Hatch & Essendrup Co. v. Schusler

Mitchell, J. To warrant striking out a demurrer as frivolous, it is not enough that the court, after argument and deliberation, is of opinion that it is not sustainable. To justify so summary a procedure, it must be clear, from a mere inspection of the pleading and without argument, that there was no reasonable ground for interposing the demurrer, and hence that it was presumably put in in bad faith, for mere purposes of delay. Striking out a demurrer as frivolous is a sort of penalty for bad faith or inexcusable ignorance of law, and should never be inflicted where there is such room for debate as to the sufficiency of a pleading that an attorney of reasonable intelligence might have interposed a demurrer to it in entire good faith. Tested by this rule, we think the demurrer in this case ought not to have been stricken out. The complaint is, to say the least of it, a very loose and inartistic pleading. It contains no allegation, unless inferentially, of plaintiff’s ownership of the property, which was a material fact, whatever may have been the precise nature of the cause of action which he intended to allege. It is also open for debate whether plaintiff intended to allege that Powers (defendant’s assignor) obtained possession of the property merely as bailee for a pretended temporary purpose, or that he bought it on credit, with the fraudulent intention of not paying for it. If the latter is what the pleader intended, he has omitted to allege that the goods have never in fact been paid for. The defendant has taken two appeals, — one from the order striking out the demurrer, and the other from the judgment entered pursuant to the order. This was wholly uncalled for, and no such practice should be encouraged. Therefore the appeal from the order is dismissed, but the judgment appealed from is reversed.