10 Wis. 128 | Wis. | 1859
By the Court,
This is an action commenced in the circuit court for the county of Dane, by the-respondent, against the appellant, and Elizabeth Robinson his wife, for the foreclosure of a mortgage. The complaint is in the usual form, and alleges that the appellant, on the 7th of May, 1856, at Black Earth, in the county of Dane, executed and delivered to the respondent his promissory note for the sum of $600, payable on or before the 7th day of May, 1857, with interest at the rate of twelve per cent per annum, and at the same time and place, together with his wife, executed and delivered the mortgage to secure the payment of the note. Elizabeth Robinson made no answer. The appellant answered, admitting the execution of the note and mortgage as set forth in the complaint, but insisting that the appellant ought not to have
For a further answer, he alleged that before the making of the promises and undertakings in the complaint mentioned, wit: On the 7th day of May, 1856, at the county of Dane, it was corruptly and against the form of the statute in such case made and provided, agreed by and between the respondent and himself, that the. respondent should lend and advance to him the sum of $510, and that he should forbear and give day of payment thereof to him until May 7th, 1857, being the term of one year, and that he, the said appellant, for the said loan of $570, and giving of such day of payment, should give and pay the respondent the sum of $600 on the 7th of May, 1857, with interest on said last sum at the rate of 12 per cent, per annum; that in pursuance of said usurious and corrupt agreement, the respondent did then and ■ there lend' and advance to him the sum of $570, and no more, and the sum of $600 so agreed to be paid and given by the appellant to the respondent, and secured by the note and mortgage mentioned in the complaint, exceeds the rate of twelve dollars for the forbearance of one hundred dollars for one year, &c., whereby, and by force of the statute in such case made and provided, the note and mortgage became and were wholly void as to all sums above the said sum of $570, so actually loaned.
On the 15th of May, 1858, the respondent’s attorneys gave notice to the attorneys of the appellant, that, on the 25th of May, at the opening of the court on that day, or so soon thereaf
To these proceedings several objections are made by the appellant’s counsel. 1. It is objected thatj the judgment upon the answer as frivolous, is erroneous, because no notice of the time when the application therefor was in fact made, was given to the appellant’s attorneys. Whether this objection be good or not, depends upon whether it was regular for the respondent to proceed after the 25th of Mky, and during the same term, under the notice of such application, which was given for that day; or whether the court not being in session on that day so that it became impossible for him to make his application then, he was bound before he could proceed further, to give a new notice of the time- when he would make the same. The appellant’s counsel insists that the notice for the 25th expired with that day, and that before further steps could be taken it must be renewed. We are of a different opinion. It seems to us that when causes over which the moving party has no control, intervene between the time of
2. The next objection made is, that it was erroneous to refer the matter for computation of the amount due after judgment for frivolousness, to the court commissioner. This was clearly regular within the second subdivision of sec. 158 of the Code, which provides that, “ if the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose.”
The judgment of the circuit court must be reversed and the cause remanded for further proceedings in accordance with this opinion.