Stafford v. General Supply Co.

• Decision Date: 07 October 1958
• Citation: 5 Wis.2d 137,92 N.W.2d 267
• Parties: Harold E. STAFFORD, Plaintiff and Appellant, v. GENERAL SUPPLY COMPANY, a partnership consisting of Frank Mrozinski and Albert Zutter, Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 267

92 N.W.2d 267

5 Wis.2d 137

Harold E. STAFFORD, Plaintiff and Appellant, v. GENERAL SUPPLY COMPANY, a partnership consisting of Frank Mrozinski and Albert Zutter, Defendants and Respondents.

Supreme Court of Wisconsin.

Oct. 7, 1958.

Stafford, Pfiffner & Stafford, Chippewa Falls, for appellant.

Vance L. Sinclair, Chippewa Falls, for respondents.

HALLOWS, Justice.

The question raised on this appeal is whether the issues raised in the counterclaims of the defendant have been so adjudicated between the plaintiff and defendant in the assignment proceeding and in the assignee's action as to be res judicata in this action. This question is raised both by a motion to strike and by a motion for summary judgment. The appellant states in his brief the motion to strike was used in an endeavor to avoid any contest of any issue as to the technical nature or statutory requirements regarding summary judgment, and claims the motion is in effect in the nature of a demurrer but that the court may consider motion papers, the circuit court actions and matters extrinsic to the pleading. This motion to strike incorporating matters extrinsic to the pleadings is not the equivalent of a demurrer and cannot be treated as a demurrer for the purpose of appeal. This court has held a motion to strike out in its entirety a separate defense is in legal effect a demurrer. Williams v. Journal Co., 1933, 211 Wis. 362, 247 N.W. 435. But this motion only seeks to strike out certain allegations in the counterclaims and is not the equivalent to a demurrer. Britz v. Chilsen, 1956, 273 Wis. 392, 78 N.W.2d 896. Neither is a motion to strike matters from portions of the pleading as irrelevant the equivalent of a demurrer. Paraffice Companies v. Kipp, 1935, 219 Wis. 419, 263 N.W. 84. It has been held many times a motion to strike irrelevant parts of an answer pleaded in its entirety is not appealable. Gilbert v. Hoard, 1930, 201 Wis. 572, 230 N.W. 720; Britz v. Chilsen, supra. Furthermore, the motion to strike was not timely made. A motion to strike to be considered appealable as the equivalent of a demurrer must be made within the time allowed for a demurrer. However, on the appellant's theory and purpose of the motion the parts of the counterclaim sought to be stricken could only be frivolous, irrelevant and redundant if the doctrine of res judicata applied.

The appellant contends that the Chap. 128 proceeding the question of whether he was a partner of the Wisconsin Home Building Company was determined. This issue was raised collaterally on the appellant's claim against the partnership based on a promissory note of the partnership and his liability as surety on two notes of the partnership to banks for which he had security. One of the creditors, W. H. Hobbs Supply Company, objected to the claim of the plaintiff, one of the grounds being that the plaintiff was a partner of the assignor. It does not appear in the record why the receiver did not make or interpose the objection or that the creditor complied with sec. 128.15 Wis.Stats., which permits a creditor to file objections to a claim if the receiver or assignee refuses to file or fails to act. In the assignment action the defendant filed its claim for $3,287.30. The court ultimately held the appellant was a claimant. The hearing on his claim was combined with the hearing in the action commenced by John Varga as assignee against the appellant, the respondent, Wally Jacobson and other creditors. The appellant also contends that in this action it was also determined he was not a partner of Wisconsin Home Building Company. The issue was raised between the appellant and another defendant, W. H. Hobbs Supply Company, in its answer. It does not appear that this answer was ever served on the respondent.

The action brought by Varga was to establish title to six homes built on land owned by the appellant and to recover certain property converted by Wally Jacobson. No relief was asked or sought against the respondent except there was a prayer that all claims be determined, a receiver appointed and the assets marshalled. The complaint was verified by Varga as assignee although he was appointed receiver in the assignment proceeding seven days earlier. The prayer for relief as to claims and marshalling of assets was improper as the circuit court already had jurisdiction under Chap. 128. It appears from the minutes of the clerk that the issues in the claims in the assignment proceeding and the issues raised by the cross-complaint in the Varga action were consolidated for trial.

It further appears the morning of the day of trial and part of the afternoon were spent by attorneys in conference with the trial judge and later testimony was taken only of Wally Jacobson and of appellant although other witnesses were subpoenaed. Neither the testimony nor any exhibits appear in the record. The trial actually consumed an hour. At its conclusion a motion was made by the appellant for detailed findings, which was granted. Findings of fact and conclusions of law were entered in the two cases, which provided among other things that the assignment was valid; that Wally Jacobson was the sole proprietor and the appellant was not a partner and never held himself out as such to anyone or that he agreed at any time to become obligated to pay any one for material, services, expenses or obligations of Wisconsin Home Building Company and that there was no joint venture between the appellant and Wisconsin Home Building Company.

The findings further provided the six dwelling houses were real estate and subject to a first lien of the appellant and the appellant was a preferred and secured creditor and had a first lien on the said six lots to secure his claim as surety. The claims of the O & N Lumber Company and W. H. Hobbs Supply Company were stated to be preferred and secured on the same lots but secondary to the claims of the appellant. There does not appear to be any findings on the liability of Wally Jacobson for converting material to his own use. The findings point out that the claim of the O & N...