State Ex Rel. Leuch v. Hilgen

258 Wis. 430 (1951)

STATE EX REL. LEUCH, Appellant, vs. HILGEN, City Clerk, and another, Respondents.

Supreme Court of Wisconsin.

January 10, 1951.

February 6, 1951.

*431 E. W. Van Dyke of Milwaukee, and P. F. Leuch, in pro. per., for the appellant.

For the respondents there was a brief by Kittsley & Hurth of Cedarburg, and Gerold & Huiras, of Port Washington, and oral argument by Harold J. Kittsley.

HUGHES, J.

The trial court filed no opinion, so we are unable to ascertain upon what basis the motion to quash was granted. An examination of the record shows that the petition states a cause of action.

"The motion [to quash] is in the nature of a demurrer, and ordinarily is dependent for its effectiveness on grounds stated in the motion. It cannot be aided by allegations of fact, and, like a demurrer, admits all facts which are well pleaded for the purpose of the motion, and it raises the issue whether any ground for relief is stated." 55 C. J. S., Mandamus, p. 525, sec. 290.

*432 The affidavits and counteraffidavits accompanying the motion indicate that there are issues to be tried. It was therefore error to quash the writ. Since the question of whether a tax should be levied rests upon controverted facts, the court should allow an amendment of the petition to seek placement of the tax upon the next tax roll, and proceed with the litigation.

By the Court.Judgment reversed and cause remanded with directions to deny the motion to quash and for further proceedings in accordance with this opinion.

GEHL, J., took no part.