McCall Co. v. Stone

102 N.W. 1053, 124 Wis. 572, 1905 Wisc. LEXIS 102

• Court: Wisconsin Supreme Court
• Decided: April 5, 1905
• Status: Published

Opinion

WiNsnow, J.

By the separate defense at which the plaintiff’s demurrer was directed, the defendant endeavored to plead facts which would make the contract sued upon invalid under the provisions of sec. lllOb, Stats. 1898. Had the plaintiff demurred to that defense, the question whether that ■section applied to the contract set forth by the complaint, or whether that contract was unaffected by the section because it relates to commerce between the states, would have been fairly before us. The plaintiff, however, demurred to a part only of the defense. It eliminated certain paragraphs of the alleged defense and demurred to the balance. If this method of pleading be allowable, the pleader who could not frame a successful demurrer to almost any pleading would be a very dull man. All that would be necessary would be to pick out the paragraphs which by themselves state no cause of action or defense, and demur to them. However, such is not the law. The statute (sec. 2658, Stats. 1898) says, “The plaintiff may . . . demur to the answer or any defense therein when,” etc. This court has held that a demurrer cannot be addressed to a fragmentary part of a pleading, even in a mandamus action, where the statute allows the relator to “demur or answer all or any of the material facts contained in the same return.” State ex rel. Rice v. Chittenden, 107 Wis. 354, 83 N. W. 635.

These considerations make it improper for us to consider whether the alleged defense constitutes in fact a defense, for the reason that, as a whole, it has never been challenged.

By the Court. — Order affirmed.