Brachman v. Kuehnmuench

Cassoday, J. The first cause of action alleged seems to to be for personal injuries to the plaintiff by reason of the defendant “ unlawfully, forcibly, and wrongfully ” breaking and entering the dwelling-house occupied by the plaintiff and her husband, and then and there using “ loud, boisterous, and insulting language ” towards her while in poor health, to her damage. The second cause of action alleged seems to be for personal injuries to the plaintiff by reason of the defendant “unlawfully, wrongfully, and forcibly” taking possession of the premises so occupied by the plaintiff in her absence therefrom, and while she was in poor health, and then locking her out and keeping her therefrom. Such being the issues, there would seem to be no doubt but what the plaintiff may introduce any evidence under the complaint as it now stands that would have been relevant to such issues had nothing' been stricken out of the complaint. The order, therefore, affects no substantial right of the plaintiff, and, assuming it to be erroneous, yet it should not for that reason be reversed. Sec. 2829, R. S.; Sloteman v. Mack, 61 Wis. 575. Eor the same reason it would seem, the defendant secured no substantial right by the order [253] and by the section cited the trial court “was authorized to disregard the alleged defect in the pleading, and had it done so it would most certainly have been justified. True, 'some of the matter stricken out was technically irrelevant to either of the causes of action alleged, and the balance was a mere repetition of what was retained, and hence was technically redundant, so that the court was technically authorized to strike it out, with costs, on motion. Sec. 2683, E. S. But it is manifest that, should courts grant such motions whenever there is an irrelevant or redundant expression in a pleading, their time would be occupied by little else, and the determination of controversies would be thereby greatly retarded. ¥e make these statements to discourage such motions except where the retention of such matter would affect the substantial rights of the adverse party, or the matter sought to be stricken out is scandalous. The motion was technical, and not calculated to secure any substantial benefit, and so is the appeal. The reasons for discouraging the one are equally potent in discouraging the other. By the Oourt.— The order of the circuit court is affirmed.