Mandelert v. Superior Consolidated Land Co.

Cassoday, C. J. It appears from the record, in effect, that March 12, 1891, the state and Douglas county executed and delivered to one John Powell, assignee of R. D. Carvill, who was the assignee of Douglas county, a tax deed, issued upon, the sale of 1893 in the required form, of the lands described,, and the same was on that day recorded; that October 9, 1897, John Powell, the grantee in such tax deed, duly conveyed such lands to the plaintiff by deed duly executed and recorded; that subsequently, and in July, 1898, the plaintiff commenced this action under .secs. 1197-1210, Stats. 1898, to bar the original owners of such lands and those claiming under them; that September 15, 1898, the defendant corporation and its receivers answered; that thereafter the cause came on for trial, and after the plaintiff had proved the matters and things alleged in his complaint and rested, the' defendants who so answered offered to prove the allegations, of their answer to the effect that Douglas county never assigned nor parted with the title to the tax certificates upon which the tax deed was issued, — being the sale for nonpayment of taxes for 1893, and that ever since such sale the county had been, and still was, the owner of such tax certificates. To the offer of such evidence by the appellants the plaintiff objected “ for the reason that no deposit, as required by section 1200 of the Revised Statutes of Wisconsin, had been made, and that the answer did not state facts sufficient to. constitute a defense,” which objection was sustained by the court, and a written order embodying such ruling to the. effect “ that the demurrer ore terms of the plaintiff to the answer of the defendant ” was sustained, with leave to answer-on payment of costs. From that order the defendant corporation and its receivers bring this appeal. We refrain from determining the question presented upon the merits. It is not brought before us for review by the so-called “ appeal ” from the ruling of the court in sustaining the objection to the evidence offered on the part of the ap 425 pellants. True, such ruling was embodied in a written order-as indicated, but the same might be done as to every ruling-upon a trial. The question is whether an appeal can be taken to this court from such ruling when embodied in such written order. The statutes contemplate that all pleadings-shall be in writing. Whether a demurrer is made to a complaint or an answer, it must be served within twenty days-after the service of the pleading to which it is responsive. Secs. 2648,2658, Stats. 1898. Such demurrer, to be effectual, must state the grounds upon which it is based. Secs. 2649, 2658, 2659, Stats. 1898. Such ruling upon an objection to-evidence, although for convenience it is called a demurrer ore terms, is not a demurrer within the meaning of the statutes; certainly not within the meaning of subd. 3, sec. 3069,. Stats. 1898, which authorizes an appeal from an order which “ sustains or overrules a demurrer.” Smith v. Kibling, 97 Wis. 207, 208. In that case our late Brotheí Newman in-effect said that no appeal is allowed from such a ruling, and that the only way such ruling could be reviewed by this-court was on an appeal from the judgment. Manifestly, the order is not appealable under any subdivision of sec. 3069, Stats. 1898. By the Oourt.— The appeal is dismissed.