21 WIS 440 - Smith v. Weage

Dixon, C. J.

¶1The complaint contains no averment against the appellants, Frederick A. Weage and Nelson H. Palmer, and nothing to connect them with the subject of the action. They were brought in under an order of court dated March 27th, 1861, after the complaint had been filed and served upon the persons originally made parties defendant in the action. No amendment of the complaint was made so as to include the persons named in the order. The order is understood to have been made in pursuance of the requirements of chapter 60, Laws of 1861, afterwards repealed, and again enacted as chapter 168, Laws of 1864. . The appellants moved at the trial to have the action dismissed as to them, because it did not appear from the pleadings that they were the owners or occupants of the dam, or mills connected therewith, or otherwise proper parties to the action. The court overruled the motion, and the *442appellants excepted. This exception, among others, is now presented for review on appeal from the judgment.

On a motion for a rehearing, Mr. Ehibbell, for the respondents, argued, among other things, that inasmuch as the objection that the appellants were not named in the complaint had not been taken at the circuit court, where, if made, it could have been removed at once by an amendment, this court, if of the opinion that upon the facts admitted in their answers they could properly be made parties to the suit, should at most reverse the judgment with leave to amend the complaint, and should remand the cause to the circuit oourt for that purpose and no other. — The mo'tion was denied. Rep.

¶2Eor the respondents it is contended, that the appellants, having appeared and answered, could not afterwards object for the want of a proper complaint. The objection that no cause of action is stated in the complaint, is not waived by answer, It may be taken by way of objection to evidence, or at any time during the trial, and before verdict or judgment.

¶3It was also contended that under the act of 1861, no amendment of the complaint was necessary. It is not so provided by the act, and the position rests upon every doubtful implication. It is implied from the fact that the legislature did not expressly declare that the complaint should be amended so as to state the cause of action or rights claimed against the defendants newly brought in. Perhaps it was thought that a rule of pleading so fundamental and universal required no legislative sanction. At all events, we cannot adopt the opposite rule, that no cause of action need be stated in the complaint, unless such intention on the part of the legislature is clearly made to appear. We think that the complaint should have been amended.

¶4This disposes of the present appeal, and renders it unnecessary for us to speak of the other numerous exceptions. As the judgment may be reversed as to any or all of the parties, we reverse it as to the appellants, leaving it undisturbed as to the other defendants.

¶5By the Court. — Ordered accordingly.