expressly ruled in Great Western Compound | Co. v. Aetna Ins. Co., 40 Wis. 373; Murray v. McGarigle, 69 Wis. 484, 34 N. W. 522. But the defendants so improperly joined may demur separately on the ground that the complaint does not state facts sufficient to constitute a cause of action. Arzbacher v. Mayer, 53 Wis. 380, 10 N. W. 440. In Read v. Sang, supra, it was held that the objection that the wife had been improperly joined as a plaintiff with her husband in an action in which the entire interest was in him was allowed for the peculiar reason that no judgment could be given in favor of the defendant in such case against the wife. In Willard v. Reas, 26 Wis. 540, it was held that a demurrer for excess of parties plaintiff is bad if one of them is entitled to judgment against the defendant; and Marsh v. Waupaca Co., 38 Wis. 250, is to the same point. In Schiffer v. City of Eau Claire, 51 Wis. 385, 393, 8 N. W. 253, a demurrer by a defendant to the complaint on the ground that, as to one of the plaintiffs it did not state facts sufficient to constitute a cause of action, was overruled. And in Boyd v. Beaudin, 54 Wis. 194, 11 N. W. 521, it was held that the joinder of a plaintiff who has no interest is not a ground of demurrer. In Nevil v. Clifford, 55 Wis. 161, 166, 12 N. W. 419, it was held that, under a general demurrer that the complaint does not state facts sufficient to constitute a cause of action, the fact that there is a misjoinder of parties plaintiff cannot be considered. It is therefore well settled in this state that a demurrer on this ground cannot be allowed. The case of Palmer v. Davis, 28 N. Y. 247, is cited as justifying the demurrer in question, and that conclusion is sustained by the subsequent case of People v. Crooks, 53 N. Y. 648. These cases, while holding that a misjoinder of parties plaintiff is not a ground of demurrer, hold that a special demurrer, such as this is in fact, may be sustained on the ground that the complaint does not, as to one of the plaintiffs, state a cause of action, and that the objection may also be raised at the trial, when the complaint will be dismissed as to such plaintiff, but that it will be no ground for dismissal of the complaint as to both plaintiffs. It is worthy of notice that the amended or new Code in New York, adopted since these cases were decided, (section 488,) has specified as a distinct ground of demurrer "that there is a misjoinder of parties plaintiff or defendant." As the defendants can avail themselves of the objection to its full extent at the trial, and there can be but one final judgment in the action, the right to have the objection allowed on de murrer cannot be a matter of much practical advantage or importance, and, at best, could result only in an order that could not be carried into effect until after a trial as to the other plaintiff. We will adhere to the rule as already settled until, as in New

York, the legislature shall change it. If the complaint states a good cause of action in favor of Mollie Kucera, it is not denied but that the demurrer was properly overruled. If it does not state facts sufficient to constitute a cause of action in her favor as against them, it is difficult to see how the defendant can be prejudiced, or said to have been aggrieved, by the order appealed from. It must therefore be regarded as settled, in this state at least, that the question of misjoinder of plaintiffs, or whether the complaint, as to one or more of several plaintiffs, states a cause of action against the defendants, cannot be raised by demurrer, under any of the grounds allowed by section 2649, Rev. St. For these reasons the order of the circuit court must be affirmed, and the cause remanded for further proceedings according to law. It is ordered accordingly.

HOSLEY et al. v. WISCONSIN ODD FELLOWS MUT. LIFE INS. CO.

(Supreme Court of Wisconsin. Nov. 28, 1893.) ACTION ON LIFE INSURANCE POLICY-PLACE OF TRIAL.

Where the by-laws of an insurance company, and a certificate of insurance issued by it, provide that within a specified time after the death of the assured the company shall deliver to the beneficiary a check for the sum insured, and the company fails so to do, the default occurs where the beneficiary resides, and the cause of action arises there, within the meaning of Rev. St. § 2619, subd. 5, which provides that the venue of such action is in the county in which the cause of action, or some part thereof, arose.

Appeal from circuit court, La Crosse county; Alfred W. Newman, Judge.

Action by Dora Hosley and others, against the Wisconsin Odd Fellows Mutual Life Insurance Company on certain certificates of insurance issued by defendant to Matthias Hosley, husband and father of plaintiffs. From an order granting defendant's motion for change of venue from La Crosse to Milwaukee county, plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Appeal from an order changing venue from La Crosse to Milwaukee county upon application of defendant. The defendant is a domestic insurance corporation, existing under chapter 43, Private Local Laws 1869, and chapter 1, Laws 1887. May 10, 1889, the defendant insured the life of Matthias Hosley, a resident of La Crosse, for the benefit of his wife and children, and issued to him three policies or certificates of insurance of $1,000 each. Hosley died June 25, 1892, while still a resident of La Crosse, being at the time temporarily in Chicago. His wife and children, who are the plaintiffs in this action, continued to reside at La Crosse, and still reside there. The certificates provided for payment of the insurance to the beneficiaries within 90 days after due proof of the death

bond. On August 4th the plaintiff appeared pursuant to his recognizance, and the action was dismissed without trial. The plaintiff paid his attorney $10 out of the $40 deposited in court; also the justice's, constable's, and witnesses' fees; and received back out of the $40 but $8.19. The damages were laid at $1,000, besides the $31.81 paid for costs, etc. The jury returned a verdict for the plaintiff for $250, on which judgment was rendered, and defendants appeal.

J. M. Clarke, for appellants. John J. McAuliffe and J. C. McKenney, for respondent.

WINSLOW, J., (after stating the facts.) It is manifest that the justice completely lost jurisdiction of the case after the first adjournment by not entering on his docket the time and place to which the case was adjourned. Brahmstead v. Ward, 44 Wis. 591. The plaintiff's imprisonment after this adjournment was without warrant of law, there being no action then pending. The circuit judge so charged the jury, and the charge was plainly right.

It is claimed that this defect or loss of jurisdiction was waived by the appearance of the plaintiff, without objection, on the 4th of August. Conceding that such a jurisdictional error might be waived in a criminal case by an appearance without objection, it is very certain that the appearance must be a voluntary one to have such an effect. In this case the appearance on August 4th cannot be called voluntary. He had been compelled to give bond and deposit money to secure his appearance, and he was compelled to appear, in order to avoid default on his bond and loss of the money deposited. Such an appearance is substantially coerced. It would be a misnomer to call it voluntary. It is said that the constable was protected

by valid process. He neither pleads nor

ex

shows in evidence any process after the first warrant. The damages do not seem cessive. We see no error in respect thereto. Judgment affirmed.

STATE v. CONE.

(Supreme Court of Wisconsin. Nov. 28, 1893.) MARRIAGE OF MINOR-VALIDITY.

Under Rev. St. § 2350, providing that when either party to a marriage, for want of age, shall be incapable of assenting thereto, and there shall have been no subsequent voluntary cohabitation, the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof, the marriage of a 15 year old boy without the consent of his parents is voidable only, and not void.

Question certified from circuit court, Racine county; Frank M. Fish, Judge.

Frank L. Cone was convicted of bigamy, and on motion in arrest of judgment certain facts were certified to the supreme court, and the question submitted, "Can the defendant be legally convicted of bigamy under the above facts?" Question answered in the affirmative.

The other facts fully appear in the follow ing statement by WINSLOW, J.:

Prosecution for bigamy. The defendant, without the consent of his parents, married one Edith S., October 31, 1885, being then fifteen years and two months old. They cohabited together until April, 1886, when they voluntarily separated and have not since lived together. On the 19th day of September, 1891, the defendant married one Sarah C., the said Edith being still alive, and no decree of divorce or annulment of the first marriage having been obtained. Upon these facts the defendant was found guilty of bigamy, and upon motion in arrest of judgment the circuit judge certified the above facts to this court, and submits the question, "Can the defendant be legally convicted of bigamy under the above facts?"

J. L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for plaintiff. E. O. Hand, for defendant.

WINSLOW, J., (after stating the facts.) The question is, was the first marriage void or voidable only? If void, then there was no bigamy; if voidable only by the decree of a court of competent jurisdiction, then there was a marriage subsisting until such decree was rendered, albeit an imperfect one. Speaking of such a marriage, it was said by this court in the case of Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806: "This marriage is not an absolute nullity. It is only annulled from such time as shall be fixed by the judgment of the court. Rev. St. § 2350. That time may, and in many contingencies should, be fixed at a later date than that of the marriage. During the time intervening the marriage is valid." This language was used advisedly, and is supported by the great weight of authority. We see no reason for departing from it now. Beggs v. State, 55 Ala. 108, and authorities cited. The case of Shaeffer v. State, 20 Ohio, 1, is an authority to the contrary, but we do not deem it well supported either in reason or authority. It follows that the question submitted must be answered in the affirmative. Question answered in the affirmative.

Rev. St. § 2350, provides that when either party to a marriage, for want of age, shall be incapable of assenting thereto, and there shall have been no subsequent voluntary cohabitation, the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof.

RIHA V. PELNAR.

ACTION FOR NEGLIGENCE-PROXIMATE CAUSE

SUFFICIENCY OF COMPLAINT.

In a complaint in an action against a town for personal injuries resulting from the fall of the wagon in which plaintiff was riding, and the team attached thereto, from a bridge, an allegation that "by reason, entirely, of the insufficiency, want of repair, and defects afore said, of and in said bridge," said wagon and team fell therefrom, sufficiently avers that the defects in the bridge were the proximate cause of plaintiff's injuries.

Appeal from circuit court, La Fayette county; George Clementson, Judge.

Action by Marcella Kelly against the town of Darlington. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action for personal injuries resulting from falling from an alleged defective bridge upon a highway in the defendant town. The complaint charged, in substance, that the bridge was too narrow to be safely traveled, was dangerously high, being about 12 feet above the river bed, and was without guards or railings; that by reason of said defects, and without fault on the part of the plaintiff or driver, a team of horses and the wagon attached, in which wagon plaintiff was riding, were precipitated off of said bridge into the stream, causing serious injuries to the plaintiff. The complaint also alleges the timely giving of the notice required by section 1339, Rev. St., and the filing of a claim as required by section 824, Rev. St.; and a copy of said notice and claim, which are identical, is attached to the complaint as an exhibit. Said notice describes and locates the bridge with exactness; alleges, as defects, that there were no guards or rails thereon, that it was too narrow, and that it was unnecessarily and dangerously high, being about 12 feet above the bed of the water; and alleges that she received her injuries by reason of said defects in the bridge. The complaint also contains allegations showing the rejection of the claim by the town board of audit before suit brought. A general demurrer to the complaint was overruled, and defendant appeals.

1. On an issue as to title, evidence that one who conveyed the land in controversy to defendant's grantor could not speak English, and did not know that his deed covered such land, was properly excluded, it not being claimed that the mistake was mutual, or that there was fraud on the part of defendant's grantor.

2. Where a person conveys land he is estopped from claiming that a subsequent possession of such land by him is adverse to his grantee, and possession by him and one to whom he subsequently conveys the land must be deemed to be in subordination to the title of the grantee in the first conveyance. Schwallback v. Railway Co., 34 N. W. 128, 69 Wis. 292, followed.

3. It is a matter of discretion with a trial court whether or not it shall permit additional evidence to be given after the case has been closed.

Appeal from circuit court, Kewaunee county; N. S. Gilson, Judge.

Trespass by Wenzel Riha against Nicholas Pelnar. From a judgment for defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

Trespass action, commenced in justice's court, and removed to the circuit court, upon plea of title. The premises in dispute are a half acre of land in a square form in the N. W. corner of the W. 1⁄2 of the N. W. of section No. 21, township 22, range 24, in Kewaunee county. It appeared on the trial that one Francis Shimmel was the original owner of the above-described 80 acres, including the half acre in dispute, and that both parties claim title under him. On the 29th day of March, 1864, Francis Shimmel and wife conveyed the said 80 acres, without exception, to Wenzel Shimmel, by warranty deed. January 10, 1872, Wenzel Shimmel and wife conveyed the same premises by warranty deed to John Riha. The plaintiff, Wenzel Riha, is one of the heirs at law of said John Riha, deceased, and is the grantee of the premises by quitclaim deed, signed by the remaining heirs of John Riha. This series of deeds constituted the plaintiff's paper title. On the part of the defendant it appeared that Wenzel Shimmel and wife

WINSLOW, J., (after stating the facts.) Why this demurrer should have been interposed is not apparent. It is manifest that it was rightly overruled. It is said that the defects in the bridge are not alleged to be the proximate cause of the injury. The complaint distinctly alleges that "by reason, entirely, of the insufficiency, want of repair, and defects aforesaid, of and in said bridge," said team fell from the bridge. Nothing further seems necessary. Order affirmed.

by warranty deed, the half acre of land in dispute, described as one-half acre of land in the N. W. corner of the N. W. 14 of the N. W. 14 of said section 21, which deed was duly recorded September 27, 1860; also that on the 12th of January, 1885, Simon Pelnar and wife conveyed the said half acre by warranty deed to the defendant, Nicholas Pelnar, which deed was recorded January 24, 1885. The case was tried with a jury, but, after both parties had rested, and a motion for nonsuit had been made, the jury was discharged by agreement of the counsel,

and the case submitted to the court for decision. The case was then reopened and further testimony taken. The court made the following findings:

First. The trespass complained of consists of the admitted attempt of the defendant to build a fence around one-half acre of land in the N. W. corner of the W. 1⁄2 of the N. W. of section No. 21, described in the complaint. The premises in dispute were conveyed by Wenzel Shimmel and wife to Simon Pelnar by warranty deed dated October 13, 1859, and recorded September 27, 1860, which deed described the premises as one-half acre in the northwest corner of the government subdivision given above. Second. That on the 13th day of October, 1859, the W. 1⁄2 of the N. W. 4 of said section No. 21 was inclosed with a brush fence on the north and west sides, so as to include the one-half acre in dispute. That said fence has been repaired, rebuilt, and maintained by Franz Shimmel and his grantees from time to time since 1859, on substantially the same line, and the said W. 1⁄2 of the N. W. 4 of said section has been protected by a substantial inclosure by the plaintiff and his grantors for more than 20 years next prior to the acts constituting the alleged trespass, and the said fence was built in the year 1859 or before. Third. That the plaintiff and his grantors have been in the actual, continuous, and exclusive possession of said W. 1⁄2 of the N. W. 4 of said section 21, including said one-half acre, from October 13, 1859, down to the time of the alleged trespass, and during that time cleared off the timber from said one-half acre, together with other land in said government 80 adjacent thereto, and cultivated and improved the same according to the usual course and custom of the adjoining country; that the defendant and his grantors have never been in actual possession of the premises in dispute. Fourth. That the defendant and his father, Simon Pelnar, grantee in the deed of October 13, 1859, both lived near said premises, and must have known of the possession of and improvements on said W. 2 of the N. W. 4 of said section No. 21, including said one-half acre, by the plaintiff and his grantors. Fifth. That neither the defendant nor his father are shown to have informed or notified the plaintiff or any of the latter's grantors that they claimed title or ownership to the one-half acre in dispute; that neither the plaintiff nor any of his grantors ever informed or notified the defendant or his father, Simon Pelnar, that they claimed title or ownership to the said one-half acre, or that they claimed to hold the same adversely; that neither the defendant nor his said father had any notice or knowledge that the plaintiff and his grantors were not holding in subordination to the legal title, unless such knowledge can be inferred from the foregoing facts found as to possession; that there has been no dis

seisin of the defendant or his grantors, or adverse possession of the premises in dispute by the plaintiff or his grantors, unless a disseising or adverse possession can be inferred from the foregoing facts and the testimony of the plaintiff's witnesses as to the nature and character of the possession of the plaintiff and his grantors. Sixth. That the acts of the defendant complained of were committed by him in digging post holes and setting posts around said one-half acre in square form in the N. W. corner of the W. 1⁄2 of the N. W. 4 of said section No. 21, within the inclosure made by said fence originally constructed in 1859. Seventh. That if the plaintiff is entitled to recover, his damages are found to be the sum of six cents.

Conclusions of Law.

First. That the said deed of October 13, 1859, conveyed one-half acre in square form in the N. W. corner of said W. 1⁄2 of the N. W. 14 of said section 21.

Second. That the plaintiff and his grantors have held possession of the one-half acre in question since the said deed of October 13, 1859, not adversely to the defendant and his father, but in subordination to their legal title.

Third. That the plaintiff is not entitled to recover in this action, and that his complaint should be dismissed on the merits, with costs.

From judgment for defendant on these findings the plaintiff appeals.

George B. Byron, (G. G. Sedgwick, of counsel,) for appellant. John Wattawa, (Nash & Nash, of counsel,) for respondent.

WINSLOW, J., (after stating the facts.) The paper title to the half acre in dispute was admittedly in the defendant under the deed of Wenzel Shimmel to Simon Pelnar, of date October 13, 1859. It is equally clear that the actual possession of the premises has been in the plaintiff and his grantors since on and prior to the execution of the Pelnar deed. The circuit court found that this possession was not adverse, but was in subordination to the true title, and consequently that the defendant committed no trespass in entering upon the premises. This question of the nature of the plaintiff's possession, whether adverse or not, is the vital and controlling question in the case. If the circuit court was right in its conclusion that the plaintiff's possession was not adverse, then the judgment was plainly right, unless prejudicial errors in rulings upon evidence occurred on the trial. The contentions made by appellant will be noticed in their order.

1. Appellant claims that it was error to admit in evidence the defendant's title deeds, because defendant had not shown seisin or possession of the premises within 20 years