Johnson v. Huber, 117 Wis. 58

117 Wis. 58 | Wis. | 1903

Dodge, J.

In this case we think it entirely apparent tbat at tbe time respondent demanded of appellant tbat be cancel tbe judgment in question tbe latter contended in good faith tbat tbe same bad not been paid. Tbat question was litigated in tbe suit in equity mentioned in tbe statement of facts, was decided in appellant’s favor by tbe trial court, and not until it reached this court on appeal was it established tbat tbe judgment bad been satisfied by tbe settlement made. It was, therefore, not a case of contumacious and wilful refusal to cancel of record a judgment wbicb tbe creditor knew bad been paid. In tbe recent case of Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485, we held tbat tbe penalty denounced by sec. 2256, Stats. 1898, for failure, on demand, to discharge a paid mortgage, was not recoverable under sucb circumstances; where there is no intentional wrong in tbe refusal to discharge, but rather a reliance, in good faith, upon some supposed legal right. The court quoted with approval the language of Cooley, J., in Burrows v. Bangs, 34 Mich. 304:

“But as there has been an honest difference between these parties regarding their rights, we do not think the defendant is subject to the statutory penalty for not discharging the mortgage.”

Sec. 2915, Stats. 1898, upon which the present action is based, is in this respect the entire equivalent of sec. 2256; applicable, however, to judgments.¹ The same reasoning that would control in the construction of one, must as to the other; and the case of Schumacher v. Falter is therefore direct authority against the recovery of the judgment now appealed from.

Our attention is, however, now called to the case of Shields v. Klopf, 70 Wis. 69, 35 N. W. 284, where an entirely contrary conclusion was reached as to the construction of sec. 2256. That case was not mentioned, nor was it considered, in deciding Schumacher v. Falter, and the two are undoubtedly in conflict. One or the other must be overruled. After deliberation, the examination of the authorities tending to sustain the conflicting views of these two cases and of the reasons governing the situation, we are persuaded that the latter case declares the true construction of the statute. Penalties are not to be favored, and penal statutes are to be strictly construed. Ordinarily, it is to be presumed that penalties are denounced against wilful misconduct, and not against efforts made sincerely and in good faith to vindicate what one believes to be bis legal rights. It is tbe policy of the law that parties shall have full and.free opportunity to submit their controversies to courts, and to receive their judgments thereon. Indeed, such right is, in general terms, guarantied by sec. 9, art. I, of our constitution, and while we need not, and of course do not, decide that secs. 2915 and 2256, if construed as they were in Shields v. Klopf, would be so in derogation of this constitutional provision as to be invalid, yet the spirit of that constitutional provision is so averse to the imposition of penalties upon the good-faith effort to vindicate one’s rights that we may well hesitate in believing the legislature so intended. We adhere to the conclusion reached in Schumacher v. Falter, which is equally applicable to sec. 2915, Stats. 1898, and constrains us to the holding that the court erred in directing a verdict in favor of the plaintiff and in refusing to direct one in favor of the defendant.

By the Court. — Judgment reversed, and cause remanded for new trial.