113 Wis. 493 | Wis. | 1902
We congratulate ourselves that we are seldom called upon to consider such a. judicial hotchpotch as is presented in this case. It will be observed from the statement that the facts are vastly complicated and involved. The confusion has been more confounded by the manner of trial. The case was begun in May, 1896. It was finally got to issue some time in the year following. The findings recite that the case was referred to a referee to take the testimony, but no order of reference or referee’s report appears in the files. They further recite that the case was finally submitted to the court oh the referee’s report and further proofs then offered, at the May term of court, 1898. No decision was then rendered, and the case slumbered until December, 1899, when the Fulton Storage & Mercantile Company obtained an order
We are unable to find any legal justification for the judgment in this case. All of the contesting parties in the court below were mortgagees. The court found that Joseph Nuhnke had the paramount claim on the property under his chattel mortgage. He failed to find whether this or either of the other mortgages was due. Assuming that they were due when this litigation was commenced, under the finding of the
At this point there arises another complication. The mo
The court erred in entering a joint judgment in favor of plaintiffs and the defendant Joseph Ruhnke against the company and its sureties. As already shown, the sureties were under no obligation to restore the property to JosephRuhnke. Their contract was entirely with the plaintiffs, and cannot be
The order and judgments appealed from are reversed, and the cause will be remanded, with directions to the court to ascertain and find the situation and condition of the mortgaged property, whether and when the property was delivered to. the • defendant Joseph Ruhnke, and whether it had deteriorated in value by any act of the company while in its .possession. The court should take additional testimony sufficient to put it in possession of such facts as are necessary to enter a judgment that will protect the rights of all parties, on the basis of facts already found and to be found. If the court finds the property has heretofore been delivered to Joseph Ruhnke, the court should also award damages by way of interest on its value from the time the company received it until it surrendered possession. If it deteriorated while in its possession, by any act or neglect' for which it was responsible, that, also, would be a proper element of damages. The judgment should also be framed so as to protect the rights of plaintiffs, and to properly enforce the same against the company and its sureties. To just what extent the latter may be liable to plaintiffs must depend in some degree upon the exact facts found in relation to the situation-and condition of the property. The obligations of the defendant company and its sureties are to be enforced in favor of the plaintiffs, except in so far as they have been modified by the-facts found, of to be found as herein directed. The junior mortgagees have a right of redemption from the paramount mortgage, and their rights in this regard should be protected in the judgment. The case is a good one for settlement, and we
■ By the Court. — Tbe judgments and order are reversed, and tbe cause is remanded for further proceedings as directed in tbe opinion.