89 Wis. 486 | Wis. | 1895
The following opinion was filed December 11, 1894:
The foregoing statement contains the essentials of the two voluminous records before us in this case. The appeals are not only from the judgment, but from numerous orders and parts of orders. We shall not undertake to consider in detail, every question that has been presented.
1. Mr. Meggett contends that the judgment is for an amount in excess of the amount admitted to be due in his answer. But the answer concedes that the aggregate principal sums due upon the two notes and mortgages was $13,000. It also admits that the interest was only paid thereon to October 15, 1889. The simple interest from that time to the entry of the judgment, August 23, 1892, was $2,598.55, making the amount then due for principal and interest $15,598.55. This is within $115.95 of the amount for which the judgment was taken, and that is much more than covered by the interest on the $944.66 note mentioned in the answer as being- given by Mr. Meggett to the plaintiff “ to provide for the payment of a portion of said interest.” It does not appear that there was any agreement that that note should extinguish or operate as a payment of so much of the original debt. Matteson v. Ellsworth, 33 Wis. 488. We must therefore assume, what is manifest from the quotation from the answer,— that the note was merely to secure interest upon the amount of the interest due when
2. Counsel objects to costs being awarded to the plaintiff in the judgment. The awarding of costs, in this state, is. regulated by the statutes. In re Carroll’s Will, 68 Wis. 228; Wis. Cent. Co. v. Kneale, 79 Wis. 95. Mr. Meggett might have avoided a part of the taxable costs, had he offered to allow judgment for the amount due, as prescribed by statute (sec. 2789, R. S.). But this he did not do. It is objected that the order for judgment did not specifically mention costs; but it ordered judgment according to the prayer, of the complaint, except as therein otherwise specified, and hence covered costs. Besides, the judgment itself was signed by the court. There is no ground for claiming that costs-should have been awarded to Meggett.
3. The objection to the allowance of $200 as a reasonable-solicitor’s fee, as agreed upon in open court, in pursuance of the stipulation in the respective mortgages, is overruled.
4. We find nothing in the items of costs, as taxed, which is substantially objectionable,— certainly, nothing that is. reviewable upon this record.
The judgment of the circuit court is affirmed.
5. The order of December 30, 1893, was made on the plaintiff’s application for a receiver, and upon Mr. Meggett’s application for further time in which to prepare and submit affidavits in opposition to the motion, and which application for a continuance of the hearing was granted, and the court merely restrained Meggett from collecting rents until the
6. The order of March 20, 1894, having been modified by the order of April 9, 1894, the two orders together must be regarded as a single order; and Mr. Meggett’$ appeal from them respectively must be regarded as a single appeal from the portions thereof designated therein. The question recurs whether the court rightfully granted a receiver of the rents accruing subsequently to December 30, 1893, except as to the homestead. Upon a careful consideration of the facts presented by the record, we are constrained to hold that it was a matter resting in the discretion of the trial court, and we find nothing to indicate an abuse of that discretion. By the mortgages, Meggett and wife had mortgaged to the plaintiff the six lots, “ together with all the buddings and improvements thereon situate, with the privileges and appurtenances to the said real estate belonging, and all of the rents, issues, and profits which may arise or be had thereon.” Mr. Meggett contends that this clause ‘was eliminated from the mortgage by serving a notice of an alleged revocation of the same, September 2T, 1892. .We are constrained to hold that such notice had no such effect, — certainly not in equity,— nor could it prevent a court of equity from taking the same into consideration on an application for the appointment of a receiver. It is to be remembered that the court has such power in a proper case, even in the absence of any such agreement in the mortgage. Counsel contends that the refusal to appoint a receiver, November 11,1892, was res arl/judieata, and hence a bar to the order of March 20,1894, as modified by the order of April 9, 1894. The one application was before
I. The order of April 13,1894, refusing to allow Mr. Meg-gett to file a certain affidavit, is manifestly not appealable, and so the appeal therefrom is dismissed.
8. The order of April 16, 1894, as to the undertaking to be given by Mr. Meggett to stay proceedings pending his several appeals to this court, and from a portion of which he appeals, was in fact set aside by the order of May 21,’ 1894, and that order prescribes the undertaking to be so given ■ in order to stay proceedings. The power to make such order is very much in the discretion of the trial court. R. S. secs. 3051, 3060, 3061. But, for the reason. stated, Mr. MeggeWs appeal from a portion of the order of April 16, 1894, is dismissed.
■ 9. The clause quoted from the mortgage in reference to rents did not give-to the plaintiff an absolute right to such rents, as a matter of law; and especially is that so as to the possession, use, and control of the homestead. In other words, and for reasons already given in another connection, the power of appointing a receiver of such homestead and the rents and use of the same rested in the sound discretion of the trial court; and we perceive no abuse of that discretion in exempting the homestead from the operation of the order of March 20, 1894, as modified by the order of April 9, 1894, nor in leaving Mr. Meggett in the exclusive possession and control of the same until cut off by lawful sale under the foreclosure judgment.
: That portion of the order of March 20,1894, as modified
The several appeals by Mr. Meggett are all taken by the same notice, and in taxing costs in this court they must all be taken and considered together as a single appeal.
By the Gowrt.— Ordered accordingly.
A motion by the defendant Meggett for a rehearing upon his appeals was denied March 5, 1895.
