Fleischmann v. Reynolds
| Decision Date | 09 October 1934 |
| Citation | 216 Wis. 117,256 N.W. 778 |
| Parties | FLEISCHMANN ET AL. v. REYNOLDS ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from orders of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge. Reversed.
Action for partition by Victor A. Fleischmann and others against F. S. Reynolds and others, commenced October 11, 1933. From an order entered January 5, 1934, denying a motion to strike the answer as frivolous, and from an order overruling a demurrer to the answer entered January 18, 1934, the plaintiffs appeal.
Fred L. Luehring, of Milwaukee (Gabel, Dineen, McCarty & Young, of Milwaukee, of counsel), for appellants.
Ernst von Briesen, of Milwaukee, for respondents.
Counsel for the parties agree that the allegations of the complaint state a cause of action for partition of real estate. The answer of the defendants Reynolds denies none and admits all of these allegations, and states no matter constituting a defense. The plaintiffs moved the court to strike the answer as frivolous and to set the case down for hearing as a default. Before this motion was heard, the parties stipulated for dismissal of the portion directed to getting the case set for hearing as a default. Upon the hearing of the motion, the court entered an order dismissing without prejudice the motion to set the case for hearing and denying the motion to strike. After denial of the motion to strike, the plaintiff demurred to the answer, for the reason that it does not state facts sufficient to constitute a defense. The court overruled the demurrer. From each of these orders the plaintiffs appeal.
[1] A motion to strike an entire answer as frivolous is treated as a demurrer to the answer on the ground that it does not state facts sufficient to constitute a defense. Milwaukee Steamship Co. v. Milwaukee, 83 Wis. 590, 595, 53 N. W. 839, 18 L. R. A. 353;Wisconsin F. & F. B. Co. v. Southern S. Co., 188 Wis. 383, 206 N. W. 204;Williams v. Journal Co., 211 Wis. 362, 247 N. W. 435. Each appeal therefore, raises the single question whether the answer states a defense.
[2] The answer admits the allegations of the complaint and “that in ordinary times said plaintiffs are entitled to partition”; states that physical partition can be made; prays for physical partition; and that, if this cannot be made without prejudice, sale be postponed for some reasonable length of time because “of the present depression”; because of an existing mortgage; and because the property...
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...188 Wis. 383, 387, 206 N.W. 204, 205.23 Williams v. Journal Co. (1933), 211 Wis. 362, 364, 365, 247 N.W. 435; Fleischmann v. Reynolds (1934), 216 Wis. 117, 118, 256 N.W. 778; Slama v. Dehmel (1934), 216 Wis. 224, 229, 257 N.W. 163; Teegarden Co-op. Cheese Co. v. Heckman (1955), 271 Wis. 86,......
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...was not challenged, the orders were reviewed. See Home Acres Co. v. Swenson-Dibble L. Co., 179 Wis. 556, 192 N. W. 42;Fleischman v. Reynolds (Wis.) 256 N. W. 778; and also Slama v. Dehmel (Wis.) 257 N. W. 163, 164, 167, in which we said that an order granting a motion to strike out an entir......
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Slama v. Dehmel
...F. & F. B. Co. v. Southern S. Co., 188 Wis. 383, 206 N. W. 204;Williams v. Journal Co., 211 Wis. 362, 247 N. W. 435;Fleischmann v. Reynolds (Wis.) 256 N. W. 778. The case is therefore here as if on appeal from an order sustaining a demurrer to the answer and the question involved is whether......