Carrier v. Carrier

71 Wis. 111 | Wis. | 1888

Lyon, J.

The verdict and judgment leave wholly undetermined the issue made by the pleadings as to the right to the possession of the property not included therein. This is an irregularity fatal to the judgment. LTo rule is better settled than that the verdict and judgment must dispose of all the issues involved in the action, and the right to the possession of the property not included therein is one of those issues. Ronge v. Dawson, 9 Wis. 246, and numerous cases there cited.

It was argued on behalf of the plaintiff that, because the omitted property had not been taken from the possession of the defendants, the omission thereof is immaterial. We cannot concur in this view. In replevin both parties are actors, and the defendants may justly insist that their right to the possession of the omitted property be established by the verdict and judgment. Young v. Lego, 38 Wis. 206, holds this doctrine. In that case the omitted property had not been replevied, but remained in the hands of the defendant, yet the judgment was reversed because of the omission. The fact that Young v. Lego arose in a justice’s court is immaterial. The rule above stated extends to all courts having jurisdiction of the action of replevin. In the present case the verdict should have been that the defendants were entitled to the possession of the .omitted property, and the judgment should have followed the verdict. An argument is based upon the omission of the defendants to claim in their answer a return of the property. Timp v. Dockham, 32 Wis. 146, is authority that such omission has no significance.

There is another defect in the judgment.' Six horses were claimed, and the plaintiff recovered only five of them. Also two lumber wagons were claimed, and the plaintiff recovered but one of these. The horse and wagon not so recovered are not sufficiently identified to inform the sheriff serving an execution, or defendants, which of the horses and which of the wagons were thus omitted. This defect alone is probably a sufficient ground for a reversal of the judgment.

By the Court.— The judgment oif the circuit court is reversed, and the cause remanded for a new trial.