Spenseley v. Janesville Cotton Manuf'g Co.

• Decision Date: 03 March 1885
• Citation: 62 Wis. 549,22 N.W. 574
• Parties: SPENSELEY v. JANESVILLE COTTON MANUF'G CO. AND OTHERS.
• Court: Wisconsin Supreme Court

62 Wis. 549

22 N.W. 574

SPENSELEY

v.JANESVILLE COTTON MANUF'G CO. AND OTHERS.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from circuit court, Rock county.

A. A. Jackson, for respondent.

Wm. Ruger, for appellants.

ORTON, J.

The complaint is for the partition of a certain water-power, and for the determination of disagreements between the owners thereof, under chapter 134, Rev. St., as amended by chapter 203, Laws 1881. The motion of the defendants was to strike out, as immaterial and irrelevant, certain parts of the complaint, or to make them more definite and certain; and to strike out other parts as immaterial and irrelevant, and to make other parts more definite and certain; and to strike out another part as sham and immaterial. Parts of a complaint may be stricken out as irrelevant, redundant, or scandalous, (section 2683, Rev. St.,) but not as sham or immaterial; and a complaint may be made more definite and certain when the precise nature of the charge is not apparent. Those parts of the complaint pointed out in the motion as objectionable, are such as undertake to set out the chain and history of not only the plaintiff's title to a certain portion of the water-power, but also the chain and history of the several titles and interests of the defendants therein. The complaint may be redundant in this respect, but it is certainly not “irrelevant or scandalous” matter. It is wholly unnecessary and superfluous to set out all the evidence of the various titles to the water-power. In partition suits it is sufficient to aver in general terms that each tenant named is seized of his part thereof by descent or purchase. 2 Barb. Ch. Pr. 290; 3 Barb. Ch. Pr. 704. This was under the old practice, in which greater exuberancy of statement seems to have been allowed, perhaps because the costs were rated by the folio. But, under the Code, a concise statement is sufficient. Section 2646, Rev. St.; Noble v. Cromwell, 27 How. Pr. 289.

The proceeding itself shows that a particular statement of the various titles is unnecessary and redundant. To take issue upon such statement, made by the plaintiff or petitioner, might not meet the whole controversy; for each defendant alleged to have an interest in the water-power ought to be left free to contest the right of the plaintiff, or of any other defendant, and to insist upon his own right adversely to it. To partition the power among the several owners, implies the determination of the question...