Laing v. Williams

135 Wis. 253 | Wis. | 1908

Timlin, J.

The appellant’s brief contains no assignments of error, is very discursive, and great difficulty is experienced in ascertaining what specific grievances sb© complains of. Upon tbe record as returned tbis appears to be an ordinary suit for tbe partition of personal property.

In sucb suits, as said by Pomeroy (4 Eq. Jur. (3d ed.) § 1392):

“Courts of equity, therefore, .when partition of personalty is sought, have of necessity departed from tbe analogies of tbe law of real estate, and have assumed jurisdiction to determine as well tbe issue of title as any other issue pertinent to tbe case.”

The trial court bad general equity jurisdiction to entertain tbe action, to appoint a receiver, to order the property delivered to tbe receiver, to enter an interlocutory decree, and to so mold its final decree as to cover and provide every possible form or kind of relief made necessary by tbe exigencies of tbe case or tbe contumacy of tbe parties in order to do final and complete justice. Tbis is tbe distinctive power of all courts of equity in all cases in which such courts have jurisdiction, sucb as tbe action for partition of personal property. Reynolds v. Nielson, 116 Wis. 483, 93 N. W. 455. But it is contended, also that the final decree is unjust and inequitable. Tbis contention overlooks tbe following considerations: (1) The final decree is founded upon tbe interlocutory findings and decree. (2) Tbe interlocutory decree is appealable subject to tbe same limitations as appeals from final judgments. Sec. 3047, Stats. (1898). (3) There are no exceptions to the interlocutory findings, and no bill of exceptions preserving all the evidence offered at tbe trial, which resulted in sucb findings; hence tbe interlocutory findings are conclusive upon tbis appeal from tbe final judgment.

But it is argued that in that alternative tbe defendant upon sucb showing should have been punished for contempt instead of Raving a money judgment awarded against her, and if she Rad been so proceeded against the proceedings must Rave failed because of noncompliance witR tRe statute requirements relating to contempts. TRe weakness in this position is quite apparent, but we will only say that tRe circuit court as a court of equity was not limited to contempt proceedings in tRe enforcement of its interlocutory decree, but might in a final decree make sucR provision as would protect tRe party aggrieved from loss caused by the failure of the other party to comply with tRe interlocutory decree. Eor is the appellant aggrieved by tRe failure of tRe respondent to resort to contempt proceedings in wRicR, under sec. 3490, Stats. (1898), sRe might Rave been required to pay $1,400 instead of $700, because it seems from the findings that this is the sum which plaintiff would be obliged to expend in order to make good Ris two-thirds part of the property, consequently the sum necessary to indemnify Rim. TRe property was peculiar, in that it was not of a kind purchasable in the market, and also because any separation or withholding of any part thereof diminished the selling value of the remainder by so much as it would cost to replace the part withheld. We therefore perceive no error in the way in which the circuit court arrived at the sum to- be recovered from the defendant, which sum, to say the least, is not more than the findings warranted. Eo error is assigned, in the brief of appellant as required by Supreme Court Rule 10. Unaided by such assignment we are unable from a perusal of that brief to discover material or prejudicial error, and the judgment should be affirmed.

By the Court. — Judgment affirmed.