Boyd v. Vollmar , 18 Wis. 449 ( 1864 )

By the Court,

Colb, J.

On overruling the demurrer and denying the motion for judgment, the court could have required the defendants to answer the complaint, or move to make it more certain, within some reasonable time, if they had desired to take those steps. The order appealed from, as it now stands, is irregular, as it imposes no diligence or conditions on the defendants. The plaintiff is at their mercy. He cannot obtain judgment, and the court prescribes no time within which the defendants must answer. It is claimed that the complaint is too indefinite and uncertain to render judgment upon. But this is a mistake. The complaint is certainly good in substance. The most that can be claimed is, that the complaint may possibly be a little indefinite and uncertain in its allegations whether the defendants in this action, or the defendants in the suit which was brought to this court on appeal, “ undertook and promised pursuant to the statute ” &c. I think there is no difficulty in determining what defendants this language refers ; but still if the complaint should be held to be indefinite on that point, the defendants ought to be required, within some reasonable time, to move to make it more certain.

The order overruling the demurrer and denying the motion for judgment, as it now stands, is irregular, because it does not require the defendants to proceed with their defense, if they have one, within some reasonable time fixed by the court.

Order reversed, and cause remanded for further proceedings according to law.