Nieschka v. Wirth

• Decision Date: 15 May 1886
• Citation: 66 Wis. 319,28 N.W. 342
• Parties: NIESCHKA v. WIRTH. (TWO CASES.)
• Court: Wisconsin Supreme Court

66 Wis. 319

28 N.W. 342

NIESCHKA

v.WIRTH. (TWO CASES.)

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from county court, Dodge county.

A. K. Delaney, for respondent, Rosalina Nieschka.

Elihu Colman, for appellant, Ludwig Wirth.

TAYLOR, J.

In this case the defendant and appellant appeals from an order made by the county court of Dodge county, in each case requiring the defendant to make his answer more definite and certain. The orders appealed from read as follows: “It is hereby ordered that said defendant make the second count of his answer more definite and certain; and that said defendant pay the plaintiff $10 costs of this motion; and that said defendant have twenty days from the date of the service of this order on his attorney within which to comply with the terms of this order; and that meanwhile all further proceedings upon the part of the defendant be stayed, except such proceedings as are incident to an appeal from this order.”

These actions were commenced in justice's court, and the answers which were ordered to be made more definite and certain were filed in the justice's court. The actions were tried in justice's court, and judgment rendered in favor of the defendant. The plaintiff appealed to the county court. On June 17, 1885, they were tried in the county court, and verdicts were rendered in favor of the defendant in that court. The county court set aside the verdicts, and granted a new trial. On November 12, 1885, the defendant noticed the cases for trial again at the December term of said court, and thereupon, and on the eighteenth of November, 1885, the plaintiff served notice upon the defendant in each case, of which the following is a copy: “Take notice that upon the records, proceedings, pleadings, papers, and files, and more especially upon the answer of the defendant herein, the plaintiff will move the court, on the first day of December, 1885, at the opening of the court on that day, or as soon thereafter as counsel can be heard, at the court-house in Juneau, in said county, for an order requiring the defendant to make his answer more definite and certain.” Upon this motion the court made the orders from which the appeals in these actions are taken.

It is insisted by the learned counsel for the appellant that the court erred in granting these motions for the following reasons: (1) It was too late to make a motion to make the pleadings more definite and certain after having twice gone to trial upon the pleadings; (2) that the motion should have pointed out the defect, if any, in the answer, and specified in what particulars the pleading was indefinite and uncertain, and as to what matters it should have been made more definite and certain; (3) that the order is erroneous in not directing in what respect the answer should be made more definite and certain.

Th...