Getzlaff v. Seliger

43 Wis. 297 | Wis. | 1877

Ryan, C. J.

The appellants, husband and wife, sever in their answers. Both answers are inartificially drawn; each assuming to plead duress of the wife. It may be doubted whether the wife’s answer properly does so; but the husband’s answer must be taken as sufficient.

The record is obscure and unsatisfactory. As far, however, as we are able to ascertain the facts froth it, it appears that a prosecution was instituted against the husband for bastardy, on complaint of the mortgagee’s daughter; that after the examination, the husband was, in default of bail, committed by the justice to answer the complaint in the circuit court; that while he was in jail upon the commitment, a settlement was effected for the discharge of the husband, upon his making a payment and executing the mortgage in suit to the girl’s father; that the justice assumed to act in the settlement in his official capacity, and, upon its being effected, gave an order for the release of the husband.

As to the justice, his whole proceeding after he had committed the husband, appears to have been quite lawless. When he had committed the husband, he was functus officio in the case. The jurisdiction of the proceeding was thenceforth in the circuit court. All jurisdiction of the justice, all his authority, was exhausted. And if the sheriff discharged the husband from custody upon the justice’s order, he was guilty of an escape.

While the husband was before the justice prior to the committal, the parties might have made a settlement, subject to the approval of the supervisors, to be entered upon the justice’s docket of the prosecution then pending before him; and thereupon, if the husband had given a satisfactory bond of indemnity to the supervisors, the justice should have discharged him. That is the only settlement upon a proceeding for bastardy, in relation to which the justice has any authority.

We need not hold here, and do not hold, whether, after an accused under the bastardy act has been held to bail or committed to answer the complaint in the circuit court, the parties may not still settle, as they might have done before, subject perhaps to the approval of the circuit court; but, even in that case, the proceeding is not discharged; and the accused would not be entitled to his discharge in the circuit court, until he should indemnify the supervisors to the satisfaction of the court. And any interference of the justice, in his official capacity, in the settlement, would be a usurpation of authority, an unwarrantable and vicious interference colore officii.

Such appears to have been the character of the interference of the justice in the present case, so far as the record discloses it. And it called for rigid scrutiny of the court below on the trial. We do not say, for we do not know, that it was such as could be held duress of the wife. But, the husband being in custody, and the wife in the condition which she states in her answer, it might well be so. And the wife should have been permitted to state the circumstances under which she executed the mortgage. The justice was permitted to state them according to his view; and we cannot understand on what principle the wife was not. Her full statement- of them should have been received.

The legal title of the mortgage is undoubtedly in the respondent-. But there is no finding of the court below that he was a bona fide purchaser, for value, without notice. And we hardly think that the evidence would warrant such a finding. But, in saying this, we reject the testimony of the attorney who conducted the prosecution against the husband; was afterwards employed by the mortgagee to draw the assignment of the mortgage to the respondent; and finally appeared for the appellants on the trial below. ¹ Such shifting of retainer, on the same subject matter, is essentially suspicious. And when this person appeared as a witness for the appellants to testify to the mortgagee’s disclosures to him while acting as the mortgagee’s attorney, the rule of law called upon the court below, in judicial propriety, peremptorily to close his mouth. He was admitted to betray professional confidence, upon his statement that he was acting as a notary and not as attorney. That is a transparent subterfuge unworthy of consideration. One fitted to hold either office should better comprehend the difference in the duties of a notary public and the duties of an attorney-at-law. No attorney should be tolerated in violating the confidence of his client, by the pretense that he received it as a notary. We are glad to say that such professional bad faith is very rare. When it unfortunately appears here, we owe it to public justice to censure it with no uncertain sound.

By the Court. - The judgment is reversed, and the cause remanded to the court below for a new trial.