
    Sprague and wife, Respondents, vs. Maxcy and wife, Appellants.
    
      September 8
    
    September 27, 1904.
    
    
      Frivolous demurrer: Appeal: Double costs.
    
    A demurrer to the complaint in an action for partition of land is held frivolous; and upon affirmance of the order overruling, such demurrer double attorney’s fees are allowed as costs to the respondents.
    Appeal from an order of the circuit court for Bayfield county: JohN K. Parish, Circuit Judge.
    
      Affirmed.
    
    Appeal from order overruling demurrer to the complaint, which alleged that plaintiff is the owner in fee and in possession of an undivided half of specified premises; that the defendant is the owner of an undivided half of said premises that the other parties are the respective wives of said owners; that no one except the parties have any interest in said lands; and that parties have no other estate jointly or in common. The prayer was for partition, including sale if necessary. The demurrer was general.
    
      Eor tbe appellants tbe cause was submitted on tbe brief of A. W. McLeod.
    
    
      John Walsh, for tbe respondents.
   Dodge, J.

Tbe demurrer in tbis case is so without foundation as to force conviction of frivolity and of some purpose of obstruction or delay. Tbe only contention in appellants’ brief is that tbe character of the title of tbe parties is not sufficiently alleged; especially that tbe complaint is lacking in assertion that plaintiffs have an estate in possession. It is difficult to imagine a more categorical allegation of tbis fact than that they are owners in fee and in possession. Tbe standing of appellants’ counsel precludes tbe idea that be could have seriously believed or advised that tbe sufficiency of tbis complaint was even doubtful, or that either counsel or clients could have interposed tbe demurrer or prosecuted tbis appeal in tbe good faith which both owed to tbe court; indeed to tbe plaintiff. In such situation, we should not perform our full duty by merely affirming the order overruling the demurrer. Due regard for tbe ethics of litigation requires that we enforce tbe penalty authorized by sec. 2951, Stats. 1898.

By the Oourt. — Order overruling demurrer is affirmed. Double attorneys’ fees will be taxed as costs^ against tbe appellants.  