Cottrill v. Cramer

40 Wis. 555

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinions

Cole, J.

This is an appeal from an order striking out a demurrer as frivolous, and allowing the defendants to answer upon the terms stated in the order. The case has been argued in this court as though the real question before us was, whether the demurrer to the complaint was well taken. But it is obvious that that question is not raised by the appeal. The question is as to the character of the demurrer, and whether it can be said to be frivolous under the decisions of this court. A frivolous demurrer Ras been defined to be one which, is so clearly untenable, or its insufiiciency so manifest upon a bare inspection of the pleadings, that its character may be determined without argument or research, Farmers’ & Millers’ Bank v. Sawyer, 7 Wis., 379; Walton v. Goodnow, 13 id., 661; Ferguson v. Troop, 16 id., 572; Sage v. McLean, 37 id., 357. Applying this rule to the case before us, it is manifest that the demurrer is not frivolous. Whether it would or should be held good on the merits, is another question, and one upon which we are not called upon to express an opinion at this time.

By the Ooumt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings.