Schoenleber v. Burkhardt

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Schoenleber v. Burkhardt, 94 Wis. 575, 69 N.W. 343 (Wis. 1896)
• Decision Date: 15 December 1896
• Parties: SCHOENLEBER ET AL. v. BURKHARDT.

94 Wis. 575

69 N.W. 343

SCHOENLEBER ET AL.

v.BURKHARDT.

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Maria Schoenleber and another against Thedore O. Hartman and others on a guardian's bond executed by defendant Hartman as guardian of plaintiffs. From a judgment in favor of plaintiffs, defendant John Burkhardt appeals. Affirmed.

Action against principal and sureties on a guardian's bond. The heirs of a bondsman, deceased, were joined. Such heirs demurred to the complaint, upon the ground, among others, that it does not state facts sufficient to constitute a cause of action against them. Defendant Burkhardt, one of the sureties, demurred upon the same ground, and also upon others. The demurrer interposed by the heirs was sustained. There was a stipulation that the same order should be entered on the demurrer of defendant Burkhardt as on that interposed by the heirs. Following such stipulation, an order was entered in the following words: “It is ordered that the said demurrer be, and the same is hereby, sustained, with $10 costs.” Thereafter an amended complaint was served on the attorneys for defendant Burkhardt, and $10 costs paid to them. Such amended complaint and costs paid were retained. The second complaint was substantially the same as the first, except that it dropped out the heirs of the deceased bondsman. Defendant Burkhardt, by his attorneys, again demurred upon the ground that the complaint fails to state a cause of action against him. The demurrer was overruled, and, from the order accordingly entered, this appeal was taken.

Fiebing & Killilea, for appellant.

Lindley Collins, for respondents.

MARSHALL, J. (after stating the facts).

There are several points raised by appellant, which will be considered in their order.

1. That the order sustaining the first demurrer did not grant leave to amend; hence it was final. It was competent for the parties to do by agreement what the court might have authorized in regard to the service of an amended complaint. Obviously, the failure to insert in the order leave to plead over was an oversight, for the order awarded $10 costs. That was erroneous, except as terms of serving an amended complaint. Curtis v. Moore, 15 Wis. 134. The parties so construed the order. An amended complaint was served, and the $10 costs paid as terms thereof. Such complaint was retained by appellant, and acted upon as regular, without objection. That effectually cured the omission from the order of leave to amend.

2. That the amended complaint is the same as the original, except that the heirs of the deceased bondsman are not joined as defendants; hence the decision on the first demurrer is res adjudicata of all points raised by the second demurrer. The practice is well settled that the decision of this court, on appeal from an...