Geilfuss v. Gates

Pinney, J. 1. It is urged by appellant’s counsel that, as the court did not declare these demurrers to be frivolous, the orders made on the motions overruling them are erroneous. The effect of the motions was to bring on the demurrers for determination, whether they were frivolous or merely not well taken. Under the present statute (R. S. sec. 2681) there can be no distinction between striking out a demurrer as frivolous and overruling it on argument, for in either case the court may allow the defendant to plead over on terms. It is impossible to say that the defendant is or can be prejudiced by either of the orders made in these cases. All he can be said to have lost is the very unsubstantial privilege of making an argument on a second hearing in support of demurrers which are clearly not well taken. In Hoffman v. Wheelock, 62 Wis. 435, it is said that “ when the court striking out the demurrer gránts the same relief that would be granted on overruling the same upon argument, to reverse such order upon an appeal to this court, when it is evident such demurrer must be overruled on its merits, could only have the effect to protract litigation at the expense of both parties, without the possibility of any beneficial results to either.” The same considerations apply with equal force to an order overruling a demurrer upon such motion upon its merits. The order [398] cannot be held erroneous merely because the court did not expressly declare it frivolous. The cases on the subject are collected in Hoffman v. Wheelock, supra, and also in Hurlbut v. Marshall, 62 Wis. 601, where the demurrers of two defendants were overruled and stricken out as frivolous on the motion of the plaintiff, and the orders thus made were affirmed. 2. There is no ground for the contention that there was a defect of parties plaintiff. An excess or misjoinder of parties plaintiff is not ground of demurrer. Kucera v. Kucera, 86 Wis. 416. The case is one where a single plaintiff has sued in a dual representative capacity, and it is plain that he has a cause of action as assignee of the bank, but none whatever as its receiver. Garden City B. & T. Co. v. Geilfuss, 86 Wis. 612. The assignment to Geilfuss, having been made prior to his appointment as receiver, vested in him, as such assignee, the notes in question, and as he took no interest in them as receiver the allegations in the complaint in respect to the receivership are surplusage. He is entitled to maintain the actions as assignee of the bank. 3. The allegations of the complaint already referred to show title in the plaintiff, as assignee of the bank, to the notes in question; and it is further alleged that he is the lawful owner and holder of them. These allegations are sufficient to show his right to recover upon the notes and indorsements in question. The orders of the superior court overruling the demurrers in these actions are correct. By the Court.— The order of the superior court in each of the actions is affirmed.