Door County v. Keogh

Wisconsin Supreme Court
Door County v. Keogh, 77 Wis. 24 (Wis. 1890)
45 N.W. 937; 1890 Wisc. LEXIS 170
Lyon

Door County v. Keogh

Opinion of the Court

LyoN, J.

The portion of the answer in abatement which alleges that the holders of the redeemed tax certificates are necessary parties to the action is not well pleaded, either in form or substance. It is bad in form, because such holders are not named therein or in any pleading in the case.- It is an elementary rule that a plea in abatement must give a better writ, which means that when such a plea is interposed for defect of parties their names must be stated therein, as well as that they are living and within the jurisdiction of the court. The answer is bad in substance, be*26cause it is impracticable, if not impossible, to ascertain wlio these certificate holders are, and in no view of the case are they necessary parties to the action. This portion of the answer being nugatory, it is idle to require it to be made more definite and certain. The only proper thing to do with it is to strike it out on motion, or, in the absence of such motion, to disregard it.

We do not determine whether the respective payees of the county orders in question are or are not necessary parties. If they are, no good reason is perceived why there should be three answers in abatement, because of their non-joinder, instead of one, as CQunsel for plaintiff maintain. The reason urged for thus subdividing the pleading is the plaintiff might think one of the proposed parties should not be brought in while the others should be, and may desire to raise the question by demurrer whether the former is a necessary party. This he cannot do effectually while the pleading is in its present form, because his demurrer would be overruled if any one of such payees is a necessary party. All this is very plausible, but has no application here, because, under the allegations both of the complaint and answer (which is all the information this court has on the subject), the three payees of the county orders in question stand precisely in the same relation to this controversy. If any one of them is a necessary party to this action, each of the others is also. If any one is not, neither is either of the others. Hence the reason given for interposing three answers in abatement, instead of one, is unsound. We can imagine no other valid reason why the pleading should be thus subdivided. We conclude that the plaintiff is not injured by the denial of his motion, and hence that the portion of the order appealed from should not be disturbed.

By the Court.— Order affirmed.

Reference

Full Case Name
Door County v. Keogh and others, imp.
Status
Published