84 Wis. 12 | Wis. | 1893
This appeal is from the order sustaining the demurrer to the counterclaim.
The complaint charges, in effect, that the Island Sash & Door Company of Milwaukee obtained a policy of insurance from the defendant on a part of its lumber, manufactured stock, and machinery on the 26th day of January, 1891; that a loss to said property by fire occurred on the 7th day of June, 1891, and that on the 18th day of June, 1891, said loss was adjusted and settled at the sum of S671.88, which the defendant promised and agreed to pay. This claim was assigned to the plaintiff bank, and judgment thereon is demanded,, with interest.
The two grounds of the demurrer are that the court has .no jurisdiction, and the answer does not state a counterclaim. If the answer states only matters of defense at law, then a court of equity has no jurisdiction of it. The answer is anomalous. First. It sufficiently alleges facts that show that the settlement was obtained by the assured
The prayer is equally anomalous. First. That the policy be declared void for the fraud. Second. “ If the court should hold said policy not avoided as aforesaid,” then that the policy be reformed. In other words, if the court should hold that there was no fraud in the settlement, then the settlement must be reformed. If there was fraud, as alleged, the only possible legal conclusion is that it is void, and it is set aside. That is the end of the plaintiff’s ao
If this settlement had not already been brought into court and challenged for fraud, the defendant might have had it brought before the court in equity by an original complaint, and had it set aside for fraud; and so as to a promissory note, contract, or deed, and the only remedy would be in a court of equity. But this settlement is already before the court by action upon it, and within reach of an adequate defense at law, and the equitable remedy is
By the Court.— The order of the superior court is affirmed, and the cause remanded for further proceedings at law.