Whitefoot v. Leffingwell

Newman, J. It is clear that the defendant had no right to amend his answer, as of course, at the time when his amended answer was served. The statute gave him no right to amend his answer at that time. The statute (sec. 2685, R. S.) provides that any pleading may be amended, of course:.. “ at any time before the period of answering it expires.” The-usual period allowed for answering a pleading is twenty days. That period had expired before the amended answer was served. But there is no period in which an answer is allowed to a pleading which consists only of a general denial. Suck a pleading admits of no answer, demurrer, or reply. R. S. secs. 2658-2661; Wood v. Lake, 13 Wis. 84. The amendment,, of course, of such a pleading is not permitted by the statute. It was unauthorized and a mere nullity, and may be clisrer garded. 2 Wait, Pr. 497, 498, and cases cited. This rule-has been changed in FTew York by an amendment to the-Code, but this is the construction wMch obtained when the New York Code was adopted here. But no reason is perceived why the plaintiff had not power to consent to an amendment to the answer, or to ratify the-making of an unauthorized amendment. Any objection which-, does not deprive the court of jurisdiction may be waived.. Even a nullity may be waived. 4 Wait, Pr. 634; 2 Till. & [185] S. Pr. 1033. An irregularity may be waived by consent,, either verbal or written, or by subsequent acquiescence; and it is waived by neglecting to object when the occasion arises. 2 Wait, Pr. 498; 4 Wait, Pr. 635; 2 Till. & S. Pr. 1033. No doubt the plaintiff’s attorney could have bound himself by a stipulation to receive the amended answer. So he could bind himself by receiving it without objection and retaining it. This he did. The issues which were pending in the case were the issues, formed by this amended answer. It superseded the original answer, and made a new notice of trial necessary. The defendant’s motion to strike the cause from the calendar is. deemed to be equivalent to a motion for a continuance. It should have been granted for want of a notice of trial. But orders refusing a continuance are not appealable. They are mere matters of practice, not affecting the merits. McLeod v. Bertschy, 30 Wis. 324; Bassett v. Jenkins, 41 Wis. 197; Bradley v. Cramer, 67 Wis. 415. Such orders are reviewed only upon appeal from the judgment in the action. Victor S. M. Co. v. Heller, 41 Wis. 657; Davis & R. B. & M. Co. v. Riverside B. & C. Co. 84 Wis. 262. But the appellant claims that that part of the order appealed from which declares that “ the amended answer is-not properly a part of the record herein ” in effect struck out his amended answer, and that such an order involves, the merits of the action and is appealable. But it is not clear that the order strikes out, or was intended to strikeout, the amended answer. It certainly does not do so in terms. Whether it was intended to operate that effect is-not clear upon the words used. The phrase is equivocal.. It is not clear, even, that the phrase, “is not property apart of the record,” was intended as the equivalent of the phrase,. “ is no part of the record.” It has more the appearance of’ a mere conditional expression of opinion, anticipating a. question to be raised formally at a later stage. There was [186] no motion, to strike out the amended answer pending, nor evidence being offered under it. The question, at that stage, was merely theoretical. It was to be decided when it became a practical question; that is, when it should arise either on a motion to strike out, or on an objection to evidence under the amended answer. An appeal will not lie from an order which the record does not show to have been .actually made. Horicon S. Club v. Gorsline, 73 Wis. 196. This order did not strike out the amended answer. That is still a part of the record. The order is not appealable. By the Oowrt.— The appeal is dismissed.