#### Citizens Loan *&*Trust Company, Administrator, Appellant, vs. Witte and wife, Imp., Respondents.

*May 2*

May *21, 1901.*

*Mortgages: Foreclosure: Pleading: Prayer for relief.*

1. A complaint in foreclosure which sufficiently alleges that impleaded defendants have rights in the mortgaged premises, which plaintiff is entitled to have barred and foreclosed by the judgment and sale thereunder, states facts constituting a cause of action against them, sufficient on demurrer, notwithstanding other relief is demanded to which plaintiff is not entitled.

2. Prayer for excessive relief does not render a complaint demurrable.

Appeal from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge.

*Reversed.*

After the commencement of an action for foreclosure of a mortgage by one Daniel Goldstein he died, and the present appellant was appointed administrator of his estate, and filed a supplemental complaint, in the usual form, for the foreclosure of the mortgage, securing overdue notes for $2,000. In addition to the usual complaint, it is alleged that after the execution of the mortgage the mortgaged premises were sold to the defendants *Otto Witte*and *Katherine Witte,*his wife, as husband and wife, and to the survivor, and that the .said *Otto Witte*and *Katherine Witte,*as part of the purchase price, assumed and agreed to pay the mortgage and notes. *546It is also alleged that the defendants *Otto Witte*and *Katherine Witte,*bis wife, as husband and wife, and other defendants, have, or claim to have, some interest in, or lien upon, the mortgaged premises, which interest is subject to the lien of the plaintiff’s mortgage. The prayer is for revival of the suit in the name of the administrator, the ordinary judgment of foreclosure, and personal judgment for deficiency against the maker of the notes, and against *Otto Witte*and *Katherme Witte.*To this complaint these respondents interposed a demurrer, for the reason that it appears upon the face of the complaint “ that as to said defendants *Otto Witte*and *Katherme*Witte, as husband and wife, said supplemental complaint does not state facts sufficient to constitute a cause of action.” From an order sustaining that demurrer, plaintiff appeals.

Eor the appellant there was a brief by *Kath. Peroles dk Pons,*and oral argument by *G. D« Goff.*

For the respondents thé cause was submitted on the brief of *Fiebvng dk Killilea.*

Dodge, J.

The ground of demurrer argued is that the allegations of the complaint are not sufficient to justify a personal judgment for deficiency against *Otto*and *Katherine Witte.*Such consideration is, however, wholly immaterial. The complaint abundantly alleges that they have rights in the mortgaged premises which plaintiff, as the owner of the mortgage, is entitled to have barred and foreclosed by the judgment and sale thereunder. This constitutes a cause of action against these respondents, and the demurrer should' have been overruled, notwithstanding other relief is demanded, even if the plaintiff is not entitled to that additional relief,— a question which we do not consider or pass upon. Prayer for excessive relief does not render the complaint demurrable. *Moritz v. Splitt,*55 Wis. 441; *Scheibe v.*
      *547
      *Kennedy,*64 Wis. 564, 572; *Rahn v. Milwaukee E. R. & L. Co.*103 Wis. 467, 472.

*By the*Court.— Order appealed from is reversed, and cause remanded with directions to overrule the demurrer.