Emerson v. Pier

Dodge, J. The complaint is in the form prescribed by. statute, which requires that the plaintiff! shall define in his complaint the character of his title. Sec. 3071, Stats. 1898. Upon that complaint it would have been the duty of the court, in case of a default, to enter judgment adjudging that he recover possession, but also adjudging the title as set forth in the complaint; and, although the particular paragraph of the complaint which specified the judgment demanded asked for nothing but possession, such a judgment would not have been held to exceed the demand of the complaint, to which judgments on default must be confined. Sec. 3086.- The whole framework of the statute on the present action of ejectment contemplates that while the recovery proper is, as anciently, merely a recovery of possession and damages, nevertheless in that judgment shall be adjudicated the quality and extent of the title upon which the right of possession is predicated, and a demand in the complaint for judgment for possession must be read, in the light of the statute, as demanding a judgment which grants possession upon a title the quality of which is to be adjudicated at the same time. Rupiper v. Calloway, ante, p. 4. That being the case, the judgment here was responsive to the tender. That tender, being of a judgment according to the demand of the complaint, must be construed to be such a judgment as the court should have entered upon a default, and the adjudication that the title alleged in the complaint is the ground of the possession which plaintiff recovers by the judgment is not a departure from, or an extension beyond, the offer made. Had defendant desired to limit the recovery in that particular, her offer should have so specified. If [164] plaintiff’s title, which, she is willing to concede (for she must concede some title in order to support possession), was less than a fee-simple one, that limitation could have been specified, and would then have been binding if accepted. The judgment entered is according to the demand of the complaint, and must be affirmed. By the Court. — Judgment affirmed.