Van Slyke v. Carpenter , 7 Wis. 173 ( 1859 )

By the Court,

Smith, J.

These cases are all to be considered, as they were all argued together, and all depend substantially upon the same principle, so far as the subject matter of the appeal is concerned. They are numbered in this manner, not according to their place and number on the calendar for the term, but for the sake of convenience, as they all depend upon the same rule of practice and follow consecutively on the calendar.

The questions of practice involved in these appeals, have already been considered, and but few words more are requisite to dispose of them, in as much as these several demurrers were stricken off upon the sole ground of frivolousness by the court below, aud, in so far, the observations made upon the cases heretofore considered, will apply equally to these. (See Farmer & Miller’s Bank vs. Sawyer post.)

If the court below had properly been presented with the foolish, not to say scandalous appendix, to the several demurrers, and had thrown out the papers for that reason, and had even punished the offender, this court would not have interfered. But such does not seem to have been the case. From the order made in the case by the court below, it seems that he regarded the amendment made to the demurrer by striking out, or rather by drawing black lines around the scandalous appendix, as an effectual obliteration thereof, and proceeded to pass upon the demurrer as it had reference to the complaint, and pronounced the same frivolous, without, however enforcing the statutory consequences thereof, as prescribed by section 159 and section 158, subdivisions one and two of the code.

It is conceded on all hands that the complaints filed in these cases, would be bad as declarations in common law actions. But it is contended that section 70 of the code has wrought such a radical change in the practice, that to what was before substantially bad in the statement of the plaintiff’s cause of action, it is now frivolous to object by way of demurrer ; in other words, that those defects which were so substan-tia] as to constitute cause for error before, are now turned to mere frivolity, and are not to be alleged or objected to in any manner, under pain of irretrievable default.

We cannot accede to such an interpretation of the seclion of the code before referred to. It has undoubtedly wrought very considerable changes in the form of pleading in cases of this kind, but little change will be found to have been made in regard to substance.

But before proceeding to notice the changes which have been made by the code, in respect to the form and substance of the pleadings in cases of libel and slander, it may be well asked, whether the court, upon the inauguration of a new system of practice, should inflict the consequences of a frivolous pleading upon a party whose pleading would be good under the old one; nay more, should the court pronounce a demurrer to a complaint, frivolous which would have been obviously well taken before, and a complaint substantially worthless before, so perfect now, that a demurrer to it must be condemned as frivolous, and the demurrant punished accordingly. We cannot believe the legislature intended any such absurdities, nor do we think the code is justly chargable with them.

Section 70 of the code, is in the following words:

“ In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matters, out of which the cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish on trial that it was so published or spoken.”

It must be borne in mind that the question before the court is, not whether the demurrers are well taken, or whether they would be overruled on the hearing, but whether they are frivolous, and ought to be stricken from the files, and the plaintiff is entitled to judgment as upon a peremptory and irretrievable default; or to state the case more plainly, are the complaints so manifestly good, sufficient and unexceptionable, that upon a bare inspection thereof and the demurrer, it is apparent that the latter could not have been interposed in good faith ? but that the interposition of which was trifling with the process, forms and practice of the court. If so, most certainly the defendants have forfeited all right to a further hearing or defence, and the plaintiff is entitled to have his damages assessed under section 158 of the code.

The court below undoubtedly took this view of the several cases, and made the following order in each of them:

“ On reading and filing affidavit and order to show cause, &c., and after hearing Orton, Smith and Hopkins of counsel for the plaintiff, and Knapp & Roys for defendants, it is ordered that the demurrer to the complaint put in and served by the defendants in this action, be, and the same is hereby stricken out as sham and frivolous, with ten dollars costs of this motion.”

Enough has, perhaps been already said, to show that we do not regard these demurrers as frivolous, and that they were not liable to be stricken off under section 159 of the code; and we are not under the necessity of going further. But as these cases are to go back for further proceedings, and as the question of practice here involved is one of importance to the profession, we have concluded to go beyond our strict duty in the premises, and consider the effect which section 70 has upon the pleading and practice in cases of libel and slander.

We may repeat here, that if the paper had found its way to the files of the court in the shape it was in when served upon the plaintiff’s attorney, there is no doubt that it might have been stricken from the files at once as a scandalous paper placed there in contempt of the court. But such were not the facts nor the proceedings, as is manifest from the order of the court.

Section 70 of our code corresponds with, and is a copy of section 164 of the New York code of proceedure, which has been the subject of very considerable discussion in the courts of that State : a circumstance in itself, sufficient to relieve the demurrers in these cases from the charge of frivolousness,

is contended by the counsel for the respondent, that unis section, it is only necessary in all cases to allege that the defamatory words were published or spoken of and concerning the plaintiff, and that no innuendo or averment is necessary to show that the words were applicable to the plaintiff, or that he was intended thereby. But this is true only in such cases where the words are not ambiguous in themselves. The code only relieves the plaintiff from stating “extrinsic facts,” where such, extrinsic facts would otherwise have been necessary to show the application of the words, and without a statement of which by way of inducement in the introductory part, the declaration would be bad, notwithstanding the innuendo. In no case in the New York Reports have we been able to discover that the innuendo may in all cases be dispensed with. On the contrary it seems to be retained in the forms of pleading under the code and regarded as essential in all cases where the meaning of the Words would be ambiguous without it. See Voorhies Code 230, §164 and notes; Miller vs. Maxwell, 16 Wend., 9 and notes; Pike vs. Von Warmer, 5 How. Pr. Rep. 171, 6 id. 99, 2 Monell's Pr. 388.

It is stated in some of these cases that the 164th section of the New York code, was intended to obviate the real or supposed difficulty occasioned by the decision in the case of Miller vs. Maxwell, before cited ; but that the section merely dispenses with the allegation of extrinsic facts, and circumstances outside of the defamatory matter, showing the application of the words to the plaintiff. It does not dispense with the necessity of an averment or innuendo, when they become essential to show the meaning of the words themselves. Pike vs. Van Wormer, 5 How. 171, 6 id. 99; Fry vs. Burnett 1 Code Rep. N. S., 247; 5 Sand. 54; Caldwell vs. Raymond, 2 Abbott R., 193; 10 How., 222.

It is well known to every pleader, that under the old form of pleading, it frequently became necessary to set out extrinsic matter, by way of inducement, to show the application of the words to the plaintiff, such as his profession, trade or calling, his place of residence or business, the office he held when that was required to give direction, point or significance to the words. This, it is understood, is dispensed with by-section 70 of the code, and an averment or innuendo that the plaintiff was meant, is now sufficient.

But we do not intend to discuss at length, nor decide upon the sufficiency of the complaints in these cases, nor the validity of the demurrers. Enough has been said to show that the latter are not frivolous, and to suggest to the parties the propriety of reviewing their proceedings.

The order of the court below is reversed in each case, and the same is remanded for further proceedings according to law.

Order reversed with costs.