
    Frederick George v. John McCullough.
    Filed June 2, 1896.
    No. 6678.
    Ejectment: Pleadins. In an action of ejectment under the provisions-of the Code of Civil Procedure it must be alleged in the petition that the plaintiff is entitled to the possession of the premises sought to be recovered.
    Error from the district court of Lincoln county. Tried below before Neville, J.
    
      George D. Mathmson and M. A. Hartigan, for plaintiff in error.
    
      T. G. Patterson, contra.
    
   Harrison, J.

In this, an action of ejectment, the plaintiff was successful in the district court of Lincoln county, and the defendant has prosecuted error proceedings to this court. In the petition filed in the trial court it was averred “The plaintiff complains of defendant for that the said plaintiff has a legal estate in the following described premises, to-wit: [Here was given a detailed description of the property in controversy, which we omit], and said defendant, ever since the 1st day of July, 1887, has unlawfully kept, and still keeps, the plaintiff out of possession thereof.” There were further allegations in regard to-rents and profits wfiicfi it was stated defendant bad received; also in respect to the removal and destruction by defendant of some timber, and a claim for damages arising therefrom. At the inception of the introduction of the evidence the defendant objected to any being received or allowed, on the ground that the petition did not state a cause of action. This was overruled and an exception noted on the part of defendant, and the action of the trial judge in this particular was made the subject of an assignment of error.

It is prescribed in section 626 of the Code of Civil Procedure, in reference to a complaint in a suit such as the one at bar, that “In an action for the recovery of real property, it shall be sufficient, if the plaintiff state in his petition that he has a legal estate therein and is entitled to the possession thereof, describing the same, as required by section one hundred and thirty-three, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff’s estate or ownership is derived.” There was no allegation in the petition that the plaintiff was entitled to the possession of the real estate therein described, neither in the form of a conclusion in the words of the statute, nor in other apt words, nor were facts pleaded from which the inference might fairly arise or be drawn, and it is urged that this omission in the petition was fatal and rendered it insufficient. It will be gathered by referring to the quotations from the petition which we have hereinbefore embodied that it was therein stated that the defendant had, during a designated space of time, unlawfully kept, and still keeps, the plaintiff out of possession of the premises sought to be recovered. The appearance of this allegation, it is claimed by counsel for the party plaintiff in the district court, cured the omission to directly plead that the pleader was entitled to possession. The legislature, by the enactment of the section of the Code in respect to the statements which will render sufficient a complaint in an action of ejectment, have made the pleading much, simpler than was required in the old action of ejectment, and eliminated therefrom the technical allegations which formerly prevailed. Two of the main and important issues involved in the action are, in whom is the title, and who is entitled to possession, and by a fair application of the requirements of section 626 of the Code the pleader must, either in the words of the statute or in words of like import, state the conclusions that the plaintiff has a legal estate in the premises to recover which the action is instituted, and that he is entitled to the possession thereof, or must allege facts from which the conclusions appear. Nor does the appearance in the petition of the allegation that a defendant unlawfully withholds the possession from the plaintiff cure or supply the omission to set forth that the plaintiff is entitled to the possession. It was not contemplated nor intended by the law-makers that pleading the former should relieve from the necessity to set up the latter or be construed to take its place. (Barclay v. Yoemans, 27 Wis., 682; Methodist Episcopal Church of Ashland v. Northern P. R. Co., 47 N. W. Rep. [Wis.], 190; Dale v. Hunneman, 12 Neb., 221.)

Counsel for the plaintiff in the trial court invoke the aid 'of section 121 of the Code, in which the rule is announced that “In the construction of any pleading for the purpose of determining its effects, its allegations shall be liberally construed with a view to substantial justice between, the parties,” and urge that giving it effect in its full purpose and meaning, we must hold that the petition in this case was sufficient as a pleading and fulfilled the demands of section 626 of the Code. We cannot give the rule stated in section 121 the force claimed for it by counsel. It does not exact that we shall disregard positive directions such as are contained in the section which specifically sets forth in terms what allegations will render a petition in an action to recover real property sufficient. The further allegations of the petition in regard to collection of rents and the removal and destruction of the timber by defendant, and the damages to plaintiff resultant therefrom, were not independent of the allegations in ejectment, but were dependent thereon, or, to state it differently, the recovery of the real estate was the principal object of the suit and the others merely incidental thereto, and need not be considered independently therefrom. It follows, from the views expressed as to the sufficiency of the petition, that the judgment of the district court must be reversed and the cause remanded for further proceedings.

Reversed and remanded.  