Sage v. McLean

LyoN, J. It is the settled doctrine of this court, that when the appeal is from a judgment on a demurrer for frivolousness, if the demurrer is not well taken, although not frivolous, the judgment will be affirmed. Cobb v. Harrison, 20 Wis., 625. But if the appeal be from the order striking out the demurrer as frivolous, the order will be reversed if the demurrer is not frivolous, although not well taken. Weishaupt v. Weishaupt, 27 id., 621. This being an appeal from the order striking out the demurrer, and not from a judgment, the sole question is, whether the demurrer is frivolous. The statute requires (among other things) that the complaint in an action for the recovery of real estate shall set forth that the plaintiff has an estate or interest in the premises claimed, particularly stating the nature and extent thereof. R. S., ch. 141, sec. 4 (Tay. Stats., 1666, § 5). If the complaint is deficient in this respect, it is demurrable. Barclay v. Yeomans, 27 Wis., 682. The statute clearly requires the plaintiff to set forth in his complaint the nature and extent of his interest or estate in the lands claimed, as it exists when the action is commenced. The complaint in this action sets forth that on the death of her husband, “ many years since,” a life estate in the premises in controversy descended to the plaintiff; also that the plaintiff is entitled to the possession of such premises ; but it contains no direct averment that she has a present life estate there [360] in. It appearing that sucb interest vested in her, several years before, and it not appearing that she has been divested of it, perhaps the presumption is that she is still the owner of such interest. But to determine whether that is so, and whether the complaint is in the form prescribed by the statute, requires argument, research and deliberation. And because of this, although the demurrer may be bad (which is not here determined), it is not frivolous. By the Court. — The order is reversed.