73 Wis. 111 | Wis. | 1888
The action is to foreclose a mortgage on real estate, executed by the defendant Stephens to one Cook, and by him assigned to the plaintiff. The case was here on a former appeal from a judgment dismissing the complaint. The judgment was reversed for error, and the cause remanded with directions to the circuit court to state an account of payments upon the mortgage debt, and authorizing the court to re-refer' the cause, and to allow the introduction of further testimony. [66 ‘Wis. 571.] An order of reference was accordingly made, further testimony taken, and the referee stated an account showing that there was due the plaintiff on the mortgage debt, at the date of the report, $260.34. The court confirmed the findings of the referee, and gave judgment of foreclosure accordingly. The defendants appeal from the judgment.
1. On the trial the defendants introduced testimony tend
The payment is not evidenced by any receipt,"indorsement, or other writing, and the only testimony on the subject is that of the plaintiff and the defendant Stephens. Their testimony is in direct conflict, and fails to disclose any fact or circumstance, bearing upon the question as to whether such payment was or was not made, which gives any greater force to the testimony of one party over that of the other. The burden of proof was upon the defendants, and the circuit court was of the opinion that the testimony tending to show that the payment was made did not preponderate over that -tending to prove the contrar}r. Under well-settled rules this court cannot, in such a case, disturb the finding of the trial court.
2. The mortgage contained a stipulation for $30 solicitor’s fees over and above taxable costs, and the original order for judgment directed that the plaintiff recover that sum. Before the judgment was entered the court made an ex parte order allowing the plaintiff $100 solicitor’s fees over and above taxable costs, and that sum was included in the judgment. As a matter of course, this was error. But before this appeal was taken the plaintiff filed with the clerk of the court a remission of all such fees in excess of $30, and gave . the attorneys for the defendants written notice that he had done so. On the authority of Duffy v. Hickey, 68 Wis. 380, it must be held that such remission and notice thereof cured the error in the judgment. It was claimed by counsel for defendants that in the Duffy Case the ..remission was- made
No other error having been assigned, the judgment of the circuit court must be affirmed on this appeal. Of course, this judgment does not affect the appeal of the plaintiff now pending.
It is understood that, since the argument, the plaintiff has deceased. The judgment herein will, therefore, be entered as of the day the appeal was argued, to wit, November 15, 1888.
By the Court.- — Judgment affirmed.