133 Wis. 521 | Wis. | 1907
The complaint is one for the speciffc performance of a contract for the sale of land by the defendant William Scallon to Thomas J. Wilcox. It is alleged that the conditions of the agreement as modified by the parties thereto have been performed on the part of the vendee, Thomas J. Wilcox, but that the vendor, William Scallon, defendant in this action, refuses to carry out his obligations and refuses to convey the premises as it is claimed he agreed to do. The complaint is demurred to on several grounds, and the trial court overruled the demurrer as to the defendant William Scallon.
It is now contended that the complaint is fatally defective,
This defect goes to the question of a defect of parties. The demurrer upon this ground is in the following words: “That there is a nonjoinder of necessary parties plaintiff.” Sec. 2651, Stats. (1898), provides that “the demurrer shall distinctly specify the grounds of the obj ection to the complaint, in the language of the subdivision of see. 2649 relied upon, adding, if' based upon the . . . fourth subdivision [the one here in question], a particular statement of the defect. . . . Unless it do so the demurrer may be stricken out.” In the case of Baker v. Hawkins, 29 Wis. 576, it was held that such a demurrer must show who are the proper parties so as to inform the opposite party and the court of the particular defect and to enable the party to amend. This rule is incorporated in sec. 2651, Stats. (1898). This procedure was pointed out in Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522; Emerson v. Schwindt, 108 Wis. 161, 84 N. W. 186. Under the statutes and the decisions the demurrer sought to be interposed is insufficient in its terms and cannot be upheld •as contended by appellant.
We find nothing in the record that would justify us in sustaining the demurrer to the complaint upon any of the grounds urged.
By the Gourt. — The order appealed from is affirmed.