68 Wis. 662 | Wis. | 1887
This action was brought to foreclose a mortgage given by Daniel Leary and wife to Cornelius Leary, father of Daniel Leary, to secure the payment of $400 and
The answer admits the giving of the note and mortgage and the recording of the same as alleged in the complaint; denies that the note and mortgage were sold, conveyed, or assigned to the plaintiff by said Cornelius Leary; denies that James Leary owns the note and mortgage; and alleges that Cornelius Leary is the real party in interest. The answer then alleges full payment of the note and mortgage to Cornelius Leary before the same was assigned to the said James Leary, and that said plaintiff had full knowledge of such payment before the same was assigned to him. The answer also alleges a tender of $30 before suit brought, in full pajnnent of the amount remaining unpaid on the note and mortgage. The answer, also'set up a setoff or counterclaim for board, washing, goods sold, and money loaned, amounting to $700. The case was tried by the court. The main contest on the trial was upon the answer of payment. When the evidence was first closed, the judge found in favor of the defendants that the note and mortgage was fully paid, but, before judgment was entered in the case upon such findings, upon the motion of the plaintiff and upon affidavits showing newly discovered evidence on the part of the plaintiff, the judge ordered that the case be opened for the receipt of further evidence, and thereafter further evidence-was received on behalf of both parties, and the court then found in favor of the plaintiff for the whole sum of $400, and interest $270, andordered judgment of foreclos•ure for the whole sum of $670 and costs of the action.
The first error assigned is that the plaintiff did not sufficiently prove his title to the note and mortgage. The plaintiff produced in evidence a regular and formal assignment in writing, under seal, of the note and mortgage, and had the same in his possession on the trial. This was ample proof of his right and title to the same, and it was wholly immaterial to the defendant whether he paid money or any other consideration for the same. The assignment was in itself proof of a transfer of the legal title to the note and mortgage; and as in this case there was no claim that the note and mortgage were transferred before the note was due and without notice of defendants’ claim of payment and setoff, the defendant could not be injured by having the mortgage foreclosed in the name of James. After the plaintiff had shown a legal title in himself, the burden of showing that the action was not brought by the real party in interest was upon the defendant. We find no proof in the case tending to establish that issue in favor of the defendant. The only evidence offered which could be claimed to be at all material on that issue was the offer to show that no money was paid by James for the assignment. Had this evidence been admitted it would not have established the fact that the action was not brought by the real party in interest; and as no other evidence was offered on that issue, the judgment should not be reversed, even though the evidence offered would have been competent had it been followed by other evidence tending to show that the plaintiff was a mere nominal party, and not the real party in interest.
It is alleged that the court erred in granting the plaintiff a new trial on account of newly discovered evidence. The court did not grant a new trial. After having announced
There are several exceptions taken to the admission of evidence against the objections of the defendant. "Without referring to them specifically, we think the objections made were all properly overruled by the court; but had the court received improper evidence against the defendant’s objections, still, in a case tried by the court, the reception of such evidence would not be sufficient to reverse the judgment, if upon the whole record, and independent of such improperly received evidence, the findings of the court were sustained.
The real contention of the appellants is that, upon the whole evidence, the court erred in not finding that the note and mortgage were wholly paid' by the defendant before the action was commenced, or, if not fully paid, that the tender of $30 covered the whole sum due and more. The mort
On the part of the plaintiff it was shown, first, that the note had no indorsements on it of any kind; that the defendant Daniel Leary had frequently admitted that he owed his father the amount of the mortgage long after he claimed on the trial to have paid it in full. There was also evidence given on the trial showing that defendant had procured a satisfaction of the mortgage to be drawn ' up, and called a justice of the peace to have the same executed by the father, and that the father refused to execute the same, claiming that it never had been paid. There was also evidence tending to show that the persons who it was claimed wrote the receipts produced in evidence, did not write them. The father denied that any payment had been made on the mortgage. Upon this testimony, and other circumstances not here stated, but appearing on the record, the learned circuit judge came to the conclusion that no payments had ever been made on the mortgage.
It is evident that the judgment of the court was the result of his judgment as to the credibility of the witnesses who testified in the case. This court is in no position to criticize the judgment of the learned trial judge for his decision upon a question of that kind. His opportunities for judging of the truthfulness of the witnesses who were examined in his presence, are manifestly so much greater than we have from reading the written record that it would be unsafe to reverse the decision of the trial judge upon a
There is nothing in the form of the judgment which should work its reversal. The order of the court directed the usual judgment of foreclosure and sale of the mortgaged premises to satisfy the amount found due, with costs of the action and of the sale, and also a judgment for deficiency if there should be any.
It is insisted the judgment is irregular because it provides that the plaintiff have execution for any deficiency there may be after sale of the mortgaged premises. If the plaintiff should undertake to issue an execution for such deficiency, without first obtaining an order therefor as provided by sec. 3156, R. S., we think the defendant could amply protect himself by a motion to set aside such execution. The order in the judgment that the plaintiff have execution for the deficiency, without stating against whom the execution shall issue, may well be construed to mean that he shall have judgment for such deficiency against the persons liable therefor, as provided^ in said section. Huse v. Washburn, 59 Wis. 414; Crocker v. Currier, 65 Wis. 662.
The motion for a new trial made by the defendant after the term at which judgment was entered, cannot be re
The objection that there was no proof of the filing of the lis pendens before the court is not sustained by the record. The judge says in his findings of fact that the Us pendens was filed, and the judgment not only recites the same fact, but it also recites that due proof of such filing was made. Mitchell v. Rolison, 52 Wis. 155; Sage v. McLaughlin, 34 Wis. 550; Webb v. Meloy, 32 Wis. 319, 324. In this last case.it is expressly held that, because the bill of exceptions does not contain the proof of the filing of the lis pendens, is no reason for reversing the judgment. This proof need nof be given on the trial or be made a part of the bill of exceptions.
It is further insisted by the counsel for the appellants that the court erred in not allowing the defendants’ setoff. The only proof of setoff was the evidence of the defendant Daniel that he had boarded, lodged, and washed for his father for several years, while his father was living with him. He does not state that there was any agreement, either express or implied, between him and his father that he should have pay for such board, lodging, and washing. In the absence of any such agreement, this court has repeatedly held
The appellant further insists that the court erred in not striking from the plaintiff’s bill of costs certain items charged as fees of his witnesses, and one item for subpoenaing such witnesses. The items were objected to before the clerk, and on his refusal to strike them out the defendant appealed to the court. On such appeal the court struck out a few items which were clearly overcharges, as appeared on the face of the papers, but refused to strike out the charges for the witnesses’ fees and for subpoenaing them. It will appear from the objections made before the clerk as well as before the court, that the motion to disallow the claims objected to was not based upon the allegation that the service
The charges for witnesses’ fees were also properly taxed. The only objection made to taxing the respective sums at which the court and clerk taxed them is that the affidavit of the plaintiff’s attorney does not show that they traveled the number of miles in attending as such witnesses taxed in each case. The affidavit says, in general terms, that each witness named in the bill of costs attended the trial of the cause the number of days charged, and traveled the number of miles indicated in said bill. At four cents per mile, the court taxed for just twice the number of miles stated in the bill. In construing the affidavit, the court undoubtedly understood it to mean the number of miles stated as traveled in coming to the place of trial; and as the witness is entitled to travel in returning as well as in coming to the place of trial, the taxation was correct. We may take .it for
By the Oourt.— The judgment of the circuit court is affirmed.