Smith v. Kibling
Wisconsin Supreme Court
Appeal from an order of the superior court of Milwaukee county: R. 1ST. Austin, Judge. Replevin for' a piano. The complaint is chary in its statement of the facts constituting the supposed cause of action, but it was not challenged by demurrer. The answer is a general denial, with a statement of facts such as, in the opinion of the pleader, show a complete defense.
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Appeal from an order of the superior court of Milwaukee county: R. 1ST. Austin, Judge. Replevin for' a piano. The complaint is chary in its statement of the facts constituting the supposed cause of action, but it was not challenged by demurrer. The answer is a general denial, with a statement of facts such as, in the opinion of the pleader, show a complete defense. Indeed, so strong is his conviction of the, completeness of the defense stated, that he goes on to say, in his answer, that the defendant “ demurs to the plaintiff’s cause of action? The plaintiff at once moved that certain parts…
1Opinion of the CourtRewman, J.
It is clear that the order appealed from- is-not an order which sustains a demurrer to the complaint, within the meaning of the statute allowing appeal from such orders; for there was no demurrer to the complaint. The defendant did not demur, but answered. What is said to be “a demurrer by way of answer” is, very plainly, no demurrer to the complaint at all. Eo such pleading is authorized. Jones v. Foster, 67 Wis. 296. When matters which would render the complaint demurrable do not appear upon the face of the complaint, the objection may be taken by answer. R. S. sec. 2653! Such matters are…
2Cases cited2 opinions
- Jones v. FosterWisconsin Supreme Court · 1886
- State ex rel. Briesen v. BardenWisconsin Supreme Court · 1890
3Cited by3 opinions
- Town of Iron River v. Bayfield CountyWisconsin Supreme Court · 1900
- Mandelert v. Superior Consolidated Land Co.Wisconsin Supreme Court · 1899
- Jenks v. AllenWisconsin Supreme Court · 1913