Straka v. Lander

• Decision Date: 18 March 1884
• Citation: 60 Wis. 115,18 N.W. 641
• Parties: STRAKA AND OTHERS, BY GUARDIAN, v. LANDER AND OTHERS, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

60 Wis. 115

18 N.W. 641

STRAKA AND OTHERS, BY GUARDIAN,

v.LANDER AND OTHERS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, Brown county.H. J. Huntington, for respondents, Joseph Straka and others, by guardian.

W. J. Lander, for appellants, W. J. Lander and others, impleaded, etc.

COLE, C. J.

This a foreclosure action. The note and mortgage were given to the general guardian of Joseph Straka and Anna Straka; Anna having by marriage become Anna Hammes. Joseph and Anna are minors. The action is in their names, by Theodore Kennitz, their guardian ad litem. Kennitz had been appointed the general guardian of the infants, and the note and mortgage assigned to him. He was also appointed guardian ad litem to prosecute this suit. We fail to perceive any valid objection to the practice adopted, either in the appointment of the guardian ad litem or the method of bringing the suit. The court, or judge thereof, had authority under the statute to appoint the general guardian as guardian ad litem, if it was deemed proper to do so. Section 2613, Rev. St.; Foster v. Hammond, 37 Wis. 185. The person appointed as guardian ad litem is usually the general guardian, unless special reasons exist for appointing another person. See Story, Eq. Pl. § 58, and note 1.

The defendants W. J. Lander and Anna, his wife, demurred to the complaint on various grounds. This demurrer was, on motion, stricken out as frivolous, with $10 costs, and these defendants were allowed 20 days to plead to the action. The demurrer was clearly bad, and must have been overruled on argument. Such being the case, though the appeal was directly from the order, still the order must be affirmed within the decisions of Diggle v. Boulden, 48 Wis. 478, [S. C. 4 N. W. REP. 678,] and Lerdall v. Charter Oak Co. 51 Wis. 428; [S. C. 8 N. W. REP. 280.] For, under the rule established in these cases, no distinction is made between an order striking out a demurrer as frivolous and one overruling it on argument. Costs could be allowed on the motion within the discretion of the court. Section 2924, Rev. St.

It seems unnecessary to notice in detail the several grounds of objection taken to the complaint on demurrer. Most of them are so obviously untenable as to require no comment whatever. The complaint, among other things, states that the mortgaged premises were for the years 1876, 1877, 1878, and 1879, sold for the taxes of three years respectively, and...