170 Wis. 477 | Wis. | 1920
The defendant’s first position, as we understand it, is this: It appears upon the face of the notes that they were given by the Mobile Ploe Company as a part of the purchase price for certain machinery sold by the plaintiff to it, the title to which was reserved in the plaintiff until the full amount of the notes should be paid; the defendant, being the indorser of the notes, is entitled fo be subrogated
An analysis of his position amounts to this: he admits that he indorsed the notes, but claims that the institution of a suit against him to enforce his liability as an indorser releases him. That is the sum and substance of his claim, his contention being that a vendor of goods, upon a contract of a conditional sale, must elect whether he will retake the goods or sue for the purchase price, and that when he resorts to one of these remedies he waives his right to resort to the other; in this case the plaintiff, having brought an action to recover against the indorser of the note, waived all security which the contract of conditional sale afforded him, and that by such waiver the indorser is released, because he cannot be subrogated to the security which was in the hands of the creditor. This argument leads to an absurdity which scarcely calls for elucidation, and makes the undertaking of an indorser under such circumstances a rather innocuous formality. We think a court should hesitate in adopting a course of reasoning which leads to such.a farcical conclusion. However, we do not deem it necessary to pursue the subject further, because of the faulty premise upon which the conclusion must rest, and that is, that a vendor of goods upon a contract of conditional sale waives
It is defendant’s second contention that it was incumbent upon the plaintiff to plead in its complaint its ability and readiness to turn its security over to the defendant upon the payment of the notes in question. In other words, that its ability and readiness in that behalf was a condition precedent to its maintenance of this action, and that, not having pleaded in this respect, the complaint fails to state a cause of action, and that the judgment finds no support in the record. The law unquestionably is that a surety who pays the debt of his principal is entitled to be subrogated to the security held by the creditor against the principal debtor. Plankinton v. Gorman, 93 Wis. 560, 67 N. W. 1128; Lowe v. Reddan, 123 Wis. 90, 100 N. W. 1038; State Bank v. Michel, 152 Wis. 88, 139 N. W. 748, 1131. It is also the law that the voluntary surrender on the part of the creditor of security which he holds against the prim cipal debtor discharges the surety pro tanto. Ibid. But in order to state a cause of action against the surety it is not necessary to allege that the security originally taken is still
In Knoblauch v. Foglesong, 37 Minn. 320, 33 N. W. 865, in an action upon a promissory note, where the answer admitted the note and alleged that the note was secured by a mortgage executed to plaintiff by defendants upon real estate belonging to them, and that after the execution of the note and mortgage they conveyed the real estate to another, who, in consideration thereof and as a part payment of the purchase price, thereupon assumed the payment of the note and agreed to pay and discharge the same; and the answer alleged defendants’ willingness to pay, and offer to pay, the note upon the assignment by plaintiff to them of the mortgage and the indorsement and delivery to them of the note, and demanded that plaintiff have no judgment until he shall have deposited in the court, to be delivered to defendants upon payment by them of the judgment, the mortgage duly assigned to them, and the note duly indorsed to them, it was held that the judgment might properly so provide. But it ■ was held to the contrary in Barton v. Moore, 45 Minn. 98,
As above stated, defendant has also appealed from the order of the circuit court denying his motion that the civil court of Milwaukee county be ordered to grant a new trial in said action. Clearly the motion was properly denied. The circuit court for Milwaukee county is vested with no authority to make such an order. The power of the circuit court in the premises was to affirm, or modify and affirm, the judgment of the civil court, .unless by reason of manifest prejudicial error in the trial of the action in which such
The most liberal power possessed by trial courts to grant a new trial is that conferred by the provisions of sec. 2879, Stats., to grant a new trial upon newly discovered evidence when a motion therefor is made within one year from the verdict or findings. This motion was not made until nearly two years had expired after the date of the findings. Neither was it made in the court that tried the case. We know of no statutory provision that can be stretched into anything like a sanction of such procedure.
It is urged that under the provisions of sec. 2405m, Stats., this court has power to reverse the judgment and remand the case with instructions to grant the motion. That section authorizes this court, where it appears from the record that the real controversy has not been fully tried, or it is probable that justice has for any reason miscarried, to reverse the judgment or order appealed from regardless of the question whether proper motions or objections or exceptions appear in the record or not, and in case of a reversal direct the entry of the proper judgment, or remand the case to the trial court for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court not inconsistent with the statutes governing legal procedure as shall be deemed necessary to accomplish the ends of justice. It would be a perversion of the purpose of that statute and a clear abuse of the power granted this court to give it the construction tirged. This court has no power to confer power upon inferior courts. Their power must be derived from the constitution and the statutes. True, sec. 2405m confers upon this court broad discretion in the matter of making disposition of cases pending before it, but tha,t section does not authorize this court to vest inferior courts with additional powers, nor can
By the Court. — Judgment and order affirmed.