McCarville v. Boyle

62 N.W. 517, 89 Wis. 651, 1895 Wisc. LEXIS 196

• Court: Wisconsin Supreme Court
• Decided: March 5, 1895
• Status: Published

Opinion

NewkaN, J.

There are two insuperable reasons why the order apjoealed from cannot be reversed on this appeal. (1) The order is right; (2) it is not appealable.

1. Sec. 2683, R. S., provides: “When the allegations of the pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court or presiding judge may require the pleading to be made definite and certain by amendment.” The “ precise nature of the charge ” is conspicuously apparent by the allegations of the complaint in this action. It clearly alleges both the promise and its breach. That comprises all the issuable facts in the case. The marriage of the defendant is no part of the plaintiffs cause of action. Whether pleaded or not pleaded, it could be evidence only of the breach of the contract. Only issuable, facts should be pleaded. It is not permissible to plead facts which are merely evidential. No amendment could make the precise nature of the charge more clearly apparent than it already is. It is not error to deny a motion. to make more definite and certain allegations m a complaint which, are unnecessary or redundant. Spensley v. Janesville C. M. Co. 62 Wis. 549; Freemam v. Engelmann Transp. Co. 36 Wis. 571.

2. This is one of that class of orders usually denominated “discretionary orders.” The appealability of such orders depends upon the abuse* of discretion. If there is no abuse of discretion there is no appeal. The rule in such cases is not to afiirm the order, but to dismiss the appeal. Jones v. Walker, 22 Wis. 220; Noonan v. Orton, 30 Wis. 609; Crerar v. M. & St. P. R. Co. 35 Wis. 67; Freemam v. Engelman Transp. Co. 36 Wis. 571; Lusk v. Galloway, 52 Wis. 164. This rule seems to have been overlooked in Spensley v. Janesville C. M. Co. 62 Wis. 549.

By the Oourt.— The appeal is dismissed.