73 Wis. 548 | Wis. | 1889
This is an action of replevin to recover the1 possession of a span of horses. The plaintiffs claim to own them as copartners. The defendant, as sheriff, justifies the taking and holding of the horses under an execution issued on a judgment against Simon Green, the husband of the plaintiff Alice. The real controversy, therefore, is, Was the property seized on the execution the property of the plaintiffs, or was it the property of the judgment debtor? The plaintiff Alice, in order to prove that she had been in business on her own account and had a separate estate, offered in evidence two depositions,— one of Albert Green, a brother-in-law; the other, of Mrs. Beers, her mother. These depositions were both taken, — ■ the former in Michigan, the latter in Missouri,— on the 22d day of February, 18ST. The depositions were objected to because taken on a legal holiday, and excluded on that ground. The depositions were clearly material to the issue, and their exclusion was doubtless prejudicial to the rights of Mrs. Alice Green. The question is, Were they properly excluded because taken on a day which is made a legal holiday in this state? We are clear that this question must receive a negative answer.
The statute relating to this subject is sec. 2576, R. S., as amended by ch. 142, Laws of 1885. That section provides, in effect, that nomourt shall be opened or transact any .business on the first day of the week, or any legal holiday, unless it be for the purpose of instructing or discharging a jury, or of receiving a verdict and rendering a judgment thereon. The 22d day of February is made a legal holiday by sec. 2577. Now, if it be conceded — a point we do not
We are not aware of any statute in this state which declares that a deposition taken in another state on a day
Some exceptions were taken to the charge, but it is not necessary to notice them at any length. We will only remark that the court stated the law rather strongly in that part of the charge where he says: “The plaintiffs'are not estopped from asserting their title to the property in question by reason of their having at any time known, Avithout Avarning him thereof, that Eoivler was suing Simon Gfreen upon a demand that might ha\Te been enforced by a suit against them, if such was the fact, unless the evidence satisfies you that the plaintiffs knowingly permitted Simon to so act with reference to their property, and deal with others in relation to it, as if he were the owner.” One of the plaintiffs and a judgment debtor Avere husband and wife. On account of this relation, the husband, if he had charge of the wife's business, as he might lawfully, would necessarily have the possession of her property apparently, and would often deal with it as if he were the owner. The business of dealing in horses would require the services of a man to look after them. The husband might perform that service for the Avife, and in so doing treat the horses as his own, with her knowledge; but that ought not to estop her from asserting her title to the property as against his creditors. But because the depositions were excluded the judgment of the circuit court is reversed, and a new trial ordered.
By the Court — Ordered accordingly.