Supervisors of Kewaunee County v. Decker , 28 Wis. 669 ( 1871 )

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.

We 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 voluminous, 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.