Mead v. Bagnall

| Wis. | May 15, 1862

By the Court,

Paine, J.

We think it must be held under the provisions of chap. 181, Laws of 185.9, that the plaintiff may amend of course by making new defendants. The counsel for the appellants contended that this could not be done without leave of the court, and cited some authorities sustaining that as a rule of practice, where 'there were no statutory provisions on the subject. But even conceding that to have been the rule, we think this. .chapter must be held, by necessary implication, to establish the right. It assumes its existence, and then proceeds to specify in what manner it may be exercised. Unless the right' exists the whole statute becomes inoperative. It as clearly indicates the legisla-^Ve ^nten^on Parties should have this rigbt as though it had explicitly so provided. And the intent being clear, we think effect must be given to it. It may be true that the legislature might pass a law, based upon the assumption that other provisions of law existed, in such a manner that the courts could not say that such other provision did exist, if they had no other support that the mere legislative assumption. But this would generally arise from the fact that there would be uncertainty as to the details and precise extent and character of the law which was supposed to exist. But where the act which is passed clearly states the right which is assumed, so that the court can see upon the face of it with certainty the entire intention of the legislature, we think such a recognition of the right, and a provision for the manner of exercising it, must be held equivalent to a positive declaration that the right exists.

Nor do we see any such danger to be apprehended from it as the counsel for the appellant suggested. It is true the case might be rendered more complicated, and the litigation somewhat protracted. But these results have never been deemed sufficient to prevent the joining of new parties where that was essential or proper to the complete adminisffation of justice. This has always been don'e by leave of the court, and we can see no more danger of injury, if the party is allowed by a general statute to. make such amendments, than if he is required to obtain leave of court in each instance.

We have been referred to a law recently enacted by the legislature, published April 4, 1862, which seems to have been designed as a substitute for chapter 181, Laws of 1859, and which expressly provides that plaintiffs maj1- amend of course by adding new parties. It is supposed that this amounts to a legislative recognition of the insufficiency of the former act to accomplish that result. But we think it may be fully explained upon the theory that it was designed to remove any doubt upon the point, and that it can have no effect in changing the construction which should be placed upon the former.

The counsel for the appellant further claims that chapter 181, Laws of 1859, was repealed by chapter 220 of the laws of that year. He claims that the latter is repugnant to the former, and that it took effect subsequently to the other reason of having been published afterwards. And he then applies the familiar rule that'the last act of the legislature repeals former provisions repugnant to it. But both these acts were approved on the same day, and we think it is the date of the approval and not the date of publication, which is to be looked at in determining the intent of the legislature, so far as that intent depends on the priority of its action. It is true that general laws must be published before they can take effect, but that does not make the printer a part of the law-making power, nor enable him, by delaying the publication of one law longer than that of another which was passed at the same time, to change the relations of the two upon the point of priority of legislative action.

But the ground relied on by the appellant fails entirely in this case, for the reason that chapter 220 did not take effect after chapter 181, but before it. Chapter 181 was published April 1, 1859, but chapter 220 was first published on the 28th of March of 'that year, and then, by reason of a slight error, was republished April 2d. But we held in the case of Smith vs. Hoyt, 14 Wis., 252" court="Wis." date_filed="1861-11-02" href="https://app.midpage.ai/document/smith-v-hoyt-6598507?utm_source=webapp" opinion_id="6598507">14 Wis., 252, that the error was not of such a character as prevented the act from taking effect from the first publication.

Still, although we think there was no repeal, as chapter 220 relates to a particular class of cases, its. provisions, so far as they are repugnant to those of chapter 181, which are general, may be held to govern in that class of eases. This is proper as a general rule of construction, and has been expressly provided for in our statutes in regard to the revision of 1858. Chap. 191, sec. 11. The only repugnancy between the two chapters, is as to the time to answer; and conceding that in foreclosure cases defendants should ’have ninety days to answer, according to chapter 220, this would only to that extent modify the provisions of chap. 181. It certainly could not have the effect of abrogating it entirely.

These appellants having been served with process according to chap. 181, we can see nothing, therefore, raising any question as to the jurisdiction of the court below over their persons. Nor can we see any error in tbe record, for wbicb can reverse the judgment. They did not appear nor answer. If there was a misjoinder of causes of action, by claiming a personal judgment for tbe deficiency against tbe mortgagor as well as a judgment of foreclosure, that objection could only be taken by demurrer.

These appellants were proceeded against as subsequent incumbrancers, witb tbe usual allegations as to their interest in tbe premises. We are unable to see, therefore, bow it can be urged that tbe complaint states no cause of action against them.

Nor can tbe objection be sustained, that tbe suit is brought by the plaintiff in bis individual capacity and not as trustee. If it was, it is difficult to see bow these appellants could be affected by it, or bow they could raise the objection in this court for tbe first time on appeal, without even having appeared in tbe court below. But tbe objection is not sustained by tbe record. The complaint fully sets forth tbe representative character of the plaintiff, and shows that tbe suit is brought by him as trustee. If it was proper to describe him as trustee in the title of tbe cause, it is a mere matter of form, which should be amended by the court below after judgment, and disregarded on appeal.

Tbe judgment must be affirmed, with costs.