
    Hooker and another, Appellants, vs. Village of Brandon, Respondent.
    
      September 3
    
    September 21, 1886.
    
    
      Appeal: Order sustaining demurrer: Service of amended complaint.
    
    If, after a demurrer to the complaint is sustained, an amended complaint is served, the previous complaint is practically eliminated from the record, and an appeal cannot be taken from the order sustaining the demurrer. Sup’rs Douglas Co. v. Walbridge, 36 Wis. 643, distinguished.
    APPEAL from the County Court of Fond du Lae County.
    
      C. F. Hoolcer, for the appellant.
    
      Geo. F. Sutherland, for the respondent.
   By the Court.

Motion to dismiss the appeal. The action was brought to recover for the plaintiffs’ services as attorneys in several prosecutions for violations of the' excise laws within the defendant village, and also in an action brought by one "Whitton against the defendant, and for certain expenditures in all of said actions.

The original complaint was superseded by an amended complaint, which discloses the above causes of action. A demurrer to the amended complaint Avas sustained by the court, Avith leave to the plaintiffs to amend the same on payment of $10. The record does not contain this demurrer, but it was probably a general demurrer to the Avhole complaint. At least, it must be so regarded. The plaintiffs thereupon paid the $10, and served a second amended complaint, omitting therefrom the claim for sendees and expenditures in the excise prosecutions. After such service this appeal was taken by the plaintiffs from the order sustaining the demurrer to the first amended complaint.

The court is of the opinion that the appeal cannot be upheld. When the second amended complaint Avas interposed, the first amended complaint became functus officio. Practically, it was eliminated- from the record. It would not be restored thereto Avere this appeal entertained, and the order overruling the demurrer reversed. Hence the appeal would be fruitless in any event. The plaintiffs rely upon the case of Sup'rs Douglas Co. v. Walbridge, 36 Wis. 643, claiming that it lays down a different rule. But it does not. In that case a general demurrer to the complaint had been overruled, and it was held that the defendant did not waive his appeal from the order overruling his demurrer by interposing an answer to the complaint after such appeal had been taken. There the ruling of the trial court left the complaint intact, and the objection that it did not state a cause of action could properly be made at any time. The cases go upon the same principle Avhich hold that, on an appeal from a final judgment, this court will review an order overruling a general demurrer to a pleading. Arm strong v. Gibson, 31 Wis. 61; Tronson v. Union Lumbering Co. 38 Wis. 202; McKinney v. Jones, 55 Wis. 39.

Had the plaintiffs stood by their demurrer, and allowed final judgment to go against them upon it, on appeal from such judgment, the order sustaining the demurrer to their complaint would be reviewable. Such is the case of Moritz v. Splitt, 55 Wis. 441.

By the voluntary act of the plaintiffs, the second amended complaint has become the only complaint in the action, and they cannot maintain an appeal based (as is this appeal) upon an alleged erroneous view of a former complaint, which, because of such voluntary act, has disappeared from the case, or, at least, has ceased to have any significance therein.

The appeal must be dismissed.  