15 Wis. 265 | Wis. | 1862
By the Court,
We have frequently decided that in equity cases, tbe finding of facts by tbe court below was not conclusive, but that we would look into tbe testimony and determine what facts were established by it. This must beso, since tbe constitution gives this court appellate jurisdiction of cases at law and equity, and by tbe well established rules of practice, tbe appellate court reviews tbe evidence in equity causes in tbe same manner as tbe court of original jurisdiction. In common law cases tbe rule is otherwise. And therefore the position of tbe counsel for tbe respondent is not correct, that we must assume that tbe facts
Nor do we deem it necessary tbat there should be, in such a case, a motion for a new trial, in order to give tbis court a right to review tbe evidence. The cases cited by the counsel to this point were actions at law, and are therefore inapplicable to tbe one at bar. It is our duty then to go behind tbe finding of tbe circuit court, and determine for ourselves what facts are satisfactorily established by tbe testimony in the cause. And we are unable to agree with the circuit court in the conclusion, tbat tbe evidence shows tbat after tbe giving of the Chaffee note which is mentioned in tbe case, an agreement was made between tbe appellant and Bichard Lee, by tbe terms of which tbe latter was to surrender up to the former tbe real estate which he had purchased and held a contract for, with what improvements he had made thereon, and tbat in consideration thereof the appellant agreed to pay the note which he and Bicha/rd Lee bad given Chaffee. It is true there is some testimony in the case tending to show that some such agreement was made, but to our minds it is very slight and unsatisfactory. Tbe respondent Bichard Lee says, in a very confused and halting way, tbat such an agreement was made. His son William and daughter Betsy testify to bearing some conversations between their father and tbe appellant, in which Belch proposed or said to Lee, if he would give tbe land back, be, Fetch, would see tbe Chaffee note straightened up or paid. But it must be admitted tbat even tbis testimony in regard to conversations and admissions made by tbe parties, is exceedingly indefinite and unreliable. It is certainly subject to more than the usual degree of imperfection and weakness belonging to that kind of testimony, because the witnesses do not pretend to have beard or understood all tbe conversation between tbe parties. We therefore think it is entitled to but little weight under tbe circumstances.
On tbe other band, tbe appellant swears most positively
It is a conceded fact in the case that Fetch signed the Chaf-fee note merely in the character of surety. He was not, then, primarily bound to pay it as between him and Richard Lee. The latter was the principal debtor. It appears that Chaffee afterwards obtained judgment on the note and was proceeding to enforce collection of the judgment by execution. Some three hundred dollars worth of personal property belonging to Lee was seized in execution and advertised for
It follows from this that the appellant was entitled to an injunction restraining the collection of the judgment mentioned in his complaint.
The judgment of the circuit court must therefore be reversed, and the cause remanded to the circuit court with directions to grant the appellant the relief asked for in bis complaint.