Carpenter v. Reynolds

58 Wis. 666 | Wis. | 1883

Cole, C. J.

If the portion of the answer stricken out was immaterial or redundant, then there is no error in the order. Secs. 2683,2684, E. S. ' The inquiry then is, Was this the character of the answer which was stricken out ? Ee-dundancy in pleading is the introduction of matters foreign to or not necessary to the cause of action or defense stated. 2 Bouvier’s Law Diet., 524. Or, under the code, redundancy may consist in the needless repetition of material aver-ments, or in the detail of what may be the evidence by which issuable facts are established. Subd; 2, sec. 2646, and subd. 2, sec. 2655, E. S. In the answer not stricken- out the defendant states the circumstances attending the giving of the note; alleges that he executed and delivered it to Bois, Fay & Conkey, to whose order it was made payable. The defendant denies that the note was ever sold, transferred, or delivered to the plaintiff, or that the plaintiff was at the commencement of the action, or ever had been, the lawful holder or owner thereof. It may be that these allegations are not sufficient to put in issue the title or ownership of the note, or to admit proof that the instrument had never been indorsed or transferred to the plaintiff by the payees. There are authorities which seem to lay down the rule that' it is not enough to allege that the plaintiff is not the real party in interest, but that the answer should state the facts which show why he is not. It is not obvious what other fact the defendant could state, further than to aver distinctly that the payees had never indorsed or transferred the note to the plaintiff, and that he was not the lawful holder and owner thereof. But this is the necessary implication of the allegations, and it would seem that they were sufficient to enable the defendant to prove — if he could — those facts. But, without deciding that question, the answer further alleges that the note, from the time it was executed and delivered to Bois, Fay & Oonkey, up to the 11th day of July, 1882, was and continued to be the property of that firm, and that on this last-named day the defendant paid the same in full to them, who were the lawful owners and holders thereof. That this answer was sufficient to admit proof of payment to the real owner and holder cannot bo doubted. The establishment of such a defense would certainly defeat this action. It would show that the defendant had paid the note to the firm which owned it, and which alone had the clear right to receive payment.

Now, the portion of the answer stricken out contains an elaborate statement of matters which show that the plaintiff, while acting as the attorney of the firm of Bois, Fay & Conkey, obtained the note by committing a gross fraud upon them and the defendant; that he really never had any title to this note,— no right to hold it or sue upon it; that it never had been transferred to him by the payees; and that it Ead actually been discharged by payment to the rightful owner. But all these facts, which'were pertinent, might be proven under the answer which was not stricken out. It might be shown under that answer that the plaintiff obtained the note in question while acting’ as the attorney of Bois, Eay & Conkey in securing their debt against the defendant; that the payees never consented.to the plaintiff’s holding the note; that they had no knowledge of the facts attending its ■execution and delivery until the 5th of June, 1882; that as soon as they learned of the fraud, which bad been practiced upon them they claimed the note, forbid the plaintiff from transferring it, and that they were the real owners when the ■defendant paid it to them. But this is merely probative matter, which might be given in evidence under the answer which was not stricken out. It may not be correct to say that it was strictly irrelevant, but it is redundant, because it is a needless repetition of material averments or conclusions of law. See Pomeroy on Eemedies and Bemedial Bights, §§ 551, 552. It might be struck out on motion without any prejudice to the defense. Therefore the order, from the nature of things, is not injurious to the defendant, and does not affect any substantial right. Noonan v. Orton, 30 Wis., 609; Freeman v. Engelmann Transp. Co., 36 Wis., 572; Lemke v. C., M. & St. P. R'y Co., 39 Wis., 456.

It would be improper at this time to enter upon any general discussion of the morality or legal effect of the acts of the plaintiff which were stated in the answer stricken out. ■Suffice it to say, for the honor of a noble profession, we hope all these matters will be shown to be quite unfounded in fact. Unmistakably, on their face they present a clear case of fraud and deceit on the part of the plaintiff — a gross violation of professional trust to a client, which no lawyer who has' the least appreciation,of the duties and ethics of the profession Avould ever be guilty of. It appears to be a very plain case of an attorney taking advantage of both the creditor and debtor, when securing a debt, and then attempting to acquire a title to the note by means of fraud and deceit. It is unnecessary to observe that the law will neither uphold nor countenance such a transaction. See Hall v. Erwin, 60 Barb., 349; S. C., 66 N. Y., 649. But it would be unjust, at this time, to assume that these matters were true, and we will not do so.

In the view which we have taken of that portion of the answer stricken out, it follows that the order does not affect, a substantial right nor involve the merits of the defense, therefore is not appealable. Noonan v. Orton, supra; Peeper v. Peeper, 53 Wis., 507.

By the Court.— The appeal is dismissed.