Cappon v. O'Day, 165 Wis. 486

Cappon v. O'Day

165 Wis. 486 | Wis. | 1917

Rosenberry, J.

It is claimed (1) that the description of the property in the chattel mortgage is insufficient to make the mortgage a valid instrument; (2) that the court erred in holding incompetent the evidence of the agreement between the mortgagors and the mortgagee as to the right of the mortgagors to sell and replace the property described in the mortgage; and (3) in refusing to submit to the jury the question whether before this action was commenced plaintiff’s claim was discharged and satisfied.

The question as to whether or not the chattel mortgage was filed as required by secs. 2313 and 2314, Stats., so as to be valid as against third parties, was not raised in the court below. It appearing from the undisputed evidence, however, that the mortgagors resided in the city of Milwaukee at the time of the execution of the mortgage and that only one of *490the parties resided in the town where the mortgage was recorded at the time it was recorded, this court npon its own motion required briefs to be filed on the following question:

“Was the filing of the chattel mortgage given by Silber and Scheer, mortgagors, dated December 10, 1913, in the town of Sigel, Wood county, Wisconsin, a sufficient filing to make the same valid as against third parties, under secs. 2313 and 2314, Stats. V’

Such supplementary briefs have been filed. Uo claim is made that the facts are other than as stated, nor is there any claim that the mortgage was ever filed in the city of Milwaukee.

Respondent claims in his supplementary brief that, the question of the validity of the mortgage not having been raised, the record -is conclusive upon this court, and for this court to now consider the question would amount to a perpetration of a gross wrong and hardship upon the plaintiff and imposition upon the trial court.

We cannot agree with this contention. This court sits-here to do justice between litigants. For the purpose of orderly administration and the attainment of justice certain; rules are established. Any rule the enforcement of which results in a failure of justice should be carefully scrutinized and not blindly adhered to, unless the abandonment of it will work more injustice than will follow if it be adhered to. One of the rules of well nigh universal application established by courts in the administration of the law is that questions not raised and properly presented for review in the trial court will not be reviewed on appeal. 3 Corp. Jur. 689. The reason for the rule is plain. If the question had been raised below, the situation might have been met by the opposite-party by way of amendment or of additional proof. In such circumstances, therefore, for the appellate court to take up and decide on an incomplete record questions raised before it for the first time would, in many instances at least, result in great injustice, and for that reason appellate courts ordinarily *491decline to review questions raised for the first time in the appellate court. But to this rule there are many exceptions. Questions as to the jurisdiction of the court may he raised. Telford v. Ashland, 100 Wis. 238, 75 N. W. 1006. Questions as to the legal effect of a deed or other instrument may be raised for the first time in this court. Hartung v. Witte, 59 Wis. 285, 18 N. W. 175; Nightingale v.. Barens, 47 Wis. 389, 2 N. W. 767. There are numerous other exceptions. 3 Corp. Jur. 740. No question of the power of this court is involved. Whether this court should review a question raised here for the first time depends upon the facts and circumstances disclosed by the particular record. It undoubtedly has the power, hut ordinarily will not exercise it. The question is one of administration, not of power. The statements in Will of Brandon, 164 Wis. 387, 160 N. W. 177, and Ritter v. Ritter, 100 Wis. 468, 76 N. W. 347, to the effect that questions not brought up in the court below' cannot be considered here, must be considered as statements of the general rule to which there are exceptions as here indicated.

In this case the question as to the validity of the mortgage has been fully argued. It is not claimed that the facts do not fully appear. The record is complete. If it were not, we should feel it our duty to remand the record and order a new trial in accordance with the provisions of sec. 2405m, Stats.

“Section 2313. No mortgage of personal property shall be valid against any other person than the parties thereto unless the possession of the mortgaged property be delivered to and retained by the mortgagee or unless the mortgage or a copy thereof be filed as provided in section 2314, except when otherwise directed in these statutes. . . .”

“Section 2314. Every mortgage of personal property or a copy thereof may be filed in the office of the clerk of the town, city or village where the mortgagor resides, or in case he is a nonresident of the state then in the office of the clerk of the town, city or village where the property mortgaged may be at the time of the execution of such mortgage; . . .”

It is undisputed in this case that the mortgagors at the *492time of the execution of the mortgage resided in the city of Milwaukee and that the chattel mortgage was never recorded in the city of Milwaukee. ' In order to meet the requirements of secs. 2313 and 2314, Stats., so as to make the mortgage valid as against third parties, it must he recorded in the office of the clerk of the town, city, or village where the mortgagors reside at the time of its execution, and if the mortgage is executed by two or more persons residing in different towns, cities, or villages it must be recorded in the office of the clerk of the town, city, or village in which each of the mortgagors resided at the time of the execution of the mortgage. A mortgage recorded in a town to which one of the mortgagors subsequently removes is not properly recorded, and neither does the removal of the mortgagor to the town where the mortgage-is in fact recorded, but improperly so, make the mortgage valid as to third persons. That such was the intention of the legislature seems clear from the history of the statute, and the construction that has heretofore been placed upon it by this court points the same way. First Nat. Bank v. Biederman, 149 Wis. 8, 134 N. W. 1132; Bailey v. Costello, 94 Wis. 87, 68 N. W. 663. Such construction is in accordance with the great weight of authority elsewhere. Jones, Ohat. Mortg.. (5th ed.) §§ 250, 251a; Pingree, Chat. Mortg. § 362; 2 Cob-bey, Chat. Mortg. § 573; In re Nuckols, 201 Fed. 437; Burtank v. Robek, 157 Ky. 524, 163 S. W. 457; Burlington State Bank v. Marlin Nat. Bank (Tex.) 166 S. W. 499; Hales v. Zander, 24 Okla. 246, 103 Pac. 669; Lasswell v. Henderson, 144 Mo. App. 396, 128 S. W. 789; Fife v. Ohio Inv. Co. 52 Ind. App. 108, 100 N. E. 392.

Not having been filed in accordance with the terms of the statute, we are clear that the chattel mortgage in question was void as to third parties, and the consideration of other questions becomes immaterial.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.