99 Wis. 598 | Wis. | 1898
The following opinion was filed March 22, 1898:
After the undertaking in this case had been served, defendants duly excepted to the sufficiency of the sureties. Notice was given that the sureties would justify before a commissioner. Both parties appeared, and upon .the examination it was found that one of the sureties was
The motion must be denied. Consent that the new surety might sign the old undertaking is a waiver of any irregularity in the mode of procedure. Motion to dismiss the appeal is denied, with $10 costs.
The facts were as follows:
Prior to April, 1892, one "Whigam was the owner of a mortgage on W. £ of S. W". -J, section 23, and E. of S. E. section 22, township 32, range 11 W., executed to him by Ole P. Engen and wife, for the sum of $1,000. Whigam employed J. F. Ellis as his attorney to foreclose said mortgage; and on April 19,1892, a judgment of foreclosure was entered for $1,271, principal and interest, and $160.12, solicit- or’s fees and costs. W. II. Ellis, a brother of J. F. Ellis, •was named as referee in the judgment to make sale of the mortgaged premises; and on August 31, 1894, he made a sale of the same, and caused them to be bid off in the names of Whigam and Elizabeth A. Ellis for $1,729.83, the latter being a sister of J. F. and W. H. Ellis, and a deed to them jointly was made, and the sale duly confirmed. No money was paid at the time of the sale, and the amount for which the premises were sold was the amount due for principal, interest, and costs on the judgment at that time. Afterwards, and on May 23, 1895, the Southwestern Land Oomjpany purchased Whigam’s interest in the property; but the purchase price was paid by the defendant E. W. Allen, and the title was taken in his name as security for the money advanced by
The defendants answered, denying that plaintiff had any interest in the land, and alleged that the claim for services of J. F. Ellis in said foreclosure case, and for expenses incurred therein, had been duly sold and assigned to the Sotcth-western Land Company, after the entry of judgment, and before the sale. By way of counterclaim, they set up the facts as before stated, and alleged that the taking of the title at the foreclosure sale as aforesaid was without the knowledge or consent of Whigam, and was so taken in fraud of bis. rights; that plaintiff paid no part of the consideration at such sale, and had no interest, in fact, in said lands. They asked to have the apparent interest of plaintiff adjudged void, and that the title to said lands be declared in the defendant E. W. Allen.
The case came on for trial before the court, and the findings of the court are substantially as stated and as claimed by the defendants, and judgment was entered accordingly. Plaintiff moved for a new trial upon affidavits, claiming that Whigam was a material witness, and that she had not been able to secure his deposition; that she could prove by him that the title to the lands at the foreclosure sale was taken jointly in the name of plaintiff and Whigam by his express consent. The court denied the motion. Objections were made by plaintiff to certain items of disbursement mentioned in' the opinion. The plaintiff appeals from the judgment and order denying a motion for a new trial.
Eor the appellant there was a brief by H. G. Ellsworth, attorney, and J. F. Ellis, of counsel, and oral.argument by J. F. Ellis and F. J. Lamb. To the point that, since both parties derived their title from the same foreclosure judgment, sale, deed, and order of confirmation, neither could question its validity, they cited Tucker v. Whittlesey, 74 Wig.
For the respondents there was a brief by Wickham <& Farr, ■and oral argument by James Wickham.
The following opinion was filed May 24, 189S:
BardeeN, J. We do not care to enter upon any very prolonged discussion of the facts involved in this case. The findings of the trial court are so manifestly correct, and so amply supported by the testimony, that no useful purpose would be answered thereby. The plaintiff claims to be the owner of an undivided one-half interest in the premises in question. Her pretended claim of ownership is based upon the fact that her brother, an attorney, performed services for "Whigam in foreclosing a mortgage on the same. His claim for services and disbursements was something less than $200. At the foreclosure sale, the referee, another brother of the plaintiff and her agent, caused the property to be bid off in the names of plaintiff and Whigam, the mortgagee. The plaintiff paid no money at the time, and had no interest in the premises or in the mortgage. The plaintiff was not a witness at the trial, but it was attempted to support her claim to the land by showing that her brother J. F. Ellis owed her for housekeeping, and had transferred to her his claim for services in the foreclosure suit.
We cannot view this feature of the case with any sort of patience. The attempt to secure a one-half interest in a farm, which sold at foreclosure sale for over $1,700, upon a claim resting upon so flimsy a foundation as this, is well calculated to test even judicial patience. The bidding off of the land in the manner noted was a wholly unwarranted
It is further urged by plaintiff that, the legal title being in controversy, the court ought to have sent the parties to a court of law to settle their dispute, as was suggested in Deery v. McClvntoele,, 31 Wis. 195, and other cases in this court. So far as we are aware, in all of the cases bearing upon this question the objection to the jurisdiction of the court was asserted by the defendant. But here we have a plaintiff planting herself in a court of equitjq with an answer served that contests her title, and after the whole question
Plaintiff objects to an item of $11.90 witness’ fees, taxed by defendants for one Schultz. The taxation is supported by the usual affidavit of disbursements. Opposed to this is an affidavit of W. H. Ellis, who says that “ he is informed and believes ” that said witness was paid nothing to attend the trial, and was not subpoenaed. Thefitem was properly 'allowed. The same may be said of the item of $5.52 for telegraphing. The affidavits printed upon which the motion for a new trial was made fail to show any good reason why the case should have been reopened. Several other objections to the findings were raised, but they are so unsubstantial that we do not deem it necessary to review them at length.
By the Gowrt.— The judgment of the circuit court is affirmed.