Board of Supervisors v. Van Stralen
Wisconsin Supreme Court
APPEAL from the Circuit Court for Fond- du Lao County. Action on the official bond of Van Stralen as treasurer of Brown county. “ In the original complaint, the plaintiff assigned, for breach of the county treasurer’s bond, tlie nonpayment of one sum of some eight thousand and odd dollars only. Afterwards the complaint was amended, assigning additional breaches for tlie nonpayment of several other large sums.
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APPEAL from the Circuit Court for Fond- du Lao County. Action on the official bond of Van Stralen as treasurer of Brown county. “ In the original complaint, the plaintiff assigned, for breach of the county treasurer’s bond, tlie nonpayment of one sum of some eight thousand and odd dollars only. Afterwards the complaint was amended, assigning additional breaches for tlie nonpayment of several other large sums. The court below gave leave to the defendants to file an amended answer to the complaint so amended. This answer sets up an agreement between the parties, made before the complaint was…
1Opinion of the Court
EyaN, O. J".
The answer does not go to the right of the respondents to recover, but only to their right to recover in this action. It is clearly in abatement. “ Whenever the subject matter of the defense is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement.” 1 Chitty’s PI., 446.
Whether or not leave to file this answer…
2Cases cited5 opinions
- Gardner v. . ClarkNew York Court of Appeals · 1860
- Stilwell v. KelloggWisconsin Supreme Court · 1861
- McCarville v. BoyleWisconsin Supreme Court · 1895
- Freeman v. CarpenterWisconsin Supreme Court · 1863
- Norton v. RookerWisconsin Supreme Court · 1842
3Cited by7 opinions
- Harriman v. Queen Insurance Co. of LondonWisconsin Supreme Court · 1880
- Hill v. WalkerCourt of Appeals for the Eighth Circuit · 1909
- Stephens v. WheelerWisconsin Supreme Court · 1927
- Smith v. Commonwealth Insurance Co.Wisconsin Supreme Court · 1880
- Hooker v. GreeneWisconsin Supreme Court · 1880
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