Cottrill v. Cramer

40 Wis. 555 | Wis. | 1876

Lead Opinion

Cole, J.

This is an appeal from an order striking out a demurrer as frivolous, and allowing the defendants to answer upon the terms stated in the order. The case has been argued in this court as though the real question before us was, whether the demurrer to the complaint was well taken. But it is obvious that that question is not raised by the appeal. The question is as to the character of the demurrer, and whether it can be said to be frivolous under the decisions of this court. A frivolous demurrer Ras been defined to be one which, is so clearly untenable, or its insufiiciency so manifest upon a bare inspection of the pleadings, that its character may be determined without argument or research, Farmers’ & Millers’ Bank v. Sawyer, 7 Wis., 379; Walton v. Goodnow, 13 id., 661; Ferguson v. Troop, 16 id., 572; Sage v. McLean, 37 id., 357. Applying this rule to the case before us, it is manifest that the demurrer is not frivolous. Whether it would or should be held good on the merits, is another question, and one upon which we are not called upon to express an opinion at this time.

By the Ooumt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings.

---

Rehearing

On a motion for a rehearing, the respondent’s counsel argued, 1. That the law, especially in this state, as to what constitutes a libelous publication, was fully settled, and that while a pleading might not be held frivolous when it raised for the first time a legal question involving either much or little doubt, yet it should be so held when the question raised by it had already been fully settled by adjudications of the highest court of the state. Note to sec. 247 of Yoorhees’ Code, citing Bank v. Barnes, 4 Abb. Pr., 226; People v. McCumber, 15 How. Pr., 186; Strong v. Stevens, 4 Duer, 668; Collins v. Suau, 7 Rob., 624; Langdale v. McLean, 10 Jurist, 642; Withers v. MacLean, 6 Lond. Law Times, 352. 2. That the order of the court below should be affirmed here if the demurrer was bad, even though it was not frivolous. To this point counsel cited Yoorhees’ Code (8th ed.), 453, note h; Wesley v. Bennett, 5 Abb. Pr., 498; Griswold v. Laverty, 12 N. Y. Leg. Obs., 316; Witherhead v. Allen, 28 Barb., 662; Martin v. Kanouse, 2 Abb. Pr., 327; in all which the appeal was from the order striking out the appellant’s pleading as frivolous. He further cited Manning v. Tyler, 21 N. Y., 567; East River Bank v. Rogers, 7 Bosw., 494; Witherhead v. Allen, 28 Barb., 662; and Decker v. Trilling, 24 Wis., 610; in which the appeal was from a judgment upon demurrer held frivolous. He also criticised the suggestion in Cobb v. Harrison, 20 Wis., 625, and the decisions in Weishaupt v. Weishaupt, 27 id., 623, and Sage v. McLean, 37 id., 357, by which a distinction is made in this respect between appeals from judgments rendered on demurrers stricken out as frivolous, and appeals from orders striking out demurrers on that ground; and he contended that this distinction was neither founded on any apparent reason nor jrrstified by the authorities elsewhere. He also argued that as the defendants had leave to answer (under ch. 138, Laws of 1860), they were not injured by the order striking out their demurrer, if it was bad. 3. Counsel also raised the question whether the order in this case, with leave granted to answer over, was appealable.

Ryan, C. J.

Mr. Clritty defines sham pleas to be pleas so palpably and manifestly untrue that the court will assume them to be so: pleas manifestly absurd. When answers or defenses admit of lawyer-like argument, such as courts should listen to, they are not sham in the sense of the statute. When it needs argument to prove that an answer or demurrer is frivolous, it is not frivolous, and should not be stricken off. To warrant this summary mode of disposing of a defense, the mere reading of the pleadings should be sufficient to disclose, without deliberation and beyond doubt, that the defense is sham or irrelevant.

If this were otherwise, the statutory motion might always be resorted to, to test the sufficiency of an answer; or, in case of a demurrer, to test the sufficiency of the complaint. And the result would apparently be, that all defenses held to be insufficient might be summarily stricken off as frivolous. This is not the statute.

Some of the gravest and most difficult questions argued in tbis court arise on demurrer; and it would be not only an innovation but an absurdity, to bold tbe demurrer frivolous because it is overruled; or tbe pleading demurred to frivolous because tbe demurrer is sustained.

We bave nothing to add to tbe opinion given on tbe decision of tbis appeal, so far as tbe merits of tbis case are concerned. But we add this as an attempt to impress upon the profession tbe true office of a motion to strike off a pleading as frivolous.

By the Gowt. — Tbe motion for a rehearing is denied.