Balkins v. Baldwin

Cassodat, J.

“ If any pleading contain irrelevant, redundant, or scandalous matter, it may be stricken out, with costs, on motion of the adverse party, and the court or pr&siding fadge, in discretion, may order the attorney who signed the same to pay the costs.” Sec. 2683, S. & B. Ann. Stats. It is conceded that only such “ court or presiding judge ” can impose such costs upon such attorney, but if is contended that a court commissioner may strike out such irrelevant, redundant, or scandalous matter. We are constrained to bold that a court commissioner possesses no such power. The same section gives to “ the court or presiding judge ” authority to require a pleading to be made more “ definite and certain.” So “ the court or presiding judge ”, is expressly authorized, in a proper case, to strike out any answer, reply, matter, or defense, as sham, or frivolous, or irrelevant, or otherwise (sec. 2684, S. & B. Ann. Stats.); and that is so even -when such answer, reply or defense is “ by way of denial or avoidance ” (sec. 2682). The commissioner can have no such authority, because, wherever the “ statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session; ” and wherever the “ statutes authorize an order or proceeding to be made or taken by the presiding judge, or by the circuit judge, using such words of designation, no county judge or court commissioner can act.” Sec. 2815, S. & B. Ann. Stats. The several sections of the statutes cited must be construed together.

The refusal of the court to set aside the order of the court commissioner in effect continued such order as the order of the commissioner, without in any way adopting the, same as the order of the court. The service of a copy of the commissioner’s order on the plaintiff’s attorney, November 17, 1891; the admission of service of the answer to such' complaint, December 18, 1891; the failure to give notice of motion to set .aside said order of the commissioner until March 30, 1892; the failure to pay the $10 costs, ordered by the commissioner; and the noticing of the cause for trial at the April term, 1892,— cannot, as we think,‘be regarded as a waiver by the plaintiff of his right to have such unauthorized order set aside.

By the Court.— The order of the circuit court is reversed, and the cause is remanded with direction to set aside the order of the commissioner, and for further proceedings according to law.