Cobb v. Harrison

Tbe following opinion was filed at tbe January Term, 1866. Cole, J. Tbe demurrer in tbis case was clearly not frivolous, witbin tbe repeated decisions of tbis court. If, therefore, tbe appeal were from tbe order stinking out the demurrer as a in volous pleading, that order would probably have been reversed. But the appeal is from tbe judgment of foi’eelosure; and tbe question is, can we go back and review that order? If so, it must be under section 6, chap. 264, Laws of 1860. That section provides that upon an appeal from a judgment this court may review an intermediate order involving tbe merits and necessarily affecting tbe judgment. • It is obvious that if we can consider tbe order striking out tbe demurrer as frivolous at all, it must be by virtue of tbis provision of tbe appeal statute. Is, then, tbe order striking out tbe demurrer as frivolous, one involving tbe merits and necessarily affecting tbe judgment? Tbe answer to tbis question, it appears to us, depends essentially upon tbe further inquiry, whether tbe demurrer was well taken or not. For if tbe demurrer was clearly bad, and must have been so held on argument, then we are unable to perceive upon what ground an order striking it out as frivolous can be said to be one involving tbe merits. It is true, on overruling tbe demurrer on tbe bearing, tbe defendant has, almost as a matter of course, leave to answer. But we suppose tbe court, on striking out a demurrer as frivolous, would, at least on application, permit tbe defendant to answer on terms, upon bis producing an answer showing a good defense to tbe action, and making tbe usual affidavit of merits and that tbe demurrer was filed in good faith. Tbe defendant, therefore, is not deprived of bis right to make a de [627] fense to tbe action, if be bas snob defense, by tbe practice adopted. And all tbe defendant bas lost — tbe demurrer being bad, as we have in effect beld in tbe case of Page against tbis same defendant, just decided \ante,p. 823], — was tbe right of having tbe demurrer set down for argument instead of being disposed of in tbis summary manner. For while there was enough in tbe demurrer to relieve it from tbe character of being a frivolous pleading, it must certainly have been overruled on tbe bearing. So, tbougb tbe coitrse pursued in disposing of tbe demurrer is not tbe one which should have been adopted, still it seems to us impossible to bold, under tbe circumstances, that tbe order striking out tbe demurrer as frivolous is one in any sense involving tbe merits of tbe action, or necessarily affecting tbe judgment. It only relates to tbe form or ceremony of tbe proceeding, and could have ,no possible effect upon tbe rights of tbe parties. See Rahn vs. Gunnison, 12 Wis., 528; Oatman vs. Bond, 15 id., 20. Hence we think it is not before us on tbis appeal. By the Court. — Tbe judgment of tbe county court is affirmed. A motion for a rehearing was disposed of at tbe June term, 1866, as follows :