#### Supervisors of Kewaunee County vs. Decker.

Pleading and Pbactice. (1, 3) W7wi *orders appealable.*(2, 4, 5) *Bill of Particulars attached to complaint- whether rednmdant.*

1. An order refusing to strike out matter from a complaint as redundant, is not appealable.

2. A statement of tbe *particulars*of plaintiffs cause of action (where it consists of items capable of detailed statement) may be demanded by tbe defendant, and may properly be made by plaintiff without demand, by inserting it in or annexing it to tbe complaint as a part thereof.

3. An order striking out such a statement may affect the merits'of tbe action, and is appealable.

4. The fact that such a statement is *voluminous*(where the nature of the case requires it to be so), is no ground of objection.

*5.*In an action against the clerk of a board of county supervisors, for $14,000, alleged to have been receivedbyhimforthe county in various small sums, during a series of years, and never accounted for, a statement of all the items making up the amount claimed was annexed to the complaint as a part thereof; and an order of the circuit court striking it out as redundant, is reversed.

APPEAL from tbe Circuit Court for *Kewaunee*County.

Tbe following statement of tbe case was prepared by Mr. Justice LYON as a part of bis opinion.

These are cross appeals from tbe same order made by tbe circuit court.

Tbe complaint in tbe action charges and alleges that from . 1858 to 1869, tbe defendant was clerk of tbe plaintiff, duly elected, etc., and that, as such clerk, during those years, be received large sums' of money from divers persons for tbe redemption of lands sold for taxes to said county; that be received tbe sums for which said lands were sold, and interest thereon at tbe rate of 25 per cent., together with tbe costs and charges of such sale; and that be has never accounted to tbe county for tbe amount of interest, costs and charges so received by him, which amount is stated to be fourteen thousand dollars. A statement was annexed to tbe complaint and made a part of it, which purports to show in detail tbe date of sale and certificate, tbe description of tbe land, and tbe sum for *670which the same was sold, and the amount paid to and received by the defendant, as such clerk, for the redemption thereof, in each case where the county of Kewaunee owned the certificate at the time of such redemption. This statement is very voluminous.

The complaint also states other alleged causes of action against the defendant, growing out of other official transactions, which it is unnecessary to refer to more particularly.

The defendant moved the court to strike out of the complaint, as redundant, all of such last mentioned causes of action, and also the statement above mentioned, and those portions of the complaint which refer to and describe the same.

The court denied the motion as to the last mentioned causes of action, and granted it as to the statement annexed to the complaint, and such references thereto.

From that portion of the order denying the motion the defendant has appealed to this court; and the plaintiff has, in like manner, appealed from that portion which grants the motion.

*J. D.*Markham, for the plaintiffs,

contended that an order refusing to strike out matter from a complaint is not appealable *{Rahn v.*Gunnison, 12 Wis., 528; *FranJcev. Nunnenmacher,%%*id., 297; *Whitney v.*Waterman, 4 How. Pr. B., 818 ; *Bedell v. Sticldes,*id., 483, and 3 Code Bep., 105 ; *Tollman v. Hinman,*10 id., 90; *Crugerv. Douglass,*8 Barb., 81; 1 Van Santv. Eq. Pr., 167; 2 Whittaker’s Pr., 767; 2 Till. & Shearm., 984); that the exhibit which is made a part of the complaint in this case, was properly made a part thereof, and should not have been stricken out; that the plaintiff would have been compelled by the court, on defendant’s demand thereof, to furnish just such a schedule of items; that the consideration most strongly urged against it, in fact most strongly recommends it, viz., that it requires defendant to answer under oath as to each particular item charged therein; that he kept the books from which the statement is made, and can, if he desires, have an inspection thereof *671to enable bim to answer understanding^, and tiras tbe issues upon wbicb testimony must be taken may be narrowed almost indefinitely; tbat tbe object of pleading is to bring tbe parties to some definite issues, and tbe object of tbe code in requiring defendant to answer under oatb when tbe complaint is verified, is to do away with tbe necessity, on plaintiff’s part, of proving facts wbicb tbe defendant cannot conveniently deny under oatb; tbat defendant is not in any way aggrieved by unnecessary particularity in setting forth plaintiffs cause of action, unless it be in tbe matter of costs, and tbe court will not strike out tbe allegations on tbat ground *(Denithorne v.*Denithorne, 15 How. Pr. B., 232 ; *Mabny v.Dows,*id., 261; *Eynds v. Griswold,*4 id., 70; *Martin v. Kanouse,*2 Abb. Pr. E., 330; Van Santv. PL, 815) ; and tbat if tbe pleading is unnecessarily prolix, tbe party wbo is finally aggrieved thereby in tbe way of costs, may object to tbe taxation thereof, as being “ for service not necessary to be performed.” E. S., cb. 133, sec. 82.

*FeTker & Weisbrod,*for tbe defendant,

argued tbat tbe gist of tbe action is the conversion of plaintiffs property (1 Chitty’s PL, “.Trover”), and tbe allegations tbat defendant received f30,000 of plaintiffs money, and tbat be has refused to pay over and has converted to bis own use $14,000 thereof, form a complete count; tbat defendant is not charged with tbe conversion of *tax certificates,*but of money; and tlrat even if be was charged with tbe conversion of certificates, tbe exhibit here would be redundant. 1 "Whittaker’s Pr., 567, 650, 655, and authorities cited; 2 Till. & Shearm., 177 and cases cited; 17 Wis., 139 ; 6 How. Pr. B., 298; 3 Duer, 684. 1

They further contended tbat tbe complaint stated in fact three causes of action, viz.: for tbe conversion of moneys received upon redemption of lands sold for taxes; for conversion of moneys received upon sales of tax certificates and of lands for tbe plaintiff; and for conversion of moneys received upon illegal assessments — and tbat these should have been stated *separately*(6 How. Pr. B., 298; 12 id., 28; 14 id., 184; 10 id., *672361; 17 id., 239); and tbattbe proper remedy was by motion to strike out two of tbe causes of action as redundant. 12 How. Pr. R., 28 ; 19 Wis., 139.

LyoN, J.

I. As to tbe appeal taken by tbe defendant. It is objected by tbe counsel for tbe plaintiff, that an order refusing to strike out matter from a pleading for redundancy is not ap-pealable. We tbink tbis objection is well taken. Tbe statute (Laws of 1864, cb. 264, see. 10) specifies tbe cases in wbicb appeals may be taken to tbis court from orders of tbe circuit court. If tbis order is appealable, it is so by virtue of subdivision *one,*or subdivision *four,*of tbe above section. That is to say, if tbe order is appealable it is because it affects a substantial right by preventing a judgment from wbicb an appeal might be taken (subd. 1), or because it involves tbe merits of tbe action or of some part thereof (subd. 4). We do not tbink that tbis order affects a substantial right, or involves tbe merits of tbe action; and if not, then it is not an appealable order. It seems very clear that tbe order cannot operate to prevent a judgment, and is therefore not appealable under tbe first subdivision of section 10; and we cannot perceive bow a refusal to strike out redundant matter in a pleading can possibly involve tbe merits of tbe action or of any part of it. Our statute providing for appeals from orders, and prescribing tbe orders which are appealable, is a copy of tbe provision of the New York Code, wbicb gives an appeal from an order made by a single judge to tbe general term; and, so far as we are able to find, tbe courts in that state have uniformly held that an order refusing to strike out matter from a pleading as redundant, is not appealable. See *Whitney v. Waterman,*4 How. Pr. R., 315; *Bedell v. Stickles,*id., 432; and in *Cruger v. Douglass,*8 Barb., 81, tbe same principle is asserted. In that case it is said, and doubtless correctly, that orders wbicb relate merely to matters of practice and procedure, or rest in that discretion wbicb is not and cannot be governed by any fixed principles or rules, are not appealable.

*673We must bold that tbe order refusing to strike out certain portions of tbe complaint as redundant, relates merely to a matter of practice, not involving tbe merits of tbe action, and therefore that it is not appealable.

Tbe appeal of tbe defendant, therefore, must necessarily be dismissed.

II. As to tbe appeal taken by tbe plaintiff. That portion of tbe order which strikes out tbe detailed statement annexed to and made a part of tbe complaint, is appealable, because it in-volves, or may involve, the merits of tbe action. Tbe authorities are uniform to this effect.

We think tbe statement ought not to have been stricken out. It does not, as argued by counsel, contain tbe plaintiff’s evidence, but is more nearly analogous to a bill of items in an action upon an account. Had it been omitted, upon a motion to compel tbe plaintiff to make tbe complaint more definite and certain, and probably upon a demand for a bill of particulars, tbe court would have required tbe plaintiff to furnish it. Tbe defendant has tbe right to be informed of tbe precise character and extent of tbe plaintiff’s demand against him, and tbe particulars thereof, and tbe statement annexed to'the complaint furnished that information in as concise a form as was practicable. Indeed we do not perceive bow tbe particulars of thé alleged causes of action could well be stated more plainly or concisely. If, then, tbe defendant would be entitled to this statement by applying to tbe court therefor, bad tbe same been omitted, we think it was competent for tbe plaintiff to annex it to tbe complaint in tbe first instance. We know of no law or1 rule of practice which requires a plaintiff to wait for a demand or for tbe order of tbe court, before be can legally make the-particulars of bis cause of action a part of bis complaint.

We have been referred to no case which bolds that a plaintiff may not serve tbe particulars of bis claim or demand in the-first instance, without waiting to be compelled to do so.

It is urged that tbe statement in question is very volumin*674ous, and that it should be stricken out for that reason. But the same objection might be urged to a bill of particulars in any case which involved the investigation of long accounts. The plaintiff has seen fit to bring an action to recover in the aggregate a large sum of money, which it charges that the defendant received for its use in small sums and at different times. It charges many hundreds of these *transactions;*and, as a matter of course, a very brief statement of each *transaction*must necessarily make a voluminous pleading or exhibit. But it would be just as absurd to strike out the exhibit or statement for that reason alone, as it would be to strike out a bill of particulars in an action on an account, merely because it contained many hundreds of items and was very voluminous-

We think that the circuit court erred in striking out the statement annexed to the complaint, and the references thereto in the body of this complaint.

The portion of the order from which the plaintiff has appealed, must be reversed, and the cause remanded for further proceedings in accordance with the opinion.

*By the Court.*— So ordered.