Hooker v. Vill. of Brandon
| Citation | 66 Wis. 498,29 N.W. 208 |
| Parties | HOOKER AND ANOTHER v. VILLAGE OF BRANDON. |
| Decision Date | 02 September 1886 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fond du Lac county.
A. K. Delaney, for appellants, E. & C. E. Hooker.
Sutherland & Sutherland, for respondent, Village of Brandon.
Motion to dismiss the appeal. The action was brought to recover for the plaintiffs' services as attorneys in several prosecutions for violations of the excise laws within the defendant village, and also in an action brought by one Whitton against the defendant, and for certain expenditures in all of said actions. The original complaint was superseded by an amended complaint, which discloses the above causes of action. A demurrer to the amended complaint was sustained by the court, with leave to the plaintiffs to amend the same on payment of $10. The record does not contain this demurrer, but it was probably a general demurrer to the whole complaint. At least, it must be so regarded. The plaintiffs thereupon paid the $10, and served a second amended complaint, omitting therefrom the claim for services and expenditures in the excise prosecutions. After such service this appeal was taken by the plaintiffs from the order sustaining the demurrer to the first amended complaint.
The court is of the opinion that the appeal cannot be upheld. When the second amended complaint was interposed, the first amended complaint became functus officio. Practically, it was eliminated from the record. It would not be restored thereto were this appeal entertained, and the order overruling the demurrer reversed. Hence the appeal would be fruitless in any event. The plaintiffs rely upon the case of Supervisors, etc., v. Walbridge, 36 Wis. 643, as claiming that it lays down a different rule. But it does not. In that case a general demurrer to the complaint had been overruled, and it was held that the defendant did not waive his appeal from the order overruling his demurrer by interposing an answer to the complaint after such appeal had been taken. There the ruling of the trial court left the complaint intact, and the objection that it did not state a cause of action could properly be made at any time. The cases go upon the same principle which hold that, on an appeal from a final judgment, this court will review an order overruling a general demurrer to a pleading. Armstrong v. Gibson, 31 Wis. 61;Tronson v. Union Lumbering Co., 38 Wis. 202;McKinney v. Jones, 55 Wis. 39;S. C. 11 N....
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Bonnell v. Chi., St. P., M. & O. Ry. Co.
...serving an amended complaint the plaintiff cannot appeal from the order sustaining a demurrer to the original complaint. Hooker v. Brandon, 66 Wis. 498, 29 N. W. 208; s. c., 75 Wis. 8, 43 N. W. 741. One who obtains an order granting a new trial thereby waives the right of appeal from a prev......
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Schlecht v. Anderson
...Co., 149 Wis. 186, 135 N. W. 535. In the latter case the matter was not discussed at all. On the other hand, in Hooker v. Village of Brandon, 66 Wis. 498, 29 N. W. 208, it was held that a plaintiff waives his right to appeal from an order sustaining a demurrer to the complaint by serving an......
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Lundin v. ÆTNA INS. CO. OF HARTFORD, CONN.
...Schmidt v. Joint School District, 146 Wis. 635, 132 N. W. 583; Moritz v. Splitt, 55 Wis. 441, 13 N. W. 555; Hooker v. Village of Brandon, 66 Wis. 498, 29 N. W. 208. Nor was it necessary in the federal court to note an exception to the court's ruling sustaining a demurrer. Nalle v. Oyster, 2......
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Oconto Land Co. v. Mosling
...be erroneously held bad on demurrer, the right to appeal from the decision is waived by service of an amended pleading. Hooker v. Brandon, 66 Wis. 498, 29 N. W. 208. In both classes of cases the reasoning of the court is that if a party injuriously affected by an error, takes a step necessa......