Whittier v. Atkinson

• Decision Date: 07 January 1941
• Citation: 295 N.W. 781,236 Wis. 432
• Parties: WHITTIER et al. v. ATKINSON.
• Court: Wisconsin Supreme Court

236 Wis. 432

295 N.W. 781

WHITTIER et al.

v.ATKINSON.

Supreme Court of Wisconsin.

Jan. 7, 1941.

Appeal from an order of the Circuit Court for La Crosse County; R. S. Cowie, Judge.

Affirmed.

Action brought by the plaintiffs, Emma Whittier and Sena Sleeman, against Levi Atkinson and five other persons named as defendants. In relation to these five persons, there are no allegations in the complaint purporting to state a cause of action against them, but there are allegations in relation to Atkinson which plaintiffs claim state a cause of action against him for the conversion of the assets of a partnership of which plaintiffs were entitled to have possession as the only surviving partners. Atkinson demurred to the complaint on several grounds, and upon the entry of an order overruling the demurrer, he appealed therefrom.Lees, Bunge & Fuller and Hubert V. Fuller, all of La Crosse, for appellant.

Curtis C. Weisse, of La Crosse, for respondents.

FRITZ, Justice.

[1][2] In support of his demurrer the defendant, Levi Atkinson, contends (1) that he is not a proper party to the action for the reason that it appears he never was a member of the alleged partnership; (2) that there is a defect of parties defendant because two members of the partnership are alleged to be deceased and no representative of the estate of either is made a party to the action; (3) that the action is barred by the Statute of Limitations, sec. 330.19(6), Stats.; and (4) that if it were not barred by the Statute of Limitations, the plaintiffs were guilty of laches which deprives them of any right to equitable relief. These contentions are based upon the assumption that plaintiffs intended to allege a cause of action against Atkinson for an accounting as a partner in relation to partnership assets of which he took possession. That assumption was evidently prompted largely by the relief which is sought by the terms of the prayer of the complaint, and which might have been appropriate if, as basis therefor, it had been alleged that Atkinson was a member of a partnership and as such had wrongfully withheld partnership assets for which plaintiffs sought to have him account. There are, however, no allegations to that effect; and on the other hand plaintiffs assert, in opposing the challenge by demurrer addressed to the complaint, that sufficient facts are alleged therein to constitute a cause of action against Levi Atkinson for conversion of the assets of a partnership for which he was not a member, but of which plaintiffs are the surviving partners and entitled, as such, to recover herein the damages sustained by reason of that conversion. If that was the true nature and but the purpose of the cause of action which plaintiffs intended to allege, then there has seldom come to our attention a pleading in which there are allegations of facts and the statements in the prayer as to relief sought as confusing and misleading in relation to the intended nature of the cause of action and the relief sought thereon, as in the complaint under consideration. “However”, as this court said in Roe v. Lincoln County, 56 Wis. 66, 70, 13 N.W. 887, “inartificially the facts may be presented by the complaint, or however defective, uncertain, or redundant may be the mode of their statement, if a good cause of action can be gathered from it by a liberal interpretation, a demurrer to it will not be sustained” (Flanders v. McVickar, 7 Wis. 372;Morse v. Gilman, 16 Wis. 504;Williams v. Sexton, 19 Wis. 42); and as the court said in Trade Press Pub. Co. v. Milwaukee Typo. Union, 180 Wis. 449, 459, 193 N.W. 507, 510, “The prayer for relief being no substantive part of the complaint, *** that plaintiff asks for more relief than that which his pleaded facts entitle him to have is not reached by demurrer.” See also Spencer Co-op. Live Stock S. Ass'n. v. Schultz, 209 Wis. 344, 245 N.W. 99;Fondtosa Highlands, Inc. v. Paramount D. Co., 212 Wis. 163, 169, 248 N.W. 131. Moreover, as we said in Fisher v. Goodman, 205 Wis. 286, 237 N.W. 93, 94: “That the complaint does not state facts sufficient to entitle plaintiff to equitable relief is not a ground of demurrer under section 263.06 [Stats.]. That section authorizes a demurrer when the complaint does not state facts sufficient to constitute a cause of action. Under section 263.07 a general demurrer to a complaint cannot be sustained if the facts stated entitle the plaintiff to any measure of judicial redress, whether legal or equitable. As the facts alleged in this complaint disclose that plaintiff's rights have been invaded, a demurrer to the complaint cannot be sustained even though it appears that she is not entitled to equitable relief.” Consequently, if facts are alleged in a complaint which are sufficient to constitute any cause of action, then the demurrer must be overruled regardless of the relief prayed for in the complaint, even though other facts are alleged which are immaterial to, but do not negative or defeat the existence of that cause of action.

In the complaint there are allegations to the following effect: In 1903 the plaintiff Emma Skapple (now Emma Whittier), and the plaintiff Sena Skapple (now Sena Sleeman), together with their sisters Lena Skapple and Jennie Skapple (who married the defendant, Levi Atkinson, in 1933), formed a co-partnership, known as the Skapple Sisters, to acquire and conduct a...