#### Cobb vs. Harrison, impleaded &c.

*Demurrer not frivolous*— Practice *on striking out demurrer asfrivolous*— Bevmal *of judgment.*

1. The decision in Pagev. *Harrison (ante*p. 223), followed.

2. A demurrer to the jurisdiction raising the question there decided, was not *frivolous.*

3. On striking out as frivolous a demurrer to to the complaint, the court should permit defendant to answer on terms, on bis producing an answer showing a good defense, with an affidavit of merits and that the demurrer was filed in good faith.

4. Where a demurrer is erroneously stricken out as *frivolous,*and the demurrant does not ask leave to plead further &c., a judgment against him will not be reversed if the demurrer is bad.

APPEAL from the County Court of *Milwaukee*County.

Foreclosure of a mortgage. The amount claimed to be due was $500, with interest from July 1st, 1860. The complaint did not state the value of the property. There was a demurrer to it on the ground, among others, that the court had no jurisdiction of the subject of the action; and this was the only ground relied upon here. The county court ordered a judg*626ment for tbe plaintiff, on tbe ground that tbe demurrer was frivolous ; and tbe defendant *Harrison*(tbe mortgagor) appealed from tbe judgment.

*Jas. Gr. Jenkins,*for appellant.

*Butler v. Gottrill,*for respondent.

Tbe following opinion was filed at tbe January Term, 1866.

Cole, J.

Tbe demurrer in tbis case was clearly not frivolous, witbin tbe repeated decisions of tbis court. If, therefore, tbe appeal were from tbe order stinking out the demurrer as a in volous pleading, that order would probably have been reversed. But the appeal is from tbe judgment of foi’eelosure; and tbe question is, can we go back and review that order? If so, it must be under section 6, chap. 264, Laws of 1860. That section provides that upon an appeal from a judgment this court may review an intermediate order involving tbe merits and necessarily affecting tbe judgment. • It is obvious that if we can consider tbe order striking out tbe demurrer as frivolous at all, it must be by virtue of tbis provision of tbe appeal statute. Is, then, tbe order striking out tbe demurrer as frivolous, one involving tbe merits and necessarily affecting tbe judgment? Tbe answer to tbis question, it appears to us, depends essentially upon tbe further inquiry, whether tbe demurrer was well taken or not. For if tbe demurrer was clearly bad, and must have been so held on argument, then we are unable to perceive upon what ground an order striking it out as frivolous can be said to be one involving tbe merits. It is true, on overruling tbe demurrer on tbe bearing, tbe defendant has, almost as a matter of course, leave to answer. But we suppose tbe court, on striking out a demurrer as frivolous, would, at least on application, permit tbe defendant to answer on terms, upon bis producing an answer showing a good defense to tbe action, and making tbe usual affidavit of merits and that tbe demurrer was filed in good faith. Tbe defendant, therefore, is not deprived of bis right to make a de*627fense to tbe action, if be bas snob defense, by tbe practice adopted. And all tbe defendant bas lost — tbe demurrer being bad, as we have in effect beld in tbe case of Page against tbis same defendant, just decided *\ante,p.*823], — was tbe right of having tbe demurrer set down for argument instead of being disposed of in tbis summary manner. For while there was enough in tbe demurrer to relieve it from tbe character of being a frivolous pleading, it must certainly have been overruled on tbe bearing. So, tbougb tbe coitrse pursued in disposing of tbe demurrer is not tbe one which should have been adopted, still it seems to us impossible to bold, under tbe circumstances, that tbe order striking out tbe demurrer as frivolous is one in any sense involving tbe merits of tbe action, or necessarily affecting tbe judgment. It only relates to tbe form or ceremony of tbe proceeding, and could have ,no possible effect upon tbe rights of tbe parties. See *Rahn vs.*Gunnison, 12 Wis., 528; *Oatman vs. Bond,*15 id., 20. Hence we think it is not before us on tbis appeal.

*By the Court.*— Tbe judgment of tbe county court is affirmed.

A motion for a rehearing was disposed of at tbe June term, 1866, as follows :

Cole, J.

On tbe motion made herein, a number of considerations are forcibly pressed upon our attention to induce us to grant a rehearing of tbe cause.

In tbe first place, it is said that tbe point decided was not raised on tbe argument, and consequently was not discussed by counsel, and that there is an obvious impropriety in tbe court deciding tbe cause upon a point not raised by either party. It is true, tbe question whether, on an appeal from a judgment, tbe court could properly review a prior order striking out a demurrer as frivolous, was not raised by counsel on tbe argument, but was suggested by members of tbe court in tbe consultation room; yet tbe objection was so de*628cisive, and, after a careful examination of the appeal statute, we were all so clear upon the point that we could not review the order, that we did not feel at liberty to disregard the objection.

And we cannot see how the rights of parties can be seriously prejudiced, even if the court happens to decide a cause upon a point not discussed by counsel, when, by the practice of permitting motions for a rehearing, ample opportunity is afforded counsel to set the court right if it falls into an error. This is all we deem it necessary to say in answer to the criticism that counsel have thought proper to make upon this practice.

Again, it is said that it has been the uniform practice, since the adoption of the code, for this court, on appeal from judgments, to review such orders and reverse the judgments, even when the demurrer was not well taken but had been stricken out as frivolous, and this court thought it was not a frivolous pleading. It is fully admitted that a few cases of this kind can be found in our reports; but the question whether the court could properly review the order on a|3peal from the judgment was not made or suggested by court or counsel, and of course was never decided. We fail, therefore, to see that the court will be guilty of any gross inconsistency if it now holds that it cannot review the order on an appeal from the judgment Eor whatever may have been the practice of reviewing such orders heretofore, we did not feel, under the circumstances, precluded by any decisions from adopting that construction of the appeal statute which seemed to us most sound and rational.

And we are well satisfied with the construction we have placed upon section 6, chap. 264, as founded upon reason and principle, nothwithstanding the vigorous manner in which that construction has been assailed. Our exposition of the statute may be somewhat in conflict with some decisions in New York as to the proper meaning of the word *“*meritsbut in *Rahn vs. Gunnison*and *Oatman vs. Bond, supra,*it is clearly intimat*629ed that we think the language, *“invoicing the*merits” and “ necessarily affecting the judgment,” must have a more limited signification than, some judges in that state are disposed to attach to it.

But upon the precise point ruled in this case, as we understand the decisions in New York, the decided weight of authority sustains our decision. In Yoorhies’ Code, 8th ed. p. 453, note “ h,” it is said that on appeal from an order rendering judgment on a demurrer as frivolous, the order will not be reversed unless the court are of opinion that the demurrer would be sustained on argument. The cases of *Manning vs.*Tyler, 21 New York, *567; The East River Bank vs.*Rogers, 7 Bosw., 494; *Wesley vs. Bennett,*5 Abb., 498; *Whetherhead vs. Allen,*28 Barb., 662; *Martin vs. Kanouse,*2 Abb., 327, fully sustain the text of the author.

The case of *Manning vs. Tyler*is a very strong one on the point we are considering. That was an appeal from a judgment rendered on account of the frivolousness of the answer, which set up the defense of usury to the action. The majority of the court held that the answer did not state with sufficient clearness and precision the alleged usurious agreement, and affirmed the judgment. Judge DeNIO and another member of the court dissented, on the ground that the answer stated a good defense in substance, and.if there was a want of particularity in setting forth the usurious contract, the plaintiff’s remedy was by motion to make the pleading more definite. As a matter of course the answer could hardly have been said tobe frivolous, when two able judges held it good in substance. Yet, as already remarked, the judgment was affirmed. A stronger case in support of our decision above made can hardly be imagined.

*By the Court.*— The motion for a rehearing is denied.