Opinion
December 1, 1941 —
January 13, 1942.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Affirmed.
Samuil Nissenbaum of Milwaukee, for the appellant.
A. L. Skolnik of Milwaukee, for the respondents.
This case was before the court on a former appeal and was reported in 235 Wis. 422, 293 N.W. 173. Inasmuch as but three of the defendants are involved on this appeal, we shall not set out the full title of the case nor make a full statement of the facts which are set out in the report of the case on the former appeal. Such additional facts as are necessary will be stated.
Upon remittitur to the trial court the plaintiff filed a third amended complaint. To this complaint the defendants, Northwestern Iron Metal Company, Morris Stern, and Louis Hirsch severally demurred on the ground that as to them the complaint stated no cause of action. After argument the trial court sustained the demurrers. In the order appears the following:
"It appearing from said third amended complaint and the three complaints previously served and filed herein, the decision of the supreme court of Wisconsin with respect to the last of said previous complaints and the entire record herein that the facts reiterated in all said complaints without change and obviously undisputed negative the existence in plaintiff of any actual and just cause of action against said demurring defendants and that the following order should be made herein in the interests of justice.
" It is further ordered that leave to further amend be withheld unless and until the plaintiff makes due application for such leave accompanied by the tender of a pleading sufficient to withstand demurrer and a showing sufficient in law to satisfy the court that plaintiff is justly entitled to such leave to amend."
The order was dated September 16, 1940. On September 18, 1940, respondents served a notice of motion for judgment on the merits returnable September 27th. After argument by counsel for the plaintiff and the respondents, the court entered an order directing judgment dismissing the complaint with $10 costs and disbursements. This order was dated September 30, 1940, and upon the order, judgment was entered accordingly on October 1, 1940. From this judgment the plaintiff appeals.
Despite the fact that on the former appeal this court after making a careful analysis of plaintiff's complaint pointed out that the complaint stated a good cause of action for declaratory relief under sec. 269.56, Stats., and no other and that the only defendants against whom such a cause of action is stated are, (1) the creditors of the Cream City Wrecking Company, and (2) the Nelli Wrecking Company, his immediate grantor, by his third amended complaint the plaintiff still insists that he has stated a good cause of action in equity against respondents.
The first contention made upon this appeal is that no judgment can be entered on the merits without a trial. This contention is without merit. Scharine v. Huebsch (1931), 203 Wis. 261, 234 N.W. 358; Rebholz v. Wettengel (1933), 211 Wis. 285, 248 N.W. 109. The plaintiff cites in support of his argument Luebke v. Watertown (1939), 230 Wis. 512, 515, 284 N.W. 519, 520. In that case it is held that judgment on the merits is only entered —
"upon findings so made, upon rulings on demurrer when pleading over is not served, upon a motion for judgment on the pleadings," etc. The case supports the position of respondents. See Harnischfeger Sales Corp. v. Kehrein Bros. (1938) 229 Wis. 225, 281 N.W. 918.
The plaintiff further contends that that part of the order denying him leave to amend violates his constitutional rights. This claim is so fantastic that it does not merit reply. The plaintiff is not entitled to amend his complaint indefinitely. Pleading over is a matter that is within the sound discretion of the trial court. Sec. 263.46, Stats. Marshall v. Wittig (1931), 205 Wis. 510, 238 N.W. 390. Certainly whether plaintiff should be permitted to serve a fourth amended complaint rests in the sound discretion of the trial court. The demurrer having been sustained on the ground that no cause of action had been stated, the plaintiff having failed to comply with the conditions imposed by order of court, is not entitled to any relief in law as against the three respondents and the court correctly dismissed the plaintiff's complaint as to them.
The third amended complaint states no other or different cause of action than was stated in the second amended complaint. The plaintiff purchased nothing but the real estate in question. He bought this from the Nelli Wrecking Company. He had no dealings with the three defendants. He alleges in the complaint that he purchased the real estate, paid an adequate consideration therefor; that after the purchase he discovered that the land had been conveyed in fraud of creditors; that he was liable to an action by creditors to set aside the conveyance and instituted this action to clear his title and to get credit for the money already paid by him and have same established as a lien upon the premises if the fraudulent conveyance should be set aside. The third amended complaint is subject to the same infirmities as the second amended complaint and the trial court correctly so held. As a matter of fact, the plaintiff by reference realleges and reaffirms all the matters alleged in his second amended complaint and so incorporates them in the third amended complaint. Inasmuch as the creditors have not moved to set aside the conveyance by which the plaintiff acquired title upon his complaint he is entitled to the declaratory relief as indicated in the opinion in the former case.
The plaintiff having failed to apply to the trial court for leave to amend in accordance with the order, he elected thereby to stand or fall upon the third amended complaint: His contention that he did not have time to digest the decision of the circuit court is frivolous. He knew that the complaint had been held defective; he knew both from the decision of this court and of the trial court in what respects it had been held defective; he knew whether there were facts which if alleged and set out in the complaint would cure the defect. The plaintiff has made three attempts to state a cause of action against these defendants. He has had the advantage of an exhaustive opinion by this court. By no stretch of the imagination can it be held that there was any abuse of discretion in withholding leave to file a fourth amended complaint except upon a proper showing.
By the Court. — The judgment appealed from is affirmed.