Howland v. County Board of Supervisors

19 Wis. 247 | Wis. | 1865

By the Court,

Cole, J.

The demurrer was stricken from the files because it was frivolous and a nullity. This was error. It certainly was not frivolous. It raises several serious questions of law and practice. Assuming the tax to be illegal, could the respondents unite in the action ? Was there any joint or common interest in the subject matter of the suit, which would enable them to join in the action, or must each tax payer'pursue his own remedy ? See cases of Newcomb v. Horton, 18 Wis., 566, and Barnes v. The City of Beloit, ante p. 93. Does the demurrer raise this question of practice ?

Again, the complaint alleges as the main ground of relief, that chap. 398, Laws of 1862, and chap. 75, Laws of 1863, under which the supervisors acted, are unconstitutional and void. This raises a very grave question. An issue of law upon such a point could hardly be said to be frivolous.

An objection is taken to the form of the demurrer. It may not be a model pleading. But as a second cause of demurrer, it states distinctly and clearly the ground that the complaint does not state facts sufficient to constitute a cause of action. What follows, whether it be regarded as a specification of particular objections or argumeht, is quite immaterial. The statute provides that a party may demur where the complaint does not state facts sufficient to constitute a cause of action ; and when this ground is assigned in the language of the statute, it is sufficient.

The order striking the demurrer from the files as being frivolous and a nullity, must be reversed, and the cause remanded for further proceedings according to law.