Resch v. Senn
Wisconsin Supreme Court
APPEAL from the Circuit Court for Fond du Lac County. Action upon a promissory note executed by the defendants to the plaintiff. Complaint in the usual form. The answer admits the making and delivery of the note as alleged in the complaint, and “for further defense” states certain facts, which, if true, show that the note was fraudulently obtained and without consideration.
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APPEAL from the Circuit Court for Fond du Lac County. Action upon a promissory note executed by the defendants to the plaintiff. Complaint in the usual form. The answer admits the making and delivery of the note as alleged in the complaint, and “for further defense” states certain facts, which, if true, show that the note was fraudulently obtained and without consideration. It also contains the following demand for relief: “ Wherefore the defendants demand that the complaint of the plaintiff be dismissed, and that these defendants be al lowed them costs; that the said note be delivered up and…
1Opinion of the CourtLyon, J.
The only question to be determined on this appeal, is, Does the answer contain a counterclaim ? If it does, it would seem that the motion of the defendants for judgment for want of a reply should have been granted, although no notice of the motion was served as provided by the statute. R. S., ch. 125, sec. 16. But, however this may be, the failure to reply to a counterclaim is an admission by the plaintiff that the same is true, and a judgment in his favor entered on the trial, in the lace of an admission made by the pleadings that there ought to be no such judgment, is clearly erroneous, and…
2Cases cited4 opinions
- Burrall v. De GrootThe Superior Court of New York City · 1856
- Gunn v. MadiganWisconsin Supreme Court · 1871
- Bridge v. PaysonThe Superior Court of New York City · 1851
- Matteson v. EllsworthWisconsin Supreme Court · 1871
3Cited by5 opinions
- Baker v. BeckerWisconsin Supreme Court · 1913
- Rood v. TaftWisconsin Supreme Court · 1896
- In re the Executive Communication of October 5, 1875Supreme Court of Florida · 1875
- Commercial Bank of Milwaukee v. Fire Insurance Co. of the PhiladelphiaWisconsin Supreme Court · 1893
- Bacher v. GrayWisconsin Supreme Court · 1901