Plumer v. Clarke

• Court: Wisconsin Supreme Court
• Writing for the Court: COLE
• Citation: Plumer v. Clarke, 59 Wis. 646, 18 N.W. 467 (Wis. 1884)
• Decision Date: 19 February 1884
• Parties: PLUMER v. CLARKE. GILMORE v. COMSTOCK. MOORE AND OTHERS v. CLARKE.

59 Wis. 646

18 N.W. 467

PLUMER

v.CLARKE.

GILMORE

v.COMSTOCK.

MOORE AND OTHERS

v.CLARKE.

Supreme Court of Wisconsin.

Filed February 19, 1884.

Appeals from circuit court, Lincoln county.Silverthorn & Hurley, for respondents, D. L. Plumer, Charles D. Gilmore, and N. D. Moore and others.

Hetzel & Canon, for appellants, Frank B. Clarke and John Comstock.

COLE, C. J.

These cases present precisely the same question of law, and will therefore be considered together. The actions are ejectment. In each case the defendant answered: “(1) A general denial; (2) that if the plaintiff ever had any cause of action against the defendant the same was barred by the statute of limitations.” Subsequently, the defendants made application to amend the answers, so as to set up in a proper manner the statute of limitations relied on in support of tax certificates and tax deeds under which they claimed title. The circuit court denied the amendments solely on the ground that the proposed amendments set up an unconscionable defense. The question is, was it, under the circumstances attending the application, an abuse of discretion on the part of the circuit court to deny the motions to amend? In actions between individuals, this court has uniformly held that the trial court was not guilty of any abuse of discretion in refusing to allow the defendant to amend his answer by pleading the statute of limitations. In actions against counties a different rule has been sanctioned for peculiar reasons applicable to such defendant corporations. See Baker v. Sup'rs, 39 Wis. 444;Capron v. Sup'rs, 43 Wis. 613;Ry. Co. v. Lincoln Co. 57 Wis. 137; [S. C. 15 N. W. REP. 121.] But in suits between private parties the rule first stated has been inflexibly adhered to. These decisions conclusively settle the question of amendment involved here unless the facts shown on the application furnish a ground for holding that they ought not to apply. And giving to these facts and circumstances all the weight to which they are entitled, still they do not warrant us in making these cases an exception to the general rule in respect to amendments setting up the statute of limitations.

It is said by the learned counsel for the defendants that the amendments should have been allowed in furtherance of justice, because the proposed answer was but an amendment to the original answer, which set up the statute of limitations defectively. In other words, the defendants should have been permitted to set up by amendment a valid defense of the statute, when, in fact, they had made no such defense in the original answer. This is the result of that argument. For in Paine v. Comstock, 57 Wis. 159, [S. C. 14 N. W. REP. 910,] this court held that precisely such an answer did not sufficiently plead any statute of limitations and contained no allegations of facts which could be made more definite and certain by amendment. Mr. Justice ORTON there considers the sufficiency of such an answer as though it had been demurred to ore tenus on the trial. And he says the answer could not be made more definite and certain by amendment, even on motion, because no facts are alleged upon which such an amendment would operate. Under the decisions in the Paine Case each of the answers in question is incurably bad. That being the case, what ground is there for saying that it is an abuse of discretion for the court not to allow a worthless answer to be made good, but no abuse of such discretion to refuse an application to set up the statute of limitations where no such defense was originally relied on. There is no sufficient reason for making a distinction in the cases, and if it would be in furtherance of justice to allow the amendment in the one case, it should be permitted in the other to secure a like end. Consequently, the fact that an attempt was made to plead the statute of limitations in the...