Olson v. Peabody

121 Wis. 675 | Wis. | 1904

Cassodat, C. J.

It is claimed tbat tbe justice never got jurisdiction of tbe action, because tbe affidavit for tbe writ of replevin was not in compliance with sec. 3733, Stats. 1898. One criticism is tbat in tbe body of tbe affidavit tbe plaintiff is mentioned and referred to as “Charles Oleson,” whereas it is signed “Charley Olson.” It is difficult to tell from tbe record whether it is signed “Charley” or “Charles,” but we will assume, for tbe purpose of this case, tbat it was signed “Charley Olson.” Tbe affidavit was sworn to before tbe justice who issued tbe warrant, and be certifies tbat it was “subscribed and sworn to before me [him]” on tbe day mentioned. There can be no doubt but tbat tbe person who so “subscribed and swore to” tbe affidavit was tbe person whom tbe justice intended to name in tbe body of tbe affidavit. Tbe affidavit appears to have been made by tbe plaintiff in bis own behalf, within tbe meaning of tbe section of tbe statute mentioned. Counsel’s argument is based in part upon some supposed docket entries of tbe justice. But there is no bill of exceptions, and we do not feel at liberty to assume tbe existence of facts not of- record in determining tbe question thus presented. Another objection to the affidavit is that it mentions “Wimmiam” IT. Peabody as the person who unjustly and unlawfully detained the property, instead of “William" H. Peabody, as mentioned in the warrant. It is enough to say that the defendant William II. Peabody there upon appeared in the cause and made an affidavit for the removal of the same, and that such affidavit was entitled "Charles Olson, Plaintiff, vs’. William II. Peabody, Fred Stockman, and.Art Stockman, Defendants.”

2. The substance of the affidavit for removal is given in the foregoing statement, and there can be no reasonable doubt but that it was sufficient for the removal, whether the Stockmans be regarded as parties to the action at the time it was made or not. We find nothing in the record to indicate that the justice did not have jurisdiction to issue the writ of replevin, nor that the county court did not acquire jurisdiction by virtue of the removal.

3. It is claimed that the description of the property is insufficient, and .that the judgment only determines the right to a part of the property — contrary to the statutes in such case made and provided. Sees. 3742,3744, Stats. 1898. If such claim is well founded, then, of course, the judgment must be reversed upon the authorities cited by counsel. Young v. Lego, 38 Wis. 206; Carrier v. Carrier, 71 Wis. 111, 36 N. W. 626. The affidavit for the writ of replevin, which constitutes the complaint herein, describes nine head of cattle, including “one red cow three years old”; and by the ninth finding the court found that the defendant did not unjustly take nor unlawfully detain the “red cow three years old” mentioned and described in the complaint. That finding exonerated the defendant from all liability on account of the “red cow three years old.” That left eight other head of cattle to be disposed of by the findings and the judgment. By the fifth finding of fact the court found that September 5, 1901, by virtue of the execution mentioned, the defendant levied upon and seized tbe other eight head of cattle, described, while in the possession of Peter A. Boe and subject to the chattel mortgage. By the seventh finding the court found that September 10, 1901, by virtue of the writ of replevin, the sheriff seized and took into his possession “all of the said property so seized upon the execution by said Peabody, with the exception of the spotted red and white cow two years old.” and finally delivered the same to the plaintiff, who still retained possession as therein found. Thus it appears that the sheriff seized on the writ of reple-vin, and took possession and turned over to the plaintiff, seven of the eight head of cattle mentioned in the fifth finding, and that he failed to get the “one spotted red and white cow two years old” mentioned in that finding. Nevertheiless, the eighth finding mentions the cattle so seized by the sheriff on the writ of replevin — which were seven in number —as “six head,” contrary to the finding itself. But such clerical error should not vitiate the finding or judgment. It is therein sufficiently found that the cattle actually seized by the sheriff on the writ of replevin — which were seven in number — were of the value of $84, and that the “two-year-old spotted cow” was of the value of $35. Such clerical error runs through the conclusions of law, and is found in the judgment. But it appears, from the findings and judgment, that the plaintiff is entitled to have and recover the possession of the “one two-year-old red and white spotted cow” mentioned, and six cents damages for the taking and detention thereof, with costs, or, if delivery thereof cannot be had, then that the plaintiff recover $35, the value of such cow as found, and such costs and damages; and it was therein further ordered and adjudged that the plaintiff was' “entitled to the possession” of the “cattle so delivered to him by the said sheriff, as appears in the findings in the case,” and which are therein erroneously mentioned as “six head.” Certainly, the defendant is not aggrieved by such clerical error in the findings and judgment. Sec. 3048, Stats. 1898; McGregor v. Pearson, 51 Wis. 122, 8 N. W. 101; Hogan v. La Crosse, 104 Wis. 106, 80 N. W. 105; Larson v. Oisefos, 118 Wis. 368, 95 N. W. 399. We find no reversible error in the record.

By the Court. — Tbe judgment of the circuit court is affirmed.