30 Wis. 609 | Wis. | 1872
The matter stricken out by the court below was strictly irrelevant and redundant. It had no more to do ydth the causes of action set up in the complaint or with the matters of justification or defense pleaded in the answer, or which could properly be pleaded, than if the defendant had set up that prior to the commencement of the garnishee suits, the. plaintiff had defamed or libeled him, or committed an assault and battery upon him, or perpetrated any other distinct wrong or trespass. The averment stricken out was of matters and. facts not connected with the cause of action to recover rents on the lease, in which action the garnishee proceedings were instituted. It was, therefore, an averment of matters which could not affect the question of abuse of process in that action, and so was irrelevant here.
If the court below had denied the motion to strike out and the plaintiff had attempted to appeal, his appeal must have been dismissed. An order- refusing to strike out matter from a pleading for irrelevancy or redundancy is not appealable. Board of Supervisors of Kewaunee Co. v. Decker, 28 Wis., 669; Frank v. Nunnemacher, 23 Wis., 297. An order striking out, as irrelevant and redundant, matter which is in reality not so, is appealable. Board of Supervisors of Kewaunee Co. v. Decker, supra.
The question of appealability in this ease differs from both the above, and is whether an appeal lies from an order striking out actually redundant and irrelevant matter. Such an order
The question is something like that presented in Cobb v. Harrison, 20 Wis., 625, where it was held on appeal from an order erroneously striking out a demurrer as frivolous, that the. order would not be reversed, it appearing that the demurrer was bad and that the demurrant asked no leave to plead over at the time the order was made. The reason of the decision was that it appeared the defendant had suffered and could suffer nothing by the order — that it did not affect the merits of the defense, becuaseit was shown the-defendant had no defense to make. That was an appeal from judgment on the order, and the judgment was affirmed. Had it been an appeal from the order, it is improbable the appeal would have been dismissed. It is a matter of no importance to the parties, as costs follow the same in either event, whether the appeal is dismissed or the order affirmed in a case like this. It is more in harmony with principle, or what we consider a correct construction of the statutes, to dismiss the appeal; and that must be the order in this case.
By the Court — Appeal dismissed.
