Bettys v. Milwaukee & Saint Paul Railway Co. , 37 Wis. 323 ( 1875 )

Ryan, 0. J.

I. The first count of the complaint is plainly framed under the statute of Iowa pleaded. It recites the statute, and avers all the facts necessary under it to the recovery of the double damages which the statute gives, and prays judgment for them. It is strictly an action under the statute. Chipman v. Emeric, 5 Cal., 239. No such action is known to our law. And, for reasons assigned in Anderson v. M. & St. P. R’y Co., ante, p. 321, the action cannot be maintained here.

There is another reason applicable to this case, not to that. The double damages of the Iowa statute are given by way of penalty. Newcomb v. Butterfield, 8 Johns., 342. And for that reason, the action could not be maintained here. Brigham v. Claflin, 31 Wis., 607.

The count is so plainly under the Iowa statute that, though we came to the conclusion with some reluctance, we cannot think that it would he fair or safe to reject the averment of the Iowa statute and the averments under it, as surplusage, and hold it a transitory action for single damages, under the cases in this court, with too large a prayer for judgment. See Graham v. Railroad Co., 3 Wall., 704.

II. The second count is for injury to the realty in Iowa, plainly a local action under all the authorities, which cannot be maintained here. Co. Litt., 282 a; Bacon’s Abr., Action, A.; Comyn’s Dig., Action N., 4, 5; Doulson v. Matthews, 4 Term, 508; Tyson v. McGuineas, 25 Wis., 656.

By the Court. — The order sustaining the demurrer is affirmed.