202 Wis. 151 | Wis. | 1930
(1) The appealing defendants seek by their answers to raise issues that were considered by this court and decided adversely to their contentions when this case was formerly before this court. As to these issues the law is correctly and definitely settled in Selts Investment Co. v. Promoters of the Federated Nations, 197 Wis. 476, 482-486, 220 N. W. 222, 222 N. W. 812. Under that decision the appealing defendants cannot, be heard to contend that
(2) The defendants who guaranteed the payment of the rent were properly joined as parties defendant, because they were personally liable upon the lease. Sec. 260.17 of the Statutes.
(3) The complaint alleges that the plaintiff made every effort to relet the premises for the purpose of minimizing the damage caused by the failure to pay the rent reserved. The answer of each of the appealing defendants contains the following allegation: “This defendant, further answering, says he (she) has not knowledge or information sufficient to form a belief as to the efforts made by the plaintiff to rent the premises.” This is such a denial as would put the plaintiff to its proof. Sec. 263.13 of the Statutes.
Under sec. 263.17 of the Statutes the only ground upon which a demurrer may be interposed to the defensive portions of an answer is that “it does not state facts sufficient to constitute a defense.” It is never the function of a denial to state facts that constitute a defense. The only purpose of a denial is to put in issue the allegations of the complaint.
“The Code permits a demurrer to an answer only when it contains new matter. A simple denial of the allegations of the complaint is not within the provision.” Lund v. Seamen's Bank, 37 Barb. (N. Y.) 129, 131. See, also, Smith v. Greenin, 2 Sandf. (N. Y. Super. Ct.) 702; Maretzek v. Cauldwell, 19 Abb. Pr. (N. Y.) 35, 38; Dean v. Atkinson, 201 Iowa, 818, 208 N. W. 301, 303. The demurrer reaches only the statement of “new matter constituting a defense” which is pleaded in the answer. Sec. 263.13 of the Statutes.
To permit these appealing defendants to escape the effect of a pleading which is otherwise open to demurrer by simply introducing this denial in their answers would effectually .take away the right given by the Code to test the legal sufficiency of the defensive matter pleaded. To give effect to both the letter and the spirit of the Code, it must be held that the demurrer to the answer does not reach the denials contained in such a pleading, and that, in testing the sufficiency of the defensive matter pleaded, the denials must be disregarded and the answer considered as if it contained no such denials. When the answers in this case are so tested, it is clear that they are subject to demurrer.
This court was in error in holding in Patterson v. Cappon, 125 Wis. 198, 204, 102 N. W. 1083, that a demurrer to an answer must be overruled when there is such a denial as that here in question. In so far as that case so holds, it must be overruled.
(4) The answer of the defendant Baireuther alleges that she is not liable to respond in damages because she was a married woman at the time that she signed the guaranty here in question. This guaranty was signed after the enactment of sec. 6.015 of the Statutes. Under that legislative
By the Court. — Orders affirmed.