43 Wis. 613 | Wis. | 1878
I. The stipulation entered into by tbe parties in open court effectually consolidated these causes, and they should have been tried as one, which would have resulted, of course, in one finding and one judgment. In no other way could full effect be given to the stipulation and to the order entered upon it. It is true, the stipulation provided that the consolidation should not affect the question of costs, but that the costs might be taxed by the prevailing party in the same manner as though the order ]jad not been made. It is not necessary to determine precisely what was intended by the clause in respect to costs; but certainly, for the purposes of trial and judgment, the actions were consolidated into one, and should have been so treated. The three separate findings and judgments were therefore, under the circumstances, irregular and erroneous.
II. We are inclined to hold that there was an abuse of discretion on the part of the circuit court in refusing to permit the defendant to amend its answer by setting up the statute of limitations as to all the tax certificates. In this regard the case, we think, stands upon somewhat different grounds from an action between individuals. As between individuals we have held that there was no abuse of discretion in refusing to allow the defendant to amend his answer by pleading the statute of limitations (Fogarty v. Horrigan, 28 Wis., 142; Eldred v. Oconto Co., 30 id., 206; Meade v. Lawe, 32 id., 262), placing this defense upon the same ground as that of usury, which is often denominated an unconscionable one. But, as was observed by Dixon, C. J., in Orton v. Noonan, 25 Wis., 676, there should be some discrimination upon the subject, and much depends on the nature of the action. Where the action is against a county, founded upon stale tax certificates,
It was claimed by the learned counsel for the county, that an action on the tax certificates was absolutely barred and prohibited by sec. 1, ch. 112, Laws of 1867, as amended by ch. 56, Laws of 1868. The language of the statute, he says, is negative and prohibitive, that “ no action either at law or in equity shall be commenced on such certificate after the expiration of six years from the said day of sale,” with certain ex
III. Some of the tax certificates in question were neither issued nor assigned to the plaintiff, and upon principle there could be no recovery upon them. The certificates should at least be assigned by the purchaser writing his name in blank on the back thereof, as provided in sec. 54, ch. 22, Laws of 1859, in order to enable the holder to maintain the action. It is true, in the amendment to sec. 26 of that chapter (ch. 68, Laws of 1870), the word “assignee” has been dropped. But still we have held, in the case of Hyde, Adm’r, v. Sup’rs of Kenosha Co. [ante, p. 129], that an assignee might recover upon the certificate when properly assigned to him.
By the Court. — The judgments in the above cases are reversed, and the causes are remanded for further proceedings according to law.