Paraffine Cos. v. Kipp

• Decision Date: 05 November 1935
• Citation: 219 Wis. 419,263 N.W. 84
• Parties: PARAFFINE COMPANIES, INC., v. KIPP.
• Court: Wisconsin Supreme Court

219 Wis. 419

263 N.W. 84

PARAFFINE COMPANIES, INC.,

v.KIPP.

Supreme Court of Wisconsin.

Nov. 5, 1935.

Appeal from an order of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Action by the Paraffine Companies, Incorporated, against Clarence Kipp. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Appeal dismissed.

The proceedings before the court below were based upon a complaint and answer, motions to strike certain paragraphs of the answer, and a stipulation that the motions be treated as a separate demurrer to each paragraph. From an order entered holding defenses were not stated in the paragraphs subject to the motions, the defendant appeals.Pellette & Zillmer, of Milwaukee, for appellant.

Charles Friend, of Milwaukee, for respondent.

FAIRCHILD, Justice.

[1] The appeal in this matter was dismissed because the order sought to be reviewed was not an appealable order. It was a ruling on motions to strike certain paragraphs of an answer as sham, frivolous, or irrelevant after a stipulation had been entered into by the parties agreeing “that the motion to strike be considered by the court as a demurrer to each particular paragraph to which the motion to strike is directed.” The parties entered into the above stipulation over a year after the date of the second motion to strike, and provided in it that there be added to each paragraph involved in the motion to strike the following: “And as a separate defense alleges as follows.” The character and appealability of motions to strike are to be determined as of the date they were made. We appreciate that an effort was made by counsel to avoid delays by this attempt to change the procedure followed, into one of a different character. But a motion to strike remains a motion to strike unless it fits into the situation described in Gilbert v. Hoard, 201 Wis. 572, 230 N. W. 720; or Williams v. Journal Co., 211 Wis. 362, 247 N. W. 435.

[2][3][4] A motion to strike irrelevant matter from portions of a pleading serves a legitimate purpose, but is not the equivalent of a demurrer under the cases just cited. Even a general demurrer to specific paragraphs of an answer, where no single paragraph purports to contain within itself a completely stated defense to the complaint or any part thereof, is wholly ineffective to raise an issue of law. A general demurrer must be directed to the entire answer, or to some separately stated portion thereof purporting to constitute a defense. The question is not one of nomenclature, but of substance. The motions to strike here involved could not have been treated as effective demurrers had they been originally so labeled, because they are directed to paragraphs of the answer, none of which purport to state a separate and complete defense. While in terms the ...