holding over is ‘without such permission.’ In Minard v. Burtis, 83 Wis. 267, 271, 53 N.W. 509, 511, the court distinguished the Conley case. The court said: ‘The point upon which the case of Conley v. Conley, 78 Wis. [6......
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