15 Wis. 543 | Wis. | 1862
£y gie Court,
Within tbe repeated decisions of this court, it is very clear that tbe demurrer in this case was not frivolous. Tbe court could hardly say, on a bare inspection of tbe demurrer, without any argument or examination of authorities, that it was bad. Indeed, under tbe old practice, tbe demurrer would have to be sustained. For tbe rule was, that where tbe contract was joint and several tbe plaintiff must sue all jointly or separately, and could not treat tbe contract as joint in respect to two or more of the parties. 1 Saunders’ R., 291; Streatfield et al. vs. Halliday, 3 T. R., 782; Platner vs. Johnson, 3 Hill, 476; Miller vs. Mc
It is not necessary to consider at any length whether the circuit judge could out of court give judgment on the demurrer, according to sec. 28, chap. 132. The counsel for the appellants contends that this section is unconstitutional, for attempting to delegate to a circuit judge at chambers judicial powers, which, under our constitution, can only be exercised by courts. It might not be improper to say in reply to the argument of the counsel upon this point, that our opinions are adverse to his, and that we have in effect decided the other way in many cases which have come before us. But for the reason already given, the judgment in this case must be reversed, and the cause remanded for further proceedings according to law.