
    Smith and others vs. Whitney and others, impleaded, etc.
    
      Judgment on default of answer, no cause of action being stated in complaint.
    
    A defendant against whom, judgment is taken in default of an answer, may still object, on appeal, that no cause of action was stated in the complaint.
    APPEAL from the Circuit Court for Jefferson County.
    
      Cary £ Pratt (with Jno. W. and A. L. Cary, of counsel), for appellant.
    
      Levi Hubbell, for respondent.
   DixoN, C. J.

This appeal involves the same question presented and decided on the appeal of Weage and Palmer, two other defendants, from this same judgment, with this difference only, that there the defendants Weage and Palmer appeared and answered, and took the objection in the court .below that the complaint stated no cause of action against them. See Smith et al. v. Weage et al., 21 Wis., 440. Here defendants, who were brought in under the’ same order, did not appear, but allowed judgment to go against them by default. The question is, whether they can now take advantage of the fact that they are not named as parties defendant in the complaint, and that no cause of action is stated against them. The majority of the court is of the opinion that they can. Justice PaiNE thinks the objection open to the defendant on appeal in all cases where he has not appeared and waived it by not taking tbe proper exception in the court below. He therefore thinks that the case of Thurber v. Jones, 14 Wis., 16, was correctly decided. In this opinion Justice Cole concurs. On further reflection, I am not quite satisfied that I was right in the views which I expressed of that' case in my dissenting opinion in K-v. H-, 20 Wis., 245. What I there said was not necessary to the decision of the case as I thought it ought to be decided; and it is no doubt better that questions of practice of this nature, once settled, should remain undisturbed, than that they should be overturned, even though there may have been some error in their settlement.

By the Court. — Judgment reversed.  