| Wis. | Jan 15, 1859
By the Court,
This was an action commenced by the appellee against the appellant for the foreclosure of a mortgage, given by the appellant to Daniel Newhall, and assigned by him to the appellee. The complaint set out the mortgage and assignment, but did not allege that the plaintiff was a body corporate, created or authorized by the laws of this or any other State. The defendant below demurred to the complaint for this reason ; also assigning for further cause that the complaint did not state facts sufficient to constitute a cause of action. The plaintiff’s counsel, regarding this demurrer as frivolous, moved for judgment, on five days notice, under section 159 of the code. The motion was sustained, and the defendant appealed.
There have been at this term quite a number of appeals from the order of the circuit courts, based upon applications made under section 159 of the code in regard to frivolous pleadings, and what may be said here will apply to them all. It is well to have the practice settled in this respect, and hence we have given to this, as well as to all of the other cases depending upon the same question, a full consideration, and we are prepared to announce our conclusion in reference to the practice under this section.
Section 159 of the code of procedure is in the following words: “ If a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for
It would seem that the circuit judge misapprehended the real purport and effect of the motion, for the reason that he appears to have gone into an examination of the complaint and demurrer to ascertain whether the latter was well taken ; and also for the reason that the order made upon sustaining the motion, is analagous to that of an order overruling a demurrer. A demurrer may be bad, and so adjudged upon the hearing, but it does not follow that it is therefore frivolous.
A frivolous demurrer is one so clearly untenable, the insufficiency of which is so manifest upon a bare inspection of the pleadings, that the court or judge is able to determine its character without argument or research. 1 Code Rep., 185; 2 id., 76; 1 Abb. Rep., 41; 6 How., 385 ; 8 id., 150; 12 id., 543; 3 Sandt, 732. It is a pleading interposed for delay, and its frivolous character indicates bad faith in the pleading. Hence the severity of the judgment on striking it off. The party who thus trifles with the administration of justice, and the necessary forms by which it is administered, forfeits all claims to the favor of the court. He is not entitled to amend or to plead over, as in case of error in pleading. He cannot in truth say to the court that he has failed, and claim the indulgence which the statute of geofails extends to the honest, though mistaken or unfortunate pleader.
This view of frivolous pleas is retained in the code of procedure. Upon a notice of five days, the party prejudiced by a frivolous plea, may move the judge or court, either in or out of term, to have it stricken from the files. After the frivolous answer, demurrer or reply is stricken off, or, under the code adjudged to be frivolous, the party is then in default; his time for pleading has gone by; his frivolous plea was no plea; it is removed out of the way; and the case stands ready for an application for the relief demanded by the complaint, according to sub-divisions one and two of § 158 of the code.
The question, therefore, in this case is, was the demurrer filed in this case, frivolous, and if so, was the judgment of the court the proper one- to be rendered? Of course, upon a question of this kind we do not intend to enter into a discussion of the merits of this demurrer, for the causes assigned. It is enough to say, that it is not frivolous to deny that a corporation erected by the laws of a foreign power or state, is entitled to sue in the courts of our own state, without avering its due creation by the proper authority of the state or government from which its corporate powers are derived. So far as the character of the demurrer in this case is concerned, the very fact that conflicting decisions have been made by different tribunals is sufficient to discharge the demurrer of the ban of frivolousness. See 11 How. Pr., 186" court="N.Y. Sup. Ct." date_filed="1855-02-15" href="https://app.midpage.ai/document/johnson-v-kemp-5468508?utm_source=webapp" opinion_id="5468508">11 How. Pr. Rep., 186; 13 id., 270; 6
All these cases show that, although the demurrer ought to have been overruled on the hearing, yet it was not liable to the severe condemnation justly attaching to a frivolous pleading. The courts of several governments have held differently upon the point, and though statutory provisions on the one hand, or comity upon the other have modified the rule, it requires research and argument to determine the point and hence the demurrer is not frivolous, Grave men, learned counsellors, and experienced judges, do not enter into elaborate investigations to ascertain whether or not a paper purporting to be a pleading, is worthy of investigation or not. If worthy of serious consideration, argument and research, of course it is not frivolous, but should be brought to hearing like all other matters in legal dispute.
We are therefore of the opinion that the demurrer filed in this case was not frivolous; that had it been so the demur-rant would not have been entitled to amend, but in such case the plaintiff was entitled to proceed under, subdivisions one and two of § 158 of the code.
The order of the circuit court is reversed and the cause remanded.