Franke v. Neisler

97 Wis. 364 | Wis. | 1897

NewMAN, J.

The appellants allege errors as follows: (1) A change of the place of trial should have been granted; (2) the court should have amended its records, on appellant’s motion, by filing a substituted affidavit in place of the one which was destroyed; (3) errors in the admission of evidence; (4) the assignment to the respondent Lap]) is not operative, because it is blank as to the name of the assignee; (5) judgment for deficiency could not properly go against Bertha Neisler; (6) the plaintiff was not an innocent purchaser for value; (7) the note and mortgage were not transferable; and (8) the findings of fact, the conclusions of law, and judgment are all contrary to the law and the evidence.

1. Keally, a change of the place of trial should never be granted unless some one wants it. The conduct of appellant’s attorney showed that he did not care for it. His conduct was an acquiescence in the suggestion of the court, and an abandonment of his purpose to ask for a change. The court did not refuse the application. The application was withdrawn, which it was competent for the appellant’s attorney to do. The whole record shows that no one understood that an application for a change of the place of trial was being urged upon the court. In this there is nothing of which the appellants can complain.

2. The amendment of the record in the respect proposed would not have changed the aspect of the question in the least.

3. If the findings are sustained by competent evidence, the admission of incompetent evidence is not error for which judgment will be reversed. It will be presumed that the court gave no weight to incompetent testimony which was received under objection. Hooker v. Brandon, 75 Wis. 8; Farr v. Semple, 81 Wis. 230; Rozek v. Redzinski, 87 Wis. 525.

4. A writing was not necessary to a valid assignment of the mortgage to Lapp. An interest in the debt might well be transferred to her without a written assignment. • The transfer of the debt carries the mortgage with it. 1 Am. & Eng. Ency. of Law, 835; Emmons v. Dowe, 2 Wis. 322, 361; Croft v. Bunster, 9 Wis. 503; Woodruff v. King, 47 Wis. 261; Lane v. Duchac, 73 Wis. 646, 654. But really there is no reason why this question should disquiet the appellants; It works no harm to them if Franke must divide his recovery with Lapp.

5. Judgment for deficiency should not go against the appellant Bertha Keisler. She was a married woman at the time of the execution of the note and mortgage. She is not shown to have had a separate estate. So she is not liable to a personal judgment for deficiency. But the error is purely technical, not substantial. If she in fact has no separate estate, the judgment, if entered, cannot well work her any detriment. Tet that part of the judgment must be reversed for the error. Winner v. Kuehn, post, p. 394.

6. It is not clear, on the evidence, how much knowledge Franke had of the transaction between the original parties to the mortgage. Apparently he knew that the old people bad given all their money to Ifeisler, and that be bad agreed to take care of them. It does not appear whether this agreement was absolute, or whether it was conditioned on the satisfaction of the old people with their treatment and the character of their maintenance. Nor is it conclusively shown that Jaehnig ever assented to the terms of the contract as written. His failure to deliver the copy to Keisler would seem to suggest that he did not intend to assent to or be bound by it. So it cannot be said to be clear, upon the evidence, that Franhe was not a "bona fide purchaser. At least, there is evidence which supports the finding.

7. On their face, the securities were transferable, which was sufficient to give title to a bona fide assignee.

8. All the' objections intended to be included in this om-nium gatherum specification of errors are believed to have been already sufficiently treated.

By the Court.— That part of the judgment appealed from which provides for a personal judgment for a deficiency against the appellant Bertha ífeisler is reversed. In all other respects the judgment is affirmed. The respondent is to have costs (Winner v. Kuehn, post, p. 394).