Paschke v. Stoller

189 Wis. 348 | Wis. | 1926

Vinje, C. J.

A number of errors are assigned by the defendant, but since the judgment must be reversed and the cause remanded with directions to dismiss the complaint upon the merits, all of them need not be discussed. The chief evidence of ownership of the note produced by the plaintiff was the order of the court declaring her to be the owner thereof. But that order was made in a proceeding in which the defendant was not a party and therefore it was not binding upon him, and his objection to the reception of the evidence should have been sustained. Landauer v. Espenhain, 95 Wis. 169, 70 N. W. 287; Inhabitants of Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669; Burlen v. Shannon, 3 Gray (Mass.) 387; Sawyer v. Kelley, 148 Iowa, 644, 127 N. W. 977; 3 Jones, Comm. on Ev. (Horwitz) § 588; 12 Am. & Eng. Ency. of Law, 84, note 4.

In 10 Ruling Case Law, pp. 1116 and 1117, the rule as to strangers is thus stated: “A judgment in personam is evidence only of the fact of its own rendition, — it may not be introduced to establish the facts upon which it has been rendered,” citing a large number of cases; and it continues:

“It is an axiom of law that no man shall be affected by proceedings to which he is a stranger — to which, if he is a party, he must be bound. He must have been directly interested in the subject matter of the proceedings — with the right to make defense, to adduce testimony, to cross-examine the witnesses on the opposite side, to control, in some degree, the proceedings, and to appeal from the judgment. Persons not having these rights are regarded as strangers to the cause.”

It is quite evident that within the meaning of this rule the defendant was a stranger to the proceedings and to the order declaring the plaintiff the owner of the note, and that the reception in evidence, of the order was prejudicial error.

The court also erred in permitting the witness Moors to testify, over proper objections, as to the contents of the bank ledger, which could easily have been produced but was not. It was error to permit the plaintiff to testify as to transactions with the deceased cashier on the theory that defendant had opened the subject. The following questions are the only ones sought to justify such testimony:

“Q. Isn’t it a fact, Mrs. Paschke, that you told people as late as last April, a month ago, that you didn’t know that you had that note until after Mr. Wollenberg died?” “Isn’t it a fact that you told people as late as last April that Mr. Wollenberg told you that you would never have to bother with notes?”

It will be seen that they did not involve a transaction or conversation with the deceased. They related only to statements claimed to have been made by plaintiff to others since the death of the cashier.

The reason that the complaint must be dismissed is that the uncontradicted evidence shows the defendant had money-due from loans made for him by the bank; that he went to the bank to get $1,000 of it, and was told by the cashier that there was no money then in from the loans but that the bank would let him have the money. He got it by signing the note in question, noticing that the name of the payee was left blank. Though the note was due in six months after August 7, 1922, and though the bank continued operations till September, 1923, over a year after its date, he was never called upon to pay principal or interest, and in the meantime he had drawn out of the bank the money he had left with it to be loaned, less the amount of this and another note signed by him. So he had settled in full with the bank and had reason to believe that the note in question belonged to the bank at the time of such settlement; which in fact it did because the name of the payee was not inserted till the trial. Even if there was evidence that the defendant authorized the bank to insert the name of a payee other than the bank, which there is not, such authority must be exercised within a reasonable time. Sec. 116.18, Stats.

The defendant testified he supposed the name .of the bank was to be inserted and gave no authority to fill in any other name. In the absence of evidence showing authority from the maker to fill in another name than that of the bank, no other name could be inserted.

Sec. 116.18, Stats., provides:

“Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it prior to negotiation by filling up the blanks therein. And a signature on a blank paper delivered by. the person making the signature in order that the paper may be converted into a negotiable instrument operates as an authority to fill it up as such for any amount. In order, however, that any such instrument when complete may be enforced against any person who became a party thereto prior to completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. : . .”

Here it was not filled in according to authority nor within a reasonable time. For the reasons stated the defendant was liable on the note only to the bank, and such liability has been met by payment.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.