McIntyre v. Carroll

Eschweiler, J. The defendant contends that his demurrer to the complaint presents for determination whether, if attempting to state a cause for equitable relief, the complaint must be held bad because showing on its face there is adequate remedy at law; further, that a defendant is entitled to have distinctly ascertained by the ruling upon such a demurrer whether the action be one in equity or one at law. This, so that if held to be the latter, the constitutional right to a trial by jury may be properly preserved, and, in case of a ruling that the cause be in equity, and such ruling is deemed error, the question may be determined on an appeal here from such ruling and before trial. We now hold that the complaint states sufficient facts upon which can be predicated an action in tort for deceit. In so holding we disregard, as we may and must, the facts or elements therein contained showing or tending to show, as it is claimed by defendant, the pleader’s intention to bring him within the field of equitable remedies, and this, even though the latter position is one which the respondent in his brief and on argument here is somewhat loath to relinquish. We must hold this complaint good if we can discover from the facts alleged that plaintiff is entitled to some measure of judicial redress, whether legal or equitable, and whether in harmony with the prayer for relief or not, by the express direction of sec. 263.07, Stats. We are also so required by rulings of this court. Lipman v. Manger, 185 Wis. 63, 71, 200 N. W. 663; Olson v. Skroch, 182 Wis. 448, 196 N. W. 767; Sullivan v. Ashland L., P. & St R. Co. 156 Wis. 445, 146 N. W. 506; Hall v. Bell, 143 Wis. 296, 299, 127 N. W. 967; Komorowski v. Jackowski, 164 Wis. 254, 257, 159 N. W. 912. In sec. 263.06 (sec. 2649), providing for the several grounds upon which a defendant may demur to a complaint, one of such grounds is specified in sub. (1) thereof: “That the court has no jurisdiction of the person of the defendant [387] or the subject of the action.” In defendant’s first specified ground of demurrer he relies upon the second phrase thereof, adding, however, the words, not found in the .statute, “because plaintiff has an adequate and complete remedy at law.” We cannot agree with counsel for appellant that such a substantial element can be added to the specified grounds for demurrer either by the addition of such words as he added, or by construing the statute itself as covering or including such additional element. Unquestionably at an earlier date and prior to the adoption of sec. 263.07, supra, proper pleading of an action in equity required a showing that adequate legal remedies did not exist. Level Land Co. v. Sivyer, 112 Wis. 442, 88 N. W. 317; Hoff v. Olson, 101 Wis. 118, 120, 76 N. W. 1121; Peck v. School Dist. 21 Wis. 516, 522. Since the enactment of said sec. 263.07 (sec. 2649a), created by ch. 354, Laws of 1911, the rule has been just to the contrary. State ex rel. Sheldon v. Dahl, 150 Wis. 73, 82, 135 N. W. 474; Sullivan v. Ashland L., P. & St. R. Co. 156 Wis. 445, 448, 146 N. W. 506. Such statute cannot be limited, as appellant suggests, to merely preserve for plaintiff the right acquired by service of a summons of jurisdiction of the defendant, but it is intended to preserve the pleading, if within the field of judicial discernment there may be detected some cause of action, however thin, thick, or illy arranged its verbal clothing may be. The present-day Code permits of speedy methods of requiring pleadings to be made more accurate, definite; or certain when they appear to the opposite party to be too diffuse, discursive, covering too much territory, or aiming in too many directions. All these possible defects may be and should be cured by appropriate motions under such provisions as are embodied in secs. 263.43 and 263.44, Stats. Lawver v. Lynch, 191 Wis. 99, 210 N. W. 410. The court [388] has full power to give adequate remedies and enforce compliance with them by substantial penalty, as declared in Motowski v. People’s Dentists, 183 Wis. 477, 480, 198 N. W. 465. We are not here presented with any of the situations such as are dwelt upon with much vigor by appellant’s counsel concerning a possible infringement of defendant’s constitutional right to trial by jury in actions at law; the proper method in which a denial by a trial court of such claim of right can be presented for remedy here; or as to whether a failure by a defendant to appear on the first day of a term at which any cause is set to be heard and then and there raise by proper objection the question of whether the cause shall be tried by jury or court, under Circuit Court Rule III, sec. 4, is the only remedy, because none of such questions are here before us. The suggestion by this court in Williams v. Oconomowoc, 167 Wis. 281, 284, 166 N. W. 322, that the better procedure to test the question of whether trial shall be by jury or court is by motion as to the calendar, is still to be followed. That case did not, nor do we now, construe sec. 270.32, called now to our attention but not mentioned in that case, which specifically provides for the methods of waiving the constitutional jury trial, i. e. either by written consent filed with the clerk, or by oral consent in open court entered in the minutes. No attempt having been made in the complaint to state as separate causes of action possible claims arising by reason that ten of the shares sold to defendant belonged to plaintiff’s daughters and which possible claims were thereafter assigned to plaintiff, the third alleged ground of demurrer, namely, that several causes of action have been improperly united, cannot be presently considered. As to that feature of the complaint, also, the defendant should have sought, preliminary to demurrer, the court’s action by a motion to require any separate causes of action that might therein be [389] recited to be separately stated and thus made proper for question on demurrer. We are committed to such technique by the prior holdings of this court, such as Danielson v. Garage E. M. Co. 151 Wis. 492, 494, 139 N. W. 443; Buerger v. Buerger, 178 Wis. 352, 356, 190 N. W. 126, although there is language in Burnham v. Milwaukee, 155 Wis. 90, 93, 143 N. W. 1067, apparently to the contrary. While such a rule may seem to savor somewhat of the technicalities which our statutes and decisions have been aiming to take away, nevertheless it permits of speedy action. The questions argued as to whether or not the claims of the two daughters for any fraud perpetrated as against them are assignable and can be asserted by an assignee are not before us. The complaint being held good, any determination as to the duties and liabilities of officers and directors towards stockholders from whom corporate stock is purchased is not, in advance of the evidence, now proper or required. The trial court was correct in overruling the demurrer interposed to the complaint in the form that it then had. By the Court. — Order affirmed.