Jewett v. Fink

47 Wis. 446 | Wis. | 1879

Oole, J.

The first error assigned on the part of plaintiff for reversing the judgment is, that the court below erroneously admitted the record of the judgment in tbe case of Dow v. Price, under which defendants justified. The judgment in the United States court was by confession upon what is called a judgment note. It is objected that there was no sufficient statement or affidavit of the amount due on the note to authorize the entry of judgment; but it seems to us the judgment was entered in substantial conformity to sections 13 and 14, ch. 140, Tay. Stats. The record shows that a declaration was filed, also an answer signed by an attorney on behalf of defendant, confessing the amount due as claimed in the declaration, and releasing all errors, together with the note and warrant of attorney authorizing a confession of judgment for the amount due on the note. The attorney for the plaintiff annexed to the papers his affidavit, stating that the sum of $1,728 was due upon the note set forth in the declaration; stating also the source or grounds of his information or knowledge upon the subject; and disclosing the reason why the affidavit was not made by the plaintiff himself. It seems to us this was a sufficient compliance with the statute.

But it is further objected that it does not appear that there was any judgment; that what purports to be a judgment was signed by the clerk alone. There is nothing in the record which warrants the assumption that the judgment was entered by the clerk alone; on the contrary, the presumption is that it was rendered in open court. The record itself so imports upon its face, and that is conclusive upon the question. It was of course essential to the defense set up in the answer to show a valid judgment, and this, we think, the defendants did. It follows, therefore, that there was no error in admitting the record in evidence for the purpose of showing that the defendants represented a creditor of Price, and had the right to inquire into the validity and consideration of the mortgage under which plaintiff claimed the property.

The second error assigned is, that evidence tending to show fraud in the mortgage was improperly admitted, against the plaintiff’s objection. This position is obviously founded on the assumption that the defendants were mere tortfeasors, who had no right to inquire into the validity of the mortgage; for the very able counsel did not deny, nor would he wish to be understood as controverting, the principle, elementary in the law, that a creditor may question a transfer of property made by his debtor in fraud of his rights. But the counsel says that the mortgagor, Price, would not be heard to impeach the mortgage for fraud in the transaction; that as to him the instrument is valid. It is frequently the case that a conveyance good as to the parties to it is voidable as to creditors. This the counsel does not deny.

We are not entirely clear, however, that if Price himself were defendant in this action, it would not be competent for him to show, in mitigation of damages, that the mortgage was not an existing obligation, because originally given with intent to defraud creditors. But, however that may be, the defendants, who stand in the place of and represent a creditor of the mortgagor, may attack the mortgage. This is certainly so unless, on account of another fact which we will notice, they are precluded from attacking the mortgage or showing that there was really nothing due upon it. The jury in effect found that the horse was exempt when the mortgage was given, and we have already said it appears that Price had continued to reside in Kenosha. But the question was not submitted, nor did the jury find, whether, if the mortgage were avoided for fraud or upon any other ground, the horse would still he exempt in the hands of the mortgagor. Price was made a witness by both sides. In answer to a question asked hinj by plaintiff, he testified that when the mortgage was given he did not own, nor has he since owned, any other horse, mule or mules, ox or oxen. It is proper, likewise, to say in this connection that the same witness testified on the part of the defendants, without objection, that when this action was commenced, the plaintiff was indebted to him in a sum exceeding $400, and this testimony was not denied by the plaintiff. Indeed, so far as Price is concerned, he waives all exemption, and seems to be willing that the horse should he sold to satisfy the excution held by defendants. But the contention is that, as the horse was exempt, the element of fraud was entirely out of the case, and it was the duty of the court below to disregard all of the verdict which touched that question, and to have given judgment for the plaintiff on the first count in the complaint. As a matter of law, it is said the court should have held that the mortgage could not be fraudulent; that although the intent, together with all the facts necessary to make the transfer fraudulent under other circumstances, were found or admitted, yet the law will ignore them all if the property is exempt, inasmuch as fraud cannot be predicated upon a transfer of property specifically exempt from execution. Conceding for the argument that this position is correct, still we do not well see how the court would have been justified in giving judgment on the first count, in view of the finding that neither principal nor interest was due on the chattel mortgage. As we understand the verdict, this finding refers expressly to the $825.38, the mortgage debt named.

There is ample evidence in the record, as it now stands, to sustain such a finding, that nothing was due the plaintiff on that claim; that there never was any actual liability or obligation on the part of the mortgagor to pay that debt, or, if there ever had been, that such liability, had been extinguished and discharged. But, moreover, the bill of exceptions does not purport to contain all of the testimony, and there may have been conclusive proof upon this point. In this action, between the plaintiff and the creditor of the mortgagor, we can see no legal objection to showing in mitigation of the damages that the mortgage debt was extinguished, or did not in fact exist, even if the horse, when the levy was made, was exempt by law from sale on execution; for upon what principle is the plaintiff allowed to recover more damages than he has actually sustained by the levy and sale under the execution % It being, therefore, competent to show these facts in mitigation of damages, we must assume on the record that the evidence abundantly supported the ninth finding in the special verdict, that no amount was due the plaintiff upon the chattel mortgage set out in the complaint, for principal and interest. It follows from these views, that the third and fourth errors assigned on the part of the plaintiff for a reversal of the judgment are overruled.

In respect to the other appeal, we are inclined to think the judgment as it stands is correct. The jury found that Price was indebted to the plaintiff for keeping and caring for the horse at his stable from September 24, 1874, to May 12, 1877, in the sum of $469. It would certainly be an admissible construction of the mortgage to say that it secures to the plaintiff a lien for any expense he might incur for keeping the horse while the same was in his possession. There could be no objection that we can perceive to such a stipulation in the mortgage. The jury have found upon the evidence what it was worth-to keep the horse, and their finding upon the question cannot be disturbed. It is true, Price testified that the plaintiff was not to be paid anything for keeping the horse, but was to keep him for his private use in driving. But it was for the jury to say, upon .the conflicting statements of the witnesses, what the real agreement was; and the mortgage itself would seem to sustain the claim of the plaintiff. While the witness Price was being examined by the defendants, he stated that he had three several interviews with the plaintiff, when both brought all their account books in order to effect a settlement of their matters. It was proposed to show by the witness that on these occasions the plaintiff rendered all his accounts against him, but made no charge for keeping the horse. The testimony was objected to, and ruled'out.

It is now insisted by defendants’ counsel, that the evidence was admissible to show that the claim of the plaintiff for keeping the horse was an afterthought. I have had some doubt whether the ruling of the court upon this point was correct; but I infer, from what is said in the briefs of counsel, that the reason why the testimony was excluded was, that it appeared that the parties at the time were attempting to compromise and settle their affairs, and that that was the ground for excluding it. I am not clear but in that view the testimony was inadmissible.

We think the judgment upon both appeals must be affirmed.

By the Court. —Judgment affirmed on both appeals.

Ryan, C. J., dissented.