Franke v. Nunnenmacher
Wisconsin Supreme Court
APPEAL from the Circuit Court for Mil/waulcee County. Action to abate a private nuisance, and to recover damages for the maintenance of the same. The defendant appealed from an order refusing to strike out certain portions of the complaint as irrelevant and redundant.
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APPEAL from the Circuit Court for Mil/waulcee County. Action to abate a private nuisance, and to recover damages for the maintenance of the same. The defendant appealed from an order refusing to strike out certain portions of the complaint as irrelevant and redundant. These portions alleged facts to show that the nuisance complained of caused a loss of customers in his business as a tavern-keeper, injury to the health of his wife and children, and a depreciation in the value of his land and surrounding premises. argued that when'the matter sought to be stricken out is a claim of special…
1Opinion of the CourtCole, J.
We have considerable doubt whether an order refusing to strike out redundant and irrelevant matter in a pleading is appealable. It is claimed that such an order is appealable under subd. 4, § 10, chap. 264, Laws of 1860, as being one which “involves the merits of the action or some part thereof.” Rut it is not readily perceived how mere impertinent or irrelevant allegations in a complaint can involve the merits of the action. They do not affect the subject-matter of the litigation, but may be disregarded as surplusage at the trial. The word “ merits,” as here used, relates to something more…
2Cases cited2 opinions
- Rahn v. GunnisonWisconsin Supreme Court · 1860
- Clark v. LangworthyWisconsin Supreme Court · 1860
3Cited by3 opinions
- Noonan v. OrtonWisconsin Supreme Court · 1872
- Oconto Land Co. v. MoslingWisconsin Supreme Court · 1904
- Schlecht v. AndersonWisconsin Supreme Court · 1929