Steele v. Moss

34 N.W. 237, 69 Wis. 496, 1887 Wisc. LEXIS 203

• Court: Wisconsin Supreme Court
• Decided: October 11, 1887
• Status: Published

Opinion

Cole, C. J.

In this case the first motion to set aside the' judgment should have been granted, because it was irregularly entered. Before the time for answering had expired. a demurrer to the complaint was served and filed-. This issue of law had not been disposed of when judgment was entered. Consequent^ judgment could not be entered as in case of default, as was attempted. But the learned counsel for the plaintiff contends that the stipulation giving the defendant ten days additional time “to serve and file an answer ” did not give the right to demur, and that it was . in violation of the stipulation to do so. We cannot concur in that view of the matter. More than twenty-five years ago it was held by this court that, within the meaning of the statute, a demurrer was an answer (Howell v. Howell, 15 Wis. 55), and this, too, under a provision which enacted that the objection that an action was not commenced within the time limited, could “ only be taken by answer.” That decision defining or construing the word “ answer ” has been followed since in several cases. See Orton v. Noonan, 25 Wis. 675; Tarbox v. Sup'rs Adams Co. 34 Wis. 560; Hyde v. Sup’rs Kenosha Co. 43 Wis. 138; George v. C., M. & St. P. R. Co. 51 Wis. 605. Presumably counsel were familiar with these decisions, and made the stipulation with, a view to the meaning which had .been given to the word “answer” in them. We cannot, therefore, construe the stipulation as allowing the defendant to answer only, and not demur.

By the Court.— The first order refusing to vacate the judgment is reversed, and this disposes of the second order, which was to the same effect. The order of the circuit court is reversed. '