Flanegan v. Earnest

1 Chand. 149 | Wis. | 1849

Hub bell, J.

Flanegan sued Earnest and McCoun m the district court of La Fayette county, in a plea of trespass. The defendants pleaded the general issue, and also a special plea, setting up a judgment rendered by Dyer Divine, a justice of the peace, .and an execution issued thereon, under which a levy was made on the property in question; and averring that this was the same trespass alleged in the plaintiff’s declaration. The plaintiff filed a demurrer to the sjaecial plea, which was overruled by the court. The parties then entered into a friendly stipulation to submit all the matters in controversy to the decision of the judge ; and it was agreed, for that pur-pese, that the justice should testify as a witness, and that all the papers on file in his court should be admitted as evidence. Under this stipulation the testimony was given, the case argued by counsel, and the decision of the judge obtained thereon. Judgment of the court followed, and the case now comes here on a bill of exceptions and writ of error.

It seems to this court that it is now too late to bring up for its decision, questions arising on the pleadings before the submission and hearing by stipulation. We should be needlessly encouraging litigation and unwarrantably consuming our own time, if not indeed doing positive injustice to the defendants in error, if we should consent to examine mere questions of law which arose in a case prior to a full and apparently fair trial, upon the merits, had by the voluntary consent of the parties. As far as we have been able to understand the stipulation entered into in this case, it was the intention of the parties to have a final disposition of the matter in the district court. If such was not their purpose, they were unfortunate in the language employed to express their design. And it is a well-settled rule of law, that when matters of fact are submitted to the decision of the court, acting in the capacity of a jury, a writ of error does not lie to reverse or correct any error in its judgment upon the facts. In this view of the case, the present writ of error cannot be sustained. Since, however, the sufficiency of the special plea was brought to the notice of the court upon the argument, it may be proper to remark that, if the case had been brought up on the grounds stated in the demurrer, the ruling of the court below would have been held erroneous. The special plea was defective in several material particulars. Although enough was probably set forth to show the jurisdiction of the justice in the original action of assumpsit — that being mere inducement to the subsequent proceeding under the statute relating to garnishees — still, no facts are set forth to show the right of the justice to entertain this proceeding.

The plea should have averred no property found, or not sufficient to satisfy the execution, and that the officer, upon the demand of the plaintiff, did summon in writing the garnishees named by him, etc. Without the existence of these facts, the proceedings would not be authorized by the statute (Stat. Wis. 332, § 9), and the justice would have no jurisdiction.

Again: The defendants, by their plea, did not sufficiently connect themselves with the levy under the execution against Nicholas Flanegan. It was not enough to set forth that Coffey, as constable, had an execution and made a levy in a case in which they were named as plaintiffs, and that this was “ the same trespass complained of in the plaintiff’s declaration ; ” but it should have been averred, that if the property was taken at all, it was done by them under and by virtue of such execution, or by authority of the constable having the same, and with full legal right, and that such taking constituted the “ trespass complained of,” etc.

Again: The mode of entering judgment against the garnishee by default, as set forth in the plea, would be irregular and bad. It has probably been the loose practice of many justices of the peace, on the return of a summons regularly served, and the failure of the garnishee to appear, to enter judgment against him by default, in conformity, as is supposed, to the strict letter of the statute. But such proceedings are oppressive and illegal. Judgment can properly be entered against no person withou^t, competent proof of a legal liability. Judgment against garnishees must be taken “ as in ordinary cases,” and that is when the case is made out on satisfactory evidence. Notwithstanding non-appearance and default, the indebtedness of the garnishee to the defendant in the principal case, must be proved as clearly as that of the defendant in the first instance, and without such proof, the judgment might be reversed for error.

These remarks are made for the purpose of establishing general principles of practice, and not with a view to their bearing upon the present case, which is decided, as has been stated, upon other grounds.

Judgment affirmed, with costs.