Sprague v. Maxcy

100 N.W. 832, 122 Wis. 502, 1904 Wisc. LEXIS 180

• Court: Wisconsin Supreme Court
• Decided: September 27, 1904
• Status: Published

Opinion

Dodge, J.

Tbe demurrer in tbis case is so without foundation as to force conviction of frivolity and of some purpose of obstruction or delay. Tbe only contention in appellants’ brief is that tbe character of the title of tbe parties is not sufficiently alleged; especially that tbe complaint is lacking in assertion that plaintiffs have an estate in possession. It is difficult to imagine a more categorical allegation of tbis fact than that they are owners in fee and in possession. Tbe standing of appellants’ counsel precludes tbe idea that be could have seriously believed or advised that tbe sufficiency of tbis complaint was even doubtful, or that either counsel or clients could have interposed tbe demurrer or prosecuted tbis appeal in tbe good faith which both owed to tbe court; indeed to tbe plaintiff. In such situation, we should not perform our full duty by merely affirming the order overruling the demurrer. Due regard for tbe ethics of litigation requires that we enforce tbe penalty authorized by sec. 2951, Stats. 1898.

By the Oourt. — Order overruling demurrer is affirmed. Double attorneys’ fees will be taxed as costs^ against tbe appellants.