Miller v. Spaulding

Lyon, J. We are of the opinion that this case is ruled by sec. 4, ch. 48, R. S., which reads as follows: “If any dog shall worry, wound or kill any sheep or lambs, and the person owning or harboring such dog shall not keep such dog confined after being notified of such worrying, wounding or killing, such owner or keeper shall be liable to pay damages in double the value of any sheep which may he thereafter killed by such dog, to be recovered in an action by the owner of such sheep; and any person may kill any such dog, if found out of the enclosure or immediate care of its owner or keeper, after twenty-four hours from the time of such notice.” The plaintiff’s dog, when killed, was out of the enclosure and immediate care of its owner or keeper, and the plaintiff had known for several weeks that the dog had worried sheep. These conditions existing, any person might lawfully kill the dog. It is stated in the brief of counsel for the defendants, tjiat the learned circuit judge held that the notice mentioned in the statute must be in writing to be operative. We think this view an erroneous one. Had the legislature intended to require a written notice, it could easily have expressed that intention. We are aware of no rule of statutory construction which authorizes or allows us to interpolate the words, “ in writing,” after the word “notified,” in the statute. We conclude that a verbal notice to the plaintiff of the vicious act of his dog is all that the statute contemplates. It is objected that the answer is defective in that it fails to aver that the plaintiff knew his dog had worried sheep. It should have contained such an averment. But the soienter was proved without objection, and it is well settled that in such a case the answer may be amended before or after judgment so that it will correspond with, the proof, or the defect may be disregarded. In a similar case, Dixon, C. J., said: “fho omission or defect of pleading in such case, it appearing that the party has had a full and fair trial, and opportunity to pros [223] ecute or defend on the merits, becomes a mere formal one, which affects no substantial right, and for which the statute declares no judgment shall he reversed or affected.” Bowman v. Van Kuren, 29 Wis., 216. See also Judge Dixon’s notes to Brayton v. Jones, 5 Wis. (new ed.), 117, and appendix, p. 626. Hence, the objection which might have been available if taken by demurrer or when the testimony was offered, comes too late when made for the first time in the appellate court. By the Qowrt. — The judgment is reversed, and the cause remanded with directions to the circuit court to reverse the judgment of the justice.