53 Wis. 98 | Wis. | 1881
The general demurrer to the first count of the complaint was properly overruled, because it contains the statement of a good cause of action in itself.
The principle asserted in the brief of the learned counsel for the appellants as “ a settled rule, that each cause of action stated in a complaint must stand or fall by itself,” is fatal to the demurrer and to this appeal. Curtis v. Moore, 15 Wis., 134; Catlin v. Pedrick, 17 Wis., 88; Sabin v. Austin, 19 Wis., 421; Wheeler v. Hall, 41 Wis., 447. After the assertion of this “settled rule,” the learned counsel rather illogically refers to the imperfect and defective statements in the second count, in which a mechanic’s -lien is attempted to be set up, as the grounds of the demurrer to the first count alone, when, in such first count, nothing at all is said about a mechanic’s lien. The first count is for goods, wares and merchandise sold and delivered for a specific or agreed price, which sum became due and payable before the commencement of the action; and the facts alleged therein, if proved, are clearly sufficient to entitle the plaintiff to a personal judgment against the defendant James Markey.
That Margaret A. Markey, the wife of James, is not interested in the first cause of action, can be taken advantage of only by demurrer or plea in abatement on the ground of mis-joinder of defendants, and not by a general demurrer on the ground that the first count does not state a cause of action. If such defect is sought to be reached by demurrer, it must be by the party defendant so misjoined. This demurrer is interposed by James Markey alone, who is interested in the matters of the first count. Truesdell v. Rhodes, 26 Wis., 215.
By the Oowii.— The order of the circuit court overruling the demurrer is affirmed.