Gooding v. Doyle

134 Wis. 623 | Wis. | 1908

Sibbeckeb., J.

The order striking out as irrelevant portions of the answer is not appealable under sec. 3069, Stats. (1898), because it does not determine the action or prevent a judgment from which an appeal may be taken. Wiesmann v. Shanley, 124 Wis. 431, 102 N. W. 932.

The demurrer to defenses was interposed before any portion of the answer had been stricken out upon plaintiff’s motion. The demurrer seems to proceed upon the idea that plaintiff has the right to demur to defenses in the answer as they would stand after the portion thereof covered by his motion had been eliminated therefrom. We do not perceive how a demurrer can so disregard parts of defenses which are in the pleading when the demurrer is served. The pleading demurred to must be taken as it stands when the demurrer is interposed, unless otherwise authorized by statute. Erom this the conclusion follows that the demurrer must prevail or fall by the face of the pleading to which it is directed. The pleading demurred to cannot be subsequently modified by motion and the demurrer then apply to the face of such modified pleading. Columbus v. Fountain Praire, ante, p. 593, 115 N. W. 111.

The plaintiff demurred to specific paragraphs and parts of others in the answer upon the ground that it appears upon the face of such allegations that they do not state facts sufficient to constitute any defense. A portion of the facts alleged in connection with the defenses demurred to are specifically eliminated by the demurrer. This was erroneous under the rule that a demurrer cannot be thus addressed to a part only of an alleged defense. McCall Co. v. Stone, 124 Wis. 572, 102 N. W. 1053. Nor can we, under this rule, examine the pleading challenged by demurrer to ascertain whether the portions eliminated are relevant and material to the defenses demurred to. To do so would mate the demurrer the medium for striking out irrelevant and redundant pleading and of testing the sufficiency of the pleading to which the demurrer is addressed. The demurrer does not reach the defect of irrelevancy and redundancy. This must be accomplished by a motion. Upon these considerations the demurrer cannot be entertained, and the sufficiency of the alleged defenses is not presented for determination.

By the Court. — The appeal from the order striking out portions of the answer is dismissed, the order sustaining the demurrer of the plaintiff to parts of defenses in the answer is reversed, and the cause remanded with directions that the court enter an order overruling such demurrer.