State ex rel. Rice v. Chittenden

Baedeeh, J". This court held in State ex rel. G. B. & M. R. Co. v. Jennings, 56 Wis. 113, that a proceeding by mandamus was essentially a civil action, so far as-the rules and practice as to pleadings were concerned, and that as to form and sufficiency the several pleadings must be governed by the same rules which prevail in other civil actions. This rule was recently reiterated and approved in the case of State ex rel. Buchanan v. Kellogg, 95 Wis. 612. Sec. 3451, Stats. 1898, provides that, whenever a return shall be made to any writ of mandamus, the person prosecuting the same “ may demur or answer all or any of the material facts •contained in the same return.” Construing this statute to mean that a demurrer might be interposed to any material fact contained in the return, the relator demurred to certain paragraphs of the return, as not stating facts sufficient to [356] constitute a defense. The portions thus challenged are not, set up as separate grounds why the defendants refuse obedience to the writ, but are parts of one complete return, ■which, with the other matters set out, constitute their defense to the action. It is a well-settled principle that a-demurrer cannot be addressed to a fragmentary part of a pleading. 6 Ency. of Pl. & Pr. 300; Shealy v. C., M. & N. R. Co. 72 Wis. 471. Speaking of their statute relating to, pleadings in cases of this kind, the courts of New York have said: “ The relators had a right to demur to the return-made to the alternative mandamus, but they could not both demur and plead. . . . The whole return is to be; considered as entirety, like a count in a declaration. If the facts set forth cannot be traversed or denied, the relator may demur, but he cannot dissect the return into as. many parts as he sees fit, and plead to some portions and demur to the residue.” Vail v. People, 1 Wend. 38. Put in this case we need not draw the line so closely. If a return sets up separate and distinct grounds for not obeying the alternative writ, no good reason is perceived why a demurrer may not be interposed to test its sufficiency in that particular, in analogy to the practice that permits a demurrer to one of several defenses, and in that regard the return would not be considered as an entirety. As covering the rule before stated, we quote from Wood, Mandamus, 27: “ The-people or the relator may demur to the return, or to any complete statement of facts therein separately assigned as a cause for disobeying the command of the writ, on the ground that the same is insufficient in law upon the face thereof.” That portion of the return demurred to which relates to the adoption of certain resolutions by the defendant board, as well as the evidentiary matters relative to the efforts of the board to secure information as to the standing of the college granting relator’s diploma, are not considered as being within the rule above stated, and hence the demurrer was improperly interposed and sustained. [357] The form of the order entered is erroneous. It requires "the defendants to pay plaintiff $10 costs absolutely. Such costs can only be required as a condition for pleading over. Schoenleber v. Burkhardt, 94 Wis. 575; Schroeder v. Richardson, 101 Wis. 529. This conclusion renders it unnecessary to consider the case -on the merits. By the Oourt.— The order of the circuit court is reversed, ;aud the cause is remanded for further proceedings according to law.