Sutton v. Wegner

• Decision Date: 09 October 1888
• Citation: 72 Wis. 294,39 N.W. 775
• Parties: SUTTON v. WEGNER.
• Court: Wisconsin Supreme Court

72 Wis. 294

39 N.W. 775

SUTTON

v.WEGNER.

Supreme Court of Wisconsin.

October 9, 1888.

Appeal from Milwaukee county court.

This action was commenced in justice's court, February 11, 1887. On the venue being changed, a complaint was filed, claiming damages for the amount of a promissory note of $100, and interest, and $64 for the use of a horse. The answer was a general denial. The cause was adjourned from time to time until April 22, 1887, when the defendant failed to appear, and the plaintiff obtained judgment. From that judgment the defendant appealed to the county court, May 11, 1887. June 25, 1887, in pursuance of notice of motion served with the papers upon which it was based, the county court made an order allowing the defendant to file and serve an amended answer in the cause, which was done; which answer, in effect, admits the execution of the note, but claims that it evidenced the total amount of the plaintiff's claim against him, and without any reference to the defendant's claims against the plaintiff, but otherwise denies each and every allegation of the complaint. The answer also contains two counter-claims, one of $63 and the other of $183.13. To such counter-claims the plaintiff served a reply, July 15, 1887, in effect denying each and every allegation therein contained; and, among other things, containing this clause: “This plaintiff further says that the amended answer of the defendant herein is a fraud and a sham, without any foundation in fact, and is made in bad faith, and for no honest or legitimate purpose whatever.” July 15, 1887, the defendant served notice of motion to strike out from said reply the words thus quoted, “as redundant and scandalous.” July 16, 1887, the plaintiff served an amended reply, which entirely left out the words quoted, and simply contained a general denial. July 18, 1887, that amended reply was returned to the plaintiff's attorney. September 10, 1887, the motion to so strike out of said reply the words quoted came on to be heard; and, on hearing the parties, the court on that day made an order reciting such service of said amended reply, with such scandalous matter omitted; and then “ordered that the plaintiff pay to the defendant or his attorney ten dollars, the costs of the motion.” Upon affidavits, showing, among other things, a futile attempt on the part of the defendant to notice said cause for trial at the September term of said court, and upon the records and files of the court, the defendant gave notice of a motion to be made October 8, 1887, for a continuance of the appeal until the next term of the court, and to extend, by order of said court, the time for bringing the same to trial or hearing until said next term. Upon the hearing of that motion, the court, on November 5, 1887, “ordered that this cause be, and the same is hereby, continued over this present (October, 1887) term of said court, and until the next succeeding term thereof, at which said cause can be noticed for trial; and it is further ordered that the defendant pay unto the plaintiff, within five days from this date, ten dollars, as a condition of granting herein this order.” Thereupon the plaintiff in one notice appealed from said order of September 10, 1887, and said order of November 5, 1887.J. J. Sutton, appellant, pro se.

Turner & Timlin, for respondents.

CASSODAY, J., ( after stating the facts as above.)

1. The plaintiff served his amended reply the next day after the service of the original. He had the right to amend as “of course, without costs, and without prejudice to the proceedings already had.” Section 2685, Rev. St. It may be questionable whether the mere omission of the alleged scandalous words should be regarded as an amendment. Assuming that it should, still the right to make it, as “of course” and “without costs,” should not be taken away by such hasty motion to strike it out. Besides, it is not very evident that such amendment was prejudicial to any proceeding already had. Certainly, there was no adjudication to that effect. It secured to the defendant all he sought by his motion without any adjudication. Had the trial court rightfully adjudicated that the words thus omitted were pertinent to the issue, and properly pleaded,...