We consider it unfortunate that the parties did not introduce their evidence in support of the issues made, and try this cause upon the merits. The due administration of justice, would have been promoted by their doing so. As the case now stands, the .only question before us is: Was the circuit court right in rendering judgment for the plaintiff on the pleadings ? No evidence was introduced on either side, the parties disagreeing as to which had the burden of proof. The court held that the affirmative of the issues was upon the defendant, and, upon his refusing to give any proof, ordered judgment for the plaintiff.
It seems to us that the plaintiff was'not entitled to judgment without giving some evidence in support of her complaint. Not to allude to other issues made by the pleadings, it is sufficient to say that, as the pláintiff sues in a representative char*241acter, it was essential for ber to prove that she was the executrix and residuary legatee of John 'Wittmann, as alleged in the complaint. As .to that allegation the defendant averred that he had no knowledge or information sufficient to form a belief; and this form of traverse put that allegation in issue. To that extent, it is obvious, the affirmative of that issue was upon the plaintiff. On the former trial the plaintiff proposed to prove other averments in her complaint, and that the defendant accepted a surrender of the premises from the lessee, Schrceling. 81 Wis., 638. It would have been well, perhaps, had the plaintiff pursued the same course on the second trial. By this intimation we do not wish to be understood as expressing any opinion upon the question whether the pleadings do or do not show a valid surrender and acceptance of the premises. When all the facts are before the court, it will be time enough to consider that point
The counsel for the plaintiff, however, insist that there are no sufficient exceptions to the findings of the court. The court found, among other things, that the allegations in the complaint were true. This finding is specifically excepted to. As no evidence was introduced, it is plain that this finding is based upon the pleadings alone. We have already said that the plaintiff was bound to give some evidence to sustain the allegation that she had the right to bring the action in the representative character in which she sues. The court could not find that issue in favor of the plaintiff without some evidence to prove its truth.
The same remark applies to the finding of the amount due the plaintiff, and the exception taken thereto. The ruling of the court was, that the onus probandi was upon the defendant on all the issues, and that, if no evidence were given, the plaintiff was entitled to recover upon the pleadings. We have just said that we consider this view erroneous.
By ike Court. — The judgment of the circuit court is reversed, and a new trial ordered.