Richards v. Crews

Lord, C. J. This was an action in ejectment. The objection is that the complaint does not state facts sufficient to constitute a cause of action, and the point raised on the objection is, that it is nowhere averred in the complaint that the plaintiff is “entitled to the possession” of the land described, or that the defendant wrongfully withheld the same at the time the action was brought. Our statute declares that the complaint in actions to recover real property shall set forth that the plaintiff has an estate or interest in the premises claimed, particularly stating the nature and extent of such estate or interest, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him. (Hill’s Code, § 318.) In this class of actions, the legislature has declared what the complaint shall contain, and when the language is plain and positive as to what shall be stated, we have no other duty in the premises than to give effect to its language. Nor do we think the pleader in the complaint before us has disregarded these positive provisions of the law. The counsel for the defendant is mistaken in this, that the plaintiff fails to allege that he is entitled to the possession of the premises described. After alleging that he is now, and has been for more than twelve years last past, the owner, etc., describing the premises, etc., the first paragraph of the complaint concludes in these words, “ and that he, plaintiff, is now, and during all [59] of said time has been entitled to the possession thereof.” The same is true of the second paragraph, which after reciting the facts of the dispossession, etc., distinctly alleges that the “ defendant has ever since said time remained in the actual possession of said land, and wrongfully withheld the possession of the same from him,” etc. We fail to see the error as claimed, and judge from the brief that there has been some oversight in the examination of the complaint. The judgment must be affirmed.