City of Ashland v. Wisconsin Central Railway Co.

89 N.W. 888, 114 Wis. 104, 1902 Wisc. LEXIS 120

• Court: Wisconsin Supreme Court
• Decided: April 1, 1902
• Status: Published

Opinion

Wirrsx.ow, J.

There is no bill of exceptions in the case. The order striking from the calendar was based upon the files and records in the action, which are certified to be all here. Those files and records simply show that the city brought an action to compel the removal of obstructions from an alleged' street, and that the railroad company answered, alleging, among other defenses, that a prior action was pending in the United States court between the plaintiff and the defendants, privies in title, involving the determination of the same controversy ; that when the present action was regularly called for trial the defendant railway company appeared specially, and moved to strike the cause from the calendar, for the reason that said previous action was pending undetermined, and the motion was granted.

It does not appear that any proof was made in the trial court of the truth of the allegation in the answer that another action involving the same controversy was pending between the parties, nor does it appear that the fact was admitted by the plaintiff, nor that the answer was used as an affidavit upon the motion. It seems simply to have been a motion made upon the pleadings as such. Under our practice, the new matter set up in the answer, not being pleaded as a counterclaim, was deemed to be denied or avoided without formal reply. Stats. 1898, sec. 2667. Therefore, when the case was called for trial, the defendants’ answer of another action pending was, in legal effect, met by a sufficient reply either by way of denial or avoidance. Eor all that appears in the record, the plaintiff stood upon such reply, and was ready for trial of the issue. We do not understand that, when a plaintiff is met by the answer of another action pending, such answer is assumed to be true, or that the plaintiff is required to admit its truth, or file affidavits to the contrary, in order to defeat a motion to strike the case from the calendar made at the opening of the trial. Of course, he may admit its truth if ha chooses, or consent that the motion be heard and decided upon the answer used'as an affidavit, but he is entitled to rest upon his statutory reply, and insist that the issue raised be tried regularly as other issues of fact are tried. There is nothing in the record to show that he made any admission or consented to anything but a regular and orderly trial of the case. Under such circumstances, an order striking the cause from the calendar, merely because it was alleged that a previous action was pending between the parties, was clearly erroneous. The question of the appealability of the order is sufficiently treated in the case of Ashland v. Whitcomb, ante, p. 99, 89 N. W. 886.

By the Gourt. — Order reversed, and action remanded for further proceedings according to law.