151 Wis. 469 | Wis. | 1913
The following opinion was filed October 29, 1912:
The defendant in this action brought an action against the present plaintiff in the year 1904 to foreclose a land contract. A judgment of foreclosure was entered in the circuit court, by the terms of which the defendant was allowed but ten days from the entry of the judgment in which to redeem. On an appeal from such judgment this court held that the time for redemption was unreasonably short and reversed the judgment with direction to enter a new judgment allowing the defendant six months from the date of entry thereof in which.to redeem. This case is reported, Dickson v. Loehr, 126 Wis. 641, 106 N. W. 793. On February 23, 1906, judgment was perfected in accordance with the mandate of this court. Redemption was not made within six months from February 23d. After the period of redemption had expired the present action was brought to recover damages against the defendant because the latter had fraudulently concealed himself so that it was impossible for the
The issues tendered by the amended complaint which was before this court on demurrer were much narrower than those litigated on the trial. That complaint set forth that Dichson kept in concealment until the last day on which redemption could be made, when he was found by an agent of the plaintiff who was searching for him, and that defendant thereupon agreed to call at plaintiff’s office on the following day to settle the matter up, but that instead of doing so he went into hiding so that plaintiff could not find him during the remainder of' the month. It was further set forth that the purchaser from
On the trial plaintiff testified that he and the purchaser, one Clarence R. Smith, did in fact find the defendant on August 28th in' one of the railway depots in Milwaukee, and that he tendered the necessary amount to redeem and defendant refused to accept the tender on the ground that it came too late, and that immediately thereafter Smith demanded and received back the $70,000 he had paid plaintiff for a good title to the property and departed from Milwaukee and had not been heard from since. It is also claimed that there was testimony tending to show that the defendant extended the time for making the tender for a few days from August 23d, ■and the complaint was amended after the parties had rested to conform to the proofs above referred to.
The material issues in the case were: (1) Was plaintiff able and willing to pay the amount necessary to redeem prior to August 24, 1906? (2) Did defendant conceal himself so as to render tender or payment impossible ? (3) Was the period of redemption extended beyond August 23d ? (4) If so, was a tender made within the period covered by the extension? and (5) Did defendant conceal himself so as to prevent a tender within the period covered by the extension ?
The jury found that there was such a person as Clarence R. Smith and that he had paid plaintiff $70,000 for the property covered by the land contract referred to, and that plaintiff was ready, willing, and able to pay the $60,131.24 necessary to redeem on and before August 23, 1906. These findings are supported by the evidence of the plaintiff and by that of the witnesses Scharel, Mueller, and Hedrick, and there is some corroboration of their evidence by other witnesses. Notwithstanding this array of witnesses, it is seldom that a case comes to this court which presents so many ear
It is not our purpose to enumerate with much detail the various considerations which tend to show that Smith was a dummy rigged up for the occasion. We do not find it necessary, in order to do substantial justice in this case, to say that he did not exist or that he did not pay $70,000 to the plaintiff.
The plaintiff testified that in 1901 he met Dr. Smith several times in the lobby of a hotel at Vancouver, British Columbia, and that they rode together on a train from there to St. Paul, and that Dr. Smith seemed to be very much interested in sanitariums. Plaintiff did not make his contract with defendant until 1902. He further testified that Smith came to Milwaukee and called on him in 1902 and again in 1903 'and went out to see the property covered by the contract with defendant. Smith was next accidentally and opportunely met on the streets of New York about February 21, 1906, when the plaintiff was returning from a six months’ trip to Europe. In New York they talked about the sanitarium and then came to Chicago together. Smith stayed over one night in Chicago and came to Milwaukee the next morning, and apparently returned to Chicago the next night and made a pilgrimage back to Milwaukee the following day. He seemed to have had a great aversion to Milwaukee hotels, because, even as early as 1903, on the occasion of his visit to Milwaukee, he apparently went to Chicago to spend the night, returning the following day. Plaintiff testified that during the visit to Milwaukee in February, 1906, Smith took an option on the property for
We now come to the question whether other findings of the jury essential to sustain the judgment rendered are supported by any evidence whatever. The fourth finding will first be considered. By it the jury found that the defendant concealed himself so as to render tender or payment by the plaintiff impossible. The character of the evidence offered to support this finding and which it is claimed does support it may be briefly summed up:
The defendant’s home was in Milwaukee. The plaintiff testified that during the months of July and August, 1906, he wrote numerous letters properly addressed to the defendant at his street number, that they were properly mailed, and that in them he informed the defendant that he was ready to pay up the amount required by the judgment and asked the defendant to meet him for that purpose, and that none of these letters were returned; that plaintiff also drafted a number of notices to the same effect and either carried them personally or sent them by messenger to defendant’s house and that the same were pushed under the door of the house; that plaintiff made some sixteen trips to the house during the time stated, for the purpose of seeing him and arranging a settlement; that Smith made numerous trips for the same purpose, as did Scharel, Mueller, and ITedrick; that inquiries were made of a woman
Notwithstanding this testimony, we do not think there was a scintilla of evidence in the case which either showed or tended to show that Dickson was in hiding or that he concealed himself so as to make a tender impossible. It is rather strange that these frequent visits should be made to a house that was closed and to a house that was obviously unoccupied. It is established beyond dispute that Dickson closed his house in May or the fore part of June and kept the same closed until October, except as he occasionally might have visited it when he came to Milwaukee; that he with his family moved out on the Spring Bank property near Okauchee, twenty-seven miles from Milwaukee, and lived there continuously and openly from June to October; that Dickson had occasion to go to Milwaukee frequently to attend to his business, and did go as fre
We say, therefore, that this fourth finding of the jury must be set aside as not supported by any testimony. What has been said in reference to the fourth finding also applies to the third finding, by which the jury said that the plaintiff made reasonable efforts to tender payment of the amount due to the
We next come to the consideration of the fifth finding of' the jury, by which it was determined that on or about August 23, 1906, the defendant extended the time of redemption for a few days. Two different transactions are relied upon to support this finding. It is argued that the witness Hedrick found Dickson on the 23d of August and served a demand upon him on behalf of the plaintiff for a deed of the premises and satisfaction of a mortgage thereon and the assignment of insurance policies and certain other things which it is unnecessary to enumerate, and that at the time of serving such demand Hedrick requested the defendant to call at the plaintiff’s office on the 'afternoon of the following day to settle the matter up, and that defendant agreed to do so but failed to-keep his promise. Dickson denies making the appointment to meet the plaintiff, but says he did tell Hedrick that he-would take the matter up with his attorney. In discussing this finding of the jury we shall assume that the testimony of Hedrick is true wherever there is any conflict between the witnesses, because the jury evidently believed his statement as to what conversation took place. There was no statement in the notice served that plaintiff was ready or willing to pay over the money, but perhaps it might be fairly implied from the' demands contained in the notice, which, by the way, was not signed, that plaintiff was ready to. pay. Construing this conversation most favorably to the plaintiff, it might be held to amount to an agreement to extend the period of redemption until the afternoon of August 24th and for a sufficient length of time thereafter to enable the plaintiff to call on the defendant and make a legal tender to him when he found that defendant did not keep his agreement to call at his office. But we fail to see -how that conversation can be construed as amounting to an agreement to extend the time of redemption
The second ground on which plaintiff seeks to support this-finding of the jury arises out of an alleged transaction between Wildish, the defendant’s attorney, and the plaintiff on the 24th of August. After Hedrick left the plaintiff’s demand with Dickson on August 23d, the latter went to the office of Wildish and found that he was out and left the notice there with a memorandum in reference to it. Wildish testified that on the following morning he found the demand, started to-draw some of the necessary papers in reference to the transfer,, and then went over to Loehr’s office and told him that the abstract would have to be carried down to date and that possibly a new abstract would have to be provided and a mortgage-would have to be satisfied, and that it might take a few days-within which to complete the transaction, and that he then told Loehr that Dickson was ready and willing to perform on his part and asked Loehr if he was ready to pay, and that Loehr told him he was not. Loehr does not deny this conversation except by saying that Wildish did not call at his office and that he did not have any such conversation with him on August 24th or at any other time. Counsel for respondent argues that the jury had a right to believe Wildish and to disbelieve Loehr and that it evidently did so as to this transaction, and that inasmuch as Wildish was Dickson’s attorney he had a right to bind his client by extending the time within which payment might be made a sufficient length of time to-
We therefore bold (1) that there was no evidence in tbe ■case tending to show that Dickson ever concealed himself or rendered it impossible for tbe plaintiff to find him and make ■a tender to him, or that plaintiff used reasonable diligence in an effort to find tbe defendant; (2) that there was no agreement made either on tbe 23d or on tbe 24th of August, or at any other time, to extend tbe time of payment to August 28th, when tbe alleged tender was made; (3) that defendant bad tbe right to refuse tbe tender made on August 28th, if one was made, because tbe same was not made within tbe time prescribed by tbe judgment. It follows from
The printed case contains 909 pages of printed matter aside from a rather poorly prepared index. Nearly all of the evidence is printed by giving the questions and answers. Everything material and immaterial, important or trifling, is printed. Several hundred pages are devoted to irrelevant matter that could in no way he helpful to this court on any aspect of the case. There was no necessity for preparing a case to exceed 250 pages in length. This allowance is liberal. The appellant’s brief contains 219 pages and gives no orderly presentation of the issues or of the things relied on by appellant to support his contentions. The lack of concentration and the rambling method of argument pursued in the brief rendered it necessary for the court to carefully read over the mass of relevant and irrelevant testimony printed in the case, in order to get a clear understanding of the issues between the parties and the evidence bearing on such issues. All the material questions raised by appellant could be fully treated in a fifty-page brief. If all the cases that come before this court were prepared and presented in the way this one has been, the court could not begin to keep up with its worlc Rule 44 of this court is neither ornamental nor innocuous. Under it no costs will be allowed appellant for printing. Gerbig v. Bell, 143 Wis. 157, 126 N. W. 871, and cases cited.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment dismissing the complaint. No costs for printing will he allowed.
The following opinion was filed December 10, 1912:
At the close of the testimony in this case the defendant was permitted to interpose a counterclaim in which he sought to recover damages in the sum of $2,000 from
The counterclaim was not treated in the opinion filed, be■cause there was no finding of damages by the court or the jury, and because this court was of the opinion that the record did not show that the defendant was entitled to recover. The effect of the mandate in the case was to deny recovery on the •counterclaim, and this is the effect which the court intended it should have.
For the present we will assume that the trial court will follow the law in the matter of awarding costs. The motion of the appellant is denied, with $10 costs.
The following opinion was filed January 7, 1913:
In support of his motion for a rehearing in this case the respondent has filed a brief which, though it has not convinced us of error, is, at least, entitled to be met by serious argument.
Instead of so meeting it, the appellant has served and filed •a so-called brief consisting of nineteen pages of printed matter, the great part of which can only be characterized as buffoonery. An occasional play of wit is refreshing and sometimes illuminating even in a legal argument, but a brief is properly a field for the exercise of the highest reasoning powers and not for the exploitation of literary, vaudeville.
The serving and filing of such a brief can only be considered as trifling with counsel and with the court. It will be stricken from the files and no costs will be taxed for printing it.
The appellant’s brief is stricken from the files, and the motion for a rehearing is denied without costs.