#### City of Ashland, Appellant, vs. Wisconsin Central Railway Company and others, Respondents.

*March 13*

April *1, 1902.*

*Appeal and error: Gonclusiveness of record: Pleading: Pendency of prior action: Statutory denial of allegations of answer: Striking cause from calendar: Practice.*

1. An order striking the cause from the calendar was based on the files and records in the action, certified to he all returned with the record on appeal. Such files and records showed that the defendant’s answer alleged, among other defenses, that a prior action was pending in the federal court between the plaintiff and defendants’ privies in title, involving the determination of the same controversy. When the present action was regularly called for trial, the defendants appeared specially and moved to strike the cause from the calendar because such previous action was pending undetermined, and the motion was granted. It did not appear from the record that any proof was made in the trial court of the truth of such allegations of the answer, nor that those facts were admitted by the plaintiff, nor that the answer was used as an affidavit. There was no hill of exceptions. *Held,*under sec. 2667, Stats. 1898, that the new matter set up in the answer, — not pleaded as a counterclaim — was denied and avoided without formal reply, and, in the absence of proof supporting such allegations, it was error to grant the motion.

2. In such case the plaintiff is entitled to rest on his statutory reply and insist that the issue raised' he tried regularly as other issues of fact are tried.

Appeal from an order of the circuit court for Ashland county: Geo. W. Buenell, Judge.

*Reversed.*

This is a-companion case to the case of *Ashland v. Whit-**105*comb, ante,*p. 99, 89 N. W. 886. Tbe present action is an notion in equity commenced May 29, 1901, to compel tbe removal of certain obstructions from Second Avenue West, a public street in tbe city of Ashland, and to enjoin any further ■obstructions therein. Tbe *Wisconsin Central Railway Company*is a domestic corporation, and is alleged to be tbe successor in interest of tbe Wisconsin Central Railroad Company. Tbe defendant railway company appeared and answered. Tbe answer contained certain denials and certain allegations showing tbe previous vacation of tbe supposed street. It further contained a separate defense stating, in .substance, that in tbe year 1893 tbe Wisconsin Central Railroad Company, tbe predecessor of tbe answering defendant, was insolvent, and in a certain action in equity pending in tbe United States circuit court for tbe Eastern district of Wisconsin all of its property was turned over by said court to Whitcomb and Morris as receivers; that on tbe 26th of July, 1897, an action was brought by tbe plaintiff herein against •said receivers in their official capacity to compel tbe removal •of certain obstructions from Eourth Avenue West, which was .alleged to be a public street in said city; that said action was removed to, and is now pending in, tbe United States circuit •court for tbe Western district of Wisconsin, and that about tbe 25th day of August, 1900, tbe said officers filed a cross bill in said action wherein they alleged tbe vacation by tbe city of certain streets, including both Second and Eourth avenues, and prayed that tbe rights of tbe parties in said street be adjudged, and that said United States court assumed jurisdiction of said cross bill, and that pursuant to due process tbe city appeared and demurred to tbe same; that said action is ■still pending and unadjudicated in said court; and that thereby exclusive jurisdiction of all matters at issue in this action bas been assumed by said United States court. Tbe defendant tbe *Armour P'aching Company*appeared and ansAvered, admitting that it occupied a building upon tbe lands which *106are claimed to be a street in this action, and alleging that it occupied the same as tenant only of' the *Wisconsin Central Railway Company.*This action was noticed for trial, and, being reached upon the calendar, the following proceedings' took place, as recited in the order of the court:

“The above-entitled action coming on for trial upon due notice thereof, Dillon & Colignon and Tomkins & Tomkins, attorneys for the plaintiff, appeared, and moved the said cause-for trial; and Thos. H. Gill, Esq., attorney for said defendants the *Wisconsin Central Railway Company*and the *Armour Paching Company,*appearing specially therefor, moved" the court to strike ,the above-entitled action from the calendar for the reason that an action is pending in the United States-circuit court for the Western district of Wisconsin, wherein the same issues are pending, and that said United States circuit court has jurisdiction thereof: Now, upon all the files- and records in the above-entitled action, and on motion of Thos. H. Gill, Esq., attorney for said defendants the *Wisconsin Central Railway Company*and the *Armour Paching Company,*it is hereby ordered .that the above-entitled action,t be, .and the same is hereby, stricken from tbe calendar for the-reason that the said United States court has assumed jurisdiction and retains said action.”

From this order the plaintiff appeals.

For the appellant there were briefs by *M. E. Dillon,*attorney, and *Dillon & Colignon*and *Tomhins & Tomhins,*of counsel, and oral argument by *F. J. Colignon*and *W. M.. Tomhins. ■*

For the respondents there was a brief by *Howard Moms.*and *Thos. PL. Gill,*and oral argument by *Mr. Gill.*

Wirrsx.ow, J.

There is no bill of exceptions in the case. The order striking from the calendar was based upon the files and records in the action, which are certified to be all here. Those files and records simply show that the city brought an action to compel the removal of obstructions from an alleged' street, and that the railroad company answered, alleging, *107among other defenses, that a prior action was pending in the United States court between the plaintiff and the defendants, privies in title, involving the determination of the same controversy ; that when the present action was regularly called for trial the defendant railway company appeared specially, and moved to strike the cause from the calendar, for the reason that said previous action was pending undetermined, and the motion was granted.

It does not appear that any proof was made in the trial court of the truth of the allegation in the answer that another action involving the same controversy was pending between the parties, nor does it appear that the fact was admitted by the plaintiff, nor that the answer was used as an affidavit upon the motion. It seems simply to have been a motion made upon the pleadings as such. Under our practice, the new matter set up in the answer, not being pleaded as a counterclaim, was deemed to be denied or avoided without formal reply. Stats. 1898, sec. 2667. Therefore, when the case was called for trial, the defendants’ answer of another action pending was, in legal effect, met by a sufficient reply either by way of denial or avoidance. Eor all that appears in the record, the plaintiff stood upon such reply, and was ready for trial of the issue. We do not understand that, when a plaintiff is met by the answer of another action pending, such answer is assumed to be true, or that the plaintiff is required to admit its truth, or file affidavits to the contrary, in order to defeat a motion to strike the case from the calendar made at the opening of the trial. Of course, he may admit its truth if ha chooses, or consent that the motion be heard and decided upon the answer used'as an affidavit, but he is entitled to rest upon his statutory reply, and insist that the issue raised be tried regularly as other issues of fact are tried. There is nothing in the record to show that he made any admission or consented to anything but a regular and orderly trial of the case. Under such circumstances, an order striking the cause from the cal*108endar, merely because it was alleged that a previous action was pending between the parties, was clearly erroneous. The question of the appealability of the order is sufficiently treated in the case of *Ashland v.*Whitcomb, *ante,*p. 99, 89 N. W. 886.

*By the Gourt.*— Order reversed, and action remanded for further proceedings according to law.