Wisconsin Face & Fire Brick Co. v. Southern Surety Co.

Rosenberry, J. The only error assigned upon this appeal is that the court erred in striking out those parts of the answer, which the defendant surety company claims constituted a separate defense to the plaintiff’s first cause of action. It is conceded that, the second contract being with a school district, sec. 3327a, Stats., is applicable and there would be no discharge of the surety. The defendant contends that it is entitled to review of the order striking out its separate defense in the first cause of action under the provisions of sec. 3070: “Upon an appeal from a judgment, as well as upon a writ of error, the supreme court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgment, appearing [387] upon the record transmitted or returned from the circuit court, whether the same was excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the supreme court to review any alleged error which would, without a bill of exceptions, appear upon the face of the record. . . .” The plaintiff contends that a motion to strike is not a motion which involves the merits and necessarily affects the judgment, and that in any event it does not appear upon the face of the record in the absence of a bill of exceptions, citing Will of Britt, 174 Wis. 145, 182 N. W. 738; Cornell v. Davis, 16 Wis. 686; Williams v. Holmes, 7 Wis. 168; Kirch v. Davies, 55 Wis. 287, 11 N. W. 689, and other cases. We are not disposed to depart from this well established rule. Error is not presumed, but under the law of this state it must be made to appear affirmatively. An error in granting a motion to strike may be cured during the course of the trial by the admission or rejection of testimony. Therefore it is not ordinarily one which necessarily affects' the judgment. A situation is presented by the facts in this case, however, which distinguishes it from an ordinary motion to strike. So far as it relates to paragraphs 10 to 17, inclusive, of the defendant’s answer, it challenged the legal sufficiency of the facts set out as a defense to the plaintiff’s first cause of action. It was therefore in legal effect not a motion to strike but a demurrer to a separate defense. By the provisions of sec. 263.17 (sec.-2658) the plaintiff may within twenty days demur t© the answer or any defense therein when upon the face thereof it does not. state facts sufficient to constitute a defense. A demurrer to a pleading is under our practice a part of the record, and upon appeal it appears upon the face of the record without a bill of exceptions. Manifestly the plaintiff ought not, by the mere form of his .motion, to deprive the defendant of a right given to him by law in this jurisdiction. Calling a demurrer a [388] motion to strike does not in any manner change its legal effect. This precise question does not appear to have been presented to this court. It has been'so held in other jurisdictions. Union B. Co. v. Ehlhardt, 139 Mo. App. 129, 120 S. W. 1193; Knisely v. Leathe, 256 Mo. 341, 166 S. W. 257. See, also, Bank of Commerce v. Fuqua, 11 Mont. 285, 28 Pac. 291. We do not adopt the Montana rule. An ordinary motion to strike matter as redundant, surplus-age, scandalous, or other like reason, not raising- the question of the legal sufficiency of an answer or a part thereof, pleaded as a separate. defense, cannot be considered as a part of the record, within the established rules of practice of this court. It is therefore held that the defendant surety company upon appeal from the judgment is entitled to have reviewed the order of the circuit court striking out its separate defense stated in the paragraphs above referred to. It is quite plain that the trial court correctly held that the facts stated did not constitute a separate defense to the action. We have repeatedly discussed the law relating to the discharge of paid sureties. The most recent discussion is that contained in Maryland Casualty Co. v. Eagle River Union F. H. S. Dist., post, p. 520, 205 N. W. 926. No facts are alleged in the answer which show that any damage resulted to the surety. So far as anything appears, it appears to the contrary. Its bond required it to furnish the material and labor and complete the building. There is no allegation that the material delivered was not necessary to the completion of the work which the construction company undertook and for default in the completion of‘ which the surety company was liable, nor does it appear that the surety company might have done anything which it did not do to protect itself against liability with respect to the claim sued upon. Therefore no defense was stated, and the trial court correctly held the separate defense legally insufficient and in effect sustained a demurrer to it. By the Court. — Judgment affirmed.