Legal Opinion

Clapp v. Preston

Wisconsin Supreme Court

Decided October 11, 1862PublishedCited by 4 opinions

APPEAL from the Circuit Court for Jefferson County. This was an action on a joint and several note made by the four defendants and two other persons. Demurrer to the complaint on the ground,, among other things, that the other two makers of the note were not made defendants.

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APPEAL from the Circuit Court for Jefferson County. This was an action on a joint and several note made by the four defendants and two other persons. Demurrer to the complaint on the ground,, among other things, that the other two makers of the note were not made defendants. Application, upon notice, was made to the circuit judge at his chambers in Madison, for .judgment, on the ground that ^emurrer was frivolous; and tbe judge beld it to befrivo-lous, and made an order for judgment in favor of tbe plain-tjffg for tbe amount of tbe note. Tbe defendants excepted to tbe order. Without further…

1Opinion of the Court

£y gie Court,

Cole, J.

Within tbe repeated decisions of this court, it is very clear that tbe demurrer in this case was not frivolous. Tbe court could hardly say, on a bare inspection of tbe demurrer, without any argument or examination of authorities, that it was bad. Indeed, under tbe old practice, tbe demurrer would have to be sustained. For tbe rule was, that where tbe contract was joint and several tbe plaintiff must sue all jointly or separately, and could not treat tbe contract as joint in respect to two or more of the parties. 1 Saunders’ R., 291; Streatfield et al. vs. Halliday, 3 T.…

2Cases cited1 opinion

  1. Butler v. RawsonCourt for the Trial of Impeachments and Correction of Errors · 1845

3Cited by4 opinions

  1. Decker v. TrillingWisconsin Supreme Court · 1869
  2. Boyd v. BeaudinWisconsin Supreme Court · 1882
  3. Rider-Wallis Co. v. FogoWisconsin Supreme Court · 1899
  4. State v. WilliamsWisconsin Supreme Court · 2012

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