Wadleigh v. Marathon Cnty. Bank

• Decision Date: 20 November 1883
• Citation: 58 Wis. 546,17 N.W. 314
• Parties: WADLEIGH v. MARATHON COUNTY BANK.
• Court: Wisconsin Supreme Court

58 Wis. 546

17 N.W. 314

WADLEIGH

v.MARATHON COUNTY BANK.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, Columbia county.

This action was commenced June 4, 1879, to recover the value of 1,000,000 feet of pine saw-logs, alleged in the complaint to have been unlawfully cut by the defendant between December 1, 1878, and May 1, 1879, upon certain lands owned by the plaintiff in fee-simple, which said logs were hauled away by the defendant and converted to its own use. The lands from which the logs are alleged to have been so taken are portions of sections 2 and 3, in township 37 N., range 5 E., in the county of Lincoln. Judgment is demanded for $1,000, the value of the logs, and for the further sum of $1,000 for the damages caused by cutting the same. The defendant answered the complaint as follows: “And now comes the defendant above named, by James & Crosby, its attorneys, and, for answer to the complaint of the plaintiff in this action, alleges, upon information and belief, it denies each and every material allegation, matter, and thing in said complaint contained,” except that of the incorporation of the defendant. A motion by plaintiff for judgment for the alleged frivolousness of the answer was denied. Subsequently, by leave of court, the defendant amended his answer by adding thereto averments that one Putnam and his grantees are the owners of the land described in the complaint by virtue of a certain tax deed therein described, dated and recorded September 6, 1878; that said lands are, and were when such tax deed was issued, wild and unoccupied, and that the cutting complained of was done by permission of said Putnam and his grantees.

To prove his title the plaintiff on the trial read in evidence a tax deed of the lands in question, issued by the county of Marathon to one Goodhue. This deed is for the taxes of 1868, sale of 1869, is dated and was recorded April 24, 1873, and is regular on its face. He also read in evidence a quitclaim deed, duly executed by said Goodhue to himself, of the same lands, dated December 18, 1878, and recorded January 4, 1879. The plaintiff rests his title on these two conveyances. These lands were in the county of Marathon until 1874, and until Lincoln county was organized, when they became a part of the latter county. Laws 1874, c. 128. The assessment of the lands for taxation in 1868 was made by the officers of the town of Jenny, in Marathon county. To impeach the tax deed to Goodhue the defendant produced in evidence the record of the proceedings of the board of supervisors of Marathon county from 1850 to 1872, inclusive. From this record it appears that prior to 1856 that county consisted of but one town, to-wit, the town of Marathon. In that year three towns were organized therein, to-wit, Wausau, Mosinee, and Eau Claire. This organization seems to have abolished, or at least disorganized, the town of Marathon. In 1857 the board divided the town of Wausau and created the towns of Marathon and Jenny. In 1865 the board added territory to the town of Jenny, after which time the boundaries of that town remained unchanged while it continued to be a part of the county of Marathon. The limits of the town of Jenny, specified in the orders of 1859 and 1865, do not include town 37 N., of range 5 E., in which the land in question is situated. There is no record showing that the lands described in the complaint were, at any time before 1874, a part of the town of Jenny, and it does not appear that such town ever exercised any jurisdiction over them before the assessment of 1868. Defendant read in evidence a tax deed of the lands in question, regular on its face, from Marathon county to one Putnam, issued upon the sale of 1875 for taxes of 1874, dated and recorded September 6, 1878. A license by Putnam to the defendant to cut the timber on the land was proved, as was also mesne conveyances by Putnam to the defendant of the same lands, which conveyances were executed after the timber was cut. The plaintiff proved that various errors, omissions, and defects appeared in the assessment and other proceedings preliminary to the execution of Putnam's tax deed, which, for the purpose of this appeal, it is assumed, rendered such tax deed void.

On the foregoing facts the circuit court nonsuited the plaintiff, and he appeals from the judgment of nonsuit.Jones & Sanborn, for appellant, H. M. Wadleigh.

James & Crosby and Moses Hooper, for respondent, the Marathon County Bank.

LYON, J.

1. Did the circuit court err in denying plaintiff's motion for judgment, for the alleged frivolousness of the original answer? If the answer was frivolous--that is, if it contained no denial of any material allegation of the complaint--the motion should have been granted, or, at least, the defendant should have been required to make a better answer. Moreover, if it is frivolous, the amended answer does not deny, and therefore admits, that the plaintiff had title in fee to the lands described in the complaint, down to the time when the tax deed was issued to Putnam, as therein alleged. If that tax deed was successfully impeached, the title would still remain in the plaintiff, and he would be entitled to recover in this action for the logs admitted to have been taken from such land by the defendant. The point made against the original answer is that it contains no direct denial, but only an averment that the defendant says it denies, etc. This form of denial was held insufficient by some of the courts of New York during the early years of the Code. But the rulings there are not uniform. In Chapman v. Chapman, 34 How. Pr. 281, the point was ruled the other way. This is the latest ruling on the question, in that state, to which we have been referred.

This case, however, does not require us to choose between the conflicting decisions in New York. It is not, we think, a fair construction of the answer to hold that it merely states that the defendant “says it denies,” etc. It commenced with the introductory statement that the defendant comes, by its attorneys, “and for answer to the complaint of the plaintiff alleges --;” then follows a direct denial in another distinct sentence: “Upon information and belief it denies,” etc. The signification of the pleading would not be changed did it read, “The defendant alleges as follows, to-wit. Upon information and belief it denies,” etc. We cannot doubt that this would be a sufficient denial.

The intention of the pleader to deny all of the material allegations of the complaint, except the incorporation of the defendant, is very manifest, and we think he has expressed that intention in the answer. The statute (Rev. St. § 2668) requires a liberal construction to be given to pleadings, with a view to substantial justice between the parties. Another statute (section 2829) commands u...