Straka v. Lander

Cole, C. J. This is a foreclosure action. The note and mortgage were given to the general guardian of Joseph Stralm and Anna Stralm; Anna having by marriage become Anna JELammes. Joseph and Anna are minors. The action is in their names, by Theodore Hemnitz, their guardian ad litem. Hemnitz had been appointed the general guardian of the infants, and the note and mortgage assigned to him. He was also appointed guardian ad litem to prosecute this suit. We fail to perceive any valid objection to the practice adopted, either in the appointment of the guardian ad litem or the method of bringing the suit. The court, or judge ■thereof, had authority under the statute to appoint the genr eral guardian as guardian ad litem, if it was deemed proper to do so. Sec. 2613, E. S.; Foster v. Hammond, 37 Wis., 185. The person appointed as guardian ad litem is usually the general guardian, unless special reasons exist for appointing another person. See Story’s Eq. Pl, § 58, and note 1. The defendants W. J. Lander and Anna, his wife, demurred to the complaint on various grounds. This demurrer was, on motion, stricken out as frivolous, with $10 costs, and these defendants were allowed twenty days to plead to the action. The demurrer was clearly bad, and must have been overruled on argument. Such being the case, though the appeal was directly from the order, still the order must be affirmed within the decisions of Diggle v. Boulden, 48 Wis., 478, and Lerdall v. Charter Oak Life Ins. Co., 51 Wis., 428. For, under the rule established in these cases, no distinction [118] is made between an order striking out a demurrer as frivolous and one overruling it on argument. Costs could be allowed on the motion within the discretion of the court. Sec. 2924, R. S. It seems unnecessary to notice in detail the several grounds of objection taken to the complaint on demurrer. Most of them are so obviously untenable as to require no comment whatever. The complaint, among other things, states that the mortgaged premises were, for the years 1876,1877,1878, and 1879, sold for the taxes of those years respectively, and that a tax deed was issued to the defendant W. J. lander, upon the tax certificate issued upon the sale of 1877. There is also an allegation that the plaintiffs have redeemed from the tax liens by depositing with the treasurer of the city of Green Bay the sum of $S9.62. Now, it is said the city of Green Bay. should have been made a party because it issued the tax deed. But we cannot see that the city has any interest in this foreclosure suit. Nor .can any question as to whether there has been a good redemption, or as to the validity of the tax deed, be determined in this action. It is said the only reason for making Lander a party defendant is that he claims the premises under a tax deed which is a paramount title. But there is also this allegation in the complaint: “That the defendants W. J. Lander and Anna Lander, his-wife, have or claim to have some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said mortgage.” This must refer to some other claim than a tax deed, which claim is subordinate to the mortgage. In any view the demurrer was bad, and the order striking it out as frivolous must be affirmed. By the Court.— Order affirmed.