Gage v. Allen

89 Wis. 98 | Wis. | 1894

PiNNEY, J.

1. The judgment in the replevin suit was that the plaintiffs were entitled to possession of the goods replevied in their action against "Wayland; that they were of the value of $1,000; directing the sheriff and under-sheriff to deliver the.same to the plaintiffs; and that they recover $224.31, costs of the action. It does not appear that this judgment has ever been reversed. The delivery of the goods by the sheriff to Allen, and their receipt by him, was a wrongful act on the part of all concerned in it, for the goods were in the custody of the court to answer the judgment that might be rendered in the action. There was no law authorizing such delivery or the execution by Allen and his sureties of the undertaking upon which the delivery was made. It is not necessary to now determine whether the plaintiffs’ remedy to realize their judgment against the defendants in this action was for the wrongful delivery and receipt of the goods, or upon the bond given by Allen and his sureties, on the ground that they might waive the tort and avail themselves of the bond. When Allen paid the $600 it is perfectly clear that he knew that the plaintiffs claimed the goods or their value as adjudged in the replevin action, and that he believed he and his sureties were liable for it. ITis own evidence, and the written notice he received from the attorney of the plaintiffs, and the receipt he received, place this matter beyond dispute. He was asked by the notice to deliver the goods to the plaintiffs’ attorney, or pay him their adjudged value; and express reference was made to the judgment by its date and the court in which it was entered, and the notice was entitled in the replevin action in which it was rendered. He had no right to draw any inference that the claim was other or different, for there is no plausible pretext that there was room for such idea or inference. He considered the matter, and consulted an attorney about it, and they after-wards met the plaintiffs’ attorney, in his store, in respect to the matter, and he “paid the $600 under the agreement expressed in the receipt, and because he understood that he and Kepler and Brimi, his sureties, were liable on the bond they had given,” and with the understanding that no further proceedings should be taken therein for the balance of said judgment for at least sixty days, etc., and with the statement that $182 more would satisfy the judgment; and though the payment was made without prejudice to any rights said Allen may now have, and that no other creditor should be allowed in any way to use said judgment, yet there is nothing to show that Allen had, or has now, any right to be excused from payment of the demand made against him. There is no ground for saying that the payment was procured by fraud or misrepresentation, and not the slightest reason for saying that, when it was made, Allen did not know all the facts as well as the plaintiffs or their attorney. The most that can be said is that he, and the attorney he consulted as well, were in doubt as to the law; and if any mistake was made at ah it is quite plain that it was a mere mistake of law, which it will not be contended would afford Allen any ground for the recovery of the money. It must be held that the payment of the ,$600 was voluntary, without mistake of fact, and cannot be recovered back. The court erred in directing the verdict, and it is without evidence to support it. The judgment rendered thereon in favor of Allen and against the plaintiffs must be reversed.

2. It was contended that, in consequence of the appeal then just taken from a judgment in favor of the defendants on the first cause of action only, the circuit court, during its pendency, had no right to try the case upon the second cause of action and the counterclaim just noticed. It will be seen, by reference to the report of the case when it was here on a former occasion (84 Wis. 823), as well as the foregoing statement, that the parties, through their attorneys, had so managed as to practically get the action divided into two sections, and judicial action on them was not coincident. It was held on that occasion that there could be but one final judgment in the action, and that a judgment upon one part or section only was erroneous and would be reversed. The case was in such an anomalous condition that, while a trial and adjudication upon one part of the case only 'would be error, we cannot say that the trial of the second cause of action and counterclaim, under the circumstances, was without jurisdiction. The plaintiffs did not offer any evidence in support of their complaint, and no evidence was offered in relation to it by the defendants. There is no finding by the jury in respect to it, and yet there is a judgment in favor of all the defendants thereon, or what may perhaps be considered as a judgment. It recites, evidently as a finding by the court, that the defendants Gosgrove and Dwm, interposed. a separate answer which raised a separate, independent, substantial, and proper defense; that the defendants BrvmiwA Kepler and the defendant Allen interposed such defenses separately; and that “ it appearing to the satisfaction of the court, by the pleadings, evidence, and admissions, that all the allegations of the answers are true,” and, reciting the verdict, the court rendered judgment in favor of the defendant Allen for the amount of the verdict and costs against the plaintiffs, in favor of the defendants Brimi and Kepler for their costs, etc., and in favor of the defendants Cosgrove and Btmn for their costs and disbursements. The plaintiffs having failed to proceed to trial under their complaint, or to produce any evidence under it, the court could have properly dismissed their complaint, but had no right to proceed to pass upon the merits of their case, either with or without evidence offered by the defendants, and without any finding by the jury, and we think that the judgment in these respects was erroneous and prejudicial to the rights of the plaintiffs, and that there should be a new trial.

3. After discussing the merits of the appeal quite fully, the question was briefly argued whether this appeal was not barred by the dismissal of a previous appeal taken from the same judgment for want of prosecution (R. S. sec. 3040), and Estey v. Sheckler, 36 Wis. 434, and other cases for and against the contention, were cited. This appeal is regular and fair on its-face, and the objection does not go to the jurisdiction of the court, but rather to bar the exercise of jurisdiction, already acquired. No motion was filed raising the objection. The rules of practice, which are the law of the court, require (Rule II) that “ all motions shall be in writing . . . and notice of the time of making the motion must be served on the opposite party at least eight days before.” While objections that are jurisdictional may be raised orally at the argument, this practice does not extend to motions to dismiss an appeal for irregularity or for any matter which may be urged in bar of an appeal. As to all such cases, the motion must be in writing and regularly noticed. The objection relied on was not regularly and properly presented, and it cannot, therefore, be considered.

JBy the Court.-— The judgment of the circuit court appealed from is reversed, and the cause is remanded for a new trial.