(dissenting), As I understand the opinion of the court the complaint is held bad, because, first, the allegations as to intentional discrimination in the assessment of plaintiff’s property are obscure; and, second, because the complaint does not state a cause of action entitling plaintiff to the particular relief prayed for.
If I understand the decisions of this court, neither ground is sufficient to condemn a complaint on demurrer. Therefore, this dissent to what might appear to be the declaration of a new rule of pleading, out of harmony with the statutes (secs. 2668 and 2829, Stats. 1898), which are to the effect that all pleadings shall be liberally construed, with a view to substantial justice between the parties and all defects therein not affecting the substantial rights of the adverse party shall be disregarded.
Under those plain rules of the Code it was early said and has, over and over again, been reiterated, that the common-law rule that a pleading, for the purpose of determining its effect, should be viewed most favorably to the adverse party, *174•has been displaced by duty to view it most favorably to the pleader, to the end that the only recognized legitimate purposes of litigation may be the attainment of justice, and the •only recognized legitimate judicial administration the dispensation thereof' — that mere technical interference with •such administration may be wholly done away with.
Pursuant to the spirit of the statutes it has been fre•quently held that many facts, as against a challenge for insufficiency, may be pleaded according to their legal effect; •and that on such challenge not only facts expressly pleaded, particularly and generally, but all reasonably inferable therefrom, are to be taken account of in support of the pleading. Further, if so broadly viewing the pleading, a ■cause of action can be gathered therefrom although not the one the pleader intended, nor one warranting the particular relief prayed for, it is to be held good regardless of indefiniteness, redundancy, or nonprejudicial mistakes. The rule was thus stated in the leading and early case on the subject:
“A complaint, to be overthrown by a demurrer or objection to evidence, must be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, uncertain, or redundant may be the mode of their statement.” Morse v. Gilman, 16 Wis. 504, 507.
Note, in the foregoing, how pointedly infirmity of indefiniteness and failure to state the particular cause of action intended — the two suggested in the opinion of the court,' — ■ are excluded from defects fatal on a challenge for insufficiency. . ,. • ■ • ■ . V
In the comparatively recent case of Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 427, 84 N. W. 159, 162, the rule was stated thus:
“Criticisms of a pleading will not support a challenge for insufficiency to state a cause of action or defense, if suffi-, *175•ciency can be discovered reasonably by judicial construction of the language used and by reasonable inferences from general allegations. Such pleadings may be open to challenge for uncertainty and indefiniteness, but not insufficiency.”
In the still later case of Emerson v. Nash, 124 Wis. 369, 102 N. W. 921, this court was furnished with a critical analysis of the pleading, of very much the character now applied in the court’s opinion, but it was rejected as out of harmony •with the rule of the Code and the uniform administration of it by this court, this language being used:
“It would be a waste of time to follow the analysis of the ■complaint made by the learned counsel for appellants to see whether the pleading will reasonably permit of the construction they contend for. All might be conceded that is claimed in that regard, and it might be conceded, too, that so viewing the pleading it is fatally defective, without necessarily arriving at a right determination of the controversy now presented, since, as we have seen, the only legitimate test to be applied to the complaint is, Will it reasonably permit of a ■construction sustaining it ? In view of all the facts alleged •expressly or by reasonable inference, is the pleading bad, as claimed ? If it will satisfy such test it is good on demurrer, as indicated, however plainly it may be open to a motion for indefiniteness and uncertainty.” Page 381 (102 N. W. 926).
A large number of cases might be cited, reaching down to .•several so recent as to be unreported, where the same doo-trine as that above stated has been declared and applied. In Bieri v. Fonger, ante, p. 150, 120 N. W. 862, the major .ground upon which the pleading is now condemned was treated in this way, referring to cases we have cited and others:
“In testing a complaint for sufficiency the question is not whether it states the cause of action the pleader had in mind, ■or states the facts essential to a good cause of action with technical accuracy and certainty, but is, as said in the initial *176case, whether, giving the pleading the benefit of every reasonable inference, it expressly or by such inference, or both, states a good cause of action.”
I shall not taire time to state here the substance of the complaint showing that, liberally construed, it states a good cause of action to remove from real estate a cloud upon the-title created by illegal taxes and prevent further clouding the same by a return of the property for nonpayment of such taxes and sale of the land therefor. I must assume that sufficiently appears from the statement and opinion of the court and must be conceded.
True, the pleader seems to have had in mind a supposed' cause of action to prevent enforcement of the taxes by seizure- and sale of personal property and to have purposed, mainly at least, if not wholly, to prevent such enforcement, though the prayer is broad enough to cover the proper relief closing; the cause of action stated, in fact. Whether it is or is not broad enough is immaterial on demurrer.
After all said on the subject under discussion, as an original matter, it seems that in A. H. Stange Co. v. Merrill, 134-Wis. 514, 115 N. W. 115, this court sustained a complaint the same in all essential particulars as the one in question. The pleader there sought to restrain the collection of taxes-upon real estate and personalty, while the tax roll was in the hands of the city treasurer, and to have the taxes declared void, it being shown that there was abundance of personal property out of which to collect the tax. The point was made that the only remedy, at such stage of tax proceedings, is to pay the taxes under protest, counsel relying on Keystone L. Co. v. Pederson, 93 Wis. 466, 67 N. W. 696,. which was an action to recover property levied on by the treasurer for the collection of a tax. Counsel for appellant here relied on that case, and the court now cites the same in support of the opinion. It was, however, held that such case-did not rule the situation, except as regards restraint upon *177the treasurer to pursue the personalty for collection of the tax; that the spreading of the tax upon the tax roll and delivery of the roll to the treasurer created a cloud on the title to remove which the complaint stated a good cause of action. How the earlier decision rules now is not clear. So far as the prayer of the complaint is any guide to go by, and it is of very little assistance and never controlling, as we have seen, the prayer in the later case is substantially identical with the one here, as I read the two. .....
In my opinion, the learned trial court in sustaining the demurrer failed to follow the plain declarations of this court governing the matter, and the order appealed from should be reversed.
Barnes, J. I concur in the foregoing dissenting opinion of Mr. Justice Marshall.4