Catlin v. Pedrick

By the Court, DixoN, C. J. The demurrer to the second paragraph of the answer was properly sustained, and the evidence offered under the third properly excluded. The mistake of the pleader was in separating them so as to make two defenses out of matter which constituted but one. Together they would have made out a counter-claim, and let in the 92 proofs; but apart, neither was sufficient, to permit any evidence to be received under it. Instead* of resisting the demurrer, the plaintiff’s attorney should have asked leave to amend by striking out the numerals which distinguished them as separate answers, and blending them into one. It is a general principle, recognized by this court in Curtis vs. Moore, 15 Wis., 134, that a count or defense, defective in any material averment, cannot be aided by reference to another count or defense; and accordingly both rulings were correct. But it appears that no proof was made of the filing of notice of the pendency of the action, as required by law, and exception is taken to the judgment on that ground. That was error, for which the judgment must be reversed. In Manning vs. McClurg, 14 Wis., 350, and Spraggon vs. McGreer, id., 439, we held, (overruling Boyd vs. Weil, 11 Wis., 58, so far as that ease may be supposed to sanction a contrary doctrine,) that the mortgagor and all other parties interested in the funds arising from the sale, have the right to insist upon this proof, and that the judgment will be irregular for want of it. The judgment must therefore be reversed, and the cause remanded for further proceedings according to law.