Guth v. Lubach

Cassoday, J. If a demurrer be frivolous, the court, or the presiding judge thereof, may, upon motion, strike out such pleading, and thereupon either order judgment in favor of the adverse party or in his discretion allow the party interposing the same to plead over within a limited time on such terms as may be just. Sec. 2681, R. S.; subd. 20, sec. 2, ch. 194, Laws of 1879. We are clearly of the opinion that the motion for judgment on the ground that the demurrer was frivolous, was in substance and legal effect a motion to strike out the demurrer. This is the logic of the rule long since adopted by this court, to the effect that an order to strike out a demurrer, with leave to plead over on the usual terms, is, in substance, an order overruling the demurrer, and hence would not be reversed unless the demurrer was in fact well taken. Hoffman v. Wheelock, 62 Wis. 435; Straka v. Lander, 60 Wis. 115; Lerdall v. Charter Oak L. Ins. Co. 51 Wis. 430. Manifestly it was so regarded by the learned trial judge. Hence the order overriding the demurrer, as well as striking it out. Complaint is made because the order allows costs upon the motion when none were asked in the notice of motion. But tye do not understand the order as imposing costs upon the defendant. In the exercise of the discretion vested in the trial judge by the statute cited, he simply gave the defendant the privilege of answering within the time named upon the payment of such costs and fees. The statute cited authorizes the granting of such privilege “ on such terms as [136] may be just.” Of course he was not bound to so answer, and hence not bound to pay such costs. He was only bound to pay in case he availed himself of the privilege thereby granted. The principal question for determination is whether the words alleged to have been spoken in the respective counts are capable of indicating the criminal conduct charged. Undoubtedly such words are to be construed in the plain and popular sense in which they were naturally understood by those who heard them. Campbell v. Campbell, 54 Wis. 90; Bradley v. Cramer, 59 Wis. 309; Ellsworth v. Hayes, 71 Wis. 434. We agree with counsel to the effect that it is not the office of an innuendo to enlarge the meaning of the alleged slanderous words, but merely to point out their application to the facts previously alleged. Ibid. It is for the court to determine whether the words employed are capable of the meaning ascribed to them by the innuendoes, and for the jury to determine whether such meaning is truly ascribed to them. Ibid. It is contended by the counsel for the defendant that the language employed, charging the plaintiff with having “used” the defendant’s wife, were incapable of the criminal meaning ascribed to them in the innuendoes and charged in the complaint; and that no such meaning or definition can be found anywhere. The learned counsel seems to have momentarily forgotten such use of the word in the enumeration of particular sins by Paul, where he speaks of the change of “ the natural use into that which is against nature;” and, again, of “the men leaving the natural use,” etc. Romans, ch. 1, verses 26, 27. Besides, the language alleged in the first count to have been employed is fairly capable of meaning, as stated in the innuendoes, that the defendant disclaimed the paternity of the children which were ostensibly his, and asserted that they were from the plaintiff. We are forced to conclude that the words alleged to have been emplo_yed in [137] the respective counts are capable of the criminal meaning ascribed to them by the innuendoes. By the Court.— The order of the circuit court is affirmed.