Hoff v. Olson, 101 Wis. 118

Hoff v. Olson

101 Wis. 118 | Wis. | 1898

Bardeeñ, J.

The'reason usually assigned why a court of ■equity will not entertain actions of this kind is that the party seeking to prevent the threatened injury has an adequate remedy at law. Beach, Injunctions, § 1125, says: “ The inadequacy of the legal remedy is the foundation and indispensable prerequisite for the interposition of chancery in such matters, for the obvious reason that a legal remedy *120bas been devised to redress such wrongs, and, so long as the law provides an adequate remedy, equity bas no right to interfere.” It is well settled in this state, however, that equity will interfere in such cases, and grant the desired relief, unless the plaintiff’s right thereto is contested in accordance with the rules of practice in such cases. If it appears on the face of the complaint that the plaintiff has an adequate remedy at law, a demurrer may be interposed. If that fact is not apparent on the face of the pleading, or the defendant is in doubt as to its sufficiency in that respect, advantage of the insufficiency may be taken by answer. If not so taken by demurrer or answer, it is waived. The defect cannot be raised by demurrer ore tenus at the trial. This court has not, however, been perfectly consistent in its rulings in that regard. In Tenney v. State Bank, 20 Wis. 152, Chief Justice DixoN inaccurately spoke of the objection as one relating to the jurisdiction of the court, and says: “We hold that it is now too late to object to the jurisdiction of the court. The defendant, by answering and proceeding to trial upon the merits, waived it. It is well settled that the objection that the plaintiff has an adequate remedy at law must be taken in the first instance by answer.” In Peck v. School Dist. No. 4, 21 Wis. 516, he corrected himself. He says: “ The ground on which equity refuses to take cognizance of and proceed in such cases, namely, that the plaintiff has an adequate remedy at law, is in no proper sense jurisdictional. The court has power to hear and determine the action, and in general will do so, unless objection in proper form be taken. This may be by demurrer to the complaint, when the objection appears upon the face of it; otherwise by answer. If not taken in one or the other of these forms, it is waived. . . . This shows that it is not a question of the jurisdiction of the court over the subject matter of the action; for, where that is wanting, it is well known that no consent or waiver of objection by the parties will confer *121it. Such, an objection is never waived, but may be taken at any time, either on appeal or when the question of jurisdiction is collaterally involved. The objection that the plaintiff has an adequate remedy at law is no more than a rule of practice in the court of chancery, upon which the action will be dismissed if the attention of the court is called to it at the proper time and in the proper manner; and, although it is most frequently spoken of by courts and writers as a question of jurisdiction, it is strictly inaccurate to call it so.” This language is quoted with approval in State ex rel. Fowler v. Circuit Court, 98 Wis. 143, where many decisions are cited as sustaining the rule thus laid down.

On the point of whether the objection might be raised by demurrer ore tenus taken at the trial, the decisions in this court are somewhat in confusion, although the later rulings are uniformly against it. In Stein v. Benedict, 83 Wis. 603, it was said that, “ upon a demurrer ore tenus to a complaint which is clearly intended as a complaint in equity, the defendant may avail himself of the objection that the plaintiff has an adequate remedy at law,” — citing Trustees of Kilbourn Lodge v. Kilbourn, 74 Wis. 452; Avery v. Ryan, 74 Wis. 591; Denner v. C., M. & St. P. R. Co. 57 Wis. 218. These cases hardly sustain the proposition, inasmuch as the decision in each was based on a general demurrer to the complaint. The cases of Becker v. Trickel, 80 Wis. 484; Sherry v. Smith, 72 Wis. 339; Pierstoff v. Jorges, 86 Wis. 128; Sweetser v. Silber, 87 Wis. 102; Meyer v. Garthwaite, 92 Wis. 571; Bigelow v. Washburn, 98 Wis. 553,— are squarely to the point that the objection must be taken by answer or demurrer, or it is waived. Stein v. Benedict, so far as it holds the contrary doctrine, must be deemed to be overruled. In this connection it may be well to notice Smith v. Oconomowoc, 49 Wis. 694, which was an .action to restrain the defendant from removing a fence and storm door in front of plaintiff’s building. This case was tried on its merits, and on appeal *122the judgment in favor of plaintiff was reversed on the ground that a court of equity would not entertain a suit to prevent a threatened trespass, without first having the legal right determined in an action at law. The court evidently overlooked or ignored the rule of waiver of this objection, as hereinbefore stated. The court has ample power and will exercise it, in such cases, unless due and timely objection is taken either by answer or demurrer. Proceeding to trial without having made the objection in proper form is a full .and complete waiver thereof.

The complaint in suit states sufficient to show that the •defendant threatens an unlawful invasion of the plaintiff’s property rights. The fence in question is alleged to be on the line between the parties, and is a regular partition fence. In the absence of allegation as to a legal division of a line fence, the presumption as to ownership is that it is the common property of the adjoining owners. The fact that the fence is a line fence makes it unlawful for either of the adjoining owners, as against the other, to remove or tear it clown without giving notice as required by sec. 1400, R. S. 1818. Sayles v. Bemis, 57 Wis. 315. It is possible that the complaint would have been open to the objection that the plaintiff had an adequate legal remedy, had the objection been taken by demurrer or answer. Failing to do so, it was waived, and the court should have proceeded to try and determine the case.

The respondent made the point that the objection to the complaint was sustained on the ground that it did not state facts sufficient to constitute a cause of action. In answer, we say that we must be governed by the bill of exceptions. The bill, after reciting that an objection had been interposed, says: “But the said judge decided that the objection was well taken, and that no evidence would be received to prove the issues; and no evidence was received, under the rulings of the court, on the ground that said complaint does not state *123facts sufficient to constitute a cause of action entitling the plaintiff to equitable relief, but that it states a case for which the plaintiff has an adequate remedy at law.” This would seem to be a sufficient answer to this contention. The facts stated, together with the alleged insolvency of the defendant, are held to be sufficient to permit the plaintiff to maintain this action, in view of the waiver as before stated.

The bill of exceptions bears the certificate of the circuit judge. If the bill was not properly settled, then it was defendant’s duty-to have moved to strike it out, or brought the fact to the attention of this court in some proper way, before the hearing on the merits. He cannot be permitted to take advantage of any such technical error after he has permitted the-case to be called for final determination.

By the Court.— The judgment of the circuit court is reversed, and the case is remanded for further proceedings according to law.