Rohloff v. Folkman
Rohloff v. Folkman
Opinion of the Court
The following opinion was filed May 3, 1921:
The complaint alleges that each of the plaintiffs was a stockholder of the Four. Wheel Drive Auto Company; that the defendants other than Calkins were or are directors of the company; that each of the plaintiffs was induced to sell his respective stock holdings in the said com
“It is further ordered that the said motion of the defendants for severance of the causes of action of the several plaintiffs be and the same hereby is granted, and that the alleged cause of action of each of the plaintiffs set forth in the complaint shall be, and hereby is, constituted as a separate action, and the said several causes of action hereby are severed and made distinct and separate causes of action, and that the complaint already served herein shall as to each of the plaintiffs stand as and for his separate complaint,” permission being given for the necessary amendments.
From this order the plaintiffs appealed, claiming that the motion to sever was equivalent to a demurrer and that the order directing severance is, in substance and legal effect, an order sustaining a demurrer and should be so treated, being analogous to a motion to supersede a writ of certiorari or a motion to quash an alternative writ of mandamus, which are held to be, in effect, demurrers. State ex rel. Bidgood v. Clifton, 113 Wis. 107, 88 N. W. 1019; State ex rel. South Range v. Tax Comm. 168 Wis. 253, 169 N. W. 555; State ex rel. Mueller v. Thompson, 149 Wis. 488, 137 N. W. 20.
The motion to dismiss the appeal is based upon the claim that the order appealed from is not one of the class of orders described in sec. 306í) relating to appealable orders.
The power of the court to order a severance of causes of action is well recognized. It may not be demanded as a matter of right, but rests in the sound discretion of the trial court, which, when exercised, will not be disturbed unless there has been a manifest abuse of the discretion. 1 Corp. Jur. p. 1141, § 369 et seq. and cases cited. The argument of plaintiffs’ counsel amounts to this: That if a complaint be demurrable by reason of the misjoinder of causes of action and the defendant does not demur, the trial court may not thereafter order a severance in the exercise of sound discretion, although the court might, in the exercise of its discretion, direct a severance if a complaint were not de-murrable. We see no reason why the power of the trial court should be so limited and we are cited to no authority sustaining such a proposition. A demurrer to a complaint raises a question of right. A motion to sever causes of action is an appeal to the discretion of the trial court, and while the results may be, as argued, substantially the same, they are in law two distinct things. We cannot, therefore, treat
By the Court. — Appeal dismissed.
A motion for a rehearing was denied, with $25 costs, on July 13, 1921.
Reference
- Full Case Name
- Rohloff and others v. Folkman and others
- Cited By
- 1 case
- Status
- Published