Houlehan v. Rassler

73 Wis. 557 | Wis. | 1889

ORton, J.

This is an action of replevin brought by the plaintiff against the defendant for one black gelding horse and one set of double harness, valued at $140. The defendant was a constable, and levied an execution upon said property issued upon a judgment rendered by a justice of the peace against the plaintiff, in an action brought by J. C. Garland and F. S. Garland against him, for $70.34 and costs, and this was the taking complained of in the action. The action was finally tried in the circuit court without a jury, and the court found, in substance, that the said Garlands, under the firm name of J. C. Garland & Son, loaned to the plaintiff, Houlehan, “ at his special instance and request, eighty dollars, to be used by-said plaintiff in purchasing, and to enable him to purchase, a team of horses and their harness of one J. Murray; and that the said eighty dollars were- used by said plaintiff in making said purchase, and were by him paid to said J. Murray as a part ' of the consideration for said horses and harness.” And the court further found, in substance, that the said judgment in favor of J. C. Garland & Son and against said plaintiff for $'70.34, was for the unpaid balance of the indebtedness incurred by making said loan of $80; that said defendant, as constable, levied the ezecution issued on said judgment on said horse and harpess, and that said horse is one of the span of horses, and the harness was the set of double harness, so purchased by the plaintiff of said J. Murray, as aforesaid, and for which said property the said $80 were paid as a part of the consideration; and that at the time of said seizurp and levy, and when the action was commenced, the plaintiff was the owner of the said two horses and their said harness only, of which one horse and the harness were so seized and levied upon as aforesaid.

On these findings of fact the court found substantially the following conclusions of law: (1) That said action of J. C. Garland & Son agamst the plaintiff "was not brought for the recovery of the whole or any part of the purchase money of the property so seized and levied upon; (2) that said $80 so loaned to the plaintiff by J. 0. Garland & Co., and so used by the plaintiff in purchasing said team of horses and said harness as aforesaid, were not a part of the “ purchase money ” of said property, within the meaning of subd. 20, sec. 2982, R. S.; and (3) that at the time of said levy and demand said property was exempt from seizure and sale on said execution.

On these findings of fact and conclusions of law, and other appropriate findings of fact and conclusions of law, the court rendered judgment for the plaintiff, from which this appeal is taken. It was stipulated that “ the exceptions taken to the conclusions oí law and order for judgment, duly filed by the defendant, be taken as a part of the record in this action, and stand as and in lieu of a bill of exceptions herein, the same as if the exceptions had been incorporated in a bill of exceptions duly settled and signed by the judge of the court.”

It is objected by the learned counsel ©f the respondent that there being no exceptions to the findings of fact, arid only a general exception “ to each and all of the conclusions of law herein, and to the order of the court in this action directing judgment to be entered in favor of the plaintiff,” the judgment ought to be affirmed. I suppose that means that there are no questions to be considered by this court. That might be so, so far as the conclusions of law are concerned, if it were not for the above stipulation. That means something. The exceptions “ should be taken as a part of the record in this action.” If they were not proper exceptions, they should not be taken as a part of the record. The stipulation is evidently a waiver of any objection to the form of the exceptions. It is true that the findings of fact are not excepted to, and of course they should not be, to raise the question whether they warrant or support the conclusions of law or order for judgment. They are taken as true and warranted by the evidence. We think the obvious meaning of the stipulation is that the exceptions taken should be effectual for some purpose, and there can be no other purpose except to raise the question whether the conclusions of law and order for judgment are supported by the findings of fact. The exception to the order for judgment is sufficient, because it is specific, and it is equally error if it is not sustained by the findings of fact. Allerding v. Cross, 15 Wis. 530; Ludlow v. Gilman, 18 Wis. 552. We will therefore treat the question as properly raised. The practice is a loose one, and ought not to be encouraged. A stipulation may answer in place of a bill of exceptions, if it can be understood. Martin v. Fox & Wis. Imp. Co. 19 Wis. 552. But it ought to be plain and unambiguous.

The main question in this case is whether the property levied upon by the defendant as constable was exempt. We are compelled to differ with the learned circuit court on that question, and to hold that the property was not exempt. The statute is very plain and explicit, and is susceptible of but one meaning, and the facts found bring this property clearly within its very terms.' The plaintiffs in the case in which the execution was issued “ loaned to the plaintiff, at his special instance and request, eighty dollars, to be used by said plaintiff in purchasing, and to enable him to purchase, a team of horses and their harness of one J. Murray; and that said eighty dollars were used by said plaintiff in malting said purchase, and were by him paid to said J. Murray as ap/art of the consideration for said horses and harness.” I repeat these facts here, to show how clearly they come within the very terms of the statute. The statute is: “ No property exempted by the provisions of this section shall be exempt from execution issued upon a judgment in an action brought by any person for the recovery of the whole or any part of th& purchase money of the same property.” Subd. 20, sec. 2982, R. S. Was this $80 any part of the purchase money of the property ? It was loaned to be used in purchasing the property, and to enable the plaintiff to purchase it, and was actually used in making the purchase, and was paid to Murray as a part of the consideration of it. What other possible language could be used that is stronger or more explicit to make that money a part of the purchase money of the property % And yet the contention is that it was not, and the court gave that as a reason for the finding. The facts and the terms of the statute are too plain to admit of argument. It is contended that the one who loans the money should have actually paid it to the person who sold the property. The statute does not say so. The learned counsel of the respondent claims that the evidence in the case shows that the money was not loaned for such purpose. But the evidence is not before us. The findings of fact by the court are alone to be considered, and they do not support the conclusions of law or order for judgment.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment for the defendant.