Young v. Lynch

• Decision Date: 21 September 1886
• Citation: 29 N.W. 224,66 Wis. 514
• Parties: YOUNG v. LYNCH.
• Court: Wisconsin Supreme Court

66 Wis. 514

29 N.W. 224

YOUNG

v.LYNCH.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Washington county.P. & T. O'Meara, for respondent, Comfort M. Young.

Barney & Kuechenmeister, for appellant, D. W. Lynch.

TAYLOR, J.

This action is brought by the plaintiff and respondent against the defendant and appellant, who is a physician and surgeon, to recover damages for the alleged malpractice of the defendant in and about the setting and caring for certain fractured bones of the plaintiff. After 20 days from the time of the service of the complaint in the action, but within the time the defendant had to answer by the written stipulation of the plaintiff, the defendant made a motion requiring the plaintiff to make his complaint more definite and certain. Among other things the motion asked that the plaintiff should be required to make his complaint more definite and certain “by stating specifically in what defendant's negligence consisted,--whether in the reducing of said fracture, and, if so, in what particular or particulars, and whether said negligence, or any part thereof, consisted in the treatment subsequent to the reduction thereof, and, if so, in what did defendant's alleged negligence or want of skill or care consist.” The circuit court denied the defendant's motion, with leave to answer in 20 days. From this order the defendant appeals to this court.

The record does not disclose the reason of the court for denying the motion, and it is now insisted by the learned counsel for the respondent that the motion was properly denied by the circuit court because not made in time. The summons was served September 26, 1885. The defendant appeared by his attorneys on October 2, 1885, and demanded service of complaint on them. The time to serve such complaint was extended by stipulation of defendant's attorneys until December 1, 1885. The complaint was served November 27, 1885; and on December 17, 1885, the plaintiff's attorneys stipulated in writing, extending the time to answer or demur to January 2, 1886. The motion to make the complaint more definite and certain was served on December 28, 1885, and a stay of proceedings obtained by the defendant until the second Tuesday in February, 1886, that being the date of the first special term in said circuit. The motion served was for the seventeenth of March, 1886. On the thirteenth of February the defendant made application for a further stay of proceedings until March 17th, which was denied, and on that day, by consent of parties, the original motion to make the complaint more definite and certain was heard and denied by the court.

The learned counsel for the respective parties agree that the motion to make the complaint more definite and certain may be made at any time before the time to answer the pleading has expired. That would seem to be a just limitation of the time for making the motion. One object, and perhaps the principal object, of the motion, when made by the defendant, is to give him full knowledge of the plaintiff's claim against him, so as to enable him to answer understandingly. Another object of the motion is to limit and define the issues in the case, so as to enable the defendant to properly prepare for the trial. In this case the motion was made before the time to answer had expired; but it is urged by the learned counsel for the respondent that the right to make the motion was waived by obtaining a stipulation extending the time to answer or demur; and that, having obtained that stipulation extending the time, and not having reserved in terms the right to make such motion in the mean time, he waived such right.

We think this objection to the motion should not prevail. Neither the statute nor the rules of court fix any definite time within which the defendant must make his motion; and as one object of the motion is to enable the defendant to answer understandingly, and as the plaintiff may of his own motion, and without leave of the court, amend his complaint, and make it more definite and certain, if it be defective in that respect, at any time before the time to answer has expired, the defendant may make his motion to require it to be done within the same time. Section 2685, Rev. St. 1878. It might be said that, as this motion is a substitute for a special demurrer to the complaint under the old practice, it is within the spirit of the stipulation, if not within the letter. We are also of the opinion that, as the record shows that the motion was heard by the consent of the parties at a time and place not specified in the motion, we should infer that it was heard upon its merits, and that there was no objection that the motion was not made in time.

Upon the merits of the motion we are of the opinion that the circuit court erred in not granting that part of the motion which asked that the plaintiff be required to make his complaint more definite and certain by stating the particular acts of negligence of the defendant in the care and treatment of the plaintiff's injuries subsequent to the reduction and setting of his fractured bones. The allegations of the complaint, which the learned counsel for the appellant contend are too general and indefinite, are the following: “That the said defendant so carelessly, negligently, and unskillfully conducted himself in the care, treatment, and management of the said fractures and injuries of this plaintiff that he entirely failed and neglected to set or properly dress, care for, or treat the following of the fractures or injuries above mentioned, to-wit, the said fracture of the upper third of the right femur or thighbone, the said fracture of the neck of the left femur or thigh-bone outside of the capsular ligament, and said fracture of the clavicle or collar-bone; and during such employment...