Sentinel Co. v. Thomson

Cole. J. In the case of Cobb v. Harrison, 20 Wis., 626, where there was an appeal from a judgment entered on the ground of the frivolousness of a demurrer to the complaint, this court decided that it would not reverse the judgment, even though the demurrer were not frivolous, unless the same were well taken. Eor if the demurrer was bad and must have been overruled on argumefit, then the order striking it out as frivolous was not an order re viewable on the appeal from the judgment. The reasons for that decision need not be restated. It is sufficient to say that the rule there laid down disposes of this case. See also sec. 40, ch. 125, R. S., which requires the court to disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party. That the demurrer in this case must have been overruled on the argument, is clear. 'The only objection taken to the complaint by the demurrer, worthy of notice, is, that several' causes of action have been improperly united. There can be no doubt that the causes of action set forth may be united in the same complaint; and if the complaint is defective at all — a point we do not decide, — it is because these different causes of action are not separately stated, but are included in one count. But that is not a ground for demurrer. The remedy is by motion. Akerly v. Vilas, 25 Wis., 703; Bass v. Comstock, 38 N. Y., 21. By the Court — The judgment of the county court is affirmed. Ryan, O. J., took no part in this decision.