Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-09-15
IN RE CERRYM
Senator Villas and Colonel Bird
Have 4 Set-TO in
Court.
An Order Made Calling the APP
portionment Case for Argu-
ment Sept. 20.
At That Time the Matter Will
Be Discussed Oh Its
Merits.

a
ID o'clock when court convened. Sena-
tor Villas was there to participate in
the treasury arguments, and Col. Geo.
w. Bird, G. l.. EstabrOOk and Geo. C..
Green were among the various other
attorneys present.
Pending argument III the treasury
cases, Col. Bird called tile attention Of
the court to the situation in the gerry
mander case. He stated that late
Thursday afternoon the secretary OF
state appeared in the case by Col. Villas
and served a demurrer to the com
plaint, and alSC Il motion to Yacate the
order granting leave to commence the
suit, the time for the hearing of Which
was fixed in the motion by Col. Villas
at the opening Of court en- the 10th of
September Col Bird further stated
that shortly after the service Of that
demurrer and motion, the plaintiff and
relator caused to be served upon Col.
Villas a notice Of motion to strike out
the demurrer rs frivolous, and for judg-
ment rs prayed for i'll the complaint,
the time 70" hc;ling said motion being
fixed therein for next Tuesday, the 18th
of September lie further stated that
it was important to have rs speedy 4
hearing upon the merits rs possible;
that the question OF time might be
urged hereafter SO as to embarrass the
doing of full Justice to the people of
the state; that since the amendment Of
the statute respecting frivolous plead
Ill OF, l.
lished, under several decisions Of this
court, that a motion to strike out
pleading as frivolous, and for Judgment,
raised the merits of the case, and that
upon the argument of such motion the
PARTIES were entitled to 60 into the
merits, and the court was required I'M
der the statute to determine the merits;
that the old rule that unless the plead
ing was clearly frivolous at first blush
the motion must he denied, had been
changed by the statute. He also stated
that rs time might be important, he
desired the court, in case the argument
in the treasury eases was completed be
fore the 18Th. that it would take a
recess until that day in order to hear
the motion to strike out the demurrer
as frivolous and for Judgment; that as
the statute required at least five days
notice, the hearing of the motion could
not be fixed earlier than the 18th, or
he would have named an earlier day.
Senator Villas in behalf of the Secre-
tary Of state declared that his under
taking was that upon motion to strike
out pleading rs frivolous, the merits
could not be considered; that the only
question raised was whether the de
murrer was so clearly bad, and so clear
" put in in bad faith that the court
could see that such was tho case at
first blush and that the merits were not
raised at all; that he had put in the lie
nlurrer in good faith, and ut the proper
time he desired to argue the merits,
and that with his understanding Of
the law, the merits were not to be ar
gued upon the motion interpOSed 10y
plaintiff But that if the rule as he
understood it was to prevail, he was
willing to take up the argument Of
the motion to strike out the demurrer
as frivolous now, with the understand
ing that the merits of the case Were not
to be gone into.
Col. Bird in reply said thac he acrept-
ed the proposition of Col. Villas to take
up the argument of the motion now,
and was now prepared TO proceed with
it, and would do So, but not upon any
limitation hamperfng the action of the
court rs 10 what questions were raised
by the motion; that, as he had already
stated, IN ut least half dozen decisions
since the amendment of the statute,
the court had held that the motion TO
strike out 4 demurrer as frivolous and
for judgment raised the merits of the
case, and that if the demurrer was not
well taken, the motion would be grant
ed and that he was prepared at once
to proceed on the cOlonerS suggestion
and now argue that motion under the
rule as established by the supreme
court.
Senator Villas then again said that he
did not understand the rule that the
merits were for argument III such a
motion. Justice Orton interrupted and
said that he understood the rule to be
that the merits on such a motion We're
before the court. Justice CaSsoday al
SO remarked that the court had in
several cases held that such i motion
broughC the merits before the c0ur;
for consideration, and that if the dc
murrer were not well taken, the motion
should be granted; that the old ruiz
that unless the demurrer was clearly
frivolous and put in in bad faith the
motion should be denied, no longer pre-
vailed.
Senator Villas then stated thai h
must admit that he was little rust.
i'll the practice, not having had occa
SIGN to examine it recently, and tina
if the motion of Col. Bird brought III
the merits, he desired time for cOnSid
Grafton and to prepare his argument
and that he could not get ready b,
next Tuesday, the 18th; and that b
desired that the argument Of the motor
to strike out the demurrer IS friyolou
and for Judgment should be postpone
until The Goth, and that he could b
prepared by that time, but not sooner
that the questions arising in the cas-
were very important, and that the coul
would desire full consideration of then
earlier than the Goth.
and that he hoped the court would nc
press him to argument on the motto
Col. Bird, replying, said that alread
forty days had been consumed, and :
it seemed to him wholly unnecessaril