Hertz Corp. v. Red Rooster Cheese Co.

Decision Date03 October 1972
Docket NumberNo. 166,166
Citation200 N.W.2d 603,55 Wis.2d 701
PartiesThe HERTZ CORPORATION, Respondent, v. RED ROOSTER CHEESE CO., INC., Appellant.
CourtWisconsin Supreme Court

Becker, Kinnel, Doucette & Mattison, James R. Mattison, Milwaukee, for appellant.

Burton A. Strnad, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

The challenge on appeal is to the trial court's sustaining in part the demurrer of plaintiff to the counterclaim of defendant. The trial court sustained the demurrer to one of five items of damage claimed in the counterclaim, relying upon a contract provision incorporated in plaintiff's complaint.

There are two things wrong with what the trial court did.

A demurrer to a counterclaim, asserting that the counterclaim does not state a cause of action, is a challenge of the legal sufficiency on its face of such counterclaim. It is directed toward errors and omissions appearing on the face of the counterclaim. 1 Wisconsin statutes set forth the issues that may be raised by a demurrer to a counterclaim, 2 providing that, when the matters enumerated as subject to demurrer do not appear on the face of the counterclaim, objection may be taken by reply. 3 When the defect appears on the face of the counterclaim, demurrer lies. When the defect does not appear on the face of the counterclaim, objection is to be raised by reply. As has been said of demurrers to complaints, objections which do not appear on the face of the counterclaim must be taken by plea or reply. 4 An exception has been created to this rule where '. . . the other pleading resorted to is contained in the same document as the pleading demurred to and is subscribed or verified by the same party, or parties, as the latter pleading.' 5 The exception to the general rule stops far short of permitting demurrant or trial court to import into a counterclaim allegations of fact contained in plaintiff's complaint when the counterclaim is challenged by demurrer for failing to state a cause of action. 6

(2) A demurrer to a counterclaim on the ground that it does not state a cause of action does not reach items of damage claimed in the prayer for relief. Even if paragraph 26 of the lease agreement had been set forth in the counterclaim, instead of being incorporated only in plaintiff's complaint, demurrer would not lie to one or more of five items of claimed damage in the counterclaim. Paragraph 26 does not negate the case of action set forth in the counterclaim. It does appear to limit damages recoverable, but items of damage in a prayer for relief are not challengeable by demurrer. For demurrers to counterclaims, as this court has said of demurrers to complaints, the rule is: '. . . The mere demand for an amount in damages which is excessive does not render the complaint subject to demurrer', 7 since '. . . A prayer for relief is no substantive part of a complaint and the fact that the plaintiff 'asks for more relief than that which his pleaded facts entitle him to have is not reached by demurrer. " 8

For the two reasons given, the trial court's order sustaining in part the demurrer of plaintiff to defendant's counterclaim must be reversed, and the case remanded with directions to overrule the demurrer of plaintiff.

Order reversed, with directions to deny the demurrer of the plaintiff to the counterclaim of the defendant.

* Paragraph 26 provides:

'Non-Liability For Contents. Hertz shall not be liable for loss of or damage to any property left, stored, loaded or transported in or upon any vehicle furnished by Hertz to Customer pursuant to this Agreement, whether or not due to the negligence of Hertz, its agents or employees, and Customer hereby agrees to hold Hertz, its agents and employees, harmless from and to defend and indemnify them from and against all claims based upon or arising out of such loss or damage. No right of Hertz under this Article 26 may be waived except by an Agreement in writing signed by an executive officer of Hertz as hereinbefore provided in Article 25.'

1 See: Callaghan's Wisconsin Pleading and Practice, Vol. 4, sec. 22.18, Nature and purpose of demurrer. See also: 71 C.J.S. Pleading § 257, page 500.

2 Sec. 263.17, Stats., providing in pertinent part: '. . . The plaintiff may, within 20 days, demur . . . to any counterclaim therein where it appears upon the face thereof either that:

'(1) The court lacks jurisdiction of the subject matter; or

'(2) The defendant has not legal capacity to maintain the same; or

'(3) Another action is pending between the same parties for the same cause; or

'(4) There is a defect of parties; or

'(5) The counterclaim does not state a cause of action; or

'(6) The cause of action stated is not pleadable as a counterclaim; or

'(7) The counterclaim is barred by the statutes of limitations.' (Emphasis supplied.)

3 Sec. 263.18, Stats., providing in pertinent part: '. . . The plaintiff may demur . . . to one or more of the counterclaims and reply to the residue of the counterclaims. When any of the matters enumerated in s. 263.17 do not appear upon the face of the counterclaim, the objection may...

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6 cases
  • Revival Center Tabernacle of Battle Creek v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court
    • April 10, 1975
    ...Menominee Paper Co. (1928), 197 Wis. 25, 221 N.W. 381.5 Id.6 Id. 1 Wis.2d at page 141, 83 N.W.2d 694.7 Hertz v. Red Rooster Cheese Co. (1972), 55 Wis.2d 701, 704, 705, 200 N.W.2d 603, 606, this court holding: '. . . When the defect appears on the face of the counterclaim, demurrer lies. Whe......
  • Schweiger v. Loewi & Co., Inc.
    • United States
    • Wisconsin Supreme Court
    • October 1, 1974
    ...that the plaintiff asks for more than the pleaded facts entitled him to is not reached by demurrer. Hertz Corp. v. Red Rooster Cheese Co., Inc. (1972), 55 Wis.2d 701, 706, 200 N.W.2d 603 and D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis.2d 390, 398, 120 N.W.2d 70. On this point......
  • John v. John
    • United States
    • Wisconsin Court of Appeals
    • November 24, 1989
    ...of the complaint remained unaltered. A prayer for relief is not a substantive part of the complaint. Hertz Corp. v. Red Rooster Cheese Co., 55 Wis.2d 701, 706, 200 N.W.2d 603, 606-07 (1972). The notice to which John was entitled is notice of facts. The complaint set forth facts that were no......
  • Olston v. Hallock
    • United States
    • Wisconsin Supreme Court
    • October 3, 1972
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